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684 N.W.2d 101 (2004)
STATE v. FLOHR
No. 23016.
Supreme Court of South Dakota.
June 7, 2004.
Affirmed (MBT).
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80 N.Y.2d 1022 (1992)
John H. Park et al., Appellants,
v.
Capital Cities Communication, Inc., et al., Defendants, and Kenneth V. Klementowski et al., Respondents.
Court of Appeals of the State of New York.
Submitted September 28, 1992.
Decided November 24, 1992.
Motion by defendant Buffalo Ophthalmologic Society to dismiss appeal taken as of right against said defendant granted and appeal dismissed, without costs, upon the ground that, as to that defendant, the order appealed from does not finally determine the action within the meaning of the Constitution. Motion by defendant Klementowski to dismiss appeal taken as of right against said defendant granted and appeal dismissed, without costs, upon the ground that, as to that defendant, no substantial constitutional question is directly involved.
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556 P.2d 1045 (1976)
Seth Thomas SPEEGLE, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-76-551.
Court of Criminal Appeals of Oklahoma.
November 23, 1976.
Richard A. Hoffman, Asst. Public Defender, Tulsa County, for appellant.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Alan Foster, Legal Intern, for appellee.
OPINION
BUSSEY, Judge.
Appellant, Seth Thomas Speegle, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF-75-523, with the offense of Manslaughter in the First Degree in violation of 21 O.S. 1971, § 711. He was tried by jury and convicted, but the jury was unable to agree on a sentence. The court sentenced him to serve a term of fifteen (15) years in the custody of the Department of Corrections of the State of Oklahoma. From said judgment and sentence defendant has perfected his timely appeal to this Court.
The first witness called on behalf of the State was Leonard Collins, who testified that he had been employed as a police officer with the Collinsville Police Department, Collinsville, Oklahoma, for three years. He testified that he was working the night shift on March 6, 1975, and at approximately 1:00 a.m. he responded to a "trouble call" at the Commercial Hotel. Officer Collins stated that he was met at Apartment No. 1 by Officers Coppedge and Kirkpatrick, and that upon entering the apartment he found a man on the floor next to a bed. Two men, identified as Bill Cohea and the defendant, were lying on the bed. Lee Nicholson was sitting in a chair by a table, upon which sat a nearly empty bottle of wine.
Officer Collins testified that he turned the man over who was on the floor, and upon seeing blood on the chest area of the man's shirt, tore open the shirt exposing what appeared to be a stab wound. The officer then called for an ambulance.
*1046 Officer Collins stated that Mr. Cohea appeared to be intoxicated, but the defendant did not. He further stated that Mr. Cohea had blood around his mouth and that the defendant had blood on his shirt. The officer testified that he knew that the deceased, Sam Jackson, carried a gun and that he worked at the Corner Bar. The officer further stated that he had investigated a shooting incident in which approximately seven shots were fired earlier that evening at the Corner Bar near the Commercial Hotel. No arrests were made, nor did the officer see any of the persons connected with the stabbing incident present at the bar.
The next witness for the State was Bob Randolph, a Deputy Sheriff of Tulsa County. He testified that he was on duty on March 6, 1975, and at 1:37 a.m. received a call to investigate a death in Apartment No. 1 of the Commercial Hotel. Upon arrival, Deputy Randolph found the scene essentially as Officer Collins described it. Randolph stated that a knife blade found at the feet of the victim appeared to be the stabbing weapon, and that the handle of the blade was found on the bed on which Mr. Cohea and the defendant were sitting. The deputy stated that there appeared to be blood on about three and a half inches of the blade, but tests run on it were not conclusive.
Deputy Randolph testified that Bill Cohea was intoxicated and was unable to give a statement until ten or twelve hours later. The deputy stated that no blood was found outside of the residence, nor in the area from the Corner Bar to the apartment.
The State next called James Lewis, who stated that he was a Tulsa County Deputy Sheriff. He testified that on March 6, 1975, he was called to the Commercial Hotel to investigate a homicide. Deputy Lewis stated that he returned to Nicholson's apartment the following day and removed a knife, which resembled the instrument used in the crime.
The next witness for the State was Bill C. Cohea, who testified that on March 6, 1975, about 5:00 p.m., he saw the defendant at the recreation hall in Collinsville, and together they went to the Corner Bar to have a beer. Mr. Cohea testified that he then went on alone to Red Nicholson's apartment, but that the defendant arrived there soon after he did. The three men then drank some whiskey before leaving the apartment to pick up the defendant's wife. Before returning to Red Nicholson's apartment they stopped to buy a half gallon of wine. Mr. Cohea stated that he soon left the apartment and went to his own house with the intention of spending the night there. However, upon finding the propane turned off, Mr. Cohea returned to Red Nicholson's apartment. He then testified that the defendant and defendant's wife had already gone to sleep on the hide-a-bed, and he also lay down in the bed next to the defendant. Mr. Cohea stated that as he got into bed he nudged the defendant with his elbow whereupon the defendant cried out, "Get your elbow out."
Bill Cohea testified that after he fell asleep he was awakened by some movement and woke up to see the defendant stabbing Mr. Jackson. The defendant's wife was no longer in bed. Mr. Cohea further testified that he did not see the actual stabbing, but saw the defendant reach around to Mr. Jackson's chest, whereupon Mr. Jackson fell to the floor. At that point, the witness testified that the defendant began hitting him in the face causing his nose to bleed. The witness stated that he thought the defendant had a knife in his hand. Mr. Cohea testified further that Red Nicholson came into the room and stopped the fight. He also stated that all the men had been drinking and that he himself was drunk.
The State's final witness was Robert Fogel, a pathologist. He stated that he had performed the autopsy on Sam Jackson and concluded that he died from a stab wound in the chest which penetrated into the heart and resulted in hemorrhage. The doctor further testified that the blade *1047 which appeared to be the murder weapon could be consistent with the stab wound. Dr. Fogel stated that the death would have been rapid, within five minutes, and he found only a moderate amount of internal bleeding. The alcohol content of Mr. Jackson's blood at the time of his death was high, indicating that he was intoxicated. The doctor testified that the victim had recent abrasions on the face which could have been the result of a fall or a blow to the face.
Dr. Fogel further testified that it would have been possible for the victim to walk across the street after infliction of the wound. Alcohol, Dr. Fogel testified, acts as an anesthesia and the victim's tolerance for pain is greater.
The State then rested.
The defense began its case by calling as its first witness Rae Speegle. She testified that she had been married to the defendant for one and a half years, and that he had met Mr. Cohea while in the hospital. On March 6, 1975, the defendant was still taking medication. Mrs. Speegle stated that her husband knew Mr. Nicholson, but she did not think that he knew Mr. Jackson.
Mrs. Speegle substantially corroborated Bill Cohea's testimony as to the events which transpired from the time the three men picked her up until they returned to the Nicholson apartment. She stated that after her husband, the defendant, had gone to sleep on the hide-a-bed, she lay down beside him while Red Nicholson and Cohea were arm wrestling at the kitchen table. Later, Bill Cohea got into bed also and as he did he punched the defendant with his elbow. Mrs. Speegle testified that she told Bill Cohea to get out and that if he hit defendant in his stomach it would hurt him. She testified that Red Nicholson also called out to Bill Cohea. She stated that the defendant then turned over on his back and when she did likewise, she saw a man sitting on the side of the bed. She then crawled out at the foot of the bed, not knowing who the man was. Mrs. Speegle testified that she went to the kitchen to get some water and while there heard some "commotion" but heard no voices. She went back to the living room and saw the unidentified man on the floor and her husband struggling with Cohea. She testified that Red Nicholson came into the room and hit Cohea in the face to stop the fight. She then drove to the police station to get help.
Mrs. Speegle stated that when the police arrived at the scene Mr. Cohea inquired of them "why don't you all go out and find the ones who did this, find who shot him?" She testified that Mr. Cohea was unable to make a statement to the police because he was drunk. The witness stated that her husband did not carry a knife, nor did she see a knife in the bed. She stated that she did not see anyone stab Sam Jackson.
The next witness called for the defendant was Betty Boline. She stated that she was acquainted with Mr. Jackson, and stated that she knew there was trouble between Mr. Jackson and a man by the name of Gary McDonald. She testified that Mr. McDonald had caused Sam Jackson to lose one eye.
The next witness for the defense was A.C. Holder, owner of the Corner Bar. He testified that Sam Jackson worked for him, and that on the night of the 5th of March, 1975, he and Mr. Jackson closed the bar together. He stated that Mr. Jackson did not appear to be intoxicated.
Mr. Holder stated that a man, whom he could not identify, walked up to the front door of the bar and then turned around and left. He further testified that he knew a man named Gary McDonald and that he knew Mr. Cohea, and the man in question was neither the defendant nor one of the other two men.
Doris Goad was next called as a witness on behalf of the defendant. She stated that she was an employee of the Corner Bar, and that on the night in question Sam Jackson was not working at the bar.
*1048 The next witness for the defense was O.L. Ingram, who stated that he had been in Collinsville on the evening of March 5, 1975. He testified that he had been at the recreation hall from around 10:00 p.m. to midnight, and upon hearing some shooting coming from the direction of the Corner Bar, drove past the bar after taking his girl friend home. As he approached the bar, he stated, he saw Mr. Holder standing in front of the bar. Mr. Ingram testified that Jackson was crossing the street, and that he had to slow down almost to a stop to avoid hitting Jackson. He further testified that Jackson appeared to be drunk because he was wobbling and staggering.
The next witness for the defense was Ben Miser, a private investigator employed by the defense. He testified that he investigated Jackson's death three or four months after it occurred and in the course of that investigation examined the streets, alley, walkways, and doors around Mr. Nicholson's apartment. The witness testified that the Oklahoma State Bureau of Investigation ran tests on samples taken from those places, and determined that the samples showed evidence of human blood. The witness could not state whether the blood found was from the early morning of March 6, 1975.
The next witness called on behalf of the defendant was Dolores Brooks who stated that she was a secretary employed by the Tulsa County Sheriff's Office. She stated that she took several statements concerning Sam Jackson's death, but she did not take Mr. Cohea's statement until March 7, 1975, at 3:40 p.m. She testified that Mr. Cohea had been drinking quite a bit, but that she was not qualified to determine whether or not he was intoxicated.
The defense then rested.
The State called Norman Howe Whisenhunt as a rebuttal witness. He testified that he was a Deputy Sheriff for Tulsa County and had been so employed on March 5, 1975 and March 6, 1975. Deputy Whisenhunt stated that on March 7, he had a conversation with Mrs. Speegle. The witness stated that during the conversation he asked her:
"... if she would have been the cause, if she thought her husband would allow anyone to bother her. She said no, if he was awake he wouldn't allow anyone to bother her."
* * * * * *
"Then I asked her if her husband was known to carry a knife.
* * * * * *
"... She said if you know my husband there is no point in denying that." (Tr. 184-185)
The deputy testified that Mrs. Speegle's statement in the conversation was not taken under oath.
The State then rested.
Mrs. Speegle was recalled in surrebuttal, as a witness for the defense. She stated that she did not make any comments to Deputy Whisenhunt to the effect that her husband carried a knife.
The defense rested.
The defendant asserts as his single assignment of error that the trial court erred by not directing a verdict of acquittal on the grounds that the evidence produced by the State was so weak and uncertain that it should not have been sufficient to sustain a conviction for the crime of Manslaughter in the First Degree.
This Court has on numerous occasions considered the issue of sufficiency of evidence. As stated in Jones v. State, Okl. Cr., 468 P.2d 805, 807 (1970):
"Where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom since it is the exclusive province of the jury to weigh the evidence and determine the facts... ."
In the case at bar, defendant duly preserved his objections to the State's evidence *1049 by way of a general demurrer. It is quite true that evidence raising only a suspicion is insufficient to sustain a conviction. However, a demurrer to the evidence admits the facts which the evidence tends to prove, and where there is any competent evidence which reasonably supports the allegations of the charge, a demurrer should not be sustained. See, Byrne v. State, Okl.Cr., 482 P.2d 620, 622 (1971).
From the foregoing recital of facts, it is apparent that the evidence, although circumstantial, was ample to support the jury's verdict. This Court stated in Hunter v. State, Okl.Cr., 478 P.2d 1001 (1970), in the second paragraph of the Syllabus as follows:
"Where there is evidence, although entirely circumstantial, from which the jury may reasonably and logically find the defendant guilty, the weight, credibility and probative effect of such evidence is for the jury, and the Court of Criminal Appeals will not disturb the verdict for insufficiency of the evidence."
The case of Mayberry v. State, Okl.Cr., 449 P.2d 912 (1969), closely parallels the evidence in the case at bar. The defendant in that case was convicted of manslaughter in the first degree for the death of the deceased by stabbing. Witnesses testified that the defendant Mayberry struck the deceased with whatever he had in his hand, which appeared to be a knife. This testimony is very similar to the statements made by Bill C. Cohea in the instant case.
We conclude that in the case at bar the jury was convinced of the defendant's guilt beyond a reasonable doubt, and based on that finding returned a verdict of guilty. The evidence presented in the case was competent and sufficient to sustain that conviction and the judgment and sentence in this case should be, and the same is, therefore, AFFIRMED.
BRETT, P.J., and BLISS, J., concur.
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695 N.W.2d 507 (2005)
STATE v. WROBLEWSKI
No. 04-1150
Court of Appeals of Iowa
February 24, 2005.
Decision without published opinion. Reversed, Sentence Vacated, and Remanded.
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201 S.E.2d 733 (1974)
20 N.C. App. 398
STATE of North Carolina
v.
Moses TEEL.
No. 737SC807.
Court of Appeals of North Carolina.
January 9, 1974.
*734 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.
Charles L. Becton, Chapel Hill, for the defendant.
BROCK, Chief Judge.
Defendant assigns as error that the trial judge coerced the jury into finding defendant guilty of larceny.
The record discloses that the jury deliberated from 4:35 p. m. until 6:00 p. m. on one afternoon and from 9:05 a. m. until 10:10 a. m. the next morning. The jury came into open court and its foreman announced that it had agreed upon a verdict as to one count in the indictment but stood eleven to one as to the other count. The trial judge instructed the jury as follows:
"Members of the Jury, the Court gives you the following instructions. Listen very carefully to what I have to say.
"I don't want any member of the Jury to surrender any conscientious opinion that he or she has about these cases, but you know the reason we select a jury and let twelve jurors discuss the case, is so that each member of the jury can express his or her opinion and also consider the opinion of the fellow jurors. It is very rare that all twelve would have the same opinion to begin with. We want the benefit of your combined judgment. And, it may be that you have an idea that you want the other members of the Jury to consider. Maybe some of the *735 others have ideas that you ought to consider. In the final analysis, members of the Jury, we are seeking to determine the truth of the matter.
"So far as I know, you members of the Jury have all of the information or all of the evidence available in this case. If we should have a failure of agreement now, it would mean that the case would have to be tried over again, which would mean added expense, and in the final analysis some twelve jurors are going to have to decide this case. And, inasmuch as you members of the Jury have all of the evidence any other twelve jurors would have, I am hoping that you can determine it, but as I stated at the outset, I do not ask and would not permit a single one of you, members of the Jury, to participate in a verdict that did not reflect your conscientious opinion. I don't ask or want you to do that. I want you to consider the views of the members of the Jury.
"I might say there is no reason to hurry in this case. So, at this time, members of the Jury, I will let you resume your deliberations and see if you can reach a verdict in this case. You may retire.
"May I say, if you determine that you cannot resolve your differences, let us know."
The record discloses that the jury thereafter deliberated from 10:48 a. m. to 11:03 a. m. before returning its verdict of not guilty on the breaking and entering count and guilty on the larceny count.
The charge to which defendant objects must not be read in detached portions. When viewed as a whole, it is clear that the trial judge repeatedly cautioned the jurors not to surrender a conscientious opinion one might have about the case. Defendant argues, however, that it was improper for the court to suggest that if this jury failed to reach a verdict, the case would necessarily have to be tried again. Defendant contends that a mistrial is not always followed by a retrial and, therefore, the suggestion that the case would have to be tried again was untrue and misleading.
The statement that in event of failure of agreement by the jury the case would have to be tried over again, while not accurate in the sense of a retrial being an absolute necessity, was accurate as a generality. Considering the supplemental charge as a whole, it was merely an expression of hope that the jury would decide the case if it could do so without any juror abandoning a sincere and conscientious belief. The supplemental charge, considered contextually, could not reasonably have a coercive effect.
United States v. Harris, 6th Cir., 391 F.2d 348, relied upon by defendant, is clearly distinguishable. In Harris the trial judge, in giving supplemental instruction to the jurors, advised them that a previous jury had failed to agree.
While we urge that trial judges must be extremely careful in the manner of requesting further deliberation after the jury has announced its failure to agree, we hold that the supplemental instructions given in this case were not coercive. This assignment of error is overruled.
Defendant assigns as error the acceptance by the trial judge of a verdict of guilty of felonious larceny after a verdict of not guilty of breaking and entering.
The following is stated in State v. Holloway, 265 N.C. 581, 144 S.E.2d 634: "It is noted that the verdict of not guilty as to the first count [felonious breaking and entering] establishes that defendant did not commit the alleged larceny pursuant to an unlawful and felonious breaking and entering and therefore G. S. § 14-72, as amended, does not apply." Absent a finding of guilty of the breaking and entering, a verdict of guilty of larceny of property of a value of more than $200.00 (a felony), or of guilty of larceny of property of a value of $200.00 or less (a misdemeanor), *736 was permissible under appropriate instructions. In this case, however, the jury was not instructed as to its duty to fix the value of the property in question. Therefore, as was done in State v. Jones, 275 N.C. 432, 168 S.E.2d 380, the verdict in this case must be considered as a verdict of guilty of larceny of property of a value of $200.00 or less (a misdemeanor).
The judgment of imprisonment for a period of not less than three nor more than five years entered in this case is greater than the maximum allowed for a misdemeanor. The judgment is vacated and this cause is remanded to the Superior Court for pronouncement of judgment herein as upon a verdict of guilty of misdemeanor larceny.
Error and remanded.
CAMPBELL and PARKER, JJ., concur.
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836 F.2d 1347
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Paul CHILDRESS, Petitioner-Appellant,v.STATE OF OHIO and State of Florida, Respondents-Appellees.
No. 86-3275.
United States Court of Appeals, Sixth Circuit.
Jan. 4, 1988.
Before MERRITT, BOYCE F. MARTIN, Jr., and WELLFORD, Circuit Judges.
WELLFORD, Circuit Judge.
1
Petitioner Childress was found guilty of carrying a concealed weapon and filed a plea of guilty to a reduced charge of aggravated assault on the original charge of felonious assault in an Ohio state court. He appealed the conviction to an Ohio Court of Appeals which affirmed the trial court decision. He then filed a motion for leave to appeal with the Supreme Court of Ohio which was overruled by the Supreme Court and sua sponte dismissed. Childress then filed, pursuant to 28 U.S.C. Sec. 2254, a petition for writ of habeas corpus. After the district court dismissed without prejudice this petition for failure to exhaust state remedies on the effective assistance of counsel claim, Childress filed an amended petition. The district court concluded that the petition was without merit and ordered dismissal, from which this appeal ensued.
2
The district court summarized the facts as follows:
3
In his first claim petitioner states that Ohio failed to bring petitioner to trial within the time specified in the Interstate Agreement on Detainers [IAD]. Petitioner states that in June 1982 during his incarceration in Florida he sent a letter to the Hamilton County, Ohio prosecuting attorney's office requesting that he be brought to trial within the time specified .... The prosecuting attorney's office sent petitioner a letter acknowledging receipt of his request and informing him that no action would be taken with respect to his request until he filed the proper papers. The letter further instructed petitioner on the proper procedure under the Interstate Agreement on Detainers. Petitioner states that he completed the proper forms in September 1982 while imprisoned in Florida's Avon Park Correctional Institute. Petitioner was subsequently transferred to Florida's Tomoka Correctional Institute. Respondent states that the Hamilton County Prosecutor did not receive the proper forms until March 1983. Petitioner was brought to trial on the Ohio charges on June 13, 1983. This was within one hundred and eighty days from the date the prosecutor states he received the proper forms but greater than one hundred and eighty days from petitioner's alleged signing the proper forms in September of 1982.
4
The trial court sentenced Childress to a 3-10 year sentence for carrying a concealed weapon, to run consecutively with a sentence imposed by the State of Florida, and additionally, sentenced him to a term of 1 to 5 years on the charge of aggravated assault to be served concurrently with that of the Florida sentence. Childress claims that his attorney informed him that the Ohio trial judge made several statements prior to trial about his intention to give petitioner the maximum sentence even if he pled guilty, because petitioner had fled the jurisdiction several years earlier after the judge had released him from incarceration on a reduced bond.
The issues involved in this appeal are:
5
(1) Were the speedy trial provisions of the IAD violated?
6
(2) Were defendant's due process rights to a fair and impartial proceeding violated?
7
(3) Were the defendant's due process rights to a fair and impartial proceeding violated?
8
(4) Are challenges to the conditions of custody, such as denial of participation in rehabilitative programs, cognizable in a federal habeas corpus proceeding?
9
Childress claims that in September 1982 he completed the proper forms to invoke the IAD's speedy trial provisions and returned them to his classification supervisor in Florida for processing. He took no further action because he believed that he had filed the necessary forms with the appropriate prison authorities. In late 1982 and early 1983, however, he retained legal counsel who discovered that the Hamilton County Prosecutor's office had never received the IAD forms. Childress contends that under IAD he was only required to give his local custodian written notice of his place of incarceration and to request a speedy trial in writing. He argues that responsibility shifted to the state custodian to attach a certificate and mail the necessary papers, citing United States v. Hutchins, 489 F.Supp. 710 (N.D.Ind.1980). He argues further that the state court's finding that he failed to comply with IAD until 1983 should not be given a presumption of correctness because the trial court failed to conduct a full and fair hearing and to develop all the material facts as to this particular issue. Childress contends that the burden of complying strictly with IAD had shifted to the Florida and Ohio authorities.
10
Respondent argues that the literal requirements of IAD must be fulfilled in order to commence the running of the 180 day time limit and that since Childress has not demonstrated compliance in Ohio, the claim should be dismissed. Respondent asserts that state court findings of fact on which Childress filed requisite documents are entitled to a presumption of correctness in habeas corpus proceedings in the district court. See 28 U.S.C. Sec. 2254; Sumner v. Mata, 449 U.S. 539 (1981); Marshall v. Lonberger, 459 U.S. 422 (1983).
11
IAD is a congressionally sanctioned interstate compact, the interpretation of which presents a question of federal law. Cuyler v. Adams, 449 U.S. 433, 442 (1981). Whether relief may be granted in a Sec. 2254 habeas corpus proceeding for a violation of time provisions in the IAD is a question of considerable difficulty. See Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied, 449 U.S. 849 (1980); Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. denied 440 U.S. 940 (1979); Fasano v. Hall, 615 F.2d 555 (1st Cir.), cert. denied, 449 U.S. 867 (1980); Kerr v. Finkbeiner, 757 F.2d 604 (4th Cir.), cert. denied, 474 U.S. 929 (1985); Carlson v. Hong, 707 F.2d 367 (9th CIr.1983); Tinghitella v. California, 718 F.2d 308 (9th Cir.1983); Webb v. Keohane, 804 F.2d 413 (7th Cir.1986); Casper v. Ryan, 822 F.2d 1283 (3d Cir.1987); United States v. Williams, 615 F.2d 585 (3d Cir.1980). We are concerned, however, regarding the claim of prejudice by reason of an alleged failure of Florida officials to forward necessary papers to trigger the IAD time limitation and transfer to Ohio for trial. We believe that the majority view is that non-compliance with IAD by a participating state may not form a basis for federal habeas corpus relief unless it is considered so fundamental a defect that defendant is deprived of a fair trial.
12
We decide this case, however, on another basis. Here the district court presumed that the Ohio court's factual finding that Childress had not filed the proper forms under the Act until March 31, 1983 was correct. The district court therefore denied petitioner's claim on this IAD speedy trial basis, because it found that Childress was brought to trial within 180 days of filing all the proper forms in the Ohio prosecutor's office. It held that there was no violation of IAD. In Carchman v. Nash, 473 U.S. 716, 723 n. 2 (1985), the Court specifically noted that for purposes of the decision it would assume without deciding that the district court's ruling on compliance with the notice provisions was correct. The district court had ruled "that respondent's letters requesting disposition of the detainer were sufficient to invoke Art. III, even though they did not strictly comply with Art. III's request procedures."1
13
United States v. Ricketson, 498 F.2d 367, 372-73 (7th Cir.), cert. denied, 419 U.S. 965 (1974), held that the 180 day time period did not commence "until the prisoner causes the written notice and certificate specified therein to be delivered to the court and prosecutor." 498 F.2d at 373.2
14
There are contrary cases in respect to the strict rationale of Ricketson to the effect that technical notice requirements may be excused under certain circumstances.3 We believe that the district court was correct in giving the state court's finding as to the time of filing with Ohio authorities a presumption of correctness.
15
We next consider whether in this case petitioner's speedy trial rights were violated. The State of Ohio was aware in April of 1982 that petitioner was in Florida in custody, because a Hamilton County Sheriff's Department representative testified at a hearing there at that time. The record reflects also that petitioner requested a speedy trial by letter in June of 1982. Trial did not take place until June of 1983, but on the first day of trial Childress requested a continuance.4
16
The state appellate court held, in affirming petitioner's conviction, that he did not file the proper forms under IAD until March 31, 1983. This finding the district court determined to be entitled to a presumption of correctness. See Sumner v. Mata, 449 U.S. 539 (1981); Marshall v. Loneberger, 459 U.S. 422 (9183). It is uncontested that petitioner fled the jurisdiction of Ohio and was in Florida or in custody of Florida officials until March of 1983. As did the district court, we look to the Barker v. Wingo, 407 U.S. 514 (1972), standards to determine if there were a sixth amendment "speedy trial" violation. We consider the Barker standards apart from IAD time requirements. Childress was brought to trial in less than a year after he demanded a speedy trial. "[A]ssertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." Barker, 407 U.S. at 528. The Court ruled that a defendant "has some responsibility to assert a speedy trial claim." Id. at 529. The time involved in this case in every aspect was less than the time involved in Barker to bring the criminal defendant to trial. There was not a "presumptively prejudicial" delay. Id. at 530.
17
The prime reason for the delay here, after demand for a speedy trial, was a failure which was attributed to Childress to file the proper papers so that Ohio could proceed on its detainer against Childress in Florida. Within three months after Childress completed the filing of necessary papers, he was brought back to Ohio and proceeded to trial. The reason for the delay was not, in any event, to give Ohio prosecutors a tactical advantage, nor due to negligence, nor bad faith on the part of Ohio authorities. The petitioner has demonstrated no error on the part of the district court in its finding that Barker v. Wingo standards have been satisfied in this case, except for Childress' claims of prejudice concerning the death of two purported witnesses during the delay period. Since the district court did not discuss his basis for finding no prejudice, we must remand for its consideration of Childress' claim of prejudice, one of the Barker factors.
18
With respect to petitioner's claim of denial of his right to a fair and impartial trial, we find no showing that the jury trial afforded him was "infected" by the trial judge's alleged intention to impose a heavy sentence upon him, if found guilty, by reason of his escape from Ohio. We have indicated that a sentencing judge has wide discretion in effectuating a sentence once a jury has determined guilt. We find no constitutional error in the judge's taking into account Childress' extensive criminal record, including his escape felony. See McBee v. Grant, 763 F.2d 811 (6th Cir.1985).
19
Petitioner's claim concerning his conditions of custody in Florida and the asserted hardships imposed upon him by reason of the filing of the Ohio detainer relate to challenges that test conditions of custody. We do not find this type of claim cognizable in a federal habeas corpus proceeding, and we affirm the district court's disposition in this regard.
20
As indicated, whether a demonstrated violation of IAD forms a basis for habeas corpus relief is a matter of doubt. Giving petitioner the benefit of that doubt, we still do not find on the record a basis for relief under all the circumstances. Ohio, the state issuing the detainer, was not at fault in insisting that it receive the necessary papers for invocation of the IAD time requirements prior to instituting procedurees to bring petitioner to trial. Delay in receiving the necessary forms from the custodial state, Florida, may not have been the fault of petitioner, but there are not alleged here "such egregious IAD violations that might present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' " Fasano v. Hall, 615 F.2d 555, 558 (1st Cir.), cert. denied, 449 U.S. 867 (1980). See also Casper v. Ryan, 822 F.2d 1283 (3d Cir.1987) (pet. for cert. filed 9/18/87). We have already discussed the claim of constitutional violation with regard to speedy trial within the meaning of Barker v. Wingo, supra, and find no constitutional violation.
21
Accordingly, we AFFIRM the district court with respect to his disposition of petitioner's claims with respect to due process claims and with respect to his contentions concerning conditions of his confinement in Florida and with respect to the IAD contentions. With respect to the constitutional speedy trial claim, we REMAND the case to the district court but only for further consideration of petitioner's claim of prejudice with respect to alleged missing witnesses by reason of the delay which petitioner claims was a consequence of denial of a speedy trial.
22
MERRITT, Circuit Judge, concurring.
23
I concur in the result reached by the Court, but only because in my view petitioner-appellant failed to carry his burden of proof. Specifically, he failed to show that there was speedy-trial prejudice, and also failed to show that he satisfied the general requirements of the Interstate Agreement on Detainers to give notice to the state in which he was incarcerated. I would not reach the other issues treated in the Court's opinion.
1
Justices White and Marshall dissented to a denial of certiorari in the cases of Kerr v. Finkbeiner, 474 U.S. 929 (Oct. 21, 1985). The issue was whether a violation of III(a) of the IAD is cognizable in a habeas corpus proceeding. The Justices noted a split among the circuits on this question as to whether prejudice must be shown in light of the Court's former decision of Davis v. United States, 417 U.S. 333 (1974). In Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied, 449 U.S. 849 (1980), we held that IAD claims are not cognizable under a motion for Sec. 2255 relief unless prejudice is shown
2
An unpublished decision of this court cited and relied upon Ricketson. See Patterson v. Hopkins, No. 79-1354 (6th Cir. May 2, 1980), by holding that "written notice and a specified certificate" must be delivered to the court and the prosecutor in order to begin the 180 day period
3
Compare United States v. Hutchins, 489 F.Supp. 710 (E.D.Ky.1981); Schofs v. Wonder, 509 F.Supp. 78 (E.D.Ky.1981), with Williams v. Maryland, 445 F.Supp. 1216 (D.Md.1978), and Gray v. Benson, 443 F.Supp. 1284 (D.Kan.1978)
4
This request for continuance at trial was noted by the trial court. Petitioner does not contest this finding
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-01040-SCT
BARBARA BROWN, INDIVIDUALLY AND AS GUARDIAN OF WILLIAM JETUAN
BROWN
v.
BAPTIST MEMORIAL HOSPITAL- DESOTO, INC., AND DR. HAI V. DANG
DATE OF JUDGMENT: 5/23/2000
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SIDNEY FRANKLIN BECK, JR.
ATTORNEYS FOR APPELLEES: MICHAEL N. WATTS
ANGELA M. SPIVEY
ROBERT LEWIS MOORE
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 02/07/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 2/28/2002
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
¶1. Barbara Brown (Brown) appeals both individually and as guardian on behalf of William Jetuan Brown
(William) from a summary judgment for the Baptist Memorial Hospital-DeSoto, Inc. (Baptist) and Dr. Hai
V. Dang (Dr. Dang). Brown's expert witness failed to testify that Dr. Dang was negligent or failed to meet
the standard of care as required in medical negligence claims. Furthermore, since Brown's expert witness
and Dr. Dang both testified that the injury could have been caused by factors other than negligence, we,
therefore, conclude that the doctrine of res ipsa loquitur is not applicable to the facts of this case and affirm
the judgment of the trial court.
FACTS
¶2. Brown went into labor and was admitted at Baptist on October 12, 1994, under the care of Dr. Dang.
As the labor progressed, Brown experienced complications when the infant's shoulders became stuck in the
pelvic outlet, a medical condition labeled shoulder dystocia. To alleviate the problem, Dr. Dang performed
the McRobert's maneuver which entails bending the mother's legs upward at the knee until her thighs rest
against her abdomen, while an attendant applies suprapubic pressure to dislodge the infant. Following this
procedure, Brown's son, William, was born.
¶3. An attendant noticed an injury to the infant's shoulder when he arrived in the nursery. The next day, the
infant was diagnosed with Erb's Palsy, a condition characterized by partial paralysis of shoulder and arm
muscles.
¶4. In October 1996, Brown, individually and on behalf of her minor child, sued Baptist and Dr. Dang
alleging that her minor child suffered injuries, specifically the development of Erb's Palsy, due to the
negligence of Dr. Dang and the hospital's employees. Baptist filed its answer denying any liability. Dr. Dang
answered the complaint alleging that the shoulder dystocia which occurred during the delivery and Erb's
Palsy, which resulted from that complication, were complications inherent in the birthing process itself and
that these complications could not have been reasonably foreseen, nor avoided, through the exercise of
reasonable and ordinary care.
¶5. During discovery, depositions were obtained from Dr. Dang, the attending physician, and Dr. Selman
Welt (Dr. Welt), Brown's expert witness. Dr. Dang testified that Erb's Palsy is usually caused by the over
extension of the brachial plexus, where there is a tear on the top of the brachial nerve. He stated that the
injury is one of the complications of the delivery and that he did not know when the injury to the brachial
nerve occurred. Dr. Welt did not contradict this view.
¶6. In April, 1999, after the completion of discovery, Dr. Dang filed a motion for summary judgment in
which Baptist later joined. The court issued an order denying summary judgment in July, 1999. After the
denial of summary judgment, Dr. Dang filed a motion in limine requesting an order limiting the opinions of
Brown's expert witness to the opinions set forth in a prior discovery deposition. The court subsequently
issued an order restricting the opinions and factual bases to those set forth in the deposition.
¶7. Baptist and Dr. Dang filed renewed motions for summary judgment or alternatively motion to amend
judgment. In May, 2000, the trial court granted Baptist and Dr. Dang summary judgment. Brown filed a
timely notice of appeal.
DISCUSSION
I. Whether there exists a rebuttable presumption of negligence under the doctrine of res
ipsa loquitur thereby preventing summary judgment for Baptist and Dr. Dang?
¶8. A motion for summary judgment is granted only when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c); Brown v. Credit Ctr., Inc., 444
So. 2d 358, 362-63 (Miss. 1983). This Court reviews summary judgments under a de novo standard and
views the evidence in the light most favorable to the non-moving party. Mosby v. Moore, 716 So. 2d 551,
557 (Miss. 1998); Brown, 444 So.2d at 363.
¶9. Brown asserts that either negligence or some trauma externally inflicted on the child in the birthing
process caused injury to the infant. She argues that as in Palmer v. Clarksdale Hosp., 206 Miss. 680, 40
So. 2d 582 (1949), the doctrine of res ipsa loquitur applies in the instant case because an inference of
negligence is raised. See also Coleman v. Rice, 706 So. 2d 696, 698-99 (Miss. 1997).
¶10. In Palmer, a patient sued a hospital alleging that an employee of the hospital negligently fastened the
patient's feet to the operating table, seriously and permanently injuring her feet. Palmer, 40 So.2d at 582.
This Court noted that the operation did not involve the patient's feet; the patient's feet were normal before
she went into the operating room; her feet were strapped for forty-five minutes without being loosened; and
after the patient awakened from the anaesthesia her feet were hurting and later developed gangrenous
sores. Id. at 583. This Court also reasoned that the demonstration of the straps and their use, along with the
physician's testimony, was such that a reasonable man could conclude that tightening the straps caused the
injury and that reasonable care on the part of the physician required a loosening of the straps and failure to
do so proximately caused the injuries to the patient's feet. Id. Further, this Court stated that the doctrine of
res ipsa loquitur was applicable because the occurrence of an injury under the circumstances set forth above
permitted an inference or raised a presumption that the defendant was guilty of negligence. Id. at 585.
¶11. Brown alleges that, while in Palmer the parties knew what instrument caused the injury, the medical
records in the instant case fail to depict accurately the process of the delivery; and therefore, it is not clear
what instrument could have caused the injury. She reasons that in the instant case we are presented with an
infant who started a normal delivery and was injured by unknown circumstances, with an unknown
instrumentality. Brown argues the issue is that the physician does not know what caused this injury and
cannot give any explanation of how this injury could have occurred. Thus, the doctrine of res ispa loquitur,
Brown suggests, should raise a presumption of negligence that Dr. Dang and Baptist should have to rebut.
¶12. This Court has held that in order to prevail in a medical malpractice action, a plaintiff must establish, by
expert testimony, the standard of acceptable professional practice; that the defendant physician deviated
from that standard; and that the deviation from the standard of acceptable professional practice was the
proximate cause of the injury of which plaintiff complains.(1) Phillips ex rel. Phillips v. Hull, 516 So. 2d
488, 491 (Miss. 1987); Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987).
¶13. Dr. Dang submits that Brown's argument fails because (1) Brown's expert failed to identify any act or
failure to act by Dr. Dang or the hospital staff which was the proximate cause of any injury to the infant and
(2) the doctrine of res ipsa loquitur is inapplicable to the facts of this case. We agree.
¶14. Dr. Welt, Brown's expert, testified as follows:
Mr. Kennedy: What do you believe went wrong?
(Dr. Dang's attorney)
Dr. Welt: Was done wrong? I believe that a difficult delivery was accomplished and the standard of
care was violated through an inadequate description of the process of delivery.
Mr. Kennedy: Is it fair to say that your criticism, at least at this point, is in the documentation of the
delivery?
Dr. Welt: Without the documentation, which I am criticizing the absence of, I cannot determine the
quality of the service provided to the patient.
Mr. Kennedy: Okay. Other than Dr. Dang's failure to extensively document the birth in this case, is
there any other criticisms that you have, based upon your review of the medical records and the
deposition of Dr. Dang?
Dr. Welt: No, sir.
Dr. Welt failed to demonstrate that Dr. Dang deviated from the standard of care while treating Brown
in a manner which proximately resulted in harm to the patient.
¶15. Nor does the injury, "speak for itself" giving rise to an inference that Dr. Dang was negligent. Dr. Welt
and Dr. Dang testified that Erb's Palsy could be caused by factors other than a physician's negligence. Dr.
Welt testified as follows:
Mr. Watts: (Atty for Baptist) And further, isn't it also true that a child may develop Erb's Palsy and there
not be any type of conduct on behalf of the physician that fell below the standard of care.
Dr. Welt: That is correct.
Mr. Watts: All right. And what you've told us here today is basically limited only to the fact that you
have some criticisms about Dr. Dang not delineating after the delivery the steps it went through in the
birth of the Brown child so that you or some other physician can look back to see if everything was
done proper?
Dr. Welt: That is correct. If I may expand the baby is born with Erb's Palsy, that's clear, nobody is
refuting that in any way. The child is born with Erb's Palsy, we've just said that an Erb's Palsy is
generally caused by trauma. Obviously, this whole discussion has revolved around the point that is it
the doc's [sic] fault.
¶16. Dr. Dang testified that Erb's Palsy was one of the complications of the delivery. There is no evidence
that any act or omission by Dr. Dang caused the injury to the brachial plexus. Both Dr. Welt and Dr. Dang
testified that the injury could have been caused by trauma other than Dr. Dang's procedure during the
delivery.
¶17. The doctrine of res ipsa loquitur requires four elements: 1) the matter must be within the common
knowledge of laymen; 2) the instrumentality causing the damage must be under the exclusive control of the
defendant; 3) the occurrence must be such as in the ordinary course of things would not happen if those in
control of the instrumentality used proper care; and 4) the occurrence must not be due to any voluntary act
on the part of the plaintiff. Coleman v. Rice, 706 So.2d at 698.
¶18. The evidence in the instant case does not establish a jury issue on each of these prongs. The causes of
Erb's Palsy are not within the common knowledge of laymen, there is no showing of any "instrumentality"
that caused damage to the infant and Brown's expert witness acknowledged that the type of injury sustained
by the infant could have a variety of causes apart from negligence during delivery. Id at 899. Therefore, the
doctrine of res ipsa loquitur is not applicable.
CONCLUSION
¶19. Brown failed to show that Dr. Dang deviated from the requisite standard of care and the facts do not
permit an application of the doctrine of res ipsa loquitur to fill that void. Therefore, the judgment of the
circuit court is affirmed.
¶20. AFFIRMED.
PITTMAN, C.J., McRAE, AND SMITH, P.JJ., WALLER, DIAZ, CARLSON AND
GRAVES, JJ. CONCUR. COBB, J., NOT PARTICIPATING.
1. Baptist also submitted a brief and adopted by reference Dr. Dang's Appellee Brief pursuant to Miss. R.
App. P. 28(i).
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-428-CR
WILLIAM SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION1 AND JUDGMENT
----------
We have considered AAppellant’s Withdrawal Of Notice Of Appeal.@ The
motion complies with rule 42.2(a) of the rules of appellate procedure. See 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 Tex. R.
App. P. 42.2(a), 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
1
See Tex. R. App. P. 47.4.
DELIVERED: March 10, 2011
2
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936 N.E.2d 1226 (2007)
371 Ill. App.3d 1201
PEOPLE
v.
CROSS.
No. 1-05-0404.
Appellate Court of Illinois, First District.
March 28, 2007.
Affirmed.
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80 N.Y.2d 792 (1992)
In the Matter of Dwight M., a Person Alleged to be a Juvenile Delinquent, Appellant.
Court of Appeals of the State of New York.
Argued April 28, 1992.
Decided June 9, 1992.
Ardeth L. Houde, Law Guardian, for appellant.
Charles S. Turner, County Attorney (Ronald A. Case of counsel), for respondent.
O. Peter Sherwood, Corporation Counsel (Stephen J. McGrath and Kathleen Alberton of counsel), for Corporation Counsel of the City of New York, a Presentment Agency, amicus curiae.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur.
*793MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Appellant contends that it was improper for the Family Court to base his juvenile delinquency adjudication upon a finding that he had committed a lesser included crime (assault in the third degree) of the only crime charged in the petition (assault in the second degree). We disagree.
The Family Court has long been recognized as possessing *794 the authority to adjudicate a youth a juvenile delinquent based upon a finding that a lesser included crime, not specifically charged in the petition, has been committed (see, Matter of Raymond O., 31 N.Y.2d 730, 731). Appellant's contention that section 345.1 (2) of the Family Court Act dictates that a contrary result obtain today is unfounded. That section's requirement that a juvenile delinquency petition be dismissed if its allegations have not been established has been part of the Family Court Act since it was first adopted in 1962 (L 1962, ch 686, § 751). It, however, has never before been construed as precluding Family Court Judges from considering whether a respondent in a juvenile delinquency proceeding has committed a lesser included crime (see, Matter of Raymond O., supra [decided 10 years after the enactment of former section 751 of the Family Court Act]), and we can discern no reason why it should be so construed today.
Moreover, appellant's position is difficult to reconcile with section 321.2 of the Family Court Act. That provision specifically empowers Family Court Judges to accept admissions to lesser included crimes. As the Appellate Division aptly noted in its memorandum below, the Legislature could not have intended that Family Court Judges would lack the authority to base juvenile delinquency adjudications upon a finding that a lesser included crime, not charged in the petition, had been committed when it had specifically authorized Family Court Judges to accept admissions to such crimes.
We have examined appellant's remaining contention and find it to be unpreserved for our review.
Order affirmed, without costs, in a memorandum.
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149 F.3d 1189
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.Edward M. RHONE, also known as Sidney Rhone, also known asZulu, Appellant.
No. 97-3719SI.
United States Court of Appeals, Eighth Circuit.
Submitted: April 16, 1998Filed: April 22, 1998
Appeal from the United States District Court for the Southern District of Iowa.
Before FAGG, JOHN R. GIBSON, and HANSEN, Circuit Judges.
PER CURIAM.
1
On appeal from the guidelines sentence imposed by the district court, Edward M. Rhone contends the district court improperly increased Rhone's offense level for his managerial role in criminal activity that involved five or more participants. After a careful review of the record, we reject Rhone's contention and conclude an opinion by this court would have no precedential value. We thus affirm Rhone's sentence without further discussion. See 8th Cir. R. 47B.
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149 F.3d 1190
98 CJ C.A.R. 3352
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Ameer Labeeb HASSAN, Plaintiff-Appellant,v.Michael O. LEAVITT, Governor, State of Utah; O. LaneMcCotter, Executive Director, Utah Department ofCorrections; Bruce Egan, Executive Deputy Director, UtahDepartment of Corrections; R. Spencer Robinson,Administrative Law Judge, Utah Department of Corrections; J.Terry Bartlett, Director, Division of InstitutionOperations, Utah Department of Corrections; Scott V. Carver,Warden, South Point Facility, Utah State Prison; BillieCasper, Grievance Coordinator, Utah Department ofCorrections; Lynn Waller, Assistant Director, VolunteerServices, Utah Department of Corrections; David Worthington,Bureau Chief, Support Services, Utah Department ofCorrections; Will Carlson, Food Service Manager, Utah StatePrison; Lynette Ferre, Corrections Dietician, Utah StatePrison; R. Rodriguez, Chaplain, Utah State Prison; VickieBridwell, EMRS, Utah State Prison; and Frank N. Carpenter,Defendants-Appellees.
No. 97-4001.(D.C.No. 95-CV-527)
United States Court of Appeals, Tenth Circuit.
June 24, 1998.
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
1
ORDER AND JUDGMENT*
2
The appellant in this case, a Muslim adherent to the religious doctrines of the Lost-Found Nation of Islam, sometimes referred to as the "Black Muslims," has challenged various practices of Utah State Prison officials that he claims violated the Religious Freedom Restoration Act of 1993, Pub.L. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to 2000bb-4). The district court dismissed this case before the United States Supreme Court issued its decision in City of Boerne v. Flores, --- U.S. ----, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding the Religious Freedom Restoration Act (RFRA) unconstitutional). In light of that decision, we must affirm the district court's decision.
Background
3
Ameer Labeeb Hassan filed his civil rights complaint pro se and in forma pauperis (IFP) under 42 U.S.C. § 1983, alleging violations of RFRA, as well as 42 U.S.C. §§ 1985 & 1986. Hassan also brought constitutional claims for violations of the First Amendment's free exercise clause and the Fourteenth Amendment's due process and equal protection clauses. (See R., Doc. # 3, Amended Compl., at 8-10.) Hassan sought money damages, injunctive relief, and a declaratory judgment. (See id. at 11-12; R., Doc. # 2, Compl., at 13-16.)
4
Hassan's suit arises out of events that he alleges began when he returned to the Utah State Prison after a parole violation in 1994. According to Hassan's complaint, prison officials confiscated Hassan's personal collection of religious books and materials during Hassan's in-take processing. (See R., Doc. # 2, at 9, pp 41-42.) Hassan also alleges that no prison chaplain was present during his in-take processing, which he claims was a violation of the prison's regulations ensuring the protection of religious practices. (See id. at 9, p 43.)
5
The magistrate judge recommended that Hassan's religious free exercise claims be dismissed because his complaint "fail[s] to assert facts which demonstrate a 'substantial burden' " on his religious practices, as required by RFRA. (See R., Doc. # 9, Report & Recommendation, at 9.) The magistrate also recommended that all of Hassan's other claims be dismissed because of the inadequacy of his pleadings. (See id. at 9-16.) Hassan filed a lengthy Notice of Objections to the magistrate judge's report, (see R., Doc. # 10), but the district court adopted the magistrate judge's report without revision, (see R., Doc. # 12). The court found that Hassan's complaint "lacks an arguable basis in law or fact" and ordered Hassan's suit dismissed without prejudice under Fed.R.Civ.P. 4(m). (See id.)
6
Following the district court's denial of Hassan's motion to amend or vacate its order, Hassan filed a timely notice of appeal. (See R., Doc. # 13, 15, 16.) Hassan now raises three issues: 1) Whether the state's repeal of its various prison regulations dealing with religious accommodations was arbitrary and capricious; 2) Whether Hassan's complaint stated a cause of action under the RFRA; and 3) Whether "First Amendment rights are preferred." (See Aplt. Br. at 15.)
Discussion
7
When a district court finds that an IFP complaint lacks an arguable basis in fact or law, i.e., that it is frivolous, we review the district court's dismissal for an abuse of discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir.1997). However, in this case, we need not address the particular findings of the district court and the magistrate judge because recent decisions have rendered Hassan's appeal groundless.
8
In City of Boerne v. Flores, --- U.S. ----, ----, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624 (1997), the Supreme Court held that Congress exceeded its authority under section 5 of the Fourteenth Amendment when it enacted the "substantial burden" and "compelling interest" test of RFRA. The Court held that Congress has no power under the Fourteenth Amendment to declare the substantive scope of the First Amendment right of the free exercise of religion. See id. at 2164. Instead, the scope of that right is determined by the Supreme Court's own interpretations. See id. at 2172.
9
The effect of Boerne essentially was to declare RFRA invalid, at least as far as it applied to the states, and to resuscitate the Supreme Court's prior doctrine for the substantive scope of the free exercise clause. See Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.1997). As a result, Hassan's appellate argument that his complaint stated a valid cause of action under RFRA is moot.
10
As for Hassan's argument that the state of Utah acted arbitrarily and capriciously when it repealed certain prison regulations dealing with religious accommodation, we note that this issue was not raised or decided below. As a result, it is not properly before us, and we decline to express an opinion on this issue. See Walker v. Mather, 959 F.2d 894, 896 (10th Cir.1992) (holding that issues not raised below will not be considered on appeal).
11
Finally, as for Hassan's claim that "First Amendment rights are preferred," we find this issue entirely frivolous. Innumerable cases by the Supreme Court and lower courts have declared that protection of First Amendment rights is fundamental to the essence of our Republic. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (striking down city ordinances because they "violated the Nation's essential commitment to religious freedom"). Yet, Hassan has utterly failed to show how our judicial reaffirmation of this principle would remedy any of his alleged injuries. Because the federal courts are constitutionally prohibited from rendering advisory opinions, we decline Hassan's invitation to expound on the verities of the First Amendment.
12
For the foregoing reasons, we AFFIRM.
*
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
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It is ordered and adjudged by this court, that the judgment of the said Court of Appeals be, and the same is hereby, affirmed on authority of McLarren v. Myers, Admr., 87 Ohio St. 88.
Judgment affirmed.
STEPHENSON, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur. *Page 463
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931 F.2d 893
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Mattie M. JOHNSON, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 90-1937.
United States Court of Appeals, Sixth Circuit.
April 30, 1991.
Before DAVID A. NELSON and ALAN E. NORRIS, Circuit Judges, and LIVELY, Senior Circuit Judge.
ORDER
1
Mattie Mae Johnson appeals the district court's judgment which affirmed the appellee's denial of her application for social security disability benefits under 42 U.S.C. Sec. 423. Her case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not necessary. Fed.R.App.P. 34(a). In addition, both parties have waived oral argument in this case.
2
Johnson alleged that she became disabled on March 7, 1977, due to a variety of impairments. At that time, Johnson was 56 years old. An administrative law judge (ALJ) denied Johnson's claim because he found that she did not have enough quarters of relevant earnings to be fully insured by Social Security. The Appeals Council adopted the ALJ's decision and denied Johnson's claim. The district court, adopting a magistrate's recommendation, affirmed the Secretary's determination that Johnson was not entitled to benefits. It is from this judgment that Johnson now appeals.
3
To be fully insured, a claimant must have at least one quarter of coverage for each calendar year between the year in which she turned 21 and the year before the onset of her disability. 42 U.S.C. Secs. 414,416(i); 20 C.F.R. Secs. 404.110, 404.130. It is undisputed that Johnson's earnings record shows coverage for only 22 of the 25 quarters that are necessary, in her case, for eligibility for disability benefits. The present dispute involves Johnson's claim that she is entitled to an additional 19 quarters of coverage for baby-sitting work which she performed from June 1967 to September 1971. The Secretary agrees that Johnson performed this work. However, the Secretary found that Johnson could no longer amend her earnings record because she was self-employed.
4
Johnson admits that no contributions were made to Social Security regarding the income that she derived from baby-sitting. However, she asserts that she will make these contributions if she is allowed to amend her earnings record. An earnings record may be amended without regard to a claimant's employment status until three years, three months and fifteen days after the end of the calendar year in which she last received earnings. After that time, a rebuttable presumption is created regarding the record of wages that an employee was paid. However, the absence of an entry on the earnings record is conclusive evidence regarding self-employment income which has not been reported on the claimant's federal income tax return. 42 U.S.C. Secs. 405(c)(4)(B), 405(c)(4)(C), 405(c)(5); 20 C.F.R. Secs. 404.803, 404.822. Johnson concedes that she did not report the income derived from babysitting on her tax return. Therefore, her earnings record may not be amended if she performed this work as an independent contractor rather than an employee. If Johnson's earnings record is not amended, it will not reflect enough covered quarters for her to be fully insured.
5
The standard of review that applies to Johnson's case was articulated by this court in Brainard v. Secretary of Health and Human Services, 889 F.2d 679 (6th Cir.1989) (per curiam).
6
Judicial review of the Secretary's decision is limited to determining whether the Secretary's findings are supported by substantial evidence and whether the Secretary employed the proper legal standards in reaching her conclusion. Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The scope of our review is limited to an examination of the record only. We do not review the evidence de novo, make credibility determinations nor weigh the evidence.
7
Id. at 681 (citations omitted).
8
In addition to her testimony at the administrative hearing, Johnson submitted the affidavits of several individuals who paid her for watching their children between 1969 and 1971. This evidence tends to indicate that Johnson was an employee because she was paid by the hour or week, rather than by the job. See 20 C.F.R. Sec. 404.1007(b)(8). However, the evidence also clearly shows that Johnson had her own work place and that she worked for a number of individuals at one time. This evidence provides substantial support for the Secretary's finding that Johnson was self-employed. See 20 C.F.R. Secs. 404.1007(c)(3) and (5). While the mothers' affidavits indicate that they "gave instructions for the care and treatment" of their children, none of the evidence suggests that they had sufficient control over Johnson to meet the common law definition of an employee. See Social Security Ruling 61-27; cf. Copenhaver v. Weinberger, 388 F.Supp. 127 (W.D.Va.1975), and cases cited therein.
9
Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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149 F.3d 1190
98 CJ C.A.R. 3058
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Zahir U. DIN; Shamin Akhtar; Oasim Zahir; Nasir Zahir, Petitioners,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 97-9553.
United States Court of Appeals, Tenth Circuit.
June 5, 1998.
1
Before BALDOCK, EBEL, and MURPHY, JJ.
2
ORDER AND JUDGMENT*
EBEL.
3
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
4
Petitioners seek review of a final order by the Immigration and Naturalization Service (INS) denying their applications for asylum.1 Our jurisdiction over this appeal arises under 8 U.S.C. § 1105a(a).2 On review of petitioners' claims, we must uphold the BIA's decision if it finds support " 'by reasonable, substantial, and probative evidence on the record considered as a whole.' " Nazaraghaie v. INS, 102 F.3d 460, 463 (10th Cir.1996) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (further quotation omitted)).
5
Petitioners, a family and natives of Pakistan, were charged by the INS as deportable for having overstayed the time allowed them under their temporary visas. They filed an application for asylum based on petitioner Zahir Din's case. See Cert.Admin.R. at 134 (Request for Asylum). Mr. Din claims asylum based on past persecution resulting from his political activities and association. After several initial hearings and delays, petitioners received an asylum hearing on April 2, 1996. The Immigration Judge (IJ) denied their application for asylum, concluding that Mr. Din had not demonstrated a well-founded fear of persecution should he return to Pakistan. See id. at 74 (IJ's Decision). Petitioners appealed to the Board of Immigration Appeals (BIA).
6
The BIA, in a decision dated July 10, 1997, concluded that petitioner had not met his burden to establish refugee status under 8 U.S.C. § 1101(a)(42)(A), by proving either past persecution or a well-founded fear of persecution. See Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir.1995). "To establish refugee status, the alien must prove either past 'persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.' " Kapcia v. INS, 944 F.2d 702, 706 (10th Cir.1991) (quoting 8 U.S.C. § 1101(a)(42)). The BIA determined that Mr. Din had not shown the required nexus between his political opinion and a beating he suffered while still in Pakistan such that he had demonstrated past persecution. Further, the BIA ruled that his claims of a well-founded fear of persecution were undermined by two return trips to Pakistan, by a delay of almost two years before applying for asylum, and by changed conditions in Pakistan since Mr. Din's initial arrival in this country. See Cert.Admin.R. at 3-4 (BIA's Decision).
7
On review, petitioners challenge the BIA's decision in several respects. First, they contend the BIA and the IJ failed to make a finding of adverse credibility, arguing that the BIA did not articulate reasons for upholding the IJ's decision, and that the IJ's decision rested on equivocal statements regarding petitioner Din's credibility. We reject this argument because the BIA's decision neither adopted the IJ's findings nor rested on the IJ's credibility determination.
8
In their next two points, petitioners contend that, absent a finding regarding credibility, the BIA did not properly consider their claims of past persecution based on the beating incident, and argue that changed conditions in Pakistan support their past persecution claims. These contentions are not persuasive. The BIA's determination of petitioners' past persecution claims, summarized above, did not rest on or require a credibility finding. Petitioners' arguments essentially contend that the agency did not give enough weight to evidence presented about the beating incident or to evidence that, despite changed conditions, political activists were still subject to mistreatment. We may not reweigh the evidence or determine the credibility of witnesses. See Refahiyat v. INS, 29 F.3d 553, 556 (10th Cir.1994). Substantial evidence in the record supports the BIA's ruling on petitioners' claims of past persecution.
9
Petitioners also challenge the BIA's reliance on two factors in concluding that petitioners did not have a well-founded fear of persecution. They contend that the BIA wrongly considered the length of time it took them to apply for asylum and wrongly relied on petitioner Din's return trips to Pakistan. Without deciding whether delay in applying for asylum is a proper factor for consideration, we reject petitioners' argument on that point. While a delay often may be explained by safety concerns, the authority cited by petitioners does not preclude consideration of that factor in this case. Further, it was only one of three factors the BIA cited in examining whether petitioners had demonstrated a well-founded fear of persecution. Similarly, we disagree with petitioners' contentions that the BIA considered petitioner Din's return trips to Pakistan as "dispositive" of their claims for asylum. The BIA considered several factors in determining that petitioners did not establish a well-founded fear of persecution should they return to Pakistan; Mr. Din's trips was one of those factors. Again, it appears that petitioners want this court to reweigh the evidence in their favor, which we cannot do so long as substantial evidence supports the agency's determinations.
10
On independent review of the certified administrative record as a whole, we conclude that substantial evidence supports the BIA's conclusion that petitioners have not established eligibility for asylum. The petition for review is DENIED.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3
1
Before the agency, petitioners also sought withholding of deportation; however, their brief before this court contains no argument challenging the BIA's denial of that request. Therefore, we do not address the issue
2
Section 1105a was repealed by § 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009, which alters the availability, scope, and nature of judicial review in INS cases. Because petitioners' deportation proceedings commenced before April 1, 1997, IIRIRA's permanent "new rules" do not apply to this case. See id. § 309(c)(1). However, IIRIRA's "transitional rules" do apply, because in this case the agency's final order was filed more than thirty days after IIRIRA's September 30, 1996 date of enactment. See id. § 309(c)(4). The repeal of § 1105a is not effective in cases such as this one where the transitional rules are in effect. See id
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Opinion filed July 11, 2013
In The
Eleventh Court of Appeals
__________
No. 11-11-00196-CR
__________
JAMES MAURICE WISE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 24040A
MEMORANDUM OPINION
The jury convicted James Maurice Wise of aggravated robbery. Appellant
pleaded true to two enhancement allegations. The trial court found that the
enhancement allegations were true, and it assessed Appellant’s punishment at
confinement for thirty years. The trial court also found that Appellant used or
exhibited a deadly weapon in the commission of the offense. We modify and
affirm.
Background
The indictment contained an aggravated robbery count (Count One) and a
robbery count (Count Two). The aggravated robbery count alleged that, on or
about November 22, 2009, Appellant, “while in the course of committing theft of
property and with intent to obtain and maintain control of said property, used and
exhibited a deadly weapon, to-wit: A HANDGUN” and that Appellant “did then
and there intentionally and knowingly threaten and place LACY DANIEL in fear
of imminent bodily injury and death by the use of said deadly weapon.” The
robbery count did not contain deadly weapon allegations. Otherwise, the
allegations in the robbery count were the same as the allegations in the aggravated
robbery count. Both counts in the indictment contained two enhancement
allegations.
Appellant raised the affirmative defense of insanity. The case proceeded to
trial on April 25, 2011. The State waived the robbery count. The trial ended in a
mistrial. The case again proceeded to trial on July 5, 2011. The trial court
instructed the jury on Appellant’s insanity defense. The jury convicted Appellant
of the offense of aggravated robbery.
Issues on Appeal
Appellant presents three issues for review. In his issues, Appellant
complains of three evidentiary rulings by the trial court. In his first issue,
Appellant contends that the trial court erred when it admitted the book-in
photographs of Appellant and his codefendant into evidence. In his second issue,
Appellant contends that the trial court erred when it admitted the transcript of a
witness’s testimony from the earlier trial in this case. Specifically, Appellant
asserts that the prior testimony constituted hearsay and that the admission of the
2
testimony violated the Texas Rules of Evidence and the Confrontation Clause of
the United States Constitution. In his third issue, Appellant contends that the trial
court erred when it admitted extraneous offense evidence during the
guilt/innocence phase of trial.
The Evidence at Trial
On November 22, 2009, at about 10:00 p.m., Larry Franklin was inside his
house on College Street in Abilene. The Allsup’s store at South 14th Street and
Grand Street is behind Franklin’s house. The back of Allsup’s faces Franklin’s
backyard. Franklin heard his dog barking outside. Franklin went to the window of
his house that faces Grand Street. He said that it was very dark outside. Through
the window, Franklin saw a large vehicle that he believed was a van or an SUV.
The vehicle was parked. Franklin saw two individuals standing outside the van.
Franklin thought that the individuals were about to commit a theft. Therefore,
Franklin called 9-1-1. He described the situation to the dispatcher. Franklin stayed
on the phone with the dispatcher and described events as they occurred.
Franklin testified that one of the individuals walked toward Allsup’s with his
hands in his pockets. Franklin said that the individual was wearing dark clothing.
Franklin testified that he could not tell whether the individual was “white, Hispanic
or black” because “[i]t was too dark.” The other individual waited outside the
vehicle. Franklin could not see the front doors of Allsup’s from his house. He said
that the individual who approached Allsup’s turned left as if to go into the front of
the store. Less than a minute later, the individual came back toward the vehicle,
almost in a run. Franklin said that one of the individuals opened the driver’s side
door of the vehicle. The dome light in the vehicle came on. At that time, Franklin
said that the individual who had waited by the vehicle jumped into it and appeared
to crawl into the backseat. With the help of the dome light, Franklin saw that this
individual was wearing “something brightly colored,” which Franklin thought was
3
either an orange or a red vest or sweater. Franklin said that the individual who had
approached Allsup’s got into the driver’s seat and then drove away. The driver did
not turn on the vehicle’s lights until he was at least a block away from the scene.
During the night of November 22, 2009, Lacy Daniel worked her shift at
Allsup’s. She testified that, at about 10:00 p.m., a man held her up at gunpoint.
She said that the man was wearing what she believed was a black leather jacket.
The man was also wearing something that covered his face from the nose down.
Daniel said that he had “something pulled over his face to the bridge of his nose,”
which Daniel thought was a turtleneck sweater, and that he had “something over
his head like a toboggan.” The man said, “Give me your money. I’m serious.”
Daniel said that the man held a silver handgun on her. The man threw a ziplock
bag down onto the counter. Daniel put money into the bag. She turned around to
get more money. At that time, the man ran out of Allsup’s. Daniel locked the door
and then called 9-1-1.
Following Daniel’s testimony, the State introduced into evidence a recording
of the 9-1-1 call that Franklin made and a recording of a 9-1-1 call that a
representative of the alarm company for Allsup’s made. The recordings were
played for the jury. Due to a technical problem, Daniel’s 9-1-1 call was not
recorded.
Abilene Police Officers Christopher Bisbee and Gabe Thompson worked as
partners the night of November 22, 2009. They were dispatched to a robbery call
at Allsup’s on South 14th Street. As they traveled to Allsup’s, Officer Thompson
observed a van that fit the description of the vehicle that was used in connection
with the robbery. The van was near the intersection of South 14th Street and
Amarillo Street. Officer Bisbee turned the patrol car around and followed the van.
The driver of the van pulled into a driveway at 1041 South 15th Street. Officer
4
Bisbee activated his overhead lights. Officer Anthony Joeris also responded to the
scene.
The officers directed the van’s driver and passenger to sit on the ground at
the rear of the van. The officers determined that Appellant was the driver and that
Jerrod Flores was the passenger. The officers saw a brown leather jacket between
the two front seats of the van. They found a black shirt or cloth under the jacket.
The officers also found a ziplock bag that contained money under the front
passenger seat. They also found a pistol under the driver’s side floor mat.
The officers arrested Appellant and Flores and transported them to the law
enforcement center. Book-in photographs of Appellant and Flores were taken.
Over Appellant’s objection, the trial court admitted the book-in photos into
evidence. Appellant was wearing a short-sleeved T-shirt in his photo. Flores was
wearing a University of Texas hoodie in his photo.
Flores testified in the earlier trial of this case. Over Appellant’s objections,
the trial court ruled that Flores’s testimony from the earlier trial was admissible.
The parties presented parts of Flores’s testimony to the jury.
Flores testified that Appellant was married to Flores’s aunt, Marla Wise.
Flores said that Marla and Appellant lived at 1041 South 15th Street and that Marla
owned the van in question. Flores said that, on November 22, 2009, he and his
wife, Rochelle Ramirez, were walking to Marla’s house. As they walked,
Appellant drove up in Marla’s van. Appellant told Flores that he was going to buy
“weed.” At that time, Flores was wearing a University of Texas hoodie. Flores
got into the van with Appellant. Appellant drove away. Ramirez walked to
Marla’s house. Flores testified that Appellant parked the van. Appellant told
Flores that he was going to meet a guy so that he could get some marihuana.
Flores testified that Appellant walked away from the van. Flores said that he
stayed at the van. Flores said that Appellant ran back to the van, hopped in it, and
5
drove away. The next thing Flores knew, the police pulled them over. Flores said
that he believed something had gone wrong with the drug deal. Flores said that
Appellant threw him something and that he put it under the seat. Flores saw
Appellant put something on the floor. Flores testified that he did not know that
Appellant was going to rob a store. Flores said that he did not ask Appellant what
had happened.
Flores testified that he had seen Appellant about two days before the offense.
Flores said that, at that time, Appellant was “like spaced out like he didn’t know
what was going on” and was talking to himself.
Appellant’s counsel cross-examined Flores at the earlier trial. During that
cross-examination, Flores said that Appellant took medications for some kind of
mental problem. According to Flores, on the night of the incident, Appellant acted
"[s]omewhat" in the same way that he had acted two days earlier. Flores said that
he had seen Appellant talk to himself on numerous occasions. The State rested
after the conclusion of Flores’s testimony.
Appellant presented John D. Crowley, M.D., a psychiatrist, as a witness.
The record shows that, upon a motion by Appellant, the trial court appointed
Dr. Crowley to examine him. Dr. Crowley testified that he had examined
Appellant a few times. Dr. Crowley first saw Appellant in April 2010. At that
time, Dr. Crowley diagnosed Appellant with “major depression with psychotic
features.” Dr. Crowley explained that psychotic features consist of either auditory
or visual hallucinations or fixed false beliefs known as delusions. Appellant told
Dr. Crowley that he heard voices even though no one was actually present and
talking to him. Dr. Crowley was aware that Appellant had received treatment for
his mental condition at the Betty Hardwick Center in Abilene and that Appellant
took prescription medications for his condition. Appellant told Dr. Crowley that
he had not taken his medications for some time before the date he was arrested in
6
this case. Dr. Crowley said that a patient’s hallucinations may worsen if the
patient does not take his medication.
On cross-examination, Dr. Crowley testified that, in his opinion, Appellant
was sane at the time of the alleged offense in this case. Dr. Crowley testified that
Appellant knew right from wrong and that Appellant would have known that his
conduct was wrong.
Katy Young was a counselor and a case manager at the Betty Hardwick
Center. She said that Appellant was one of her clients. She first saw Appellant in
August 2009. Young said that Appellant complained of hearing voices. She said
that Appellant took prescription medications for treatment of his mental condition.
Young said that Appellant attempted to get his medications refilled in November
2009 but that he was arrested before he got the refills.
Marla testified that Appellant took Wellbutrin and Zyprexa for his mental
condition but that his medications were stolen about two weeks before he was
arrested in this case. Marla said that Appellant had an appointment set up for the
beginning of December to obtain more medicine. Marla said that she noticed
changes in Appellant during the two-week period that he did not take his
medications. She said that Appellant moped around, seemed to talk to himself, and
complained about hearing voices. She said that Appellant’s condition worsened in
the three days leading up to his arrest. She said that, during Appellant’s lifetime,
he had been hospitalized a number of times for treatment of his mental condition.
Appellant testified that he heard the voice of “Brett,” a man Appellant had
known in the past. Brett was deceased. Appellant said that Brett talked to him and
that he sometimes saw Brett. Appellant testified that he took medications for
treatment of his condition. The medications minimized the number of times that
Appellant heard Brett’s voice. Appellant said that he had not taken his
medications for two weeks when he was arrested in this case. He said that his
7
medications had been stolen in Dallas. Appellant testified that he had scheduled an
appointment for the first of December to refill his medications.
Appellant said that, after being without his medications for a week, the
“voices” started bothering him, he could not eat or sleep, and he did not want to be
around anyone. He said that Brett told him to rob a store so that he would have
money to buy his medications. Appellant said that Brett told him to go into the
store, ask for the money, and then leave the store. Appellant said that he went into
the store and robbed it. He remembered going into the store with the gun and
leaving the store with the money. Appellant testified that he did not know robbing
Allsup’s was wrong but, instead, believed that it was the right thing to do. He said
that he just did what Brett told him to do.
Appellant testified that he wore a brown leather jacket when he robbed the
store. He said that he drove home after he committed the robbery. Appellant said
that he was not in his right state of mind that night. He said that his mind got
better after he got back on his medications.
During cross-examination, Appellant testified that Brett “passed away”
twenty-three years ago. The prosecutor then asked Appellant, “Isn’t it true you
murdered him?” Appellant’s counsel stated, “Objection.” The trial court
overruled the objection. Appellant then testified that he murdered Brett because
Brett tried to rape him. Appellant testified that he was convicted for the murder of
Brett in 1989 and that he served twenty years in prison for the offense.
Admissibility of Evidence Standard of Review
In each of his three issues, Appellant complains that the trial court
improperly admitted evidence. We review a trial court’s decision to admit
evidence under an abuse of discretion standard and will not reverse that decision
absent a clear abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).
8
A trial court abuses its discretion only when its admissibility decision lies outside
the zone of reasonable disagreement. Apolinar, 155 S.W.3d at 186.
Book-in Photographs
In his first issue, Appellant contends that the trial court erred when it
admitted the book-in photographs of Flores and him. The State sought to introduce
the photographs during Officer Bisbee’s testimony. Officer Bisbee identified the
photographs, which were marked as State’s Exhibit Nos. 18 and 19. State’s
Exhibit No. 18 was the photograph of Appellant, and State’s Exhibit No.19 was the
photograph of Flores. Officer Bisbee said that State’s Exhibit No. 18 was a picture
of the driver of the van and that State’s Exhibit No. 19 was a picture of the
passenger. The State offered the photographs. Appellant’s counsel objected to the
admission of the photographs on the ground that they were prejudicial. The trial
court overruled the objection and admitted the photographs. The State published
them to the jury.
On appeal, Appellant contends that the trial court abused its discretion when
it admitted the photographs because they were not relevant and because they were
more prejudicial than probative. Appellant did not raise a relevancy objection at
trial. To preserve error for appellate review, the complaining party must make a
timely, specific objection in the trial court and obtain a ruling on the objection.
TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Therefore,
Appellant did not preserve his relevancy complaint for review.
We note that the book-in photographs were relevant to prove that Appellant
entered Allsup’s and robbed Daniel at gunpoint. Franklin testified that the
individual who walked toward Allsup’s wore dark clothing and that the person
who remained at the vehicle wore an orange or red vest or sweater. Franklin also
testified that the individual who approached Allsup’s drove away after he returned
9
to the vehicle. The officers found a brown leather jacket in the van. The evidence
showed that Appellant took off the jacket after he committed the robbery.
Appellant was wearing a T-shirt in his book-in photograph. Flores was wearing a
University of Texas hoodie in his book-in photograph. Officer Bisbee testified that
State’s Exhibit No. 18, which was the picture of Appellant, depicted the driver of
the van. Thus, the book-in photographs tended to show that Appellant entered
Allsup’s.
Under Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403.
Rule 403 favors admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial. Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State, 347 S.W.3d 905, 921
(Tex. App.—Eastland 2011, pet. ref’d). Evidence is unfairly prejudicial when it
has an undue tendency to suggest an improper basis for reaching a decision.
Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render, 347 S.W.3d at
921. In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
The book-in photograph of Appellant consisted of a front-view of him. The
photograph showed him standing up and wearing a light-colored T-shirt. The
book-in photograph of Flores consisted of a front view of him. The photograph
showed him standing up and wearing a University of Texas hoodie. The
photographs were relevant to prove Appellant’s identity and to prove that he
entered Allsup’s. The photographs were relatively innocuous pictures of two
individuals who had recently been arrested. Nothing depicted in the photographs
was unfairly prejudicial. The trial court could have reasonably concluded that the
10
probative value of the photographs was not substantially outweighed by the danger
of unfair prejudice. Appellant’s first issue is overruled.
Prior Testimony
In his second issue, Appellant contends that Flores’s testimony from the
earlier trial constituted inadmissible hearsay under the Texas Rules of Evidence
and the Confrontation Clause of the United States Constitution. Rule 804 of the
Texas Rules of Evidence creates certain hearsay exceptions when the declarant is
unavailable as a witness. TEX. R. EVID. 804. A declarant is unavailable if he “is
absent from the hearing and the proponent of [his] statement has been unable to
procure [his] attendance or testimony by process or other reasonable means.”
TEX. R. EVID. 804(a)(5). Under Rule 804(b)(1), an unavailable declarant’s
testimony from “another hearing of the same or a different proceeding” is not
excludable as hearsay “if the party against whom the testimony is now offered . . .
had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.”
The Confrontation Clause of the Sixth Amendment provides a right in both
federal and state prosecutions to confront and cross-examine adverse witnesses.
U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v.
State, 336 S.W.3d 634, 641 (Tex. Crim. App. 2011). The Confrontation Clause
bars the admission of a witness’s prior testimony unless the witness is unavailable
to testify and the defendant had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 53–54 (2004); Render, 347 S.W.3d at 917.
Appellant contends that the State did not meet its burden to establish that
Flores was unavailable as a witness. To establish that a witness is unavailable
under Rule 804(a)(5), the proponent of the testimony must demonstrate that a
good-faith effort was made before trial to locate and present the witness. Reed v.
State, 312 S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
11
Similarly, “unavailability” for purposes of the Confrontation Clause is established
if the prosecution made a good-faith effort to obtain the witness’s presence at trial.
Reed, 312 S.W.3d at 685; Ledbetter v. State, 49 S.W.3d 588, 592 (Tex. App.—
Amarillo 2001, pet. ref’d). For both Rule 804(a)(5) and the Confrontation Clause,
we review a trial court’s ruling—on whether the effort to obtain a witness was
sufficient—for an abuse of discretion. Reed, 312 S.W.3d at 685; Ledbetter, 49
S.W.3d at 592.
Deris Hutcheson, an investigator for the Taylor County District Attorney’s
Office, testified about the prosecution’s efforts to procure Flores’s attendance as a
witness at trial. Investigator Hutcheson said that he served Flores before the earlier
trial. On June 16, 2011, Investigator Hutcheson obtained a subpoena for Flores for
the July 5, 2011 trial setting. Investigator Hutcheson testified that investigators
from the district attorney’s office attempted to serve Flores several times at his last
known address but were unable to serve him there. Investigator Hutcheson knew
that Flores was represented by a lawyer in a different aggravated robbery case.
Investigator Hutcheson contacted Flores’s lawyer and told her that he needed to
locate Flores. Flores’s lawyer told Investigator Hutcheson that she would find
Flores. Investigator Hutcheson did not hear back from Flores’s lawyer.
Investigator Hutcheson called Flores’s lawyer again, but there was no answer.
Investigator Hutcheson left a message on an answering machine. Flores’s lawyer
did not return the call. Investigator Hutcheson testified that he also contacted
Flores’s bail bondsman. Investigator Hutcheson told the bondsman that he needed
to serve a subpoena on Flores. The bondsman told Investigator Hutcheson that he
would tell Flores to contact Investigator Hutcheson. Flores did not contact
Investigator Hutcheson. So, Investigator Hutcheson again contacted the bondsman.
The bondsman told Investigator Hutcheson that Appellant would be in the bond
company’s office the Friday before the trial setting in this case. The bondsman
12
said that he would call Investigator Hutcheson when Flores arrived at the office
and that, then, Investigator Hutcheson could go to the office to serve Flores.
Investigator Hutcheson testified that he never heard back from the bondsman.
Investigator Hutcheson said that investigators at the district attorney’s office also
contacted some of Flores’s family members in an effort to locate Flores.
After Investigator Hutcheson testified, the trial court ruled that the State had
met its burden to show that Flores was unavailable as a witness. The trial court
found that the State made a diligent effort to procure Flores’s attendance as a
witness. Investigator Hutcheson’s testimony showed that the prosecution made
numerous and repeated efforts to serve Flores with the subpoena. Based on that
testimony, the trial court could have reasonably concluded that the State made a
good-faith effort to locate and present Flores as a witness. Therefore, we conclude
that the trial court did not abuse its discretion by ruling that Flores was unavailable
for the purposes of Rule 804 and the Confrontation Clause.
Appellant also contends that the State failed to show that he had “an
opportunity and similar motive” to cross-examine Flores at the previous trial. The
record shows that Appellant’s counsel had the opportunity, and exercised the
opportunity, to cross-examine Flores at the earlier trial. During cross-examination
of Flores at the earlier trial, Appellant’s counsel attempted to develop facts to
support Appellant’s insanity defense. As summarized above, Appellant’s counsel
asked Flores questions about Appellant’s mental state before and on the date of the
incident at Allsup’s. Flores testified that he had seen Appellant talk to himself on
numerous occasions.
Appellant asserts that he did not have a similar motive to cross-examine
Flores at the earlier trial. Appellant’s counsel informed the trial court that he had
not heard the 911 tapes before the current trial. Appellant’s counsel stated, “For
the record Judge, when [Franklin], on the 911 tape, describes the person that went
13
into the Allsup’s and robbed it as being a Hispanic male, and I didn’t have that
information so I didn’t cross-examine [Flores].” Appellant is African-American,
and Flores is Hispanic.
Franklin testified that he could not tell whether the individual who went into
Allsup’s was “white, Hispanic or black” because “[i]t was too dark.” The
overwhelming evidence established that Appellant entered Allsup’s and that Flores
remained at the van during the robbery. In the earlier trial, Flores testified that he
stayed at the van when Appellant walked away from it. An attempt by Appellant’s
counsel to establish, through cross-examination of Flores, that Flores and not
Appellant entered Allsup’s and committed the robbery would have been futile.
Based on the evidence, the trial court could have reasonably concluded that
Appellant had an opportunity and similar motive to develop Flores’s testimony by
cross-examination at the earlier trial. The trial court did not abuse its discretion
when it admitted Flores’s former testimony. Appellant’s second issue is overruled.
Evidence of Prior Conviction
In his third issue, Appellant contends that the trial court abused its discretion
when, during the guilt/innocence phase, it admitted evidence of his 1989
conviction for the murder of Brett. In his direct testimony, Appellant said that he
heard Brett’s voice even though Brett was not there and that Brett told him to rob
the store. During the prosecution’s cross-examination of Appellant, the following
exchange took place:
Q. Who is Brett, or who was he?
A. He was a man from my past.
Q. Yes, he was. Isn’t it true that he was a man from 21 years in
your past?
A. More than 21 years ago.
14
Q. But you haven’t seen him in at least 22 years; is that correct?
A. 23.
Q. Why have you not seen him since then?
A. Because he passed away.
Q. Passed away. Isn’t it true you murdered him?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: Q. Isn’t it true you murdered Brett?
A. Yes, sir.
Q. And isn’t it true you were convicted of that in 1989?
A. He tried to rape me.
Q. Isn’t it true that you were convicted of his murder in 1989?
[DEFENSE COUNSEL]: Objection.
A. (BY THE WITNESS): Yes, sir.
THE COURT: Overruled.
[PROSECUTOR]: Q. And isn’t it true you were sentenced to 20
years in prison?
[DEFENSE COUNSEL]: Objection, Your Honor. Punishment is
not relevant.
THE COURT: Overruled.
A. (BY THE WITNESS): I took the 20 years because --
15
Q. I just asked you a question. You can answer your counsel’s
when I get through. Weren’t you sentenced to 20 years in prison?
A. Yes, sir.
Q. And did you serve 20 years?
A. Yes.
Q. That would have meant you were released in 2009?
A. 2008.
Before trial, Appellant filed a motion to suppress in which he asserted that
his 1989 murder conviction was inadmissible for impeachment purposes under
Rule 609 of the Rules of Evidence. TEX. R. EVID. 609. The trial court denied the
motion. Rule 609(a) provides that, for impeachment purposes, evidence that a
witness has been convicted of a crime that was a felony or involved moral
turpitude is admissible if the court determines that the probative value of admitting
the evidence outweighs its prejudicial effect. Rule 609(b) establishes a time limit.
Rule 609(b) provides that, if ten years have passed since the date of conviction or
the date of release of the witness from confinement, whichever is later, the
conviction is not admissible unless the trial court determines that the probative
value of the conviction substantially outweighs its prejudicial effect. Appellant
was released from prison for the murder conviction in 2008. Thus, his prior
conviction fell well within the ten-year range in Rule 609(b).
Courts use a nonexclusive list of factors to weigh the probative value of a
conviction against its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex.
Crim. App. 1992). The factors include (1) the impeachment value of the prior
crime, (2) the temporal proximity of the prior crime relative to the charged offense
16
and the witness’s subsequent history, (3) the similarity between the prior crime and
the charged offense, (4) the importance of the defendant’s testimony, and (5) the
importance of the credibility issue. Id. The proponent seeking to introduce
evidence of a conviction under Rule 609 has the burden to demonstrate that the
probative value of the conviction outweighs its prejudicial effect. Id.
Appellant testified that Brett told him to rob the store. Appellant said that he
thought he was doing the right thing by robbing the store. Before the prosecutor
asked Appellant whether he murdered Brett, Appellant’s testimony left a false
impression with the jury that Brett “passed away,” when, in fact, Appellant killed
him. Evidence of Appellant’s murder conviction removed the false impression.
While witnesses other than Appellant testified that Appellant complained of
hearing voices, Appellant was the only witness who testified about Brett.
Appellant’s testimony was critical to his insanity defense; therefore, his credibility
was extremely important to the jury’s consideration of his defense. Evidence that
Appellant murdered Brett was relevant to the jury’s determination of Appellant’s
insanity defense and to the issue of Appellant’s credibility. After considering all
the factors outlined in Theus, we conclude that the probative value of the evidence
of Appellant's conviction outweighed its prejudicial effect and that, therefore,
evidence of the conviction was admissible under Rule 609. The trial court did not
abuse its discretion when it admitted evidence of Appellant’s conviction.
Appellant’s third issue is overruled.
The Trial Court’s Judgment
The judgment of the trial court erroneously reflects “N/A” with respect to
the enhancement pleas and findings. Additionally, although the first page of the
judgment correctly reflects that the trial court assessed Appellant’s punishment, the
second page of the judgment erroneously reflects that the jury assessed Appellant’s
punishment. The record shows that Appellant pleaded true to both enhancement
17
allegations, that the trial court found both enhancement allegations to be true, that
the trial court assessed Appellant’s punishment, and that Appellant was sentenced
as a habitual offender under TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012).
This Court’s Ruling
We modify the judgment of the trial court to reflect that Appellant pleaded
“TRUE” to the first and second enhancement paragraphs and that the trial court
found the first and second enhancement paragraphs to be “TRUE.” We modify the
second page of the judgment to reflect that the trial court assessed Appellant’s
punishment. As modified, we affirm.
TERRY McCALL
JUSTICE
July 11, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
18
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149 F.3d 1191
98 CJ C.A.R. 2963
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Denzil E. PLACKE, Plaintiff-Appellant,v.Kenneth S. APFEL, Commissioner of Social SecurityAdministration, Defendant-Appellee.
No. 97-7123.
United States Court of Appeals, Tenth Circuit.
June 8, 1998.
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
1
ORDER AND JUDGMENT*
BALDOCK
2
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Plaintiff appeals from a district court judgment affirming the Commissioner of Social Security's denial of his application for disability benefits. We review the district court's order de novo. See Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir.1997). To that end, we must independently determine whether the Commissioner's decision is both supported by substantial evidence in the record and free of legal error. See id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (quotation omitted). Guided by these standards, we affirm.
4
As an initial matter, we repeat the magistrate judge's admonition that plaintiff's attorney should be aware of the requirement set forth by this court in James v. Chater, 96 F.3d 1341, 1343-44 (10th Cir.1996), that all issues not brought to the attention of the Appeals Council are waived. We agree with the magistrate judge that plaintiff's communication to the Appeals Council shows that plaintiff focused on the step-four issue, at the expense of plaintiff's other issues. However, like the district court, we will consider all issues in this appeal.
5
Plaintiff was sixty-one years old when he applied for benefits, and he alleges disability because of carpal tunnel syndrome and various other problems in both wrists and lower back problems. Following the five-step evaluative sequence, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988), the administrative law judge (ALJ) made a determination at step four that plaintiff could perform his past relevant work as a medical technician. Plaintiff argues three points on appeal: the ALJ did not accord proper weight to his treating physician's findings and opinions; the ALJ's analysis and findings regarding plaintiff's pain and credibility were in error and not supported by substantial evidence; and the record does not contain substantial evidence that plaintiff can perform the demands of his past relevant work.
6
We do not agree with plaintiff that the ALJ erred in his weighing of the treating physician's opinion. In fact, the ALJ accepted Dr. Hathcock's opinion that plaintiff had a consistent limitation of not being able to engage in frequent repetitive motion actions. The record shows that Dr. Hathcock's findings and opinions are consistent with the ALJ's findings. The ALJ did not disregard the opinion of plaintiff's treating physician, and, in fact, his determination is consistent with the record evidence by the treating physician.
7
In addition, the ALJ properly considered plaintiff's subjective complaints of pain. See Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir.1987). He correctly determined that nothing in the record indicated that, given the limitation of only infrequent repetitive motion activity, plaintiff could not meet the demands of his former work. The record indicates that plaintiff takes only aspirin for his pain, that he has not sought further treatment, and that his daily activities are consistent with the ALJ's findings as to plaintiff's capacity. The ALJ was within his province in finding that plaintiff's complaints of pain were not credible to the extent they were inconsistent with this record evidence and the medical evidence. Substantial evidence also supports the ALJ's finding that there was no objective medical basis for his complaints of back pain.
8
As to plaintiff's final argument, we hold that the record contains substantial evidence to support the ALJ's finding that plaintiff's impairments did not prohibit him from performing his past work, with the limitation that he only infrequently engaged in repetitive motion activity with his hands. In addition to being consistent with Dr. Hathcock's findings, the ALJ's conclusion is supported by the record evidence of Dr. White's consultative exam and Dr. Ellis's one-time exam. The ALJ questioned the vocational expert as to plaintiff's ability to perform the demands of his previous work as a medical technician, specifically instructing her to assume the limitation regarding repetitive motion activity. The expert testified that, given that limitation, plaintiff would be able to perform his former work as a medical technician. Finally, contrary to plaintiff's representation, the vocational expert did not testify that plaintiff would need to make a significant vocational adjustment to return to his medical technician work. She testified that plaintiff would need to familiarize himself with new medical equipment, but she did not testify that a significant adjustment would be required.
9
The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
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149 F.3d 1192
98 CJ C.A.R. 2977
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Cesar GONZALES, Defendant,and Jason Delatorre, Defendant-Appellant.
No. 98-2089.
United States Court of Appeals, Tenth Circuit.
June 5, 1998.
Before TACHA, BALDOCK, and KELLY, JJ.
ORDER AND JUDGMENT*
PER CURIAM.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Defendant-appellant Jason DeLaTorre appeals the district court's denial of release pending trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and we affirm.
3
Defendant stands charged with multiple violations of various drug and weapons laws, racketeering, conspiracy, murder, and attempted murder. Four other defendants are also charged in the third superseding indictment. Defendant was incarcerated after his arrest in October of 1995 as both a flight risk and a danger to the community. See 18 U.S.C. § 3142(e). The district court recognized that the magistrate judge considered both a flight risk and a danger to the community, although the district court apparently confined its subsequent de novo review and written analysis to flight risk. See 18 U.S.C. § 3145(b); United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir.1992) (district court reviews magistrate's pretrial detention order de novo), cert. denied, 507 U.S. 940, 113 S. Ct. 1336, 122 L. Ed. 2d 720 (1993); United States v. Koenig, 912 F.2d 1190, 1192-93 (9th Cir.1990) (same).
4
Following a hearing before the district court, the defendant's motion for pretrial release was denied. Specifically, the district court determined that defendant was a flight risk and that no condition or conditions of release would adequately assure his presence at trial. See 18 U.S.C. § 3142(f-g). The court further recognized that although defendant has been in custody a considerable length of time, given the nature of the offenses charged, the weight of the evidence against him, defendant's history and characteristics, and the nature and seriousness of the penalties defendant faces, in "balancing defendant's due process interest with the risk society must accept, ... the time has not yet come when [defendant's] continued detention arises to a constitutional violation of his substantive due process rights." Appellant's App., Tab A at 11.
5
Defendant presents two arguments on appeal. He first contends that the district court erroneously invoked the presumption of detention because defendant faces a potential death sentence. He claims that the murder statute, 18 U.S.C. § 1959, is not one of the statutes under which the rebuttable presumption of § 3142(e) arises. Defendant's second argument is that defendant's continued pretrial incarceration, now over two and a half years, violates the Due Process Clause of the Constitution.
6
We review the district court's order of pretrial detention independently with due deference to the district court's factual findings. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.1991). Once the rebuttable presumption arises under 18 U.S.C. § 3142(e) that no conditions of release will assure defendant's appearance and the safety of the community, the burden of production shifts to the defendant. The burden of persuasion, of course, always remains with the government. The defendant's burden of production is not a heavy one, but some evidence must be produced. Id. at 1354-55; see also United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989).
7
Among other things, defendant is charged with conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846; using and carrying firearms in relation to drug trafficking crimes in violation of 18 U.S.C. § 924(I)(1); distribution of controlled substances under 21 U.S.C. § 841(b)(1)(B) and (C); and carrying and using a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and (2). Under § 3142(e), a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required if there is probable cause to believe the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed under "the Controlled Substances Act (21 U.S.C. § 801 et seq.) ... or an offense under section 924(c) ... of title 18...."
8
The indictment constitutes a determination of probable cause. See United States v. Stricklin, 932 F.2d at 1354. Defendant admits that under § 3142(e) "the district court could properly presume that [defendant] presented a risk of flight...." Appellant's Br. at 5. Moreover, the district court may not ignore the presumption. See, e.g., United States v. Cook, 880 F.2d at 1162 (error for district court to skip over rebuttable presumption of detention applicable when probable cause to believe defendant has committed crime has been established, likening provisions of § 3148 to § 3142). The district court's concern that the possibility of a death sentence might heighten the risk of flight is certainly relevant. See United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir.1994) (no constitutional violation in long pretrial detention where prospect of lengthy term in prison provides great incentive to flee); United States v. Nichols, 897 F. Supp. 542, 547 (W.D.Okla.1995) (prospect of lengthy prison term, life imprisonment or death penalty provides defendant with great incentive to flee), aff'd, No. 95-6223, 61 F.3d 917 (table), 1995 WL 430191 (10th Cir. July 21, 1996). The district court also analyzed the factors outlined in § 3142(g) and correctly determined that the government had carried the burden of persuasion on the issue of risk of flight. Defendant's second argument is that his continued incarceration violates his right to substantive due process. Here, the district court considered the factors outlined in United States v. Millan, 4 F.3d 1038, 1043 (2d Cir.1993). These factors are the length of the detention, the extent of the prosecutor's responsibility for delay of the trial, and the strength of the evidence on which detention is based. The district court first acknowledged that the defendant had been in custody a long time. However, she did not find that the government's responsibility for the delay was significant enough to have added "considerable weight to [d]efendant's claim that the duration of detention has exceeded constitutional limits.' " See Appellant's App., Tab A at 10 (citing United States v. Gonzales-Claudio, 806 F.2d 334, 342-43 (2d Cir.1986)). Moreover, the district court correctly noted that the defendant could not rely upon his own extensive motion practice to bolster the due process argument. See United States v. Infelise, 934 F.2d 103, 104 (7th Cir.1991). Finally, the court determined that looking at the evidence on which the detention is based, the flight risk in particular "supports the determination that [defendant's] lengthy detention does not violate due process." This conclusion was supported by her concern that even with strict release conditions, because of the seriousness of the charges and penalties, defendant would flee. See id.
9
We have noted that "the Supreme Court has not articulated a clear test for determining when pretrial confinement of an accused is permissible under the Due Process Clause." See United States v. Deters, --- F.3d ----, No. 97-3334, 1998 WL 213675 at * 7 (10th Cir. May 1, 1998). However, the government may detain a person suspected of committing a crime before a formal adjudication of guilt based on its "substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, or that confinement of such persons pending trial is a legitimate means of furthering that interest." See Bell v. Wolfish, 441 U.S. 520 534, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); United States v. Salerno, 481 U.S. 739, 749, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (acknowledging holding in Bell v. Wolfish that "an arrestee may be incarcerated until trial if he presents a risk of flight"). Although each case turns on its own facts and circumstances, we note that this court has upheld pretrial incarceration of up to thirty-four months, albeit in a disposition that is not binding precedent, see 10th Cir. R. 36.3 (current policy on citation of unpublished dispositions). See United States v. Peters, 28 F.3d 114 (table), No. 94-2107, 1994 WL 325419 (10th Cir. July 7, 1994), cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994).
10
In sum, the district court balanced the competing interests and weighed the release conditions proposed by defendant before concluding no conditions would adequately ensure defendant's presence at trial. We have reviewed the record and arguments presented by the parties; defendant is not entitled to pretrial release.
11
The judgment of the United States District Court for the District of New Mexico is AFFIRMED. Defendant-appellant's motion to strike portions of Plaintiff-appellee's memorandum brief is DENIED.
PER CURIAM
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
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149 F.3d 1192
98 CJ C.A.R. 3863
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Piyarath S. KAYARATH, Defendant-Appellant.
No. 97-3110.
United States Court of Appeals, Tenth Circuit.
June 19, 1998.
Before SEYMOUR, Chief Judge, MURPHY, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.
1
ORDER AND JUDGMENT*
2
Five young Asian-American males robbed the owners of the Mandarin Chinese Restaurant and Lounge in Wichita, Kansas, and in the course of the robbery shot and killed one of its co-owners, Barbara Sun. One of the five later indicted for participation in the robbery-murder was Piyarath S. Kayarath, identified in the indictment by that name, and also referred to therein as "a/k/a 'B'." Kayarath will be hereinafter referred to by us as "Mr. B." In this appeal, we are only concerned, as such, with Mr. B. and none of the other four participants in the robbery-murder.
3
Based on the robbery-murder, Mr. B was charged in a second superseding indictment as follows: in count 1 he was charged with knowingly and willfully obstructing and affecting interstate commerce on November 8, 1994, by robbing employees of the Mandarin Chinese Restaurant and Lounge ("Mandarin Restaurant") in Wichita, Kansas, against their will by force and violence, in violation of 18 U.S.C. § 1951 (Hobbs Act) and 18 U.S.C. § 2; and in count 2 he was charged with carrying and using a firearm in that robbery and during the course thereof causing the death of a person, by murder, through the use of a firearm, in violation of 18 U.S.C. §§ 924(c)(1) and 924(j)(1) and 18 U.S.C. § 2.
4
Mr. B was found guilty by a jury on both counts, and, after his motion for a new trial was denied, he was sentenced to imprisonment for 240 months on count 1 and life imprisonment without release on count 2. Mr. B appeals his convictions.
5
On appeal, counsel raises basically two issues: (1) the district court erred in denying Mr. B's pre-trial motion to suppress his "confession," which, according to counsel, was the "fruit of the poisonous tree," i.e., the confession resulted from an "illegal arrest"; and (2) the district court committed plain error in its answer to a written question given the court by the jury during the course of its deliberations. Finding no reversible error, we affirm. Some background is in order.
6
Mr. B and the other four robbers were all living in the Wichita, Kansas area. At trial, the government called as witnesses several "girlfriends" of the robbers who testified that they overheard Mr. B and the other four plan the robbery in question. One of the five robbers drove the get-away car, and did not himself enter the Mandarin Restaurant. The other four did enter the restaurant, two of the four carrying guns. It was the government's theory of the case that Mr. B and one of the others forced Mark Sun to open the cash register and then tied and bound him along with a waiter. Mark Sun, the waiter, and the two Sun daughters were then forced to lie down on the floor.1 In this connection, Mark Sun, the co-owner of the Mandarin Restaurant with his wife, Barbara Sun, testified that he was forced to open the cash register and then tied and bound and forced to lie down on the floor. Also, the government called as its witness one of the four robbers who testified that he and Mr. B tied and bound Mark Sun. The driver of the get-away car also testified against Mr. B as a government witness.
7
It was the government's further theory of the case that the other two of the four robbers who entered the restaurant dragged Barbara Sun upstairs to the second floor and that one of the two shot and killed Barbara Sun when she could not open a safe. The gun used in the killing belonged to Mr. B. The four then fled the Mandarin Restaurant in a stolen get-away car, taking with them a relatively small amount of currency and some costume jewelry. The four entered a second get-away car driven by the fifth robber a short distance from the Mandarin Restaurant and the five successfully fled the scene.
8
Nearly three weeks later, Mr. B was arrested by authorities on November 29, 1994, in a house trailer located in Wichita. The authorities had a search warrant to search the trailer for drug activity therein. The authorities found "white powder" on a tray in the trailer, as well as a loaded shotgun. As indicated, Mr. B was in the trailer, along with others, and all were arrested and taken to police headquarters. After being advised of his Miranda rights, Mr. B admitted to participating in the robbery by tying up people and looking for currency and jewelry, though he denied that he shot and killed Barbara Sun. After the government rested its case, Mr. B called no witnesses and rested his case.
9
As indicated, prior to trial, counsel for Mr. B filed a motion to suppress the use at trial of Mr. B's confession made to an FBI agent, Dan Jablonski, who headed the Violent Crime Task Force in Wichita, which was investigating the robbery-murder. It was counsel's general position that Mr. B's arrest was without probable cause and thus illegal, and that the confession being the result of the illegal arrest was therefore inadmissable. Additional facts and circumstances surrounding his arrest become pertinent.
10
The Task Force, based on information acquired from various persons, was aware of Mr. B and his possible involvement in the Mandarin Restaurant robbery. The Task Force was also aware of another individual, a Mr. Ph, whom they suspected might be involved in some other robberies, if not involved in the robbery of the Mandarin Restaurant. To further its investigation, the Task Force on November 29, 1994, established a surveillance of a "trailer" located at 3200 S.E. Boulevard in Wichita, the Task Force having information that the trailer was a hangout for Asian gang members, including Mr. Ph. During that surveillance, they saw two Laotian males leave the trailer and drive off in a red Chevy Blazer. Believing one of the individuals in the vehicle was Mr. Ph (it subsequently developed that they were mistaken in that belief), the agents followed and then stopped the Blazer. A consensual search of the vehicle disclosed quantities of cocaine which the occupants said they had obtained from Mr. Ph in the trailer and which they intended to distribute to others.2 Based on that information, members of the Task Force obtained a warrant to conduct a search of the trailer.
11
This search warrant was executed about 3:00 p.m. on November 29, 1994, by Jablonski and other members of the Task Force. Mr. Ph answered the knock-at-the-door. After entering the trailer, the agents found cocaine in a tray and a loaded shotgun. Mr. B was in the trailer and he, and others in the trailer, were arrested, along with Mr. Ph, and all taken to police headquarters. After being given a Miranda warning, Mr. B was questioned about drug activities at the trailer, as well as the robbery of the Mandarin Restaurant and several other similar robberies. In this latter connection, Mr. B. later admitted, under questioning, his participation in the Mandarin Restaurant robbery, although denying that he shot Barbara Sun.
12
After hearing, the district court denied the motion to suppress. In so doing, the district court observed that Agent Jablonski, based on statements made to him by an informant, had already suspected that Mr. B was involved in the robbery of the Mandarin Restaurant, but that since there was "nothing more" known about the informant, his statement to the Task Force had "limited value in deciding whether probable cause existed [although] [i]t is, however, a factor to consider." Rather, in denying the motion to suppress the district court spoke as follows:
13
Kayarath was found crammed into a small bedroom with 7 other people immediately after the agents discovered cocaine residue in the kitchen and a loaded .12 gauge shotgun under the couch. The Task Force knew from the Lang brothers' statements that a drug deal had occurred within the trailer earlier that day, and the agents had observed no one come in or go out of the trailer since that time.
14
We agree with the district court that the Task Force had probable cause to believe that cocaine was being distributed by persons in the trailer. The Task Force thereafter obtained a search warrant based on the fact that the two Laotian males in the red Chevy Blazer had cocaine in their possession shortly after leaving the trailer, where they said they had obtained the cocaine. Such, in our view, constitutes probable cause to believe that the occupants of the trailer were involved in drug distribution out of the trailer. Further, in our view, any possible error in arresting Mr. B is, under the circumstances, harmless error. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); and United States v. Espinosa, 771 F.2d 1382, 1415 (10th Cir.), cert. denied, 474 U.S. 1023, 106 S. Ct. 579, 88 L. Ed. 2d 561 (1985). Evidence later adduced at trial was overwhelming that Mr. B did participate in the robbery. We refer especially to the testimony of Mark Sun and two of Mr. B's accomplices. Indeed, though Mr. B did not testify, counsel's defense, as he stated in closing argument to the jury, was that though Mr. B was guilty of robbery, he was not guilty of murder. And, as noted, the search of the trailer was pursuant to a search warrant.
15
Counsel also argues on appeal that the district court committed plain error in responding to a question from the jury during the course of its deliberation. In both counts 1 and 2, Mr. B was charged as a principal and as an aider and abettor under 18 U.S.C. § 2. In this latter connection, the district court, without objection, instructed the jury as follows:
INSTRUCTION NO. 32
16
Counts 1 and 2 of the indictment also charge the defendant with a violation of Section 2, Title 18 of the United States Code, which provides that: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
17
If you find that the United States has proved beyond a reasonable doubt that defendant personally committed each element of the crimes charged in Counts 1 and 2, you need not consider whether he violated 18 U.S.C. Section 2. On the other hand, if you find that defendant personally did not commit each element of either or both of the crimes, you must consider 18 U.S.C. Section 2. This is because a person may violate the law even though he or she does not personally do each and every act constituting the crime if that person "aided and abetted" someone else in the commission of the crime.
18
Before the defendant may be found guilty as an aider and abettor to the crime or crimes charged, the United States must prove, beyond a reasonable doubt, that someone committed each of the essential elements of the crime or crimes charged. In addition, the United States must prove beyond a reasonable doubt that the defendant:
19
1. Knew that the crime or crimes charged were to be committed or were being committed; and
20
2. Knowingly did some act for purpose of aiding, commanding, or encouraging the commission of the crime or crimes; and
21
3. Acted with the intention of causing the crime or crimes charged to be committed.
22
In other words, the United States must prove beyond a reasonable doubt that the defendant knowingly and willfully associated himself with the crime or crimes in some way as a participant--someone who wanted them to be committed--not as a mere spectator.
23
Merely being present at the scene of a crime or merely knowing that a crime is being committed or is about to be committed is not sufficient conduct for the jury to find that a defendant aided and abetted the commission of that crime.
24
After several hours of deliberation, the jury sent the following communication to the district court:
25
We request clarification of Instruction 32. The second paragraph reference 18 U.S.C. section 2, seems to conflict with items 1, 2 and 3 below, in that 1 below ... seems to indicate that the defendant had to know that a murder either was going to be or was being committed.
26
Does the reference to crime or crimes mean the murder only or does it refer to "robbery and/or murder."
27
After discussion, the district court, with consent of the parties, answered that question as follows: "in answer to your question, the reference to crime or crimes refers to the robbery and/or murder."
28
As indicated, there was no objection to instruction No. 32 nor was there any objection to the district court's response to the jury's question. Counsel necessarily must now argue that the court's answer constituted plain error. We do not agree.
29
We reject any suggestion that in order for Mr. B to be convicted as an aider and abettor to his accomplice's killing of Barbara Sun, Mr. B had to somehow know, in advance, that his accomplice was going to shoot and kill Barbara Sun. We are here concerned with a murder occurring during the course of a robbery.3 In our view the jury was not misled by the district court's answer to the jury's question. And, again, in any event, the evidence shows quite clearly that Mr. B, who apparently at trial conceded, in effect, that he was involved in the robbery of the Mandarin Restaurant, aided and abetted his accomplice who shot and killed Barbara Sun. After all, it was Mr. B's gun used in the shooting of Barbara Sun, occurring at the time when Mr. B was ransacking the first floor of the Mandarin Restaurant. That, to us, is aiding and abetting.4
30
This is a tragic case. Mr. B, then age 21 years, has now been sentenced to 240 month's imprisonment on count 1 and a life sentence without parole on count 2. From the present record it appears that the driver of the get-away car and the robber who helped Mr. B tie and bind Mark Sun pled guilty to both robbery and murder. What has happened to the two who dragged Barbara Sun by the hair to the second floor and killed her, we do not know. There is, however, the suggestion in the present record that the government was seeking the death penalty against them. And, of course, the crimes they committed were violent and unprovoked, and decimated the Sun family.5
31
Judgment affirmed.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
Mark and Barbara Sun were born in South Korea and knew each other in that country. Each later emigrated to the United States and were married in Wichita, where they, together, owned and operated the Mandarin Restaurant
2
The two arrested in the red Chevy Blazer were Souphaphone Lang and Douangmala Lang. They were later charged with drug violations, and their convictions on the drug charges were affirmed on appeal. We reversed their convictions on the charges of carrying a firearm. See United States v. Lang, 81 F.3d 955 (10th Cir.1996)
3
In this general connection, the Supreme Court in Schad v. Arizona, 501 U.S. 624, 640-41, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) spoke as follows:
At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." The intent to kill and the intent to commit a felony were alternative aspects of the single concept of "malice aforethought." See 3 J. Stephen, History of the Criminal Law of England 21-22 (1883). Although American jurisdictions have modified the common law by legislation classifying murder by degrees, the resulting statutes have in most cases retained premeditated murder and some form of felony murder (invariably including murder committed in perpetrating or attempting to perpetrate a robbery) as alternative means of satisfying the mental state that first-degree murder presupposes.
4
Additionally, counsel suggests, mildly, that the evidence is insufficient to show that the robbery obstructed or otherwise affected interstate commerce. In this regard, Mark Sun testified that he bought products from outside the state and sold them at the Mandarin Restaurant and that many of his customers used credit cards for payment which resulted in out-of-state collections. Further, he stated that the robbery and murder ultimately caused him to close the restaurant and cease buying from out-of-state. Counsel recognizes that we have repeatedly held that the "affect" on interstate commerce need only be de minimis to trigger the Hobbs Act. See, e.g., United States v. Romero, 122 F.3d 1334, 1339-40 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S. Ct. 1310, 140 L. Ed. 2d 474 (1998); United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995), cert. denied, 516 U.S. 1137, 116 S. Ct. 966, 133 L. Ed. 2d 887 (1996); and United States v. Ziegler, 19 F.3d 486, 489-90 (10th Cir.), cert. denied, 513 U.S. 1003, 115 S. Ct. 517, 130 L. Ed. 2d 422 (1994). The present case meets that low de minimis standard
5
After oral argument of this case, counsel for the appellee filed a motion to correct a statement made by him at argument. That motion is granted. In connection therewith, counsel for the appellee also moved to supplement the record. That motion is denied
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694 N.W.2d 73 (2005)
Jill R. VOSHAGE, Relator,
v.
STATE of Minnesota-MNSCU ST. UNIV.-WINONA, and Self-Insured, Respondents,
Community Memorial Hospital, Blue Cross/Blue Shield & Blue Plus, Hartford Life, and Gunderson, Ltd., Intervenors.
No. A04-2438.
Supreme Court of Minnesota.
April 4, 2005.
Karl W. Sonneman, Sonneman & Sonneman, Winona, MN, for Relator.
Peter J. Pustorino, Stacy P. Bouman, Pustorino Tilton Parrington & Lindquist, Minneapolis, MN, for Respondent.
Considered and decided by the court en banc.
AMENDED ORDER
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals filed November 24, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).
*74 BY THE COURT
/s/Sam Hanson
Chief Justice
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Unable to extract the content from this file. Please try reading the original.
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964 N.E.2d 316 (2012)
ZAVODNIK
v.
GEHRT.
No. 49A02-1105-CT-393.
Court of Appeals of Indiana.
March 1, 2012.
ROBB, C.J.
Disposition of Case by Unpublished Memorandum Decision Affirmed in part and Reversed in part.
NAJAM, J. and VAIDIK, J., Concurs.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-00877-SCT
PATTIE ROBERTS
v.
NEW ALBANY SEPARATE SCHOOL DISTRICT
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 05/01/2000
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GERRY M. BLAKER, II
ATTORNEY FOR APPELLEE: THAD J. MUELLER
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 04/11/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 5/2/2002
EN BANC.
PITTMAN, CHIEF JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion is substituted
therefor.
¶2. Pattie Roberts filed suit in the Circuit Court of Union County against the New Albany Separate School
District to recover damages caused when she stepped into a small hole and fractured her ankle on the
grounds of the New Albany Middle School. The circuit court, Judge R. Kenneth Coleman presiding,
granted New Albany's motion to dismiss for failure to state a claim on the grounds that the statute of
limitations had elapsed and her claim was now barred. From this ruling, Roberts appeals.
FACTS
¶3. While Roberts was attending a yard sale at the New Albany Middle School on August 8, 1998, she
stepped into a small hole and fractured her ankle. As a result of the accident, she required surgery on her
ankle and extensive physical therapy. On August 3, 1999, Roberts sent notice of her claim for damages to
Kenneth Quinn, the superintendent of the New Albany school district. Then, on December 6, 1999,
Roberts filed suit against the school district. Three weeks later, the school district filed a motion to dismiss
the complaint as barred by the statute of limitations. This motion was granted, and the action was dismissed
without prejudice.
STANDARD OF REVIEW
¶4. We apply the de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion.
Arnona v. Smith, 749 So. 2d 63, 65-66 (Miss. 1999). As such, we sit in the same position as did the trial
court. Furthermore, statutory interpretation is a question of law, and we also review questions of law de
novo. Donald v. Amoco Prod. Co., 735 So. 2d 161, 165 (Miss. 1999). Therefore, we are not required
to defer to the trial court's judgment or ruling. In order to affirm the granting of dismissal, we must decide
that Roberts failed "to state a claim upon which relief can be granted." Miss. R. Civ. P. 12(b)(6).
DISCUSSION
WHETHER THE NOTICE OF CLAIM AMENDMENT TO § 11-46-11(3) OF THE MTCA
SHOULD BE APPLIED RETROACTIVELY TO A CLAIM THAT ACCRUED PRIOR TO
THE AMENDMENT WHEN THE NOTICE OF CLAIM AND COMPLAINT WERE
FILED AFTER THE EFFECTIVE DATE OF AMENDMENT.
¶5. On March 25, 1999, our Legislature extended the period of time a notice of claim tolled the statute of
limitations for actions brought against governmental entities under the Mississippi Tort Claims Act, Miss.
Code Ann. §§ 11-46-1 through -23 (Supp. 2001). Section 11-46-11(3) of the Act originally read in
pertinent part:
All actions brought under the provisions of this chapter shall be commenced within one (1) year next
after the date of the tortious, wrongful, or otherwise actionable conduct on which the liability phase of
the action is based, and not after; provided, however, that the filing of a notice of claim as required by
subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95)
days....
The amended statute reads, in part, as follows:
All actions brought under the provisions of this chapter shall be commenced within one (1) year next
after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of
the action is based, and not after; provided, however, that the filing of a notice of claim as required by
subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95)
days from the date the chief executive officer of the state agency receives the notice of
claim, or for one hundred twenty (120) days from the date the chief executive officer or
other statutorily designated official of a municipality, county or other political subdivision
receives the notice of claim, during which time no action may be maintained by the claimant
unless the claimant has received a notice of denial of claim. After the tolling period has
expired, the claimant shall then have an additional ninety (90) days to file any action against
the governmental entity served with proper claim notice. However, should the governmental
entity deny any such claim, then the additional ninety (90) days during which the claimant
may file an action shall begin to run upon the claimant's receipt of notice of denial of claim
from the governmental entity. . . .
Miss. Code Ann. § 11-46-11(3) (Supp. 2001) (emphasis added).
¶6. Recently, this Court has examined the effect the amendment to this statute has on litigation pending at
the time of its passage. In Hollingsworth ex rel. McDonald v. City of Laurel, 808 So. 2d 950 (Miss.
2002), we recognized a limited exception to the rule that statutes will be given prospective application only.
"[W]here an amended statute remedially lengthens a statute of limitations, [this Court] will apply the
amendment to existing causes." Id. at ¶17 (citing Kilgore v. Barnes, 508 So. 2d 1042, 1045 (Miss. 1987)
). "While not completely retroactive, this exception gathers the claims pending at the time of the statute's
amendment and not barred by its previous limitation and gives them the benefit of the longer limitations
period." Id.
¶7. Applying this rule to the facts at hand, Roberts filed her complaint in a timely fashion, and the trial
court's ruling dismissing her suit must be reversed. We note defense counsel's admission on the record that
under the amended statute, Roberts's suit was timely instituted, but after examining the record for ourselves
we find this to be correct. Roberts was injured on August 8, 1998. She gave notice of her claim to the
school district within the one-year statutory time period on August 3, 1999, tolling the statute of limitations
for 120 days. One hundred twenty-five days later, after the 120-day period allowed for the school district
to provide notice of denial of claim but within the subsequent 90-day period available for filing suit, Roberts
filed the present action. There is no notice of denial of claim in the record so the full measure of the 120-day
period runs in Roberts's favor. Her suit, therefore, was timely filed, and the dismissal of this suit must
therefore be reversed.
CONCLUSION
¶8. For these reasons, the judgment of the Union County Circuit Court is reversed, and this case remanded
to that court for further proceedings consistent with this opinion.
¶9. REVERSED AND REMANDED.
McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
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802 F.2d 442
Echevarria-Riverav.Secretary of Health and Human Services
86-1244
United States Court of Appeals,First Circuit.
9/25/86
1
D.P.R.
VACATED AND REMANDED
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890 N.E.2d 1283 (2004)
349 Ill. App.3d 1036
PEOPLE
v.
FLUKER.
No. 1-03-0014.
Appellate Court of Illinois, First District.
July 28, 2004.
Affirmed.
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802 F.2d 442
Rosev.Secretary of Health and Human Services
86-1010
United States Court of Appeals,First Circuit.
9/22/86
1
D.Mass.
VACATED AND REMANDED
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59 So.3d 126 (2011)
ALLEN
v.
STATE.
No. 5D10-2513.
District Court of Appeal of Florida, Fifth District.
March 29, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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800 F.2d 1024
Howard JONES, Robert Edwards, Bill Starr Buc McLendon,Russell Warner, George Lewis, as Trustees of the IronworkersLocal #272 Pension Fund, Health and Welfare Fund andApprenticeship Training Program, Plaintiffs-Appellees,v.DARIN & ARMSTRONG, INC., a Michigan Corporation and UnitedStates Fidelity & Guarantee Co., a MichiganCorporation, Defendants-Appellants.
No. 84-5936.
United States Court of Appeals,Eleventh Circuit.
Sept. 9, 1986.
Richard W. Groner, David E. Gurley, Sarasota, Fla., for defendants-appellants.
W. Eric Venable, P.A., Tampa, Fla., for plaintiffs-appellees.
Appeal from the United States District Court for the Southern District of Florida; Lenore C. Nesbitt, Judge.
Before GODBOLD and KRAVITCH, Circuit Judges and SIMPSON, Senior Circuit Judge.
BY THE COURT:
1
Appellants' motion to withdraw the opinion of this court, 785 F.2d 1521 (11th Cir.1986), is GRANTED and the appeal is DISMISSED.
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872 N.E.2d 709 (2007)
SUMMERS
v.
DAVIS.
No. 45A05-0701-CV-49.
In the Court of Appeals of Indiana.
August 31, 2007.
NAJAM, J.
Unpublished memorandum decision. Affirmed, Reversed and Remanded.
MATHIAS, J. Concurs.
FRIEDLANDER, J. Concurs in part, dissents in part with separate opinion.
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221 F.2d 146
55-1 USTC P 9340
J. E. RILEY, Appellant,v.R. L. DOUGLASS, Collector of Internal Revenue, Appellee.Gertrude B. RILEY, Appellant,v.R. L. DOUGLASS, Collector of Internal Revenue, Appellee.
Nos. 13504, 13505.
United States Court of Appeals, Ninth Circuit.
April 1, 1955.
Woodburn, Forman & Woodburn, Reno, Nev., for appellants.
H. Brian Holland, Asst. Atty. Gen., Carolyn Just, Ellis N. Slack, William B. Waldo, Special Assts. to Atty. Gen., Madison B. Graves, U.S. Atty., Las Vegas, Nev., for appellee.
Before POPE and CHAMBERS, Circuit Judges, and CLARK, District Judge.
CHAMBERS, Circuit Judge.
1
This is a consolidated appeal of the separate cases of a husband and his wife on an income tax depletion-gross income question decided in the United States District Court of Nevada in favor of a collector of internal revenue.
2
J. E. Riley and Gertrude B. Riley, husband and wife, operated during the latter part of 1943 and during 1944 in Humboldt County, Nevada, what is known as the Riley mine, a low grade tungsten mine. Production was made economically possible for the two years in question by a federal government program of purchase of strategic metals through Metals Reserve Corporation, a subsidiary of the government's Reconstruction Finance Corporation. Rileys were 'new producers' as defined by the government subsidiary. All of their production went to Metals Reserve during the two years under review.
3
The operation of Rileys was about as follows: They removed crude ore from the mine and trucked it to a government stockpile of crude ore located at the Pinson ranch, about two miles distant from the Riley mine. Eventually the government caused the ore to be removed to the Getchell mill which is described as about four miles from the Riley mine. The Getchell mill was privately owned and we assume it was constructed before World War II. Evidently this mill was primarily built for Getchell's own mining product. Apparently, Getchell was a tungsten producer during the war and also did custom work at the mill for Metals Reserve on ores such as came from the Riley mine. Of course, the product of the mill was concentrates. These concentrates were shipped to a stockpile area for concentrates near Salt Lake City where they were further processed. It appears that much of the Riley ore was not milled before 1945 and perhaps at a time when Rileys had ceased to operate their mine.
4
The first harbinger of the government program was a circular. Then to make a deal with a producer, Metals Reserve prepared a form letter addressed to itself which the producer would sign. Upon receipt of the letter Metals Reserve would not 'accept' but would endorse 'confirmed.' This procedure Rileys and Metals Reserve followed.
5
Under the program in the pursuit of the war effort, Metals Reserve would accept delivery of crude ore or concentrates. Here Rileys, although they delivered crude ore, claim that what they sold to the government was concentrates. Without considering that contention for the moment, it is well to outline how payment for the Riley product was made. There seems to have been sort of a 'gross price' and, after many deductions, a 'net price.'1 As a 'gross price' the Rileys were entitled to $30.00 per short ton unit, dry weight, of recoverable WO(3) (tungsten tri-oxide). A ton of ore with 20 pounds of WO(3) would contain a short ton unit, and this would be 1% ore. The Riley ore ran about six-tenths of one percent WO(3) according to the assays. This was the first deduction from $30.00. Then it was estimated and agreed to by Rileys and Metals Reserve that the Riley ore's tungsten content was 85% recoverable.2 That made a further 15% reduction. Also, usually there was moisture in the Riley ore which required the third percentage deduction from the gross unit price.
6
After percentage deductions came a deduction from the 'gross price' of a milling charge of $3.00 per ton of ore, a freight charge of $1.00 per ton, and a chemical treatment charge of $2.00 per short ton unit. The freight charge covered transportation from the first stockpile to the Getchell mill. (The charges deducted from the gross price were not the amount Metals Reserve actually paid out, but were set up in advance as what Metals Reserve estimated it would have to pay. The deductions so established were flat to the producer except that the chemical charge was adjusted up or down in proportion to the content of tungsten tri-oxide actually present in the ore.)
7
It should also be stated that when crude ores were brought to the Pinson ranch, manual assay samples were taken at frequent intervals. Final settlement was not immediately made upon the basis of the assays of the samples of the crude ore, but was to await the results of milling.3 However, Metals Reserve did promptly make in 1943 and 1944 provisional payments (with accompanying deductions) in cash to the extent of 80% of what the first assays indicated on the respective lots of ore. Presumably 20% was retained to adjust for error between the samples and results. Some time after 1944 the government negotiated a settlement of the balance due to Rileys without some of the ore being yet milled.
8
The question before the trial court for decision and here for review is whether Rileys may take a 15% depletion allowance on their income tax returns for the years 1943 and 1944, as to 80% of the gross price, or are limited to computing it on 80% of the net price (80% being the amount of the provisional settlement). In other words, the basic question is may they compute 15% depletion on the amount of milling charges, chemical charges and freight charges perhaps on, but not necessarily limited to, the theory that they constructively received and paid out moneys for these charges as ordinary mining expenses. Involved is 26 U.S.C.A. 114 on depletion. As effective for the years in question, it read:
9
'(1) General rule. The basis upon which depletion is to be allowed in respect of any property shall be the adjusted basis provided in section 113(b) for the purpose of determining the gain upon the sale or other disposition of such property, except as provided in paragraphs (2), (3), and (4) of this subsection.
10
* * * * *
11
'(3) Percentage depletion for oil and gas wells. In the case of oil and gas wells the allowance for depletion under section 23(m) shall be 27 1/2 per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance under section 23(m) be less than it would be if computed without reference to this paragraph.
12
'(4) Percentage depletion for coal, fluorspar, flake graphite, vermiculite, beryl, feldspar, mica, talc, lepidolite, spodumene, barite, ball and sagger clay, rock asphalt, and metal mines, potash, and sulphur
13
'(A) In general. The allowance for depletion under section 23(m) shall be, in the case of coal mines, 5 per centum, in the case of metal mines, * * * 15 per centum, and in the case of sulphur mines or deposits, 23 per centum, of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. * * *
14
'(B) Definition of gross income from property. As used in this paragraph, the term 'gross income from the property' means the gross income from mining. The term 'mining', as used herein, shall be considered to include not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products. The term 'ordinary treatment processes', as used herein, shall include the following: * * * and (iv) in the case of lead, zinc, copper, gold, silver, or fluorspar ores, potash, and ores which are not customarily sold in the form of the crude mineral product-- crushing, grinding, and beneficiation by concentration (gravity, flotation, amalgamation, electrostatic, or magnetic), cyanidation, leaching, crystallization, precipitation * * * or by substantially equivalent processes or combination of processes used in the separation or extraction of the product or products from the ore, including the furnacing of quicksilver ores. * * *'
15
We think it is probable that if Rileys had milled and treated their own ore as Getchell did its own, then Rileys would have been entitled to depletion on the full amount (gross income) it received from the sale of concentrates. likewise, the same would likely be true if Rileys had taken their product to a custom mill and themselves employed the miller for a fee.
16
Should Rileys be penalized for not owning a mill or not themselves employing a custom miller? We think we have here an extremely close question and one about which no one can be dogmatic. Counsel for the parties see no doubt about the question. We have carefully considered New Idria Quicksilver Mining Co. v. Commissioner of Internal Revenue, 9 Cir., 144 F.2d 918; United States v. Cherokee Brick & Tile Co., 5 Cir., 218 F.2d 424. Neither of these two cases appears to determine our problem here, but both are helpful.
17
We think it well to list some factors relied upon by one side or the other which we deem not important:
18
(1) The fact that Rileys without the depletion sought by this suit have more than recovered the cost of the mine under the amount of depletion in which the government acquiesces.
19
(2) The exact time or place that title to the Riley product passed.
20
(3) The fact that the hauling charges and milling charges paid by the government on the Riley product were not exactly what it charged Rileys.
21
(4) The fact that a provisional settlement was made instead of just one final settlement.
22
(5) The fact that the government purchase program created a market for something that would not have been commercially marketable except for the program.
23
We do not set forth the circulars under which Rileys made their statement or offer in letter form (prepared by the government) which proposition was 'confirmed' by the government. The circulars made it clear that the government would 'receive' either crude ore or concentrates. 'Receiving,' however, is not conclusive on the question of what was sold.
24
As we read the basic documents of the transactions here involved where we have delivery of crude ore to the government we do not think the documents settle the question of whether Rileys sold crude ore or the tungsten content, that is, that which eventually became concentrates. Therefore, we believe, it was a question of fact under all of the circumstances whether the appellants sold crude ore or the ultimate product, concentrates. The trial court has found, as we understand the findings, that crude ore was sold. We cannot say this is clearly erroneous, although we think it was here within the range of the trial court's discretion to have found that what the government bought from Rileys was concentrates. Had the basic agreements expressly said, 'This is deemed a sale of crude ore,' we do not believe the other provisions or anything in the oral evidence received would have vitiated the statement. Likewise, had they said unmistakably that a sale of concentrates was intended we cannot say that the fact the difference between the net sales price and the gross sales price never came into the possession of the seller would preclude the seller from depleting the gross sales price.
25
No doubt here the tailings from the ore after the concentrates were removed were useless and a burden. But suppose they were valuable. To whom did they belong? We think it is inherent in the trial court's findings that these tailings belonged to the Metals Reserve if it wanted them, and that Rileys sold crude ore the value of which was to be determined by the ultimate results on mineral content.
26
The Cherokee Brick case, supra, holds the company's bricks (a finding of fact) to be the first 'commercial product' and, therefore, that the total sale price was subject to depletion. We think it is inherent in 26 U.S.C.A. 114 that a producer cannot carry his depletion beyond the stage of production where he sells his product. A second limitation is that he cannot retain his product, and go on with sucessive production steps beyond the point where a commercially marketable product has been obtained and still deplete his ultimate product. Here in Riley, had the trial court found that the producer sold concentrates the question of fact of Cherokee Brick would have been before the trial judge, i.e., had processing gone beyond the point where a commercial product had been obtained. In Cherokee Brick it was agreed that only a negligible amount of brick clay and tile clay is sold as such. We think it inherent in Cherokee Brick that if the brick company had made one of these negligible sales of clay it would have been limited to depleting what it sold. Likewise in the New Idria case, if the company had sold the ore per se before applying beneficiation processes, we believe this court would have limited the depletion to what was received from what was sold.
27
The judgments of the district court are affirmed.
1
'Gross price' and 'net price' are not used in any of the agreements or in the applicable statutes in this case
2
Out of the actual mineral content in each lot of ore there was always a percentage not recoverable. (This factor is not to be confused with the assay factor of percentage of mineral content that is involved in the first deduction from $30.00.) This agreement on percentage of recoverability stood whether the actual experience on recoverability ran above or below the original estimate
3
It should be noted that four lots of Riley ore were taken directly to the Getchell mill and promptly milled. This was roughly about 15% of the total. These deliveries were a variance from the usual pattern
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221 F.2d 160
W. J. EARHART, Appellantv.Alfred J. CALLAN, Jr., Trustee in Bankruptcy of the Estate of Felix Ivan Pugh, Bankrupt, Appellee.
No. 14365.
United States Court of Appeals, Ninth Circuit.
March 10, 1955.
Rehearing Denied April 14, 1955.
1
John E. Belcher, Harold J. Shea, Seattle, Wash., for appellant.
2
Joseph A. Barreca, Seattle, Wash., Neal Clark, Kent, Wash., for appellee.
3
Before HEALY and POPE, Circuit Judges, and HAMLIN, District Judge.
4
HAMLIN, District Judge.
5
This is an appeal from the order of the United States District Court for the Western District of Washington, Northern Division, which ratified, approved and confirmed the order of the referee in bankruptcy in the Matter of Felix Ivan Pugh, Bankrupt, which order directed the trustee in bankruptcy in said bankruptcy estate to take possession of some 54 tons of alfalfa hay and administer the same as an asset of the bankrupt estate.
6
On October 14, 1953, Felix Ivan Pugh filed his petition in bankruptcy and upon the same day was adjudged a bankrupt. At said time there was upon the farm occupied by Pugh and in his possession 54 tons of alfalfa hay. W. J. Earhart, the appellant, claimed to own the hay. Alfred J. Callan, trustee in bankruptcy in the matter of Felix Ivan Pugh, a Bankrupt, petitioned for and obtained from the referee an order to show cause directed to Earhart to show cause why the referee should not make an order that said trustee in bankruptcy have full and complete title to the 54 tons of hay. W. J. Earhart made a return to the order to show cause, claiming full and complete title to the hay, and a hearing was had before the referee, at which Earhart was present and represented by counsel.
7
The facts developed at the hearing were as follows: Felix Ivan Pugh had operated a farm near Kent, Washington, and he needed alfalfa hay to feed his cattle in the fall and winter of 1953. W. J. Earhart was the agent for and related to the owner of the property. In the year 1952 Earhart financed Pugh for the purchase of hay, and in 1953 Pugh, expecting that Earhart would finance his purchase of hay again, went to Sunnyside, Washington, during the summer of 1953 and bought the hay in question from Mr. Harry C. Walters; the price of the hay was $1,200, and Pugh testified that at that time he gave Walters a check for $1,200 and that he received a bill of sale from Walters for the hay. Pugh testified that before he bought the hay, he contacted a man named Strother and hired him to haul the hay to Pugh's farm for $8 a ton.
8
Shortly thereafter Pugh saw Earhart, told him that he had bought the hay, and asked Earhart for the money to cover the check that Pugh had given Walters. Earhart testified that he told Pugh that he should not have bought the hay, and that he, Earhart, was going to handle it differently. Earhart then wrote to a bank, sending $1,200 to the bank, and asked that the bank handle the matter of the payment for the hay. The bank, however, declined to do this, and Earhart then wrote to Walters, sending to Walters the sum of $1,200. In the meantime, Walters had sent Pugh's check to the bank and it had been returned to Walters marked "N.S.F." Walters accepted the check from Earhart and destroyed the check which he had previously received from Pugh. Pugh testified that he gave to Earhart the bill of sale that he had received from Walters. The hay was delivered to Pugh's farm in four loads. Pugh or his wife paid the hauling charges for delivering one load, they being later reimbursed for this by Earhart; and Earhart paid for delivery of the other loads.
9
Pugh testified that he talked to Earhart in July of 1953 and they then discussed the matter of the hay for the '53-'54 season. Pugh testified "The way I interpreted it, anyway, the deal would be like the year before, — that he would finance me on the hay." Question: "Didn't he say there would have to be a different way the hay was financed?" Answer: "The year before, the hay was just on a note, and he wanted $200 a month when I started feeding the hay, and the year before we figured it at $100 a month — when I started to feed the hay, I was to pay him $200 a month until the money was paid out plus interest." After the hay was received by Pugh, it was at all times kept in the barn upon Pugh's property and at the time of the bankruptcy had not yet been used.
10
A couple of days after Pugh filed his schedules in bankruptcy Earhart, having learned of this, went to see Pugh; and at Earhart's insistence, Pugh signed a statement which read: "I wish it to be known that the 54 tons of alfalfa hay * * * was bought and paid for by W. J. Earhart, is fully his property and I have no claim against it." Pugh testified that Earhart told him at that time that he (Earhart) would not leave until Pugh signed this statement and that Earhart shook his finger at him and said, "Either sign this, or * * *" Pugh further testified that when he signed the statement, he "didn't care who had title to it", and when asked at the hearing if he then cared very much, he answered, "No, that is very true." And when asked, "And you felt no harm could be done, is that the reason you signed it?" Pugh answered, "Yes, sir." Pugh further testified before the referee that when he bought the hay he intended it to be his hay, and that he thought Earhart was financing him.
11
On the contrary, Earhart testified that when Pugh told him that he, Pugh, had bought the hay, that Earhart said to him, "You should not have bought the hay. I am going to handle it differently. I am buying that hay." Earhart further testified that he then wrote to the bank, stating —
12
"I told Ivan Pugh that I would see he could lay in his alfalfa hay for the winter, and consequently when he was over at Sunnyside he bought 60 tons of hay at $20, trucking extra. He wrote a check for $1200, thinking I would cover it as soon as he got here.
13
"I do not intend to handle it that way. I will buy the hay and store it at the farm, and will sell it to Ivan as he uses it by the month.
14
"Here is my check for $1200. Will you please handle it so that I will be the owner of the hay and I will pay you for the trouble you are put to."
15
The bank returned the check of $1200 to Earhart, stating:
16
"We suggest that you make direct payment to the people from whom you purchased the alfalfa hay and get a bill of sale.
17
"We have no way of protecting your interest in this matter."
18
Thereafter, Earhart sent the $1,200 direct to Walters as indicated above.
19
At no time did Earhart receive from Walters a bill of sale for the hay.
20
The bankrupt did not list the hay as an asset in his bankruptcy schedule, but did list in his schedules as a debt the amount that Earhart had paid to Walters for the hay and the amount that Earhart had expended for hauling costs.
21
The referee in bankruptcy made the following findings of fact, among others: (1) That the bankrupt purchased the hay from Walters and paid for it by tendering a check for $1,200 to Walters; (2) That it was the intent of both parties that title should pass to Pugh; (3) That prior to said purchase Earhart and Pugh both agreed that Earhart would finance the transaction; (4) That later Earhart disapproved of the transaction and sent his check to Walters; and (5) That Walters accepted Earhart's check in payment for Pugh's debt on the hay.
22
The referee made the following conclusions of law: (1) That at the time of the filing of the petition in bankruptcy Pugh had full title and full possession of the hay; (2) That the oral agreement between Walters, Pugh, and Earhart as to the payment of the debt due on the unpaid check by Pugh constituted a novation, and that Pugh was to pay Earhart on an installment basis the full amount advanced by Earhart to Walters; (3) That the arrangement between Earhart and Pugh constituted an oral security transaction, and said security transaction was not filed or recorded with the auditor of King County, Washington, as required by law; and (4) That the trustee was vested with all rights of the bankrupt in and to said hay; and ordered further that any lien of Earhart in and to the hay was null and void as to the trustee in bankruptcy.
23
The District Court in affirming the order of the referee, after hearing both sides on the petition for review of the referee's order, made an order in which the following appeared:
24
"It appearing to the Court that the findings of fact are supported by the full record and transcript of proceedings and testimony, and that the conclusions of law are not shown to be in any way erroneous, now therefore it is ordered * * * that the order heretofore entered by the * * * Referee in Bankruptcy is in all respects ratified, approved, and confirmed * * *."
25
and ordered:
26
"* * * that petitioners have no right, title or interest in said hay * * *."
27
Earhart contended in the District Court and in this Court, First, that he was the owner of the hay in question and that Pugh had no interest therein; and Second, that the evidence as a whole shows a bailment of the hay and that Earhart orally agreed with the bankrupt that he would sell the hay to him on a monthly basis.
28
The record shows that conflicting evidence was presented to the referee on the question of Pugh's interest in the hay. There is substantial evidence to support the finding of the referee that Pugh purchased the hay from Walters with the intent to take title to the hay.
29
A bailment is generally regarded as the relationship arising when personal property is delivered to another for some particular purpose upon an express or implied contract to re-deliver the goods when the purpose had been fulfilled or to otherwise deal with the goods according to the bailor's directions. 8 C.J.S., Bailments, §§ 1, 3, pages 222, 229; Collier on Bankruptcy, 14th ed. by Moore and Oglebay, § 60.44, p. 948, § 70.18, p. 1045. It is an indelible incident to a bailment that the bailor may require restoration of the thing bailed. Here, even under Earhart's theory, Pugh had the right to feed the hay to his cattle and to pay Earhart therefor upon a monthly basis.
30
On the other hand, the distinguishing feature of a conditional sale is an obligation to buy and to pay the agreed price. Collier on Bankruptcy, supra, §§ 60.43, 70.19, 70.57. Kemp-Booth Co. v. Calvin, 9 Cir., 1936, 84 F.2d 377. The Washington decisions adhere to this distinction when called upon to classify the transaction either as a conditional sale or as something else. Eisenberg v. Nichols, 22 Wash. 70, 60 P. 124; Eilers Music House v. Fairbanks, 80 Wash. 379, 141 P. 885; Inland Finance Co. v. Inland Motor Car Co., 125 Wash. 301, 216 P. 14; Ivy v. Commercial Credit Co., 173 Wash. 360, 23 P.2d 19; In re Renfro-Wadenstein, D.C.Wash., 47 F.2d 238, modified, 9 Cir., 53 F.2d 834; and see 175 A.L.R. 1366, 1382.
31
However, a finding of a conditional sale or a chattel mortgage can not help appellant. It is an undisputed fact that no instrument pertaining to the transaction in question was recorded, as is required by Washington statutes for the protection of the creditor's lien.1 Nor is it disputed that if the transaction be a conditional sale, or a chattel mortgage, the interest of the vendor, or creditor, is void as to subsequent creditors, and hence as to the trustee in bankruptcy. Collier on Bankruptcy, supra, §§ 70.49, 70.57.
32
The testimony before the referee produced substantial evidence to support a finding that Pugh had obligated himself to pay for the hay. Certainly there was no evidence to support a finding that Pugh took the hay upon any kind of a contract to deal with it according to Earhart's directions or to redeliver it to him. Rather, the evidence showed that Pugh was to have sole control over the disposition of the hay, and promised to pay $200 a month on the purchase price.
33
The scope of review which the District Court and this court affords to orders of a referee in bankruptcy is governed by the General Orders in Bankruptcy. Orders 47, 36, 37, 11 U.S.C.A. following section 53. These Orders, as implemented by Rules 52(a) and 53(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., require the District Court to accept the referee's findings unless clearly erroneous. Humphrey v. Hart, 9 Cir., 1946, 157 F.2d 844; In re Skrentny, 7 Cir., 1952, 199 F.2d 488, 492. Similarly, this court may not set aside the findings of the referee unless they are clearly erroneous. Diamond Laundry Corp. v. California Employment Stabilization Comm., 9 Cir., 1947, 162 F.2d 399, 401; Smith v. Federal Land Bank of Berkeley, 9 Cir., 1945, 150 F.2d 318, certiorari denied 326 U.S. 764, 66 S.Ct. 145, 90 L.Ed. 460; Link v. Boeshans, 8 Cir., 1945, 151 F.2d 322
34
The findings of the referee here are not clearly erroneous and must be sustained. These findings and the evidence as a whole cannot serve as the basis for a holding that the transaction was a bailment. They amply support the conclusion that Earhart's interest in the hay was, at most, a lien pursuant to a conditional sale or a chattel mortgage. It follows that the order below must be upheld.
35
Appellant makes some contention that even where the District Court hears an appeal from an order of a referee, he is required by Rule 52(a) of the Federal Rules of Civil Procedure to make independent findings of fact, without reference to those of the referee. While some findings must be found by the District Court, this court has said in reviewing a District Court's approval of the report of a referee in bankruptcy:
36
"The record on appeal showed that the court below had not found the facts, as of course it should have done, either by adopting the master's findings or by making findings of its own." Humphrey v. Hart, supra, 157 F.2d at pages 845-846; (emphasis supplied).
37
The applicable rules and decisions clearly do not require the District Court to enter its own findings of fact if the findings of the referee are adopted or approved by the lower court. Therefore, appellant's contention in this regard is without merit.
38
Appellant has questioned the jurisdiction of the referee in bankruptcy to adjudicate the conflicting claims of the trustee and the appellant as to the ownership of this hay in a summary proceeding. It is well settled that the referee has such jurisdiction where the subject of the controversy is in the possession of the bankrupt at the time when the petition in bankruptcy is filed. Magnolia Petroleum Co. v. Thompson, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876; Harris v. Avery Brundage Co., 305 U.S. 160, 59 S.Ct. 131, 83 L.Ed. 100; Heath v. Helmick, 9 Cir., 1949, 173 F.2d 157; and see England v. Nyhan, 9 Cir., 1944, 141 F.2d 311.
39
We find no reason to disturb the order of the referee as approved by the court below, and the order of the District Court is hereby affirmed.
Notes:
1
"Conditional sales of personal property, or leases thereof containing a conditional right to purchase, when the property is placed in the possession of the vendee, shall be absolute as to all bona fide purchasers, pledgees, mortgagees, encumbrancers, and subsequent creditors, whether or not such creditors have or claim a lien upon the property, unless within ten days after the taking possession by the vendee, a memorandum of the sale, stating its terms and conditions, including the rate of interest and the purchase price exclusive of interest, insurance, and all other charges, and signed by the vendor and vendee, is filed in the auditor's office of the county, wherein, at the date of the vendee's taking possession of the property, the vendee resides * * *." Rev.Code Wash. 63.12.010; (emphasis supplied.)
"A chattel mortgage is void as against all existing and subsequent creditors of the mortgagor, whether or not they have or claim a lien upon the property, and against all subsequent purchasers, pledgees, and mortgagees, and encumbrancers for value and in good faith, unless it is accompanied by the affidavit of the mortgagor that it is made in good faith, and without design to hinder, delay, or defraud creditors, and unless it is acknowledged and filed, within ten days from the time of its execution, in the office of the auditor of the county in which the mortgaged property is situated * * *." Rev.Code Wash. 61.04.020; (emphasis supplied.)
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691 F.2d 464
34 UCC Rep.Serv. 1228
AMERICAN NATIONAL INSURANCE COMPANY, Plaintiff-Appellant,v.FIDELITY BANK, N. A., Defendant-Appellee.
No. 80-2058.
United States Court of Appeals,Tenth Circuit.
Oct. 15, 1982.
James E. Britton, Oklahoma City, Okl. (Hastie & Kirschner, Oklahoma City, Okl., with him on the briefs), for plaintiff-appellant.
B. J. Rothbaum, Jr., Oklahoma City, Okl. (James A. Kirk and Linn, Helms, Kirk & Burkett, Oklahoma City, Okl., with him on the brief), for defendant-appellee.
Before HOLLOWAY, BREITENSTEIN and LOGAN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
1
In this diversity case a Texas insurance company sued an Oklahoma bank for losses incurred through the defalcation of the insurance company's agent. The essence of the claim is that the bank acted improperly by accepting for deposit, in an account of a corporation controlled by the agent, checks bearing unauthorized endorsements. After trial without a jury, the court held that the bank acted in good faith and within reasonable commercial standards of its business and that negligence of the insurance company substantially contributed to the unauthorized endorsements. We affirm the judgment for the bank.
2
Appellant, American National Insurance Company, is a Texas corporation engaged in the insurance business. It acquired from Fidelity Bankers Life Insurance Company group insurance policies covering the Oklahoma Education Association, the University of Oklahoma and other entities. Fidelity Insurance had used Charles W. Hilliard to administer the insurance program. Hilliard controlled Group Insurance Services, Inc. (GIS).
3
When American National took over the group insurance, it entered into a handwritten "Memo of Understanding" with Hilliard and GIS, acting by Hilliard, for Hilliard's services "as an Insurance Agent/Broker" and for GIS's performance of "certain insurance service." Subsequently American National sent "Standard Group Insurance Management Agreement(s)" to Hilliard for his signature but they were not returned to American National. Hilliard was aware of their terms which included American National's right to make scheduled and unscheduled audits of GIS's books. During the relevant period, American National made no audit and did not compare the payments received with the premiums which should have been collected by GIS.
4
American National made no formal investigation of Hilliard or GIS; no financial records were required; no credit check was made; and no inquiry was made into Hilliard's former employment. American National knew that Hilliard was indebted to Fidelity Bankers, the former insurer. American National made a written agreement with Fidelity Bankers assigning to Fidelity Bankers the first $45,000 of commissions earned by Hilliard and GIS each month to pay an indebtedness of Hilliard to Fidelity Bankers. American National did not inquire into the nature or amount of the debt which was later estimated to exceed $1,000,000.
5
American National instructed Hilliard that premium checks were to be payable to American National and forwarded to a Galveston, Texas, bank for deposit. In August, 1974, the first month that premiums were due under the take-over, American National received on account of premiums a single GIS check drawn on defendant Fidelity Bank. In November, 1974, American National instructed Hilliard to deposit premium checks directly into an account at a Dallas, Texas bank. Hilliard had no authority to deposit, endorse, negotiate or otherwise transfer any checks except in accordance with American National's instructions.
6
Hilliard administered the policies from August, 1974, to November, 1975, when American National terminated his services. In that period over 13,000 premium checks totalling over $5,000,000 were deposited in two bank accounts maintained by Hilliard and GIS in Fidelity Bank. Approximately 280 of the checks deposited in account No. 14-1519, a general corporate account of GIS, bore the following rubber-stamped endorsement:
7
"AMERICAN NATIONAL LIFE INSURANCE CO.
BY: (Signature)
FOR DEPOSIT ONLY TO THE ACCOUNT OF
8
GROUP INSURANCE SERVICES, INC.
9
ACCOUNT NO. 14-1519."
10
The checks so endorsed totalled $593,713.15 and represented premiums for September, October, and November, 1975. The mentioned amount was not paid to, or received by, American National.
11
The pertinent provision of the endorsement agreement covering account No. 14-1519 reads:
12
"Endorsements for deposit may be evidenced merely by the name of the corporation being written or stamped on the instrument deposited, without designation of the party making the endorsement."
13
Fidelity Bank did not investigate the authority of Hilliard or GIS to endorse or deposit the checks. American National did not notify Fidelity Bank of its relationship with Hilliard and GIS. When this action was brought, no GIS funds remained in the possession of Fidelity Bank.
14
After the termination of Hilliard's and GIS's services, an American National investigation disclosed the GIS accounts and the failure to transmit premiums to American National. It then brought this action alleging liability under theories of breach of trust and assumpsit. In defense Fidelity Bank said: (1) Hilliard had apparent authority to endorse and deposit the checks; (2) the Bank, acting in a commercially reasonable manner, had no duty to investigate Hilliard's authority; and (3) the loss was caused by American National's failure to investigate, audit, and supervise.
15
On Fidelity Bank's motion, District Judge Thompson granted summary judgment on all claims relating to 13,308 checks deposited in the GIS accounts except those made or endorsed payable to American National. The amount of checks so endorsed is $592,717.15. See Memorandum Opinion, R. vol. 1, pp. 145-149. The issues remaining were presented to District Judge West in a non-jury trial. In a Memorandum Opinion, R. vol. III, pp. 554-566, Judge West made comprehensive findings of fact and held: (1) Fidelity Bank breached no trust; (2) Fidelity Bank was not liable in assumpsit; and (3) pertinent provisions of the Uniform Commercial Code protected Fidelity Bank from liability. The court entered judgment dismissing the action. On this appeal American National attacks all of the mentioned rulings of the district court.
16
The fact findings of the trial court are important to consideration of the legal issues raised by American National. The court found, R. vol. III, p. 554 et seq., and particularly at 564, that: (1) American National selected Hilliard and GIS without an investigation of either; (2) American National failed to investigate the suspicious circumstances surrounding Hilliard's indebtedness to his former principal, Fidelity Bankers; (3) the Management Agreement was never executed and its provisions were not enforced; (4) "Hilliard and GIS never for one month followed American National's instructions concerning the procedure for handling insurance premiums;" (5) American National never audited Hilliard's or GIS's books; (6) American National did not "exercise close supervision of its agent's activities;" and (7) after becoming aware of Hilliard's improprieties in August, 1975, "no action was taken to relieve Hilliard of his responsibilities for several months."
17
The court found, Id. at 565, "as between American National and Fidelity Bank, American National was the party that was in the best position to have prevented the loss and that it failed to exercise care which the ordinarily prudent person would have exercised under the circumstances." The court also said, Id. at 565, "negligence on the part of American National substantially contributed to the making of the unauthorized endorsements by Hilliard and GIS."
18
Under Oklahoma law, the authority of an agent may be established from appearances or by implication. In W. R. Grimshaw Co. v. First Nat. Bank & Tr. Co. of Tulsa, Okl., Okl., 563 P.2d 117, 121, the court said:
19
"Although no persons may have relied on any affirmative statement or conduct of the principal ... in concluding (that the agent) had the authority to endorse and deposit the checks, the operative conduct relied on could have been an omission on the part of (the principal) 'in the exercise of ordinary care and prudence' to be aware of his agent's ... activities."
20
See also Rosser-Moon Furniture Co. v. Oklahoma State Bank, 192 Okl. 169, 135 P.2d 336, 338. Nothing in the record indicates that Fidelity Bank knew or had reason to know that Hilliard was misappropriating American National funds. See Black v. O'Haver, 10 Cir., 567 F.2d 361, 373, a case arising out of Oklahoma.
21
As adopted in Oklahoma, the Uniform Commercial Code provides, 12A O.S. § 3-406, that:
22
"Any person who by his negligence substantially contributes to ... the making of an unauthorized signature is precluded from asserting the ... lack of authority against ... a drawee or other payor who pays the instrument in ... accordance with the reasonable commercial standards of the drawee's or payor's business."
23
American National's negligence spanned the entire course of its dealings with Hilliard and GIS.
24
Another Code provision, 12A O.S. § 3-419(3), provides that a depository or bank which has,
25
"in good faith and in accordance with reasonable commercial standards applicable to (its) business ... dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands."
26
When this suit was brought Fidelity Bank had no such proceeds in its hands.
27
American National argues that § 3-406 is no defense because Fidelity Bank failed to act in accordance with commercially reasonable standards. Expert evidence was adduced on the commercial standards. On conflicting testimony the trial court held that Fidelity Bank acted "in accordance with reasonable commercial standards." See R. vol. III, p. 565.
28
A trial court's findings are binding on appeal unless they are clearly erroneous. F.R.Civ.P. Rule 52(a). The test is "whether the appellate court, after reviewing all the evidence, is left 'with the definite and firm conviction that a mistake has been committed.' " Reyes v. Hoffman, 10 Cir., 580 F.2d 393, 394. We have no such conviction. Substantial evidence sustains the trial court. American National's argument that the court applied local, rather than national standards, does not support a reversal. While there was testimony directed to the Oklahoma City banking practice, there was also substantial testimony concerning the banking industry on a national scale. We do not understand the trial court to limit its findings to any local situation in view of its general statement concerning "reasonable commercial standards." R. vol. III, p. 565.
29
The trial court properly rejected American National's breach of trust argument. Fidelity Bank had no knowledge, either actual or constructive, that a trust existed. See R. vol. III, p. 562; and Western Assur. Co. v. Genesee Valley Trust Co., 2 Cir., 171 F.2d 664, 666. Plaintiff's suggestion that Fidelity Bank should have been aware of the possibility of a trust relation is insufficient to prove a trust.
30
American National asks the court of appeals to retry the case. Such action would violate the admonition contained in Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129, that: "appellate courts must constantly have in mind that their function is not to decide factual issues de novo."
31
Affirmed.
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691 F.2d 494
Dobsonv.Ingram
81-6313
UNITED STATES COURT OF APPEALS Fourth Circuit
9/28/82
1
E.D.N.C.
AFFIRMED
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/7023648/
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JUSTICE HARTMAN delivered the opinion of the court: Upon motion of the State’s Attorney, petitions for adjudication of wardship filed on behalf of three minors were dismissed. The public guardian, as the minors’ attorney and guardian ad litem, appeals that dismissal. The issues presented for review are whether (1) this appeal should be dismissed due to the public guardian’s failure to proceed under Illinois Supreme Court Rule 306(a)(l)(v) (107 Ill. 2d R. 306(a)(l)(v)); and (2) the circuit court erred in dismissing the petitions to adjudicate wardship on the ground that it did not have the authority to require the State to prosecute the petitions. On September 9, 1988, the Illinois Department of Children and Family Services (DCFS) registered three petitions for adjudication of wardship for James J., Shawn J., and Jasmine J.1 in the circuit court. Each petition was based on section 2 — 3(2)(a)(ii) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(2)(a)(ii)) (Act). At the initial hearing on September 28, 1988, in the circuit court, the office of the public guardian was appointed as attorney and guardian ad litem for the three minors. The public defender also was then appointed as attorney for the parents of the minors. The prosecutor, an assistant Cook County State’s Attorney, subsequently moved to dismiss the petitions, based upon his previous discussion of the case with the DCFS and Department of Child Protection personnel. According to the State’s Attorney, the conclusion reached by him and the case workers was that “this was apparently a one time incident in which the injury to one of the children was accidentally \sic\ as a result of a family dispute” and unlikely to recur. The public guardian, however, objected to the motion to dismiss, suggested it was in the best interest of the minors to proceed on the petition, and urged that the court had the authority to order the State’s Attorney to prosecute the petitions for adjudication of wardship. Pursuant to the State’s motion, the court dismissed the petitions without prejudice, reasoning that such a ruling was required under both the “separation of powers provision of the Constitution” and the Juvenile Court Act of 1987, which gave the State’s Attorney exclusive authority to prosecute these cases. The court concluded that while it was permitted to direct the State’s Attorney to file a petition, it was “without legal authority or precedent to require the State to proceed with the prosecution of this case.” From the dismissal without prejudice of the three petitions to adjudicate wardship, the minors, through the public guardian, appeal. I The public defender argues that this appeal should be dismissed, relying on Illinois Supreme Court Rule 306(a)(l)(v) (107 Ill. 2d R. 306(a)(l)(v)). Characterizing the dismissal without prejudice entered here as a nonfinal interlocutory order affecting the care and custody of minors, the public defender urges that the appeal be dismissed because the guardian failed to comply “•with the rules governing such appeals.” The order dismissing the petition without prejudice was entered as a matter of law because the circuit court believed that it lacked authority to require the State to proceed with the actions. The dismissal of the petition, in effect ordered as a matter of law, was final as to the minors. Any other conclusion would preclude the minors from ever challenging that ruling by the court. The cause has been properly appealed pursuant to Rule 301 (107 Ill. 2d R. 301), made applicable to this case by Rule 660(b) (107 Ill. 2d R. 660(b)). II The public guardian contends the circuit court erred in asserting it had no power under the constitutional principle of separation of powers to order the State to prosecute the petition, relying on People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 441 N.E.2d 54 (Vazquez), and section 2 — 13(1) of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(1)). That section provides, in part: “Any adult person, any agency or association by its representative may file, or the court on its own motion may direct the filing through the State’s Attorney of a petition in respect of a minor under this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 37, par. 802-13(1).) The public guardian concludes that the court erred in dismissing the petition without a hearing on the underlying facts in mistaken reliance upon an “exclusive” discretion to prosecute on the part of the State’s Attorney. At issue in Vazquez was whether a court’s order directing the State’s Attorney to file a petition under the predecessor to section 2— 13(1) (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1(1)) was void. The State challenged that section as an unconstitutional attempt to vest a court with power belonging exclusively to the executive branch, in violation of the principle of separation of powers. (Vazquez, 92 Ill. 2d at 149-50.) The supreme court noted that the aim of the statute is to “provide a number of avenues of access to the juvenile court for minors in need of its services,” and held that the authorization in then-section 4 — 1(1), permitting the juvenile court to direct the State to file a petition on behalf of a minor, was not an impermissible exercise of executive powers by the judicial branch. (Vazquez, 92 Ill. 2d at 150-51.) In reaching its conclusion, the Vazquez court acknowledged a distinction between the decision of whether to initiate criminal prosecution or of what offense to charge from proceeding under the Act. The State’s Attorney’s office, as part of the executive branch of government, has exclusive discretion in the initiation and management of criminal prosecutions. (People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 45, 445 N.E.2d 270.) The Vazquez court made the following observations pertinent to the issues here (Vazquez, 92 Ill. 2d at 150-51): “The filing of a petition in respect of a minor under the Juvenile Court Act is not a matter within the exclusive executive discretion of the State’s Attorney. Any responsible adult having knowledge of the circumstances may file a petition under section 4 — 1 alleging a minor to be delinquent, dependent, neglected, or a minor in need of supervision. In addition, the Act authorizes probation officers to investigate and evaluate an allegation that a minor is delinquent, and to see to the filing of a petition where this is indicated. (Ill. Rev. Stat. 1979, ch. 37, par. 706 — l(2)(a).) The aim of section 4 — 1 is to provide a number of avenues of access to the juvenile court for minors in need of its services. The petition is simply the means by which the juvenile court acquires official cognizance of the situation of the minor. (People v. Piccolo (1916), 275 Ill. 453, 455.) A person filing a petition is merely ‘an agent of the court in bringing the facts of the case to the attention of the court.’ In re Brown (1904), 117 Ill. App. 332, 336. The decision to file a petition, therefore, is not like the decision whether to initiate a criminal prosecution or what offense to charge, which are functions within the exclusive discretion of the State’s Attorney; and the cases to this effect, cited by the State, are inapposite. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531; People v. Ruiz (1979), 78 Ill. App. 3d 326; People v. Rotramel (1972), 5 Ill. App. 3d 196.) A petition under section 4 — 1 need not specify any proposed disposition of the minor; moreover, specific information is made for two or more petitions being filed in respect to the same minor at the same time. (Ill. Rev. Stat. 1979, ch. 37, pars. 704-1(3), 704-1(6).) We hold that section 4 — l’s authorization of the juvenile court to direct the filing of a petition in respect of a minor through the State’s Attorney does not authorize an impermissible exercise by the judicial branch of powers belonging exclusively to the executive, and does not violate article II, section 1, of the Illinois Constitution.” In the instant case, the State’s Attorney was amenable to filing the petitions, unlike Vazquez. The issue raised by the parties here is whether the State’s Attorney can be ordered to proceed when he has decided to dismiss the petition. We need not go so far, however, since we find that the court erred in refusing to first consider the motion on its merits on the supposition that it had no authority to do so. We hold that the circuit court is required to consider on its merits a motion to dismiss a petition for adjudication of wardship, whenever dismissal is deemed warranted by the State alone, because failure to do so overlooks the purposes behind the Act. The court’s primary function is to make certain that the best interests of a minor, his family, and society are addressed. (Ill. Rev. Stat. 1987, ch. 37, par. 801-2; In re C.T. (1983), 120 Ill. App. 3d 922, 925, 458 N.E.2d 1089.) When presented with a motion to dismiss by the State, those interests hardly can be served when, as here, the court grants the motion without inquiring as to the factual or legal bases for the motion. To hold that section 2 — 13(1) authorizes the court to direct the filing of a petition through the State’s Attorney, but has no role in determining the bases, or want thereof, for dismissing the petition makes access of a minor to the court system a mockery. The entire arsenal of statutorily authorized protections in furtherance of the minor’s best interests becomes meaningless if, pro forma, the circuit court is reduced to the role of a rubber stamp when, for whatever reason, sufficient or not, arbitrary or not, capricious or not, the minor’s access to the justice system revolves in and out of the courthouse doors without meaningful judicial review. Precluding a court from considering on its merits a motion to dismiss a petition for adjudication of wardship removes an important procedural safeguard in assuring that those interests were served. The court here had an obligation to consider the merits of the motion to dismiss and evaluate whether dismissal was in the best interests of the minors, their family, and society, and should not have deferred automatically to the conclusion of the State’s Attorney. Proceedings under the Act, being distinct from criminal prosecutions (Vazquez, 92 Ill. 2d at 150), require the circuit court to ensure that a dismissal of a petition to adjudicate wardship is in the best interests of the minors, their family, and society. This inquiry does not infringe on the executive authority of the State’s Attorney’s office to initiate and prosecute criminal matters. Nor is it intended to alter the State’s Attorney’s role as prosecutor. The inquiry, hearing the motion on its merits, simply enables a court to examine the State’s Attorney’s position and evaluate the State’s position against the interests of the child involved. Only in this way can the court fulfill its role as parens patriae and satisfy its duty to enable a minor to receive the care and guidance which the Act provides. See In re T.D. (1980), 81 Ill. App. 3d 369, 372, 401 N.E.2d 275. The court’s declination to consider the merits of the motions to dismiss in this case was error and requires that we reverse and remand for proceedings consistent with this opinion. Whether a court has the inherent power or statutory authority to direct the State to prosecute by denying such a motion is a matter which must await an appropriate case. Cf Sullivan v. Sullivan (1982), 110 Ill. App. 3d 714, 442 N.E.2d 1348. The contention by the public defender and the State that the circuit court’s dismissal of the petitions was based upon the prosecutor’s determination that the occurrence was isolated and unlikely to reoccur must be rejected. The record here indicates that the court never considered the facts underlying the motion to dismiss nor their merits. The court’s decision was based upon its belief that it had no constitutional authority to deny the motion, and ruled solely on that understanding. Reversed and remanded for further proceedings. BILANDIC, P.J., concurs. Jasmine J. also is referred to as “Yasmine” in the record.
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01-03-2023
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07-24-2022
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https://www.courtlistener.com/api/rest/v3/opinions/734908/
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106 F.3d 408
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.Victor SANDOVAL-SALGADO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 96-70031.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 21, 1997.*
Decided Jan. 24, 1997.
On Petition for Review of an Order of the Board of Immigration Appeals, INS No. Axd-fyz-att.
BIA
DISMISSED.
Before: O'SCANNLAIN, LEAVY, and KLEINFELD, Circuit Judges.
1
MEMORANDUM**
2
Victor Sandoval-Salgado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' decision affirming an immigration judge's denial of his request for relief from deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c).
3
In accord with our opinion in Duldulao v. INS, 90 F.3d 396 (9th Cir.1996), we dismiss Sandoval-Salgado's petition for lack of jurisdiction.
4
DISMISSED.
*
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
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01-03-2023
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04-17-2012
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https://www.courtlistener.com/api/rest/v3/opinions/2089845/
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908 N.E.2d 710 (2009)
GOULD
v.
MUSSELMAN.
No. 49A02-0804-CV-392.
Court of Appeals of Indiana.
June 4, 2009.
VAIDIK, J.
Disposition of case by unpublished memorandum decision. Affirmed.
RILEY, J., concurs.
DARDEN, J., concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1184163/
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9 Cal.App.2d 84 (1935)
THE PEOPLE, Respondent,
v.
ERSIE BRILEY, Appellant.
Crim. No. 2753.
California Court of Appeals. Second Appellate District, Division Two.
September 3, 1935.
Irons & Greene and Sidney Sampson for Appellant.
U.S. Webb, Attorney-General, and Frank Richards, Deputy Attorney-General, for Respondent.
Fricke, J., pro tem.
Appeal from the judgment and order denying a motion for a new trial.
Appellant was charged and convicted of having committed upon his two daughters, aged seventeen and nineteen years, the offense described in section 288a of the Penal Code.
Appellant contends that his conviction rests solely upon the testimony of the two daughters, who under the evidence were obviously accomplices, without the corroboration required by section 1111 of the Penal Code. The testimony of each of the daughters was that, in addition to the specific act constituting a violation of section 288a, the defendant had committed lewd and lustful acts upon various portions of the persons of each of his daughters, evidencing an abnormal sexual tendency toward them, particularly so since he was their father. The corroboration relied upon by the prosecution consists of a voluntary statement of the defendant, made in the sheriff's office, in which he conceded undue familiarity with his daughters and admitted all of the acts of which they accused him with the single exception of the specific act forming the gist of the offense prescribed by section 288a, which he denied. The defendant neither took the witness stand nor offered any evidence in his defense. *86
[1] The corroboration of an accomplice required by section 1111 need not be such as tends to establish the commission of the offense or to corroborate the precise facts testified to by the accomplice. (People v. Kempley, 205 Cal. 441 [271 P. 478]; People v. Tanner, 3 Cal.2d 279 [44 PaCal.2d 324]; People v. Nichols, 2 Cal.App.2d 99 [37 PaCal.2d 710]; People v. Conklin, 122 Cal.App. 83 [10 PaCal.2d 98]; People v. Barr, 134 Cal.App. 383 [25 PaCal.2d 503]; People v. Knowles, 75 Cal.App. 229 [242 P. 508]; People v. Casey, 79 Cal.App. 295 [249 P. 525].) All that the law requires is that, in addition to the testimony of the accomplice, there be some evidence which, though slight, tends to connect the defendant with the commission of the offense. [2] The testimony of the accomplice standing alone is sufficient to establish the commission of the crime charged (People v. Richardson, 161 Cal. 552, 563 [120 P. 20]; People v. Snyder, 74 Cal.App. 138 [239 P. 705]), and the extrajudicial declarations of the defendant are sufficient corroboration to sustain a conviction where the effect of such declarations is to tend to connect him with the commission of the crime charged. (People v. Richardson, 161 Cal. 552, 563 [120 P. 20]; People v. Tobin, 39 Cal.App. 76 [179 P. 443]; People v. Groenig, 57 Cal.App. 495 [207 P. 502]; People v. Fraser, 81 Cal.App. 281 [253 P. 340]; People v. Bonilla, 124 Cal.App. 212 [12 PaCal.2d 64].) [3] The defendant's own statements, while not amounting to a confession, were clearly such that they tended to connect the defendant with the offenses charged and this is all the corroboration which the law requires.
[4] Appellant claims error because of the giving of an instruction that the statement of the defendant, if the jury believed that the defendant had made the statement testified to, was sufficient corroboration of the testimony of the accomplices. This was a correct statement of a rule of law as applied to testimony which was not contradicted. [5] Error is also claimed because of the refusal of an instruction requested by the defense. That portion of the instruction that "charges of the nature involved in this case can easily be made and are difficult to prove" is not a statement of any rule of law and as a statement of a fact it had little application here for the defendant did not take the witness stand. [6] *87 The matter of commenting upon the facts is one which lies within the discretion of the trial court which may, but is not required by law, to comment upon the facts. The remainder of the refused instruction was fully covered in the instructions given.
The judgment is affirmed.
Stephens, P. J., and Crail, J., concurred.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/864108/
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Unable to extract the content from this file. Please try reading the original.
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01-03-2023
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04-27-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3079865/
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In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00432-CR
NO. 09-12-00433-CR
_________________
DANIEL RAY ANDREWS, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause Nos. B-080008-R and B-120377-R
________________________________________________________________________
MEMORANDUM OPINION
The trial court sentenced Daniel Ray Andrews on separate convictions for
possession of marijuana and injury to a child. Andrews filed a notice of appeal for both
cases. The trial court signed a certification in which the court certified that Cause No.
120377-R is a plea-bargain case and the defendant has no right of appeal, and that the
appellant has waived the right of appeal in both Cause Nos. B-08008-R and B-120377-R.
See Tex. R. App. P. 25.2(a)(2). The district clerk has provided the trial court’s
certification to the Court of Appeals. The Clerk of this Court notified the parties that the
1
Court would dismiss the appeals unless the appellant established grounds for continuing
the appeals. No response has been filed. Because the trial court’s certification shows the
defendant does not have the right of appeal, we dismiss the appeals. See Tex. R. App. P.
25.2(d).
APPEALS DISMISSED.
________________________________
DAVID GAULTNEY
Justice
Opinion Delivered October 24, 2012
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
2
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01-03-2023
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10-16-2015
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https://www.courtlistener.com/api/rest/v3/opinions/3779360/
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{¶ 1} Plaintiff-appellant, Ohio Department of Commerce, appeals from a judgment of the Montgomery County Common Pleas Court adopting a magistrate's decision regarding the amount of wages owed by defendant-appellee, Lee's Heating Cooling, Inc. ("Lee's"). The Commerce Department contends that the magistrate and trial court erred by determining that Lee's owed apprentice, rather than journeyman, wages to one of its workers.
{¶ 2} We conclude that the magistrate's decision is supported by the record and that the trial court did not abuse its discretion or otherwise err in adopting the decision of the magistrate. Accordingly, the judgment of the trial court is affirmed.
I {¶ 3} In 2001, the city of Dayton Water Department began a construction project known as the Dayton Office Building Project ("the Project"). Because the construction was undertaken for a public authority and had an overall cost exceeding certain statutory threshold levels set forth in R.C. Chapter 4115, the Project was subject to the Prevailing Wage Law set forth in R.C. Chapter 4115 et seq.
{¶ 4} Lee's was the heating and cooling system subcontractor on the Project. Lee's was aware that the Project was subject to Ohio's Prevailing Wage Law. Lee's employed Darnell McGraw on the Project; McGraw did sheet metal work.1 McGraw was a participant in the Dayton Step-Up Program, which is a "building maintenance/repair" apprenticeship program and is not trade-specific. It is designed to provide its participants an "introduction and exposure to a myriad of trade tasks." The Step-Up Program is a bona-fide apprenticeship program that is registered with the Ohio Apprenticeship Council. McGraw worked 41 and one-half hours on the Project, and was paid $7 per hour. This rate was set by the Step-Up Program.
{¶ 5} In May, 2001, the Commerce Department received a prevailing-wage complaint in which it was alleged that Lee's had not paid McGraw prevailing *Page 563
wages on the Project. Following an investigation, the Commerce Department determined that Lee's owed McGraw $1,496.40 in unpaid prevailing wages. The Commerce Department commenced this action in the Montgomery County Common Pleas Court, seeking payment of the wages as well as a statutory penalty.
{¶ 6} The matter was tried before a magistrate. The magistrate issued a decision finding that McGraw was an apprentice and that he should be paid wages as an apprentice, rather than as a journeyman. The magistrate also found that McGraw had been engaged in sheet metal work, and that he should have been paid the amount of $14.42 per hour.2
{¶ 7} The Commerce Department filed an objection to the magistrate's decision, in which it specifically objected to the characterization of McGraw as an apprentice. The Commerce Department alleged that McGraw should have been paid the journeyman wage because he "was not a registered sheet metal apprentice at the time he performed the work" on the Project. Lee's did not object to the magistrate's decision.
{¶ 8} The trial court overruled the Commerce Department's objection, adopted the decision of the magistrate, and entered judgment accordingly. From this judgment, the Commerce Department now appeals.3
II {¶ 9} The sole assignment of error presented by the Commerce Department is as follows:
{¶ 10} "The trial court erred to the prejudice of appellant Ohio Department of Commerce and abused its discretion when it ordered that appellee Lee's Heating and Cooling, Inc. owed only $615.86 in prevailing wages and statutory penalties with respect to appellee's employment of Darnell McGraw at the Dayton Office Building Project."
{¶ 11} The Commerce Department contends that the trial court erred in its award of wages. This assertion is premised upon the argument that the trial court abused its discretion when it determined that McGraw was an apprentice and that Lee's owed McGraw wages only as an apprentice, not as a journeyman.
{¶ 12} The prevailing wage rate statutes are set forth in R.C. Chapter 4115. R.C. 4115.05 provides: "The prevailing rate of wages to be paid for a legal day's work, as prescribed in section 4115.04 of the Revised Code, to laborers, workers, *Page 564
or mechanics upon public works shall not be less at any time during the life of a contract for the public work than the prevailing rate of wages then payable in the same trade or occupation in the locality where such public work is being performed, under collective bargaining agreements or understandings, between employers and bona fide organizations of labor in force at the date the contract for the public work, relating to the trade or occupation, was made, and collective bargaining agreements or understandings successor thereto."
{¶ 13} In other words, a person working on a public works construction must be paid union scale. "The prevailing wage statutes, R.C. 4115.03
through R.C. 4115.16, require contractors and subcontractors for public improvement projects to pay laborers and mechanics the so-called prevailing wage in the locality where the project is to be performed. `[T]he primary purpose of the prevailing wage law is to support the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private construction sector.'"J.A. Croson Co. v. J.A. Guy, Inc. (1998), 81 Ohio St.3d 346, 349,691 N.E.2d 655, quoting State ex rel. Evans v. Moore (1982),69 Ohio St.2d 88, 91, 23 O.O.3d 145, 431 N.E.2d 311.
{¶ 14} R.C. 4115.05 goes on to permit apprentices to work on public construction projects and to be paid the prevailing wage rate for apprentices. "Apprentices will be permitted to work only under a bona fide apprenticeship program if such program exists and is registered with the Ohio apprenticeship council." Id. An apprentice may be paid apprentice wages "only if there is in force at the time work is being performed under a contract for the public improvement project, in the locality of such project, a collective bargaining agreement or understanding between employers and bona fide organizations of labor which authorizes the employment of apprentices." Ohio Adm. Code 4101:9-4-16(B).
{¶ 15} The term "apprentice" is defined as "any employee who is enrolled or indentured per trade occupation as a member of a bona fide apprenticeship program, or a person in the first ninety days of probationary employment as an apprentice in such apprenticeship program who has been certified by the Ohio apprenticeship council to be eligible for probationary employment as an apprentice." Ohio Adm. Code4101:9-4-02(A). A "[b]ona fide apprenticeship program" is a "comprehensive training program registered with the Ohio apprenticeship council." Ohio Adm. Code 4101:9-4-02(C).
{¶ 16} There is no dispute in this record that the Step-Up Program is a bona fide apprenticeship program registered with the Ohio State Apprenticeship Council; nor is there any dispute that McGraw is a participant in that program. Also, as previously stated, the Commerce Department, on its own initiative, classified McGraw as performing sheet metal work on the project. Additionally, the evidence supports a finding that there was a prevailing wage rate for sheet *Page 565
metal workers on the Project indicating that the provisions of Ohio Adm. Code 4101:9-4-16(B) and R.C. 4115.05 are satisfied.
{¶ 17} Therefore, we conclude that the trial court did not err in determining that McGraw was entitled to wages for sheet metal work as an apprentice. Accordingly, the judgment of the trial court is affirmed.
III {¶ 18} The Commerce Department's sole assignment of error having been overruled, the judgment of the trial court is affirmed.
Judgment affirmed.
BROGAN and FREDERICK N. YOUNG, JJ., concur.
1 Although we have found no evidence in the record to support a finding that McGraw was engaged in sheet metal work while employed by Lee's, we note that the Commerce Department repeatedly informed the trial court that McGraw was engaged in sheet metal work. We conclude, then, that the Commerce Department implicitly stipulated that McGraw was performing sheet metal work.
2 The record shows that this amount is the prevailing wage rate for sheet metal apprentices.
3 Amicus briefs supporting the Commerce Department's position have been filed by the Ohio State Apprenticeship Council and the Ohio State Building and Construction Trades Council.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/247486/
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264 F.2d 460
Matter of the Bankruptcy of Vincent Halls DUNCAN and RobertaJeanne Duncan, a marital community, dba V. H.Duncan Co., Bankrupt.Orval D. MARKS, Appellant,v.J. E. PINKHAM, Trustee in Bankruptcy, Hon. O. M. Pitzen,Referee in Bankruptcy, Appellees.
No. 16090.
United States Court of Appeals Ninth Circuit.
March 6, 1959.
Frank L. Whitaker, Portland, Or., for appellant.
Frank L. Cathersal, Tacoma, Wash., for appellee (trustee).
Burmeister & Stouffer, Tacoma, Wash., for appellee (bankrupt).
Before STEPHENS, Chief Circuit Judge, and HAMLEY and JERTBERG, Circuit judges.
JERTBERG, Circuit Judge.
1
The referee in bankruptcy declared invalid as against the trustee in bankruptcy, appellee herein, chattel mortgage executed by bankrupt in favor of appellant herein. The district court confirmed the action of the referee, and the appellant, mortgagee herein, seeks reversal of the district court order.
2
The following facts are not in dispute. On September 17, 1955, appellant, a resident of Multnomah County, Oregon, owned a truck and trailer physically located in said county, the certificates of title to which were registered in said State, showing appellant as the registered and legal owner. Said equipment bore license plates issued by the State of Oregon.
3
On or about the above date, Carl Duncan and the bankrupt, Vincent H. Duncan, purchased said equipment from appellant at Portland, Oregon. Carl Duncan was a resident of the State of Oregon, and bankrupt was a resident of the State of Washington, residing in the City of Tacoma. As security for the unpaid balance of the purchase price, which was evidenced by joint promissory note of purchasers, the Duncans executed and delivered to appellant a chattel mortgage on said equipment, which mortgage was duly recorded in the County of Multnomah. The certificates of title were registered with the State of Oregon, showing appellant as legal owner and Duncans as registered owners. Shortly after the purchase the Duncans leased said equipment to Pacific Truck Rental Company, whose headquarters were in Portland, Oregon. The rental company, in turn, rented to others said equipment on a trip rental basis for use in interstate commerce between Oregon, California and Washington. On completion of trips the equipment would be returned to Oregon from whence another trip would originate. From the date of leasing to the rental company to the month of January 1956, Carl Duncan would generally operate the equipment under arrangements made by him with the renter of the equipment from the rental company. Carl Duncan's services proved to be unsatisfactory to Vincent H. Duncan and the rental company, and in January 1956, Carl Duncan endorsed the certificates of title to the equipment, and new registration certificates were issued by the State of Oregon, showing appellant as legal owner and bankrupt Vincent H. Duncan as registered owner. Vincent Duncan cancelled the lease arrangement with Pacific Truck Rental Company, and those parties entered into a new lease, which continued until September 30, 1956, when the new lease was cancelled by mutual consent. The pattern of use of equipment in interstate commerce under the new lease was substantially the same as under the former lease except persons other than Carl Duncan drove the equipment. After the cancellation of the new lease with the rental company and until the filing of the petition in bankruptcy in September 1957, the bankrupt trip-leased the equipment himself for interstate use in and out of Oregon to California, Washington and Canada in about the same pattern as before, except the bankrupt occasionally drove the equipment, and on completion of trips and when not in use the equipment was parked at the home of the bankrupt in Tacoma, Washington.
4
Certificates of registration of the equipment were never filed in the State of Washington, nor was the chattel mortgage ever filed or recorded there.
5
After the adjudication in bankruptcy the trustee, appellee, took possession of the equipment, which was then located in Tacoma, Washington. The appellant filed a petition before the referee in bankruptcy in reclamation to recover the equipment. The referee denied the petition, holding that the lien of the chattel mortgage was ineffective as to the trustee and that title to the equipment was vested in the trustee free from said lien. On petition for review of said order to the district court, the district court confirmed the order of the referee.
6
There is no dispute on this appeal as to the original validity of the chattel mortgage. The parties concede the chattel mortgage was executed and recorded in conformity with the laws of the State of Oregon. The overwhelming weight of authority is that the validity of a chattel mortgage as a lien on personal property is governed by the law of the state where the property is located at the time the mortgage is executed and recorded. This principle of law prevails in the State of Washington. The last expression on this subject by the Supreme Court of Washington appears in the recent case of Isaacs v. Mack Motor Truck Corporation, 50 Wash.2d 325, 326, 311 P.2d 663, 665. In that case the purchaser of a truck located in Oregon executed a chattel mortgage in favor of the seller to secure the payment of the unpaid purchase price. The mortgage was executed and recorded in Oregon in accordance with the requirements of Oregon law. The mortgage did not contain an affidavit of good faith required by the laws of the State of Washington. Such affidavit was not required under the laws of the State of Oregon. The truck was later brought into the State of Washington, where it was attached by a creditor of the mortgagor for accounts rendered to the mortgagor in the State of Washington after the truck had been brought to that State. The trial court held the chattel mortgage invalid because of absence of the affidavit of good faith and lack of actual notice by the attaching creditor of the mortgage. The Supreme Court of Washington held the mortgage was valid in Oregon and was valid in Washington. On this point the court stated:
7
'We, of course, are here concerned with the validity of a chattel mortgage executed in a neighboring state, on property located there. The general rule is succinctly stated in 10 Am.Jur. 728, Chattel Mortgages, 19:
8
"As in the case of contracts generally, the validity of a chattel mortgage is determined by the law of the place where it was made if the property was located there at the time of its execution, while the law of the forum governs the remedy. Thus, a chattel mortgage valid where made is a valid and legal instrument in another state, even though it is not executed with the formalities or accompanied by the affidavit of good faith required by the statutes of the latter state. The law of place where an acknowledgment of a mortgage is taken has been held to control in determining its sufficiency.' See Mercantile Acceptance Co. v. Frank, 203 Cal. 483, 265 P. 190; also Annotation 57 A.L.R. 702.'
9
In order to properly consider the contentions of the parties, we will summarize certain provisions of the Revised Code of Washington which may bear on the solution of the problem presented.
10
Section 46.12.010 provides that it shall be unlawful for any person to operate any vehicle in the State under a certificate of license registration of the state without securing and having in full force and effect a certificate of ownership therefore. Section 46.12.020 provides that no vehicle license number plates or certificate of license registration shall be issued unless the applicant at the same time makes satisfactory application for a certificate of ownership. Section 46.12.030 provides that the application for certificate of ownership shall contain a full description of the vehicle, a statement of the nature and character of applicant's ownership, and the character of any and all encumbrances other than statutory liens upon the vehicle. Section 46.12.050 provides that the certificate of ownership shall contain the name and address of the registered owner and of the legal owner.
11
Section 46.16.010 provides that it shall be unlawful for a person to operate any vehicle along the public highways of the state without having a current vehicle license and display vehicle license number plates. This section exempts farm implements used exclusively to transport farm implements from one farm to another. Section 46.16.030 provides that the provision relative to the licensing of vehicles and the display of license number plates and license registration certificates shall not apply to any vehicles owned by non-residents of the State if the owner has complied with the law requiring the licensing of vehicles in the State of his residence. This section applies only to the extent that under the laws of the state of his residence exemptions are granted to vehicles licensed under the laws of Washington. Section 46.16.160 provides that any commercial vehicle bearing valid license plates of another State and not registered in Washington and which, under reciprocal relations with other States, would be required to obtain a motor vehicle license in Washington may in lieu of a certificate of ownership and license registration be issued a permit. This permit is valid for the conduct of interstate operations only.
12
Section 61.04.010 provides that mortgages may be made upon all kinds of personal property. Section 61.04.020 provides that a mortgage of personal property is void as against all creditors of the mortgagor both existing and subsequent and against all subsequent purchasers and mortgagees for value and in good faith unless it is accompanied by an affidavit of the mortgagor that it is made in good faith and without any design to hinder, delay or defraud creditors, and unless it is acknowledged and filed within ten days from the date of the execution thereof in the office of the county auditor of the county in which the mortgaged property is situated. The section further provides that any chattel mortgage executed as required, or a true copy thereof, certified to be a true copy by the auditor of the county where the same has been filed, may also be filed for record in the office of the auditor of another county of the State, or in the office of the secretary of state, or both, but the filing in the office of the secretary of state shall be of no effect until the mortgage shall have been filed with the county auditor.
13
Section 61.04.040 provides that if a mortgage is filed and indexed as provided by law it shall be held to be full and sufficient notice to all the world of the existence and the conditions thereof. Section 61.04.070 provides that a mortgage given to secure the sum of $300 or more must be filed and indexed as provided by law. Section 61.04.090 provides that when personal property described in the mortgage which has been filed in accordance with law has been thereafter removed from the county in which the mortgage is filed such property is, except between the parties and those having actual notice thereof, exempted from the operation thereof unless the mortgagee shall, prior to such removal or within 30 days after such removal, cause a copy of the mortgage, certified by the auditor of the county where filed, to be filed in the office of the county auditor of the county to which the property shall be or has been removed or unless the mortgagee shall, prior to such removal or within 30 days after such removal, cause a copy of the mortgage, certified by the auditor of the county where filed, to be filed in the office of the secretary of state according to the provisions of law, or the mortgage be recorded in the custom house, or the mortgagee within 30 days after such removal takes possession of the property.
14
Our review of the statutes above summarized convinces us that there is no statute of the State of Washington which requires or permits the re-recording of filing in Washington of a chattel mortgage on motor vehicles originally located and mortgaged in a sister State and later brought into Washington. Isaacs v. Mack Motor Truck Corporation, supra, confirms the absence of such requirement. In this regard the court stated (50 Wash.2d 326, 311 P.2d 666), 'There is no statute in Washington relating to personal property brought into this state from another jurisdiction.' The referee in bankruptcy and the district judge entertained a contrary view. In the memorandum opinion of the referee in bankruptcy the referee stated 'the said mortgage was never filed except in Multnomah County, Oregon.' Then follow the pertinent provisions of R.C.W. Section 61.04.090, after which the memorandum opinion continues,
15
'The question presented is whether, from the facts herein stated, the above statute has been violated so as to cause loss of his security to the mortgagee as against the Trustee in Bankruptcy. * * *
16
'The mortgagee could have complied with said statute by filing his mortgage with the Secretary of State and, having failed to do so, the title to the truck and trailer by operation of law is now vested in the Trustee in Bankruptcy.'
17
The plain language of Section 61.04.090 relates only to personal property originally mortgaged in one county of Washington and removed to another. This section is a re-recording or filing statute which applies to personal property of all kinds mortgaged in Washington whether or not required to be licensed under some other statute. The provisions of such section do not bear on the problem before us.
18
In the memorandum decision of the district court it is stated that the chattel mortgage in the instant case is ineffectual as to the trustee in bankruptcy for failure of appellant to comply with the filing requirements of R.C.W. 61.04.070. Such section relates to mortgages executed in the State of Washington on personal property located there. Even if the chattel mortgage in question had been filed or recorded under that section, such filing or recording would have been ineffectual to furnish constructive notice because the chattel mortgage failed to contain the affidavit of good faith required by Section 61.04.020. The provisions of this section likewise do not bear on the problem before us.
19
The recognition by the State of Washington of the validity of a chattel mortgage executed outside of the State of Washington is a rule of comity. A rule of comity may be overcome by some statute to the contrary of a state or by its public policy. Isaacs v. Mack Motor Truck Corporation,supra. As above noted, there is no statute in the State of Washington which is contrary to this rule of comity. However, the Supreme Court stated in the Isaacs case that the public policy of the State of Washington is contrary to this rule of comity as applied to mortgaged personal property which is 'removed' to the State of Washington. As expressed in the Isaacs case, this policy is as follows: 'Where personal property, subject to a valid chattel mortgage executed in another state, is removed to this state, the lien of the mortgagee will be superior to that of an attaching creditor of the mortgagor in this state, for goods or services rendered without notice of the chattel mortgage, only if the mortgaged property is removed without the knowledge or consent of the mortgagee and he, after learing of its whereabouts, complies with our filing laws or proceeds to assert his rights under the mortgage, without unreasonable delay.'
20
The threshold question, therefore, is: Was the mortgaged equipment 'removed' to the State of Washington within the meaning of its public policy? No decision of the Supreme Court of the State of Washington has been called to our attention construing the circumstances which would constitute 'removal' to Washington of a motor vehicle subject to a valid chattel mortgage executed in a sister State. The court in the Isaacs case did not pass on this question.
21
As we interpret the public policy of the State of Washington, as set forth in the Isaacs case, such policy requires if a motor vehicle subject to a valid chattel mortgage executed in a sister State is 'removed' to Washington without the knowledge or consent of the mortgagee, the mortgagee, after learning of its whereabouts, must proceed to assert his rights under the mortgage without unreasonable delay or with the same diligence comply with the requirements of Section 46.12.010, Section 46.12.030, and Section 46.16.010. In the latter circumstances, such public policy would probably require the mortgagee to secure from the mortgagor a new chattel mortgage complying with the requirements of Section 61.04.020, and then cause the same to be recorded as required by said section and Section 61.04.070.
22
Certainly not all motor vehicles driven into Washington have been 'removed' to that State. Not all motor vehicles from other States which are used in Washington have been 'removed' there. The licensing statutes of the State of Washington recognize that motor vehicles licensed in sister States are present in the State and are being used there. In the instant case, the bankrupt obtained a permit from the State of Washington for the use of the mortgaged equipment in Washington under Section 64.16.160. Many decisions from other jurisdictions which recognize the comity rule are to the effect that the mere use, even with the consent and knowledge of the mortgagee, in one State of a motor vehicle mortgaged in a sister State, does not constitute a 'removal' of such vehicle to the first State so as to subject the vehicle to the licensing requirements of the other State. Vervaris v. Egan, 226 Ill.App. 500; Applewhite Co. v. Etheridge, 210 N.C. 433, 187 S.E. 588; Bankers' Finance Corp. v. Locke & Massey Motor Co., 170 Tenn. 28, 91 S.W.2d 297; Flora v. Julesburg Motor Co., 69 Colo. 238, 239, 193 P. 545; 13 A.L.R. 2d 1312, at page 1335 et seq.
23
It is our opinion that in order to constitute a 'removal' of a mortgaged motor vehicle to the State of Washington there must be more than a mere change of location of the motor vehicle. There must be more than casual, temporary, intermittent or transitory presence of the motor vehicle in the State of Washington. There must be something more than the use in Washington contemplated under the permit issued pursuant to Section 46.16.160 in the conduct of interstate operations. 'Removal' has a connotation of permanency, a connotation of reestablishment.
24
In the instant case, the parties concede that prior to the claimed 'removal' of the mortgaged equipment the validity of the lien of the chattel mortgage would be determined under the laws of the State of Oregon where the equipment was situated at the time of the execution of the mortgage, and not by the laws of the State of Washington of which the bankrupt-- one of the mortgagors-- was a resident. Isaacs v. Mack Motor Truck Corporation, supra; In re Nuckols, D.C., 201 F. 437; In re Greene, D.Ct., 134 F. 137; 57 A.L.R. 702, 710; 13 A.L.R. 2d 1312 ff.
25
We have carefully examined the evidence before the referee in bankruptcy set forth in the transcript of record. Such evidence reveals that from the time of the execution and delivery of the chattel mortgage in Oregon up to the adjudication in bankruptcy the mortgaged equipment was used in interstate operations, with Portland, Oregon, as the point of origin and as the terminal point. In this respect we quote from the testimony of the bankrupt:
26
'Q. All right. Did you have any trip leases any place other than out of Portland? A. Well, no, Portland was a terminating point one way or the other.
27
'Q. For all the produce trucks? A. Yes.
28
'Q. And do you-- where did your truck run? A. Oh, Portland and Los Angeles, and to Seattle.'
29
The transcript reveals no evidence of purely intrastate operations only either in the State of Oregon or in the State of Washington. During all of this period operations in Washington were under the permit issued pursuant to Section 46.16.160. Bankrupt at all times maintained his home at Tacoma, Washington, but the evidence reveals that the equipment was simply parked-- not garaged-- in the street in front of his home at the end of trips and until it returned to Portland for the commencement of another interstate journey. Payments made by the bankrupt on the note secured by the chattel mortgage were drawn on a Tacoma bank, but there is no evidence in the record showing that the bankrupt's home was the office for the conduct of business relating to the use of the mortgaged equipment. From the record it appears that no headquarters, to use the expression, were maintained, the nature of the business being such as not to require headquarters. Arrangements for the trip leasing equipment apparently were made in Portland, Oregon, by personal solicitation of those who might be in need of equipment for interstate use.
30
Our review of the record in this case convinces us that the mortgaged equipment was not removed to Washington contrary to the public policy of that State so as to suspend the rule of comity which has been so long established and recognized by the Supreme Court of Washington.
31
It follows from what we have said that the order of the district court confirming the order of the referee in bankruptcy is clearly erroneous. The order of the district court is reversed.
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08-23-2011
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156 Ga. App. 274 (1980)
274 S.E.2d 604
BOSWORTH
v.
COONEY.
60536.
Court of Appeals of Georgia.
Argued September 16, 1980.
Decided October 20, 1980.
Rehearing Decided November 14, 1980.
*280 Stephen H. Steinberg, for appellant.
J. Patrick Claiborne, William J. Cooney, for appellee.
QUILLIAN, Presiding Judge.
The defendant Bosworth, doing business as the Gulf to Bay Title Company, appeals from a default judgment entered against him *275 by the trial court, and the denial of his motion to set aside the judgment. Held:
1. Plaintiff Cooney, executor of the estate of Donald S. Ford, filed this action against the defendant Bosworth, a resident of Florida. The complaint alleged that Bosworth was subject to the jurisdiction of the court under our Long Arm Statute, Code Ann. § 24-113.1 (Ga. L. 1966, p. 343; 1970, pp. 443, 444), as "he came to the city of Augusta, State of Georgia, on several occasions to conduct negotiations for the sale of property which was the subject of certain escrow instructions and that he signed said escrow instructions while in Augusta, Georgia, on such a business visit."
The return of service shows Bosworth was served in Clearwater, Florida, January 25, 1980. Bosworth, an attorney, failed to file an answer but on February 22, 1980 within the time to answer, filed a "Motion to Dismiss for Lack of Jurisdiction Over the Person and Subject Matter" as "Attorney Pro Se, appearing specially to contest the service of process and jurisdiction of the Court." Bosworth also filed a Memorandum of Law with 5 exhibits the first exhibit being an affidavit by himself, and the remaining 4 exhibits are correspondence between the purchaser of the land and himself, the seller and himself, the Gulf to Bay Title Co. and the purchaser, and Gulf to Bay Title Co. and the widow of Donald S. Ford.
His affidavit shows he was "part owner" of the Gulf to Bay Title Company, and a resident of Florida. He received a letter from the prospective purchaser, Mr. James S. Drahos, of Ohio, proposing to purchase Pritchard's Island, Beaufort, South Carolina, which was then thought to be owned by R. Eugene Holley of Augusta, Georgia, and Mrs. Helen T. Ford, the widow of Donald S. Ford. Before his death Donald S. Ford had told Bosworth he had transferred his title to his wife and that she and Holley each owned a one-half interest in the island. Bosworth stated that he took the contract to Mr. Holley presumably in Augusta, and to Helen Ford who rejected it. He asked Mr. Holley to write him a letter with acceptable conditions, which he forwarded to Mr. Drahos. He made the changes in the contract and met Mr. Holley in Valdosta where Mr. Holley signed the contract. Thereafter, he went to Augusta, Georgia to obtain Mr. Cooney's signature who had replaced Mrs. Ford. While in Cooney's office in Augusta, he signed the escrow contract for Gulf to Bay Title Company as the escrow agent. Drahos put up a check and promissory note totaling $50,000, but later defaulted on both.
A hearing was held on April 28, 1980 on defendant's motion to dismiss and the court denied the jurisdictional motion and entered default judgment because the defendant had not filed an answer to the complaint or moved to open the default.
*276 The Long Arm Statute authorizes courts of this state to exercise personal jurisdiction "over any nonresident ... as to a cause of action arising from any of the acts ... enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent he: (a) Transacts any business within this State ..." Code Ann. § 24-113.1, supra. "[J]urisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice ... [T]he trend of opinions is to construe long arm `transacting any business' statutes most liberally and to uphold the jurisdiction of the court of the plaintiff's residence in actions arising, either directly or indirectly, out of such transactions." Davis Metals v. Allen, 230 Ga. 623, 625-626 (198 SE2d 285); Accord: McGee v. International Life Ins. Co., 355 U.S. 220, 222 (78 SC 199, 2 LE2d 223). "In order to satisfy the constitutional requirement of procedural due process, it must be shown that the nonresident defendant has some `minimum contact' with the forum state so as to make that state's exercise of jurisdiction over the defendant reasonable." Timberland Equip. Ltd. v. Jones, 146 Ga. App. 589, 590 (246 SE2d 709); Accord: Kulko v. California Superior Court, 436 U.S. 84, 91 (98 SC 1690, 56 LE2d 132). "[T]here is no violation of due process or the underlying principles of traditional fairness and substantial justice when reasonable notice and opportunity to defend are present [as in the instant case]. Delta Equities v. Larwin &c. Investors, 133 Ga. App. 382, 384 (211 SE2d 9)." North Peachtree I-285 Properties v. Hicks, 136 Ga. App. 426, 429 (221 SE2d 607). "It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State." McGee v. International Life Ins. Co., 355 U.S. 220, 223, supra.
We find the defendant's trips from Florida to within this state to negotiate the contract of sale and escrow contract, and execution of the escrow contract in Augusta, which is the basis for this action, provide sufficient "minimum contact" within the meaning and intent of our Long Arm Statute. Porter v. Mid-State Homes, 133 Ga. App. 706 (1) (213 SE2d 10); North Peachtree I-285 Properties v. Hicks, 136 Ga. App. 426, 428, supra; Greenfield v. Portman, 136 Ga. App. 541, 544 (221 SE2d 704); Brooks Shoe Mfg. v. Byrd, 144 Ga. App. 431, 432-433 (241 SE2d 299); Bailey v. London Marina, 151 Ga. App. 73, 74 (258 SE2d 738). The trial court did not err in denying defendant's motion to dismiss for lack of jurisdiction over the defendant and the subject matter.
*277 2. The defendant alleges that the trial court erred adjudging him to be in default for failure to file an answer as "the document filed by the Defendant constituted an Answer, and the action was not in default at the time the Default Judgment was granted."
The action was filed January 16, 1980 in Richmond County, Georgia. The defendant was personally served on January 25, 1980, in Clearwater, Florida. On February 22, 1980, he filed a "Motion to Dismiss" for lack of jurisdiction over him and the subject matter, and a "Motion" for an order directing the plaintiff to produce a deed from Donald S. Ford to his wife. At that time he filed a "Memorandum in Support of Defendant's Motions to Dismiss," which included an affidavit by himself as to the facts of this case, and four additional letters regarding communications between the parties. The issue before this court is whether the Motions to Dismiss and Produce a deed, the Memorandum of Law in support of the Motions, and the defendant's affidavit and other letters constitute an "answer" within the meaning of the Georgia Civil Practice Act. We hold that they do not constitute an answer.
Our Code states that there shall be "a complaint and an answer," also a third-party complaint and answer, there may be a reply to counterclaim and an answer to a cross-claim, but "[n]o other pleading shall be allowed..." Code Ann. § 81A-107 (a) (CPA § 7 (a); Ga. L. 1966, pp. 609, 618; 1967, pp. 226, 230) In other words, these documents and these documents alone constitute the pleadings. "A motion is not a pleading, although certain of the rules relative to pleadings are made applicable to motions by Rule 7 (b) (2)." 2A Moore's Fed. Practice 1541, Motions, § 7.05.
"The purpose of service of process is to give adequate notice of a claim against a defendant and to compel him to appear and answer." Sheet Metal Workers Int. Assn. v. Carter, 241 Ga. 220, 221 (244 SE2d 860). Under Code Ann. § 81A-108 (b) (CPA § 8; Ga. L. 1966, pp. 609, 619, as amended through 1976, pp. 1047, 1048), it is required that "[a] party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies." (Emphasis supplied.) "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading." Code Ann. § 81A-108 (d), supra. (Emphasis supplied.) The CPA requires "every defense to a claim for relief in any pleading shall be asserted in the responsive pleading ... if one is required, except that certain specified defenses may be raised by motion." Hayes v. Superior Leasing Corp., 136 Ga. App. 98 (220 SE2d 86); see Code Ann. § 81A-108 (c) for affirmative defenses required to be plead. One of those required to be in the responsive pleading or by motion is lack of *278 jurisdiction over the person. Code Ann. § 81A-112 (b) (2) (CPA § 12; Ga. L. 1966, pp. 609, 622, as amended through 1972, pp. 689, 692, 693). Thus, the choice is by the pleader as to whether he desires to present this defense by responsive pleading or by motion, and if by motion it must be within the time for responding. Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 99, supra. Thus, the defendant was within his right in presenting his motion to dismiss for lack of jurisdiction over his person within the time permitted for answering.
Our appellate courts have repeatedly held that under the spirit and intent of the Civil Practice Act, we have substituted "notice pleading" for "issue pleading" and pleading requirements are liberally construed in favor of the pleader. Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561 (239 SE2d 217). "`Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.' Maty v. Grasselli Chemical Co., 303 U.S. 197, 200 (58 SC 507, 82 LE 745)." Roberts v. Farmer, 127 Ga. App. 237, 241 (193 SE2d 216). Thus, as we continually remind practitioners "there is no magic in the nomenclature given a pleading, but it is the substance of the pleadings that determines its nature ... `(I)n classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.'" Hayes v. Superior Leasing Corp., 136 Ga. App. 98 at 100, supra.
The issue is refined as to whether the motion and its attached Memorandum, affidavit, and exhibits, are the legal equivalent of an answer? In First Nat. Bank v. McClendon, 147 Ga. App. 722, 723 (250 SE2d 175), we held that an affirmative defense of accord and satisfaction could not be raised by affidavit in support of a motion for summary judgment which was required to be specifically plead by Code Ann. § 81A-108 (c), supra. This court did not directly address this issue in Hopkins v. Harris, 130 Ga. App. 489 (203 SE2d 762), in which the defendant failed to file an answer but did file a motion to dismiss for failure to state a claim, and three motions for summary judgment. The trial court overruled the defendant's motion to dismiss and granted a default judgment, without ruling on the summary judgment motions. A nunc pro tunc order was entered denying the motions for summary judgment after judgment had been rendered. This court affirmed, holding that the latter motions could not be considered as responses as they were not filed within the time required for filing an answer. Chief Judge Bell, specially concurred, noting that he would not find such "motions are responsive pleadings and [he] would dissent to any holding that they were." Id. at 491.
In Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561, *279 supra, the defendant filed a letter with the court, designating the name and number of the action, and set forth his defense of payment and enclosed cancelled checks made out to the plaintiff. We found this to be a sufficient answer because it was intended as an answer and specifically asserted the principal defense relied upon by the defendant. In another case, Whitby v. Maloy, 145 Ga. App. 785 (245 SE2d 5), one of the defendants failed to answer but did respond to plaintiff's interrogatories. Counsel contended that defendant's responses to the interrogatories were in substance an answer and were sufficient to raise an issue of proper venue. The trial court dismissed the action because of improper venue. This court reversed, holding that the defendant had not raised in any motion or responsive pleading a challenge to the jurisdiction of the court and the trial court erred in dismissing the action. See Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103, 104 (264 SE2d 571).
We shall apply the same test we used in Whitby, supra, to the allegedly responsive pleadings in the instant case. Assuming arguendo that the motion and its enclosures could be treated as pleadings, we have found no language in defendant's motion, affidavits, or exhibits, that could reasonably be construed as a general denial of the averments of the complaint as required for an answer by Code Ann. § 81A-108 (b), nor any specific denial of the principal allegations of the separate paragraphs of the complaint except as to jurisdiction. See Whitby v. Maloy, 145 Ga. App. 785, 787, supra. Any allegation as to lack of jurisdiction over the person has been decided adversely to the defendant in Division 1 above. There are no specific denials as to the allegations of plaintiff's complaint as to execution of the escrow agreement, that defendant was to receive $50,000 cash earnest money, to be retained as liquidated damages in the event of default, and that defendant accepted from the purchaser a $10,000 check and $40,000 note contrary to his agreement, and plaintiff was thereby damaged.
As there was no general denial, and no specific denial as to the principal allegations of the complaint, such allegations stand admitted. There was no answer within the meaning of the Code, and the trial court did not err in entering default judgment. See B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131 (2) (230 SE2d 331).
3. The remaining enumerations of error either were not raised in the court below, are mooted by the above holding, or are without merit.
Judgment affirmed. Shulman and Carley, JJ., concur.
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10-30-2013
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-50667
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONCEPCION LOPEZ-MEJIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-716-1
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Concepcion Lopez-Mejia appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Lopez-Mejia contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b) define separate offenses. He argues that the prior
conviction that resulted in his increased sentence is an element
of a separate offense under 8 U.S.C. § 1326(b) that should have
been alleged in his indictment. Lopez-Mejia maintains that he
*
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. 03-50667
-2-
pleaded guilty to an indictment which charged only simple reentry
under 8 U.S.C. § 1326(a). He argues that his sentence exceeds
the maximum term of imprisonment and supervised release which may
be imposed for that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Lopez-Mejia acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
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04-25-2010
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44 N.Y.2d 897 (1978)
In the Matter of the Arbitration between Allstate Insurance Company, Respondent, and Ruth Frank et al., Appellants.
Court of Appeals of the State of New York.
Argued May 2, 1978.
Decided June 6, 1978.
Edward Wooster and Gerald P. Halpern for appellants.
Philip H. Weinberg, Benjamin Purvin and John F. Morrison for respondent.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.
Order reversed, with costs, and the order of Supreme Court, *899 Nassau County, denying stay of arbitration reinstated (see Allstate Ins. Co. v Gross, 27 N.Y.2d 263, 269-270).
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01-03-2023
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10-30-2013
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Ospina-Cherner v Cherner (2019 NY Slip Op 09276)
Ospina-Cherner v Cherner
2019 NY Slip Op 09276
Decided on December 24, 2019
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 24, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
COLLEEN D. DUFFY
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2016-01945
(Index No. 2454/13)
[*1]Ana Ospina-Cherner, respondent,
vDaniel Cherner, appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY (Brian J. Isaac of counsel), for appellant.
Arnold S. Kronick, White Plains, NY, for respondent.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Westchester County (John P. Colangelo, J.), entered January 21, 2016. The judgment of divorce, upon a decision of the same court (Paul I. Marx, J.), dated November 13, 2015, made after a nonjury trial, inter alia, awarded the plaintiff a distributive award of $25,000 as and for her interest in the defendant's Master of Business Administration degree and equitably distributed three properties owned by the parties.
ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff $25,000 as and for her interest in the defendant's Master of Business Administration degree; as so modified, the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.
The parties were married in August 2000 and have two children together. During the course of the marriage, both parties earned master's degrees, and they acquired certain property in New Rochelle. In addition, during the course of the marriage, the plaintiff acquired certain property in the Bronx with her stepfather, and in Cali, Colombia, with her mother. The Bronx property was used to generate rental income, and ultimately was sold in June 2012.
The plaintiff commenced this action for a divorce and ancillary relief in May 2013. A nonjury trial was held on the issues of equitable distribution. The Supreme Court issued a decision after trial, dated November 13, 2015, which, inter alia, determined that: the parties would be required to sell the New Rochelle property and equally share in the net profits or losses; the defendant was entitled to one-half of the plaintiff's one-half share of the proceeds from the sale of the Bronx property; the plaintiff would be awarded the Colombia property; the parties were not entitled to any equitable distribution of the other's retirement or pension accounts; the plaintiff was entitled to $25,000 as and for her interest in the defendant's Master of Business Administration (hereinafter MBA) degree; and the parties were not entitled to an award of counsel fees. Thereafter, the court entered a judgment of divorce on January 21, 2016, which, inter alia, incorporated the November 13, 2015, decision. The defendant appeals.
"The Domestic Relations Law recognizes that the marriage relationship is an [*2]economic partnership. As such, during the life of a marriage spouses share in both its profits and losses. When the marriage comes to an end, courts are required to equitably distribute not only the assets remaining from the marriage, but also the liabilities" (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420). The trial court has broad discretion in making an equitable distribution of marital property (see id. at 420). "However, during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end" (id. at 420-421; see Westreich v Westreich, 169 AD3d 972, 976).
In light of these principles, and the defendant's failure to prove that the plaintiff engaged in wasteful dissipation of marital assets (see Epstein v Messner, 73 AD3d 843, 846), we find no merit to the defendant's contentions that he is entitled to certain credits for money that the plaintiff allegedly spent on a certain rental apartment, for profits allegedly earned by the plaintiff for a daycare business that she operated during the course of the marriage, or for rent allegedly collected on the property she owned in the Bronx with her stepfather.
Contrary to the defendant's contention, the Supreme Court did not err in determining his distributive award of the proceeds of the sale of the Bronx property. The court considered the plaintiff's conveyance of a portion of her interest in the property to her mother, before the commencement of this action for no consideration, and accounted for the improper transfer in determining the defendant's equitable share (see Shah v Shah, 100 AD3d 734, 734-735).
Nor did the Supreme Court err in declining to award the defendant a share in the property located in Cali, Colombia. The parties' conflicting testimony as to whether the defendant was repaid the money advanced to the plaintiff and her mother for the purchase of the property presented a question of credibility, which the court resolved in the plaintiff's favor. A trial court's credibility determinations are afforded great weight on appeal (see Halley-Boyce v Boyce, 108 AD3d 503, 505; Alper v Alper, 77 AD3d 694, 695). Moreover, the defendant failed to establish by competent evidence the monetary value of the alleged appreciation of the property (see Halley-Boyce v Boyce, 108 AD3d at 505; Morales v Inzerra, 98 AD3d 484).
Contrary to the defendant's contention, the Supreme Court did not err in directing that the New Rochelle property be sold and the net profits or losses be split between the parties. The defendant failed to submit any credible evidence supporting his contention that he should be awarded 100% of the profits, if any, from the sale of the property.
While "pension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrath v McGrath, 261 AD2d 369, 370; see Majauskas v Majauskas, 61 NY2d 481), we agree with the Supreme Court's determination that each party would retain her or his own pension and retirement funds. In making this determination, the court, which found both parties generally not credible, noted that the analysis of the defendant's retirement accounts was difficult given the number of accounts and the frequency with which they were added to and depleted, and it declined to accept his representations of the values, or lack thereof, of such accounts. We give deference to the court's credibility determinations and decline to disturb its determination on this issue.
However, we agree with the defendant that the Supreme Court should not have [*3]awarded the plaintiff $25,000 as and for her interest in the defendant's MBA degree. At the time that this action was commenced, an academic degree earned during a marriage constituted marital property subject to equitable distribution (see O'Brien v O'Brien, 66 NY2d 576, 588; cf. Domestic Relations Law § 236[B][5][d][7]). The value of a degree is measured by the present value of the enhanced earning capacity which it affords the holder (see O'Brien v O'Brien, 66 NY2d at 588; McGowan v McGowan, 142 AD2d 355). The nontitled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the nontitled spouse made a substantial contribution to the acquisition of the degree (see Lynch v Lynch, 168 AD3d 700, 703-704; Shkreli v Shkreli, 142 AD3d 546, 548). Here, the Supreme Court awarded the plaintiff $25,000, not based on the value of the defendant's enhanced earning capacity, but rather on its determination of the cost of the acquisition of the MBA degree. The utilization of marital funds for the acquisition of the defendant's MBA degree was a choice made by the parties during the course of the marriage that should not be second-guessed once the marriage has ended (see generally Mahoney-Buntzman v Buntzman, 12 NY3d at 421). Furthermore, the plaintiff failed to establish the actual value of the defendant's enhanced earning capacity (see Shkreli v Shkreli, 142 AD3d at 548), and the court declined to award the defendant any distribution of the plaintiff's master's degree, which was also earned during the marriage. Accordingly, we modify the judgment by deleting the provision awarding the plaintiff $25,000 as and for her interest in the defendant's MBA degree.
The defendant's contentions concerning child support and reimbursement for certain improvements he made on the New Rochelle property, raised for the first time on appeal, are not properly before this Court. The defendant's remaining contentions are without merit.
MASTRO, J.P., DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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01-03-2023
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12-24-2019
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890 N.E.2d 1282 (2004)
349 Ill. App. 3d 1034
CHATHAM FOOT SPECIALISTS, P.C.
v.
HEALTH CARE SERVICE CORP.
No. 1-03-3425.
Appellate Court of Illinois, First District.
June 30, 2004.
Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2042922/
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890 N.E.2d 116 (2008)
MUNICIPAL TAX LIENS, INC.
v.
ALEXANDER.
No. 18A02-0804-CV-341.
Court of Appeals of Indiana.
July 8, 2008.
BROWN, J.
Disposition of case by unpublished memorandum decision. Reversed and Remanded.
NAJAM, J. Concurs.
DARDEN, J. Concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2042943/
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890 N.E.2d 1283 (2004)
349 Ill. App.3d 1037
PEOPLE
v.
LESTER.
No. 1-01-0088.
Appellate Court of Illinois, First District.
June 22, 2004.
Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/409721/
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691 F.2d 468
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff-Appellee,v.The MEDICAL PROTECTIVE COMPANY, Defendant-Appellant.
No. 80-2340.
United States Court of Appeals,Tenth Circuit.
Oct. 18, 1982.
Richard T. Foster, Wichita, Kan. (William Tinker, Wichita, Kan., on the brief), of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for defendant-appellant.
H. W. Fanning, Wichita, Kan. (Harker E. Russell, Wichita, Kan., with him on the brief), of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., for plaintiff-appellee.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
1
The appeal in this diversity case arises out of a dispute between two insurance companies over which has to pay portions of a medical malpractice settlement against a professional corporation and a doctor it employed. St. Paul Fire & Marine Insurance Company (St. Paul), which had written excess liability policies, paid $300,000 of the $400,000 settlement, and brought suit against The Medical Protective Company (Medical Protective) to recover $200,000 of the amount paid. The trial court ruled in favor of St. Paul, construing the insurance contracts to require $300,000 to be paid by Medical Protective before any amount was payable from the excess policies.
2
During the time period at issue, Women's Clinic, P.A., a professional corporation, employed three doctors: Ronald D. Linhardt, J. Gilleran Kendrick, and Charles P. McCoy. Although the corporation and all three doctors were sued in the malpractice action, the claim was based upon services rendered by Dr. Linhardt, and the settlement judgment was entered only against Dr. Linhardt and the professional corporation. Five insurance policies were potentially applicable to satisfy the malpractice claim. Medical Protective wrote three base policies with limits of $100,000-one each on Dr. Linhardt, Dr. Kendrick and Dr. McCoy. Although none of the base policies listed any of the other doctors, each declared by endorsement that "(t)his policy extends to and covers Kendrick, Nyberg, and McCoy, P.A. (now, by change of name, Women's Clinic, P.A.) in any claim hereunder." St. Paul wrote two excess policies-one each on Dr. Kendrick and Dr. McCoy. Each excess policy listed the professional corporation as an additional insured.
3
Medical Protective argues that its liability for the $400,000 settlement is limited to the $100,000 payable under the Linhardt policy. St. Paul contends that the Kendrick and McCoy policies must be exhausted before resort to the excess policies, and therefore, that Medical Protective is liable for $300,000 of the settlement. St. Paul relies on a section contained in its policies which declares that St. Paul's liability
4
"shall be only for the ultimate net loss in excess of the 'underlying limits' defined as the greater of:
5
(1) an amount equal to the limit(s) of liability indicated beside underlying policy(ies) listed or insurance described in Schedule A hereof, plus the applicable limits of any other underlying insurance collectible by the Insured."
6
St. Paul prevailed below because the trial court determined that Medical Protective's policies on Kendrick and McCoy constituted "other underlying insurance collectible by the Insured." Because we agree with that determination, we affirm.
7
Medical Protective's policies state, "This policy extends to and covers (the professional corporation) in any claim hereunder." The district court construed this language to mean that the professional corporation was insured under the Medical Protective policies on Drs. Kendrick and McCoy, and therefore that each policy constituted "other underlying insurance collectible by the Insured."
8
Medical Protective asserts that the policies were only intended to cover the professional corporation in the event of claims arising against the named doctor. It argues that the policies' prohibition against partnership liability supports its reading.1 We do not find Medical Protective's argument persuasive. First, the corporation is not in a partnership relation with the doctors. Second, the policies expressly state that they cover damages based on professional services rendered "by the insured or any other person, in the practice of the insured's profession." We believe this language contemplates liability for the negligence of employees of the corporation and is, therefore, inconsistent with Medical Protective's assertion that the corporation's liability derives solely from the conduct of the named physician. Exception 4 is also inconsistent with Medical Protective's interpretation. That exception addresses the corporate-employer/physician-employee relation directly, declaring, "this policy does not cover ... any liability growing out of services rendered by any physician or dentist regularly employed by the Insured, unless such employee is covered as an Insured of this Company." As the trial court noted, Dr. Linhardt is an "Insured of this Company" under the separate policy issued in his name. Had the policy excluded liability for services of a regularly employed physician unless the employee were listed as an "Insured under this policy," the result would likely be different, cf. McNemee v. Farmers Insurance Group, 228 Kan. 211, 612 P.2d 645 (1980) (giving effect to specific language designed to prevent stacking of personal injury protection benefits in an automobile insurance policy); but that language was not used. Finally, although Medical Protective argues that coverage in the situation before us was not intended, the subjective intent of the insurer does not control the interpretation of the contract. While the instant dispute is between two insurance companies, the result should be the same as if the professional corporation had no excess coverage policy and was suing Medical Protective under its base policies. We interpret the policy under the following standard:
9
"In determining the intention of the parties as to an insurance contract, the test is not what the insurer intends the printed language to mean, but what a reasonable person placed in the position of the insured would have understood the words to mean. Where an insurance company desires to limit its liability under a policy, it should employ language which will distinctly reveal its purpose."Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 646, 512 P.2d 507, 512 (1973) (citation omitted). We think the district court's construction of the Medical Protective policies is correct.
10
Apparently neither Medical Protective nor St. Paul anticipated the problem facing us. However, St. Paul had no policy on Dr. Linhardt for which it received a separate premium. Medical Protective received premiums for base policies on all three physician employees. The language in the Medical Protective policy excluding employer liability unless a physician employee is an "Insured of this Company" seems to encourage a corporation to acquire Medical Protective policies on all physician employees of the corporation. Medical Protective presumably has received the benefit of such language; it cannot now be heard to disown the burdens associated with it.
11
The judgment of the district court, 504 F.Supp. 877, is AFFIRMED.
1
The relevant provisions of the Medical Protective policies state as follows:
"(T)he Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured or his estate,
A. IN ANY CLAIM FOR DAMAGES, AT ANY TIME FILED, BASED ON PROFESSIONAL SERVICES RENDERED OR WHICH SHOULD HAVE BEEN RENDERED, BY THE INSURED OR ANY OTHER PERSON, IN THE PRACTICE OF THE INSURED'S PROFESSION (INCLUDING INJURY SUSTAINED BY ANY PATIENT OR ANYONE ACCOMPANYING A PATIENT WHILE IN THE INSURED'S OFFICE), DURING THE TERM OF THIS POLICY; EXCEPT this policy does not cover
3
any partnership liability of the Insured;
4
any liability growing out of services rendered by any physician or dentist regularly employed by the Insured, unless such employee is covered as an Insured of this Company."
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2072387/
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872 N.E.2d 221 (2007)
WILLIAMS
v.
STATE.
No. 49A02-0606-CR-534.
In the Court of Appeals of Indiana.
August 17, 2007.
KIRSCH, J.
Unpublished memorandum decision. Affirmed.
DARDEN, J. Concurs.
MATHIAS, J. Concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/409623/
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690 F.2d 1267
UNITED STATES of America, Plaintiff-Appellee,v.John Paul WILSON, Defendant-Appellant.
No. 81-1117.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 9, 1981.Majority Opinion with Dissent Filed Jan. 14, 1982.Opinion Withdrawn and Resubmitted July 1, 1982.Decided Oct. 26, 1982.
1
Dennis E. Curtis, William J. Genego, Los Angeles, Cal., for defendant-appellant.
2
Ruth L. Cohen, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.
3
Appeal from the United States District Court For the District of Nevada.
4
Before WRIGHT and FLETCHER, Circuit Judges, and EAST,* District Judge.
EAST, District Judge:
THE APPEAL
5
Wilson, appearing pro se, and in forma pauperis, appeals from a judgment of conviction and sentence for escape under 18 U.S.C. § 751(a).1 We note jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
THE FACTS
6
On December 17, 1979, Wilson pleaded guilty to a misdemeanor counterfeit charge, 18 U.S.C. § 491(a). He received a one year sentence with six months suspended on the condition that he spend six months in a treatment-oriented institution, and was placed on three years probation.
7
After some delay due to another pending proceeding, Wilson was taken to the West Glenn Center, a federal halfway house. About two weeks after his arrival at the facility, Wilson signed out and failed to return. Deputy United States Marshals staked out Wilson's girlfriend's apartment in Arizona. The marshals, in possession of both a description and a photograph of Wilson, observed him leave the apartment, stopped him, and explained who they were and who they were looking for. Although one marshal testified that he was certain at that point that the suspect was in fact Wilson, they neither informed Wilson that he was under arrest, nor read him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at that time. Instead, the marshals asked for some identification. Wilson produced two pieces of phony identification. When the marshals indicated that unless he could better identify himself, they would have to detain him until they could determine who he was, Wilson offered the explanation that he was in the area to visit "John."
8
The marshals accompanied Wilson on an unsuccessful search for "John." When Wilson became "fidgety," the marshals handcuffed him and took him to his girlfriend's apartment. At the sight of Wilson in handcuffs, she began to cry, at which time the marshals advised Wilson that he was under arrest and read him the Miranda warnings.
9
At the arraignment, the Magistrate denied Wilson's request to proceed pro se and appointed counsel to represent him. Wilson then filed a notice of intent to appeal that denial. The Magistrate subsequently held a hearing on Wilson's ability to represent himself, and recommended that Wilson not be allowed to proceed pro se because he lacked the educational background to represent himself effectively. Wilson responded with an objection to that recommendation, on which the District Court did not act before trial.
10
On the day of trial, the court asked Wilson if he wished to represent himself. He indicated that, because he had received no access to a law library for preparation of a defense and because he was unfamiliar with trial procedure, he would not defend himself. Wilson agreed to an arrangement by which appointed counsel would examine witnesses and Wilson could ask additional questions himself or make suggestions to his counsel. Ultimately, however, Wilson's only participation at trial was at a sidebar conference in which he renewed his complaint that he had been denied access to a library to prepare his defense.
11
The District Court granted Wilson the opportunity to file a post-trial motion for judgment of acquittal, Fed.R.Crim.P. 29(c), asserting the defense that his sentence had expired due to accumulated "good time" credits at the time he left West Glenn Center. After the guilty verdict, the court directed that Wilson have access to a law library and other materials necessary to prepare his Rule 29(c) motion. Wilson requested and was granted more time to file the motion and was given additional access to the library. He filed no motion, but claims prison officials seized his papers, which prevented him from filing.
DISCUSSION
I. DENIAL OF RIGHT TO PROCEED PRO SE
12
Wilson contends that the Sixth and Fifth Amendments together guarantee him a right to self-representation and access to a library prior to trial to prepare his defense.
13
Federal criminal defendants have both statutory and Sixth Amendment rights to waive counsel and represent themselves when they voluntarily and intelligently so elect. 28 U.S.C. § 1654; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Wilson contends that, although he was ultimately given the right to participate in his trial to any extent he desired, denial until the day of trial of this right and of pretrial access to a law library effectively denied his Sixth Amendment right to proceed pro se. He argues that the Sixth Amendment right to self-representation recognized in Faretta implies a right of access to legal facilities and materials necessary to prepare legal arguments and documents.
14
We find a more narrow right to proceed pro se at trial implied from the Sixth Amendment by the Supreme Court in Faretta. The Faretta Court recognized that historically, with the brief exception of the Star Chamber, common law courts never have forced counsel upon unwilling defendants. Therefore, the "assistance of counsel" guarantees of the Sixth Amendment are not obligatory, but rather include a correlative right to reject counsel and to represent oneself.
15
In reaching this conclusion, the Court specifically recognized that a criminal defendant who exercises his right to reject counsel necessarily relinquishes many of the benefits associated with representation by counsel. Nowhere did the Faretta Court suggest that the Sixth Amendment right to self-representation implies further rights to materials, facilities, or investigative or educational resources that might aid self-representation. We decline to interpret the right to self-representation under the Sixth Amendment to include a right to conduct one's own research at government expense.
16
Wilson argues further that the due process clause of the Fifth Amendment, which the Supreme Court has held requires some form of "meaningful access" to the courts, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), when combined with the Sixth Amendment right to self-representation, requires that he be afforded library access to prepare a "meaningful" defense.
17
The Supreme Court, in requiring meaningful access to the courts, has been careful to note that providing access to law libraries is but one of a number of constitutionally permissible means of achieving that objective. Bounds v. Smith, 430 U.S. at 830, 97 S.Ct. at 1499. This circuit has recently reiterated the rule. Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981). Availability of legal assistance at government expense, if required, is a constitutionally permissible means of access. Id. When such adequate access is provided, as was here, an inmate may not reject the method provided and insist on an avenue of his or her choosing. Id. at 1353.
18
A claim similar to the one at hand was presented in United States v. Chatman, 584 F.2d 1358 (4th Cir. 1973). That case involved an inmate who was convicted of charges arising out of a threatening letter the inmate had sent to a judge. The inmate indicated his desire to represent himself in pretrial proceedings, but claimed at trial that he could not proceed because he had not been permitted access to the penitentiary library to prepare his defense. Apparently, the defendant had been denied access to the available library because he was in segregated confinement. At trial, the defendant's motions for a continuance and an order permitting library access were denied.
19
In affirming the defendant's convictions, the Chatman court rejected the argument that Bounds v. Smith required library access, saying:
20
Bounds was concerned with the rights to equal protection and to access to the courts of prisoners who sought to invoke post-conviction relief. It held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct. at 1498. Bounds, of course, has no direct application to defendant. He was accused of crime and had an absolute right to counsel, which he validly waived; he had no present thought of pursuing post-conviction relief. But, even so, we do not read Bounds to give an option to the prisoner as to the form in which he elects to obtain legal assistance. The option rests with the government which has the obligation to provide assistance as to the form which that assistance will take. Thus, to the extent that it may be said that Bounds has any application to the instant case, the United States satisfied its obligation under the sixth amendment when it offered defendant the assistance of counsel which he declined. We so hold. Cf. United States v. West, 557 F.2d 151 (8 Cir. 1977).
21
584 F.2d at 1360.
22
We agree with the above rationale. The offer of court-appointed counsel to represent Wilson satisfied the Fifth Amendment obligation to provide meaningful access to the courts. Wilson rejected that offer of representation and insisted throughout that he be permitted to personally conduct his own research, even though the local county facility in which he was being held had no library. He never requested that his court-appointed attorney or anyone else perform research for him. Even when the District Court indicated on the day of trial that Wilson would be permitted to represent himself, he did not ask for a continuance so that he or anyone else could perform the research. Instead, Wilson chose to have his court-appointed counsel represent him.
23
Wilson intimated during the trial that the primary issue which he wanted to research was his claim that he was entitled to leave his place of confinement because his sentence, when properly calculated, had been completed. Although Wilson's court-appointed counsel indicated that Wilson's argument was not supported by the record, the District Court offered to permit Wilson access to a law library if he was convicted so that he could research this legal issue and file a post-trial motion for a judgment of acquittal.
24
After his conviction, Wilson was in fact permitted access to a law library, but he did not file the post-trial motion. He claims now, for the first time, that he was prevented from filing the motion because prison officials seized his legal papers after trial. There is no support in the record for this claim. Wilson does not contend that he informed the District Court of the seizure when he was sentenced or at any other time. The claim is therefore not properly before us, and we decline to consider it.
25
On this record, we cannot say that Wilson was deprived of all avenues of meaningful access to the court. Wilson contends, however, that his conviction must be reversed because the District Judge, the Judge's clerk and Wilson's court-appointed lawyer deliberately deprived him of his right to represent himself by entering into a plan to delay the District Court's ruling on his motion to represent himself until the day of trial.
26
Wilson had filed with the District Court a notice of his intent to appeal the Magistrate's initial denial of his request to represent himself. This document indicated that Wilson intended to appeal the Magistrate's ruling directly to the United States Court of Appeals for the Ninth Circuit. No such direct appeal is available; an appeal from a Magistrate's ruling must be to the District Court in the first instance. The District Judge's calendar clerk proposed in a memorandum to the Judge that Wilson's request be "placed in the file and ignored until the time of trial." The Judge wrote "O.K." in the margin beside this suggestion, and the clerk sent a copy of the memorandum to Wilson's court-appointed attorney along with a note which said "see attached so that you will know what the plan is."
27
The above scenario of the District Court's approved clerk's memorandum and the clerk's notation to court-appointed counsel to see the attached memorandum "so that you will know what the plan is" might well be viewed in two separate lights. Appellate counsel can see a diabolical conspiracy between the court, clerk and counsel to deprive Wilson of some right, while we can see a busy calendar clerk's hand in an attempt at calendar control for a very busy District Court.
28
While we certainly do not condone this procedure, we do not think that it requires reversal in this case as we cannot find any resulting prejudice to Wilson. Properly, the District Court should have ruled on the motion in advance of trial. However, because Wilson was not entitled to pretrial access to a law library, in light of the offer of representation by appointed counsel, the delay until trial in ruling on his motion to represent himself did not deprive him of any constitutionally protected rights. There is nothing in the record to indicate that Wilson was prevented from preparing himself as best he could, absent access to a library, for the eventuality that the District Court would ultimately grant his motion to represent himself. When the District Court granted the motion, Wilson did not ask for more time to prepare or for any aid in preparing his case. Instead, he opted to be represented by counsel. We find no constitutional violation.
29
II. THE ADMISSIBILITY OF THE FALSE IDENTIFICATION AND STATEMENTS MADE TO THE U. S. MARSHALS PRIOR TO THE ARREST
30
Wilson next contends that he was in custody but had not been given the Miranda warnings at the time he gave the marshals two pieces of false identification and a false story explaining his presence at the apartment complex where he was arrested. He argues that it was, therefore, reversible error for the District Court to admit this evidence.
31
The record indicates that this objection was not properly preserved for appeal. United States v. O'Brien, 601 F.2d 1067 (9th Cir. 1979); Vitello v. United States, 425 F.2d 416, 423 (9th Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970); Fed.R.Evid. 103(a)(1). When the first marshal testified, neither Wilson nor his attorney objected to the testimony concerning Wilson's statements at the time of his arrest. Wilson's attorney did object to the testimony about the false pieces of identification on the grounds that it was "irrelevant and immaterial," but the objection was overruled. When the Government offered photocopies of the false I.D. into evidence, Wilson's attorney stated that he had no objection.
32
During the Government's examination of the second marshal, Wilson's attorney objected to any testimony regarding the false identification on the grounds that it was irrelevant and immaterial, and it was a violation of the defendant's rights. The objection was overruled, but the Government did not pursue the line of questioning. On cross-examination, the second marshal testified that he had both a physical description and a photograph of Wilson when he first approached him and that he was "sure" it was Wilson at that time, before Wilson was asked for any identification or had made any statements. Furthermore, the marshal responded in the negative to the defense counsel's question of whether the defendant was advised of his rights at the time he was asked to identify himself. Neither Wilson nor his counsel, however, used this testimony to renew the objection to the disputed evidence or to ask that it be stricken as violative of the defendant's Fifth Amendment rights.
33
It appears that neither Wilson nor his counsel complied with the requirement of Fed.R.Crim.P. 51 that a party make "known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor ...." Rules of Evidence require that the grounds for an objection be specifically stated, and if no objection is made at the time the evidence is offered and received, its admissibility generally cannot be challenged on appeal. Vitello v. United States, 425 F.2d at 423; Fed.R.Evid. 103(a)(1). Similarly, if a general objection is overruled when a specific objection should have been made, the party is precluded from asserting the proper objection on appeal. United States v. O'Brien, 601 F.2d 1067.
34
Despite the defendant's failure to preserve his objection properly for appeal, however, we will review his claim of error arising from the District Court's admission of the evidence in question if the unobjected-to error rises to the level of "plain error" as contemplated by Fed.R.Crim.P. 52(b): "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."
35
A "custodial interrogation" occurs, for purposes of triggering the requirement of a Miranda warning, when law enforcement officers initiate questioning after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. at 477, 86 S.Ct. at 1629. Wilson contends that he was effectively "in custody" when he was approached by the U. S. Marshals and asked to identify himself, and that the pieces of I.D. and the statements regarding his identity were, therefore, obtained in violation of his Miranda rights. The Government, on the other hand, claims that the evidence was obtained during an investigatory stop which was initially non-custodial in nature. This court has held that, in the context of an investigatory stop, a mere request for written identification of a person does not necessitate a Miranda warning, even where the person is a suspect, so long as the questioning does not occur in a police-dominated or a compelling atmosphere. United States v. Hickman, 523 F.2d 323, 327 (9th Cir. 1975).
36
Whether the evidence in question was admissible at trial depends on the District Court's determination of when the defendant was significantly deprived of his freedom of action-that is, of whether the marshal's initial questioning of Wilson about his identity constituted a "custodial interrogation" within the meaning of Miranda. While the question of whether the request for identification amounted to a "custodial interrogation" is a close one, we conclude that it was not plain error for the District Court to admit the two pieces of false identification. We, therefore, decline to review Wilson's claim on appeal that the admission of the I.D. violated his Fifth Amendment rights.
37
After Wilson produced the false pieces of identification, however, the marshals advised him that unless he could better identify himself, they would have to detain him. In response, Wilson told the marshals the story of his intended visit to "John." On these facts, it appears that Wilson's freedom was significantly restricted when he made the statements about "John" and that Miranda warnings should have been given at that time. In light of these circumstances, we conclude that the admission of those statements clearly violated Wilson's Fifth Amendment rights and thus rises to the level of "plain error" as contemplated by Rule 52(b).
38
The standard of "plain error," however, goes only to the issue of reviewability and not to the issue of whether a reversal is warranted. Thus, an error unobjected to at trial may be so plain as to warrant review under Rule 52(b); yet the error may be harmless and, therefore, not justify a reversal. United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978). In cases involving errors of constitutional dimension, we should reverse unless we are "able to declare a belief that (the error) was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); United States v. Lopez, 575 F.2d at 685. In applying the Chapman standard, we must judge the magnitude of the error in light of the evidence as a whole to determine the degree of prejudice to the defendant resulting from the error. United States v. Larsen, 596 F.2d 347, 348 (9th Cir. 1979); United States v. Lopez, 575 F.2d at 685.
39
In this case, while the statements in question appear to have been obtained in violation of Miranda, we conclude that their introduction at trial does not require reversal. Although the Government never made clear its purpose in eliciting the testimony concerning the false I.D. and false statements, the evidence was relevant to prove that Wilson possessed the state of mind required for conviction under the escape statute as defined by this Circuit-that his failure to remain with the limits of, or timely return to, confinement was "willful" or "blameworthy." United States v. Jones, 569 F.2d 499 (9th Cir.), cert. denied, 436 U.S. 908, 98 S.Ct. 2243, 56 L.Ed.2d 407 (1978). The fact that Wilson had willfully failed to return to the West Glenn Center was clearly established by the fact that he provided false identification, which implies that he was attempting to avoid detection by the authorities. Additionally, the Government presented evidence establishing that Wilson had signed out of the West Glenn Center and had failed to return by the designated time. In view of the substantial, independent, and credible evidence of defendant's guilt presented at trial, our review of the record as a whole convinces us that the error in admitting the defendant's statements of visitation with John and the fruitless search for John was harmless beyond a reasonable doubt.
III. OTHER ISSUES
40
Wilson made several additional claims, all of which are without merit. We dispose of them briefly.
A. Alleged Seizure of Legal Papers
41
Wilson claims that jail officials seized his legal papers before trial. He did not, however, make this claim to the District Court; nor does he indicate to this court what kind of legal papers were allegedly involved or in what way he may have been prejudiced. Thus, we conclude that this issue is not properly before us and we do not reach its merits.
B. Hearsay Claims
42
Wilson challenges the admission of three documents. First, he argues that Exhibit 5, the photocopy of the two false pieces of identification, was inadmissible because it was not made in the ordinary course of business, but was instead made in anticipation of trial. Second, he claims that the Government's Exhibit 1, a certified copy of a Judgment and Commitment Order relating to the criminal conviction for which Wilson was incarcerated at the time of his escape, was inadmissible hearsay because it relates to a misdemeanor conviction which was not "punishable by death or imprisonment in excess of one year" as is required to render a judgment of a previous conviction admissible under Fed.R.Evid. 803(22). At trial, however, Wilson's attorney failed to object to the admission of Exhibit 5, and objected only to the marshal's return on the back of Exhibit 1, specifically stating that he had no objection to the admission of the judgment and commitment order itself. Thus, the objections which Wilson raises here appear to have been waived.2
43
The record indicates that Wilson's attorney did, however, raise a hearsay objection to the Government's Exhibit 2, which is a receipt for a United States prisoner (Wilson) from the marshal. This exhibit had been signed by the director of the West Glenn Center, and was identified by her at trial. Thus, the document constitutes a public record or report admissible under Fed.R.Evid. 803(8), which was adequately authenticated by the testimony of the director at trial, Fed.R.Evid. 901(a), (b)(1) and (7).
C. Speedy Trial Claim
44
Wilson was captured by the marshals on March 28, 1980, but was not indicted for escape until May 28, 1980. At the time of his recapture, Wilson had approximately two months remaining on his sentence. He now claims that the two month delay between his arrest for escape and the indictment violated the provisions of the Speedy Trial Act establishing a thirty-day limit for filing an indictment after an arrest, 18 U.S.C. § 3161.3
45
The Government contends that the statute does not apply because Wilson was not "arrested or served with a summons in connection with" the charge of escape as is required to trigger the thirty-day limit of § 3161(b), but was instead merely returned to custody to complete his previous sentence. We agree with the Government's interpretation that § 3161 does not apply where escapees are recaptured and later indicted for the escape.4
D. Sufficiency of the Evidence
46
Finally, Wilson claims that the evidence was insufficient to support his conviction in two respects. First, he claims that the Government failed to prove that he was confined in an institution designated by the Attorney General as required by § 751(a).5 This court held in United States v. Rosas-Garduno, 427 F.2d 352, 353 (9th Cir. 1970), that the Government need not prove that the confinement was by the direction of the Attorney General.
47
Second, Wilson contends that the Government failed to prove that the escape was from a confinement based upon the conviction charged, which is a necessary element of the offense. Bayless v. United States, 381 F.2d 67, 73 (9th Cir. 1967). The appropriate standard of review, well-established in this Circuit, is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bailey, 607 F.2d 237, 243 (9th Cir. 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980).
48
Here, the Government introduced a certified copy of the judgment and commitment for Wilson (Exhibit 1) which contains the District Court's recommendation that West Glenn be the place of confinement. The exhibit has an executed marshal's return on the back which states that the defendant was delivered to West Glenn Center, the institution designated by the Attorney General, with a certified copy of the judgment and commitment. We conclude that the judgment and commitment with the executed marshal's return on the back was sufficient to indicate that the confinement was by virtue of the conviction. United States v. Rosas-Garduno, 427 F.2d at 353.
IV. CONCLUSION
49
The judgment of conviction and sentence entered on November 24, 1980 by the District Court is affirmed.
50
AFFIRMED.
FLETCHER, Circuit Judge, dissenting:
51
Because the majority misconstrues Wilson's self-representation claim and erroneously concludes that he was not denied his right to self-representation, I must dissent.
52
Wilson wanted to represent himself; he said so unequivocally at his arraignment. Instead, after a hearing, the magistrate appointed counsel to represent Wilson because "the defendant lacks sufficient background educationally or otherwise to adequately represent himself ...." Wilson attempted to appeal the magistrate's denial of his request to represent himself but received no response. He filed a "Notice of Intent to Appeal Denial of Motion to Proceed in Propia Persona" with the district court. Although the motion was erroneously styled an appeal to the Ninth Circuit, the court received the document long before Wilson's trial. Nothing prevented the court from informing Wilson of his error or simply overlooking the error and considering the motion as though it had been properly styled an appeal to the district court. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (technical deficiencies in pro se pleadings more readily overlooked than similar deficiencies in papers prepared by a lawyer); Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978); Yanow v. Weyerhaeuser Steamship Co., 274 F.2d 274, 283 (9th Cir. 1959) cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960) (appeals that give proper notice are generally allowed even though improperly labeled or filed in the wrong court).
53
The district court did neither. Instead, the district judge's clerk proposed in a memorandum to the judge that Wilson's request be "placed in the file and ignored until the time of trial." The judge approved this plan by noting "OK" in the margin of the clerk's memorandum. Subsequently, the clerk sent a copy of his memorandum to Wilson's appointed counsel with a note that explained, "see attached so that you will know what the plan is." As a result of this scheme, appellant's request to represent himself was not reviewed until the day of trial. By their actions, the court and Wilson's appointed counsel willfully and knowingly deprived the defendant of an opportunity to prepare his own defense in advance of trial. This extraordinary and inappropriate conduct, alone, is reason enough for reversal. Despite the majority's effort to dismiss the conduct as "a busy calendar clerk's hand in an attempt at calendar control for a very busy District Court," Maj. op. at 1273, it evinces a callous disregard for appellant's rights and constitutes an abuse of discretion on the part of the court. See Fed.R.Crim.P. 12(e).1 On the day of his trial, with potential jurors already in the courtroom, the judge offered Wilson the choice of conducting his own trial, or proceeding with counsel, but with an opportunity to question witnesses himself. Wilson chose to proceed with counsel because he had not had an opportunity to prepare his own defense.
54
The sixth amendment and 28 U.S.C. § 1654 (1976) guarantee a defendant the right to represent himself in federal court. Faretta v. California, 422 U.S. 806, 813, 818, 95 S.Ct. 2525, 2530, 2532-2533, 45 L.Ed.2d 562 (1975); Bittaker v. Enomoto, 587 F.2d 400, 402 (9th Cir. 1978) cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 386 (1979). This right cannot be denied because a defendant lacks expertise or professional capabilities. United States v. Trapnell, 512 F.2d 10, 11 (9th Cir. 1975). Contrary to what the majority suggests,2 a defendant need not show prejudice in order to prevail on a claim that his self-representation rights have been denied, Bittaker, 587 F.2d at 402-03; see also United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973).3
55
The majority agrees that due process requires that a prisoner representing himself must have meaningful access to the court. It further correctly states that "providing access to law libraries is but one of a number of constitutionally desirable means of achieving that objective." Maj. op. at 1271. However, the majority's conclusion that "(t)he offer of court-appointed counsel to represent Wilson satisfied the Fifth Amendment obligation to provide meaningful access to the courts" is mistaken. The statement completely ignores the constitutionally significant distinction between counsel appointed to represent a defendant and counsel appointed to advise a defendant representing himself. Only the latter affords a pro se defendant a source of meaningful access to the court. The former is both logically and practically incompatible with self-representation and hence cannot afford a pro se litigant meaningful access.
56
The majority relies on Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977), and Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981), to support the proposition that providing a prisoner with legal representation satisfies the meaningful access guarantee even when the prisoner elects to proceed pro se. This reliance is misplaced. Bounds dealt with the standard of access that must be provided to all inmates, not those who elect to exercise their right to self-representation. Moreover, the opinion notes that "additional measures" besides legal representation may be required "to assure meaningful access to inmates able to present their own cases." 430 U.S. at 824, 97 S.Ct. at 1496. Thus, Bounds did not hold that giving prisoners the option of representation by a lawyer is an alternative sufficient to insure them "meaningful access." See 430 U.S. at 824 n. 11, 97 S.Ct. at 1496 n. 11. Storseth is inapposite, because it dealt with the access rights of a prisoner who insisted not on pro se representation but on representation by a specific fellow inmate. 654 F.2d at 1354.
57
Meaningful access for the pro se litigant involves, at a minimum, some time to prepare and some means of getting prepared for trial. Wilson had absolutely no time to prepare. Appointed counsel's preparation to conduct the trial is not the equivalent of Wilson getting himself prepared. Had Wilson known he could represent himself, he could have asked the appointed lawyer to get books for him, gather information, or give advice on trial procedure in aid of Wilson's defense of himself. Wilson could have prepared himself with this aid. Or he could have scorned the lawyer and taken whatever other means were available to him to get ready. The court could even have withdrawn the appointment of advisory counsel, provided Wilson was given reasonable time and some reasonable way of preparing himself for trial-for example, through aid of a jail-house lawyer, or through access to books from the library. Meaningful access can be by any of several routes. None was afforded here.
58
The majority's response to Wilson's denial of meaningful access claim is wholly inadequate. It states that, prior to trial, "(Wilson) never requested that his court appointed attorney or anyone else perform research for him." Maj. op. at 1272. Wilson's failure to make such a request is hardly surprising in view of the fact that he had been informed in no uncertain terms that he could not represent himself and prepare his own defense but instead was required to accept the representation of appointed counsel. I conclude that he did all that could be reasonably expected under the circumstances.
Finally, the majority notes:
59
Even when the district court indicated on the day of the trial that Wilson would be permitted to represent himself, he did not ask for a continuance so that he or anyone else could perform the research.
60
Maj. op. at 1272. This statement puts the shoe on the wrong foot. The result of the court's misconduct was to thwart Wilson's constitutional and statutory right to represent himself and to deny him a meaningful opportunity to exercise this right. In the light of the district court's conduct, it is unseemly for this court to fault Wilson for failing to take the proper procedural step by requesting a continuance on the day of his trial.
61
The majority's conclusion, "(o)n this record, we cannot say that Wilson was deprived of all avenues of meaningful access to the court," maj. op. at 1272, is simply wrong. Wilson was indeed denied meaningful access. He was given no time to prepare and was not offered advisory counsel or any other means of preparing his own defense, despite repeated and unequivocal requests to represent himself. I would reverse Wilson's conviction and remand the case to the district court.
*
Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation
1
18 U.S.C. § 751(a) states in relevant part:
(a) Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States ... pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both ....
2
We note that, in addition, Exhibit 5 is admissible under Fed.R.Evid. 1003, which makes a duplicate admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original, or in the circumstances it would be unfair to admit the duplicate in lieu of the original. Further, Exhibit 1, certified on both sides, is thus adequately authenticated under Fed.R.Evid. 902(4) and is admissible in its entirety under the public records exception to the hearsay rule, Fed.R.Evid. 803(8)
3
18 U.S.C. § 3161 states in relevant part:
(b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.
4
The few cases which have dealt with the issue agree. See United States v. Kripplebauer, 463 F.Supp. 291 (E.D.Pa.1978); United States v. Grant, 433 F.Supp. 1113 (S.D.N.Y.1977)
5
See note 1 supra
1
Fed.R.Crim.P. 12(e) provides:
Ruling on Motion.
A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
2
The majority states that while it does not "condone" the collaboration between court and defense counsel that resulted in the denial of Wilson's right to self-representation, reversal is not required because there was no "resulting prejudice" to the defendant. Maj. op. at 1273. This statement represents an erroneous interpretation of settled law. We have previously observed that requiring a showing of prejudice "could make the right to conduct one's own defense virtually unenforceable on appeal in the majority of cases." Bittaker, 587 F.2d at 402. Other circuits are in accord. See, e.g., Chapman v. United States, 553 F.2d 886, 891 (5th Cir. 1977); United States v. Dougherty, 473 F.2d 1113, 1127-28 (D.C.Cir.1972)
3
A defendant, of course, waives his right to counsel if he chooses to represent himself, and, conversely, once he has chosen to represent himself, a return to representation by counsel must be accompanied by a voluntary waiver of the defendant's self-representation rights. "The very essence of a voluntary waiver is that it be the product of a free and meaningful choice." McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). Wilson's decision to accept appointed counsel did not involve such a meaningful choice. He was never allowed to think that he might be able to represent himself until the day of his trial. At that point he was given a choice between representing himself unprepared or proceeding with counsel. The court's offer to allow Wilson to have counsel but to question witnesses and comment does not cure the defect in the choice he faced. Thus, the majority does not, and could not, argue that Wilson voluntarily waived his right to represent himself
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01-03-2023
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08-23-2011
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FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN D. MOON, No. 12-35503
Plaintiff - Appellant, D.C. No. 3:11-cv-05230-RJB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted October 9, 2013
Seattle, Washington
Before: GRABER and MURGUIA, Circuit Judges, and BURY, District Judge.**
Sean Moon appeals the denial of his adult child disability benefits claim. We
review de novo the district court’s order affirming the decision of the
administrative law judge (“ALJ”). Armstrong v. Comm’r of Soc. Sec. Admin., 160
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
F.3d 587, 589 (9th Cir. 1998). We uphold the decision if it is supported by
substantial evidence in the record and if the ALJ applied the correct legal
standards. Id. We have jurisdiction under 28 U.S.C. § 1291. We conclude that the
ALJ’s decision was not based on a sufficiently developed record, and we remand
for further proceedings.
In May 1995, the Commissioner determined that Moon was disabled and
Moon began receiving Supplemental Security Income benefits. In January 2007,
Moon applied for adult child disability benefits, which require a disability onset
date before the claimant’s 22nd birthday. 42 U.S.C. § 402(d)(1). The ALJ found
that, before that date, Moon was severely impaired by depression, obesity, and a
personality disorder, but that he was not disabled by the impairments.
The ALJ erred by not acknowledging in the written determination that Moon
had been adjudged disabled in May 1995 and by not obtaining expert testimony
regarding the onset of Moon’s disability. “In Social Security cases the ALJ has a
special duty to fully and fairly develop the record and to assure that the claimant’s
interests are considered. This duty exists even when the claimant is represented by
counsel.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (per curiam)
(citation omitted). When the onset of disability must be inferred because a definite
onset date cannot be determined from the medical evidence in the record, the ALJ
2
must obtain expert testimony. Armstrong, 160 F.3d at 589-90; see also SSR 83-20,
1983 WL 31249.
In May 1995, the Commissioner found that Moon was disabled, but the
record does not show conclusively when he became disabled. Because of the
nature of Moon’s impairments and in view of some medical evidence from 1993
and before, the existing record suggests that the onset date may have been earlier
than May 1995. Pursuant to his obligation to develop the record, the ALJ should
have obtained expert testimony on whether, considering the medical evidence in
the record and the 1995 disability determination, an onset date before Moon’s 22nd
birthday should have been inferred.
We therefore reverse the ALJ’s finding that Moon was not disabled prior to
his 22nd birthday and remand to the district court with instructions to remand to
the Commissioner for further development of the record and for reconsideration.
Further development of the record should incorporate the opinion of a medical
expert concerning the onset date of Moon’s disability and such further evidence as
the Commissioner may deem appropriate to include.
REVERSED AND REMANDED.
3
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106 F.3d 409
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Leroy R. BRANDT, Defendant-Appellant.
No. 96-30064.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 13, 1996.Decided Jan. 15, 1997.
Before: NOONAN, THOMPSON and KLEINFELD, Circuit Judges.
ORDER
1
We vacate the defendant Brandt's sentence and remand this case to the district court to enable that court to reconsider its imposition of a two-level increase in the defendant Leroy R. Brandt's base offense level under Sentencing Guideline § 2D1.1(b)(1) for possessing a dangerous weapon in connection with his offense. Reconsideration is appropriate in light of the district court's inability to find, during the subsequent sentencing hearing of Brandt's co-defendant John Dorman, that the firearm belonged to any of the conspirators. On reconsideration, the district court shall determine whether there is sufficient evidence to conclude that Brandt or a co-conspirator "possessed" the firearm on top of the motorcycle in the garage in connection with the conspiracy. If the evidence is insufficient to establish this fact, as apparently was the case when the co-defendant Dorman was sentenced, the two-level increase under Sentencing Guideline § 2D1.1(b)(1) would not be appropriate.
2
Sentence VACATED; case REMANDED.
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01-03-2023
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04-17-2012
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https://www.courtlistener.com/api/rest/v3/opinions/4520548/
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Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01158-CV
IN THE INTEREST OF A.D.B., II, A CHILD
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-15-18807
ORDER
Before the Court is appellant’s March 25, 2020 motion requesting a second
extension of time to file his brief on the merits and reconsideration of this Court’s
January 13, 2020 order submitting this appeal without the reporter’s record. We
GRANT the motion only to the extent that we extend the deadline for appellant’s
brief to April 27, 2020.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
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03-30-2020
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132 F.3d 47
Jonesv.City of Waynesboro**
NO. 97-8338
United States Court of Appeals,Eleventh Circuit.
Dec 01, 1997
Appeal From: S.D.Ga. ,No.96001961CV
1
Affirmed.
**
Local Rule 36 case
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01-03-2023
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04-18-2012
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44 N.Y.2d 838 (1978)
Mohawk Airlines, Inc., et al., Respondents,
v.
Ann C. Peach, Individually and as Parent and Natural Guardian of Ryan E. Peach, an Infant, Appellant, and Minge C. Peach et al., Respondents.
Court of Appeals of the State of New York.
Submitted April 17, 1978.
Decided May 9, 1978.
Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]; Matter of Weinstock, 37 N.Y.2d 748).
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01-03-2023
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10-30-2013
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64 So.3d 121 (2011)
EL-AMIN
v.
DEUTCHE BANK.
No. 2D11-1849.
District Court of Appeal of Florida, Second District.
June 2, 2011.
DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed.
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01-03-2023
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10-30-2013
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778 F.2d 83
3 Fed.R.Serv.3d 1236
James CHANG, Plaintiff, Appellant,v.William French SMITH, et al., Defendants, Appellees.
Nos. 85-1039, 85-1426.
United States Court of Appeals,First Circuit.
Heard Sept. 10, 1985.Decided Dec. 4, 1985.
Peter J. Satz with whom Paul E. Calvesbert, Jose Luis Ubarri and Calvesbert & Brown, San Juan, P.R., were on brief, for plaintiff, appellant.
Eduardo E. Toro Font, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendants, appellees.
Before BOWNES and TORRUELLA, Circuit Judges, and WISDOM,* Senior Circuit Judge.
WISDOM, Senior Circuit Judge:
1
James Chang, the plaintiff-appellant in this case, appeals the district court's denial of his motion under Fed.R.Civ.P. 60(b)(6)1 for relief from an order dismissing his case. He asserts that the gross neglect of his former counsel necessitates relief from the order. We find that the district court, 103 F.R.D. 401, did not abuse its discretion in denying the motion.
I.
2
James Chang worked as an Immigration Inspector at the San Juan International Airport. On September 2, 1978, he refused to admit Ruth Lee-Cruz to Puerto Rico because she lacked sufficient funds to meet the requirements for admission to the United States. Ms. Lee-Cruz returned to her home in the Dominican Republic the next day.
3
On September 5th, Chang went to the Dominican Republic to inspect a ship bound for Puerto Rico. Chang, having learned Ms. Lee-Cruz's address while interviewing her in Puerto Rico three days earlier, went to her house with another inspector, Mario Vanegas. Ms. Lee-Cruz and a friend, Ms. Bau, accompanied the two inspectors back to Puerto Rico on the "World Renaissance", the ship the men had come to inspect. The women stayed at Chang's house in San Juan for a time, and Chang paid for their passage to Puerto Rico and their air fare back to Santo Domingo. Chang dated Ms. Bau during her two-month stay in San Juan.
4
The Immigration and Naturalization Service (I.N.S.), inferred that Chang had an affair with one or both of the women and discharged Chang for improper use of official information and conduct prejudicial to the service. A hearing officer of the Merit Systems Protection Board (MSPB or Board) reviewed the case and concluded that a 30-day suspension was a sufficient penalty. He ordered the I.N.S. to reinstate Chang. The I.N.S. appealed to the full Board, which concluded that Chang's dismissal had been proper.
5
Raul Barrera Morales, Chang's attorney before the MSPB, filed a complaint in the federal district court in Puerto Rico alleging that Chang had been dismissed because of his race and that the MSPB's decision was not based on substantial evidence. At about the same time, the Washington, D.C. law firm of Chapman, Duff & Paul filed an appeal in this Court that raised the same issues. Shortly thereafter, Chapman, Duff & Paul withdrew from the First Circuit case and Barrera Morales accepted a job with the government. Barrera Morales suggested that Chang retain attorney Scott Kalisch to pursue Chang's claims. Chang did so.
6
Kalisch entered an appearance in the case before this Court on November 16, 1981. By that time, the United States had filed a motion to dismiss, arguing that in "mixed" cases involving both a claim of discrimination and a claim of improper agency action, the district court has jurisdiction in the first instance. We agreed, and dismissed the case. Chang v. Merit Systems Protection Board, 677 F.2d 173 (1st Cir.1982).
7
Kalisch, with the knowledge and approval of Chang, then entered an appearance in the district court action, and immediately took a voluntary dismissal by stipulation pursuant to Fed.R.Civ.P. 41(a)(1). At the same time, he filed a motion for reconsideration with this Court, pointing out that the district court action had been dismissed. We denied the motion in June 1982, by memorandum and order, on the ground that actions in the district court following the dismissal of an appeal cannot retroactively create appellate jurisdiction. Kalisch took no further action. He contends that he did not re-file the discrimination claim in the district court because it was frivolous. Review of the administrative decision was barred by the 30-day statute of limitations on appeals from the MSPB.
8
While Kalisch was handling Chang's case, he was experiencing troubles of his own. Kalisch was suspended for six months during 1983 for disregarding the instructions of one of his other clients. In August 1983, Kalisch was indicted for distributing cocaine; the charges were dismissed in November 1983, and Kalisch was readmitted to the federal bar in December. Chang asserts that he was not informed of the status of his case between June 1982 and December 1983. He suggests that Kalisch's personal problems preoccupied his lawyer and prevented him from attending to Chang's case.
9
After Kalisch told Chang sometime in December 1983 that the case was lost, Chang hired still another attorney to petition the district court for relief under Fed.R.Civ.P. 60(b)(6). The district court decided that Chang was not entitled to relief, primarily because his decision to take a voluntary dismissal in the district court was a strategic choice. Chang appeals that decision.
II.
10
Rules 60(b)(1)-(5) allow a court to relieve a party from a final judgment on several grounds, including mistake, excusable neglect, newly discovered evidence, or fraud.2 Rule 60(b) has a residual provision that permits a court to grant relief from a final judgment for "any other reason justifying relief ...". Fed.R.Civ.P. 60(b)(6). Motions brought under Rules 60(b)(1)-(3) must be made within a year after the entry of judgment. All other motions must be made within a reasonable time. The decision whether to grant relief is committed to the sound discretion of the district court. See Dankese v. Defense Logistics Agency, 693 F.2d 13, 15 (1st Cir.1982).
11
Chang contends that his lawyer, Kalisch, was grossly negligent in failing to inform him that his case had been lost and in failing to take any action to reopen the case. He seeks relief under Rule 60(b)(6) from the voluntary dismissal to which Kalisch stipulated.
12
Motions brought under Rule 60(b)(6) will be granted only in extraordinary circumstances. See Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir.1975); 11 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2864 at 219 (1973). The Supreme Court has held that relief under Rule 60(b)(6) is appropriate only if Rules 60(b)(1)-(5) do not apply. Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949). Although clause (1) of Rule 60(b) mentions neglect, when an attorney's neglect is gross and inexcusable courts have held that relief may be justified under Rule 60(b)(6). See, e.g., Boughner v. Secretary of Health, Education and Welfare, 572 F.2d 976, 978 (3d Cir.1978); United States v. Cirami, 563 F.2d 26, 34-35 (2d Cir.1977); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235-36 (D.C.Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 50, 13 L.Ed.2d 35 (1964).
13
Chang's allegation of gross neglect by Kalisch is based on the lawyer's failure to reopen the case. This Court, however, had no jurisdiction over the matter. Thus, even if Kalisch had petitioned for review, we would have been unable to grant Chang any relief. Chang's only hope was to file a motion in the district court under Rule 60(b)(1) for relief from the order dismissing his case. The motion would have alleged that Chang and Kalisch agreed to the voluntary dismissal because of excusable neglect or mistake. Kalisch never filed this motion. Moreover, he did not inform Chang of the status of the case until December 1983, eighteen months after the voluntary dismissal. At that point, the motion was barred by the one-year deadline in Rule 60(b).
14
The issue for this Court is whether Kalisch's failure to file a 60(b)(1) motion was such gross neglect that it may be characterized as an extraordinary circumstance requiring relief. A troubling threshold question is whether a party can avoid the one-year time limit on filing a 60(b)(1) motion by alleging that the failure to file the motion within one year amounted to gross neglect by his attorney justifying relief. We have found no case in which this contention was advanced.
15
We need not resolve the question, however. At a minimum, when a party moves for relief under 60(b)(6) alleging gross neglect of counsel in failing to file a 60(b)(1) motion, the party must show that it would have prevailed on the 60(b)(1) motion. Chang cannot make such a showing in this case.
16
The grounds for the 60(b)(1) motion could only have been mistake or excusable neglect. Chang's argument would have been that the decision to dismiss the case in the district court was made because of his lawyer's mistaken notion that such a dismissal could vest this Court with jurisdiction. The argument lacks merit, however, because Chang was aware of Kalisch's decision to seek a voluntary dismissal. The principle is well established that Rule 60(b) does not provide relief from "free, calculated [and] deliberate choices." Ackerman v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207, 211 (1950). Rule 60(b) cannot be used to relieve a litigant from improvident strategic choices. See Marshall v. Board of Education, 575 F.2d 417, 424 (3d Cir.1978); Federal's, Inc. v. Edmonton Investment Co., 555 F.2d 577, 583 (6th Cir.1977); Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 651-52 (1st Cir.1972). Furthermore, ignorance or mistake of law is not a "mistake" for purposes of Rule 60(b)(1). United States v. O'Neil, 709 F.2d 361, 373 (5th Cir.1983). Nor is it "excusable neglect". United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.), cert. denied, 404 U.S. 849, 92 S.Ct. 83, 30 L.Ed.2d 88 (1971). See generally 7 J. Moore & L. Lucas, Moore's Federal Practice p 60.22 (2d ed. 1985); 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2258 at 170 (1973).
III.
17
Chang would not have prevailed had his lawyer filed a Rule 60(b)(1) motion. He cannot predicate his Rule 60(b)(6) motion on his lawyer's failure to file a futile motion. These are not extraordinary circumstances justifying relief. Therefore, the order of the district court denying Chang's motion is AFFIRMED.
*
Of the Fifth Circuit, sitting by designation
1
Fed.R.Civ.P. 60(b) provides:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
2
See footnote 1
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/76088/
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321 F.3d 1084
UNITED STATES of America, Plaintiff-Appellee,v.Karl P. ZINN, Defendant-Appellant.
No. 02-10782.
United States Court of Appeals, Eleventh Circuit.
February 14, 2003.
Fritz J. Schelleer, R. Fletcher Peacock, Federal Public Defender, Orlando, FL, for Defendant-Appellant.
Peggy Morris Ronca, Jacksonville, FL, Tamra Phipps, Tampa, FL, Roberta Josephina Tylke, Asst. U.S. Atty., Orlando, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT and BLACK, Circuit Judges, and GOLDBERG*, Judge.
BLACK, Circuit Judge:
1
Appellant Karl P. Zinn pled guilty to possessing child pornography and was sentenced to imprisonment to be followed by a period of supervised release. The supervised release included a number of special conditions, four of which Appellant challenges on appeal. Finding no reversible error, we affirm Appellant's sentence in its entirety.
I. BACKGROUND
2
On May 13, 2002, Appellant pled guilty1 to a one-count indictment charging him with possessing materials containing images of child pornography that had been mailed, shipped or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). According to the presentence investigation report (PSR), to which Appellant raised no objections and the district court adopted as its findings of fact, on March 15, 2001, Appellant contacted an undercover United States Customs Service web site and expressed an interest in purchasing two pornographic videotapes depicting girls between the ages of 6 and 13 years old. He subsequently received an order form, which he completed and mailed to the web site operators along with a check for $85. On April 3, 2001, two child pornographic video tapes arrived at Appellant's home as part of a controlled delivery. Hours later, Customs agents executed a search warrant of the home and recovered compact discs and computer diskettes containing in excess of 4,000 images of child pornography. During his plea hearing, Appellant admitted to the district court that he had "received child pornography over the internet."
3
The PSR noted Appellant admitted being suicidal and had voluntarily begun mental health counseling shortly after his arrest. His attorney also told the district court during sentencing that Appellant suffered from "profound psychological problems" and requested that Appellant be placed in a federal medical facility where he could receive appropriate treatment. The district court sentenced Appellant to a term of 33 months' imprisonment, with a recommendation that he be committed to a medical facility. The court also sentenced Appellant to a term of three years' supervised release, which included the following special conditions:
4
[1] You shall participate as directed in a program of mental health treatment including a sexual offender treatment program approved by the probation officer. You shall abide by the rules, requirements and conditions of the treatment program, including submitting to polygraph testing, at your own expense, to aid in the treatment and supervision process. The results of the polygraph examination may not be used as evidence in court to prove that a violation of community supervision has occurred, but may be considered in a hearing to modify release conditions.
5
Further, you shall be required to contribute to the costs of services for such treatment in an amount determined reasonable by the probation officer based upon ability to pay or availability of third-party payment and in conformance with the Probation Office's sliding scale for mental health treatment services. [2] You shall register with the State Sexual Offender Registration Agency [in] any State where you reside, visit, or are employed, carry on a vocation or are a student as directed by your probation officer. The probation officer will provide State officials with all information required under Florida Sexual Predators and Sexual Offender Notification and Registration Statutes and [may] direct you to report to these agencies personally for required additional processing such as photographic, fingerprinting and DNA collection.
6
[3] You shall have no direct contact with minors under the age of 18 without the written approval of the probation officer and shall refrain from entering into any area where children frequently congregate including schools, day care centers, theme parks, playgrounds, et cetera.... [4] You shall not possess or use a computer with access to any on-line service at any location, including employment, without written approval from the probation officer. This includes access through any Internet service provider, bulletin board system, or any public or private computer network system....2
7
After the district court imposed sentence, Appellant's counsel objected to the special conditions of supervised release:
8
And I would also like to state for the record my objections to the supervised release conditions that this Court has imposed. I think, well, I object in particular to the polygraph examination. I think that's not a proper condition of his supervised release. I think that, I strongly object to that condition Your Honor.
9
I also object to the restrictions as to the internet access. I think there's some First Amendment concerns there. I also object, I will say for the record I object to many of the restrictions this Court has put on his supervised release. I think it's unduly harsh. I think it also violates his Constitutional rights. The First and Eighth Amendments and I think that, I understand the Court's concern in these type of cases, but I think, I think the Court has been unduly harsh with Mr. Zinn. I think the supervised release constitutes an excessive punishment.
10
The district court overruled the objections. Appellant then filed a timely notice of appeal.
II. STANDARD OF REVIEW
11
This Court ordinarily reviews the district court's sentence of supervised release for abuse of discretion. See United States v. Bull, 214 F.3d 1275, 1278 (11th Cir.2000). Where a defendant fails to clearly state the grounds for an objection in the district court, however, he waives the objection on appeal and we are limited to reviewing for plain error. United States v. Delgado, 903 F.2d 1495, 1504 (11th Cir.1990); United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir.1993); see also United States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992) (noting that a defendant who fails to articulate a "clear objection" to a supervised release condition waives the objection on appeal). To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights. United States v. Richardson, 304 F.3d 1061, 1064 (11th Cir.2002).
12
Regarding the degree of clarity needed to preserve an objection for appeal, we have stated that:
13
Whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he should raise that point in such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.
14
Riggs, 967 F.2d at 564 (quoting United States v. Reyes-Vasquez, 905 F.2d 1497, 1500 (11th Cir.1990)). Thus, if a defendant fails to clearly articulate a specific objection during sentencing, the objection is waived on appeal and we confine our review to plain error.
III. DISCUSSION
15
On appeal, Appellant challenges the special conditions of supervised release: (1) requiring him to register as a sexual offender; (2) prohibiting him from entering places where children frequent; (3) requiring him to submit to polygraph testing; and (4) prohibiting him from using the Internet. As to the first two, we conclude the district court did not err and affirm without further discussion.3 We write, however, to address the remaining two special conditions.
A. Polygraph Testing
16
Appellant asserts the special condition requiring him to submit to polygraph testing: (1) is not reasonably related to the history and facts of this case, (2) improperly delegates judicial authority to the probation officer, (3) violates his Fifth Amendment privilege against self-incrimination, and (4) improperly requires him to pay for polygraph testing despite his inability to do so.
17
We will address each of these arguments seriatim. Before turning to the merits, however, we first consider the Government's contention that Appellant's challenge to the polygraph testing is generally not ripe for our review because supervised release has not yet begun.
18
1. Ripeness.
19
Federal courts are constrained under Article III to deciding only actual cases or controversies. U.S. CONST. art. III, § 2. As part of the case or controversy requirement, a party must come into immediate danger of suffering injury before a court may consider his claim. Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir.1999). Ripeness "prevent[s] the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements." Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). An injury need not have already occurred, however, for a controversy to be ripe. Rather, we have found claims on appeal ripe where they assert an imminent threat of future injury. Ecee Inc. v. Fed. Energy Regulatory Comm'n, 611 F.2d 554, 557 n. 7 (5th Cir. 1980).4
20
Contrary to the Government's assertions, Appellant's challenge to the polygraph exam is neither premature nor speculative. The district court's sentence, of which the conditions of supervised release are a part, is a final judgment immediately appealable to this Court. See 18 U.S.C. § 3742(a). Moreover, though he is presently incarcerated, it seems apparent that Appellant will be subject to the challenged condition upon his release from prison.5 See United States v. Davis, 242 F.3d 49, 51 (1st Cir.2001) (finding challenge to condition of supervised release was "not hypothetical" where supervised release was to begin immediately following prison sentence). By determining a challenge to the polygraph testing requirement to be generally ripe, however, we do not imply that all specific challenges to the implementation of this condition are necessarily ripe. In fact, as explained below, the reverse is true in this case.
21
2. Polygraph Testing Generally.
22
Turning to Appellant's challenge to the polygraph testing, we first consider his assertion on appeal that polygraph testing in general is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a). Counsel's statement during sentencing that polygraph testing is "not a proper condition" of supervised release, though perhaps imprecise, adequately conveyed the nature of his objection so as to preserve it for appeal. Therefore, we review the objection for abuse of discretion. See Bull, 214 F.3d at 1278.
23
18 U.S.C. § 3553 directs the sentencing court to consider:
24
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and]
25
(2) the need for the sentence imposed —
26
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
27
(B) to afford adequate deterrence to criminal conduct;
28
(C) to protect the public from further crimes of the defendant; and
29
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
30
18 U.S.C. § 3553(a). The court should "impose a sentence sufficient, but not greater than necessary" to achieve the statutory purposes. Id.
31
The United States Code further states that the district court may impose any condition of supervised release it deems appropriate so long as it comports with the factors enumerated in § 3553(a). 18 U.S.C. § 3583(d). Similarly, the federal Sentencing Guidelines permit the sentencing court to impose any conditions of supervised release that are "reasonably related" to the § 3553(a) factors, so long as the conditions "involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth [in § 3553(a)] and are consistent with any pertinent policy statements issued by the Sentencing Commission." U.S.S.G. § 5D1.3(b).
32
We have observed it is not necessary for a special condition to be supported by each factor enumerated in § 3553(a). Rather, each is an independent consideration to be weighed. Bull, 214 F.3d at 1278. Moreover, while the Sentencing Guidelines recognize that a condition of supervised release should not unduly restrict a defendant's liberty, a condition is not invalid simply because it affects a probationer's ability to exercise constitutionally protected rights. See Owens v. Kelley, 681 F.2d 1362, 1366 (11th Cir.1982).
33
Appellant admitted having severe psychological problems, including an affinity for child pornography. At the time of his arrest, he was in possession of thousands of pornographic images depicting children as young as six years old. The district court found it necessary to impose a sentence near the high end of the Guidelines for Appellant's own safety and rehabilitation "and the safety of the public." In light of Appellant's crime and personal history, we agree with the district court that he poses a danger to himself and others and is likely to require further rehabilitation upon his release from prison. Under the circumstances, we conclude polygraph testing to ensure compliance with probationary terms is both reasonably related to Appellant's offense and personal history, and when reasonably applied will not unduly burden his rights. Therefore, it was not an abuse of discretion for the district court to generally require Appellant's submission to polygraph testing. See also United States v. Music, 49 Fed.Appx. 393 (4th Cir.2002) (holding district court did not abuse its discretion in ordering polygraph testing on supervised release for defendant convicted of possessing child pornography).
34
3. Implementation of Polygraph Testing.
35
Appellant's remaining arguments6 regarding the condition requiring submission to polygraph testing can be fairly characterized as challenging the potential abuses in its implementation. Contrary to Appellant's assertions, he has not preserved these arguments for appeal and we are therefore limited to reviewing them for plain error.7
36
Appellant first asserts polygraph testing would violate the Fifth Amendment based on the principle that it is unconstitutional for the Government to compel him to "answer official questions put to him in any... proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). Seizing on this principle, he argues that if he is asked a potentially incriminating question during a polygraph exam, he will be unconstitutionally forced to choose between answering or refusing to answer at the risk of having his supervised release adversely modified.8
37
The Supreme Court has stated that a state may generally require a probationer to appear and discuss matters that affect his probationary status without violating the Fifth Amendment. Minnesota v. Murphy, 465 U.S. 420, 435, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984); see also United States v. Robinson, 893 F.2d 1244, 1245 (11th Cir.1990) (affirming revocation of convicted currency smuggler's probation where probationer violated condition of release by refusing to answer questions regarding sources of income). The Court in Murphy admitted some exceptions to the general rule, such as where a state forces a probationer to answer incriminating questions over a claim of privilege:
38
The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution.
39
Murphy, 465 U.S. at 435, 104 S.Ct. at 1146. The Court went on to note, however, that "questions put to a probationer [that] were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding" would not violate the Fifth Amendment. Id. at 435 n. 7, 104 S.Ct. at 1146 n. 7.9
40
It is undisputed that at this juncture there has been no potentially incriminating question or invocation of the privilege, much less any government compulsion to testify over a valid claim of privilege. Such an eventuality is within the realm of possibility, but hypothetical possibilities do not present a cognizable Fifth Amendment claim. As the First Circuit recently observed in rejecting a similar challenge, it would be pure speculation to assume such facts now simply because they might conceivably come to exist at some future time. See Davis, 242 F.3d at 52 ("Should the court revoke Davis's supervised release as a penalty for his legitimate exercise of his Fifth Amendment privilege, he remains free to challenge that action at the time it occurs. That eventuality, however, has not yet occurred (and may never occur)."). If and when Appellant is forced to testify over his valid claim of privilege, he may raise a Fifth Amendment challenge. In the meantime, we can only decide whether requiring polygraph testing as a condition of supervised release generally violates the Fifth Amendment so as to amount to plain error. We hold it does not.
41
For the same reasons, Appellant cannot demonstrate plain error in the district court's delegation of authority to the probation officer for overseeing Appellant's mental health treatment, including administration of polygraph exams. The district court's sentence was consistent with the Sentencing Guidelines, which expressly permitted the court to impose "a condition [of supervised release] requiring that the defendant participate in a mental health program approved by the United States Probation Office." U.S.S.G. § 5B1.3(d)(5), p.s. (emphasis added). Furthermore, we have recognized the vital role probation officers fulfill in effectuating the district court's sentence. See United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir.2001) ("For purposes of efficiency, district courts must be able to rely as extensively as possible on the support services of probation officers.") (internal quotations omitted) (citation omitted). Thus, the delegation of authority to the probation officer generally does not constitute plain error. And, while we might again conceive of a scenario where a probation officer abuses or oversteps his lawful authority, there is no reason to suspect at this time that such will be the case here.
42
Accordingly, the district court did not err in requiring Appellant's submission to polygraph testing as a condition of supervised release.
B. Restriction on Internet Usage
43
Appellant asserts the restriction on Internet usage is improper under 18 U.S.C. § 3583(d) because it is not reasonably related to legitimate sentencing considerations and overly burdens his First Amendment rights. Specifically, he argues the district court could have satisfied the statutory sentencing goals in relation to his offense without entirely foreclosing all Internet use. We review the special condition restricting Internet use for abuse of discretion. See Bull, 214 F.3d at 1278.
44
Whether a district court may prohibit a convicted child pornography offender from using the Internet while on supervised release is an issue of first impression in this circuit. The Fifth Circuit has upheld a complete ban on a convicted sex-offender's Internet use while on supervised release. See United States v. Paul, 274 F.3d 155, 169-70 (5th Cir.2001). Additionally, the Tenth Circuit has held a general prohibition against Internet use on supervised release is not error where the offender is allowed to use the Internet with his probation officer's prior permission. See United States v. Walser, 275 F.3d 981, 988 (10th Cir.2001).10 These courts have noted the strong link between child pornography and the Internet, and the need to protect the public, particularly children, from sex offenders. See, e.g., Paul, 274 F.3d at 169 ("The record reveals that Paul has in the past used the Internet to encourage exploitation of children by seeking out fellow `boy lovers' and providing them with advice on how to find and obtain access to `young friends.' Restricting his access to this communication medium clearly serves the dual statutory goals of protecting the public and preventing future criminal activity.").
45
We consider the reasoning in these cases persuasive and conclude there was no abuse of discretion in the district court's limited restriction on Appellant's Internet usage. We realize the Internet has become an important resource for information, communication, commerce, and other legitimate uses, all of which may be potentially limited to Appellant as a result of our decision. Nevertheless, the particular facts of this case highlight the concomitant dangers of the Internet and the need to protect both the public and sex offenders themselves from its potential abuses.11 We are also satisfied that the restriction in this case is not overly broad in that Appellant may still use the Internet for valid purposes by obtaining his probation officer's prior permission. As the Tenth Circuit observed in Walser, this relatively narrowly-tailored condition "readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing." Walser, 275 F.3d at 988.
46
We acknowledge that two other circuits have embraced a holding opposite from the one we adopt today. See United States v. Freeman, 316 F.3d 386 (3d Cir.2003); United States v. Sofsky, 287 F.3d 122 (2d Cir.2002). In Sofsky, the Second Circuit held a restriction on computer and Internet use was invalid even where there was an exception if the offender received his probation officer's approval. Sofsky, 287 F.3d at 126.12 In Freeman, the Third Circuit relied on Sofsky in reaching the same conclusion. Freeman, 316 F.3d 386.13 Although we appreciate these courts' concerns that restrictions on Internet usage may effect some deprivation of liberty, we agree with those courts holding that a limited restriction on a sex offender's Internet use is a necessary and reasonable condition of supervised release.
IV. CONCLUSION
47
The district court did not err in ordering Appellant to submit to polygraph examinations as part of his mental health treatment on supervised release. This condition is reasonably related to his offense and history, satisfies the statutory sentencing goals set forth in 18 U.S.C. § 3553(a), and does not unduly infringe on Appellant's liberties. Moreover, although the challenge to the polygraph exam is generally ripe for our review, certain of Appellant's arguments against polygraph testing lack merit because they depend on future contingency and speculation. If those contingencies come to fruition, Appellant may challenge the condition at the appropriate time. Finally, we hold the district court did not abuse its discretion by imposing a limited restriction on Appellant's Internet use during the period of supervised release.
48
AFFIRMED.
Notes:
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation
1
Appellant pled guilty without the benefit of a written plea agreement
2
In addition to these four special conditions of supervised release, Appellant was ordered not to possess materials depicting children in the nude or in sexually explicit positions, and to undergo periodic searches of his computer systems, person, and residence. He does not challenge these other conditions on appeal. The district court also ordered Appellant to perform community service and forfeit certain assets, which he has not challenged. In addition, although the applicable Sentencing Guidelines called for a fine between $6,000 and $60,000, both parties stipulated that Appellant was unable to pay a fine
3
See 11th Cir. R. 36-1.
4
InBonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
5
The Government suggests the probation officer might select a course of mental health treatment that does not include polygraph testing. Although this possibility might lend support to the Government's ripeness argument, we find no basis for it in the record. The district court ordered that Appellant "shall abide by the rules, requirements and conditions of the treatment program, including submitting to polygraph testing" (emphasis added). While there is room for interpretation, we construe this language as mandating polygraph testing as a component of mental health treatment.
6
We refer in this section mainly to Appellant's arguments that the polygraph testing violates his Fifth Amendment rights and unduly delegates authority to the probation officer. The remaining argument Appellant raised in support of his challenge to the polygraph testing was that by ordering Appellant to contribute to the costs of polygraph testing, the district court contravened its earlier finding that Appellant was unable to pay a fine. This argument is unavailing. Although the district court directed that Appellant pay for polygraph testing, it also stated during sentencing that the costs of mental health treatment, of which the polygraph testing was a component, would only be assessed to Appellant based on his ability to pay or the availability of third-party payment. We have previously observed that "[i]n determining the terms of a sentence, it is the intent of the sentencing judge which controls and that intent is to be determined by reference to the entire record."Bull, 214 F.3d at 1279 (citation omitted). As we did when confronted with similar circumstances in Bull, we conclude the only reasonable construction of the overall sentence in this case is that Appellant must pay for polygraph testing based on his ability to pay at the time the testing occurs. This instruction is not inconsistent with the district court's finding Appellant unable to pay a fine at the time of sentence, and did not constitute reversible error.
7
Appellant's counsel's argument to the district court that polygraph testing was "not a proper condition" of supervised release was inadequate to properly apprise the court of the very focused objections he now raises for the first time on appeal, including that the condition violates his Fifth Amendment rights and improperly delegates authority to the probation officer. As we have already indicated, the district court is not expected to read minds or independently conceive of every possible argument a party might raise in support of an objection. It is a defendant's—or his counsel's—burden to articulate the specific nature of his objection to a condition of supervised release so that the district court may reasonably have an opportunity to consider it. Similarly, we are unpersuaded that counsel's vague reference to Appellant's "Constitutional rights" was sufficient to preserve his objections for appeal
8
The district court expressly ordered as part of its sentence that "[t]he results of the polygraph examination may not be used as evidence in court to prove that a violation of community supervision has occurred, but may be considered in a hearing to modify release conditions." The court's order is unclear as to what type of "modification" might be a permissible response to a failed polygraph exam. We will assume without deciding that the potential consequences in refusing to answer would be sufficiently adverse to create a genuine Fifth Amendment dilemma
9
The Court held inMurphy that a Fifth Amendment privilege was not self-executing where a probationer is required to answer questions affecting his probation. In other words, even if the probationer gave incriminating testimony, such testimony would not be barred in a subsequent proceeding unless the probationer actually asserted a claim of privilege. See Murphy, 465 U.S. at 440, 104 S.Ct. at 1149. In this case, not only has Appellant not yet asserted a claim of privilege, he has not given any incriminating testimony or even been requested to give such testimony.
10
Walser clarified an earlier decision of the Tenth Circuit, United States v. White, 244 F.3d 1199 (10th Cir.2001), where the court held that a complete ban on Internet usage with no exceptions was improper under 18 U.S.C. § 3553(a). We are cognizant that White was decided under an abuse of discretion standard while in Walser the court was limited to reviewing for plain error. Nevertheless, the restriction at issue in this case is virtually identical to Walser's in that it allows Appellant to use the Internet with his probation officer's permission, and we find Walser's reasoning persuasive.
11
We reiterate that at the time he was arrested for the instant offense, Appellant was in possession of over 4,000 images of child pornography stored on computer diskettes and compact disks. Appellant's counsel admitted during oral argument that there is a "reasonable assumption" these images came from the Internet. Moreover, it is undisputed that Appellant used the Internet to facilitate the purchase of pornographic videotapes, ultimately leading to his arrest and conviction in this case
12
The Second Circuit inSofsky appeared to rely on its earlier decision in United States v. Peterson, 248 F.3d 79 (2d Cir.2001). In Peterson, the court rejected a prohibition on computer and Internet usage where the appellant had been convicted of larceny and the Internet restriction was actually related to a prior unrelated sex offense. Under those circumstances, the court held the restriction was neither reasonably related to the conviction nor reasonably necessary to achieving the statutory sentencing objectives. See id. at 82-83. Of course, that was neither the case in Sofsky nor here, where the restrictions bear a strong tie to the offenses that precipitated the sentences being challenged on appeal.
13
Freeman distinguished an earlier Third Circuit decision, United States v. Crandon, 173 F.3d 122 (3d Cir.1999), where the court had upheld a restriction on Internet use. In Crandon, the offender had actually contacted minors over the Internet. In Freeman, the offender had used the Internet to obtain child pornography, but had not directly contacted minors. According to the Third Circuit, only the former circumstance justified a limited restriction on Internet use. See Freeman, 316 F.3d 386. We disagree.
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04-26-2010
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OPINION — AG — THE 3% UNITED STATES TREASURY BOND, MATURING FEBRUARY 15, 1995, REFERRED TO IN YOUR LETTER AND IN THE MENTIONED RESOLUTION OF THE COMMISSIONERS OF THE LAND OFFICE, ARE " VALID " WITHIN THE MEANING OF THAT TERM USED IN 64 O.S.H. 51 AND THAT THE INVESTMENT OF THE PERMANENT SCHOOL FUNDS AND OTHER EDUCATIONAL FUNDS UNDER THE MANAGEMENT OF THE COMMISSIONERS OF THE LAND OFFICE, PURSUANT TO ARTICLE VII, ARTICLE VIII, ARTICLE XII OF THE ENABLING ACT, AND ARTICLE XI, OF THE STATE CONSTITUTION, IN WHICH BONDS IS " WITHIN THE LEGAL AUTHORITY " OF THE COMMISSIONERS OF THE LAND OFFICE, WITHIN THE MEANING OF THE TERM AS USED IN 64 O.S.H. 51; PROVIDED, THAT SUCH INVESTMENT WOULD LEAVE SUFFICIENT MONEYS ON HAND TO CLOSE ALL APPROVED APPLICATIONS FOR FIRST MORTGAGE LOANSAS MAY BE APPROVED FROM TIME TO TIME BY THE COMMISSIONERS OF THE LAND OFFICE. CITE: 64 O.S.H. 51, ARTICLE XI, SECTION 6 (JAMES HARKIN)
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/1278935/
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695 N.W.2d 43 (2004)
RODRIQUEZ-PEREZ v. STATE
No. 03-1458
Court of Appeals of Iowa.
November 15, 2004.
Decision without published opinion. Affirmed.
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01-03-2023
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10-30-2013
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASPER B. MACKEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-96-135-V, CA-00-162)
Submitted: June 25, 2002 Decided: October 1, 2002
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jasper B. Mackey, Jr., Appellant Pro Se. Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jasper B. Mackey, Jr. seeks to appeal the district court’s
order construing his motion filed under 18 U.S.C. § 3742 (1994) as
a motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001) and
denying the motion. We have reviewed the record and the district
court’s order 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. Mackey, Nos.
CR-96-135-V; CA-00-162 (W.D.N.C. Feb. 1, 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
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07-04-2013
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890 N.E.2d 119 (2008)
MARSHALL
v.
STATE.
No. 31A01-0711-CR-522.
Court of Appeals of Indiana.
July 11, 2008.
MAY, J.
Disposition of case by unpublished memorandum decision. Affirmed.
VAIDIK, J. Concurs.
MATHIAS, J. Concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2072407/
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872 N.E.2d 700 (2007)
LEWIS
v.
STATE.
No. 57A03-0701-CR-03.
In the Court of Appeals of Indiana.
August 22, 2007.
BAKER, C.J.
Unpublished memorandum decision. Affirmed.
BAILEY, J. Concurs.
VAIDIK, J. Concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2103823/
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898 N.E.2d 1229 (2008)
PHILLIPS
v.
STATE.
Supreme Court of Indiana.
November 6, 2008.
Transfer denied. All Justices concur.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/239673/
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234 F.2d 380
CITY OF DETROIT and County of Wayne, Appellants,v.The MURRAY CORPORATION OF AMERICA, a Delaware corporation,Appellee, and United States of America, Intervenor.
No. 12678.
United States Court of Appeals Sixth Circuit.
June 16, 1956.
Thomas J. Foley, Detroit, Mich., Gerald K. O'Brien, Hobart Taylor, Jr., Philip A. McHugh, Detroit, Mich., on brief, for Wayne County.
Julius C. Pliskow, Detroit, Mich., Paul T. Dwyer, Bert R. Sogge, Vance G. Ingalls, Detroit, Mich., on brief, for City of Detroit.
Victor W. Klein, Detroit, Mich., Wm. M. Saxton, Butzel, Eaman, Long, Gust & Kennedy, Detroit, Mich., on brief, for Murray Corp.
Lyle M. Turner, Washington, D.C., Charles K. Rice, Lee A. Jackson, Hilbert P. Zarky, Erwin A. Goldstein, Washington, D.C., Jerome S. Hertz, Mount Rainier, Md., Fred W. Kaess, John L. Owen, Detroit, Mich., on brief, for the United States.
Before ALLEN and MARTIN, Circuit Judges, and STARR, District Judge.
MARTIN, Circuit Judge.
1
In three separate actions consolidated on this appeal, brought by The Murray Corporation of America in which the United States of America intervened, the District Court awarded summary judgments in favor of the plaintiff in the total amount of $76,748.47 against the City of Detroit covering personal property taxes illegally collected in two installments for the year 1952 and for $14,116.30 against the County of Wayne, Michigan, for personal property tax illegally collected.
2
The intervention of the United States was permitted for the reason that the Government claimed ownership of the personal property upon which the tax assessments were made by the City and the County respectively. Concededly, no genuine issue on any material fact was presented, and therefore summary judgment was the proper proceeding for disposition of the issues of law involved.
3
The assessment of more than $2,000,000.00 in controversy was made against The Murray Corporation of America on personal property in its possession under two letter sub-contracts respectively with 'Kaiser' Corporation and 'Wright' Corporation, each under and pursuant to letter prime contracts between the United States Government and Kaiser and Wright corporations respectively. These letter sub-contracts covered the manufacture of specified parts and assemblies required under the prime contracts for the United States Air Force for the national defense. These sub-contracts and amendments thereto were approved by a contracting officer of the United States Air Force in accordance with the requirements of the prime contract.
4
Included in these letter sub-contracts, by amendment, was a partial payment clause which, as stated by the District Judge, presents the nub of the present controversy. This clause in substance provided that upon the making of any partial payment, title to all parts, materials, inventories, work in process, and non-durable tools theretofore acquired or produced by the contractor for the performance of the contract and properly chargeable to the contract under sound accounting practices should forthwith vest in the Government; and title to all like property thereafter acquired or produced by the contractor for performance of the contract and properly chargeable as aforementioned should vest in the Government forthwith upon such acquisition or production.
5
The assessment date under Michigan law with which we are concerned was January 1, 1952, Comp.Laws Supp.1954, § 211.13. During 1951, the Murray Corporation upon its several requests, audited and approved by a contracting officer of the United States Air Force, received partial payments from Kaiser of more than $163,000.00 and from Curtis Wright (successor to Wright Aeronautical Corporation) of more than $510,000.00.
6
In his clear-cut opinion, District Judge Thornton analysed the respective positions of the contending parties. The important points made by Murray were that the taxes assessed were ad valorem taxes upon property and not privilege taxes assessed against the taxpayer; that property owned by the federal Government is immune from local ad valorem property taxes; that a federal question is presented for determination under federal and not under state law; that the partial payment clauses vesting title in the federal Government were fully authorized and effective; that under the partial payment clauses title to the property in question was vested in the United States on the assessment date, and that this is an absolute and not a bare lien or security title; that Murray is the real party in interest and so entitled to bring the actions; and that the equitable arguments advanced by the City and County have been entirely rejected by the Supreme Court of the United States.
7
The United States took substantially the same position and contends that the assessment was upon its property and therefore invalid under the federal Constitution, art. 6, cl. 2.
8
The position of the City of Detroit was in effect that the partial payment and transfer of title clause was not authorized nor in conformity with federal statutes; that the inclusion of the clause would not defeat an ad valorem tax on personal property in the hands of an independent sub-contractor acquired in the course of carrying out the provisions of a sub-contract for defense production; and that the course of action and dealing with the property was inconsistent with the vesting of absolute title in the United States and the Government therefore acquired merely a lien or title for security purposes leaving Murray vested with an equitable title to the personal property subject to an ad valorem property tax.
9
The County of Wayne took the same position assumed by the City of Detroit with the added contention, which is clearly not meritorious, that the Murray Corporation is not the real party in interest.
10
We agree with the finding of the District Court that the partial payment clauses are not invalid for want of authority or for non-conformity with the federal statutes. We concur also in the conclusion of the trial court that 'a reading of the Partial Payment Clause leaves no doubt that, upon the making of a partial payment, title to parts, materials, etc., acquired for the performance of the contract vests in the United States Government as does title to all property subsequently acquired for the performance of the contract.'
11
Among the numerous decisions of the Supreme Court of the United States upon the question of the immunity of Government property from state taxation we think United States v. County of Allegheny, 322 U.S. 174, 64 S. Ct. 908, 88 L. Ed. 1209, is controlling authority in the instant case. In our judgment, the facts of that case are not in any material aspect distinguishable from the facts encountered here. In the Allegheny case, the United States made a contract with a machine company in Pennsylvania for the manufacture of large field guns. The private corporation's plant though used for the manufacture of heavy machinery was not equipped for the manufacture of ordnance. It was agreed that certain additional machinery required for the work should be furnished at Government expense and should remain property of the United States. In performance of the agreement the contractor manufactured one machine, the Government furnished eight gun-boring lathes and the rest of the needed equipment was purchased by the contractor from other machine tool manufacturers. The machinery bought or built by the manufacturer was inspected and accepted on behalf of the United States which compensated the contractor therefor. The contract provided that the title to all such property should vest in the Government upon delivery at the site of work and upon inspection and acceptance. The Government leased the equipment to the contractor during the period for which the guns were manufactured. The machinery was bolted on concrete foundations in the contractor's plant on real estate owned by it and could be removed without damage to the building. The Supreme Court of Pennsylvania upheld the assessment by Allegheny County upon the ground that under the state law regardless of who held title to it, the machinery constituted a part of the contractor's mill for purposes of assessment and had been properly assessed as real estate. Both the contractor and the United States, which had intervened in the state litigation, appealed to the Supreme Court of the United States. That highest tribunal held that the substance of the procedure by the state assessors was to lay an ad valorem general property tax on property owned by the United States and that the Government-owned property, to the full extent of its interests therein, is immune from taxation, either as against the Government itself or as against one holding the property as bailee. The judgment of the State Supreme Court was reversed as violative of the federal Constitution.
12
Upon analysis, we think that substantially all of the arguments advanced by appellant were rejected by the Supreme Court in the Allegheny case. The Supreme Court declared that the principle is unshaken, indeed rarely questioned, that 'possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation.' 322 U.S. 177, 64 S. Ct. 911.
13
In the earlier case of United States v. Ansonia Brass & Copper Company, 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107, the Supreme Court had held that vessels in course of construction for the United States, the title to which under the contract vests in the Government as fast as constructed, become instrumentalities of the Government and for reasons of public policy cannot be seized under state laws to answer private claims. In the later case of Kern-Limerick, Inc., v. Scurlock, 347 U.S. 110, 74 S. Ct. 403, 98 L. Ed. 546, the Supreme Court distinguished State of Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43, 86 L. Ed. 3, upon the ground that under the contract involved in the Kern-Limerick case the United States was the real purchaser. The Arkansas gross receipts tax law was held unconstitutional as applied to transactions whereby private contractors procured in Arkansas two tractors for use in constructing a naval ammunition depot for the United States under a cost-plus-fixed-fee contract entered into with the Navy Department which provided that in procuring needed articles, the contractor should act as purchasing agent for the Government, title to the articles purchased should pass directly from the vendor to the Government and the Government should be directly responsible to the vendor for payment of the purchase price.
14
We think that reliance of the City of Detroit upon the following cited authorities is not well placed: Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S. Ct. 800, 97 L. Ed. 1174; James v. Dravo Contracting Co., 302 U.S. 134, 58 S. Ct. 208, 82 L. Ed. 155; Graves v. New York, 306 U.S. 466, 59 S. Ct. 595, 83 L. Ed. 927; and Helvering v. Mountain Producers Corporation, 303 U.S. 376, 58 S. Ct. 623, 82 L. Ed. 907. All of these cases involve excise or privilege taxes, where a privilege exercised by the contractor was taxed to him although the economic burden was passed along by him to the Government. The incidence of the privilege taxes was upon the contractor while in the case at bar an ad valorem property tax had been assessed upon property the title to which is vested in the United States and the incidence of the tax is directly and solely upon the property assessed.
15
In the Esso Standard Oil Company case the Government had agreed to assume liability of all estate taxes in connection with a storage contract made by it with a private corporation. The Allegheny County case was thus distinguished:
16
'Allegheny County, however, was quite different. The United States had leased certain machinery to the Mesta Machine Company. In imposing the state ad valorem property tax, Pennsylvania included in the Mesta assessment both the privately owned land and buildings, and the government machinery. * * * So the value of the federal property was, in part, the measure of the tax. We held the substance of this procedure was 'to lay an ad valorem general property tax on property owned by the United States', * * * and therefore invalid. Our holding was not 'dependent upon the ultimate resting place of the economic burden of the tax.'* * *
17
'This tax was imposed because Esso stored gasoline. It is not, as the Allegheny County tax was, based on the worth of the government property. Instead, the amount collected is graduated in accordance with the exercise of Esso's privilege to engage in such operations; so it is not 'on' the federal property as was Pennsylvania's.' 345 U.S. 499, 73 S. Ct. 802.
18
In our judgment S.R.A., Inc., v. Minnesota, 327 U.S. 558, 561, 66 S. Ct. 749, 752, 90 L. Ed. 851, is not apposite for the reason that in that case the contract involved transferred the equity in the land to the purchaser, leaving in the United States only a legal title as security, rendering it the equivalent of a mortgage. The opinion pointed out that no state has power to tax property of the United States against its will; and stated that 'under an implied Constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters.' M'Culloch v. Maryland, 4 Wheat. 316, 425, 4 L. Ed. 579; Van Brocklin v. Tennessee, 117 U.S. 151, 177, 6 S. Ct. 670, 29 L. Ed. 845; and United States v. Allegheny County, 322 U.S. 174, 176-177, 64 S. Ct. 908, 88 L. Ed. 1209, were cited.
19
The several judgments of the District Court from which the appeals were taken in the instant controversy are affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4535
LARRY WARREN JOHNSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4536
LARRY WARREN JOHNSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-53-F, CR-00-52-F)
Submitted: June 27, 2002
Decided: October 1, 2002
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph B. Gilbert, MCNEIL & GILBERT, Jacksonville, North Caro-
lina, for Appellant. John Stuart Bruce, United States Attorney, Anne
2 UNITED STATES v. JOHNSON
M. Hayes, Assistant United States Attorney, Felice McConnell Cor-
pening, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Warren Johnson was convicted by a jury on one indictment
of theft of U.S. Postal Service money orders, 18 U.S.C.A. § 500
(West 2000), submission of false documents to the U.S. Postal Ser-
vice, 18 U.S.C.A. § 1001(a)(3) (West 2000), and misappropriation of
U.S. Postal Service funds by a postal service employee, 18 U.S.C.A.
§ 1711 (West 2000). On a separate indictment, the jury convicted
Johnson of robbery of a U.S. Postal Service highway contract driver,
18 U.S.C.A. § 2114 (West 2000), and brandishing a firearm during a
crime of violence, 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000). John-
son was sentenced to 130 months imprisonment. On appeal, he main-
tains that there was insufficient evidence to support his convictions
for postal robbery and brandishing a firearm. We affirm.
This court must affirm the conviction if there is substantial evi-
dence, when viewed in the light most favorable to the Government,
to support the verdict. Glasser v. United States, 315 U.S. 60, 80
(1942). In determining whether the evidence is substantial, this court
views the evidence in the light most favorable to the Government and
inquires whether there is evidence sufficient to support a finding of
guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of
the evidence, this court does not review witness credibility and
assumes the fact finder resolved all contradictions in the evidence in
the Government’s favor. United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998). The fact finder, not the reviewing court, weighs the
UNITED STATES v. JOHNSON 3
credibility of the evidence and resolves any conflicts in the evidence
presented, and if the evidence supports different reasonable interpre-
tations, the jury decides which to believe. United States v. Murphy,
35 F.3d 143, 148 (4th Cir. 1994).
We have carefully reviewed the record and we find sufficient evi-
dence to support Johnson’s convictions for postal robbery and bran-
dishing a firearm. Accordingly, we affirm Johnson’s convictions and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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198 P.3d 511 (2008)
JENKINS
v.
WEYERHAEUSER CO.
No. 81649-2.
Supreme Court of Washington, Department I.
December 2, 2008.
Disposition of petition for review. Denied.
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JUSTICE DiVITO, dissenting: In my judgment, the public guardian’s position in this case represents an unwarranted extension of People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 441 N.E.2d 54, and an impermissible intrusion by the judiciary into the executive branch of the government. I would affirm the judgment below and hold that the trial court cannot, consistent with the principle of separation of powers, order the State’s Attorney to prosecute a Juvenile Court Act petition. As noted by the majority, Vazquez holds only that the court can order the State’s Attorney to file a Juvenile Court Act petition without violating the principle of separation of powers. In so holding, the Vazquez court expressly relied on the provisions of the Juvenile Court Act allowing “[a]ny responsible adult” to file a petition, authorizing probation officers to investigate and evaluate delinquency allegations, and generally “providing] a number of avenues of access to the juvenile court for minors in need of its services.” (People ex rel. Davis v. Vazquez, 92 Ill. 2d at 150-51.) Because the filing of a petition is not a matter within the “exclusive executive discretion of the State’s Attorney,” the court reasoned, the State’s Attorney can be ordered to file a petition without violating the principles of separation of powers. Vazquez, however, is not authority for the public guardian’s position in this case. Unlike the filing of a petition, which, I must concede, is not within the exclusive control of the State’s Attorney, the prosecution of a petition is an exclusively executive function. Section 2 — 13(1) of the Juvenile Court Act provides that, in addition to the State’s Attorney, “[a]ny adult person, any agency or association by its representative may file *** a petition in respect of a minor under [the] Act.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(1).) Once a petition has been filed, however, no person, agency, or association, other than the State’s Attorney, is vested with authority to prosecute the petition, although the court may in its discretion allow private counsel or a special prosecutor to assist the State’s Attorney. (See In re Hillyer (1980), 82 Ill. App. 3d 505, 403 N.E.2d 36; In re Teague (1966), 77 Ill. App. 2d 55, 221 N.E.2d 790; In re Morris (1947), 331 Ill. App. 417, 73 N.E.2d 337; People v. Hinton (1947), 330 Ill. App. 130, 70 N.E.2d 261.) Indeed, section 1 — 6 of the Act plainly provides that “[t]he State’s Attorneys of the several counties shall represent the people of the State of Illinois in proceedings under this Act[.]” Ill. Rev. Stat. 1987, ch. 37, par. 801 — 6. Thus, Vazquez is easily distinguished from the present case on the ground that the prosecution of a petition, as opposed to the mere filing of a petition, is the sole responsibility of the State’s Attorney. For the same reason, the public guardian’s reliance on Sullivan v. Sullivan (1982), 110 Ill. App. 3d 714, 442 N.E.2d 1348, is misplaced. That case, in my judgment, was wrongly decided because the court failed to recognize that Vazquez applies only to the filing of a petition, not to functions, like the prosecution of a petition, within the State’s Attorney’s exclusive domain. Because the prosecution of a Juvenile Court Act petition is a matter within the exclusive executive discretion of the State’s Attorney, I would accept the public defender’s argument in this case, that the trial court was without constitutional authority to deny its motion to dismiss the petition. The contrary position is not only without support in the Act or in the case law, but would lead to awkward results. For example, if the State’s motion to dismiss the petition were denied, the State would be compelled to prosecute a petition which it deemed to be without merit. In Sullivan v. Sullivan (1982), 110 Ill. App. 3d 714, 442 N.E.2d 1348, where the court ordered the State’s Attorney to prosecute a petition for custody change based on parental neglect, the prosecutor, who sought to dismiss the action and refused to participate, became a party to the proceeding in name only. I do not believe, as the majority suggests, that the interests of the child are protected by this type of procedure. On the contrary, I believe that the interests of the child are better served by the refiling of a petition, if warranted, by the State’s Attorney or any other person authorized to file a petition, and subsequent prosecution by a zealous State’s advocate. Finally, in my view, the majority’s decision not to reach the issue clearly raised on this appeal is unwarranted. The majority concludes only that the State’s motion to dismiss the petition should have been considered on its merits. The majority apparently believes it is necessary for the court to hear the merits of the motion to protect the interests of the child. The same facts, however, which might warrant a denial of the motion could come to the court’s attention by the initiation of another proceeding by any person authorized to file a petition. In my opinion, this procedure would adequately protect the interests of the child without any intrusion by the court on the State’s Attorney’s prosecutorial domain. In any event, a hearing on the merits would plainly be a fruitless procedure if the trial court is without constitutional authority to deny the motion and compel prosecution of the case. On the other hand, constitutional considerations aside, if the court allows the motion following a hearing on the merits, appeals challenging the trial court’s exercise of discretion would no doubt follow. The majority has offered no guidance with respect to the standard of proof required in the trial court or the standard of review on appeal. Indeed, I do not believe there is any authority for allowing appeals such as this one by the public guardian absent a grant of leave by this court. For the foregoing reasons, I would affirm the judgment of the circuit court.
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695 N.W.2d 76 (2005)
ROSE
v.
DURLING.
No. 127048.
Supreme Court of Michigan.
April 26, 2005.
SC: 127048. COA: 253778.
On order of the Court, the application for leave to appeal the August 19, 2004 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10088
Plaintiff-Appellee, D.C. No.
v. CR-00-01163-PGR
TONY MIX, ORDER
Defendant-Appellant. AMENDING
OPINION AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Submitted February 16, 2006*
San Francisco, California
Filed March 30, 2006
Amended Opinion Filed June 8, 2006
Second Amended Opinion Filed August 9, 2006
Before: Arthur L. Alarcón and M. Margaret McKeown,
Circuit Judges, and H. Russel Holland,**
Senior District Judge.
Opinion by Judge Alarcón
*The panel unanimously finds this case suitable for submission on the
record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth
Circuit Rule 34-4.
**The Honorable H. Russel Holland, Senior United States District
Judge for the District of Alaska, sitting by designation.
9109
9112 UNITED STATES v. MIX
COUNSEL
Tonya J. McMath, Phoenix, Arizona, for the defendant-
appellant.
Linda C. Boone, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
ORDER
The mandate in United States v. Mix, 450 F.3d 375 (9th
Cir. 2006) is recalled. The opinion is amended as follows. On
page 380, in the second paragraph of section II A, the follow-
ing language is deleted:
UNITED STATES v. MIX 9113
After Booker, the departure Guidelines (U.S.S.G.
§ 5K1 and § 5K2) remain operative. An accurate
guideline range calculation may still properly require
consideration and correct application of the depar-
ture Guidelines.
The clerk is directed to file the attached amended opinion
as revised and to issue the mandate forthwith.
OPINION
ALARCÓN, Circuit Judge:
Tony Mix was convicted of two counts of kidnaping, five
counts of aggravated sexual abuse, and two counts of assault
with a deadly weapon committed within the confines of the
Navajo Indian Reservation. He appeals from the district
court’s sentencing decision. He contends that the imposition
of a life sentence was unreasonable and inconsistent with the
requirements of 18 U.S.C. § 3553(a). He also maintains that
the district court’s application of the Supreme Court’s deci-
sion in United States v. Booker, 543 U.S. 220 (2005), in its
sentencing decision violated his rights under the Fifth and
Sixth Amendments of the United States Constitution.
We affirm because the sentence imposed by the district
court was reasonable. We also hold that the district court’s
application of Booker to its sentencing decision did not vio-
late Mr. Mix’s rights under the Due Process clause of the
Fifth Amendment, nor did the district court violate the Sixth
Amendment in failing to submit sentence enhancing factors to
the jury.
I
A
The evidence presented by the prosecution at trial demon-
strated that Mr. Mix committed numerous violent acts of sex-
9114 UNITED STATES v. MIX
ual and physical assault against his live-in companion
between 1998 and 2000. She was too frightened to report him
to the police until October 30, 2000. Her physical injuries on
that date were so severe that her examining physician testified
that she had never seen so much trauma to a sexual assault
victim who had survived. The physician was so distressed by
the severity of the victim’s injuries that she had to leave the
room to cry and compose herself before she could administer
medical treatment. Two other women testified that they had
been physically and sexually abused by Mr. Mix during their
relationship with him. During the sentencing proceedings, the
district court commented that Mr. Mix’s violent acts against
women were “perhaps one of the most brutal, if not the most
brutal, set of circumstances that the [district] Court has had
the misfortune to preside over.”
The jury found Mr. Mix guilty of each crime alleged in the
indictment. The district court adopted the recommendations
set forth in the presentence report (“PSR”). The court
departed upward pursuant to U.S.S.G. § 5K2.3 for extreme
psychological injury, § 5K2.8 for extreme conduct, § 5K2.21
for uncharged conduct. The court denied Mr. Mix’s request
for a downward departure.
Mr. Mix was sentenced to life imprisonment for commit-
ting Kidnaping, as charged in Counts One and Nine, and
Aggravated Sexual Abuse, as charged in Counts Two, Three,
Four, Five and Six. He was sentenced to serve one hundred
and twenty months for committing Assault with a Dangerous
Weapon, as charged in Counts Seven and Eight to be served
consecutive to each other and concurrent to the sentences
imposed on Counts One through Six and Count Nine.
Mr. Mix filed a timely appeal from the judgment and con-
viction on March 14, 2002. In an unpublished opinion issued
before the Supreme Court’s decision in Booker, we affirmed
the judgment of conviction, but reversed the sentence in part,
and remanded for resentencing. United States v. Mix, 77 Fed.
UNITED STATES v. MIX 9115
Appx. 986, 990 (9th Cir. 2003). We held that the district court
erred in departing upward for uncharged conduct pursuant to
§ 5K2.21 because that sentencing guideline did not become
effective until November 1, 2000, one day after Mr. Mix’s
last charged offenses. Id.
B
On remand, the district court postponed resentencing until
after the publication of Booker; and, in consideration of
Booker, the district court again imposed concurrent life sen-
tences as to Counts One through Six and Nine and consecu-
tive 120-month sentences as to Counts Seven and Eight, the
latter sentences to run concurrent with the life sentences.
Before resentencing Mr. Mix, the court heard lengthy argu-
ments from counsel, and heard Mr. Mix’s allocution. The dis-
trict court adopted the presentence report “in all respects,
factually, and legally, and insofar as the guideline computa-
tions are concerned except as will be further addressed by this
court.” The district court then recited at length the grisly cir-
cumstances of Mr. Mix’s offenses, including his long history
of violence toward women. Turning to legal considerations,
the court observed that “Apprendi . . . has no application to
this case.” However, the district court said, “[t]he Booker
decision in its majority [decision] issued by Justice Breyer
clearly applies to this case.”
Having discussed both the facts of the case and the law
applicable to it, the district court turned to the application of
Sentencing Commission Guidelines and 18 U.S.C. § 3553(a)
sentencing factors. In the discussion that followed, the district
court expressly touched upon § 3553(a)(1) and (2) factors:
nature of the offense, history and characteristics of the defen-
dant, the promotion of respect for law, just punishment for
offenses, deterrence, and protection of the public.1
1
In consideration of the sentencing factors just discussed, the court
observed that the educational or vocational needs of the defendant were
in this instance “subservient” to the other requirements of § 3553(a).
9116 UNITED STATES v. MIX
At the end of its discussion of § 3553(a) sentencing factors,
the district court briefly returned to the matter of a guideline
sentence calculation, which had been adopted from the pre-
sentence report. As it had done in the first sentencing of Mr.
Mix, the district court made express mention of an upward
departure for extreme conduct, U.S.S.G. § 5K2.8, and for
extreme psychological injury, U.S.S.G. § 5K2.3. Also, but
without express reference to U.S.S.G. § 5K2.21, the applica-
tion of which had occasioned the remand of the case for
resentencing, the district court observed that it had previously
imposed an upward departure on the basis of that guideline
and that “in view of the Booker decision, it is not unreason-
able for this Court to conclude that any guideline that is effec-
tive at the date of sentencing would be appropriate for the
Court to consider as an advisory nature. I see no ex post facto
issues . . . .” The district court ended its presentence discus-
sion with the conclusion that
the use of the term “departures” is no longer relevant
and/or appropriate. But the Court concludes that the
guidelines do not sufficiently provide for the hei-
nous, brutal, continued nature upon the victims in
this case and it is going to consider a variance to the
degree necessary in imposing the following sen-
tences.
With the foregoing explanations, the court imposed a life
sentence. Mr. Mix filed a timely notice of appeal of the sen-
tence imposed upon remand. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II
Mr. Mix seeks reversal of the district court’s sentencing
decision on discrete grounds. He argues that the life imprison-
ment sentence imposed by the district court is unreasonable
because it erroneously applied § 5K2.21 as the basis for an
upward departure and failed to consider mitigating sentencing
UNITED STATES v. MIX 9117
factors pursuant to 18 U.S.C. § 3553(a)(1). He also maintains
that the district court’s application of the Booker decision in
resentencing him violated his Fifth Amendment right to due
process and his Sixth Amendment right to have a jury make
findings regarding facts that would support an upward depar-
ture.
A
[1] In United States v. Cantrell, 433 F.3d 1269, 1279-81
(9th Cir. 2006), we adopted a two-step procedure for review-
ing sentences imposed following the date the Supreme Court
issued its opinion in Booker. We held that district courts are
not mandated to sentence within an applicable guideline range
because the Sentencing Guidelines are advisory—not manda-
tory. Id. at 1279 (citing Booker, 543 U.S. at 259-60). District
courts, however “ ‘must consult [the] Guidelines and take
them into account when sentencing,’ even though they now
have the discretion to impose non-Guidelines sentences.” Id.
(quoting Booker, 543 U.S. at 264). This consultation require-
ment from Booker means that a district court must calculate
correctly the sentencing range prescribed by the Guidelines.
“In other words, as was the case before Booker, the district
court must calculate the Guidelines range accurately. A misin-
terpretation of the Guidelines by a district court ‘effectively
means that [the district court] has not properly consulted the
Guidelines.’ ” Id. at 1280 (quoting United States v. Crawford,
407 F.3d 1174, 1178-79 (11th Cir. 2005)). In addition, a dis-
trict court must apply the factors enumerated in 18 U.S.C.
§ 3553(a) in its sentencing decision. Id. at 1279-80.
[2] In order to calculate the applicable Guidelines range for
a case, a sentencing court must first determine which Guide-
lines apply to the case. U.S.S.G. § 1B1.11 addresses this sub-
ject, and begins with the general proposition that a court will
use the Guidelines Manual in effect on the date of sentencing.
However, U.S.S.G. § 1B1.11(b)(1) provides:
9118 UNITED STATES v. MIX
If the court determines that the use of the Guidelines
Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of
the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the
offense of conviction was committed.
In an appeal from a sentencing decision, we must first
determine whether the district court properly considered the
applicable Sentencing Guidelines. Cantrell, 433 F.3d at 1279-
81. If the district court incorrectly construed the Sentencing
Guidelines, we must vacate the sentence and remand for
resentencing. Id. at 1280. We review a district court’s inter-
pretation of the Sentencing Guidelines de novo. We review
the application of the Sentencing Guidelines to the facts of the
case for abuse of discretion and factual findings for clear
error. United States v. Smith, 424 U.S. 992, 1015 (9th Cir.
2005). If we conclude that the district court did not err in
applying the Sentencing Guidelines, we review the sentence
for reasonableness in light of the factors set forth in 18 U.S.C.
§ 3553(a). Cantrell, 433 F.3d at 1280.
The first issue Mr. Mix has raised in this appeal is whether
the sentence was reasonable. We conclude that it was.
B
[3] On resentencing Mr. Mix, the district court adopted the
guideline analysis of the presentence report and made it clear
that, while it believed that it might consider U.S.S.G.
§ 5K2.21, it did not do so. As reflected by the court’s long
exposition of what took place in sentencing Mr. Mix, it is
abundantly clear that the district court imposed a sentence
outside of the Guidelines based upon consideration of
§ 3553(a) factors that the district court believed had not been
adequately taken account of by the Guidelines calculation.
The district court’s statement that use of the term “departure”
was not relevant or appropriate in this case clearly signaled
UNITED STATES v. MIX 9119
that the court was not imposing a guideline sentence. Having
considered the applicable Guidelines range based upon the
presentence report, the district court expressly stated that in
Mr. Mix’s case, “the guidelines do not sufficiently provide for
the heinous, brutal, continued nature [of violence] upon the
victims in this case and it is going to consider a variance to
the degree necessary to impose the following sentences.”
[4] We conclude that the district court properly considered
the applicable Guidelines because it determined not to effect
an upward departure based on U.S.S.G. § 5K2.21. Mr. Mix
argues that the life sentence imposed by the district court is
unreasonable because it erroneously applied § 5K2.21 as the
basis for an upward departure. This argument conflates guide-
line sentencing review with post-Booker sentencing review.
As set out above, the district court was obligated to undertake
a correct Guidelines range calculation, and under Booker, the
district court was required to take account of § 3553 sentenc-
ing factors as well. The district court did both. There was no
guideline calculation error because the district court did not
calculate a guideline range including a § 5K2.21 departure or
impose a sentence based on a guideline departure.
C
[5] As regards post-Booker sentencing, Mr. Mix contends
that the district court failed to consider the mitigating sentenc-
ing factors set forth in 18 U.S.C. § 3553(a)(1). As discussed
in considerable detail above, the district court considered at
length and in great detail the nature of Mr. Mix’s offenses.
Section 3553(a)(1) also required the district court to consider
Mr. Mix’s personal history and characteristics. That is exactly
what the court did when it considered Mr. Mix’s 17-year his-
tory of violence toward women. There is no ex post facto
problem here because § 3553(a) has been the law of the land
since 1984. The district court aptly considered other
§ 3553(a)(2) factors as well.
9120 UNITED STATES v. MIX
Mr. Mix contends that in imposing a life sentence, the dis-
trict court “ignored all the evident § 3553(a) factors which
militate in favor of leniency.” He argues that
[w]hile the sentencing court here dwelled at length
on “the nature and circumstances of the offense” and
Mix’s “history” as it relates to other uncharged con-
duct . . . , the Court failed to so much as pay lip ser-
vice to the wealth of information available to it
regarding Mix’s “history and characteristics” relat-
ing to his mental health.
Mr. Mix also maintains that the district court failed to con-
sider his “record of employment, his military contributions,
and his lack of guidance as a youth.”
[6] “Judges need not rehearse on the record all of the con-
siderations that 18 U.S.C. § 3553(a) lists; it is enough to cal-
culate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.” United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005). A dis-
trict court is not required to refer to each factor listed in
§ 3553(a). United States v. Simpson, 430 F.3d 1177, 1186
(D.C. Cir. 2005); see also United States v. Ayers, 428 F.3d
312, 315 (D.C. Cir. 2005) (“[W]e ordinarily presume a district
court imposing an alternative non-Guidelines sentence took
into account all the factors listed in § 3553(a) and accorded
them appropriate significance.”). “[A] checklist recitation of
the section 3553(a) factors is neither necessary nor sufficient
for a sentence to be reasonable.” United States v. Smith, ___
F.3d ___, 2006 WL 367011, at *2 (5th Cir. Feb. 17, 2006)
(citing United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005)). Contrary to Mr. Mix’s contention and as summarized
above, the district court expressly considered the factors set
forth in § 3553(a). The record also shows that the district
court considered the expert’s reports concerning Mr. Mix’s
alleged psychological and neuropsychological impairments.
In this respect, the district court commented as follows:
UNITED STATES v. MIX 9121
Two evaluations completed on the defendant indi-
cate that the defendant was not completely truthful
in answering questions, and both evaluations con-
cluded his psychopathology was probably overrepre-
sented. And he confirms that today by his rather
articulate and extended statement to this Court
wherein he refuses to accept responsibility for his
conduct and his acts.
He is trying to portray himself as mentally ill. The
Interpretative report of the MMPI-2 stated the defen-
dant believed others have harmed him and are work-
ing against him, even though almost one year after
his attack against Tohannie—or strike that, more like
two-and-a-half years now—he is still blaming her
and probably Linda Yellowhorse and Florence Rus-
sell for his current situation.
He acknowledged losing control, but he has no
concept of the harm he caused to these women and
their children. His victims live in fear. They fear the
defendant will be released and come back to do fur-
ther harm or kill them.
[7] The facts as regards Mr. Mix’s history, characteristics,
and other § 3553(a) factors were not the subject of an eviden-
tiary hearing and have never been disputed. We conclude that
in light of Mr. Mix’s seventeen-year history of unspeakably
inhuman sexual abuse of women, and his continuing charac-
terization of his conduct as unintentional, during the sentenc-
ing proceedings, the district court’s imposition of a sentence
outside the Guidelines range was well explained by the dis-
trict court and justified the sentences imposed.
D
[8] In summary, it is both important and legally necessary
under 18 U.S.C. § 3553(a) and under Booker that the district
9122 UNITED STATES v. MIX
court conduct parallel analyses — first employing the Guide-
lines, and then considering non-guideline sentencing factors
under § 3553(a).2 In many instances, there will be no non-
Guidelines issues in sentencing; and, in those cases, review by
this court will be de novo for accuracy as regards the calcula-
tion of Guidelines ranges. In other cases, such as this one,
substantial questions may arise as to whether or not the
Guidelines adequately take account of the § 3553(a) sentenc-
ing factors. Where, as here, the district court determines that
the Guidelines do not adequately take account of § 3553(a)
sentencing factors, the district court, may, in furtherance of
Booker, impose a sentence outside and apart from the Guide-
lines. Because the scope of review differs depending upon the
sentencing methodology employed by the district court, it is
important that district courts clearly and carefully differentiate
between the findings and conclusions as regards the applica-
tion of the Guidelines, and the findings and conclusions as
regards the application of non-Guidelines factors pursuant to
18 U.S.C. § 3553(a). Here, we are able to discern the sentenc-
ing methodology that the district court ultimately applied, and
why it did so. In light of the non-Guidelines, § 3553(a)(1) and
(2) analysis performed by the district court, we conclude that
the sentence imposed on Mr. Mix was reasonable.
III
Finally, Mr. Mix contends that the district court’s applica-
tion of Booker in this matter violated his Fifth Amendment
right to due process and his Sixth Amendment right to have
a jury determine facts that increased his punishment. We
rejected similar arguments in United States v. Dupas, 419
F.3d 916, 920-21 (9th Cir. 2005). Mr. Mix argues that appli-
2
We again leave open the question left open in Cantrell, 433 F.3d at
1280 n.3, “whether, and under what circumstances, district courts may
find it unnecessary to calculate the applicable Guidelines range.” We note
only that this was a case in which it was necessary for the district court
to calculate the applicable Guidelines range.
UNITED STATES v. MIX 9123
cation of Justice Breyer’s remedial holding in Booker, which
made the Sentencing Guidelines advisory, should not be
applied retroactively because that would violate the ex post
facto principles described in Bouie v. City of Columbia, 378
U.S. 347, 353-55 (1964).
[9] Mr. Mix’s due process argument is flawed for several
reasons. First, the Supreme Court expressly stated that both of
its holdings in Booker should be applied to cases on direct
review. 543 U.S. at 267; see also United States v. Rines, 419
F.3d 1104, 1106-07 (10th Cir. 2005) (commenting “[w]e
decline Defendant’s invitation to hold that the Supreme Court
ordered us to violate the Constitution”). Moreover, “our deci-
sion in Ameline, under which Sixth Amendment violations
can be cured by giving district courts the opportunity to resen-
tence defendants under the now-advisory Guidelines, neces-
sarily implies that appellate courts should apply both Booker
holdings retroactively.” Dupas, 419 F.3d at 920. “Fair warn-
ing . . . is the touchstone of the retroactivity analysis under the
Due Process Clause.” Id. at 921 (citing Rogers v. Tennessee,
532 U.S. 451, 462 (2001)); see also United States v. Lata, 415
F.3d 107, 110-11 (1st Cir. 2005) (commenting that “after-the-
offense enlargement of the . . . maximum sentence by judicial
construction can raise due process objections based on lack of
fair warning but only where the alteration is ‘unexpected and
indefensible’ by reference to the case law”).
[10] When Mr. Mix committed his crimes, the United
States Code informed him that the maximum sentence was
life in prison for Aggravated Sexual Abuse pursuant to 18
U.S.C. § 2241, and Kidnaping, 18 U.S.C. § 1201. See United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005) (holding
that Defendant had fair warning because his sentence was
within the maximum spelled out in the United States Code);
see also United States v. Duncan, 400 F.3d 1297, 1307 (11th
Cir. 2005) (commenting “at the time of Duncan’s criminal
conduct, the recognized state of the law looked to the U.S.
Code as establishing maximum sentences”). Accordingly, the
9124 UNITED STATES v. MIX
sentence imposed in the instant case did not violate due pro-
cess, because at the time Mr. Mix committed his crimes, life
imprisonment was a potential consequence of his actions.
[11] We also held in Dupas that the advisory Guidelines
remedy in Booker “gives the sentencing judge discretion to
sentence outside the guideline range, but still allows the sen-
tencing judge (as distinct from a jury) to make the findings of
fact necessary to determine the guideline range in the first
place.” Dupas, 419 F.3d at 919. The fact that the district court
considered uncharged conduct in imposing a sentence of life
imprisonment did not violate the Sixth Amendment.
AFFIRMED.
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872 N.E.2d 218 (2007)
STARCHER
v.
STATE.
No. 20A04-0703-PC-142.
In the Court of Appeals of Indiana.
August 9, 2007.
BARNES, J.
Unpublished memorandum decision. Affirmed.
KIRSCH, J. Concurs.
ROBB, J. Concurs.
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772 F.2d 893
Bondv.Banas
85-3094
United States Court of Appeals,Third Circuit.
8/15/85
W.D.Pa.,
McCune, J.
AFFIRMED
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08-23-2011
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320 F.3d 1279
UNITED STATES of America, Plaintiff-Appellee,v.Eric WATKINS, Defendant,Jaunna Watkins, Collin Williams, Lincoln Watkins, Interested Parties-Appellants.
No. 02-10434. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
February 7, 2003.
Jaunna Watkins, Lincoln Watkins, McKinney, TX, Collin Williams, Lauderhill, FL, pro se.
J.D. Roy Atchison, Asst. U.S. Atty., Pamela A. Moine, Asst. U.S. Atty., Pensacola, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Northern District of Florida.
Before CARNES, MARCUS and WILSON, Circuit Judges.
MARCUS, Circuit Judge:
1
Jaunna Watkins ("Jaunna"), Collin Williams ("Collin") and Lincoln Watkins ("Lincoln") appeal the district court's dismissal of their petitions seeking the return of certain monies that were criminally forfeited to the government by defendant Eric Watkins ("Eric"). On appeal, these individuals assert that (1) the district court erred by finding that they had failed to demonstrate their entitlement to these monies under 21 U.S.C. § 853(n)(6)(A) or (B); and (2) the court deprived them of due process as guaranteed by the Fifth Amendment by failing to provide them with notice of the ancillary hearing at which the court entertained arguments as to the merits of their petitions.
2
In the context of third-party claims to criminally forfeited property, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Kennedy, 201 F.3d 1324, 1329 (11th Cir.2000) (citing United States v. One Single Family Residence, 894 F.2d 1511, 1513 (11th Cir.1990)).
3
Upon thorough review of the record and careful consideration of the parties' briefs, we find no reversible error and affirm.
4
The relevant facts are straightforward. On May 4, 2001, Eric was convicted under 21 U.S.C. §§ 841 and 846 of one count of conspiracy to possess with intent to distribute five kilograms or more of a mixture containing a detectable amount of cocaine. Subsequently, the jury returned a special verdict of forfeiture against Eric in the amount of $100,000. On August 2, 2001, the district court entered a final order of forfeiture in this same amount.
5
On August 31, 2001, the United States filed a motion seeking the forfeiture of $68,380 as substitute property that was found in Eric's residence at the time of his arrest. On the same date, Lincoln filed an ancillary petition seeking the return of $15,000 that he allegedly gave to Eric prior to his arrest so that Eric could purchase an automobile for Lincoln. Collin filed a similar petition on September 4, 2001, alleging that he had given Eric $14,100 for an automobile. Juanna followed suit on October 2, 2001, claiming that she had given Eric $29,100 for business use and that she was entitled to the rest of the funds as Eric's wife.1 Each of these third party claimants argued that the sum that he or she was owed constituted a portion of the seized $68,380.
6
On November 5, 2001, the district court held an ancillary hearing to address these petitions. Although neither Lincoln, Collin nor Juanna appeared at this hearing — which appellants argue was a consequence of the court's failure to provide them with notice of the proceeding — the government asked the court to accept appellants' factual allegations as true. The district court did so, and found that by their own accounts Lincoln and Collin were merely unsecured creditors of Eric, and as such were not entitled to recover any of the funds they sought. The district court further concluded that Juanna had failed to establish that she possessed any right to the forfeited funds that was superior to Eric's interest in those monies or that she was otherwise entitled to recover under 21 U.S.C. § 853(n)(6). Accordingly, on November 13, 2001 the court entered an amended final order of forfeiture memorializing these findings and dismissing the ancillary petitions of Lincoln, Collin and Juanna. On appeal, these individuals challenge the correctness of the district court's conclusions and its failure to afford them notice of the November 5, 2001 hearing.
7
Section 853(n)(6) states in plain terms that a third party claimant must make one of two showings in order to successfully assert an interest in property that is subject to criminal forfeiture. Specifically, this section provides, in full, that:
8
If, after the [ancillary] hearing, the court determines that the petitioner has established by a preponderance of the evidence that —
9
(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or
10
(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section;
11
the court shall amend the order of forfeiture in accordance with its determination.
12
21 U.S.C. § 853(n)(6).
13
As we summarized in Kennedy, section 853(n)(6) "`protects only two classes of petitioners, those whose legal interests in the property were superior to the defendant['s] at the time the interest of the United States vested through the commission of an act giving rise to forfeiture and "bona fide purchasers for value" without knowledge of the forfeitability of the defendant's assets.'" 201 F.3d at 1328-29 (quoting United States v. Reckmeyer, 836 F.2d 200, 204 (4th Cir.1987)).
14
In this case, even accepting appellants' factual allegations to be true, there is no question that under § 853(n)(6)(A) Lincoln and Collin cannot recover any funds that they gave to Eric in exchange for a promise to procure for them automobiles. This is so because, as appellants vigorously and explicitly concede, they gave Eric these monies after the conclusion of the conspiracy that gave rise to the forfeiture. See § 853(n)(6)(A) (requiring that the third party plaintiff possess a right to, or interest in, the forfeited property "at the time of the commission of the acts which gave rise to the forfeiture"); Kennedy, 201 F.3d at 1331.
15
Moreover, it is equally evident that Lincoln and Collin were merely unsecured creditors of Eric, as they possessed no "attached" security interest in the funds they gave to him. See generally In re Dillard Ford, Inc., 940 F.2d 1507, 1511 (11th Cir.1991) (noting that a "security interest must attach to the property [in question] in order to be enforceable"). The courts of appeals are split on whether an unsecured creditor may be considered a bona fide purchaser under § 853(n)(6)(B). The majority of courts to address this question have answered it in the negative. See United States v. Ribadeneira, 105 F.3d 833, 836 (2d Cir.1997) (holding, in a case where the forfeited property was money, that general creditors could not be considered bona fide purchasers under § 853(n)(6)(B)); United States v. BCCI Holdings (Luxembourg), S.A., 46 F.3d 1185, 1191-92 (D.C.Cir.1995) (holding that general creditors cannot qualify as bona fide purchasers under 18 U.S.C. § 1963(l)(6)(B), a provision of the Racketeer Influenced and Corrupt Organizations Act that is substantively identical to § 853(n)(6)(B));2 United States v. Campos, 859 F.2d 1233, 1238 (6th Cir.1988); United States v. McCorkle, 143 F.Supp.2d 1311, 1319-20 (M.D.Fla.2001). However, the Fourth Circuit has held that unsecured creditors may be considered bona fide purchasers under § 853(n)(6)(B).3 Reckmeyer, 836 F.2d at 205-06.
16
Although we have not previously addressed this question, we agree with the majority view that unsecured or general creditors cannot be considered bona fide purchasers for value within the meaning of § 853(n)(6)(B). Specifically, we share the concern expressed by the District of Columbia Circuit that were we to hold otherwise courts adjudicating forfeiture actions "would be converted into a bankruptcy court[s] and would not be able to grant forfeiture to the government until [they] determined that no general creditor would be unable to satisfy its claim against the defendant." BCCI Holdings, 46 F.3d at 1191-92. As the BCCI Holdings court continued:
17
That result appears patently at odds with the statutory scheme, which directs parties without an interest in specific property to seek relief from the Attorney General, not the court adjudging the forfeiture. The Attorney General has the authority to dispense confiscated funds "to protect the rights of innocent persons," and general creditors seem precisely the type of innocent persons Congress had in mind.
18
Id. at 1192 (quoting 18 U.S.C. § 1963(g)(1)). Notably, like § 1963(g)(1), section 853(i)(1) provides a means by which innocent third parties may petition the Attorney General for relief from a forfeiture order. See 21 U.S.C. § 853(i)(1).
19
Moreover, as the Reckmeyer court correctly noted: "Unlike secured creditors, general creditors cannot point to any one specific asset and claim that they are entitled to payment out of the value of that specific asset. General creditors instead enjoy a legal interest in the entire estate of the debtor." 836 F.2d at 206 n. 3. By this very definition, unsecured creditors plainly fall outside the scope of § 853(n)(6)(B), which pertains to "bona fide purchaser[s] for value of the right, title or interest in the property [in question]." 21 U.S.C. § 853(n)(6)(B) (emphasis added); see also McCorkle, 143 F.Supp.2d at 1320 (making this argument).
20
In a similar vein, we join the Sixth Circuit in noting that "unsecured creditors do not fit the traditional definition of `bona fide purchasers.'" Campos, 859 F.2d at 1238. Indeed, "the term `bona fide purchaser'... is generally understood to mean `[o]ne who has purchased property for value without notice of any defects in the title of the seller.'" In re Walter, 45 F.3d 1023, 1030 (6th Cir.1995) (quoting Black's Law Dictionary 177 (6th ed.1990)) (emphasis added). Because their interest lies against the debtor personally as opposed to any specific property that they purchased from the debtor, unsecured creditors simply cannot be considered bona fide purchasers as that term is commonly defined. See Campos, 859 F.2d at 1238 ("As this is a legal term of art, we are unwilling to give the phrase an unnatural meaning only for the purpose of subsection (n)(6)(B).").
21
Thus, because we conclude that unsecured creditors cannot be considered bona fide purchasers for value under § 853(n)(6)(B), neither Lincoln nor Collin can recover any part of the forfeited $68,380 under this subsection.
22
Juanna, by contrast, argues that she is entitled to the funds as a consequence of her marriage to Eric and their resultant status as tenants by the entirety. This claim is easily resolved, however, because we previously have held in the forfeiture context that "`[t]he very nature of the tenancy by the entireties prevents [a petitioner] from claiming that her title [to marital property] is superior to her husband's.'" Kennedy, 201 F.3d at 1331 (quoting United States v. Jimerson, 5 F.3d 1453, 1455 (11th Cir.1993)). Accordingly, Juanna cannot prevail based on a "tenancy by the entirety" theory under § 853(n)(6)(A). Moreover, because it is undisputed that Juanna possesses no "attached" security interest in any portion of the $68,380, she also is (at the most) an unsecured creditor of Eric, and as such she cannot recover under § 853(n)(6)(B) for the reasons set forth, supra.
23
Appellants' due process claims sounding in the district court's failure to afford them notice of the November 5, 2001 hearing are similarly unavailing; even assuming that appellants were impermissibly deprived of notice of the ancillary hearing, this error was harmless beyond any doubt. This is so for two reasons. First, appellants' lack of any meritorious claim to the forfeited funds renders their lack of notice non-prejudicial, i.e., harmless. See United States v. Gagliardi, 201 F.3d 429 (1st Cir.1999) (unpublished table disposition) (deeming harmless the failure to afford a defendant notice of forfeiture proceedings against him where the defendant "utterly failed to state any grounds upon which he could contest th[e] forfeiture on the merits"); Adames v. United States, 171 F.3d 728, 732-33 (2d Cir.1999); see generally United States v. Fifty-Two Thousand and Eight Hundred Dollars, 33 F.3d 1337, 1340-41 (11th Cir.1994) (holding in a forfeiture case that the claimants' due process argument was unpersuasive because they had suffered insufficient prejudice). Second, the district court uncritically accepted as true each of the factual contentions offered by Lincoln, Collin and Juanna, thereby further mitigating any prejudice that appellants might otherwise have suffered from their lack of notice.
24
In sum, appellants were not entitled to recover under § 853(n)(6)(A) or (B) any funds that they gave to Eric. This inability to prevail on the merits in this case rendered any lack of notice of the November 5, 2001 hearing non-prejudicial, as did the district court's assumption at that proceeding that appellants' factual assertions were true. Accordingly, the court did not err in entering a final judgment of forfeiture against the $68,380 or by dismissing appellants' ancillary petitions.
25
AFFIRMED.
Notes:
1
It appears that Juanna argues only this second point on appeal
2
We have explicitly said that "§ 853(n) is `substantively identical' to § 1963(l)." United States v. Gilbert, 244 F.3d 888, 906 n. 47 (11th Cir.2001) (quoting United States v. Ripinsky, 20 F.3d 359, 362 n. 3 (9th Cir.1994)). We further recognized in Gilbert that "[c]ases applying one of these analogous statutes have used section 853(n) and section 1963(l) cases interchangeably." Id. (citing United States v. Bissell, 866 F.2d 1343, 1348 n. 3 (11th Cir. 1989)).
3
Specifically, the Fourth Circuit held that in cases where the debtor's entire estate has been forfeited to the government, concerns sounding in the deprivation of the due process rights of the debtor's unsecured creditors compelled the conclusion that such creditors were eligible to recover under § 853(n)(6)(B)Reckmeyer, 836 F.2d at 205-06.
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01-03-2023
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04-26-2010
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https://www.courtlistener.com/api/rest/v3/opinions/7023650/
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JUSTICE STOUDER delivered the opinion of the court: The appellant, Citizens Utilities Company of Illinois (Citizens), appeals from an order issued by appellee Illinois Pollution Control Board (the Board). The Board upheld a permit condition contained in a National Pollutant Discharge Elimination System (NPDES) permit issued by appellee Illinois Environmental Protection Agency (the Agency). Since we conclude that the cause must be remanded for further proceedings, only those necessary facts will be set forth. Citizens’ operations include water and sanitary sewer service to portions of the Village of Bolingbrook. This appeal concerns Citizens’ facility known as West Suburban Wastewater Treatment Plant No. 2 (WSB Plant No. 2) located in Bolingbrook. The record shows that the Agency originally issued a NPDES permit for WSB Plant No. 2 on June 30, 1975. On April 17, 1985, the Agency sent Citizens a proposed draft of a renewal NPDES permit for WSB Plant No. 2. The proposed permit contained, among other things, a daily maximum effluent limitation for ammonia nitrogen of 1.5 milligrams per liter (mg/1) from April through October and 4.0 mg/1 for November through March. Effluent is the material discharged from a facility into a waterway. The effluent limitations for ammonia nitrogen were to apply only when the downstream daily maximum ammonia nitrogen concentration did not meet the water quality standards set forth in section 302.212 of the Illinois Administrative Code (35 Ill. Adm. Code §302.212 (1985)). Citizens challenged, among other things, the permit condition limiting the concentration of ammonia nitrogen discharged from its facility. Citizens was allowed to submit written comments on the permit condition. On June 19, 1985, the Agency submitted a revised draft permit, which contained some revisions. However, the ammonia nitrogen limitations remained the same. The record shows that the Agency denied both of Citizens’ requests for a public hearing on the draft permit. On August 22, 1985, the Agency issued to Citizens a final NPDES permit effective September 25, 1985. The permit contained the effluent limitations for ammonia nitrogen as set forth in the proposed draft. On September 13, 1985, Citizens filed a petition for review with the Illinois Pollution Control Board. Citizens objected, inter alia, to the effluent limitations for ammonia nitrogen contained in the NPDES permit. Citizens objected to the condition, arguing that the permit condition was not necessary to accomplish the purposes of the Act and that the condition was unreasonable. Citizens requested that the Board review the condition and order the Agency to modify the permit by deleting the effluent limitations for ammonia nitrogen. On November 2, 1987, opening arguments were presented at a hearing before a hearing officer. The hearing was continued to December 4, 1987. At that hearing, Citizens presented the testimony of engineer William Brink, a project manager for Citizens. The Agency objected to the admission of Brink’s report on the effluent limitation for ammonia nitrogen. The hearing officer reserved ruling on the admissibility of the report. The Agency offered as witnesses Rickard Lucas and Lalit Sinha. On January 5, 1989, the Board issued an opinion and order finding that based on the record, the condition was properly imposed by the Agency and could be enforced against Citizens. In its opinion, the Board stated that it “reviews the permit condition by considering the record complied by the Agency. The Board reviews the evidence in the record without deference to the Agency’s decision.” As such it considered the study submitted by Brink, because the study did not contain material outside the record, but instead represented “a reformulation of the information from the record together with information that was generally available to the agency.” On February 2, 1989, Citizens filed a motion for rehearing with the Board. Among other things, Citizens requested that the Board consider as evidence portions of the record in a rulemaking case pending before the Board. The case apparently involved partial relief during the winter months from water quality standards for ammonia nitrogen. Citizens contended that evidence presented in the rulemaking case tended to refute some of the assertions made by the Agency and accepted by the Board in upholding the permit condition. The Board denied Citizens’ motion and stated, inter alia: “The scope of the Board’s review is limited to the record as it existed before the Agency at the time of the Agency’s permit decision. The Board does not consider information submitted after the permit application is denied.” On appeal, Citizens contends that the Board erred in holding the scope of its review was limited to the record before the Agency at the time the NPDES permit was issued. Section 40(a)(1) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. IllVz, par. 1040(a)(1)) states in pertinent part: “If the Agency refuses to grant or grants with conditions a permit under Section 39 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency. *** At such hearing the rules prescribed in Sections 32 and 33(a) of this Act shall apply, and the burden of proof shall be on the petitioner.” Sections 32 and 33(a), respectively, provide in pertinent part: “All hearings under this Title shall be held before a qualified hearing officer ***. All such hearings shall be open to the public, and any person may submit written statements to the Board in connection with the subject thereof. In addition, the Board may permit any person to offer oral testimony. Any party to a hearing under this subsection may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of such actions. *** The transcript so recorded, and any additional matter accepted for the record, shall be open to public inspection ***.” And, “After due consideration of the written and oral statements, the testimony and arguments that shall be submitted at the hearing, ***, the Board shall issue and enter such final order, or make such final determination, as it shall deem appropriate under the circumstances.” Ill. Rev. Stat. 1987, ch. IIIV2, pars. 1032,1033(a). Section 105.102(b) of the Illinois Administrative Code (35 Ill. Adm. Code §105.102(b) (1985)) sets forth procedural rules governing NPDES appeals. The rules apply to cases in which the Agency denies a NPDES permit or issues a permit containing conditions or limitations to which the applicant objects. (35 Ill. Adm. Code §105.102(b)(2) (1985)) Section 105.102(b)(8) states: “The hearing before the Board shall extend to all questions of law and fact presented by the entire record. The Agency’s findings and conclusions on questions of fact shall be prima facia true and correct. If the Agency’s conclusions of fact are disputed by the party or if issues of fact are raised in the review proceeding, the Board may make its own determination of fact based on the record. If any party desires to introduce evidence before the Board with respect to any disputed issue of fact, the Board shall conduct a de novo hearing and receive evidence with respect to such issue of fact.” 35 Ill. Adm. Code §105.102 (b)(8) (1985). In Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 492 N.E.2d 1344, the second district held that the Board erred when it excluded from evidence new material that Dean Foods attempted to present at a hearing involving a NPDES permit condition. As in the instant case, the Board argued in Dean Foods that its review of the permit condition was limited to the facts before the Agency at the time the permit was issued. The Board interpreted the section 105.102(b)(8) de novo review provision as referring only to the manner in which the Board reviews the Agency’s decision, and that it did not allow the Board to consider evidence that was not part of the record before the Agency. The court found that the Board appeared to be ignoring the plain meaning of the de novo rule set forth in its own regulations. It was noted that section 105.102(b)(8) expressly states that when a party wishes to introduce evidence before the Board on a disputed issue of fact, the Board is to conduct a de novo hearing and receive the evidence. In the instant case, the Board contends Dean Foods was incorrectly decided and in support of its argument cites dictum, in Alton Packaging Corp. v. Pollution Control Board (1987), 162 Ill. App. 3d 731, 516 N.E.2d 343. We note that Alton involved appeal from the denial of an operating permit regulating air pollution. Therefore, the procedural requirements in section 105.102(b) of the Administrative Code governing NPDES permit appeals would not have applied to that case. We find Dean Foods dispositive on the issue presented. In the instant case, we note that the Agency twice denied Citizens request for a hearing on the proposed NPDES permit. Under the Act, there is no requirement that the Agency conduct a hearing before issuing a NPDES permit. (See Ill. Rev. Stat. 1987, ch. IIIV2, par. 1039(b).) Thus there is nothing resembling a hearing where adversaries submit proofs to a neutral and detached decision maker prior to the Agency’s decision. (Environmental Protection Agency v. Pollution Control Board (1985), 138 Ill. App. 3d 550, 486 N.E.2d 293, aff’d (1986), 115 Ill. 2d 65, 503 N.E.2d 343.) The record shows that Citizens was allowed to comment on the proposed permit condition, but no hearing was held prior to the final permit being issued by the Agency. In both the January 5, 1989, order and the denial of Citizens petition for a rehearing, the Board stated that its review of the facts was limited to the record before the Agency at the time it issued the permit. This is contrary to the procedural rules governing NPDES permit appeals as set forth in the Administrative Code. Under section 105.102(bX8), a party may submit evidence to the Board regarding a disputed issue of fact. We note that the Act requires the Board to conduct a hearing at which interested parties may testify, cross-examine witnesses and submit written statements. The Act contemplates that the Board will take more than a “live” review of the record before the Agency. The Board’s own rules allow for the admittance of new evidence. It appears that in the instant case the Board misconstrued the scope of its review of the NPDES permit condition. Therefore the cause must be remanded for a hearing consistent with requirements of the Act and section 105.102(b) of the Administrative Code. The order of the Illinois Pollution Control Board is vacated and the cause remanded for further proceedings consistent with this opinion. Order vacated and remanded. SCOTT and BARRY, JJ., concur.
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01-03-2023
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07-24-2022
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https://www.courtlistener.com/api/rest/v3/opinions/7023651/
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PRESIDING JUSTICE HEIPLE delivered the opinion of the court: The defendant, Dennis Joe Stoneking, pleaded guilty to burglary and first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1(a), 9 — 1(a)(2)). The trial court imposed a sentence of natural life imprisonment on the murder count and a concurrent seven-year sentence on the burglary count. The court later denied the defendant’s motion to withdraw his guilty plea. The defendant appeals. The record shows that at the guilty plea hearing the trial court informed the defendant of the charges against him. The court also informed him that if he pleaded guilty to the murder charge, he could receive either a sentence of natural life imprisonment, a determinate sentence of 20 to 60 years, or an extended-term sentence of 60 to 100 years. The court did not tell the defendant that if he received a natural life sentence he could not be paroled (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—-3(d)). After further admonishments and inquiries from the court, the defendant pleaded guilty to first degree murder and burglary. At the sentencing hearing, the trial court found the following aggravating factors to be present: (1) the defendant inflicted serious injury by causing a person’s death; (2) the defendant had a history of prior delinquency and criminal activity; and (3) the sentence was necessary to deter others from committing the same crime. The court then imposed sentence. The defendant later filed a motion to withdraw his guilty plea. He alleged that he had not understood, nor had the court informed him, that a person sentenced to natural life could not be paroled. At the hearing on the motion, the trial court acknowledged that it had not informed the defendant of this. However, the court believed that the defendant understood that the term “natural life” meant imprisonment for life without parole. Accordingly, it denied the motion. On appeal, the defendant contends that the court erred in denying his motion to withdraw his guilty plea. He reiterates his argument that the court should have informed him that a person sentenced to natural life could not be paroled. In order for a guilty plea to be accepted, it must be knowingly and voluntarily made. (People v. Stewart (1984), 101 Ill. 2d 470, 463 N.E.2d 677.) Supreme Court Rule 402 (107 Ill. 2d R. 402) requires that the defendant be informed of the maximum penalty he faces by pleading guilty. (People v. Gasper (1988), 167 Ill. App. 3d 218, 521 N.E.2d 170.) The decision to vacate a guilty plea is within the trial court’s sound discretion. People v. Hale (1980), 82 Ill. 2d 172, 411 N.E.2d 867. It is uncontroverted that the instant trial court failed to inform the defendant that if he was sentenced to natural life he could not be paroled. Further, despite the trial court’s belief, the record fails to disclose whether or not the defendant understood that a sentence of natural life imprisonment precluded parole. The defendant’s state of knowledge or information on this point is wholly speculative. For many years in Illinois, a life sentence was parolable. For the past several years it has not been parolable. It seems but a small matter for a trial court to admonish a defendant who is exposing himself to a life sentence that, unlike other sentences, that particular sentence precludes parole. It is a major matter to an unknowing defendant, however, if he enters a guilty plea not knowing the full implications of such a sentence. It is possible that the defendant knew this. The trial judge believes that he did. The record, however, does not add any enlightenment on the fact. We believe that the better practice is to tell the defendant. Where, as here, he was not told and claims he did not know, we believe that simple justice requires he be given the opportunity to plead anew. The defendant also argues on appeal that the trial court erred in considering as an aggravating factor that his conduct caused serious injury because that fact is implicit in every murder. Although we have already determined that the defendant must be allowed to withdraw his guilty plea, we shall address this issue because it may occur again on remand. The fact that the defendant caused serious injury, standing alone, should not have been relied upon as an aggravating factor, because serious injury is implicit in every murder. (See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) However, the court could properly consider the degree of harm caused by the defendant and the gravity of his conduct. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138. In the instant case, the trial court noted, without elaboration, that the defendant’s conduct caused serious injury. Certainly, serious injury is implicit in any death wound. From the language of the trial court, we cannot determine whether the court was considering the degree of harm or the gravity of the defendant’s conduct when it found this factor to be present. The judgment of the circuit court of Knox County is reversed, and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. SCOTT and WOMBACHER, JJ., concur.
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01-03-2023
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07-24-2022
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https://www.courtlistener.com/api/rest/v3/opinions/227485/
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190 F.2d 204
LANCE, Inc.v.UNITED STATES.
No. 6263.
United States Court of Appeals, Fourth Circuit.
Argued June 15, 1951.
Decided June 18, 1951.
Frank H. Kennedy, Charlotte, N. C., for appellant and cross-appellee.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Thomas A. Uzzell, Jr., U. S. Atty., Ashville, N. C., Francis H. Fairley, Asst. U. S. Atty., Charlotte, N. C., Samuel D. Slade, Arthur W. Murphy and George F. Foley, Attorneys, Department of Justice, all of Washington, D. C., on the brief), for appellee and cross-appellant.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
1
These are cross appeals from a judgment in favor of the United States for the recovery of damages under the Walsh-Healey Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. §§ 35-45. The appeal of the United States complains because interest was awarded only from the institution of the action, the appeal of the defendant because the action was not held barred by the two-year statute of limitations imposed by section 6 of the Portal-to-Portal Act of May 14, 1947, 61 Stat. 87, 29 U.S.C.A. § 255. It is not necessary to pass upon the interest point, since we are satisfied that the maintenance of the action is barred by the statute of limitations relied on. The employments upon which the action is based were in the year 1945. The action was not instituted until 1949, more than four years later. The government contends that the cause of action did not accrue until the Public Contracts Administrator made his report with respect to the matter, which was in 1949, only a few months before the action was instituted. The judge below so held, which was in accordance with the holdings in several District Court decisions. Since then the Court of Appeals of the Fifth Circuit, after a careful review of the matter, has held to the contrary in an able opinion by Judge Sibley in United States v. Lovknit Mfg. Co., Inc., 5 Cir., 189 F.2d 454. We are in accord with this holding and think that nothing need be added to what was said by Judge Sibley. The judgment appealed from is accordingly reversed.
2
Reversed.
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2512150/
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198 P.3d 511 (2008)
NORTHLAKE APARTMENTS, LLC
v.
EGYPT LTD. PARTNERSHIP.
No. 81675-1.
Supreme Court of Washington, Department I.
December 2, 2008.
Disposition of petition for review. Denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3780748/
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* REPORTER'S NOTE: For dismissal of amended petition, see127 Ohio St. 167.
This cause came on to be heard upon the demurrer of the respondents to the relator's petition. On consideration whereof it is ordered and adjudged that said demurrer be, and the same hereby is, sustained upon the authority of Silliman v. Court ofCommon Pleas of Williams County, ante, 338.
It is also ordered that the relator be granted twenty days to plead further and if no amended petition be *Page 645
filed within such time this action is ordered dismissed at the relator's costs.
Demurrer sustained.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and JONES, JJ., concur.
MATTHIAS, J., not participating.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/1278702/
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695 N.W.2d 71 (2005)
MOSIMANN
v.
MSAS CARGO INTERN.
No. 127165.
Supreme Court of Michigan.
April 26, 2005.
SC: 127165. COA: 253765.
On order of the Court, the application for leave to appeal the August 27, 2004 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2481080/
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945 N.E.2d 700 (2007)
375 Ill. App.3d 1150
SHROCK
v.
M.B.N.A. AMERICA BANK N.A.
Nos. 2-06-0734, 2-06-0735.
Appellate Court of Illinois, Second District.
August 30, 2007.
Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2589839/
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44 N.Y.2d 967 (1978)
In the Matter of the Arbitration between Triborough Bridge and Tunnel Authority, Appellant, and District Council 37 of the American Federation of State, County and Municipal Employees, AFL-CIO, et al., Respondents.
Court of Appeals of the State of New York.
Argued May 30, 1978.
Decided July 6, 1978.
Gerald H. Horowitz and Joseph Bulgatz for appellant.
Judith P. Vladeck and Thomas M. Kennedy for respondents.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
*968MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
*969The question of whether the procedural requirements of the collective bargaining agreement for seeking arbitration were followed is for the arbitrator to resolve. (Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 N.Y.2d 599, 607). This principle applies regardless of whether the grievant took any action on the grievance prior to the expiration of the agreement where, as here, the grievance arose prior to the expiration of the agreement.
Order affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/800605/
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680 F.3d 1 (2012)
UNITED STATES of America, Appellee,
v.
Jason W. PLEAU, Defendant, Appellant.
Lincoln D. Chafee, in his capacity as Governor of the State of Rhode Island, Intervenor.
In re Jason Wayne Pleau, Petitioner.
Lincoln D. Chafee, in his capacity as Governor of the State of Rhode Island, Intervenor.
Nos. 11-1775, 11-1782.
United States Court of Appeals, First Circuit.
Heard April 4, 2012.
Decided May 7, 2012.
Order denying motion to stay mandate May 21, 2012.
*2 Claire Richards, Executive Counsel, for intervenor.
William F. Cavanaugh, Daniel Ruzumna, Joshua A. Goldberg, Jason S. Gould, Muhammad U. Faridi, Christopher M. Strong, Catherine E. Geddes and Patterson Belknap Webb & Tyler LLP on brief for National Governors Association and Council of State Governments, Amici Curiae.
*3 Matthew L. Fabisch on brief for the Stephen Hopkins Center for Civil Liberties, Amicus Curiae.
Robert B. Mann, by appointment of the court, with whom Mann & Mitchell, David P. Hoose, by appointment of the court, and Sassoon, Turnbull & Hoose, were on supplemental brief for petitioner.
Anthony D. Mirenda, Daniel N. Marx, Jennifer S. Behr, Eric A. Haskell, Foley Hoag LLP, Carolyn A. Mannis, Rhode Island ACLU, Zachary L. Heiden, ACLU of Maine, Barbara A. Keshen, New Hampshire Civil Liberties Union, Joshua L. Dratel, National Association of Criminal Defense Lawyers, Juan F. Matos de Juan, Colegio de Abogados de Puerto Rico, William Ramirez, ACLU of Puerto Rico, John Reinstein, ACLU of Massachusetts, Judith H. Mizner, Office of the Federal Defender, Prof. Andres Horwitz, Rhode Island Association of Criminal Defense Lawyers, on brief for Rhode Island ACLU; ACLU of Puerto Rico; ACLU of Maine; ACLU of Massachusetts; New Hampshire Civil Liberties Union; Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire; National Association of Criminal Defense Lawyers; Rhode Island Association of Criminal Defense Lawyers; and Colegio de Abogados de Puerto Rico, Amici Curiae.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA, BOUDIN, HOWARD and THOMPSON, Circuit Judges.
OPINION EN BANC
BOUDIN, Circuit Judge.
A federal grand jury indicted Jason Pleau on December 14, 2010, for crimes related to the September 20, 2010, robbery and murder of a gas station manager making a bank deposit in Woonsocket, Rhode Island. 18 U.S.C. §§ 2, 1951(a) (robbery affecting commerce); id. § 1951(a) (conspiring to do the same); id. § 924(c)(1)(A), (j)(1) (use of a firearm during and in relation to a crime of violence resulting in death). The federal prosecutor could seek the death penalty but that decision depends on U.S. Attorney General approval after a lengthy process. See, e.g., United States v. Lopez-Matias, 522 F.3d 150, 155 (1st Cir.2008).
Pleau was in Rhode Island state custody on parole violation charges when the federal indictment came down, and is now serving an 18-year sentence there for parole and probation violations. To secure Pleau's presence in federal court, the federal government invoked the Interstate Agreement on Detainers Act ("IAD"), Pub.L. No. 91-538, 84 Stat. 1397 (1970) (codified as amended at 18 U.S.C. app. 2 § 2). The IAD provides what is supposed to be an efficient shortcut to achieve extradition of a state prisoner to stand trial in another state or, in the event of a federal request, to make unnecessary the prior custom of a federal habeas action. See IAD art. I.
In this instance, Rhode Island's governor refused the IAD request because of his stated opposition to capital punishment. United States v. Pleau, No. 10-184-1S, 2011 WL 2605301, at *2 n. 1 (D.R.I. June 30, 2011). The federal government then sought a writ of habeas corpus ad prosequendum from the district court to secure custody of Pleauthis being the traditional method by which a federal court obtained custody. E.g., Carbo v. United States, 364 U.S. 611, 615-16, 618, 81 S. Ct. 338, 5 L. Ed. 2d 329 (1961). Codifying common law practice, the statute authorizing *4 the writ empowers a federal court to secure a person, including one held in state custody, where "necessary to bring him into [federal] court to testify or for trial." 28 U.S.C. § 2241(c)(5).
Pursuant to the habeas statute, the federal district court in Rhode Island ordered Pleau to be delivered into federal custody to answer the federal indictment. Pleau, 2011 WL 2605301, at *4. Pleau both appealed and, in the alternative, petitioned this court for a writ of prohibition to bar the district court from enforcing the habeas writ. A duty panel of this court, over a dissent, stayed the habeas writ, and an expedited appeal followed in which the Rhode Island governor was granted belated intervention. Ultimately, the same panel, again over a dissent, held in favor of Pleau and the governor.
On petition of the federal government, the full court granted rehearing en banc; the en banc court vacated the panel decision but left the stay in effect until resolution of the en banc proceeding. We consider first the propriety of review of the district court's grant of the writ given that the federal criminal case against Pleau remains pending. Piecemeal appellate review of trial court decisions iswith few, narrowly interpreted exceptionsnot permitted, especially in criminal cases. United States v. Kane, 955 F.2d 110, 110-11 (1st Cir.1992) (per curiam).
Nevertheless, we need not wander into the thicket of Pleau's own debatable standing to appeal from a writ merely commanding his presence to answer criminal charges,[1] nor explore the possible use of the "collateral order" doctrine to rescue the interlocutory appeal. Governor Chafee, in an order not disturbed by the grant of the en banc rehearing petition, was allowed to intervene. And as a party to the case, he is entitled to argue for an advisory writ of prohibition, which suffices to bring the merits of the dispute to us for resolution.
While writs of mandamus and prohibitiontwo sides of the same coin with interchangeable standards, United States v. Horn, 29 F.3d 754, 769 n. 18 (1st Cir. 1994)are generally limited to instances of palpable error threatening irreparable harm, e.g., In re Pearson, 990 F.2d 653, 656 & n. 4 (1st Cir.1993), "advisory mandamus" is available in rare cases; the usual requisites are that the issue be an unsettled one of substantial public importance, that it be likely to recur, and that deferral of review would potentially impair the opportunity for effective review or relief later on. Horn, 29 F.3d at 769-70.
A state's refusal to honor a federal court writ is surely a matter of importance; and, if they could, states would certainly mount more such challenges. Whether Pleau would be prejudiced if review now were refused is less clear; but the governor could hardly obtain meaningful relief following a federal conviction of Pleau. And neither the federal government nor the other parties dispute that the issue can be considered on advisory mandamus. So we turn to the merits, which present two interrelated but sequential questions.
The first is whether the IAD statute precludes the federal government's use of the habeas writ, after a detainer has *5 been filed and an initial IAD request has been rejected, to convert a request into a command. The second question is whether in such a case the habeas statute compels the state governor to deliver the prisoner or whether compliance is merely a matter of comity that the governor may withhold. This is the way the Supreme Court structured the issues in United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978), which resolves the first question and frames the second in a way that clearly dictates the answer.
Of two different federal appeals disposed of by Mauro, only one is directly pertinent to Pleau. The federal government invoked the IAD by lodging a detainer with state prison authorities so that the defendant charged with federal crimes would not be released without notice; and the prosecutor then summoned the defendant from state prison by habeas writ, first for arraignment and (after many postponements) then for trial. The defendant objected that he was being denied the speedy process required by Article IV(c) of the IAD. 436 U.S. at 345-48, 98 S. Ct. 1834.
After the defendant's federal conviction, the circuit court held that the deadlines prescribed by the IAD had been breached, requiring (under explicit provisions of the IAD) dismissal of the federal indictment with prejudice. The Supreme Court agreed, saying that the detainer had triggered the IAD and that the habeas writ comprised a "written request" for initiating a transfer contemplated by Article IV of the IAD. Mauro, 436 U.S. at 361-64, 98 S. Ct. 1834. That the writ had been used as part of the IAD process did not negate the IAD's express time limitations and sanction for ignoring them. Id.
However, Mauro went on to reject the suggestion that, if the Court upheld the time limit on the IAD proceeding, a state governor could in some other case frustrate a writ of habeas corpus by refusing to surrender a prisoner to federal court. Instead, the Court distinguished between the time limits of Article IV(c) triggered by the detainer and Article IV(a)'s reservation of the governor's power to withhold consent. Mauro, 436 U.S. at 363-64, 98 S. Ct. 1834. The time limits, it said, had been accepted by the federal government when it invoked the IAD procedures. Id. at 364, 98 S. Ct. 1834.
By contrast, the Court held, the consent reservation merely preserved for holding states any pre-existing authority they had to refuse requests, Mauro, 436 U.S. at 363 & n. 28, 98 S. Ct. 1834; it did not curtail whatever authority the habeas writ traditionally gave the federal court to insist on the production of a defendant contrary to the wishes of the state. The Court responded to the federal government's concern that a decision in favor of Mauro would allow a governor to refuse a habeas writ:
We are unimpressed. The proviso of Art. IV(a) does not purport to augment the State's authority to dishonor such a writ. As the history of the provision makes clear, it was meant to do no more than preserve previously existing rights of the sending States, not to expand them. If a State has never had authority to dishonor an ad prosequendum writ issued by a federal court, then this provision could not be read as providing such authority.
Id. at 363, 98 S. Ct. 1834 (internal footnote omitted and emphasis added).
This limiting passage was part of the Court's balanced reading of the IAD and, in answering a substantive objection to the Court's treatment of the IAD's time limits as binding on the federal government, was not dicta but part of the Court's rationale for its holding. And in saying that state *6 authority to withhold the prisoner was not augmented beyond whatever had existed before the IAD, Mauro was saying that a habeas writeven though it followed a detainerretained its pre-IAD authority to compel a state to surrender a prisoner.
That Article IV(a)'s proviso was not intended to give governors a veto power operative against the federal government is borne out by a telling piece of background indicating that it was concerned with the pre-IAD rules of extradition as between individual states;[2] the federal government, by contrast, proceeded prior to the IAD not by extradition but by use of habeas. But the proper construction of Article IV(a) is not open to debate here: under Mauro, its proviso cannot be read as "providing . . . authority" that the states had previously lacked. 436 U.S. at 363, 98 S. Ct. 1834.
That "a state has never had authority to dishonor an ad prosequendum writ issued by a federal court" is patent. Under the Supremacy Clause, U.S. Const, art. VI, cl. 2, the habeas statutelike any other valid federal measureoverrides any contrary position or preference of the state, a principle regularly and famously reaffirmed in civil rights cases, e.g., Cooper v. Aaron, 358 U.S. 1, 18-19, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958); United States v. Barnett, 376 U.S. 681, 84 S. Ct. 984, 12 L. Ed. 2d 23 (1964), as in many other contexts, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695-96, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979). State interposition to defeat federal authority vanished with the Civil War.
Pleau and Governor Chafee cite a miscellany of old circuit-court statements that a demand by a federal court for a state prisoner depends upon comity,[3] but these cases misread a 1922 Supreme Court case, Ponzi v. Fessenden, 258 U.S. 254, 260-62, 42 S. Ct. 309, 66 L. Ed. 607 (1922); Ponzi, referring generally to principles of comity, held that the federal government through the Attorney General could choose, as a matter of comity on its side, to deliver a federal prisoner for trial on state charges. Id. at 262, 42 S. Ct. 309. Ponzi neither held nor said that a state governor may invoke comity principles to disobey a federal court habeas writ.
None of these circuit cases cited by Pleau and the governor presented a litigated controversy between the United States and a state over the enforcement of a federal writ. To the extent not dicta or brief asides, such cases involved odd situations such as attempts by federal criminal defendants to obtain the presence of co-defendants held in state prisons. In all events, these cases cite Ponzi (or other circuit cases relying on Ponzi), which simply had nothing to do with a federal court's order to a state.
The Supremacy Clause operates in only one direction and has nothing to do with comity: it provides that Congress' enactments are "the supreme Law of the Land. . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." *7 U.S. Const. art. VI, cl. 2. That there is an overriding federal interest in prosecuting defendants indicted on federal crimes needs no citation, and the habeas statute is an unqualified authorization for a federal court to insist that a defendant held elsewhere be produced for proceedings in a federal court.
This court earlier said that we were "confident that the writ would be held enforcible" over a state's contrary preference. United States v. Kenaan, 557 F.2d 912, 916 n. 8 (1st Cir.1977); accord United States v. Graham, 622 F.2d 57, 59 (3d Cir.), cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 135 (1980); United States v. Bryant, 612 F.2d 799, 802 (4th Cir.1979), cert. denied, 446 U.S. 919, 100 S. Ct. 1855, 64 L. Ed. 2d 274 (1980); Trafny v. United States, 311 Fed.Appx. 92, 95-96 (10th Cir. 2009) (unpublished).[4] A contrary Second Circuit dictum, United States v. Scheer, 729 F.2d 164, 170 (2d Cir.1984), was properly described as a misreading of Mauro. See id. at 172 (Kearse, J., concurring).
As a fallback, Pleau and Governor Chafee say that even if today courts would all agree that the Supremacy Clause trumps a state's refusal to honor the writ, Congressto borrow a phrase"captured in amber" the misguided notion from old (but erroneous) circuit precedent that honoring the federal writ is a matter of state comity. There is, of course, nothing to suggest that Congress was remotely aware of these decisions; and, as already noted (see note 2, above), what legislative history exists shows that the consent provision was concerned with one state's effort to extradite a prisoner held by another and the possible need for consent.
Even without such history, the construction offered fails the test of common sense. One can hardly imagine Congress, whether in approving the IAD or at any other time, empowering a state governor to veto a federal court habeas writdesigned to bring a federally indicted prisoner to federal court for trial on federal chargesbecause the governor opposed the federal penalty that might be imposed if a conviction followed. If we were now determining Congress' intent afresh, the improbability of such an intention would be apparent.
But, once again, this court cannot disregard Mauro and construe the consent provision as if it were an open issue; canons of construction, interpretive rules for compacts, and conjectures about whether Congress held mistaken views at the time of the IAD's adoption are all beside the point. Mauro said that "[i]f a State has never had authority to dishonor an ad prosequendum writ issued by a federal court, then [the consent provision] could not be read as providing such authority." 436 U.S. at 363, 98 S. Ct. 1834. Given the Supremacy Clause, the states have always lacked that authority.
Were Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution, and the use of the efficient detainer system badly compromised. He is currently serving an 18-year term in Rhode Island prison and, if the writ were denied, might agree to a state sentence of life in Rhode Island for the robbery and murder.[5] Even if Pleau *8 served only his current 18-year term, needed witnesses for federal prosecution could be unavailable two decades from now. Instead of a place of confinement, the state prison would become a refuge against federal charges. Mauro forbids such a result.
The writ of prohibition is denied and the stay of the habeas writ is vacated.
It is so ordered.
TORRUELLA, Circuit Judge, with whom THOMPSON, Circuit Judge, joins, dissenting.
I am compelled to dissent because in reaching its announced result, the majority fails to follow the express terms of the Interstate Agreement on Detainers Act,[6] snubs the rules applicable to the enforcement of interstate compacts as reiterated most recently by the Supreme Court,[7] and compounds these errors by misconstruing the holding in United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). As the Supreme Court has stated multiple times, federal courts should not "`order relief inconsistent with [the] express terms' of a compact, `no matter what the equities of the circumstances might otherwise invite.'" Alabama v. North Carolina, ___ U.S. ___, 130 S. Ct. 2295, 2313, 176 L. Ed. 2d 1070 (2010) (quoting New Jersey v. New York, 523 U.S. 767, 811, 118 S. Ct. 1726, 140 L. Ed. 2d 993 (1998)). Yet with its ruling, the majority has done exactly what the Supreme Court said courts must not do: it has ordered relief plainly inconsistent with the express terms of the Interstate Agreement on Detainers ("IAD" or "Agreement") based on its own misguided view of the equities of the circumstances of this case.
There is no dispute that the United States is a party to the IAD. Furthermore, the IAD's plain language and history make clear that the United States is bound by all of its provisions. One of those provisions, Article IV(a), provides that a State may request custody over a prisoner from another State by sending a "written request for temporary custody or availability"; however, Article IV(a) also gives the Governor of the State from which custody is requested the right to refuse such a request. Under the Supreme Court's holding in Mauro, once the United States (or any other State) invokes the IAD by lodging a detainer against a prisoner, any subsequently-filed writ of habeas corpus ad prosequendum is treated as a "written request for temporary custody and availability" under the IAD. See 436 U.S. at 351-52, 98 S. Ct. 1834.
Applying the aforementioned principles to the facts of this case, the proper result is clear. The United States invoked the IAD when it lodged a detainer against Jason Wayne Pleau ("Pleau"). Because the United States invoked the IAD, the writ of habeas corpus ad prosequendum granted by the district court must, under Mauro, be treated as a request for custody under the IAD. Therefore, the Governor of Rhode Island had the right under the IAD to refuse the request. The majority avoids this result only by manufacturing a Supremacy Clause issue where none exists and by misinterpreting Mauro.
I.
There is no question that the IAD is an *9 interstate compact[8] among the United States and 48 other States. "[E]ven the Government concedes[ ] [that] the Agreement as enacted by Congress expressly includes the United States within the definition of `State.'" Mauro, 436 U.S. at 354, 98 S. Ct. 1834. As further stated in Mauro, "[t]he [IAD] statute itself gives no indication that the United States is to be exempted from the category of receiving States. To the contrary, [Article] VII states that `this agreement shall enter into full force and effect as to a party State when such State has enacted the same into law.'" Id. at 354, 98 S. Ct. 1834 (alterations omitted). "[T]here is no indication whatsoever that the participation of the United States was to be a limited one." Id. at 355, 98 S. Ct. 1834.
The consequence of Congress's deliberate adoption of the IAD is that "the United States is bound by the Agreement when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum." Id. at 349, 98 S. Ct. 1834. In the present case, the United States activated the provisions of the IADand thus bound itself to the IAD's termsby lodging a detainer against Pleau, who at the time was serving an 18-year prison sentence in the custody of the State of Rhode Island for parole violations. The detainer filed by the United States was related to a federal indictment issued for alleged federal crimes involving the same acts that were the subject of state-law charges pending in Rhode Island at the time.[9]
After lodging the detainer, the United States sent a request for custody to Rhode Island. The Governor of Rhode Island, Lincoln Chafee ("Governor Chafee" or the "Governor"), invoking his authority under Article IV(a) of the IAD, refused to surrender Pleau to the federal authorities. Governor Chafee cited state public policy grounds for his rejection, namely Rhode *10 Island's longstanding opposition to the death penalty as an appropriate punishment, a penalty to which Pleau would be exposed if convicted on federal charges.
Undeterred by the Governor Chafee's refusal, the United States then proceeded to attempt an end run around its commitments under the IAD by seeking the production of Pleau pursuant to a writ of habeas corpus ad prosequendum. The district court granted the writ, but a duty panel of this court (with one dissent) stayed its execution pending Pleau's appeal, and Governor Chafee later intervened. The same panel (again with one dissent), pursuant to advisory mandamus, issued a writ of prohibition enforcing Governor Chafee's right to refuse to transfer Pleau. See United States v. Pleau, 662 F.3d 1 (1st Cir.2011).
The panel noted Mauro's holding that "`once a detainer has been lodged' . . . `it clearly would permit the United States to circumvent its obligations under the [IAD] to hold that an ad prosequendum writ may not be considered a written request for temporary custody.'" Pleau, 662 F.3d at 10 (quoting Mauro, 436 U.S. at 362, 98 S. Ct. 1834). Based on this clear statement from Mauro, the panel held that
once the federal government has elected to seek custody of a state prisoner under the IAD, it is bound by that decision. Any subsequent ad prosequendum writ is to be considered a written request for temporary custody under the IAD and, as such, subject to all of the strictures of the IAD, including the governor's right of refusal.
Pleau, 662 F.3d at 12.
As alluded to, the en banc majority rejects this outcome, denies the writ of prohibition, and vacates the stay of the execution of the habeas writ. The substance[10] of the majority's opinion is, first of all, that Mauro "reject[ed] the suggestion that, if the Court upheld the time limit on the IAD proceeding [under Article IV(c)], a state could in some other case frustrate a writ of habeas corpus by refusing to surrender a prisoner to federal court." Maj. Op. at 5. According to the majority's opinion, the Court "merely preserved for the holding states any pre-existing authority they had to refuse requests." Id. at 5. The majority next contends that it "is patent" that Rhode Island lacks authority "to dishonor an ad prosequendum writ issued by a federal court . . . [by virtue of] the Supremacy Clause, U.S. Const. art. VI, cl. 2." Id. at 5.[11] The majority then posits a catch-all ratiocination, pursuant to which it concludes that Rhode Island's arguments "fail[ ] the test of common sense," id. at 7. Lastly, as a sequel to this argument, it proceeds to adopt the Government's scenario of inevitable horribles which allegedly will follow if the United States is made to comply with what it agreed to as a signatory State under the IAD. Id. at 7-8.
With respect, I find all of these arguments flawed.
II.
We first turn to the Supremacy Clause argument, the recurrent "Big Brother" argument *11 that is used by the federal government when it attempts to push its weight against the States. In this case it is only one of several smoke screens behind which the majority attempts to shield the weakness of the Government's position, and it is the most baseless of all the reasons given for overturning the panel opinion.
The majority states that "[u]nder the Supremacy Clause . . . the habeas statutelike any other valid federal measureoverrides any contrary position or preference of the state. . . ." Maj. Op. at 6. However, this statement is a red herring. Again, as recently stated by the Supreme Court in Alabama v. North Carolina, "an interstate compact is not just a contract; it is a federal statute enacted by Congress." 130 S.Ct. at 2312 (emphasis added). See also n. 3, ante. Thus, the issue presented is not, as framed by the majority, one of conflict between a federal law and Rhode Island's contrary position or preference. Rather, because the IAD is a federal statute, just like the habeas statute is a federal statute, the issue here is how two federal statutes interact, a determination in which the Supremacy Clause plays no part. That question is answered by reading both federal laws and by determining, in the first place, whether there is any conflict that arises from reading the plain language of each statute. As will be presently discussed, there is nothing in the habeas corpus statute as presently articulated, or any of its predecessors going back to the Judiciary Act, that supercedes, contravenes, or downgrades the provisions of the IAD vis-a-vis the habeas corpus legislation.[12]
The federal habeas corpus writ was first authorized to be issued by federal courts pursuant to Section 14 of the Judiciary Act of 1789.[13] Since then habeas corpus practice has been formalized into a singular federal statute, 28 U.S.C. § 2241 et seq., which law has been amended on various occasions over the years, the last major amendment taking place in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act.[14] A perusal of these federal acts, including through the present rendition of the statute, reveals no text which would allow one to conclude that the federal habeas corpus statute trumps any other federal statute, particularly one enacted for specific application to specific circumstances such as the IAD.
Although not directly relevant to the case before us, I believe it is worth pointing out that the amendments to § 2254 enacted by Congress in 1996, which deal in part with the issuance of habeas corpus writs by federal courts involving state prisoners, *12 considerably restricted the power of federal courts to act.[15] This action clearly reflects Congress's concern[16] with the issues raised by the dual sovereignty that is the basis of our form of government. See Fed. Maritime Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 751-52, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002) ("Dual sovereignty is a defining feature of our Nation's constitutional blueprint. . . ."). Even in cases where the supremacy of federal legislation over a state law is an issue, a situation which is clearly not in the case before us, application of this principle requires a light touch, not the overbearingness[17] of a sledge hammer.[18]
Finding no specific language in any past or present configurations of the habeas statute that informs us as to the issues before us, we turn to the second, and central, federal statute that concerns us, the IAD. This is a federal statute that deals with a specific issue: the attainment by one sovereign State of the body of a person in the custody or control of another sovereign State. We are not disappointed in our search, for we find relevant language within the four corners of this federal statute regarding what happens when these issues come into play. The pertinent part of this legislation, Article IV(a) of the IAD specifically states:
[U]pon presentation of a written request for temporary custody . . . to the appropriate authorities of the State in which the prisoner is incarcerated . . . there shall be a period of thirty days after receipt by the appropriate authorities *13 before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.[19]
We need go no further, for there is nothing equivocal in this language nor is there anything else in this federal statute which contravenes or dilutes the discretion that Congress has granted to a State Governor pursuant to this interstate agreement, one which the United States joined as a co-equal "State."[20]See Mauro, 436 U.S. at 354, 98 S. Ct. 1834.
The United States became unequivocally bound by all of the provisions of the IAD upon its filing of a detainer against Pleau with the Rhode Island authorities. See id. at 349, 98 S. Ct. 1834. These provisions include a grant, by the United States to the other signatory States, of the right to refuse a request for custody. There is nothing in the express language of the IAD, or its legislative history, to indicate that the grant of rights agreed to by the United States with Congress' approval, id. at 353-55, 98 S. Ct. 1834, is trumped in any way by other federal statutes, including the habeas corpus statute. Thus, we proceed to discuss the majority's interpretation of the Supreme Court's holding in Mauro, an interpretation which inevitably leads them to their erroneous conclusions.
III.
As is true with most cases, Mauro cannot be read by isolating those parts that may conveniently support a predestined point of view. Properly considered, a case needs to be read and analyzed in all its parts and in a coordinated fashion. Unfortunately, this the majority fails to do.
In Mauro, the Supreme Court had before it two related cases, both of which have relevance to the present appeal because they establish "the scope of the United States' obligations under the [IAD]." Id. at 344, 98 S. Ct. 1834. In the first of these cases, Case No. 76-1596, the question presented was whether a writ of habeas corpus ad prosequendum constituted a "detainer" under the IAD, whose filing with state authorities triggered the application of the provisions of that statute. Id. Respondents Mauro and Fusco were serving state sentences in New York's penal system when the U.S. District Court for the Eastern District of New York issued ad prosequendum writs directing the state prison authorities to turn them over to the federal authorities. Id. Mauro and Fusco were arraigned in federal court and entered pleas of not guilty to the relevant charges. Id. Their trial was *14 delayed, and because of overcrowding in federal facilities, they were returned to state custody. Id. at 344-45, 98 S. Ct. 1834. Both respondents were later returned to federal custody pursuant to new ad prosequendum writs, but not before they had filed motions to dismiss the federal indictments, alleging that the United States had violated Article IV(e) of the IAD by returning them to state custody without first trying them on the federal indictment.[21] The district court granted the motions, ruling that the ad prosequendum writs were in effect detainers, whose filing by the United States triggered application of the provisions of the IAD, Article IV(e) of which required dismissal of the indictment. Id. at 345, 98 S. Ct. 1834. This decision was affirmed by the Court of Appeals for the Second Circuit. 544 F.2d 588 (2d Cir.1976).
In the second case, No. 77-52, the respondent, Ford, was arrested in Chicago on two federal warrants. Ford was turned over to state authorities in Illinois for extradition to Massachusetts on unrelated Massachusetts state charges. Mauro, 436 U.S. at 345-46, 98 S. Ct. 1834. At this point Ford requested a speedy trial on federal charges pending in the Southern District of New York, sending letters to this effect to the District Court and the U.S. Attorney for that District. Id. at 346, 98 S. Ct. 1834. After Ford was transferred to Massachusetts, the U.S. Attorney in New York lodged a detainer with Massachusetts state officials. Ford was found guilty at his trial on the Massachusetts state charges. Thereupon, Massachusetts produced Ford in the U.S. District Court for the Southern District of New York pursuant to an ad prosequendum writ. Id. After Ford pled not guilty to the federal charges, his trial date was sequentially postponed for 17 months at the government's or court's initiative. At some point Ford formally moved for dismissal of the federal charges on constitutional speedy trial grounds, which motion was denied by the district court. Id. In the meantime Ford had been returned to Massachusetts, where he remained until he was returned to New York for trial pursuant to another ad prosequendum writ. Id. at 347, 98 S. Ct. 1834.
At the beginning of the trial Ford renewed his motion to dismiss on speedy trial grounds, which claim was again rejected by the district court. Id. He was found guilty, whereupon he appealed, alleging violation of Article IV(e) of the IAD because he was not tried within 120 days of his initial arrival in the Southern District of New York. Id. at 347-48, 98 S. Ct. 1834. The Second Circuit reversed the conviction and dismissed the indictment, 550 F.2d 732 (2d Cir.1977), holding: (1) that since the government had filed a detainer, thus triggering the provisions of the IAD to which the government was a party, (2) the subsequent ad prosequendum writ constituted a "written request for temporary custody" under Article IV(a) of the IAD, (3) which required that trial be commenced within 120 days of the prisoner's arrival in the receiving state, and therefore (4) the delay in trial mandated dismissal of the federal charges. See Mauro, 436 U.S. at 348, 98 S. Ct. 1834.
The Supreme Court granted certiorari in both cases, which were consolidated for the purpose of considering "whether the Agreement governs use of writs of habeas corpus ad prosequendum by the United *15 States to obtain state prisoners." Id. at 349, 98 S. Ct. 1834 (emphasis added). The Court held "[i]n No. 76-1596 . . . that such a writ . . . is not a detainer within the meaning of the Agreement and thus does not trigger the application of the Agreement." Id. (emphasis added). However, the Court then ruled "in No. 77-52 . . . that the United States is bound by the Agreement when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum." Id. (emphasis added).
Given this clear statement, I cannot fathom how a serious argument can be made that the United States is not fully bound by all the provisions of the IAD. Indeed, the Court in Mauro specifically rejected the argument that the United States "became a party to the [IAD] only in its capacity as a `sending State.'" Id. at 353-54, 98 S. Ct. 1834. As the Court emphasized:
The statute itself gives no indication that the United States is to be exempted from the category of receiving States. To the contrary, Art. VIII states that "[t]his agreement shall enter into full force and effect as to a party State when such State has enacted the same into law."
Id. at 354, 98 S. Ct. 1834 (emphasis in the original). Referring to the IAD's "brief legislative history," the Court noted that "there is no indication whatsoever that the United States' participation in the Agreement was to be a limited one." Id. at 355, 98 S. Ct. 1834.[22]
Having clearly established that the United States is bound by all terms of the IAD, the Court then proceeded to consider this question: under what circumstances is the IAD invoked, such that the United States becomes bound by its terms? The Court answered this question straightforwardly: "Once the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions." Id. at 361-62, 98 S. Ct. 1834 (emphasis added). The Court then made clear that once the IAD has been invoked, what is ostensibly an ad prosequendum writ is treated as a "request for temporary custody" under the IAD:
[O]nce a detainer has been lodged, the United States has precipitated the very problems with which the Agreement is concerned. Because at that point the policies underlying the Agreement are fully implicated, we see no reason to give an unduly restrictive meaning to the term "written request for temporary custody." It matters not whether the Government presents the prison authorities in the sending State with a piece of paper labeled "request for temporary custody" or with a writ of habeas corpus ad prosequendum demanding the prisoner's presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State. The fact that the prisoner is brought before the district *16 court by means of a writ of habeas corpus ad prosequendum in no way reduces the need for this prompt disposition of the charges underlying the detainer. In this situation it clearly would permit the United States to circumvent its obligations under the Agreement to hold that an ad prosequendum writ may not be considered a written request for temporary custody.
Id. at 362, 98 S. Ct. 1834 (emphasis added).
We thus come to the crux of the majority's interpretation of Mauro, which requires, according to its views of that case and the IAD, the rejection of Governor Chafee's contentions[23] that: (1) the filing of a detainer by the United States triggered the right of Governor Chafee under Article IV(a) to refuse to surrender a prisoner within 30 days of a request for custody; and (2) allowing the United States to circumvent this provision by seeking the production of the prisoner by the use of a subsequent ad prosequendum writ in effect voids that statutory provision and renders ineffective an important right in the Agreement. The majority's view of Mauro rests, at least partially, on its statement that "Mauro . . . reject[ed] the suggestion that, if the Court upheld the time limit on the IAD proceeding, a state governor could in some other case frustrate a writ of habeas corpus by refusing to surrender a prisoner to federal court." Maj. Op. at 5. There is simply no backing in Mauro, or elsewhere, for this contention.
The majority claims that "the Court distinguished between the time limits of Article IV(c) triggered by the detainer and Article IV(a)'s reservation of the governor's power to withhold consent." Maj. Op. at 5 (citing Mauro, 436 U.S. at 363-64, 98 S. Ct. 1834). It is true that the particular circumstances of Mauro implicated the IAD's time limit provisions. However, nothing in Mauro suggests that the Court's holding is limited such that an ad prosequendum writ is treated as a "written request" for Article IV(c) purposes but not for Article IV(a) purposes. The majority contends that such a limiting principle is found in the passage from Mauro that it quotes on p. 5: "We are unimpressed.. . .," Mauro, 436 U.S. at 363, 98 S. Ct. 1834. Yet when one reads and analyzes what was actually stated by the Court in the cited passage, it becomes clear that the majority's reading of it is wrong.
To understand the true meaning of this passage, we must first read it in its full context. The Mauro court first stated its conclusion that "it clearly would permit the United States to circumvent its obligations under the Agreement to hold that an ad prosequendum writ may not be considered a written request for temporary custody." 436 U.S. at 362, 98 S. Ct. 1834. Then, in the next paragraph of the opinion, the Court addressed some of the arguments the Government had raised in opposition to the conclusion the Court had just announced. It is in this context that the passage in question appears:
The Government points to two provisions of the Agreement which it contends demonstrate that "written request" was not meant to include ad prosequendum writs; neither argument is persuasive. First, the government argues that under Article IV(a) there is to be a 30-day waiting period after the request is presented during which the Governor of the sending State may disapprove the receiving *17 State's request. Because a writ of habeas corpus ad prosequendum is a federal-court order, it would be contrary to the Supremacy Clause, the United States argues, to permit a State to refuse to obey it. We are unimpressed. The proviso of Art. IV(a) does not purport to augment the State's authority to dishonor such a writ. As the history of the provision makes clear, it was meant to do no more than preserve previously existing rights of sending States, not to expand them. [Fn. 28. Both Committee Reports note that "a Governor's right to refuse to make a prisoner available is preserved. . . ." The Council of State Governments discussed the provision in similar terms: "[A] Governor's right to refuse to make the prisoner available (on public policy grounds) is retained."] If a State never had authority to dishonor an ad prosequendum writ by a federal court, then this provision could not be read as providing such authority. Accordingly, we do not view the provision as being inconsistent with the inclusion of writs of habeas corpus ad prosequendum within the meaning of "written requests."
Id. at 363, 98 S. Ct. 1834 (bold emphasis added; underlined emphasis in original) (internal citations omitted).
When the passage is read in context, its meaning is plain. The Court did not say that it was "unimpressed" with the possibility that a state could disobey an ad prosequendum writ that was treated as a request for custody under the IAD. Instead, the Court said it was "unimpressed" with the Government's argument, which was that treating an ad prosequendum writ as a request for custody under the IAD, pursuant to which the state could refuse to obey, would create a Supremacy Clause problem. The Court was "unimpressed" with the Government's argument because Article IV(a) did not expand the rights of the states in this respect but merely "preserved" and "retained" previously existing rights of a Governor "to refuse to make the prisoner available (on public policy grounds)." Id. at 363 n. 28, 98 S. Ct. 1834.[24] Since treating an ad prosequendum writ as a written request did not expand States' rights in any way, it could not have implicated the Supremacy Clause in any way.
Moreover, if anything, the statement regarding the possibility of dishonoring of the writ by State authorities is patently conditional, and not a statement as to the actual state of the law. "If" there was no pre-existing right to refuse, then Article IV(a) did not create it.[25]Id. at 363, 98 *18 S.Ct. 1834 (emphasis added). However, as the Court specified and emphasized in Footnote 28, which immediately precedes this conditional "if," the Governor's right to refuse to make the prisoner available was "preserved" and "retained". Id. at 363 n. 28, 98 S. Ct. 1834 (emphasis in original).
The United States's interpretation of Article IV(a), as adopted by the majority, would balkanize that provision. According to that view, the Government would be bound by Mauro as to what is meant by "written request for temporary custody" once a detainer has been filed with the state authorities, but would be free to disregard those other parts of Article IV(a) that it now finds inconvenient to follow. Such an unprincipled reading of the IAD and Mauro is not only unwarranted and unprecedented, but borrowing from the majority, "fails the test of common sense." Maj. Op. at 7.[26]
IV.
The majority takes the position it does because it fears that "[w]ere Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution, and the use of the efficient detainer system badly compromised." Maj. Op. at 7. However, as the Mauro Court noted, the United States has a simple way of avoiding the type of problem it created for itself in this case:
[a]s our judgment in No. 76-1596 indicates, the Government need not proceed by way of the Agreement. It may obtain a state prisoner by means of an ad prosequendum writ without ever filing a detainer; in such a case, the Agreement is inapplicable. It is only when the Government does file a detainer that it becomes bound by the agreement's provisions.
436 U.S. at 364 n. 30, 98 S. Ct. 1834. See also id. at 362 n. 26, 98 S. Ct. 1834 ("These problems, of course, would not arise if a detainer had never been lodged and the writ alone had been used to remove the prisoner, for the writ would have run its course and would no longer be operative upon the prisoner's return to state custody."). It was the United States's choice to proceed against Pleau by invoking the IAD. The consequences of allowing the United States to avoid its obligations under a validly-enacted compact are surely graver than the consequences of allowing Rhode Island's justice system to prosecute Pleau.
*19 V.
Lastly, I do not believe that Governor Chafee's references to Ponzi v. Fessenden, 258 U.S. 254, 260-62, 42 S. Ct. 309, 66 L. Ed. 607 (1922), McDonald v. Ciccone, 409 F.2d 28, 30 (8th Cir.1969), Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.1943), cert. denied, 320 U.S. 766, 64 S. Ct. 70, 88 L. Ed. 457 (1943), or Lunsford v. Hudspeth, 126 F.2d 653, 655 (10th Cir. 1942), can be dismissed as cavalierly as is attempted by the majority in its claim that they are not of help in deciphering the correct answer to the questions presented by the present appeal. Maj. Op. at 6 & n. 3. Nor do I agree with the majority's conclusion that the holding in United States v. Scheer, 729 F.2d 164, 170 (2d Cir.1984), which is clearly favorable to Governor Chafee's position, is either dicta or "properly described as a misreading of Mauro." Maj. Op. at 7. A balanced appraisal of these cases, when they are actually read and analyzed, creates some doubt as to the majority's dismissal.
In Scheer the Second Circuit passed upon the very issue before us: the effect on Article IV(a) of the IAD of a habeas writ filed subsequent to a detainer. A federal grand jury in Vermont indicted Scheer for several alleged violations of federal firearms statutes. 729 F.2d at 165. Thereafter, on March 15, 1982, Scheer was arrested in California on state criminal charges. Id. While Scheer was in jail awaiting disposition of the state charges, the federal authorities learned of his whereabouts, and in April, pursuant to the IAD, filed a detainer with the California authorities on the federal charges pending in Vermont. Id. On May 27 Scheer pled guilty to the California charges and was sentenced to 16 months imprisonment. At this point, Scheer contacted the U.S. Attorney's Office in Vermont requesting a prompt resolution of the federal charges, following this request with a June 7 telegram substantially repeating this petition. Id. In the meantime, on May 28, the government secured an ad prosequendum writ from the District Court in Vermont, which was executed on June 5 when U.S. Marshals took custody of Scheer and proceeded to bring him to Vermont. Id. After Scheer was arraigned in the District of Vermont, a series of motions and incidences followed, with Scheer's trial date finally set for March 2, 1983. Id. at 165-66. Prior thereto, Scheer filed a motion to dismiss claiming that the government had violated several provisions of the IAD. Id. at 166. The motions were denied and immediately thereafter Scheer was tried and found guilty. Id. This outcome was set aside and a new trial was granted, before which Scheer entered a plea of guilty, reserving the right to appeal his claims under the IAD. Id.
Although Scheer alleged violations of Article IV(a), (b), and (c), only the disposition regarding paragraph (a) is of direct interest to this appeal. Scheer argued that Article IV(a) was violated because the U.S. Marshals transferred him to Vermont less than 30 days after the issuance of the ad prosequendum writ. Id. at 170. The court ultimately rejected this argument on the ground that Scheer had waived his right to contest the transfer. Id. at 170-71. However, in so ruling, the court clarified the relationship between an ad prosequendum writ and the IAD:
The 30-day provision was plainly inserted into the law to permit the . . . Governor of the sending state to order that the prisoner not be transferred. 11 Cong. Rec. 14,000, 38,841. Although it could be argued that the proviso applies only to "State" parties to the Agreement and not the United States, that position is difficult to justify since the definition of "State" in the Act includes the United *20 States. What little legislative history exists indicates that the United States and the District of Columbia became full parties to the Agreement with the States . . . More significantly, the Supreme Court has indicated that Article IV(a) envisions that following the filing of a written notice of request for custody "[f]or the next 30 days, the prisoner and prosecutor must wait while the Governor of the sending State, on his own motion or that of the prisoner, decides whether to disapprove the request." Cuyler v. Adams, 449 U.S. 433, 444, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981).
The Government urges that we hold the 30-day period not violated because the writ of habeas corpus ad prosequendum was not abrogated by the United States becoming a party to the Act. We recognize that the historic power of a federal court to issue such a writ to secure a state prisoner for federal trial has existed since Chief Justice Marshall held it was included under the rubric of habeas corpus. . . . Nonetheless, employing that rationale would be treating the federal government's participation in the IAD on a different footing than that of the States. Further, the Supreme Court has held that once a detainer has been lodged as here, it triggers the procedural rules of the ACT so that the later filing of a writ of habeas corpus ad prosequendum is simply equivalent to a "written request for temporary custody" and may not be used as a basis for the federal government to avoid its obligations under the Act. United States v. Mauro, 436 U.S. at 362, 98 S. Ct. 1834. Thus the power of the writ seems unavailing once the government elects to file a detainer in the course of obtaining a state prisoner's presence for disposition of federal charges.
729 F.2d at 170 (emphasis added).
Ponzi, on which several of the cases cited by Chafee and Pleau are based, also bears closer analysis than is given by the majority. The majority points out that Ponzi "neither held nor said that a state governor may invoke comity principles to disobey a federal habeas writ." Maj. Op. at 6. But nor did Ponzi say the opposite: that a state governor may not disobey a federal writ. Ponzi is important because, since it is a pre-IAD case, its explanation of the principle of comity sheds light on the rights that existed prior to the Agreement, which were "preserved" and "retained" by the State governors under Article IV(a). Mauro, 436 U.S. at 363 n. 28, 98 S. Ct. 1834 (emphasis in original). As Chief Justice Taft explained in Ponzi:
The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. The principle is stated by Mr. Justice Matthews in Covell v. Heyman . . . as follows:
"The forbearance which courts of coordinate jurisdiction, administered under a single system, exercise toward each other whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between the state courts and those of the United States it is something more. It [is] a principle of right and law, and therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent: and although they coexist in *21 the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically into a different territorial sovereignty."
258 U.S. at 260, 42 S. Ct. 309 (quoting Covell v. Heyman, 111 U.S. 176, 182, 4 S. Ct. 355, 28 L. Ed. 390 (1884)).
The cases that the majority claims "misread[ ]" Ponzi, Maj. Op. at 6, do nothing of the sort. In Lunsford, the Tenth Circuit cited Ponzi for the
now axiomatic rule of law that a sovereignty, or its courts, having possession of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction and remedy is exhausted and no other sovereignty, or its courts, has the right or power to interfere with such custody or possession . . . As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. . . The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state. . . .
Lunsford, 126 F.2d at 655. Similarly, in Stamphill, the Ninth Circuit relied on Ponzi for the proposition that
[t]here is no doubt that the state of Oklahoma, having first acquired jurisdiction over the appellant, was entitled to retain him in custody until he had finished his sentence and could not be required to surrender him to the custody of the United States marshal for trial in the federal court for an offense committed in violation of federal law.
136 F.2d at 292. In McDonald, in turn, the Eighth Circuit relied on both Stamphill and Lunsford for the proposition that although the federal court in Texas could issue a writ of habeas corpus ad prosequendum, "[t]he release by the state authorities. . . is achieved as a matter of comity and not of right." 409 F.2d at 30. In light of Ponzi's reference to a "principle of comity . . . between the state courts and those of the United States" that is a "principle of right and law, and therefore, of necessity," 258 U.S. at 260, 42 S. Ct. 309 (quoting Covell, 111 U.S. at 182, 4 S. Ct. 355), I fail to see how Stamphill, Lunsford, and McDonald can be said to have "misread" Ponzi in any way.
VI.
The sum and summary of all of the matters that I have punctuated leads to an inevitable and straightforward outcome, one which, like the forest for the trees, is ignored by some. We are confronted with two federal statutesthe IAD and the habeas corpus statute, 28 U.S.C. § 2241. We have a Supreme Court caseMaurothat plainly explains how these statutes interact. From these three guideposts, the proper legal route is easily charted:
1. The IAD is an interstate compact which, upon Congressional approval, the United States joined as an equal member with 48 other States, this Agreement becoming federal law.
2. The filing of a detainer against Pleau by the United States triggered *22 the application of the full Agreement, including all of the rights that the United States granted to other States under the Agreement.
3. Under Mauro, because the United States triggered the IAD before seeking an ad prosequendum writ, the writ is treated as a request for custody under the IAD.
4. Because the writ is treated as a request for custody under the IAD, Governor Chafee had the right under Article IV(a) to refuse to transfer Pleau.
I cannot agree with the contrary result reached by the majority. The Supremacy Clause does not justify the majority's result because the Supremacy Clause is not implicated here. Mauro cannot justify the result because Mauro, properly read, supports the panel's original opinion. The equities of the case, even if they weighed in favor of the United States (and they do not), cannot justify the majority's result because this court has no authority to ignore the express terms of the IAD.
I respectfully dissent.
ORDER OF COURT
Our decision in this case was released on May 7, 2012. The Clerk's Office advises that, in the ordinary course, the mandate would issue on May 29, 2012.[1] The government has moved to expedite issuance of the mandate; defendant-appellant Pleau and intervenor Governor Chafee have moved for a stay pending certiorari. Although the government has legitimate reasons for its motion, the date for issuance will remain May 29, 2012; but we see no basis for delaying issuance beyond that date.
A petition for rehearing would plainly be fruitless since the matter has now been twice fully briefed and the issues in both rounds were the same. As for any request for a stay of mandate pending certiorari, the customary criteria are not met: even assuming a certiorari petition would present a non-frivolous question, there is no "good cause" for a stay, see Fed. R.App. P. 41(d)(2)(A), and there is a reasonable risk that the federal prosecution of Pleau will be prejudiced by any further delay in the proceedings.
The federal offenses of which Pleau is accused occurred on September 14, 2010. Although the charged crimes occurred almost two years ago, and the indictment followed less than three months later, Pleau has not yet even been arraigned in federal district court because Rhode Island, which holds Pleau as a state prisoner, has refused to deliver Pleau into federal custody to answer the federal charges. The district judge ultimately issued a writ of habeas corpus expressly authorized by federal statute requiring that Pleau be brought to federal court, 28 U.S.C. § 2241(c)(5), but that writ was in turn stayed by a majority of the original panel as a result of appellate proceedings described in our decision.
Whether a non-frivolous issue could be presented by a certiorari petition might be debated. As the en banc majority decision reads United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978), the state's ability to resist the writ depends entirely on a question to which the Supremacy Clause provides a plain negative answer, id. at 363, 98 S. Ct. 1834, and no previous governor appears to have defied *23 the writ in like circumstances. On the other hand, two dissenting members of the en banc court dispute the majority's reading of Mauro.
However, as to "good cause," Pleau's arraignment and initial proceedings looking toward an eventual trial should move forward immediately.[2] As time passes, necessary witnesses and other evidence may be lost, and Congress has underscored the strong public interest in the expeditious commencement of criminal trials. 18 U.S.C. §§ 3161 et seq. Indeed, the government says in its opposition that at least one of the witnesses is elderly, and others "live in marginal circumstances"; it also points out that the case against Pleau's co-defendant (Santiago) has effectively been put on hold pending resolution of Pleau's custody issues, and if the stay is granted the government may have to move forward with the case against Santiago, possibly resulting in the inefficiency and expense of two major trials.
No threat exists of irreversible prejudice to Pleau or Rhode Island. A trial of Pleau is unlikely to occur before the Supreme Court could consider a certiorari petition, and were certiorari granted the Court could itself grant a stay of proceedings. Anyway, even if a trial occurred and Pleau and Chafee thereafter prevailed on their position, objections based on the detainer statute would not be mooted, see Mauro, 436 U.S. at 347-48, 365, 98 S. Ct. 1834, and Pleau could be returned promptly to state custody.
Accordingly, the motion to expedite issuance of the mandate is denied insofar as it may seek issuance prior to May 29, 2012; but, for the reasons stated, a stay of mandate beyond that date is denied.
TORRUELLA, Circuit Judge, with whom THOMPSON, Circuit Judge, joins, dissenting.
I respectfully dissent from the denial of the motion to stay the issuance of the mandate in this case. Federal Rule of Appellate Procedure 41(d)(2)(A) permits this Court to stay a mandate pending the filing of a petition for certiorari if the petition would "present a substantial question" and if there is "good cause for a stay." The inquiry contemplated by this rule "focuses on whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury." McBride v. CSX Transp., Inc., 611 F.3d 316, 317 (7th Cir.2010) (internal quotation marks omitted). See also 20A James W. Moore et al., Moore's Federal Practice, § 341.14[2] (Matthew Bender 3d ed. 2012). Both of these requirements are clearly satisfied here.
"To demonstrate a reasonable probability of success on the merits, the applicant must show a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five Justices will vote to reverse the judgment of [the Court of Appeals]." McBride, 611 F.3d at 317. Under Supreme Court Rule 10(a), the Court will consider granting certiorari if a court of appeals "has entered a decision in conflict with another United States court of appeals on the same important matter." In addition, under Supreme Court Rule 10(c), the Court will consider granting certiorari when a federal Court of Appeals "has decided an important question of federal law that has not been, but should be, settled by [the] Court, or has decided an important federal question in a *24 way that conflicts with relevant decisions of [the] Court." Here, these factors weigh in favor of a grant of certiorari.
There can be no doubt that this case presents an "important question of federal law": the proper balance of power between the states and the federal government in the context of custody over prisoners. Questions of federalism and the interaction between federal government and state government authority are some of the most important legal issues that the Supreme Court must resolve. The potential impact of this case on the rights of states is significant enough that the National Governors Association and the Council of State Governments, organizations representing the governors and elected and appointed officials of all 50 states, participated in this case as amici curiae. This case also has important implications for the rights of criminal defendants, as evidenced by the appearance as amici curiae of various organizations representing criminal defense lawyers.
Resolution of this question of federal law turns in large part on the proper interpretation of a Supreme Court case, United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). A dispute regarding the proper interpretation of a Supreme Court case is clearly one that is best settled by the Supreme Court. In addition, as explained by the dissent from the en banc decision, it can be argued that the en banc decision conflicts with Mauro, a relevant decision of the Supreme Court. See 680 F.3d at 8 (Torruella, J., dissenting). Moreover, there is a split of authority among the circuits regarding the proper reading of Mauro. Compare Trafny v. United States, 311 Fed.Appx. 92, 95-96 (10th Cir.2009), United States v. Graham, 622 F.2d 57, 59-60 (3d Cir.1980), cert. denied, 449 U.S. 904, 101 S. Ct. 278, 66 L. Ed. 2d 135 (1980), and United States v. Bryant, 612 F.2d 799, 802 (4th Cir.1979), with United States v. Scheer, 729 F.2d 164, 170 (2d Cir.1984).
Furthermore, if the Court does grant certiorari, there is a reasonable possibility that five Justices will vote to overturn the en banc majority's decision. Reasonable jurists can disagree regarding the proper interpretation of Mauro, as illustrated both by the debate within this Court and by the split in authority between the Circuits. It is by no means certain that the Supreme Court would agree with the en banc majority's decision.
There is also good cause to delay the issuance of the mandate. The majority argues that the mandate must be issued according to the normal schedule because the federal prosecution of Pleau must be allowed to resume as soon as possible. However, it is difficult to see what will be lost by allowing the Supreme Court time to decide whether or not to grant certiorari in this case. On the other hand, Rhode Island's interests could be irreparably harmed by Pleau's transfer to federal custody.
The State of Rhode Island has a public policy against the death penalty. In furtherance of this public policy, the State has an interest in preventing its citizens from being exposed to a prosecution that might result in the death penalty. Rhode Island also has an interest in upholding its sovereign right to refuse a request for a prisoner transfer, a right guaranteed by the express language of the Interstate Agreement on Detainers. Both of these interests could be irreparably harmed if Pleau is transferred before the Supreme Court has an opportunity to decide whether or not to grant certiorari. The transfer of Pleau to federal custody could moot this case entirely. In addition, as the en banc majority opinion recognized, "the governor could hardly obtain meaningful relief following *25 a federal conviction of Pleau." Op. at 4.
Given the importance of the issues presented in this case and the risk of irreparable harm to Rhode Island's interests, I see no reason for the majority's haste to issue the mandate. The Supreme Court may yet decide to uphold the en banc majority's opinion, but it may also decide to reinstate the original panel's decision. The most prudent course of action for this Court seems to be to leave the status quo in place while the Supreme Court decides what it wants to do. Therefore, I respectfully dissent.
NOTES
[1] E.g., Weekes v. Fleming, 301 F.3d 1175, 1180 n. 4 (10th Cir.2002), cert. denied, 537 U.S. 1146, 123 S. Ct. 950, 154 L. Ed. 2d 848 (2003); Weathers v. Henderson, 480 F.2d 559, 559-60 (5th Cir.1973) (per curiam); Derengowski v. U.S. Marshal, Minneapolis Office, Minn. Div., 377 F.2d 223, 223-24 (8th Cir.), cert. denied, 389 U.S. 884, 88 S. Ct. 144, 19 L. Ed. 2d 180 (1967); United States v. Horton, No. 95-5880, 1997 WL 76063, at *3 (4th Cir. Feb. 24, 1997) (per curiam) (unpublished).
[2] The report of the Council of State Governments, which drafted the IAD and urged its adoption on the states and federal government, Mauro, 436 U.S. at 350-51, 98 S. Ct. 1834, explained: "The possibility [of the Governor withholding consent] is left open merely to accommodate situations involving public policy which occasionally have been found in the history of extradition." Council of State Gov'ts, Suggested State Legislation Program for 1957, at 79 (1956) (emphasis added).
[3] See, e.g., McDonald v. Ciccone, 409 F.2d 28, 30 (8th Cir. 1969); Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.), cert. denied, 320 U.S. 766, 64 S. Ct. 70, 88 L. Ed. 457 (1943); Lunsford v. Hudspeth, 126 F.2d 653, 655 (10th Cir. 1942).
[4] Yet another circuit, while noting that Mauro's conditional language left the ultimate issue open, observed: "We would have thought that, under the Supremacy Clause, a state was not free to delay or disapprove compliance with the writ executed under federal statutory authority. . . ." United States v. Hill, 622 F.2d 900, 907 & n. 18 (5th Cir. 1980).
[5] See Brief for Amicus Curiae Governor Lincoln D. Chafee in Support of Pet'r Ex. A (letter from Pleau to Rhode Island Assistant Attorney General offering to plead to sentence of life without parole on state charges).
[6] Pub.L. No. 91-538, 84 Stat. 1397 (1970) (codified as amended at 18 U.S.C. app. 2 § 2).
[7] Alabama v. North Carolina, ___ U.S. ___, 130 S. Ct. 2295, 176 L. Ed. 2d 1070 (2010).
[8] As such it was enacted pursuant to the Compact Clause. U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the consent of Congress . . . enter into any Agreement or Compact with another State. . . ."). Congress originally granted its consent for various States to enter into the IAD by enacting the Crime Control Act of 1934, 48 Stat. 909. See Cuyler v. Adams, 449 U.S. 433, 441, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981). In 1970, Congress caused the District of Columbia and the United States itself to join the IAD by enacting the Interstate Agreement on Detainers Act. See Mauro, 436 U.S. at 343, 98 S. Ct. 1834. The congressional approval of this interstate compact transformed the compact into federal law. Cuyler, 449 U.S. at 438, 101 S. Ct. 703. An interstate compact that requires congressional approval, such as the IAD, needs this approval because consent by the United States must be given before there can be an "encroach[ment] or interfer[ence] with the just supremacy of the United States." Id. at 440, 101 S. Ct. 703 (citations omitted). There should thus be no question that in entering into the IAD as an equal "State," Mauro, 436 U.S. at 354, 98 S. Ct. 1834, the United States was, for purposes of the subject matter of the IAD, relinquishing any superior sovereign rights that may have preexisted the Agreement.
[9] Pleau is presently serving an 18 year sentence of imprisonment for parole and probation violations in Rhode Island. He agreed to plead guilty to the state crimes for which he was charged and to accept a sentence of life imprisonment without the possibility of parole. See Br. for Amicus Curiae Governor Lincoln S. Chafee in Support of Pet'r, Ex. A (letter from Pleau to Rhode Island Assistant Attorney General offering to plead to sentence of life without parole on state charges). After Pleau agreed to the plea and sentence, but before the United States first requested custody of Pleau, the Rhode Island Attorney General dismissed the charges against Pleau without prejudice. See Katie Mulvaney, Faceoff Looms Over Suspect; Courts, Providence Journal, June 28, 2011, at 1.
[10] For present purposes I deem it unnecessary to discuss the preliminary and procedural matters referred to in the first five pages of the majority's opinion.
[11] The Supremacy Clause, U.S. Const. art. VI, cl. 2, provides: "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
[12] For this reason, the cases the majority refers to in which the Supremacy Clause was invoked to enforce treaties or Federal civil rights laws in the face of non-compliance by States are completely inapposite. See Maj. Op. at 5-6. This is not a case involving "State interposition to defeat federal authority." Id. at 6. This is a case in which a State governor exercised a right expressly given to him by federal law. As noted in the panel majority opinion, "the federal government may `waive the federal sovereign's strict right to exclusive custody of a prisoner' in favor of state custody." Pleau, 662 F.3d at 13 n. 9 (quoting Poland v. Stewart, 117 F.3d 1094, 1098 (9th Cir.1997)). This is precisely what the United States did by joining the IAD and invoking it in Pleau's case. The Supremacy Clause is not even implicated, much less violated, when the United States voluntarily waives its right to custody in favor of a State.
[13] See Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82 (1789) ("And be it further enacted, That all the before mentioned courts of the United States, shall have power to issue writs of . . . habeas corpus. . . .").
[14] See Pub.L. 104-132 (1996). For a concise history of the writ throughout its history since the Judiciary Act up to 1996, see Carbo v. United States, 364 U.S. 611, 614-619, 81 S. Ct. 338, 5 L. Ed. 2d 329 (1961).
[15] Among the restrictions placed on the power of federal courts to issue writs involving persons in state custody, the writ is not to issue unless the state court proceedings "(1) resulted in a decision that was contrary to, or involved, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254.
[16] See, e.g., Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir. 1996) (Easterbrook, J.) (noting that with AEDPA "[Congress intended] to move back in [the] direction" of limiting federal court habeas review); Erwin Chemerinsky, Reconceptualizing Federalism, 50 N.Y. L. Sch. L.Rev. 729, 731 (2005-2006) (citing to AEDPA as one of a number of recent shifts towards States' rights). Cf. Wood v. Milyard, ___ U.S. ___, 132 S. Ct. 1826, ___ L.Ed.2d ___ (2012) (upholding authority of State to waive statute of limitations defense under AEDPA, and holding that "it is an abuse of discretion" by a Court of Appeals "to override a State's deliberate waiver of a limitations defense").
[17] The majority opinion interjects a modicum of unnecessary federal arrogance, one which unfortunately permeates this entire controversy, when it states that "[t]he Supremacy Clause operates only in one direction." Maj. Op. at 6.
[18] We further digress to interject that the crimes Pleau is alleged to have committed armed robbery and murder of a private citizen on the way to making a deposit in the bankare quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 13-15 (1st Cir.2006) (Torruella, J., concurring) (objecting to the unwarranted extension of federal criminal jurisdiction over traditionally state crimes). In the present case, extending federal jurisdiction over a crime with at most, de minimis impact on interstate commerce, is stretching that concept beyond the bounds of Congress's constitutional power. Cf. United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). Moreover, given that Pleau has already agreed to plead guilty to state crimes and to a life sentence without possibility of parole, it is frankly unclear what it is that the federal government hopes to gain by its overkill. This is particularly manifest in light of the truly extraordinary costs that will have to be invested by the federal government if it continues to pursue this capital litigation, something that in these times of economic restraint seems unduly wasteful of limited resources.
[19] 18 U.S.C. app. § 2 (2012).
[20] A comprehensive view of the IAD confirms that the United States is a coequal State for purposes of Article IV(a). Congress amended the IAD after Mauro to add specific exceptions treating the United States differently from other parties with respect to some parts of the IAD, but not article IV(a). See Pub.L. No. 100-960, Title VII, § 7059, 102 Stat. 4403 (1988) (codified at 18 U.S.C. app. 2 § 9). For example, Section 9 of the IAD, "Special Provisions When the United States is a Receiving State," states that a dismissal of "any indictment, information or complaint may be with or without prejudice" when the United States is a receiving state. 18 U.S.C. app. 2 § 9(1). In contrast, when any other party to the IAD is a receiving State, such a dismissal "shall" be with prejudice. Id. § IV(e). Section 9 does not indicate that the United States can disregard or override a sending State's denial of its request for temporary custody. And aside from Section 9's enumerated exceptions, Congress has stuck with the IAD's definition of the United States as a "State" on the same footing as other receiving states. See Mauro, 436 U.S. at 354, 98 S. Ct. 1834; see also 18 U.S.C. app. 2 § 2 art. II.
[21] Article IV(e) requires dismissal of an indictment against a prisoner who is obtained by a receiving State, if he is returned to his original place of imprisonment without being tried on the indictment underlying a detainer by which custody was secured. 18 U.S.C. app. § 2 (2012).
[22] In fact, neither Senator Roman Hruska (R. Neb.), who commented briefly in favor of the passage of the IAD, "nor anyone else in Congress drew a distinction between the extent of the United States' participation in the Agreement and that of the other member States, an observation that one would expect had the Federal Government entered into the Agreement as only a sending State." Id.
[23] Since Pleau's arguments are essentially identical to Governor Chafee's, we will refer to them as Governor Chafee's arguments.
[24] As noted by the majority, see Maj. Op. at 6 n. 2, the report of the Council of State Governments states the following: "The possibility [of the Governor withholding consent] is left open merely to accommodate situations involving public policy which occasionally have been found in the history of extradition" (citation omitted). The majority suggests that because public policy considerations had in the past arisen in the extradition context, a state's right of refusal was limited to that context. However, the Supreme Court in Mauro apparently deemed the extradition context irrelevant, as neither the Court's discussion nor its quote from the Council report mentions extradition. This makes sense: just because public policy considerations had arisen in the extradition context does not justify limiting a state's right of refusal to the extradition context.
[25] This conditional language was used because there was no issue before the Court in Mauro regarding a refusal by a governor to turn over a state prisoner, much less a refusal to turn over a state prisoner upon the filing of a detainer, and thereafter attempting to circumvent a governor's refusal by using a habeas writ. Thus, the majority's claim that Mauro decides this issue against Pleau and Governor Chafee contentions is unsustainable.
[26] In fact, the Mauro Court was well aware of the danger of allowing the government to pick and choose which parts of the IAD it wanted to obey. This is made clear by the manner in which the Court rejected the second of the two arguments that the government had raised against treating an ad prosequendum writ as a request for custody:
The Government also points out that the speedy trial requirement of Art. IV(c) by its terms applies only to a "proceeding made possible by this article. . . ." When a prisoner is brought before a district court by means of an ad prosequendum writ, the Government argues, the subsequent proceedings are not made possible by Art. IV because the United States was able to obtain prisoners in that manner long before it entered into the Agreement. We do not accept the Government's narrow reading of this provision; rather we view Art. IV(c) as requiring commencement of trial within 120 days whenever the receiving State initiates the disposition of charges underlying a detainer it has previously lodged against a state prisoner. Any other reading of this section would allow the Government to gain the advantages of lodging a detainer against a prisoner without assuming the responsibilities that the Agreement intended to arise from such an action.
Id. at 363-64, 98 S. Ct. 1834 (emphasis added).
[1] The procedural posture is unusual because the case was reheard by the court en banc, and the underlying proceedings comprised both an original request to this court for a writ of prohibition and an appeal from a district court order of debatable finality.
[2] Proceedings could be protracted in a case such as this one when the Attorney General is required to decide whether to seek the death penalty. See United States v. Lopez-Matias, 522 F.3d 150, 155 (1st Cir.2008).
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01-03-2023
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05-21-2012
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https://www.courtlistener.com/api/rest/v3/opinions/2072423/
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872 N.E.2d 219 (2007)
BAUER
v.
BIRK-BAUER.
No. 29A02-0703-CV-262.
In the Court of Appeals of Indiana.
August 14, 2007.
DARDEN, J.
Unpublished memorandum decision. Affirmed.
KIRSCH, J. Concurs.
MATHIAS, J. Concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/560213/
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931 F.2d 894
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Frank Everett COLLINS, Defendant-Appellant.
No. 90-5278.
United States Court of Appeals, Sixth Circuit.
May 1, 1991.
1
Before KEITH and MILBURN, Circuit Judges, and COHN, District Judge.*
ORDER
2
Frank Everett Collins, a pro se federal prisoner, appeals the district court's order denying his Fed.R.Crim.P. 35(a) motion, in which he challenged the imposition of a four year period of special parole. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Seeking to vacate a portion of his sentence providing for special parole, Everett filed a Rule 35(a) motion claiming that, under 21 U.S.C. Sec. 841(b)(1), the court was without authority to impose a four year period of special parole as part of his sentence. The district court denied the motion concluding that the four year term was authorized under the law in effect at the time of Collins's conviction. Collins has filed a timely appeal from this order.
4
Upon review, we vacate the district court's judgment. Between October 27, 1986 and November 1, 1987, 21 U.S.C. Sec. 841(b)(1) provided for a period of supervised release for defendants sentenced under that statute. Gozlon-Peretz v. United States, 111 S.Ct. 840 (1991). Hence, Collins's argument that the statute does not allow a period of either special parole or supervised release for defendants convicted of crimes during this period is without merit. Id.
5
Accordingly, we hereby vacate the district court's judgment and remand to the district court for resentencing to a four year term of supervised release in lieu of the four year term of special parole. Rule 9(b)(6), Rules of the Sixth Circuit.
*
The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2589847/
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44 N.Y.2d 666 (1978)
Underhill Construction Corp., Appellant,
v.
New York Telephone Company et al., Respondents, et al., Defendants.
Court of Appeals of the State of New York.
Argued February 14, 1978.
Decided March 23, 1978.
David E. Montgomery, Stuart M. Levine and Gary L. Rubin for appellants.
Robert W. Gottlieb and Douglas N. Gordon for New York Telephone Company, respondent.
Andrew P. Davis and Richard T. Andrias for Charles S. Haines and another, doing business as Haines, Lundberg & Waehler, respondents.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE. Taking no part: Judge FUCHSBERG.
Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 760).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3788594/
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OPINION — AG — ** MERIT SYSTEM — NEPOTISM ** THE OPINION NO. JANUARY 10, 1963 AND OPINION NO. JANUARY 28, 1963, OPINIONS EXEMPTING EMPLOYEES OF THE MERIT SYSTEM OF THE PERSONNEL ADMINISTRATION FROM THE NEPOTISM PROHIBITION OF 21 O.S. 484 [21-484] ARE CURRENTLY VALID. (NEPOTISM, MERIT SYSTEM) CITE: 21 O.S. 481 [21-481], 21 O.S. 483 [21-483] [21-483], 21 O.S. 482 [21-482], 74 O.S. 837 [74-837] (MIKE D. MARTIN) ** SEE: OPINION NO. 75-155 (1975) **
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/2494157/
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57 So.3d 330 (2011)
STATE of Louisiana
v.
Robert WILLIAMS.
No. 2010-KO-2083.
Supreme Court of Louisiana.
February 18, 2011.
Denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/7023652/
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PRESIDING JUSTICE HEIPLE delivered the opinion of the court: The petitioner, Blaine H. Kloke, filed a petition to rescind the statutory summary suspension of his driver’s license (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). The trial court granted the petition. The State appeals. At the hearing on the petition to rescind, police officer Michael Miroux testified that on May 14, 1989, at 2:12 a.m., he noticed a car in the Green River Country Club parking lot. After he walked up to investigate, he saw the petitioner sleeping behind the wheel of the car. He woke the petitioner by knocking on the window. The petitioner said that he had been in Normandy, Illinois, earlier, and that he had been parked in the country club parking lot for about half an hour. He did not say whether he had driven the car there. Miroux stated that the only access to the parking lot was Route 92, which ran to Normandy. Officer Miroux further testified that after asking the petitioner to exit the car, he searched the vehicle and found the car keys on top of the sun visor. He then gave the petitioner the standard motorist’s warning (Ill. Rev. Stat. 1987, ch. 951k, par. 11 — 501.1(c)). The traffic citation indicated that the petitioner agreed to take a breathalyzer test and registered a .17 breath-alcohol content. Donald Parks testified that he and the petitioner had planned on golfing at the Green River Country Club at 7 a.m. on the day of the incident. Dean Alstrand testified that he and his wife had gone drinking with the petitioner on the night of the incident. Around 1 a.m., the three drove to Normandy. Alstrand stated that he drove the petitioner’s vehicle, with the petitioner riding in the passenger seat and Alstrand’s wife following in their vehicle. After they arrived in Normandy, Alstrand decided that the petitioner was too tired to drive home. He offered to drive him home, but the petitioner asked to be driven to the Green River Country Club. After driving the petitioner’s car to the country club parking lot, Alstrand placed the car keys on the sun visor and went home. The petitioner also testified that Alstrand had driven him to the country club parking lot. He stated that he had asked to be driven there because he planned on meeting Parks to go golfing at 7 a.m. According to the petitioner, after Officer Miroux woke him, he told the officer that he had not driven to the parking lot. Following the close of the petitioner’s case, the State moved for a directed finding on the motion to rescind. The trial court denied the motion. The State then recalled Officer Miroux, who testified that the petitioner had said that he had come directly from Normandy, but did not say whether he had driven from there. Miroux admitted that he had not seen the petitioner drive his vehicle that night. After the close of the evidence, the trial court denied the petition to rescind. The petitioner then filed a motion to vacate the denial. At the hearing on the motion, the court stated that it did not believe the petitioner or his witnesses. Despite this finding, the court further found that there was insufficient direct or circumstantial evidence proving that the petitioner had operated his vehicle on a public highway. Accordingly, it granted the motion to vacate and rescinded the summary suspension. On appeal, the State notes that the petitioner had the burden of presenting a prima facie case establishing a right to rescission. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) The State contends that the petitioner failed to meet his burden of proof. Section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 100 et seq.) states that a person must first drive on the public highways of the State to be subject to the summary suspension provisions. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11— 501.1(a).) The petitioner presented testimony that he had not driven his vehicle to the parking lot. Moreover, when he was discovered, he was sleeping in his vehicle and his car keys were on top of the sun visor. For these reasons, we find that the petitioner presented a prima facie case establishing that he had not driven on the public highways. The State also argues that the trial court erred in rescinding the suspension, because the court was under the mistaken belief that direct evidence of driving was required for the summary suspension law to apply. The State contends that driving on the public highways may be proved by circumstantial evidence and that it was so proved in this case. We disagree with the State’s interpretation of the court’s comments. We read its comments not to mean that direct evidence of driving was required, but that the evidence as a whole failed to establish that the petitioner had driven on the public highways. Moreover, although driving on a public highway may be proved by circumstantial evidence, such evidence must show that the petitioner was driving at the time of his arrest or shortly before. (People v. Foster (1988), 170 Ill. App. 3d 306, 524 N.E.2d 681.) As we have already noted, the petitioner presented evidence tending to establish that he did not drive to the parking lot. The State presented little evidence suggesting that the petitioner was driving before his arrest. Accordingly, we find that the trial court did not err in rescinding the summary suspension. The judgment of the circuit court of Bureau County is affirmed. Affirmed. BARRY and STOUDER, JJ., concur.
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01-03-2023
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07-24-2022
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https://www.courtlistener.com/api/rest/v3/opinions/7023654/
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JUSTICE SCOTT delivered the opinion of the court: Two separate appeals from the circuit court of Rock Island County have been consolidated for review. Both appeals involve the same parties and operative facts; however, the primary issues raised in each appeal are distinct. A mortgage foreclosure action was brought in Rock Island County by Lyons Federal Trust & Savings Bank (Lyons) principally against George Guritz, Gerald Huge, Paul Murray and John Stevenson (Stevenson), d/b/a GHMS Real Estate Partnership (GHMS), as the beneficial owners of a land trust, wherein Lyons supplied financing for GHMS to build an apartment complex commonly known as Pebble Creek. Stevenson was subsequently determined bankrupt and dismissed as a defendant. Robert J. Wolfe, d/b/a Action Plumbing (Wolf), was included as a defendant in the action because of various electrical and plumbing services provided by Wolfe at Pebble Creek resulting in Wolfe recording a mechanic’s lien against the property. Wolfe then filed an intervening claim against GHMS and Lyons to foreclose on the mechanic’s lien and additionally filed a counterclaim against GHMS for alleged breach of oral contract to perform work at Pebble Creek. After a bench trial on Wolfe’s mechanic’s lien and breach of contract claims and hearing post-trial motions, the circuit court by order dated February 16, 1989, entered a judgment of $107,104.71 against GHMS on Wolfe’s breach of contract claim and denied judgment of Wolfe’s mechanic’s lien foreclosure based on Wolfe’s failure to give notice of the lien to Lyons as required by section 24 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 24). One appeal was initiated by GHMS, arguing the trial court erred in finding in favor of Wolfe on the breach of contract claim and, alternatively, that the award of damages was excessive. The second appeal was instituted by Wolfe based on the circuit court’s denial of its mechanic’s lien foreclosure action. Lyons mortgage on Pebble Creek was recorded November 19, 1982. Wolfe’s mechanic’s lien was filed on February 23, 1984, and alleged that “on or about April 29, 1983, *** [Wolfe] *** made an oral contract with John Stevenson,” a former partner of GHMS. In Wolfe’s verified claim to foreclose on the mechanic’s lien, Wolfe first alleged that the oral contract inception date was April 29, 1983, and engaged Wolfe to do a variety of electrical and plumbing work on a “time and material basis.” Wolfe claimed to have completed the work on December 23, 1983, and a balance of $107,161.75 was owed under the contract. Wolfe was subsequently granted leave to amend the counterclaim and changed the alleged inception date of the oral agreement to August 23, 1982, rather than April 29, 1983. In its answer to the amended pleadings, GHMS admitted the existence of an oral agreement on August 23, 1982, but denied the terms encompassed all that Wolfe alleged and GHMS affirmatively alleged that all work performed under the August 23, 1982, contract had been paid for in full. Only two witnesses testified at trial, Robert Wolfe and John Stevenson. The evidence centered primarily around the date and scope of the agreement entered into between Wolfe and Stevenson on August 23, 1982, the amount due Wolfe by Stevenson for work performed at Pebble Creek and the billing and payment practices of Wolfe and Stevenson. GHMS APPEAL The appeal of GHMS centers on the oral contract between Wolfe and Stevenson, as agent for GHMS. GHMS essentially claims that there were multiple contracts entered into between Wolfe and Stevenson, some of which were paid in full, and on others, partial payments were made. GHMS further claims that Wolfe was paid in full for the contract entered into on August 23, 1983, and therefore, GHMS was entitled to judgment for the contract entered into on that date. Wolfe, on the other hand, disagrees there was a succession of contracts and claims the terms of the contract entered into on August 23, 1982, were the cornerstone for all work performed by Wolfe at Pebble Creek. Wolfe alleged the August 23, 1982, contract set hourly rates for skilled and unskilled labor, set hourly rates for the use of certain equipment, and provided that Wolfe would do whatever Stevenson said to do on a time and material basis. The circuit court determined an oral contract existed. GHMS makes two arguments as to why the circuit court erred in granting judgment in favor of Wolfe on the oral contract claim. First, GHMS argues that Wolfe’s sworn statement of mechanic’s lien and verified countercomplaint alleging the April 29, 1983, contract date are judicial admissions denying judgment as a matter of law or, alternatively, are serious inconsistencies rendering Mr. Wolfe’s testimony unbelievable and therefore against the manifest weight of the evidence. GHMS avers that Wolfe’s change of the contract date was done solely for the purpose of obtaining priority over mortgagee Lyons. Curiously, however, GHMS never objected to Wolfe’s amendment alleging August 23, 1982, as the contract date, and in fact, admitted that a contract was entered into between the parties on that date but denied the scope of the contract covered all work done by Wolfe on the Pebble Creek project. Thus, GHMS argues that since the evidence shows there were a series of contracts entered into between the parties and the contract dated August 23, 1982, was paid in full, judgment must be entered against Wolfe and in favor of GHMS. We disagree. Undeniably, Wolfe’s statement of mechanic’s lien did state that the contract date was April 29, 1983. Nonetheless, Wolfe sought leave and was allowed, without objection, to amend the pleadings and allege a contract date of August 23, 1982. We disagree with GHMS’ contention that the date alleged in the statement of mechanic’s lien constituted a binding judicial admission, since a statement of mechanic’s lien does not necessarily require a contract date to be alleged (see Ill. Rev. Stat. 1987, ch. 82, par. 7), nor is the lien statement necessary for Wolfe’s contract claim. We consider the variance in the two alleged contract dates amounts to adverse evidence entitled to little consideration since there was no showing that GHMS in any way relied on the verified claim for lien to its detriment. See Office Electronics, Inc. v. Grafic Forms, Inc. (1979), 72 Ill. App. 3d 456, 390 N.E.2d 953 (principle of estoppel applied to inconsistent original and amended pleadings); Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 183 N.E.2d 547 (an amended, abandoned or withdrawn original pleading is treated as an ordinary admission); Nolan v. American Telephone & Telegraph Co. (1945), 326 Ill. App. 328, 61 N.E.2d 876 (inconsistent statement in an abandoned pleading is adverse evidence, but not a conclusive judicial admission). The trial court’s finding that the contract was entered into on August 23, 1982, is supported by the following evidence: that the only time labor and machinery hourly rates were discussed was pursuant to the August 23, 1982, contract; that the contract was not based on a bid of a job but was for time and material; and that all of the work was performed on the same general project. It is also not fatal that no specific amount of work or the length of Wolfe’s employment at Pebble Creek were not expressly defined by the terms of the contract. Employment contracts with no definite termination date will exist so long as it is mutually satisfactory between the parties, with the understanding that either party may terminate the contract at will. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 482 N.E.2d 377; Schoen v. Caterpillar Tractor Co. (1968), 103 Ill. App. 2d 197, 243 N.E.2d 31.) It is simply unbelievable that multiple contracts were entered into each time Wolfe performed work at the request of Stevenson at the Pebble Creek project. GHMS next contends the damages awarded Wolfe by the trial court are against the manifest weight of the evidence. GHMS first argues that Wolfe’s execution of final lien waivers either bars his claim for payment after October 3, 1984, or seriously calls to question the truthfulness of those claims for payment. GHMS additionally claims that Wolfe’s purported method of using nonsequenced invoices infers that the invoices were fabricated. We disagree with these contentions. The trial court had before it all invoices, lien waivers, payments and supporting testimony in determining the amount owed under the contract. Our review of this evidence supports our belief that the evidence substantiates the circuit court’s finding. The execution of lien waivers does not bar any claim for additional payments, because the evidence supports the circuit court’s findings that these waivers were necessarily executed by Wolfe in order to receive partial payment and were intended to be partial lien waivers as to particular work. Moreover, the existence of lien waivers only bars the right to assert a lien under the Mechanics’ Liens Act, but it does not operate to extinguish the underlying obligation. (Capitol Plumbing & Heating Supply Co. v. Snyder (1969), 104 Ill. App. 2d 431, 244 N.E.2d 856.) We also do not believe that Wolfe’s billing method of using randomly sequenced invoices calls to question the truthfulness of the invoices. The evidence showed that Wolfe had always used randomly sequenced invoices during the course of the Pebble Creek project, and prior to GHMS’ financial difficulties, those invoices were apparently paid without question. Thus, we do not find anything particularly unusual about the questioned invoices being randomly sequenced. Moreover, the group of invoices submitted by Wolfe after walking off the job is not unusual because the evidence supports the finding that Wolfe held up billing at the request of Stevenson. As to GHMS’ contention that Wolfe engaged in the practice of padding bills in that more hours worked were shown on the invoices than were transcribed in the time sheets. The trial court, however, gave due credit for all those hours that were questionable, which in actuality were very few compared to the total hours spent on the project by Wolfe. The trial court also gave credit for items purchased but unused on the project. Our review of the evidence reveals the trial court did not abuse its discretion in awarding damages in the sum of $107,104.71. Finally, GHMS contends that the judgment of the trial court was not final and appealable because the mortgage foreclosure action remained unresolved. We disagree. This separate contract action involved only GHMS and Wolfe. Lyons had no interest in this aspect of the litigation. Although it is true that Wolfe could attempt to execute on the Pebble Creek property to satisfy the judgment, that process would surely be halted because of the pending foreclosure action. Execution against the Pebble Creek property, however, is not the only method available to Wolfe in attempting to satisfy the judgment and there is no good reason why Wolfe should not be allowed to pursue those avenues. “An order is final [and appealable] if it disposes of the rights of the parties either on the entire controversy or some definite and [distinct] part of it.” (McGrew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104, 109, 497 N.E.2d 424.) Simply because other counts of a complaint remain unresolved that are related to the same general occurrence is not fatal to an appeal. This judgment is appealable because it disposes of a distinct cause of action between all of the parties involved. Heinrich v. Peabody International Cory. (1984), 99 Ill. 2d 344, 459 N.E.2d 935. The decision of the trial court granting judgment in favor of Wolfe and against GHMS in the amount of $107,104.71 on Wolfe’s oral contract claim is affirmed. WOLFE’S APPEAL Wolfe also appealed a part of the circuit court’s order dated February 16, 1989, wherein judgment was entered in favor of GHMS and Lyons and against Wolfe on Wolfe’s counterclaim for foreclosure of the mechanic’s lien. In essence, the trial court found Wolfe to be a subcontractor and as such failed to give notice to the owner and mortgagee within 90 days of completing the work as required by section 24 of the Illinois Mechanics’ Liens Act. (Ill. Rev. Stat. 1987, ch. 82, par. 24.) Wolfe raises two issues for review. First, whether Wolfe is a subcontractor within the meaning of the Illinois Mechanics’ Liens Act, and second, whether Wolfe is entitled to prejudgment interest under the Mechanics’ Liens Act. Stevenson, although a partner in GHMS, was also the owner of R.I.C. Construction, which GHMS contends was the original contractor to which Wolfe furnished labor and material, thereby making Wolfe a subcontractor. It is also uncontradicted that Stevenson was a beneficial owner of the property and acting as agent for GHMS in the development of Pebble Creek. The question thus becomes whether Stevenson was purely a partial owner and agent of GHMS or was he an original contractor in his capacity as owner of R.I.C. Construction. Determining Stevenson’s status will necessarily determine Wolfe’s status. In answering the question of Stevenson’s status, we must keep in mind that on GHMS’ appeal, we affirmed the trial court’s decision that an oral agreement existed between Wolfe and GHMS. In fact, GHMS has admitted in its pleadings and throughout its briefs on appeal that contracts were entered into with Wolfe. It is also undisputed that GHMS is the beneficial owner of the Pebble Creek property. Section 1 of the Illinois Mechanics’ Liens Act (the Act), in pertinent part, provides: “Any person who shall by any contract *** with the owner of a lot or tract of land, or with one whom the owner has authorized *** to improve the lot or tract of land *** or to furnish material *** on the order of his agent *** is known under this Act as a contractor, and has a lien upon the whole of such lot or tract of land *** for the amount due to him for such material, fixtures, apparatus, machinery, services or labor, and interest from the date the same is due.” Ill. Rev. Stat. 1987, ch. 82, par. 1. Stevenson, as authorized agent for GHMS, entered into a contract with Wolfe, and this being the case, it is clear that Wolfe must be considered a contractor under the Act. It is true that invoices sent by Wolfe were directed to R.I.C. Construction, that lien waivers were executed by Wolfe in favor of R.I.C. Construction, and R.I.C. Construction filed a statement with Lyons listing Wolfe as a subcontractor. Nonetheless, it is entirely inconsistent for the circuit court to determine that an oral agreement existed between Wolfe and GHMS and yet find Wolfe a subcontractor of R.I.C. Construction on the apparent basis that Wolfe’s contract was entered into with R.I.C. Construction. If Wolfe was a subcontractor, then no cause of action in contract would exist for Wolfe against GHMS because there would be no privity of contract between the parties. (See Kilburg v. Petrolagar Laboratories, Inc. (1935), 280 Ill. App. 527; I. Lurya Lumber Co. v. Goldberg (1916), 198 Ill. App. 374; Baker v. Mayer (1911), 163 Ill. App. 391; Knickerbocker Ice Co. v. Murphy (1895), 59 Ill. App. 3d 39.) Thus, we must decide which finding of the court is appropriate, and since GHMS has admitted throughout that, at a minimum, a series of contracts existed between Wolfe and GHMS and other evidence supports the existence of a contract as detailed in GHMS’ appeal, we consider the trial court’s finding of a contract between Wolfe and GHMS to be correct, and Wolfe is necessarily then a contractor under section 1 of the Act. We further consider that Wolfe, as a contractor, is entitled to interest from the date payments were due pursuant to section 1 of the Act. Ill. Rev. Stat. 1987, ch. 82, par. 1. We must next consider whether Wolfe’s mechanic’s lien has priority over Lyons’ mortgage for foreclosure purposes. To this extent, the central question is whether Wolfe is bound by the contract date of April 29, 1983, as stated in Wolfe’s claim for lien and attached to Wolfe’s original verified pleading, or whether Wolfe’s amended pleading allegation of August 23, 1982, which was allowed without objection, is the proper date for consideration under this cause of action. The significance of this amendment is that April 29, 1983, is subsequent to the date Lyons’ mortgage was recorded, but August 23, 1982, precedes the recording date of the mortgage. As in Wolfe’s contract claim, GHMS admitted a contract existed between the parties on August 23, 1982, but denied the scope of that agreement. The principal party affected, however, is the mortgagee Lyons and not GHMS. Lyons argues that section 7 of the Act bars Wolfe’s lien for any date prior to April 29, 1983, in that section 7 of the Act requires that the contract inception date be stated in the claim for lien and the Act implicitly prohibits a lien claimant from making any amendments to the claim for lien after four months from the date of completion of the contract. Therefore, Lyons asserts Wolfe is bound to the date of April 29, 1983, in that the sworn affidavit of the claim for lien as well as Wolfe’s original, verified pleadings are judicial admissions which cannot be avoided by the filing of amended pleadings. As authority, Lyons primarily relies on the cases of Chambers v. Appel (1946), 392 Ill. 294, 64 N.E.2d 511, Mutual Services, Inc. v. Ballantrae Development Co. (1987), 159 Ill. App. 3d 549, 510 N.E.2d 1219, Premier Electrical Construction Co. v. LaSalle National Bank (1985), 132 Ill. App. 3d 485, 477 N.E.2d 1249, and Federal Savings & Loan Insurance Corp. v. American National Bank & Trust Co. (1983), 115 Ill. App. 3d 426, 450 N.E.2d 1360. These decisions, however, are distinguishable. Initially, we do not agree with Lyons’ position that the section 7 claim for lien must state the date of the contract. Section 7 only requires that the claim for lien be verified by the contractor, his agent or employee; contain a brief statement of the contract; state the balance due under the contract after allowing all credits; and give sufficient description of the lot[s] affected. If an error is made in any allegations which the Act does not require in the claim for lien, such error does not invalidate the statement or defeat the lien. (See United Cork Cos. v. Volland (1937), 365 Ill. 564, 7 N.E.2d 301; Inter-State Building & Loan Association v. Ayers (1898), 177 Ill. 9, 52 N.E. 342; Culver v. Schroth (1894), 153 Ill. 437, 39 N.E. 115.) This interpretation does not derogate from the purpose of section 7, which provides incumbrancers or owners of property with notice of the existence, nature and character of a lien, to enable third parties to determine from the claim whether the lien is enforceable. (Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291.) Nor does this interpretation violate the notion that the Act is to be strictly construed with reference to the requirements upon which the lien depends. (Waldbillig Woodworking, Inc. v. King Arthur’s North, Ltd. (1982), 104 Ill. App. 3d 417, 432 N.E.2d 1048.) This interpretation does, however, seem to strike a balance between the Mechanics’ Liens Act and sections 2 — 613 and 2 — 616 of the Illinois Code of Civil Procedure allowing, respectively, for pleading in the alternative (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613) and amending pleadings prior to judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616). Keeping in mind that a statement of the contract date in a section 7 claim for lien is not a necessary prerequisite to enforcing the lien, we therefore determine that Wolfe’s verified claim for lien and original pleadings alleging a contract date of April 23, 1983, are not binding judicial admissions. This result is, in fact, bom out by the Chambers case Lyons has cited as authority for its position. In Chambers, the court determined that “admissions of fact contained in pleadings which have been withdrawn, dismissed or superseded by an amended pleading *** are admissible in evidence as admissions against interest. They are not conclusive against the party making them and may be explained or contradicted.” (Chambers v. Appel, 392 Ill. at 307.) The court did distinguish, however, those cases wherein a party has relied to its detriment on the sworn statements or pleadings of another party and determined that in such a situation, the admissions are conclusive on the party making them. No such evidence has been presented here since Wolfe’s claim for lien was filed in 1984, well after Lyons had filed its mortgage. In Federal Savings, another case cited by Lyons, the court determined that a contractor could not amend its claim for lien after the four month limitation period under section 7 had expired, thereby defeating the contractor’s claim for lien. The defect in the claim for lien the court focused upon concerned the contractor’s failure to allege facts entitling it to a lien pursuant to section 1 of the Act. (Ill. Rev. Stat. 1987, ch. 82, par. 1.) Thus, there was no way for a third party to ascertain whether the lien was enforceable. (Federal Savings & Loan Association v. American National Bank, 115 Ill. App. 3d 426, 450 N.E.2d 820.) Wolfe’s claim for lien is not defective in this manner. Additionally, an allegation of when a contract is entered into is not wholly a statement of fact, but at most, a mixed factual and legal question. A pure statement of fact would be a statement of when work commenced on a project. It is the province of the trial court to determine the existence and terms of a contract. (Premier Electrical Construction Co. v. La Salle National Bank (1985), 132 Ill. App. 3d 485, 477 N.E.2d 1249.) Therefore, to the extent that case law exists stating that prior verified statements of fact are binding judicial admissions, those cases are inapplicable to the present situation because Wolfe’s statement of the contract inception date is not a pure statement of fact, but at least in part, a conclusory statement or opinion. The circuit court found that an oral contract existed between Wolfe and GHMS and that it was entered into on August 23, 1982. Based on this finding, it is impossible for Wolfe to be a subcontractor within the meaning of the Mechanics’ Liens Act. We therefore reverse the decision of the trial court as against the manifest weight of the evidence with instructions to grant a judgment of foreclosure in favor of Wolfe and further remand the cause to the circuit court to assess statutory interest due Wolfe as provided in section 1 of the Mechanics’ Liens Act. Reversed and remanded. GHMS’ appeal is therefore affirmed; Wolfe’s appeal is reversed and remanded. STOUDER and WOMBACHER, JJ., concur.
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634 N.W.2d 708 (2001)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Joe Lewis POWELL, Jr., Defendant-Appellant.
No. 117743, COA No. 196550.
Supreme Court of Michigan.
October 23, 2001.
By order of May 1, 2000, the delayed application for leave to appeal from the July 28, 2000 decision of the Court of Appeals was held in abeyance pending the decision in People v. Mass. On order of the Court, the decision having been issued on July 5, 2001, 464 Mich. 615, 628 N.W.2d 540, the delayed application is again considered, and pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REMAND this matter to the Court of Appeals for reconsideration of Issue IV of the delayed application light of the decision in People v. Mass. In all other respects, the delayed application for leave to appeal is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, C.J., states as follows:
I concur in the order of remand but continue my adherence to Justice Markman's opinion in People v. Mass, 464 Mich. 615, 628 N.W.2d 540 (2001).
MARKMAN, J., concurs in the statement of CORRIGAN, C.J.
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10-30-2013
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75 So.3d 746 (2011)
VASQUEZ
v.
JACAS.
No. 4D10-5231.
District Court of Appeal of Florida, Fourth District.
December 14, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2072430/
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694 N.W.2d 783 (2005)
Rhonda S. KUNFERMAN, Relator,
v.
FORD MOTOR COMPANY, Self-Insured, Respondent.
No. A05-92.
Supreme Court of Minnesota.
April 19, 2005.
Curtis H. Foster, Minneapolis, MN, for Relator.
D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, MN, for Respondent.
Considered and decided by the court en banc.
ORDER
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals filed December 16, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).
BY THE COURT:
/s/Alan C. Page
Associate Justice
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https://www.courtlistener.com/api/rest/v3/opinions/2487911/
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77 So. 3d 805 (2011)
Orson W. BENN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D11-984.
District Court of Appeal of Florida, Second District.
December 28, 2011.
Rehearing Denied January 27, 2012.
Henry E. Marines of Law Offices of Henry E. Marines, P.A., Miami, for Appellant.
MORRIS, Judge.
Orson W. Benn appeals the summary dismissal of his motion for postconviction *806 relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court mistakenly found that the State did not amend the information to remove the construction fraud counts after the defense moved for a judgment of acquittal. Despite this error, Benn's motion is ultimately without merit. Therefore, we affirm the order of dismissal.
Affirmed.
VILLANTI and KHOUZAM, JJ., Concur.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1278929/
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695 N.W.2d 505 (2005)
J.L. HOLLEN, L.L.C. v. LANDERGOTT
LANDERGOTT v. HOLLEN
No. 04-0010
Court of Appeals of Iowa
February 9, 2005.
Decision without published opinion. Affirmed in part, Reversed in part, and Remanded.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2589849/
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44 N.Y.2d 881 (1978)
Evelyn R. Reisinger et al., Appellants,
v.
Allstate Insurance Company, Respondent.
Court of Appeals of the State of New York.
Argued May 2, 1978.
Decided June 6, 1978.
William E. McKnight for appellants.
Walter Eves for respondent.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.
Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 1028).
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/800665/
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3300
N ATIONAL L ABOR R ELATIONS B OARD ,
Petitioner,
and
U NITED S TEEL, P APER AND F ORESTRY, R UBBER,
M ANUFACTURING, E NERGY, A LLIED INDUSTRIAL &
S ERVICE W ORKERS INTERNATIONAL U NION,
Intervening-Petitioner,
v.
KSM INDUSTRIES, INC.,
Respondent.
Application for the Enforcement of a Supplemental Order
of the National Labor Relations Board
Nos. 30-CA-13762, 14008, 14101.
A RGUED S EPTEMBER 20, 2011—D ECIDED M AY 22, 2012
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. The present case arose against the
backdrop of an order from the National Labor Relations
2 No. 10-3300
Board finding that KSM Industries violated sections 8(a)(3)
and (1) of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(3) and (1), when it denied or delayed the recall
of certain employees after their participation in an unfair
labor practices strike. See KSM Indus., Inc., 336 N.L.R.B. 133
(2001), motion for reconsideration granted in part on
other grounds, 337 N.L.R.B. 987 (2002). After further pro-
ceedings, the Board ordered KSM to pay specific
amounts of backpay to 42 affected employees. (See Ap-
pendix to this opinion.) It now petitions this court to
enforce that order. KSM challenges the Board’s findings
on 11 employees for lack of substantial evidence. As
KSM offers no argument with respect to the other 31
employees, we enforce the Board’s order summarily with
respect to them. The employees’ union intervened to
defend the Board’s order. We also grant the Board’s
petition for enforcement for the 11 employees for which
KSM has raised objections.
I
The Administrative Law Judge (ALJ) and the Board
wrote thorough decisions that provide extensive detail
about this saga, so we have no need to repeat every-
thing here. KSM Indus., Inc. and United Steel, Paper
and Forestry, Rubber, Mfg., Energy, Allied Indus. &
Serv. Workers Int’l Union Local 2-779, AFL-CIO, 353
N.L.R.B. No. 117 (2009). A brief account of the salient
facts will suffice.
KSM’s current liability arose out of its failure fifteen
years ago to reinstate its strikers after the employees’
No. 10-3300 3
union made an unconditional offer to return to work on
October 5, 1997. In 2001, the Board ruled that KSM’s
conduct with respect to recalls violated the labor laws,
and it ordered backpay as a remedy. 336 N.L.R.B. 133
(2001). The parties entered into a partial settlement agree-
ment on October 3, 2006, but further progress was not
forthcoming. The ALJ attempted to wrap matters up
with a remedial order entered on September 27, 2007,
but by the time this order reached the Board, the Board
had shrunk to two sitting members, who attempted to
resolve it. At that point, the case was held up for a year
and a half by New Process Steel, L.P. v. NLRB, 130 S. Ct.
2635 (2010), which ultimately held that the Board could
not act without a minimum of three members. After the
Board once again had the necessary quorum, it issued a
Second Supplemental Decision and Order in Septem-
ber 2010 requiring KSM to compensate 42 former striking
employees with backpay totaling in the aggregate
$383,461.11. That is the order now before us.
II
Our review of the Board’s decision is subject to a defer-
ential standard. Loparex LLC v. NLRB, 591 F.3d 540, 545
(7th Cir. 2009). Our task is not to reweigh the evidence;
it is only to determine whether there is evidence in the
record supporting the Board’s outcome that could satisfy
a reasonable fact finder. NLRB v. Midwestern Pers.
Serv., 508 F.3d 418, 423 (7th Cir. 2007). We owe “particu-
lar deference to the Board’s credibility determinations,
which we will disturb only in extraordinary circum-
4 No. 10-3300
stances.” FedEx Freight East, Inc. v. NLRB, 431 F.3d 1019,
1026 (7th Cir. 2005) (quoting Ryder Truck Rental v.
NLRB, 401 F.3d 815, 825 (7th Cir. 2005)). We similarly defer
to the Board’s interpretations of the law “unless they
are irrational or inconsistent with the Act.” Loparex, 591
F.3d at 545. In a case like this one, where the Board
adopted the majority of the ALJ’s findings, we apply
the same standards to the ALJ’s findings and opinions
to the extent that the Board has adopted them as its
own. Id.
In the face of these deferential standards, KSM has
offered a number of reasons why, in its view, we should
deny enforcement to the Board’s order. Initially it argues
that the Board denied it due process because the
Board made its decision too quickly. This may strike
the reader as odd, given the fact that the case (if it were
a child) has gone from birth to high school, but KSM’s
focus is more narrow. KSM sought review of the orig-
inal Supplemental Decision and Order issued by the two-
person panel on March 26, 2009, 353 N.L.R.B. 1124 (2009),
in the D.C. Circuit. Id. That court, however, suspended
its ruling pending the Supreme Court’s decision in
New Process Steel, which raised the question whether
the Board was empowered to act through only two mem-
bers. The Supreme Court answered this question in
the negative, holding that two Board members cannot
constitute a statutory quorum (even though a three-
person Board might act by a vote of 2-1). This had the
effect of setting aside a great number of decisions, in-
cluding the 2009 ruling in this case. The Board sought
expedited issuance of the remand from the D.C. Circuit,
No. 10-3300 5
and that court obliged with an order dated Septem-
ber 29, 2010. The Board issued its Second Supplemental
Decision and Order the following day, on September 30.
KSM alleges that the speed with which the Board issued
its second decision after the remand proves that the
Board failed properly to review the matter.
Whatever one might think of the Board’s one-day turn-
around is, unfortunately for KSM, beside the point.
We lack authority to reach the merits of this argument
because KSM did not raise it before the Board. 29 U.S.C.
§ 160(e); 29 C.F.R. § 102.48(d)(1), (2) (moving party has
28 days after the Board issues its decision to request
reconsideration). Section 160(e) states, “No objection
that has not been urged before the Board . . . shall be
considered by the court, unless the failure or neglect to
urge such objection shall be excused because of extra-
ordinary circumstances.” KSM has not suggested any
reason why we should find the requisite extraordinary
circumstances. NLRB v. Dominick’s Finer Foods, Inc., 28
F.3d 678, 686 (7th Cir. 1994) (explaining that “extra-
ordinary circumstances” under § 160(e) exist “only if
there has been some occurrence or decision that
prevented a matter which should have been presented
to the Board from having been presented at the proper
time”).
We add that even if we thought that KSM’s forfeiture
of this point was excused, its underlying argument is
without merit. The pendency of New Process Steel was
hardly a secret, and for all we know the Board was
already busy taking another look at the cases that were
6 No. 10-3300
potentially affected by it. KSM has offered no evidence
to show that the Board failed to fulfill its obligations.
It takes much more for us to intervene than a disap-
pointed party’s hunch that the Board gave a cursory
review to its case.
III
We now turn to KSM’s assertion that the Board improp-
erly awarded backpay to 11 employees. KSM takes issue
with the Board’s conclusion that certain employees
who quit in order to obtain access to their 401(k) funds
did not intend permanently to abandon employment
and thus are owed backpay. It also challenges the
Board’s findings that certain employees adequately
searched for and attempted to secure interim employment.
A
1
The first question presented is whether five striking
employees who resigned during the strike because
they needed to gain access to their 401(k) accounts—to
whom the parties refer as the “401(k) quits”—were prop-
erly awarded backpay by the Board. This is important
because if a striker intends permanently to abandon
his employment when he resigns during a strike, the
employer may avoid backpay liability. L.B.&B. Assoc.,
Inc., 346 N.L.R.B. 1025, 1029 (2006). KSM challenges the
Board’s finding that Anthony Bannenberg, Alan Resch,
No. 10-3300 7
and Michael Bartelt did not intend permanently to aban-
don their employment when they resigned. KSM also
argues that Robert Graf and Douglas Wiedeman, both
of whom resigned after the strike, also intended perma-
nently to abandon their employment.
The Board announced its legal standard for 401(k)
quits who resign during a strike in Augusta Bakery Corp.,
298 N.L.R.B. 58 (1990), enforced 957 F.2d 1467 (7th Cir.
1992); since that time, it has adhered to that decision.
L.B.&B. Assoc., Inc., 346 N.L.R.B. at 1029. An employer
bears the burden of producing “unequivocal evidence” of
a striker’s intent to “permanently sever” the employment
relationship, if it wishes to establish abandonment
and thus to avoid backpay liability. Augusta Bakery,
957 F.2d at 1474-75 (quoting Harrowe Servo Controls,
250 N.L.R.B. 958, 964 (1980)). For 401(k) quits, the Board
weighs the following factors: whether (1) the striking
employees could obtain their retirement contributions
only by quitting; (2) they continued to participate in the
strike after they resigned; (3) they credibly testified to
economic stress; (4) they did not have other employment
when they resigned; and (5) they did not tell their em-
ployer that they found other employment. Id. at 1476;
see also Sever v. NLRB, 231 F.3d 1156, 1168-69 (9th Cir.
2000).
The Board uses a slightly different standard if the
workers resign after the strike and after the employer
initiates an unlawful reinstatement system. Alaska Pulp
Corp., 326 N.L.R.B. 522, 525 n.17 (1998). Under such circum-
stances, the Board is “unable to determine, under the
8 No. 10-3300
subjective standards set forth in Augusta Bakery, whether
the strikers unequivocally intended to abandon their
prestrike or substantially equivalent positions because
the [employer’s] refusal to offer full and timely reinstate-
ment so tainted the atmosphere in which they re-
signed.” Id. The Board resolves this uncertainty against
the employer. Id.; see also Roman Iron Works, Inc., 292
N.L.R.B. 1292, 1301-02 (1989).
In this case, the ALJ did not go so far as to find
that resigning was the only way for employees to
obtain access to their 401(k) funds. The alternative to
resignation was a procedure called “hardship with-
drawal” available as part of KSM’s 401(k) program. The
ALJ found, however, that the resignation and hard-
ship-withdrawal routes were not equal because there
were harsher limits on hardship withdrawals. In
particular, the ALJ found that even though hardship
withdrawals were permitted under the program, they
were limited to distributions for four specified neces-
sities: medical expenses, the purchase of a primary resi-
dence, post-secondary tuition and fees, and prevention
of foreclosure or eviction from a primary residence.
Such hardship withdrawals were subject to a 20%
federal tax and a penalty for early withdrawal. Critically,
the ALJ made no finding supporting KSM’s position
that some or all of the strikers would have received
hardship withdrawals, even prior to the strike. To the
contrary, the ALJ mentioned at several points that Ad-
ministrative Manager Dave Oechsner told several
people that the only way to reach those funds was to
resign. KSM fails to present any evidence challenging
No. 10-3300 9
these conclusions and, finding none ourselves, we do
not disturb the Board’s finding.
After reviewing the record as a whole, we are satisfied
that substantial evidence supports the finding that the
five employees did not intend to abandon their employ-
ment permanently. The ALJ’s findings with respect to
these people were largely based on credibility determina-
tions. We owe “particular deference to the Board’s credi-
bility determinations, which will be disturbed only in
extraordinary circumstances.” FedEx, 431 F.3d at 1026.
KSM offers no evidence from the record that would
justify such a finding.
2
KSM presents an alternative challenge to the award
of backpay to the 401(k) quits by arguing that the federal
tax code and the treasury regulations do not allow 401(k)
distributions upon resignation unless the employee, in
fact, resigns. ERISA is also implicated, as KSM sees it,
because it believes that the Board’s order would require
it to breach its fiduciary duty to permit distributions
only when authorized by plan documents. KSM claims
that the Board’s order “presents employers with a sig-
nificant legal dilemma” forcing it to choose between
violating federal tax and ERISA law, and violating the Act.
KSM’s arguments in this respect are not well taken.
Not only are the cases it cites irrelevant, Kennedy v. Plan
Adm’r for DuPont Sav. & Invest. Plan, 555 U.S. 285 (2009)
(outlining general ERISA duties), Egelhoff v. Egelhoff, 532
10 No. 10-3300
U.S. 141 (2001) (reviewing a conflict between ERISA and
state law), but pertinent Board case law supports the
opposite conclusion. The Board has considered and
rejected similar challenges based on the federal tax code
and ERISA in the past. Nat’l Fuel Gas Distrib. Corp., 308
N.L.R.B. 841 (1992) (dismissing an employer’s concern
that the order violates the federal tax code without
concern for the potential “significant financial costs” it
may cause the employer); Truck Drivers Union Local 164,
274 N.L.R.B. 909 (1985) (ruling against the employer
because nothing in the record established that the order
would cause the relevant plan to lose tax-exempt status
or otherwise violate ERISA or the tax code). The
question whether an employee intended permanently to
abandon employment is a factual question distinct from
the question whether an employee resigned for tax or
ERISA purposes. We note in this connection that KSM’s
argument cites only general, definitional materials from
the tax code and Treasury Regulations; it points us to no
regulation, Revenue Ruling, or other authoritative state-
ment addressing the particular situation before us. With-
out further serious development of the point, we have
no reason to consider it further.
We therefore enforce the Board’s order that Bannenberg,
Bartelt, Graf, and Resch are entitled to backpay in the
amounts provided by the Board. We return to Wiedeman
in parts D and E below; at this stage, we comment only
that nothing in the arguments addressed in this section
undermine his right to relief.
No. 10-3300 11
B
The next question is whether KSM owes backpay
to certain employees who the Board found reasonably
delayed or reasonably engaged—albeit unsuccessfully—
in searches for interim employment: Laverne Jung, Hans
Eusch, and James Malson.
An employee’s search efforts do not necessarily need
to start immediately upon the unlawful discharge, par-
ticularly when the company “engage[s] in . . . conduct
that would warrant . . . optimism about the prospect of
reinstatement.” Grovner Orlando Assoc., 350 N.L.R.B.
1197, 1200 (2007). The Board found that Jung reasonably
did not initiate a job search while waiting to be rein-
stated. The Union submitted to KSM an unconditional
offer to return on October 5, 1997. On or about October 16,
KSM distributed a letter to former strikers inquiring
about their availability for recall. The Board deemed
this letter by KSM to be “conduct that would warrant . . .
optimism about the prospect of reinstatement.” Grovner,
350 N.L.R.B. at 1200. On November 14, 1997, Jung received
a recall letter offering him reinstatement starting on
December 1 of that year. The Board’s determination was
a finding of fact that KSM fails to challenge with
contrary evidence. The reasonableness of Jung’s conduct
is confirmed by the fact that he was offered reinstate-
ment only one month after KSM’s inquiry letter.
The Board also found that Eusch and Malson
reasonably engaged in searches for interim employment.
Board precedent places on KSM “the ultimate burden
of persuasion” on the question whether the unlawfully
12 No. 10-3300
discharged employee adequately searched for interim
employment. St. George Warehouse, 351 N.L.R.B. 961, 961
(2007), enforced 645 F.3d 666 (3d Cir. 2011). After the
employer proves that there were “comparable jobs avail-
able in the relevant geographic area,” the discriminatee
and the General Counsel must prove that the discrim-
inatee took “reasonable steps” to get those jobs. Id. The
General Counsel can satisfy its burden of production
by offering the employee’s credible testimony or other
reliable evidence that the employee made an “honest
good faith effort” to find a job. NLRB v. Midwestern Pers.
Serv., Inc., 508 F.3d 418, 423 (7th Cir. 2007).
The ALJ found that KSM failed to show that there
was comparable work available for Eusch in the
relevant geographic area for the period during which
he lacked employment: December 1, 1997, to February 8,
1999. On review, the Board tolled Eusch’s backpay
period from August 1998 to January 1999 because of his
weak efforts to search for work then. KSM argues that
Eusch should be denied backpay for the full period,
not just the omitted two quarters, because companies
similar to KSM were hiring KSM strikers. KSM misun-
derstands the “comparable work” standard. The com-
parison is not between companies, but between jobs.
KSM has not shown whether there was work available
for tape operators, Eusch’s specialty.
We are similarly unpersuaded by KSM’s challenge to
Malson’s backpay award. Malson’s backpay period runs
from October 5, 1997, to April 22, 1998. The Board found
that Malson satisfied his burden by registering with the
No. 10-3300 13
state unemployment agency. It accepted his explanation
for his three-month delay in searching for work; he testi-
fied that he reasonably believed he would be reinstated.
Board precedent establishes that “[t]he receipt of unem-
ployment compensation pursuant to the rules regarding
eligibility constitute prima facie evidence of a reasonable
search for interim employment.” Taylor Mach. Prod., 338
N.L.R.B. 831, 832 (2003) (internal citations and quota-
tions omitted). KSM has not succeeded in undermining
the Board’s decision to credit Malson’s account. We
thus also enforce the Board’s order with respect to the
backpay obligations owed to Jung, Eusch, and Malson.
C
KSM has another theory that it believes defeats the
claims of Thomas Cooper, Lawrence Wetzel, and Allen
Curtis: these men, it argues, voluntarily quit interim
employment without reasonable justification. If an em-
ployee voluntarily quits his interim employment with-
out a good reason, the Board will limit his backpay
because of his failure to mitigate damages. NLRB v. Pepsi
Cola Bottling Co. of Fayetteville, Inc., 258 F.3d 305 (4th
Cir. 2001). When an employee quits the interim employ-
ment, “the burden shifts from the [company] to the Gov-
ernment to show that the decision to quit was reason-
able.” First Transit, Inc., 350 N.L.R.B. 825, 826 (2007). The
Board will find an employee’s decision to quit reasonable
if the job exposes him to “increased exposure to environ-
mental hazards or more onerous conditions.” Parts Depot,
Inc., 348 N.L.R.B. 152, 154 n.16 (2006).
14 No. 10-3300
The ALJ found that Cooper quit his interim employ-
ment because of hazardous working conditions; Wetzel,
who was preparing for retirement, switched interim
employment positions to gain access to a better retire-
ment package; and Curtis switched interim employ-
ment positions to avoid harsh work conditions and to
accept a position that was more comparable to his
work at KSM. The Board found each of these reasons
reasonable and justified by the circumstances. The ALJ’s
findings with respect to these three employees were
based on substantial evidence in the record and are not
convincingly challenged by KSM.
D
KSM has also challenged the Board’s award of back-
pay to Wiedeman on the ground that Wiedeman lost
two interim employment positions for behavior that
amounted to deliberate and gross misconduct. If an em-
ployee’s interim employment is involuntarily terminated,
the Board will not find willful loss of employment
unless the employee has engaged in “deliberate and
gross misconduct, which is so outrageous that it sug-
gests deliberate courting of discharge.” Cassis Mgmt.
Corp., 336 N.L.R.B. 961, 967 (2001). For example, in Ryder
Systems the Board held that an employee did not willfully
lose employment when he was discharged for missing
“several scheduled deliveries.” 302 N.L.R.B. 608, 610
(1991). The Board explained that he did not engage in
conduct “involving moral turpitude and his conduct was
not otherwise so outrageous as to suggest deliberate
No. 10-3300 15
courting of discharge.” Id. The Board has “repeatedly held
that a discharge based on poor work performance does not
constitute a willful loss of earnings.” Ernst & Young, 304
N.L.R.B. 178, 180 (1991).
The ALJ found that Wiedeman’s employment at Troyk
Printing was terminated for “misconduct.” Wiedeman
explained that he did not get along with a colleague. Even
though the ALJ deemed the explanation vague, he re-
minded the parties that it was KSM’s burden to show that
his conduct amounted to “deliberate and gross miscon-
duct.” The ALJ concluded that KSM had not met its
burden. The Board also found that Wiedeman’s employ-
ment as a security guard was terminated for attendance
problems. It credited Wiedeman’s explanation that his
truck repeatedly broke down. In the end, the ALJ found
that KSM did not produce any additional evidence to
establish that his conduct was bad enough to justify a
finding of “deliberate and gross misconduct.”
E
KSM finally offers a third argument for setting aside
Wiedeman’s backpay order; that it did not unlawfully
replace Wiedeman with non-unit employees. (KSM’s
persistence in this respect may have something to do
with the fact that Wiedeman was granted one of the
highest awards by the Board; see the Appendix to this
opinion.)
The Board deems it “settled” that an employer violates
the Act when it fails immediately to reinstate strikers
16 No. 10-3300
following their unconditional offer to return to work,
“unless the employer establishes a legitimate and sub-
stantial business justification for failing to do so.” In
Zimmerman Plumbing & Heating Co., 334 N.L.R.B. 586, 588
(2001). A legitimate and substantial business justifica-
tion is a “bona fide absence of available work” for a striker
for his pre-strike position or a “substantially equivalent”
job. Id. The employer bears the burden of establishing
this affirmative defense. Radio Elec. Serv. Co., 278
N.L.R.B. 531, 532 (1986). The employer cannot make work
unavailable by transferring it to non-unit workers. Super
Glass Corp., 314 N.L.R.B. 596, 596 n.1 (1994). An employer
may, however, transfer the work to previously reinstated
strikers without triggering a vacancy. Randall, Burkett/
Randall, Div. of Textron, Inc., 257 N.L.R.B. 1, 4 (1981).
The ALJ found that Wiedeman’s stockroom duties
were performed by two supervisors and a recalled
striker. Because the majority of Wiedeman’s job was
performed by the two non-unit workers, however, this
arrangement did not undermine Wiedeman’s rights.
With respect to the recalled striker, the ALJ found that
KSM “was not privileged to recall a general factory em-
ployee after the strike was over and have him and two
supervisors perform the job that was the prestrike job
of an unrecalled and unreplaced stock and receiving
employee.” KSM argues that its stockroom work was
legitimately unavailable for Wiedeman, but once again
it has not presented enough to overcome the Board’s
findings. When all is said and done, therefore, we
enforce the Board’s order granting backpay to Wiedeman.
No. 10-3300 17
IV
The final issue before us is whether the Board properly
found that KSM should have recalled its workers using
a seniority-based system, rather than the merit-based
system that KSM preferred. The Board’s primary
objective when choosing a reinstatement system is “to
restore, to the extent feasible, the status quo ante by
restructuring the circumstances that would have
existed had there been no unfair labor practices.” Parts
Depot, 348 N.L.R.B. at 153. Given that there may be a
variety of ways to restore the status quo, the Board
grants the General Counsel “wide discretion” in choosing
a methodology. Id. That said, if the company proposes
a different approach, the Board will choose the “most
accurate method” between the two alternatives. The
Painting Co., 351 N.L.R.B. 42, 49 (2007). The Board
will look to the company’s past practices and the
relative accuracy of each approach to assess the alterna-
tives. Alaska Pulp, 326 N.L.R.B. at 523. If the Board is not
certain which approach is more accurate, the Board will
resolve the uncertainty against the company. The Painting
Company, 351 N.L.R.B. at 49.
The Board determined that the use of seniority was
the most accurate way to restore the status quo because
KSM admitted that a seniority system was appropriate
for recalling workers immediately at the conclusion of
the strike. The Board noted, “[KSM] offers no explana-
tion as to why seniority by job classification is the ap-
propriate method of recall to vacancies at the end of
the strike, but not for vacancies that develop subse-
18 No. 10-3300
quently.” In addition, the Board found that KSM’s
method of recall was too subjective and informal in light
of its unlawful conduct during the relevant time. Even
though KSM’s witnesses asserted that the merit system
had been used in the past, KSM did not produce any
documentary evidence to corroborate that contention.
We uphold the Board’s choice of the seniority recall
system for the reasons it gave.
V
For the foregoing reasons, we E NFORCE the Board’s
order. In the interest of clarity, we have appended to this
opinion a list of the affected workers and the amounts
of backpay to which each one is entitled.
No. 10-3300 19
20 No. 10-3300
5-22-12
|
01-03-2023
|
05-22-2012
|
https://www.courtlistener.com/api/rest/v3/opinions/410524/
|
692 F.2d 748
Diggs, Appeal of
82-5026
United States Court of Appeals,Third Circuit.
9/1/82
1
D.N.J.
AFFIRMED
|
01-03-2023
|
08-23-2011
|
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