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https://www.courtlistener.com/api/rest/v3/opinions/2897665/ | NO. 07-07-0184-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2008
______________________________
TAI THANH HO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 403rd DISTRICT COURT OF TRAVIS COUNTY;
NO. 07-904001; HON. BRENDA KENNEDY, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
After a jury trial, appellant Tai Thanh Ho (appellant) was convicted of the offense
of murder. Punishment was assessed by the jury at seventy-five years in the Texas
Department of Criminal Justice Institutional Division. Appellant timely filed his notice of
appeal.
Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders1 brief, wherein he certifies that, after diligently searching the record, he has
concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy
of a letter sent to appellant informing him of counsel’s belief that there was no reversible
error and of appellant’s right to appeal pro se. By letter dated October 5, 2007, this court
notified appellant of his right to file his own brief or response by November 5, 2007, if he
wished to do so. Appellant filed a response wherein he contends that 1) the trial court
erred by failing to, sua sponte, give a reasonable doubt instruction to the jury on
extraneous offenses or bad acts, and in allowing witnesses to testify about bad acts
concerning his statement in needing a gun, 2) the State failed to give notice of use of
extraneous offenses, 3) the State failed to comply with Rules 404(b) and 609(f) of the
Texas Rules of Evidence and “Art. 37.07 §3 and Art. 38.37 of T.C.C.P.” and 4) the trial
court erred by allowing testimony regarding his cell phone account.
In compliance with the principles enunciated in Anders, appellate counsel discussed
each phase of the trial including 1) voir dire, 2) admission of crime scene and autopsy
photos at trial, 3) testimony at trial by several witnesses, 4) business records introduced
at trial, 5) legal and factual sufficiency of the evidence at trial, 6) the jury charge for both
guilt/innocence and punishment phases of the trial and 7) jury argument. At each phase,
counsel discussed the applicable law and analyzed the evidence according to that law.
1
See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
Upon his final analysis, counsel determined no reversible error existed. Thereafter, we
conducted our own review of the record to assess the accuracy of appellate counsel’s
conclusions and to uncover any error, reversible or otherwise, pursuant to Stafford v. State,
813 S.W.2d 503 ( Tex. Crim. App. 1991), along with appellant’s response, and concluded
the same.
Accordingly, the motion to withdraw is granted and the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
3 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2290719/ | 99 F. Supp. 2d 235 (2000)
Victoria MALDONADO and Julio Maldonado, Plaintiffs,
v.
Marten M. ROGERS and Carol Rogers, Defendants.
No. 99-CV-1599.
United States District Court, N.D. New York.
June 7, 2000.
The Law Offices of Daniel J. Persing, Albany, NY, for plaintiffs, Daniel J. Persing, of counsel.
Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., Albany, NY, for defendants, Blair W. Todt, of counsel.
MEMORANDUM DECISION & ORDER
McAVOY, District Judge.
The present action arises out of a Complaint filed on October 1, 1999 by Victoria and Julio Maldonado ("Plaintiffs") against Marten and Carol Rogers ("Defendants") *236 for injuries sustained in connection with an automobile accident on I-84 near West Hartford, Connecticut. Plaintiff Victoria Maldonado, a passenger at the time of the accident, brings a negligence claim against Defendants and seeks compensatory damages of $750,000.00 for physical injuries resulting from the accident. Plaintiff Julio Maldonado asserts a loss of consortium claim and seeks compensatory damages of $250,000.00. Presently before the Court is Defendants' motion to dismiss the Complaint for lack of personal jurisdiction pursuant to FED.R.CIV.P. 12(b)(2).[1] This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
I. Background
Certain preliminary facts are not disputed by the parties. Plaintiffs reside in New York and Defendants reside in Massachusetts. The automobile accident that is the subject of the instant litigation occurred in Connecticut. See Compl. at §§ 2-3, 7; Pls.Mem. of Law at 1; Defs.Mem. of Law at 2. With these basic facts in mind, the Court will turn to the Plaintiffs' allegations surrounding the accident.
On October 4, 1996, Plaintiff Julio Maldonado was driving westbound in the left lane on I-84 in the area of West Hartford, Connecticut. Plaintiff Victoria Maldonado was sitting in the passenger's side of the automobile. While stopped for traffic, Defendant Marten Rogers allegedly failed to stop, thereby striking the rear of Plaintiffs' automobile and pushing it into the rear of another automobile.
The parties commenced discovery through service of interrogatories, discovery demands and a notice to take deposition. See Affidavit of Daniel J. Persing, Esq. ("Persing Aff.") at §§ 9-10. Presently, Plaintiffs answered Defendants' demand for collateral sources and expert information and served a response to Defendants' omnibus discovery demand and interrogatories. See id. at Ex. B. Defendants, however, apparently filed the instant motion in lieu of responding to Plaintiffs' discovery demands. See id. at § 11; Pls.Mem. of Law at 1-2.
II. Discussion
Because Defendants move pursuant to Rule 12(b)(2) to dismiss the present action for lack of jurisdiction, the Complaint and materials submitted outside the pleadings "are to be construed, and any doubts are to be resolved, in the light most favorable to the [P]laintiff[s]." Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 178 (S.D.N.Y.1995); see also CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986); Rothstein v. Carriere, 41 F. Supp. 2d 381, 384 (E.D.N.Y.1999); American Property Consultants, Ltd. v. Walden Lisle Assocs., L.P., 1997 WL 394617, at *4 (S.D.N.Y. July 14, 1997) ("[I]t is well-settled that in considering jurisdictional motions, the [c]ourt may consider evidence outside of the pleadings in reaching its decision without necessitating the use of Rule 56.") (quotation omitted).
Where subject matter jurisdiction is predicated upon diversity of the parties, the law of the forum state applies in determining whether a plaintiff has personal jurisdiction over a defendant. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997); Agency Rent-A-Car Sys., Inc. v. Grand Rent-A-Car Corp., 98 *237 F.3d 25, 29 (2d Cir.1996); CutCo Indus. Inc., 806 F.2d at 365. Thus, the Court will look to New York's long-arm statute to determine whether personal jurisdiction over Defendants exists. "If the exercise of jurisdiction is appropriate under that statute, the court then must decide whether such exercise comports with the requisites of due process." Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997); see also Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999). The Court is mindful, however, that the existence of personal jurisdiction is, in the end, an individualized inquiry that is "necessarily fact sensitive because each case is dependent upon its own particular circumstances." PDK Labs, Inc., 103 F.3d at 1108 (quotation omitted).
The plaintiff bears the ultimate burden of establishing jurisdiction over a defendant. See Bank Brussels Lambert, 171 F.3d at 784; Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). Plaintiff's burden, however, differs based on the procedural posture of the case. As the Second Circuit recently stated in Bank Brussels Lambert:
Where a court [has chosen] not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Where ... the parties have conducted extensive discovery regarding the defendant's contacts with the forum state, but no evidentiary hearing has been held the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant.
171 F.3d at 784 (brackets in original) (internal quotations omitted).
Thus, "[i]f the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); see also Metropolitan Life Ins. Co., 84 F.3d at 566-67; PDK Labs, Inc., 103 F.3d at 1108; CutCo Indus., Inc., 806 F.2d at 365 ("Although ... the plaintiff has the ultimate burden of establishing jurisdiction over defendant by a preponderance of the evidence, ... until an evidentiary hearing is held, it need make only a prima facie showing by its pleadings and affidavits that jurisdiction exists.") (citations omitted). Accordingly, because discovery is not complete and the court has not held an evidentiary hearing, Plaintiffs "need offer only prima facie evidence of personal jurisdiction." Rothstein, 41 F.Supp.2d at 385.
In the present case, Plaintiffs contend that jurisdiction over Defendants exists under New York's long-arm statute, N.Y.C.P.L.R. § 302(a)(3), see Pls.Mem. of Law at 3, which provides, in pertinent part:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
...
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue *238 from interstate or international commerce....
N.Y.C.P.L.R. § 302(a)(3) (McKinney 1990). Thus, section 302(a)(3) permits New York courts to "exercise jurisdiction over a nondomiciliary who commits a tortious act without the state, causing injury to person or property within the state." Bensusan Restaurant Corp., 126 F.3d at 29. Significantly, section 302(a)(3) provides certain limitations; the exercise of jurisdiction under subparagraph (a)(3) is restricted to "persons who expect or should reasonably expect the tortious act to have consequences in the state and in addition derive substantial revenue from interstate commerce." Id.
Defendants argue that this Court lacks personal jurisdiction over them where the sole basis of jurisdiction is that Plaintiffs were injured in an automobile accident outside New York by a nondomiciliary but reside and suffer resultant pain and suffering in New York. See Defs.Mem. of Law at 4-5. In response, Plaintiffs argue, in conclusory fashion, that: (1) there was injury to Plaintiffs in New York; (2) Defendants should have reasonably foreseen that their actions would have consequences in New York; and (3) they are entitled to conduct discovery to establish that Defendants derive substantial revenue from interstate or international commerce. See Pls.Mem. of Law at 4-5. The Court will address each of these points to determine whether Plaintiffs sufficiently allege a prima facie showing that personal jurisdiction exists.
Plaintiffs' reliance on the fact that they reside in New York and suffer resultant damages, e.g., medical expenses and pain and suffering, in New York is insufficient to satisfy the "`direct injury within the State'" requirement under section 302(a)(3) in an instance where the accident at issue occurred outside of New York. Napora v. Longnecker, 1998 WL 89355, at *4 (W.D.N.Y. Feb.20, 1998) (quoting Fantis Foods, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 402 N.E.2d 122 (1980) ("It has ... long been held that the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there.")). This point is specifically addressed in the Practice Commentaries following CPLR § 302:
An injury does not occur in New York simply because the plaintiff is domiciled there. For example, ... an injury received in Massachusetts does not become a New York injury simply because the plaintiff is a New York resident who comes back to this state with permanent scars and who suffers a permanent loss of income in New York. This is an eminently sound holding for to have concluded otherwise would, in effect, subject all the world to jurisdiction in New York anytime a New York domiciliary was injured.
N.Y.C.P.L.R. § 302 Practice Commentaries C302:20 (1990) (internal citations omitted).
Courts interpreting the scope of section 302(a)(3) have reached a similar conclusion. See Rothstein, 41 F.Supp.2d at 385; Schechter v. Tauck Tours, Inc., 17 F. Supp. 2d 255, 262-63 n. 33 (S.D.N.Y. 1998); Morales v. Schofield, 174 F.R.D. 253, 257 (E.D.N.Y.1997) (automobile accident in Massachusetts between New York resident and Rhode Island resident); Avato v. Walker Mfg. Co., 706 F. Supp. 300, 303 (S.D.N.Y.1989); Crimi v. Elliot Bros. Trucking Co., 279 F. Supp. 555, 556 (S.D.N.Y.1968) (holding that section 302(a)(3) did not confer personal jurisdiction in New York courts over Delaware domiciliary, an interstate truck driver, in diversity action against truck driver for death of plaintiff's intestate, a New York resident, who was killed when struck by a tractor-trailer in Connecticut since actual injury caused by alleged tort was death of *239 intestate in Connecticut); Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 581 N.Y.S.2d 283, 287 (1st Dep't 1992) (automobile accident in South Carolina); Bramwell v. Tucker, 107 A.D.2d 731, 484 N.Y.S.2d 92, 93 (2d Dep't 1985) (automobile accident in New Jersey between New York resident and New Jersey resident); Black v. Oberle Rentals, Inc., 55 Misc. 2d 398, 285 N.Y.S.2d 226, 229 (Sup. Ct.1967) ("Section 302(a)(3) ... looks to the imparting of the original injury within the State of New York and not resultant damage, in order that jurisdiction might be effectuated.").
In holding that the out-of-state tortious act did not cause injury in New York within the meaning of section 302(a)(3), the First Department in Lancaster stated:
Here the injury actually occurred in South Carolina notwithstanding that plaintiff's pain and suffering largely took place in New York, her place of domicile. The thrust of the statute is directed to the imparting of the original injury within the State of New York and not resultant damage, in order that jurisdiction might be effectuated.
581 N.Y.S.2d at 287 (quotations and citations omitted). As the Second Department recognized in Bramwell, "[to] hold otherwise would open a veritable Pandora's box of litigation subjecting every conceivable prospective defendant involved in an accident with a New York domiciliary to defend actions brought against them in the State of New York." 484 N.Y.S.2d at 93 (internal quotations and citations omitted).
As previously noted, the parties do not dispute that Plaintiffs are New York residents and Defendants are Massachusetts residents and that the accident at issue occurred in Connecticut. In addressing this point in their Memorandum of Law, Plaintiffs argue that "the injury inflicted upon Ms. Maldonado is of a direct nature to come under the purview of [section 302(a)(3)]...." Pls.Mem. of Law at 5. This argument is at best conclusory and is inconsistent with well-settled precedent finding no injury within the state under similar circumstances for the purposes of section 302(a)(3). Accordingly, because Plaintiffs are unable to satisfy the "causing injury to person ... within the state" requirement in section 302(a)(3), personal jurisdiction over Defendants on that basis does not exist.
An examination of Plaintiffs' allegations with respect to the requirements of subparagraph (a)(3)(ii) are equally insufficient to confer personal jurisdiction over Defendants.
With respect to the first prong of subparagraph (a)(3)(ii), Plaintiffs argue that "[i]t is difficult to believe in this instance that the defendants in this action, nondomiciliaries, after colliding with Maldonado's vehicle, should not have reasonably foreseen consequences in New York." Id. This element is not alleged in the Complaint.
Like Plaintiffs' other arguments, this argument is a broad conclusory allegation lacking any facts to support that conclusion. See Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184-85 (2d Cir.1998) ("This conclusory statement is but a restatement, with slight changes, of the legal standard for determining agency.... It states no facts supporting that conclusion and does not constitute a prima facie showing of agency."); Morales, 174 F.R.D. at 258; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) ("[W]e are not bound to accept as true a legal conclusion couched as a factual allegation."). The flaw in Plaintiffs' argument is that it would render a defendant amenable to jurisdiction in any state depending on the residency of the Plaintiffs without having prior contact with the Plaintiffs' state of residency. Such an approach is inconsistent with cases interpreting section 302(a)(3).
With respect to the second prong of subparagraph (a)(3)(ii), Plaintiffs acknowledge that this requirement is "lacking" *240 thus far and request further discovery to establish that requirement. See Pls.Mem. of Law at 5. Like the first prong of subparagraph (a)(3)(ii), this element is not alleged in the Complaint. Even under the more lenient standard where Plaintiffs must present prima facie evidence of personal jurisdiction prior to an evidentiary hearing being held, Plaintiffs must, at the very least, assert factual allegations to support personal jurisdiction through the pleadings and affidavits submitted by the parties. Here, however, no such factual allegation is even asserted in the Complaint, much less supported by Plaintiffs in their submissions before the Court in connection with the instant motion. Rather, Plaintiffs make a generalized request to conduct discovery that is more akin to a "fishing expedition." See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 715, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982) (Powell, J.) (concurring opinion) ("A plaintiff is not entitled to discovery to establish essentially speculative allegations necessary to personal jurisdiction."); Gear, Inc. v. L.A. Gear California, Inc., 637 F. Supp. 1323, 1328 (S.D.N.Y.1986) ("Discovery need not be granted to allow plaintiff to engage in an unfounded fishing expedition for jurisdictional facts....") (citation omitted). In the present case, Plaintiffs failed to provide affidavits or any other documentary evidence tending to show that Defendants derive substantial revenue from interstate or international commerce. Because Plaintiffs have failed to make even a "sufficient start" to show jurisdiction over Defendants is proper under subparagraph (a)(3)(ii), Manhattan Life Ins. Co. v. A.J. Stratton Syndicate (No. 782), 731 F. Supp. 587, 593 (S.D.N.Y.1990), they are not entitled to discovery on this issue. See Jazini, 148 F.3d at 186; Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 94 (2d Cir.1975) (holding that district court did not abuse its discretion in denying discovery where "[t]here [were] no allegations of specific facts which would connect [defendant] with any New York activity."). Thus, Plaintiffs fail to make a prima facie showing that personal jurisdiction over Defendants is proper under N.Y.C.P.L.R. § 302(a)(3).
Because the Court finds that personal jurisdiction over Defendants cannot be exercised under section 302(a)(3) of New York's long-arm statute, the Court need not address the issue of whether the exercise of jurisdiction in the instant case comports with the requirements of due process. See Bensusan, 126 F.3d at 27. Accordingly, Defendants' motion to dismiss the Complaint for lack of personal jurisdiction pursuant to FED.R.CIV.P. 12(b)(2) is granted.
In the event the Court determines that personal jurisdiction over Defendants does not exist, Plaintiffs request a transfer of venue "in the interest of judicial economy". See Pls.Mem. of Law at 8. Defendants do not address this point in the Reply Affidavit filed by Defendants' counsel. See generally Reply Aff. of Blair Todt, Esq. at §§ 1-8.
A district court has the discretion to transfer a case in the interests of justice where personal jurisdiction is lacking, whether or not venue is proper. See SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 n. 9 (2d Cir.2000); Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir.1978); Unlimited Care, Inc. v. Visiting Nurse Ass'n of E. Massachusetts, Inc., 42 F. Supp. 2d 327, 333 (S.D.N.Y.1999); Morales, 174 F.R.D. at 258-59. The district court's authority to make such a transfer is derived from either 28 U.S.C. § 1404(a) or § 1406(a).[2]See SongByrd, *241 206 F.3d at 179 n. 9; Unlimited Care, Inc., 42 F.Supp.2d at 333. In deciding whether to exercise its discretion to transfer a case, the district court must determine whether such a transfer is "in the interest of justice." Corke, 572 F.2d at 80; see also Morales, 174 F.R.D. at 258 ("The `interests of justice' include transferring the case to a venue where personal jurisdiction is proper so that the merits of the plaintiff's claims may be reached."). Plaintiffs' request to transfer the present action first requires an examination of Connecticut's long-arm statute, which provides, in relevant part:
(a) As to any cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual ... who in person or through an agent:
...
(2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act....
CONN.GEN.STAT. § 52-59b(a)(2) (West 2000) ("section 52-59b(a)(2)").
Because the automobile accident at issue occurred in Connecticut, personal jurisdiction could apparently be exercised over Defendants in Connecticut based on section 52-59b(a)(2). Moreover, witnesses to that accident are likely to be found in Connecticut, see Morales, 174 F.R.D. at 259; see also Zafonte v. Mattel, Inc., 2000 WL 516406, at *2 (E.D.N.Y. Mar.20, 2000), and a transfer to Connecticut will pose "no greater inconvenience" to Defendants in terms of travel distance. Morales, 174 F.R.D. at 259. Accordingly, based on the language contained in section 52-59b(a)(2), the events giving rise to Plaintiffs' claim, and the fact that Defendants did not oppose Plaintiffs' request to transfer venue in their papers filed in connection with the instant motion, the Court grants Plaintiffs' request and transfers the present action to the United States District Court for the District of Connecticut, where both venue and personal jurisdiction are proper. See 28 U.S.C. § 1391(a)(2); CONN.GEN.STAT. § 52-59b(a)(2).
III. Conclusion:
For all of the foregoing reasons, it is hereby
ORDERED, that Defendants' motion to dismiss the Complaint for lack of personal jurisdiction pursuant to FED.R.CIV.P. 12(b)(2) is GRANTED, and it is further
ORDERED, that Plaintiffs' request to transfer this case is GRANTED, and this case shall be transferred to the United States District Court for the District of Connecticut. The Clerk of the Court is directed to transfer the case to that district.
IT IS SO ORDERED.
NOTES
[1] In his reply affidavit, Defendants' counsel contends that Defendants' motion "should prevail on its face" because Plaintiffs failed to file a response to Defendants' Statement of Material Facts. See Reply Affidavit of Blair W. Todt, Esq. at § 3. This argument misreads this District's Local Rules. Because Defendants move to dismiss the Complaint pursuant to Rule 12 rather than move for summary judgment, a Statement of Material Facts is not required. See N.D.N.Y.L.R. 7.1(a)(3). Moreover, failure to submit a responsive Statement of Material Facts does not mandate granting of the movant's motion. Rather, "facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Id. Accordingly, Defendants' motion to dismiss the Complaint on this ground is denied.
[2] In cases where the action is dismissed for lack of personal jurisdiction, courts have raised the issue of transferring the case to another district sua sponte, "in the interests of judicial economy and to achieve [a]n orderly adjudication on the merits." McCulley v. Anglers Cove Condominium Ass'n, Inc., 977 F. Supp. 177, 180 (E.D.N.Y.1997); see also Akhta v. Reno, 2000 WL 280027, at *1 (S.D.N.Y. Mar.15, 2000); Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F. Supp. 731, 736 (S.D.N.Y.1996) (citing Lead Indus. Ass'n, Inc. v. OSHA, 610 F.2d 70, 79-80 n. 17 (2d Cir.1979)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2986904/ | Order filed May 9, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-11-01081-CV
____________
VICTORIA V. OCHSNER, Appellant
V.
PRESTON A. OCHSNER, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2001-54131
ORDER
On March 5, 2013, this court ordered Phyllis Gonzales, the official court
reporter, to file the record of the October 26, 2011 hearing in this appeal by April
5, 2013. As of today, no record has been filed.
Therefore, we order Phyllis Gonzales, the official court reporter, to file the
record of the October 26, 2011 hearing in this appeal within 20 days of the date of
this order. The trial and appellate courts are jointly responsible for ensuring that
the appellate record is timely filed. See Tex. R. App. P. 35.3(c). If Phyllis
Gonzales does not timely file the record as ordered, we may issue an order
directing the trial court to conduct a hearing to determine the reason for the failure
to file the record.
If the omitted hearing was not recorded, or the appellant has not made
payment arrangements, the court reporter is directed to file written communication
with this court stating that the hearing was not recorded or payment arrangements
were not made.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045029/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2446
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
William Thomas Howell, *
*
Appellant. *
___________
Submitted: February 14, 2008
Filed: July 7, 2008
___________
Before BYE, RILEY, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
William Thomas Howell was indicted under 18 U.S.C. §§ 922(g)(9) and
924(a)(2) for possession of a firearm after having been convicted of a misdemeanor
crime of domestic violence. The predicate conviction was for misdemeanor assault
in the third degree under section 565.070 of the Missouri statutes. Howell moved to
dismiss the indictment, arguing the predicate conviction did not contain the necessary
elements of 18 U.S.C. § 921(a)(33)(A)(ii). The district court denied the motion, found
Howell guilty, and sentenced him to 21 months’ imprisonment and 3 years’ supervised
release. Howell appeals claiming the court erred in denying his motion to dismiss.
Having jurisdiction under 28 U.S.C. § 1291, this court reverses.
This court reviews de novo the denial of a motion to dismiss the indictment.
United States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999). Construing a statute, this
court looks first to the plain meaning of the words of the statute. Id. at 620.
18 U.S.C. § 922(g)(9) prohibits the possession of a firearm by any person who
has been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. §
921(a)(33)(A) says a “misdemeanor crime of domestic violence”
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabiting with or
has cohabited with the victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or guardian of the victim
This “requires the predicate misdemeanor to have only one element: the use or
attempted use of physical force (or its alternative, the threatened use of a deadly
weapon . . .).” Smith, 171 F.3d at 620.
Under the categorical approach, when a statute dictates that the predicate
offense have enumerated elements, this court must “look only to the predicate offense
rather than to the defendant’s underlying acts to determine whether the required
elements are present.” Id. If the predicate statute reaches a broad range of conduct,
this court may expand the inquiry to review the charging papers and jury instructions,
but only to determine which part of the statute the defendant violated. See id. at 620-
21, citing Taylor v. United States, 495 U.S. 575, 602 (1990). Where the defendant
pled guilty to a predicate offense, this inquiry may include the “written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16
(2005). See also James v. United States, 127 S. Ct. 1586, 1594 (2007) (“That is, we
consider whether the elements of the offense are of the type that would justify its
-2-
inclusion within the residual provision, without inquiring into the specific conduct of
this particular offender.”) (emphasis in original); Begay v. United States, 128 S. Ct.
1581, 1584 (2008) (“[W]e consider the offense generically, that is to say, we examine
it in terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.”).
Howell pled guilty to misdemeanor assault in the third degree under section
565.070, Missouri Revised Statutes (supp. 1997):
1. A person commits the crime of assault in the third degree if:
(1) He attempts to cause or recklessly causes physical injury to another
person; or
(2) With criminal negligence he causes physical injury to another person
by means of a deadly weapon; or
(3) He purposely places another person in apprehension of immediate
physical injury; or
(4) He recklessly engages in conduct which creates a grave risk of death
or serious physical injury to another person; or
(5) He knowingly causes physical contact with another person knowing
the other person will regard the contact as offensive or provocative.
2. Assault in the third degree is a class A misdemeanor unless committed
under subdivision (3) or (5) of subsection 1 in which case it is a class C
misdemeanor.
Because the statute covers a broad range of conduct, this court may look to the
charging document – the only permissible document in the record – to determine
which part of the statute Howell violated. See Smith, 171 F.3d at 620. The charging
document states:
-3-
in violation of Section 565.070, RSMo, committed the class A
misdemeanor of assault in the third degree, punishable upon conviction
under Sections 558.011 and 560.016, RSMo, in that on or about the 1st
day of September, 1997, in the County of Howell, State of Missouri, the
defendant created a grave risk of death to Sue Erdmann by waving a
loaded gun at her.
The district court, adopting the report and recommendations of the magistrate judge,
correctly concluded Howell was convicted of violating subsection (4) – “creates a
grave risk of death.” See Mo. Approved Charges-Crim. 19.06[4], note on use 2
(Mo. Bar Sept. 1, 2001) (promulgating form for a violation of § 565.070.1(4), by
authority of Mo. Sup. Ct. R. 23.01(b) (last sentence)).
The issue is whether subsection (4) requires as an element either “the use or
attempted use of physical force” or “the threatened use of a deadly weapon.” See 18
U.S.C. § 921(a)(33)(A)(ii). This is a question of law for the court, rather than one of
fact for the jury. United States v. Stanko, 491 F.3d 408, 412 (8th Cir. 2007), cert.
denied, 128 S. Ct. 1874 (2008).
Subsection (4) “requires that a person recklessly engage in conduct which
creates a grave risk of death or serious physical injury to another.” State v. Bowles,
754 S.W.2d 902, 909-10 (Mo. Ct. App. 1988). “This is a catch-all provision
applicable to innumerable factual situations.” Id. at 910. “In the offense of assault
in the third degree, the necessary element is knowledge of conduct which creates a
grave risk of death or serious bodily injury.” Id. (emphasis added).
The use or attempted use of physical force is thus not an element of a subsection
(4) offense. While a subsection (4) offense may include physical force, it is not the
ordinary case contemplated by subsection (4). See James, 127 S. Ct. at 1597
(“Rather, the proper inquiry is . . . the conduct encompassed by the elements of the
offense, in the ordinary case, . . . .”).
-4-
The district and magistrate judges reasoned that the subsection (4) conviction
qualified as a misdemeanor crime of domestic violence, concluding that subsection
(4) requires proof of “the threatened use of a deadly weapon.” To the contrary,
Missouri law is clear: “Generally, the use of a deadly weapon in the perpetration of
an assault (or attempt to assault) precludes the possibility of a conviction of assault
in the third degree.” State v. Zismer, 696 S.W.2d 349, 354 (Mo. Ct. App. 1985)
(denying a jury instruction for third-degree assault as a lesser included offense when
defendant used a rifle to commit assault); State v. Manning, 664 S.W.2d 605, 608
(Mo. Ct. App. 1984) (same).
Emphasizing the words of the charging document – “waving a loaded gun at
her” – the government contends that Howell’s conduct must have included the
threatened use of a deadly weapon. The Smith case refutes this contention. The
charging papers may be reviewed “only to determine under which portion of the
assault statute [Howell] was convicted.” See Smith, 171 F.3d at 621. True, a
subsection (4) offense may include waving a loaded gun at someone. See State v.
Brewer, 630 S.W.2d 591, 595 (Mo. Ct. App. 1982). This, however, by Missouri law,
is not the ordinary case encompassed by subsection (4). See James, 127 S. Ct. at
1597.
By the plain meaning of the words of the statute, subsection (4) does not require
as an element either the use or attempted use of physical force, or the threatened use
of a deadly weapon. Howell’s predicate conviction was not for a misdemeanor crime
of domestic violence; the motion to dismiss the indictment should have been granted.
The judgment of the district court is reversed.
______________________________
-5- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045030/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2920
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Tron Kent, *
*
Appellant. *
___________
Submitted: March 10, 2008
Filed: July 7, 2008
___________
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
Tron Kent was convicted of two counts of being a felon in possession of a
firearm, two counts of possessing a firearm in furtherance of a drug trafficking
offense, one count of possessing cocaine base with intent to distribute, one count of
possessing child pornography, and one count of producing child pornography. The
district court1 sentenced Kent to life in prison. Kent appeals arguing his motion to
suppress should have been granted, expert DNA testimony and his prior convictions
should have been excluded, his motion for acquittal should have been granted, the jury
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
instructions were erroneous, and life imprisonment for a drug crime violates the
Eighth Amendment. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742, this court affirms.
I.
On January 20, 2004, a Sikeston detective received a call from a new
confidential informant. The informant stated that a black man known as “TKO” just
left his house wearing a puffy blue coat, with a black .380 pistol he believed was
stolen, and was walking south on Westgate Street, an area known for “pretty
consistent” crack cocaine problems. The detective recognized the name TKO because
another informant had made a controlled buy from him eight months earlier. The
detective called the Sikeston dispatcher, requesting an officer check out the tip. An
officer was dispatched to Westgate Street, where he noticed a black man, later
identified as Tron Kent, walking south and wearing a blue puffy coat. The officer
asked him to step over to the car, and told him he fit the description of a person
reported to be carrying a gun. When the officer asked if he could pat Kent down, he
said ok, and put his hands on the car. As another officer moved toward Kent to pat
him down, he shoved his hands into his coat pockets and walked to the front of the
patrol car as if walking away. The first officer drew his gun, ordering Kent to put his
hands back on the car. The second officer patted him down, finding a gun. Kent was
arrested for carrying a concealed weapon. During the frisk, the officers found two
bags of crack cocaine.
When Kent arrived at the police station, the detective recognized him as TKO.
Kent asked to speak to the detective, and after receiving Miranda warnings, admitted
possessing the firearm and purchasing the crack to resell. Kent was charged with
being a felon in possession of a firearm (Count I), and possessing a firearm in
furtherance of a drug trafficking crime (Count II).
-2-
In a separate incident on May 8, 2006, Charleston police were looking for Kent
to serve a felony arrest warrant. An officer familiar with Kent’s appearance received
an anonymous tip that he was driving a black Dodge Intrepid near Marshall Street.
Proceeding there, the officer saw a black Dodge Intrepid being driven by a person he
believed was Kent. The officer could not see Kent’s face, but could see that the driver
was stocky and had braids like Kent. The officer pulled the car over, and found that
Kent was in fact the driver. Kent was arrested on the felony warrant. Officers seized
a cell phone from the car, which Kent acknowledged was his.
The license plate information indicated that the car was registered to Sally
Doyle. Officers went to her house to investigate why Kent was driving her car. She
told the officers that her 16-year-old daughter, Amy, was dating Kent, that Amy and
Kent lived with her, and that he had permission to drive the car. The officers asked
Sally and Amy Doyle for permission to search Amy’s room; both consented. The
officers seized a fully-loaded .22 caliber revolver from the night stand, $540 cash and
6.5 grams of crack cocaine from a box on a television stand, four bags with 65.9
grams of crack cocaine from a jewelry box in a closet, an ashtray with cigarette butts,
bed sheets, men’s clothes, a title application, and a set of time cards.
At the police station, Kent eventually admitted being in Doyle’s house, but
denied having been in Amy’s room. He allowed officers to take a swab for DNA
testing. Kent’s DNA was found on the cigarette butts and bed sheets from Amy’s
room. Pictures of Kent and Amy having sex were found on his cell phone.
Kent was charged (in the same indictment as the previous charges) with
possession with intent to distribute 50 grams or more of crack cocaine (Count III),
possession of a firearm in furtherance of a drug trafficking crime (Count IV), being
a felon in possession of a firearm (Count V), production of child pornography (Count
VI), and possession of child pornography (Count VII).
-3-
A jury found Kent guilty on all counts. The district court sentenced him to life
in prison, with 120 months on Counts I and VII, life on Counts III and V, 360 months
on Count VI, and life on Counts II and IV.
II.
Kent argues that the physical evidence and his statements should be suppressed
because the police lacked reasonable suspicion to stop him on both occasions. On the
denial of a motion to suppress, this court reviews the district court’s factual findings
for clear error and its legal conclusions de novo. United States v. Solomon, 432 F.3d
824, 827 (8th Cir. 2005).
“[T]he conduct involved in this case must be tested by the Fourth Amendment’s
general proscription against unreasonable searches and seizures.” Terry v. Ohio, 392
U.S. 1, 20 (1968). A police officer may briefly detain someone if there is a reasonable
suspicion that criminal activity is afoot. Id. at 30. This court examines the “totality
of the circumstances” to determine if the officer had a “‘particularized and objective
basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273
(2002), citing United States v. Cortez, 449 U.S. 411, 417-418 (1981). Observations
of the officers are considered “as a whole, rather than as discrete and disconnected
occurrences.” United States v. Poitier, 818 F.2d 679, 683 (8th Cir. 1987). This
allows officers to draw on their own experience and specialized training, and to make
inferences that “might well elude an untrained person.” Arvizu, 534 U.S. at 273,
quoting Cortez, 449 U.S. at 418.
A.
Kent argues that there was no reasonable suspicion to stop him. The district
court2 found that as the officers approached Kent, they “had the following collective
2
Adopting the report and recommendations of the Honorable Lewis M.
Blanton, United States Magistrate Judge.
-4-
knowledge of ‘specific and articulable facts along with rational inferences’ from those
facts:” (1) the information was recent, (2) the information was based on first-hand
personal observation, (3) TKO was wearing a blue puffy coat, (4) TKO was walking
south on Westgate Street, (5) TKO was reported to have a black .380 caliber pistol in
his pocket, (6) the pistol was reported to be stolen, (7) the detective knew that TKO
had previously sold crack cocaine, (8) Westgate Street “still had narcotics problems,”
(9) Kent fit TKO’s description, and (10) if Kent had a weapon, it was concealed.
Kent challenges findings (7) and (8). The detective testified that upon receiving
the tip about TKO, he remembered previously conducting a controlled buy from him,
though he did not remember that TKO was Kent’s nickname until Kent was brought
to the police station. The district court’s finding that the detective “knew TKO had
sold crack on another occasion in 2003" is not clearly erroneous. As the tip only
mentioned TKO, it is irrelevant that the detective did not associate the nickname TKO
with Kent until later.
The detective also testified that the Westgate Street area “had slowed down . .
. but we still had narcotics problems in that area . . . mainly crack cocaine . . . it was
pretty consistent.” The district court’s finding is thus not clearly erroneous.
Kent argues that the police did not have reasonable suspicion to stop him,
because the confidential informant did not have a proven track record of reliability,
and therefore, must be treated like an anonymous tipster. This court does not agree.
Though less reliable than informants with a proven record, unproven informants are
more reliable than anonymous tipsters because the police can hold them responsible
for false information. Cf. Florida v. J.L., 529 U.S. 266, 270 (2000) (a tip from known
informants is more reliable because their reputation can be assessed and they can be
held responsible for fabrications); United States v. Salazar, 945 F.2d 47, 50-51 (2nd
Cir. 1991) (face-to-face informants are generally more reliable than anonymous
tipsters because they can be held accountable for false information). Here, the
informant had been enlisted by the detective to be a confidential informant, and
therefore, could be held accountable by the detective for false information. The
-5-
informant here was also more reliable than an anonymous tipster because the police
were able to identify his basis of knowledge: that TKO had just left his house. See
Alabama v. White, 496 U.S. 325, 329 (1990) (anonymous tipsters are less reliable
because the tip usually gives no indication of the basis for the caller’s predictions),
citing Illinois v. Gates, 462 U.S. 213, 227 (1983).
The police verified some of the informant’s information before stopping Kent.
See United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995) (unproven informant
requires some independent verification to establish reliability). Kent was wearing the
clothing, walking the street, in the direction the informant reported. As the informant
here was not anonymous, less verification was required. Cf. J.L., 529 U.S. at 271
(“All the police had to go on in this case was the bare report of an unknown,
unaccountable informant who neither explained how he knew about the gun nor
supplied any basis for believing he had inside information about J.L.”) (emphasis
added).
The seizure in this case did not occur until the officer drew his gun. See
Brendlin v. California, 127 S. Ct. 2400, 2405 (2007) (a person is seized when the
police “‘by means of physical force or show of authority,” terminates or restrains his
freedom of movement”), quoting Florida v. Bostick, 501 U.S. 429, 434 (1991). Until
then, the encounter was consensual because Kent voluntarily engaged with the police.
Therefore, Kent’s reaction to the officer’s attempted pat down is also relevant to
reasonable suspicion. After first agreeing to the pat down, Kent “immediately took
his hands off of the hood of the car, shoved them in his coat pocket, and made a
gesture like he was going to leave.” While this conduct does not necessarily indicate
criminal behavior, when combined with the tip, it provides reasonable suspicion for
a Terry stop. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (series of innocent
actions can combine to form reasonable suspicion).
Kent also challenges the district court’s finding that “there was a danger and
immediacy involved in this factual situation” which warranted the officer drawing a
weapon. The tip indicated Kent had a gun in his pocket, and he placed his hands in
-6-
his pocket as he walked away. The district court’s finding that the officer was
justified in drawing a gun and frisking Kent is not clearly erroneous. See Terry, 392
U.S. at 24 (1968) (“When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous . . . [he may] take necessary measures to determine whether the person is
in fact carrying a weapon and to neutralize the threat of physical harm.”).
B.
Kent argues that the police lacked reasonable suspicion to stop his car on May
8, 2006. “When police have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter was involved in or is wanted in
connection with a completed felony, then a Terry stop may be made to investigate that
suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985). Due to the
outstanding felony arrest warrant, the police had probable cause to believe that Kent
had committed a felony, and to arrest him when found. See Steagald v. United States,
451 U.S. 204, 213 (1981) (“[T]he warrant embodied a judicial finding that there was
probable cause to believe the [defendant] had committed a felony.”). Therefore, the
only question is whether the officer had a reasonable suspicion that Kent was in the
car. See United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996) (officer needs
reasonable belief only that subject of arrest warrant is present in order to serve warrant
at third party’s residence).
The officer testified that he received an anonymous tip that Kent was driving
a black, Dodge Intrepid, near Marshall Street. When the officer went to the Marshall
street area, he saw a black Dodge Intrepid, being driven by a black male with his hair
in braids, like Kent, and who was stocky, like Kent. Although the tip was anonymous,
the officer’s sighting of the car in the same area, and the driver matching Kent’s
appearance, is reasonable suspicion to believe that Kent was driving the vehicle. The
officer did not violate Kent’s Fourth Amendment rights. See Adams v. Williams, 407
U.S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to determine
-7-
his identity . . . may be most reasonable in light of the facts known to the officer at the
time.”).
III.
Kent raises two evidentiary issues; his prior convictions should have been
excluded, and the expert DNA testimony was not relevant. Evidentiary rulings are
reviewed for an abuse of discretion. United States v. Jara, 474 F.3d 1018, 1022 (8th
Cir. 2007).
A.
Evidence of prior bad acts is “not admissible to prove the character of a person
in order to show action in conformity therewith,” but is admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b). Evidence of prior bad acts is admissible if it is (1)
relevant to a material issue, (2) similar in kind and reasonably close in time, (3)
sufficient to support a jury finding by a preponderance of the evidence, and (4) more
probative than prejudicial. See United States v. Dobynes, 905 F.2d 1192, 1194-95
(8th Cir. 1990). Evidence of two of Kent’s prior convictions for distribution of crack
cocaine were introduced at trial. For one conviction, an officer testified to the facts
of the offense, including Kent’s flight and apprehension while possessing crack
cocaine and a handgun. Before the evidence was introduced, a limiting instruction
was read to the jury.
Kent acknowledges that the first two requirements for admissibility are met.
See United States v. Brown, 923 F.2d 109, 111 (8th Cir. 1991) (evidence of other
instances of possession of crack cocaine relevant to prove intent where defendant
-8-
charged with possession with intent to distribute). He argues that the third
requirement, proof by a preponderance of the evidence, was not met with regard to the
testimony that he carried a handgun, because that part of the earlier charge was
dropped. The third requirement is met if “the jury could reasonably find by a
preponderance of the evidence that the act occurred and that the defendant was the
actor.” United States v. Williams, 895 F.2d 1202, 1205 (8th Cir. 1990). The officer’s
credibility was for the jury to evaluate. See United States v. Yerks, 918 F.2d 1371,
1373 (8th Cir. 1990). If found credible, the officer’s testimony is enough to find that
Kent possessed a gun. See id. (testimony of drug users that defendant previously sold
them crack cocaine, if believed, would permit finding that defendant engaged in prior
distribution).
Kent contends that the fourth requirement is not met because evidence of his
prior crimes is too prejudicial. “[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403.
Evidence of Kent’s prior convictions is not unfairly prejudicial. See United States v.
Loveless, 139 F.3d 587, 593 (8th Cir. 1998) (evidence of prior drug distribution not
unfairly prejudicial in drug prosecution); United States v. McCarthy, 97 F.3d 1562,
1573 (8th Cir. 1996) (evidence that defendant previously smuggled marijuana not
unfairly prejudicial in conspiracy to distribute marijuana prosecution); United States
v. Crump, 934 F.2d 947, 955 (8th Cir. 1991) (evidence that state representative gave
drugs in exchange for sex with much younger female not unfairly prejudicial in drug
prosecution). “Moreover, this Court has ‘been reluctant to find that the evidence was
unfairly prejudicial when the district court gave an appropriate limiting instruction,
instructing the jury not to use the evidence as proof of the acts charged in the
indictment.’” Loveless, 139 F.3d at 593, citing McCarthy, 97 F.3d at 1573. The
district court did not abuse its discretion in admitting evidence of Kent’s prior crimes.
-9-
B.
The DNA expert testified at trial that one of the crack cocaine bags found in
Amy Doyle’s room had a mixture of at least two people’s DNA on it, one male and
one female. The male DNA was consistent with Kent’s (all 12 of Kent’s Y
chromosome alleles from his swab were present on the Y chromosome alleles on the
crack bag). The expert could not testify that Kent was definitely the contributor of the
DNA, however, because all males in Kent’s family have the same marker on their Y
chromosomes. The expert’s opinion, therefore, was only that Kent could not be
excluded as a contributor of the DNA. Kent objects to this testimony as irrelevant.
Expert testimony is admissible if it will “assist the trier of fact.” Fed. R. Evid.
702. Evidence is relevant if it will have any tendency to make the existence of any
fact of consequence more or less probable than it would be without the evidence. Fed.
R. Evid. 401. “The district court enjoys broad discretion in its determination of
relevancy.” United States v. Robertson, 387 F.3d 702, 704 (8th Cir. 2004). “[A]
‘cannot exclude’ finding can tell a lot, and can increase the probability that the
person's DNA is present.” United States v. Mitchell, 502 F.3d 931, 970 (9th Cir.
2007), petition for cert. filed, No. 07-9351 (Feb. 11, 2008) . It was not an abuse of
discretion to admit the expert’s opinion that Kent could not be excluded as a DNA
contributor.
IV.
Kent asserts that his motion for judgment of acquittal on Counts II through VII
should have been granted. This court reviews the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the verdict. United States v.
Bower, 484 F.3d 1021, 1025 (8th Cir. 2007). Reversal of a conviction is proper only
-10-
if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id.
A.
Kent argues that the convictions for possession of more than 50 grams of crack
cocaine with intent to distribute (Count III) and felon in possession of a firearm
(Count V) should be reversed because the drugs and gun were found in Amy Doyle’s
bedroom. Kent’s only argument is that no reasonable jury could have found that he
possessed the contraband.
Possession, for both offenses, may be either actual or constructive. See United
States v. Claybourne, 415 F.3d 790, 795 (8th Cir. 2005) (possession of a firearm);
United States v. Robertson, 519 F.3d 452, 455 (8th Cir. 2008) (possession of drugs).
“To constructively possess contraband, the defendant must know of it and have the
intent and ability to exercise control over it or the place where it is kept.” Robertson,
519 F.3d at 455.
Amy Doyle testified that she and Kent had a relationship, and he started
sleeping in her bedroom every night in February 2006. She also stated that the gun
and drugs found in her room belonged to Kent, that she had seen him sell drugs many
times, and that he always wiped the gun down before putting it away. Kent challenges
Amy’s statements, emphasizing that she admitted initially lying to the police about her
knowledge of the drugs and gun. “[T]he jury has sole responsibility for resolving
conflicts or contradictions in testimony, and we must resolve credibility issues in
favor of the verdict.” United States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006).
-11-
In addition to Amy’s testimony, the government showed that Kent’s clothing,
DVD’s, and time slips were found in the room, and that Kent’s DNA was on cigarette
butts and bed sheets taken from the room. Amy’s testimony supports Kent’s
knowledge of the gun and drugs, and her testimony and the physical evidence support
Kent’s control over her room. The jury could have reasonably determined that Kent
constructively possessed the gun and drugs found in the room. See United States v.
Johnson, 474 F.3d 1044, 1049 (8th Cir. 2007) (defendant constructively possessed
guns and drugs found in a room with his state ID and cable bill, and there was
testimony that he stayed there one or two nights a week); United States v. Evans, 431
F.3d 342, 345 (8th Cir. 2005) (defendant constructively possessed gun found in his
girlfriend’s car, which she testified he drove often); United States v. Boyd, 180 F.3d
967, 978-79 (8th Cir. 1999) (defendant constructively possessed firearm found in a
room containing his clothing and ID, and his girlfriend testified that he stayed in the
room).
B.
In order to obtain a conviction for possession of a firearm in furtherance of a
drug trafficking crime (Counts II and IV), the government must prove a nexus
between the possession of the firearm and the underlying drug crime. United States
v. Close, 518 F.3d 617, 619 (8th Cir. 2008). “[T]he jury may infer that the firearm
was used in furtherance of a drug crime when it is kept in close proximity to the drugs,
it is quickly accessible, and there is expert testimony regarding the use of firearms in
connection with drug trafficking.” Id.
Kent argues that the government failed to prove that the gun he possessed was
in furtherance of a drug trafficking crime. The evidence supporting the conviction on
Count II included Kent’s possession of ten rocks of crack cocaine in one pocket, and
-12-
a loaded firearm in the other. The evidence supporting the conviction on Count IV
included crack cocaine, cash, and the loaded firearm — all found in the bedroom
where he was staying. The government also provided testimony from a DEA agent,
related to both counts, that drug dealers often carry weapons to protect their drugs,
their money, or themselves. Given the guns’ close proximity to the drugs and the
agent’s testimony, it was reasonable for the jury to infer that Kent possessed the guns
in furtherance of drug trafficking crimes. See Johnson, 474 F.3d at 1049-50
(evidence sufficient for conviction where defendant had drugs in pocket, and gun
found in defendant’s bedroom); Close, 518 F.3d at 619 (evidence sufficient for
conviction where guns found in bedroom with drugs, scales, and cash, and there was
testimony that drug dealers use guns to protect their money and drugs); United States
v. Sanchez-Garcia, 461 F.3d 939, 946-47 (8th Cir. 2006) (evidence sufficient for
conviction where gun found in bedroom adjacent to kitchen where drugs found and
expert testified to use of guns to protect drugs).
C.
In order to obtain a conviction for possession of child pornography, the
government must prove that the defendant knowingly possessed a visual depiction of
a minor engaging in sexual conduct, and the depiction was produced using materials
that had been transported in interstate commerce. 18 U.S.C. § 2252 (A)(a)(5)(B);
United States v. White, 506 F.3d 635, 641 (8th Cir. 2007). Production of child
pornography requires the government to show that the defendant knowingly used a
minor to engage in sexual conduct, for the purpose of producing a visual depiction,
and that the production materials had been transported in interstate commerce. 18
U.S.C. § 2251(a).
The government’s evidence for both child pornography charges included the
following: a photo of Kent and Amy having sex retrieved from Kent’s cell phone;
-13-
Amy’s testimony that Kent asked her to have sex with him in order to take the photo,
she told Kent that she was 16, and she was with Kent when he bought the phone; Kent
claimed the phone from the Mississippi County Jail; and the phone was produced in
Korea and moved in interstate commerce. Kent argues that Amy is not credible, and
therefore, no reasonable jury could have found guilt beyond a reasonable doubt. The
jury determines credibility, and that determination is “virtually unreviewable on
appeal.” United States v. Johnson, 519 F.3d 816, 822 (8th Cir. 2008). The jury
found Amy credible, and therefore could have reasonably found Kent guilty on both
child pornography charges. See United States v. Rayl, 270 F.3d 709, 713-15 (8th Cir.
2001) (sufficient evidence to convict defendant of production and possession of child
pornography based on the testimony of the minor that defendant forced her to undress
while he took nude pictures of her).
V.
Kent challenges the jury instructions on possessing a gun in furtherance of a
drug trafficking crime (Counts II and IV). Jury instructions are reviewed for an abuse
of discretion, and upheld if taken as a whole, they fairly and adequately instruct the
jurors on the applicable law. United States v. Jennings, 487 F.3d 564, 580 (8th Cir.
2007).
Under 18 U.S.C. § 924(c), “any person who, during and in relation to any crime
of violence or drug trafficking crime . . . uses or carries a firearm, or who in
furtherance of any such crime, possesses a firearm, shall” be sentenced to at least 5
years in addition to the punishment for the crime of violence or drug trafficking crime.
18 U.S.C. § 924(c)(1)(A). These are two separate crimes: (1) carrying or using a
firearm during and in relation to a crime of violence or drug trafficking crime; and (2)
possessing a firearm in furtherance of a crime of violence or drug trafficking crime.
United States v. Gill, 513 F.3d 836, 850 (8th Cir. 2008); United States v. Gamboa,
439 F.3d 796, 810 (8th Cir. 2006). Kent was charged with the second, possessing a
-14-
firearm in furtherance of a drug trafficking crime. “‘[I]n furtherance of’ requires a
slightly higher standard of participation than the language ‘during and in relation to,’
such that ‘during and [sic] relation to’ is encompassed by the broader language ‘in
furtherance of.’” Gamboa, 439 F.3d at 810.
The district court followed the Eight Circuit Model Jury Instruction on “possess
in furtherance of,” over Kent’s objection. The instruction as given to the jury read:
The phrase “possess in furtherance of” means the firearm must have
some purpose or effect with respect to possession with intent to
distribute crack cocaine; its presence or involvement cannot be the result
of accident or coincidence. The firearm must facilitate or have the
potential to facilitate the offense of possession with intent to distribute
crack cocaine.
Kent objects to the phrase “or have the potential to facilitate” because “it allows a jury
to convict a defendant under 924(c) even if the Government fails to provide evidence
that the weapon was actually used to facilitate a drug offense.”
“The term ‘furtherance’ as used in § 924(c) should be given its plain meaning,
‘the act of furthering, advancing, or helping forward.’” United States v. Hamilton,
332 F.3d 1144, 1149 (8th Cir. 2003), quoting United States v. Lomax, 293 F.3d 701,
705 (4th Cir. 2002). “In furtherance of” is not a factual requirement that the firearm
advance the crime, but rather a requirement that the person possess the gun with the
intent of advancing the crime. See Hamilton, 332 F.3d at 1149 (“The evidence tended
to show that Hamilton's shooting at his customers was intended to frighten them into
returning approximately four ounces of cocaine that he believed one of them had
stolen.”) (emphasis added). The statute authorizes conviction where the defendant
intended the firearm to advance or further the crime, but it did not actually do so.
-15-
Although the jury instruction is not erroneous for the reason asserted by Kent,
it misstates the law for another reason. In Smith v. United States, the Supreme Court
stated:
“in relation to” thus, at a minimum, clarifies that the firearm must have
some purpose or effect with respect to the drug trafficking crime; its
presence or involvement cannot be the result of accident of coincidence.
As one court has observed, the “in relation to” language “allay[s]
explicitly the concern that a person could be” punished under § 924(c)(1)
for committing a drug trafficking offense “while in possession of a
firearm” even though the firearm’s presence is coincidental or entirely
“unrelated” to the crime. Instead, the gun at least must “faciliat[e], or
hav[ve] the potential of facilitating,” the drug trafficking offense.
Smith, 508 U.S. 223, 238 (1993) (citations omitted).
This is almost the precise language used in the jury instruction defining “in
furtherance of.” In fact, the Note on Use following the Eighth Circuit Model Jury
Instruction states that the “Committee believes that the language ‘during and in
relation to’ . . . and the phrase ‘in furtherance of’ . . . were intended by Congress to be
co-extensive.” Model Crim. Jury Instr. 8th Cir. 6.18.924C, n. 9 (1998).
This circuit has since determined that “in furtherance of” is a slightly higher
level of participation than “during and in relation to.” See Gamboa, 439 F.3d at 810.
Because the instruction would allow the jury to convict on the lesser finding of “in
relation to”, this jury instruction is erroneous. Cf. United States v. Savoires, 430 F.3d
376, 380-81 (6th Cir. 2005) (jury instructions erroneous because they allowed jury to
convict for possession “during and in relation to,” rather than “in furtherance of,” a
drug trafficking offense). See also Pope v. Illinois, 481 U.S. 497, 500-01 (1987) (jury
instruction in obscenity trial unconstitutional because it allowed jury to convict on
finding of no literary, artistic, political, or scientific value under a lower “community
standard” rather than a “reasonable person” standard).
-16-
In response to Kent, the government argues that in United States v. Gill, 513
F.3d 836, this court approved the jury instruction at issue here. Gill was charged with
“carrying” a gun “during and in relation to” a drug trafficking offense. Gill, 513 F.3d
at 850. The jury instructions mistakenly listed the standard of participation as “in
furtherance of.” Id. at 851. The issue presented and decided was whether there was
a constructive amendment of the indictment. Id. This court found that the “in
furtherance of” instruction – rather than “during and in relation to” – did not affect
Gill’s substantial rights because “the instructions required the jury to find a higher
level of participation than the charged offense.” Id. at 852. The holding in Gill does
not control here where the instructions allow the jury to find a lower level of
participation than the charged offense. Further, although the particular instruction at
issue here was given in Gill, this court did not address the definition of “in furtherance
of.” See Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk
in the record, neither brought to the attention of the court nor ruled upon, are not to
be considered as having been so decided as to constitute precedents.”).
Kent did not object, either at the district court or on appeal, to the jury
instruction on this ground. Therefore, this court may reverse only if the error
constitutes plain error. See United States v. Young, 702 F.2d 133, 136 (8th Cir. 1983)
(“The failure to object to a jury charge in a timely and specific manner results in
waiver of objection on appeal.”) (emphasis added), citing Fed. R. Crim. P. 30(d)
(objections to jury instructions must be timely and specific, and failure to object in
this manner precludes appellate review except for plain error); United States v. Bruno
Makes Room For Them, 496 F.2d 507, 509 (8th Cir. 1974) (plain error review where
objection below failed to specify the grounds now claimed). Reversal under plain
error review requires the defendant to show (1) there was error, (2) that was plain, and
(3) affected substantial rights. United States v. Olano, 507 U.S. 725, 736 (1993);
United States v. Barth, 424 F.3d 752, 764 (8th Cir. 2005). Further, this court may
correct plain error only if (4) “the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at 736, quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936).
-17-
Due to Gamboa, the error here is plain. See Olano, 507 U.S. at 734 (plain
means clear under current law). In order to affect substantial rights, the error must
have been prejudicial.3 Id.; United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004). An error is prejudicial if the defendant shows “a reasonable probability that,
but for [the error claimed], the result of the proceeding would have been different.”
Dominguez Benitez, 542 U.S. at 82, quoting United States v. Bagley, 473 U.S. 667,
682 (1985). Reasonable probability is not the same as proof by a preponderance of
the evidence. Dominguez Benitez, 542 U.S. at 83 n. 9. The defendant’s burden is to
“satisfy the judgment of the reviewing court, informed by the entire record, that the
probability of a different result is ‘sufficient to undermine confidence in the outcome’
of the proceeding.” Id. at 83, quoting Strickland v. Washington, 466 U.S. 668, 694
(1984).
“In furtherance of” is only a slightly higher standard than “during and in
relation to.” See Gamboa, 439 F.3d at 810. Compare Hamilton, 332 F.3d at 1149
(defining “furtherance” as “the act of furthering, advancing, or helping forward”), with
United States v. Abuelhawa, 523 F.3d 415, 420 (4th Cir. 2008) (defining “facilitate”
as “to make easier”), citing United States v. Binkley, 903 F.2d 1130, 1135 (7th Cir.
1990). Given the evidence against Kent, it is a close question whether Kent has met
his burden. Compare United States v. DeRosier, 501 F.3d 888, 899 (8th Cir. 2007)
(no prejudice on jury instruction missing the phrase “affecting a financial institution”
where evidence showed financial institution affected by defendant’s fraud), and
United States v. Rice, 449 F.3d 887, 896 (8th Cir. 2006) (failure to define intent to
defraud not prejudicial where evidence of guilt overwhelming), with Savoires, 430
F.3d at 381 (jury instructions allowing jury to convict on possession “during and in
relation to” a drug trafficking offense constitutes plain error). This court need not
determine whether Kent was prejudiced, however, because he cannot meet the fourth
Olano requirement.
3
At least so long as the error is not structural. See Olano, 507 U.S. at 735
(“There may be a special category of forfeited errors that can be corrected regardless
of their effect on the outcome.”). The error here is not structural. See Neder v. United
States, 527 U.S. 1, 9 (1999) (“We have often applied harmless-error analysis to cases
involving improper instructions on a single element of the offense.”).
-18-
“Rule 52(b) is permissive, not mandatory. If the forfeited error is ‘plain’ and
‘affects substantial rights,’ the court of appeals has authority to order correction, but
is not required to do so.” Olano, 507 U.S. at 735. See also Yakus v. United States,
321 U.S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than
that a constitutional right may be forfeited in criminal as well as civil cases by the
failure to make a timely assertion of the right before a tribunal having jurisdiction to
determine it.”). Kent did not argue this specific error at the district court, nor on
appeal. “To correct the error, we would have to notice sua sponte that the district
court did not act sua sponte to provide a [reason for striking the] jury instruction that
the defendant should have provided.” Swipes v. Kofka, 419 F.3d 709, 717 (8th Cir.
2005) (declining to correct erroneous jury instruction because defendant did not raise
the correct theory below, on appeal, or adopt it at argument). This would “blur the
line” between an adversarial and inquisitorial system of justice. Id. Correction here
would adversely affect the integrity and public reputation of the proceedings. Kent’s
convictions on Counts II and IV are affirmed.
VI.
Finally, Kent challenges his mandatory life sentence under 21 U.S.C. § 841(b)
as violating the Eighth Amendment. Kent urges this court to “reconsider its prior
precedent and hold that a life sentence for drugs is indeed cruel and unusual
punishment.” In United States v. Jones, 965 F.2d 1507, 1517 (8th Cir. 1992) and
United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991), this court ruled that a
mandatory life sentence under 18 U.S.C. § 841(b)(1)(A) does not violate the Eighth
Amendment. “[A] panel of this Court is bound by a prior Eight Circuit decision
unless that case is overruled by the Court sitting en banc.” United States v. Wright,
22 F.3d 787, 788 (8th Cir. 1994). Additionally, the Supreme Court has ruled that a
mandatory life sentence under state law, for a first-time drug dealer convicted of
possessing over 650 grams of cocaine, does not violate the Eighth Amendment. See
Harmelin v. Michigan, 501 U.S. 957 (1991); Harvey, 946 F.2d at 1378 (recognizing
the Court did not agree on the degree of proportionality required under the Eight
-19-
Amendment, but that a majority agreed that the sentence was constitutional). Kent’s
mandatory life sentence is not cruel and unusual.
VII.
The judgment and sentence of the district court are affirmed.
______________________________
-20- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/708364/ | 70 F.3d 1258
Thomas F. Winstonv.Shirley S. Chater, Commissioner of Social Security Administration
NO. 95-3140
United States Court of Appeals,Third Circuit.
Oct 18, 1995
Appeal From: W.D.Pa., No. 94-cv-00136J,
Smith, J.
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3045028/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3096
___________
Yankton Sioux Tribe, a federally- *
recognized tribe of Indians, and its *
individual members; Glenn Drapeau, *
an individual member of the *
Yankton Sioux Tribe, *
*
Plaintiffs – Appellants, *
*
v. *
*
United States Department of Health * Appeal from the United States
and Human Services; United States * District Court for the
Indian Health Service; Michael * District of South Dakota.
Leavitt, in his capacity as the United *
States Secretary of Health and *
Human Services, or his successor in *
office; Charles Grim, in his capacity *
as the Director of the United States *
Indian Health Service, or his *
successor in office; Donald Lee, in *
his capacity as Aberdeen Area *
Director of the United States Indian *
Health Service, or his successor or *
predecessor in office; Earl Cournoyer, *
in his capacity as the Wagner Service *
Unit Director of the United States *
Indian Health Service; John Doe, *
whose true name is unknown, in his or *
her official capacity, or his successor in *
office; Jane Doe, whose true name is *
unknown, in his or her official *
capacity, or her successor in office, *
*
Defendants – Appellees. *
___________
Submitted: May 13, 2008
Filed: July 7, 2008
___________
Before WOLLMAN, MURPHY, and SMITH Circuit Judges.
___________
MURPHY, Circuit Judge.
The Yankton Sioux Tribe on behalf of its members and individual member
Glenn Drapeau (collectively "the Tribe") brought this action to challenge the decision
of the United States Indian Health Service (IHS) to close an emergency room at the
Wagner IHS Health Care Facility (Wagner emergency room) and to convert it to an
urgent care facility. IHS and the other defendants1 moved to dismiss the Tribe's
claims on the grounds of res judicata and for failure to state a claim. The district
court2 granted the motion, and the Tribe appeals. We affirm.
I.
In the early 1990s IHS made the decision to close the Wagner emergency room
in Wagner, South Dakota and to open an urgent care facility in its place as part of a
broader effort to provide more cost effective health care to the tribal community. One
significant effect of the plan was that while the Wagner emergency room was open 24
hours every day of the week, the urgent care facility would be open only from 7 a.m.
1
Defendants and now appellees are government agencies and officials
responsible for the decision to close the emergency room, including IHS and the
Department of Heath and Human Services (collectively referred to as "the
government").
2
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
-2-
to 11 p.m. and would be closed on Sundays and federal holidays. Ambulances and
patients requiring emergency services not available at the urgent care facility would
be referred directly to Wagner Community Memorial Hospital located a half mile
from the Wagner IHS facility or to Sacred Heart Hospital in Yankton which is fifty
six miles away.
In 1994 the Tribe and another individual member, Joyce Golus, sought judicial
review under the Administrative Procedure Act of the decision of the IHS to close the
Wagner emergency room, also raising Fifth Amendment due process and equal
protection claims. See Yankton Sioux Tribe v. United States Dep't of Health &
Human Servs., CIV 94-4073 (D.S.D.) (Yankton I). Following a bench trial the district
court granted the Tribe a declaratory judgment that the defendants had not satisfied
the requirements of 25 U.S.C. § 1631(b)(1) when making the decision to close the
Wagner emergency room.
Section 1631(b)(1) governs the process by which the government decides to
close IHS health care facilities. The government may not close an IHS facility until
it has submitted an impact report to Congress at least one year before the proposed
closure date. The report must examine various factors including accessibility and
quality of alternative health care after the closure, cost effectiveness of the proposed
closure, availability of funds to maintain existing levels of service, views of the tribes
served by the facility, degree of use by the Indian population of the existing facility,
and the distance between the facility proposed to be closed and the nearest alternative
facility. See § 1631(b)(1)(A)–(G).
The district court issued a writ of mandamus directing defendants to comply
with the statute's requirements and permanently enjoined IHS from closing the
Wagner emergency room until Congress either took final action on the impact report
or one year lapsed from the date of its submission. See Yankton Sioux Tribe v.
United States Dep't of Health and Human Servs., 869 F. Supp. 760, 767 (D.S.D.
1994). The Tribe and Golus agreed that the district court need not rule on their
-3-
constitutional claims because they had received all of their requested relief. An appeal
of the district court's decision was filed but was dismissed based on a stipulation of
the parties.
In August 2003 the defendants in Yankton I moved to dissolve the permanent
injunction. An impact report had been submitted to Congress in 1997 in accordance
with § 1631(b)(1), but one year had passed without Congress acting on it. The Tribe
opposed the motion, arguing that the defendants had not consulted with it regarding
the emergency room closure as required by § 1631(b)(1)(E). Section 1631(b)(1)(E)
requires an impact report to include "the views of the Indian tribes served by such
hospital or facility." The district court concluded that the statute does not require a
particular type of consultation with tribes, but only that the impact report include the
"views of the Indian tribes." The defendants had conducted meetings with the Tribe
to solicit its views and incorporated the minutes of those meetings into the impact
report.3 After determining that the impact report submitted to Congress satisfied §
1631(b)(1)(E) and that the defendants had complied with the mandates of the
permanent injunction, the district court dissolved the injunction. See Yankton I, CIV
94-4073 (Memorandum Opinion and Order, Doc. 92 (D.S.D. March 23, 2004)).
Neither the Tribe nor Golus appealed this order.
While the district court was considering the motion to dissolve the permanent
injunction, the Tribe asked the court to rule on the constitutional claims initially raised
by their suit but not resolved before the issuance of the permanent injunction. The
district court pointed out that the case was closed and that it did not have continuing
jurisdiction. See id. The Tribe did not attempt an appeal from this ruling.
3
The minutes of the meeting made it clear that the Tribe was concerned about
discrimination at Wagner Community Memorial Hospital, the closest alternative
facility with an emergency room, and that it disagreed with IHS's decision to close the
Wagner emergency room.
-4-
After the district court dissolved the permanent injunction, the Department of
Health and Human Services (HHS) issued a new tribal consultation policy in January
2005 to "ensur[e] that access to critical health and human services is maximized [by
federally recognized tribes and HHS engaging in] open, continuous, and meaningful
consultation." The policy expressly states that "[n]othing in the Policy creates a right
of action against the Department [HHS] for failure to comply with this policy."
In 2005 IHS commissioned a report by Sharpless Inc. Health Care Management
Consulting (Sharpless) to conduct a final evaluation of the Wagner facility. The
Sharpless report recognized there would be significant hardships to tribal members if
the emergency room were closed, but nevertheless recommended partial closure of the
Wagner emergency room by replacement with an urgent care facility. The report
noted that "it could be forecasted that lives would certainly be lost" if the Wagner
emergency room closed.
After the district court dissolved the permanent injunction in Yankton I, several
proposed deadlines for closure of the Wagner emergency room passed without the
facility being closed. On January 30, 2006 the Tribe and Drapeau filed an action
seeking a temporary restraining order and injunctive relief to prevent the closure. See
Yankton Sioux Tribe v. United States Dep't of Health and Human Servs., CIV 06-
4022 (D.S.D.). That action was dismissed without prejudice after HHS informed the
Tribe that the emergency room would remain open until the end of the fiscal year.
On September 28, 2006, two days before the Wagner emergency room was
scheduled to close, appellants filed this action seeking mandamus, injunctive, and
declaratory relief. They argued that the government failed to notify Congress of the
impact of the closure of the Wagner emergency room as required by 25 U.S.C. §
1631(b)(1); failed to consult meaningfully with the Tribe as required by statute and
the tribal consultation policy; violated the appellants' Fifth Amendment due process
rights by failing to notify them of the closure or to give them an opportunity to be
heard; improperly used the Tribe's IHS health care funds to pay for another tribe's
-5-
health care; and violated the trust responsibility of the federal government to tribal
members.
The district court dismissed with prejudice all of appellants' claims as either
barred by res judicata or for failure to state a claim. It held that res judicata barred the
due process and lack of consultation claims, as well as their claim that the government
failed to follow § 1631(b)(1) requirements, including the allegation that defendants
were required by the statute to submit a new report every budget cycle.4 The
remaining allegations were dismissed for failure to state a claim, including the
contention that defendants failed to consult as required by HHS's new tribal
consultation policy, that defendants improperly used funds dedicated to the Wagner
service unit for the benefit of another tribe, and that defendants violated their federal
trust responsibility. See Yankton Sioux Tribe v. United States Dep't of Health and
Human Servs., 496 F. Supp. 2d 1044 (D.S.D. 2007) (Yankton II). This appeal
followed.
On appeal the Tribe and Drapeau argue that the district court erred in
dismissing their claims. They contend that res judicata does not bar their claims
because the decision to close the Wagner emergency did not comply with federal law,
the continuing claims doctrine protects their claims from the effects of res judicata,
and their constitutional claims arise from new violations of their rights to due process.
As to the claims dismissed under Federal Rule of Civil Procedure 12(b)(6), appellants
argue that they have valid claims that the government violated the tribal consultation
policy, that IHS illegally shifted funds to another tribe which caused a budgetary crisis
that forced the closure of the Wagner emergency room, and that the government
violated the trust relationship between the federal government and the Tribe. The
government responds that the district court properly dismissed these claims.
4
Appellants' claim that defendants had not submitted the required reports for
every budget cycle was also dismissed on another ground – for failure to state a claim.
-6-
II.
We review de novo the dismissal of a claim on the grounds of res judicata,
Lundquist v. Rice Mem'l Hosp., 238 F.3d 975, 976 (8th Cir. 2001), or for failure to
state a claim. Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008).
A.
Under res judicata "a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in
that action." Allen v. McCurry, 449 U.S. 90, 94 (1980). To establish that a claim is
barred by res judicata a party must show: "(1) the first suit resulted in a final judgment
on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve
the same parties (or those in privity with them); and (4) both suits are based upon the
same claims or causes of action." Costner v. URS Consultants, Inc., 153 F.3d 667,
673 (8th Cir 1998).
The requirement that the first suit resulted in a final judgment on the merits is
met here. There were two judgments in Yankton I: the grant of the permanent
injunction and the dissolution of it. An appeal was taken from the grant of the
permanent injunction but was dismissed pursuant to the parties' stipulation, rendering
the injunction a final judgment on the merits. The later dissolution of the permanent
injunction became the final judgment when the Tribe opted not to appeal the district
court's decision to dissolve the injunction. There was thus a final judgment with
respect to all issues that were or could have been raised in that action. See Lundquist,
238 F.3d at 977.
Appellants argue that there was not a final judgment on the merits of their
constitutional claims because the district court never ruled on them. Parties are bound,
however, "not only as to every matter which was offered and received to sustain or
defeat the claim or demand, but as to any other admissible matter which might have
-7-
been offered for that purpose." Comm'r v. Sunnen, 333 U.S. 591, 597 (1948), quoting
Cromwell v. County of Sac, 94 U.S. 351, 352 (1876). Appellants asserted their
constitutional claims in Yankton I to support the relief they sought in that action. The
Yankton I court granted their requested relief on statutory grounds, finding it
unnecessary to reach the constitutional claims. Yankton I, 869 F. Supp. at 767. If
appellants were not satisfied with that disposition they should have pursued the matter
at that time. Although an appeal was filed, the parties stipulated to its dismissal prior
to this court ruling on the matter. The result was that the permanent injunction
became a final judgment on the merits of the issues between the parties, thus
satisfying the first requirement for res judicata. Since it is undisputed that the district
court had proper jurisdiction, the second requirement is not at issue.
The third res judicata requirement is that both suits involve the same parties or
those in privity with them. The Tribe was a party in Yankton I along with individual
tribal member Golus, but appellant Drapeau was not. When a person was not a party
to an earlier suit, that person generally "has not had a 'full and fair opportunity to
litigate' the claims and issues settled in that suit." Taylor v. Sturgell, 2008 WL
2368748, at *9 (U.S. June 12, 2008). There are several exceptions to this general rule,
one of which is when the nonparty was "adequately represented by someone with the
same interests who [wa]s a party" to the prior suit. Richards v. Jefferson County, Ala.,
517 U.S. 793, 798 (1996), quoted in Taylor, 2008 WL 2368748, at *10.
Appellants contend that the interests of Drapeau were not adequately
represented in Yankton I. The Supreme Court has established that a "party's
representation of a nonparty is 'adequate' for preclusion purposes only if, at a
minimum: (1) the interests of the nonparty and her representative are aligned and (2)
either the party understood [itself] to be acting in a representative capacity or the
original court took care to protect the interests of the nonparty." Taylor, 2008 WL
2368748, at *13 (internal citations omitted). Adequate representation may sometimes
require "notice of the original suit to the persons alleged to have been represented" but
the Court has assumed without deciding that lack of notice could be overcome in
certain situations. Id., citing Richards, 517 U.S. at 801.
-8-
In this case the interests asserted by the Yankton Sioux Tribe and its individual
members in Yankton I and those asserted by Drapeau here are identical. In Yankton
I the plaintiffs were described as "enrolled members of the Yankton Sioux Tribe who
receive, or have received, free health benefits, including . . . emergency room services
at the Wagner Service Unit." Yankton I, CIV 94-4073 (Amended Complaint, Doc.
17 ¶ V D.S.D. 1994). In this action, the complaint describes Drapeau as an enrolled
member who, along with his spouse and children, receives free health care services
from the Wagner service unit of the IHS including access to emergency room services.
His interests in this action derive solely from his status as an individual member of the
Yankton Sioux Tribe. Because the asserted interest in each action are completely
aligned we find this element of adequate representation satisfied.
It is also clear that the Tribe understood itself to be acting in a representative
capacity for the benefit of its individual members, including Drapeau, in Yankton I.
See South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 168 (1999). The
Yankton I complaint states that "[p]laintiff Yankton Sioux Tribe brings this complaint
on its own behalf and on behalf of its individual members" for whose "health, safety
and welfare" the Tribe is responsible. The Tribe clearly intended to represent its
individual members in Yankton I and prosecuted that case accordingly. The second
element of adequate representation is likewise met.
We find Drapeau, as an individual member of the Yankton Sioux Tribe, had at
least constructive notice of the earlier litigation. The Yankton I complaint names the
individual members of the Tribe as plaintiffs in that action, along with the Tribe itself
and Golus. As an individual tribal member Drapeau was included in that group. We
find his inclusion in the represented group sufficient to establish constructive notice
here. Because the elements of adequate representation are all satisfied in the special
circumstances of this case, we conclude that the third requirement of res judicata is
met.
The fourth requirement of res judicata is that "both suits are based upon the
same claims or causes of action." Costner, 153 F.3d at 673. We have determined that
-9-
"a claim is barred by res judicata if it arises out of the same nucleus of operative facts
as the prior claim." Lane v. Peterson, 899 F.2d 737, 742 (8th Cir.), cert. denied 498
U.S. 823 (1990). Appellants contend that the Yankton II claims involve "a unique
nucleus of new operative facts." Specifically, appellants point to the government's
failure to adhere to the new tribal consultation policy and general failure to consult,
the alleged misuse of funds intended for the Yankton Sioux Tribe's health care costs,
new alleged violations of 25 U.S.C. § 1631(b)(1), and recent deprivations of their due
process rights. The tribal consultation policy and misuse of funds arguments are
irrelevant for the purposes of our res judicata analysis because the district court
dismissed them for failure to state a claim, not as barred by res judicata; we examine
those claims in the next section.
Appellants allege that new violations of § 1631(b)(1) have occurred which were
not previously litigated. They first assert that each proposed closure date of the
Wagner emergency room after the dissolution of the permanent injunction in Yankton
I was a new closure decision requiring compliance with the mandates of § 1631(b)(1)
and that each failure to comply was a new violation. We reject this argument. The
record establishes that the decision to close the Wagner emergency room was made
only once, prior to filing of the Yankton I suit in 1994. Each proposed closure
deadline was part of the process intended to carry out the original decision, not a new
decision to close the Wagner emergency room giving rise to new claims. Although
IHS extensions and litigation have delayed the closure, the original closure decision
was never withdrawn. Because the order dissolving the permanent injunction in
Yankton I concluded that all § 1631(b)(1) requirements for closing an Indian health
care facility had been satisfied, we find this claim barred by res judicata.
Appellants also argue that§ 1631(b)(1) requires the submission of an impact
report in each two year budgetary cycle until the facility in question is closed and that
the government's failure to make those submissions was a new violation of that
provision. Section 1631(b)(1) states that the Secretary of Health and Human Services
shall submit to Congress "at least 1 year prior to the date such hospital or facility . .
. is proposed to be closed an evaluation of the impact of such proposed closure." The
-10-
government submitted an impact report to Congress in accordance with this provision
in 1997 and waited more than a year – until 2003 – before moving to dissolve the
permanent injunction and proceeding with closure plans. Under appellants' theory
several additional impact reports should have been submitted between the submission
of the 1997 impact report and the dissolution of the permanent injunction in 2004, but
appellants did not raise this issue when the government moved to dissolve the
permanent injunction. This claim arose out of the same nucleus of operative facts and
could have been raised in Yankton I but was not; it is therefore barred by res judicata.5
In their brief before this court appellants make a general allegation that the
government failed "to adhere to [its] own consultation policies," but we observe that
such an allegation was already brought forward in Yankton I. In response to that
allegation the district court concluded that the report required by § 1631(b)(1) only
had to include the "views of the Indian tribes served by" the health care facility
selected for closure and that the impact report submitted in 1997 satisfied this
requirement. Yankton I, CIV 94-4073 (Memorandum Opinion and Order, Doc. 92 at
4 (D.S.D. March 23, 2004)), quoting § 1631(b)(1)(E). Appellants now attempt to
argue again that the government did not consult before deciding to close the Wagner
emergency room, but the decision to close that facility was made prior to the Yankton
I litigation and the district court determined there that the mandates of § 1631(b)(1)
had been met. We conclude that this consultation claim arises out of the same nucleus
of operative facts presented in Yankton I and is thus barred by res judicata.
Appellants next claim that the government violated their Fifth Amendment right
to due process by not providing "notice and an opportunity to be heard prior to the
taking of a property interest" in the services of the Wagner emergency room.
Complaint ¶ 58(2)(a). In addition to arguing that the permanent injunction in Yankton
I was not a final judgment on the merits of this claim, they contend that res judicata
5
The district court found in the alternative that this allegation failed to state a
claim. We agree with the district court's analysis on that point. See Yankton II, 496
F. Supp. 2d at 1057.
-11-
does not bar it because Yankton I involved a separate and unique set of operative facts
than those present here.
The due process violation for which appellants sought redress in Yankton I was
the allegedly unconstitutional taking of their property interest in the services of the
Wagner emergency room; they allege the same wrong here. The decision to close this
facility was made prior to the initiation of Yankton I. There has been no "new"
closure decision subsequent to the dissolution of the permanent injunction to give rise
to a new due process cause of action. Because the claim here arises out of the same
nucleus of operative facts as present in that case, appellants' claim for an alleged
taking of a property interest without due process of law is barred by res judicata.6
Appellants also contend that the government owed a continuing duty to submit
updated impact reports to Congress and to prevent the denial of due process and that
the continuing claims doctrine therefore saves their statutory and constitutional claims
from the effect of res judicata. The Court of Claims and its successors have developed
the continuing claims doctrine in applying the six year statute of limitations for
actions against the United States. See 28 U.S.C. § 2501 ("Every claim of which the
United States Court of Federal Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim first accrues."); see generally
Friedman v. United States, 310 F.2d 381, 384–85 (Ct. Cl. 1962), cert. denied 373 U.S.
932 (1963); Apache Tribe of Mescalero Reservation v. United States, 43 Fed. Cl. 155,
171–72 (1999) (citing to a 1993 order).
The continuing claims doctrine was initially employed to save claims involving
6
The Tribe also claims a "new" constitutional violation which leaves its
members in "imminent danger of being deprived of life without due process of law."
The Tribe's appellate briefing does not make clear what action it contends violated this
due process right. If it is now suggesting that the government's decision to close the
Wagner emergency room violates appellants' due process right to life, that argument
was not raised in the district court and has therefore been waived. See Menz v.
Procter & Gamble Health Care Plan, 520 F.3d 865, 868 (8th Cir. 2008).
-12-
periodic payments by the government from time bars by treating each incorrect
payment as a new breach. See Friedman, 310 F.2d at 384. The doctrine has since
expanded so that when the government "owes a continuing duty, a new cause of action
arises each time the government breaches that duty" so long as the breach occurred
within the six year limitations period. Apache Tribe, 43 Fed. Cl. at 171. Appellants
cite Apache Tribe, a case dealing with the government's duty to manage tribal
resources on behalf of a tribe, for the proposition that this doctrine should prevent the
application of res judicata in this case. The Court of Federal Claims ultimately
determined, however, that the continuing claims doctrine was inapplicable in Apache
Tribe, see 43 Fed Cl. at 165, and our review of case law shows that this doctrine has
not been applied outside of the statute of limitations context. Nothing in Apache Tribe
or other reported decisions supports the extension of this doctrine to prevent the
application of res judicata here.
B.
The district court determined that appellants' remaining claims were not barred
by res judicata but dismissed them for failure to state a claim under Rule 12(b)(6).
When reviewing de novo a dismissal for failure to state a claim, we accept the
claimant's allegations of fact as true and affirm only if "it is clear that no relief could
be granted under any set of facts that could be proved consistent with the allegations."
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008).
One of appellants' claims new to this action is its argument that the
government's closure decision failed to comply with the requirements of a tribal
consultation policy which only became effective on January 14, 2005. That policy
expressly states, however, that "[n]othing in the Policy creates a right of action against
the Department [HHS] for failure to comply with this Policy." Even if the policy were
to establish an enforceable right, the decision to close the Wagner emergency room
was made before the Yankton I litigation began in 1994. The planned closure resulted
from the original decision rather than from a new one. The new consultation policy
has no bearing on the decisionmaking process completed years before it went into
-13-
effect. For these reasons, the district court did not err by dismissing this claim for
failure to state a claim pursuant to Rule 12(b)(6).
Appellants next claim not barred by res judicata is that the government
arbitrarily and capriciously took funds from the Wagner Service Unit budget and used
them for the benefit of the Santee Sioux Tribe. The Wagner Service Unit funds
health care services for both the Yankton Sioux Tribe and the Santee Sioux Tribe.
Appellants now argue that the Santee Sioux should have been assigned to the
Winnebago Service Unit rather than the Wagner Service Unit. The Tribe asserts that
the Wagner Service Unit's 2005 funding of facilities serving the Santee Sioux Tribe
was an unlawful allocation of funds which caused a budgetary crisis leading to the
decision to close the Wagner emergency room. The decision to close the Wagner
emergency room was made prior to the onset of the Yankton I litigation, however.
Because the alleged unlawful allocation of funds occurred more than a decade after
the decision to close the Wagner emergency room was reached, it could not have
affected the closure decision. Moreover, IHS assigned service of the Santee Sioux
Tribe to the Wagner Service Unit rather than the Winnebago Service Unit over
seventy years ago. The time to challenge that agency decision has long since passed.
The district court properly dismissed this claim for failure to state a claim.
The Tribe's final claim not barred by res judicata is an asserted violation of the
"special trust relationship between the Federal government and the Indians" in
connection with the closure of the Wagner emergency room. It not disputed that a
general trust relationship exists between the United States and Indian people, as for
example when the federal government "takes on or has control or supervision over
tribal monies or properties." United States v. Mitchell, 463 U.S. 206, 225 (1983)
(citation omitted). The Tribe has not identified any assets taken over by the
government such as tribally owned land, timber, or funds which would give rise to a
special trust duty. See Mitchell, 463 U.S. at 225; see also Restatement (Third) of
Trusts § 2, cmt. f (2003) (elements of a trust). Nor has it alleged violation of any
statutory or treaty obligation that could be characterized as a breach of trust or
fiduciary duty. The Tribe's vague allegation that the government violated its federal
-14-
trust responsibility is not sufficient to state a claim. The district court did not err in
dismissing this allegation for failure to state a claim.
C.
Accordingly, we affirm the judgment of the district court.
_______________________________
-15- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1029028/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONOVAN CUNNINGHAM, a/k/a Roger,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:05-cr-00261-WDQ; 1:07−cv−3434−WDQ)
Submitted: May 28, 2009 Decided: June 3, 2009
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Donovan Cunningham, Appellant Pro Se. Philip S. Jackson, Allen
F. Loucks, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donovan Cunningham seeks to appeal the district
court’s orders denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2008) motion and summarily denying his subsequent Fed. R.
Civ. P. 59(e) motion for reconsideration. The orders are not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529
U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001). We have independently reviewed the record and
conclude that Cunningham has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/131493/ | 540 U.S. 828
LOUVIEREv.LOUISIANA.
No. 02-10385.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Sup. Ct. La.
2
Certiorari denied. Reported below: 833 So. 2d 885. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8541098/ | per curiam:
Una vez más nos vemos obligados a suspender a un abogado por su incumplimiento con las órdenes emitidas por este Tribunal.
I
El 9 de octubre de 2014, el Director de la Oficina de Inspección de Notarías (ODIN) compareció a este Tribunal mediante una Moción en Auxilio del Tribunal para Incautación de Obra Notarial y Otros Remedios. En la misma, informó que el Ledo. Cruz A. Valentín Malavé desatendió sus requerimientos en múltiples ocasiones desde el 2012. Por ello, pidió que ordenáramos la incautación de la obra y el sello notarial del abogado y decretáramos su separación del ejercicio de la notaría. El historial de incumplimiento del licenciado Valentín Malavé se detalla a continuación.
El 20 de agosto de 2012 ODIN notificó al abogado un Informe en el cual se desglosaban las deficiencias de su obra notarial y le concedió quince días para que presentara cualquier objeción al Informe y atendiera las deficiencias señaladas. Entre los señalamientos de ODIN se incluyó la omisión de presentar varios índices de actividad notarial y la existencia de una deuda arancelaria ascendente a $1,069.50. El 31 de agosto de 2012, el licenciado Valentín *472Malavé aceptó el contenido del Informe y las deficiencias señaladas, e informó que no había podido efectuar las correspondientes correcciones por dificultades económicas. Aun así se comprometió a comprar los sellos adeudados.
El 26 de junio de 2013, ODIN le requirió al abogado que detallara las gestiones que había llevado a cabo para comenzar el proceso de subsanación. Transcurrido un año sin que se hubiesen subsanado las deficiencias señaladas, el 12 de junio de 2014 ODIN volvió a cursar al notario una comunicación por correo certificado en la que le advirtió que la omisión de atender sus requerimientos podría conllevar que el asunto se refiriera al Tribunal Supremo.(1)
El licenciado Valentín Malavé desatendió los requerimientos de ODIN. Por ello se nos remitió el asunto para que tomáramos la acción correspondiente. El 16 de octubre de 2014 ordenamos la incautación del sello y de la obra notarial del abogado, y le concedimos un término de diez días para que mostrara causa por la cual no debía ser suspendido de la profesión de la abogacía y la notaría por su reiterado incumplimiento con los requerimientos de ODIN. Dicha Resolución le fue notificada personalmente al abogado el 23 de octubre de 2014.
El 20 de enero de 2015, el Director de ODIN compareció nuevamente ante este Foro. Informó que la deuda arancelaria aún prevalecía, así como subsistían las deficiencias notariales. Además, llamó nuestra atención al hecho de que el término para mostrar causa ante este Foro había vencido sin que el abogado contestara. Aún hoy, el licenciado no ha cumplido nuestra orden ni ha subsanado las deficiencias señaladas por ODIN.
*473II
El Tribunal Supremo de Puerto Rico tiene el poder inherente de regular la profesión legal, por lo que nos corresponde asegurar que los miembros admitidos a la práctica de la abogacía y la notaría ejerzan sus funciones responsable, competente y diligentemente.(2) Con el propósito de mantener la excelencia de la clase togada, hemos enfatizado repetidamente la obligación que tienen los abogados de cumplir fiel y cabalmente con todos los cánones de ética que rigen nuestra profesión.(3) Una de las disposiciones de mayor envergadura en nuestro ordenamiento jurídico se encuentra el Canon 9 del Código de Ética Profesional, 4 LPRA Ap. EX, que impone a los abogados el deber de “observar para con los tribunales una conducta que se caracterice por el mayor respeto”. La desatención de las órdenes y los requerimientos judiciales constituye un serio agravio a la autoridad de los tribunales, lo que representa una infracción al Canon 9.(4) Por tal motivo, hemos decidido que procederá la suspensión inmediata e indefinida del ejercicio de la abogacía y la notaría de aquellos miembros que no atiendan con diligencia nuestros requerimientos, así como los emitidos por ODIN y la Oficina del Procurador General.(5)
III
A pesar de los múltiples requerimientos que la ODIN ha cursado al licenciado Valentín Malavé desde el 23 de agosto de 2012, el abogado aún no ha comenzado el proceso de subsanación de su obra notarial ni ha entregado los sellos adeudados. Tampoco ha contestado la Orden que emitimos *474el 16 de octubre de 2014, en la que le requerimos que mostrara causa por la cual no debía ser suspendido del ejercicio de la abogacía y la notaría por su incumplimiento con los requerimientos de ODIN. Por las razones antes expuestas, nos vemos obligados a decretar su suspensión del ejercicio de la abogacía y la notaría de forma inmediata e indefinida.
IV
Por los fundamentos antes expuestos, se ordena la suspensión inmediata e indefinida del Ledo. Cruz A. Valentín Malavé de la práctica de la abogacía y la notaría. El licenciado Valentín Malavé deberá notificar a sus clientes que, por motivo de su suspensión, no podrá continuar proveyéndoles consultorio ni representación legal. Asimismo, devolverá los expedientes de cualquier caso ya atendido o pendiente de resolución y los honorarios que haya percibido por trabajos no realizados. De igual manera, tendrá la responsabilidad de informar su suspensión a cualquier foro judicial o administrativo en el que tenga algún caso pendiente y mantendrá a este Tribunal informado de cualquier cambio en su dirección, teléfono y correo electrónico. Deberá acreditar y certificar ante este Tribunal el cumplimiento con todo lo anterior dentro del término de treinta días, contados a partir de la notificación de la presente Opinión “per curiam” y Sentencia. Además, el licenciado Valentín Malavé deberá atender los señalamientos de ODIN dentro del término de noventa días, incluyendo el pago de aranceles.
Se dictará sentencia de conformidad.
La Juez Asociada Señora Rodríguez Rodríguez no intervino.
Posteriormente, la Sra. Sonia Carcaña Pérez envió una misiva a la Oficina de Inspección de Notarías (ODIN) en la que alegó que el licenciado Valentín Malavé no estuvo disponible para entregarle una copia certificada de un testamento abierto que su padre había otorgado ante éste. El 16 de julio de 2014 y el 26 de agosto del mismo año ODIN le requirió al abogado que atendiera la solicitud de la señora Carcaña Pérez.
In re Vera Vélez, 192 DPR 216 (2015).
In re Sosa Suárez, 191 DPR 261 (2014).
In re Bryan Picó, 192 DPR 246 (2015); In re Pérez Román, 191 DPR 186 (2014); In re Martínez Romero, 188 DPR 511 (2013).
In re Martínez Romero, supra, pág. 515. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2905478/ | Filed 9/9/15 Unmodified opinion attached
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060218
v. (Super.Ct.No. FSB059205)
ALBERT AMAYA, ORDER MODIFYING OPINION
Defendant and Appellant. [CHANGE IN JUDGMENT]
IT IS ORDERED that the opinion filed in this matter on August 11, 2015 is
modified as follows:
1. On page 1, at the end of the first paragraph, replace “Affirmed” with:
Affirmed with directions.
2. On page 2, replace the last paragraph with:
Defendant — understandably — appeals, claiming that
the trial court had no authority to vacate the reduced
sentence. The People respond that the trial court had such
1
authority because the reduced sentence was both unauthorized
and void. We cannot say that the reduced sentence was
unauthorized, because all of the evidence that was before the
trial court at the time indicated that defendant was entitled to
resentencing. However, the reduced sentence was void on the
face of the record. Accordingly, the trial court had the
authority to vacate the reduced sentence and to reimpose the
original sentence.
3. On page 6, at the end of the first paragraph, insert:
Thus, the amended abstract reflects that an “enhancement”
under Penal Code section 186.22, subdivision (b)(4) was
“stayed.” (Capitalization altered.)
4. On page 17, under “DISPOSITION,” replace “The judgment is affirmed”
with:
The order appealed from is affirmed.
The clerk of the superior court is directed to prepare an
amended abstract of judgment indicating that the gang finding
was actually under Penal Code section 186.22, subdivision
(b)(5) and was not stayed (although it did not result in any
term of years).
In a petition for rehearing, defendant argued that the
abstract of judgment did not correctly reflect his custody
2
credits. We decline to reach this issue because it was not
raised in a timely manner. However, our disposition is
without prejudice to any motion that defendant may bring in
the trial court to correct his custody credits.
Other than this modification, the opinion remains unchanged. This modification
changes the judgment.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
I concur:
MILLER
J.
3
Filed 8/11/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060218
v. (Super.Ct.No. FSB059205)
ALBERT AMAYA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part III.
1
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Sharon Rhodes and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In 2008, defendant Albert Amaya was found guilty of attempted extortion; two
strike priors were found true, and defendant was sentenced, under the “Three Strikes” law
as it then stood, to 25 years to life in prison. A gang allegation was also found true, but it
had no effect on the total sentence, and it was not reflected in the abstract of judgment.
In 2013, defendant petitioned for resentencing under Proposition 36. Because of
the gang finding, he was not actually eligible for resentencing. Nevertheless, the
prosecutor, defense counsel, and even the clerk all mistakenly assured the trial court that
the gang finding had been stricken. The trial court therefore resentenced him to less than
the time he had already served, and he was released from prison.
One month later, the People detected the mistake. Defendant was hauled back into
court and re-resentenced to 25 years to life.
Defendant — understandably — appeals. We will hold that the reduced sentence
was not unauthorized, because all of the evidence that was before the trial court at the
time indicated that defendant was entitled to resentencing. Nevertheless, the reduced
sentence was void on the face of the record. Accordingly, the trial court had the authority
to vacate the reduced sentence and to reimpose the original sentence.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
A. 2008 Sentencing.
Defendant was charged with witness intimidation (Pen. Code, § 136.1), with a
gang allegation under Penal Code section 186.22, subdivision (b)(4). He was also
charged with attempted extortion (Pen. Code, § 524), with a gang allegation under Penal
Code section 186.22, subdivision (b)(1).1
A jury found defendant not guilty of witness intimidation. However, it did find
him guilty of attempted extortion, and it also found the related gang allegation to be true.
The clerk stated in the minute order that the gang finding had been made under
Penal Code section 186.22, subdivision (b)(4). Actually, it had been made under Penal
Code section 186.22, subdivision (b)(1). (Moreover, as we will discuss in the
1 A gang finding under Penal Code section 186.22, subdivision (b), can have the
following effects, as relevant here:
1. Under Penal Code section 186.22, subdivision (b)(4), if the underlying offense
is extortion by means of threat or fear or witness intimidation, the defendant must be
sentenced to seven years to life. (Id., subd. (b)(4)(C).) This provision does not apply to
attempted extortion (Pen. Code, § 524).
2. Under Penal Code section 186.22, subdivision (b)(5), if the underlying offense
is a crime punishable by life imprisonment, the defendant must be sentenced to 15 years
to life.
3. Under Penal Code section 186.22, subdivision (b)(1), in all other cases, the
defendant must receive a sentence enhancement of two, three, or four years.
3
unpublished portion of our opinion, the subdivision that actually applied was Penal Code
section 186.22, subdivision (b)(5).)
Defendant admitted two strike priors. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
Pursuant to the Three Strikes law as it then stood, the trial court sentenced defendant to
25 years to life.
At sentencing, the trial court stated that the gang finding did not result in
“additional custody time . . . since it would only apply to Penal Code [s]ection 2933.1
presentence . . . credits.”2
Presumably because the trial court did not impose any determinate or
indeterminate term on the gang finding, the gang finding was not mentioned in the
abstract of judgment.
B. June 2013 Resentencing.
After Proposition 36 was enacted, defendant filed a petition for resentencing
pursuant to it.
Because of the gang finding, defendant was not, in fact, eligible for resentencing.
(Pen. Code, § 1170.126, subd. (e)(1); see Pen. Code, § 1192.7, subd. (c)(28); People v.
Briceno (2004) 34 Cal. 4th 451, 456.) However, the petition did not mention (and was not
2 In a footnote, defendant asserts that, regardless of what subdivision the
gang finding was made under, Penal Code section 2933.1 did not apply to him. However,
he has not raised any claim of error concerning the application of Penal Code section
2933.1. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under
separate heading or subheading].)
4
required to mention3) the gang finding. It did include the abstract of judgment; however,
as already noted, the abstract failed to mention the gang finding.
At the hearing on the petition, the prosecutor stated, “No objection to
resentencing.” The trial court specifically inquired, “Is there a gang enhancement?” The
prosecutor, defense counsel, and the clerk each assured the court that the gang
enhancement had been “stricken.” Thus, the trial court found defendant eligible for
resentencing. It resentenced him to six years (double the upper term). As he had already
served this term, the trial court ordered him released forthwith.
C. December 2013 Re-Resentencing.
About a month later, the People filed a motion to recall the sentence. In the
caption, they cited Penal Code section 1170, subdivision (d)(1). In the body of the
motion, however, they argued only that the June 2013 resentencing had resulted in an
unauthorized sentence. While that motion was pending, they also filed a motion to set
aside the resentencing order as void.
In opposition, defendant argued that the error was judicial, not clerical, and
therefore not subject to correction.
3 A petition for resentencing must “specify all of the currently charged
felonies, which resulted in the sentence . . . .” (Pen. Code, § 1170.126, subd. (d), italics
added.) Thus, it does not appear necessary to specify any enhancements that contributed
to the sentence. A fortiori, it does not appear necessary to specify any enhancements that,
like the gang enhancement here, did not actually contribute to the sentence.
5
The trial court granted one or both of the People’s motions (it did not specify
which). It vacated the resentencing order, reinstated the original sentence, and ordered
that the abstract be amended to reflect the gang finding.
II
THE JUNE 2013 RESENTENCING WAS VOID
“Under the general common law rule, a trial court is deprived of jurisdiction to
resentence a criminal defendant once execution of the sentence has commenced.
[Citations.]” (People v. Karaman (1992) 4 Cal. 4th 335, 344.)
However, there are a number of exceptions to this rule.
One such exception is found in Penal Code section 1170.126. This section was
enacted in 2012 as part of Proposition 36. Proposition 36 changed the Three Strikes law
so that a defendant with two strike priors is no longer subject to an indeterminate term of
25 years to life unless the current offense is also a serious or violent felony. In general,
subject to exceptions not relevant here, Penal Code section 1170.126 allows the trial court
to resentence an inmate who was sentenced under the prior law to 25 years to life for a
nonserious, nonviolent offense.
Here, the gang finding caused defendant’s current conviction for attempted
extortion to be a serious felony. (Pen. Code, § 1192.7, subd. (c)(28).) Hence, he was not
eligible for resentencing pursuant to Penal Code section 1170.126. Nevertheless, in June
2013, the trial court did resentence him, and under this very statute. Accordingly, the key
6
question in this appeal is whether there was any exception to the rule against resentencing
that allowed the trial court to re-resentence him in December 2013.
Another exception to the rule against resentencing is found in Penal Code section
1170, subdivision (d)(1). (See People v. Karaman, supra, 4 Cal.4th at pp. 351-352.)
That subdivision allows the trial court to resentence a defendant who “has been sentenced
to be imprisoned in the state prison and has been committed to the custody of the
secretary . . . within 120 days of the date of commitment . . . , provided the new sentence,
if any, is no greater than the initial sentence.”
In this appeal, the People disclaim any reliance on Penal Code section 1170,
subdivision (d)(1). If only out of an excess of caution, however, we note that this statute
did not apply, for two reasons. First, at the June 2013 resentencing, defendant was not
“committed to the custody of the secretary”; rather, the trial court ordered him released.4
Second, the “new sentence” imposed at the December 2013 re-resentencing was
substantially greater than the “initial sentence” imposed at the June 2013 resentencing.
A third exception is a clerical sentencing error. “Courts may correct clerical errors
at any time . . . . [Citations.]” (People v. Mitchell (2001) 26 Cal. 4th 181, 185.) “Clerical
error, however, is to be distinguished from judicial error[,] which cannot be corrected by
amendment. The distinction between clerical error and judicial error is ‘whether the error
4 Defendant argues that Penal Code section 1170, subdivision (d)(1) did not
apply because the 120 days had run. The 120 days, however runs from “the date of
commitment.” As just noted, at the June 2013 resentencing, defendant was not
committed, so the 120 days never started running.
7
was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.]
Any attempt by a court, under the guise of correcting clerical error, to ‘revise its
deliberately exercised judicial discretion’ is not permitted. [Citation.]” (In re Candelario
(1970) 3 Cal. 3d 702, 705.)
In this case, the trial court expressly considered whether there was a gang finding.
Based on the combined assurances of the prosecutor, defense counsel, and the clerk, it
found that there was not and that defendant was eligible for resentencing. There can be
no claim that either the clerk or the court reporter made some kind of scrivener’s error in
recording the trial court’s conclusion. While this conclusion was contrary to fact, it was
the product of the exercise of judicial discretion.
Yet another exception is an unauthorized sentence. “[A]n unauthorized sentence
. . . is subject to being set aside judicially and is no bar to the imposition of a proper
judgment thereafter, even though it is more severe than the original unauthorized
pronouncement.” (People v. Serrato (1973) 9 Cal. 3d 753, 764, overruled on other
grounds in People v. Fosselman (1983) 33 Cal. 3d 572, 583, fn. 1.)
“Although the cases are varied, a sentence is generally ‘unauthorized’ where it
could not lawfully be imposed under any circumstance in the particular case. Appellate
courts are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at sentencing.
[Citation.]” (People v. Scott (1994) 9 Cal. 4th 331, 354.) In contrast to unauthorized
8
sentences are “sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Ibid.)
In re Alexander A. (2011) 192 Cal. App. 4th 847 is closely analogous to this case.
There, the minor defaced a mural with graffiti. (Id. at pp. 851, 858-859.) The victim
could not afford to restore the mural, which would have cost $18,750, so it painted over
both the graffiti and the mural, at a cost of $234.92. The parties stipulated that the
appropriate amount of restitution was $234.92. (Id. at p. 851.) On appeal, however, the
People argued that the appropriate amount of restitution was $18,750. (Id. at pp. 858-
859.) To avoid their apparent forfeiture of this argument, they also argued that the
asserted error resulted in an unauthorized sentence. (Id. at p. 859.)
The appellate court held that the sentence was not unauthorized. (In re
Alexander A., supra, 192 Cal.App.4th at pp. 858-859.) It indicated that the trial court was
required to determine the amount of the victim’s economic losses by some rational
method, and it had done so by accepting the parties’ stipulation. The court concluded that
the “[e]rror, if any, is not correctable without referring to factual findings in the record or
remanding for further proceedings. [Citations.]” (Id. at p. 859.)
Here, almost identically, the trial court was required to determine whether
defendant was eligible for resentencing. The record before it, consisting solely of
defendant’s petition, indicated that he was eligible. The People did not introduce any
additional evidence. They also did not ask the trial court to take judicial notice of the
record in the case; in the absence of such a request, the trial court was not required to do
9
so. (Evid. Code, §§ 452, subd. (d)(1), 453.) Finally, much as in Alexander A., the People
more or less stipulated that the gang enhancement had been stricken and that defendant
was eligible for resentencing. Under these circumstances, the June 2013 resentencing did
not result in an unauthorized sentence.
One last exception is a sentence that is void on the face of the record. “It is well
settled that ‘[a] judgment or order which is void on the face of the record thereof may be
set aside at any time by the court that made it . . . . [Citations.] . . .’ [Citations.]”
(Sovereign v. People (1983) 144 Cal. App. 3d 143, 147 [Fourth Dist., Div. Two], overruled
on other grounds in People v. Ansell (2001) 25 Cal. 4th 868, 893.) “‘A judgment which is
void upon its face, and which requires only an inspection of the judgment roll to
demonstrate its want of vitality, is a dead limb upon the judicial tree, which should be
lopped off, if the power so to do exists. . . .’” (People v. De Blasio (1963) 219
Cal. App. 2d 767, 769.)
“‘A judgment is void on its face if the court which rendered the judgment lacked
personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which
the court had no power to grant. [Citations.]’ [Citation.]” (Carr v. Kamins (2007) 151
Cal. App. 4th 929, 933.) The record here demonstrated that the June 2013 resentencing
granted relief that the court had no power to grant. Hence, the June 2013 resentencing
was void on the face of the record and could be set aside at any time.
10
People v. Estrada (1963) 211 Cal. App. 2d 722 supports our view. There, the
defendant was convicted of selling marijuana; he admitted a prior conviction for
possession of narcotics. (Id. at p. 724.) As a result, he was statutorily ineligible for
probation. (Id. at p. 728.) Initially, the trial court placed him on probation. On the
People’s motion, however, it vacated the grant of probation and resentenced the
defendant to prison. (Id. at p. 724.) The appellate court held: “The trial court mistakenly
granted the defendant probation; [it] had no jurisdiction to do so [citations]; and its order
in the premises was void on its face. [Citation.] Thereafter, it set aside this order, which
was proper. [Citations.]” (Id. at pp. 728-729.)
We recognize that the 2008 sentencing minute order was not before the trial court
at the June 2013 resentencing. Moreover, the prosecutor stipulated that the gang
enhancement had been stricken. These facts are relevant to whether the June 2013
resentencing was an unauthorized sentence, but they are not relevant to whether the
resulting sentence was void on the face of the record. Prosecutors are entrusted with
great enforcement discretion; nevertheless, they cannot, by stipulation, confer jurisdiction
on the trial court to resentence a person under Penal Code section 1170.126 when the trial
court’s own records in the case show that the person is indisputably ineligible.
Defendant also argues that the June 2013 finding that he was eligible for
resentencing was res judicata (or, more precisely, collateral estoppel). However, it is
hornbook law that a void judgment has no effect as either res judicata or collateral
11
estoppel. (People v. Kim (2012) 212 Cal. App. 4th 117, 125; People v. Cavanna (1989)
214 Cal. App. 3d 1054, 1062.)
Finally, defendant also argues that, at the 2008 sentencing, the trial court
effectively struck the gang finding. He relies on cases holding that the failure to impose a
sentence on an enhancement requires that the enhancement be stricken. (E.g., In re
Candelario, supra, 3 Cal.3d at p. 706.) “Reference to the prior conviction must be
included in the pronouncement of judgment for if the record is silent in that regard, in the
absence of evidence to the contrary, it may be inferred that the omission was an act of
leniency by the trial court. In such circumstances the silence operates as a finding that the
prior conviction was not true. [Citation.]” (Ibid., fn. omitted.)
Here, however, the trial court did refer to the gang finding at sentencing; it simply
ruled that the gang finding did not result in “additional custody time.” Indeed, if the gang
finding had been made under Penal Code section 186.22, subdivision (b)(4), as the trial
court mistakenly believed, that would have been entirely correct; it would merely have
required an indeterminate term for the underlying offense, which was already required
under the Three Strikes law. Thus, we are not dealing with a silent record. Because the
gang finding, in the trial court’s expressly stated view, did not entail any additional
sentence, the failure to impose any additional sentence plainly was not an act of leniency.5
5 Defendant also argues that double jeopardy precluded the trial court from
imposing greater punishment in December 2013 than in 2008. This argument presumes
that in 2008, the trial court struck the gang finding. As just discussed, however, we do
[footnote continued on next page]
12
In sum, we conclude that the June 2013 resentencing resulted in a judgment that
was void on the face of the record. It follows that the trial court did not err, at the
December 2013 re-resentencing, in reinstating the original sentence.
III
THE EFFECT OF THE GANG FINDING
Defendant contends that, even assuming he is not entitled to the benefits of the
June 2013 resentencing, both the 2008 sentence and the December 2013 re-resentencing
are “void” because the trial court failed to impose a term of years on the gang finding
under Penal Code section 186.22, subdivision (b)(1). He asks us to remand for
resentencing.
At first blush, it seems odd that defendant is asking that more time be added to his
sentence. Even on remand, he would still be subject to a sentence of 25 years to life
under the Three Strikes law, because the gang finding — regardless of which subdivision
it is under — makes his current offense a serious felony (Pen. Code, § 1192.7, subd.
(c)(28)). (See Pen. Code, §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).) Defendant
vaguely explains that he wants the trial court to “exercise informed discretion in
conformity with the law and the individualized facts of this case.” Doing our best to read
between the lines, we can only speculate that he hopes the trial court will either strike one
[footnote continued from previous page]
not agree that it did. However, we also note that the trial court imposed exactly the same
punishment in December 2013 as in 2008.
13
of his strikes (see People v. Superior Court (Romero) (1996) 13 Cal. 4th 497) or reduce
his current conviction to a misdemeanor (Pen. Code, § 17).6
In any event, we do not agree that the trial court was required to impose any time
on the gang finding. Penal Code section 186.22, subdivision (b), as relevant here,
provides:
“(1) Except as provided in paragraph[] . . . (5), any person who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members, shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or she has been
convicted, be punished as follows:
“(A) . . . [T]he person shall be punished by an additional term of two, three,
or four years at the court’s discretion. [¶] . . . [¶] . . .
“(5) . . . [A]ny person who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life shall not be paroled until a
minimum of 15 calendar years have been served.”
6 It is also conceivable that he is hoping for more favorable treatment under
Proposition 36 and/or Proposition 47 (assuming they apply to crimes committed before
their enactment), though it is not immediately apparent how.
14
As discussed, the gang allegation that the jury found true was actually made under
Penal Code section 186.22, subdivision (b)(1). Ordinarily, that would call for the
imposition of an enhancement term of two, three, or four years. However, that
subdivision applies only “[e]xcept as provided in paragraph[] . . . (5) . . . .” And under
Penal Code section 186.22, subdivision (b)(5), when the underlying offense is “a felony
punishable by imprisonment in the state prison for life,” the gang finding calls for a 15-
year minimum parole period.
“Because [Penal Code] section 186.22, subdivision (b)(1) authorized imposition of
an enhancement ‘[e]xcept as provided in paragraphs (4) and (5),’ ‘the gang enhancement
under [Penal Code] section 186.22, subdivision (b)(1) may not be imposed when
subdivision (b)(4) or (b)(5) applies instead.’ [Citation.]” (People v. Louie (2012) 203
Cal. App. 4th 388, 396.)
In People v. Williams (2014) 227 Cal. App. 4th 733, the court held that when a
defendant is sentenced to 25 years to life pursuant to the Three Strikes law, then the
underlying felony is “a felony punishable by imprisonment in the state prison for life” for
purposes of Penal Code section 186.22, subdivision (b)(5). (Williams, supra, at pp. 736-
737, 740-745.)
In sum, then, defendant was properly sentenced to 25 years to life under the Three
Strikes law. As a result, the gang finding did not trigger a term of two, three, or four
years under Penal Code section 186.22, subdivision (b)(1). Rather, it triggered a 15-year
15
minimum probation eligibility period under Penal Code section 186.22, subdivision
(b)(5).
Defendant argues that Williams does not apply here “because it is the gang
enhancement itself that subjects appellant to . . . an indeterminate life term. Therefore, it
would constitute improper dual use and bootstrapping for the gang enhancement to first
elevate appellant’s sentence from a six-year determinate term to a 25 years to life
indeterminate term, and then [impose] an additional penalty of a minimum eligibility for
parole.”
In our view, however, there is no impermissible bootstrapping, because the 15-year
minimum parole period does not impose any additional penalty. In other words, the trial
court is not supposed to take the underlying sentence of 25 years to life and add 15 years
to the minimum parole period, thus increasing the sentence to 40 years to life. Rather, the
sentence remains 25 years to life, as this already includes a 15-year minimum parole
period. (People v. Lopez (2005) 34 Cal. 4th 1002, 1009; People v. Harper (2003) 109
Cal. App. 4th 520, 527.)
We therefore conclude that the 2008 sentencing (and hence also the 2013 re-
resentencing) quite properly did not impose a term of years on the gang finding.
Accordingly, defendant is not entitled to a remand for resentencing.
16
IV
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
17 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131509/ | 540 U.S. 829
CATEv.CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL.
No. 02-10477.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3451538/ | Reversing.
Oliver Hodges and wife, present appellees, sued Lottie C. Miller and others, present appellants, to compel specific performance of a contract for sale of real estate. After overruling a general demurrer to appellees' second amended petition and then hearing evidence on trial, the chancellor rendered judgment for the Hodges. The Millers appeal.
As one ground for reversal, the Millers urge upon us the asserted error of the chancellor in overruling the demurrer filed by them against Hodges' second amended petition.
The controversial pleading, by its recitation of facts and its reference to the contents of previous pleadings and exhibits, shows that the Hodges, on August 14, 1941, executed a written offer to buy a home in Louisville from the Millers for $2,150, $150 to be paid in cash and $2,000 to be paid in monthly installments of $23 each, such offer to remain open until 6:00 P. M. on August 18, 1941; that Mrs. Miller, on August 16, 1941, executed a written acceptance of the Hodges offer but conditioned her acceptance upon an entry by the parties into a particular, specified form of secondary contract calculated to express this entire property agreement in full detail; that this secondary contract, intended to express the minds of the parties toward the subject matter of this property, was thereupon executed by both sides as of August 20, 1941; that the secondary contract primarily contained a lease from Mrs. Miller to the Hodges for the property extending through the twelve-month period ending September 9, 1942, based on a rental consisting of $150 as an immediate cash payment plus advance monthly payments of $23 each throughout the tenure of the lease; that the secondary contract also contained an option to purchase which was definitely granted unto the Hodges but which was conditioned on (1) the option's exercise by them prior to September 9, 1942, and on (2) a total rental payment, subsequently to be commuted *Page 657
to a purchase payment, having been made by them prior to the option's exercise in the amount of $426, this being the exact total of the cash payment plus the monthly payments through date of August 9, 1942, and on (3) execution of a mortgage from the Hodges back to Mrs. Miller, after the former had received a deed, in order to secure payment to Mrs. Miller of the remainder of the purchase price; that the Hodges "deferred requesting deed for said property until July, 1946, at which time the plaintiffs (the Hodges) advised the defendants (the Millers) that they desired a deed for said property and that they were ready, willing and able to comply with the terms of their contract of purchase, etc."
It is readily apparent that the questioned pleading of appellees sets out the ultimate and specific meeting of minds between these parties as it was reached by two separate documents which were seriously executed and solemnly signed. It is likewise apparent that the meeting of minds, as shown by this pleading, produced a right of possession of this property for the Hodges on rental basis, together with a clear and explicit right of the Hodges to buy this property at a specified price, provided the Hodges crossed the valley of decisive action before September 9, 1942, so as to exercise their option according to the exact terms written into the contract. It is still further apparent that the Hodges deferred acting upon their right to purchase this property, as they candidly stated in this pleading, until July of 1946, which was more than three and one-half years after the train of opportunity had passed by according to the express terms of this definite contract.
Where a petition seeking specific performance of a contract, the very type of action now before us, fails to allege the performance of an essential condition of the contract, such as the exercise of an option within specified time, a demurrer will lie to a pleading of such defectiveness. See 49 Am. Jur. 187, Specific Performance, sec. 164.
An option contract is not a contract for the purchase or sale of property, but a contract giving the optionee the privilege of purchasing it if he elects to take it within the time stated in the option. Ross-Vaughan Tobacco Co. v. Johnson, 182 Ky. 325, 206 S.W. 487. *Page 658
An option to purchase land at a fixed price for a definite time, not having been exercised within said time is without force or effect thereafter. Fields Combs v. Vizard Investment Co., 168 Ky. 744, 182 S.W. 934, Ann. Cas. 1918D, 336.
While we regret to see the Hodges, who are people of meager education and scanty means, deprived of their right to buy this home of their choice, yet we see no alternative to our duty of requiring the law of contracts to be upheld and enforced. This particular contract required the Hodges to act on or before September 9, 1942, rather than in July of 1946, and having failed to so act, the Hodges failed to accumulate unto themselves a legal cause of action for the specific performance of a contract, and having failed to so accumulate, the Hodges failed in their ability to make the allegations necessary to sustain the pleading in controversy.
Wherefore, believing that the appellants' general demurrer to the second amended petition should have been sustained, we now reverse the chancellor's judgment for further proceedings consistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2986883/ | May 14, 2013
JUDGMENT
The Fourteenth Court of Appeals
VALERO ENERGY CORPORATION, VALERO REFINING COMPANY -
TENNESSEE, LLC AND THE PREMCOR REFINING GROUP, INC.,
Appellants
NO. 14-13-00075-CV V.
RICHARD CUEVAS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF NICOLAS OSCAR CUEVAS AND DANIEL REYES CUEVAS,
INCAPACITATED; NICOLAS CUEVAS, MARIA CUEVAS, GUADALUPE
TORRES, BLANCA RODRIGUEZ AND LUIS SANTOS, Appellees
________________________________
Today the Court heard appellant's motion to dismiss the appeal from the
judgment signed by the court below on January 16, 2013. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellants, Valero Energy Corporation, Valero Refining Company - Tennessee,
LLC and The Premcor Refining Group, Inc.
We further order that mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3451540/ | Reversing in part and affirming in part.
On December 8, 1930, John G. Deaton and his wife, Elizabeth Deaton, executed to the Lima Trust Company of Lima, Ohio, two notes of $1,350 each, due and payable one and two years after date, respectively, and, to secure the payment thereof, executed a mortgage on three tracts of land in Perry County, Kentucky, the first two of which tracts were originally owned by the Buckhorn Coal and Lumber Company and purchased at decretal sale by appellant and by it conveyed to John G. Deaton. The third tract covered by the mortgage was a tract conveyed to Elizabeth Deaton by John G. Deaton on March 1, 1903.
In June, 1931, the Lima Trust Company merged or consolidated with the Lima First American Trust Company and, at the time of this consolidation, the notes were endorsed and transferred to the Lima First American Trust Company. This latter company went into liquidation in February, 1933, and the superintendent of banks in the State of Ohio in the year 1934 transferred the notes in question to the appellant, the National Bank of Lima, Trustee, which instituted this action on the notes and sought a foreclosure of the mortgage given to secure them.
These notes were held by the Lima Trust Company under an agreement and declaration of trust which covered a considerable amount of land in Leslie and Perry Counties in Kentucky, by virtue of which participation certificates divided into 2,024 indivisible equal shares were issued to a large number of individual holders, and among these holders was Thomas A. White, who held sixty-one two-thousand- and twenty-fourths. Thomas, A. White was also one of three members of an advisory committee designated by the agreement and declaration of trust.
The appellees, by the second paragraph of their amended answer and counterclaim, pleaded that by the transfer of the notes by the Lima Trust Company to the Lima First American Trust Company, they were thereby placed upon the footing of a bill of exchange and appellant's right of action thereon was barred by the 5-year statute of limitations. By the third paragraph of the answer set off and counterclaim, they pleaded that *Page 608
on March 16, 1935, John G. Deaton entered into a written contract with the Southern Stave and Timber Corporation by which he sold to it and the Buckhorn Coal and Lumber Company 600 white oak trees on the land, which were of the reasonable value of $10 per tree, aggregating $6,000, and that, by the terms of the contract aforementioned, the Buckhorn Coal and Lumber Company, by its agent, Thomas A. White, promised and agreed that out of the purchase price of said timber, the Buckhorn Coal and Lumber Company would credit the notes sued on to an amount not to exceed $3,350. It was further alleged that Thomas A. White was a member of the advisory committee of the Lima Trust Company and an agent for the Buckhorn Coal and Lumber Company and that, by connivance between White and the Lima Trust Company and the Buckhorn Coal and Lumber Company, together with the Southern Stave and Timber Corporation, the 600 trees of the reasonable value of $6,000 were obtained from the appellees and no credit given on the notes therefor.
The contract of sale above referred to was filed as an exhibit with the answer, set-off and counterclaim, and is neither more nor less than a sale of the timber by Deaton to the Southern Stave and Timber Corporation with a provision that payments for the timber sold should be made to the Buckhorn Coal and Lumber Company in the total amount not to exceed $3,350, to apply against the mortgage held by the Buckhorn Coal and Lumber Company against John G. Deaton, by which was evidently meant the mortgage notes sued on in this action with the accumulated interest, although, as above recited, the notes were held by the Lima Trust Company. While the appellees alleged that the timber was sold to the Buckhorn Coal and Lumber Company, such was not the fact, and the only effect of that contract was that the purchaser of the timber agreed that payment therefor would be made in such manner as to satisfy these notes.
The pleadings and evidence are very much involved. As a matter of fact, it is difficult to gather from the evidence that the Buckhorn Coal and Lumber Company had any interest in the notes, the only evidence thereof being the recitation in the contract that payments for the timber sold should be applied on the notes held by the Buckhorn Coal and Lumber Company. Testimony for the appellant indicates that the Buckhorn Coal and Lumber Company had no ownership or interest in the *Page 609
notes or the participation certificates held under the declaration of trust above mentioned.
The trial court held that the contract by which Deaton sold the timber to the Southern Stave and Timber Corporation and by virtue of which payments thereunder were to be made by the purchaser on the notes sued on constituted a novation between the holder of these notes and appellees, and rendered judgment setting off the value of timber removed from the land by the Southern Stave and Timber Corporation against the amount of the notes, but denied judgment to appellees on their counterclaim against appellant for the balance of the purchase price of the timber. From that judgment appellant prosecutes this appeal and appellees prosecute a cross-appeal from that part of the judgment denying them judgment on their counterclaim against appellant for $2,650, the balance of the $6,000 alleged value of timber cut over and above the amount of the notes.
It is at once obvious that the trial court was in error in adjudging the contract of sale above referred to to be a novation. It was no more than a sale of the timber with the agreement on the part of the purchaser to apply the purchase price on the payment of the two notes held by appellant. Even though it be conceded that the Buckhorn Coal and Lumber Company was the beneficial owner of the notes and consented to this arrangement, this transaction had no elements of a novation. In order to constitute a novation such as will release an obligation, it is necessary that there be a new contract which, by agreement of the parties, extinguishes the existing contract or obligation, and to this end, it must appear that the creditor unconditionally released the original obligor and accepted the third person in his stead. Daviess County Bank
Trust Co. v. Wright, 129 Ky. 21, 110 S.W. 361, 17 L.R.A., N. S., 1122; 20 R. C. L. 371. In the contract relied on as a novation there is no intimation whatever that this contract was being substituted for the promissory notes. It was only an arrangement by which payments would be made on the notes and appellant was not a party thereto.
Appellees insist, however, that even if the trial court was in error in adjudging the transaction to be a novation, yet the circumstances were such as to entitle the *Page 610
appellees to an equitable set-off against the notes to the extent of the value of timber removed from the land. We are unable to give serious consideration to this contention, for the reason that the contract was between appellees and the Southern Stave and Timber Corporation and was in no sense of the word a sale to the Buckhorn Coal and Lumber Company. Thomas A. White, as agent for the Buckhorn Coal and Lumber Company, merely endorsed his approval on the contract on condition that payments for the timber be made to that company. Even though we assume that the Buckhorn Coal and Lumber Company was the beneficial owner of the notes sued on herein, which proposition is extremely doubtful, nevertheless, it is not responsible for the failure of the purchaser of the timber to apply the purchase price thereof to the payment of the notes. Possibly, if appellees had shown that a part of the purchase price of the timber was turned over to the Buckhorn Coal and Lumber Company to be applied to that extent to the satisfaction of the notes, they would be entitled to credit on the notes to the extent of such payments — as a matter of fact, approximately $300 was paid on the purchase price and this sum was credited on the notes. Even this proposition is doubtful, as it is purely a matter of speculation as to whether the Buckhorn Coal and Lumber Company had any interest in the notes sued on. We have examined the record carefully and can find no possible justification for appellees' claim of a right to a set-off as against these notes.
Nor do we find any merit in the claim that appellant's cause of action was barred by the statute of limitations. To place a note upon the footing of a bill of exchange, it must be negotiated before maturity for a valuable consideration; the transfer must be such as to constitute the transferee a holder in due course. Holt Brothers Mining Co. v. Stewart et al.,250 Ky. 199, 61 S.W.2d 1073; Sweeney v. Taylor's Executor,205 Ky. 390, 266 S.W. 665; Paintsville Nat. Bank v. Robinson,220 Ky. 418, 295 S.W. 412. The transfer of the notes in controversy by the Lima Trust Company to the Lima First American Trust Company on the merger or consolidation did not operate to constitute the transferee a holder in due course. Where there is a consolidation of two banks and a new corporation is formed distinct from the two corporations preceding it, such consolidation does not give the consolidated bank a superior status as *Page 611
to commercial paper held by either of the original banks — the consolidated bank merely steps into the shoes of the old banks. Zollmann, Banks and Banking, Volume 1, Section 153. It is therefore apparent that the transfer of the notes to the new corporation did not operate to place the notes on the footing of a bill of exchange. This being true, the 15-year statute of limitation, Kentucky Statutes, Section 2514, and not the 5-year statute, Kentucky Statutes, Section 2515, is applicable and the plaintiff's cause of action was not barred by limitation.
The judgment is affirmed on the cross-appeal and reversed on the original appeal with directions to enter judgment for plaintiff for the amount of the notes sued on. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538814/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GARRETT CUNNINGHAM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2150
[June 4, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Kathleen M. McHugh,
Judge; L.T. Case No. 13-013517 CF10A.
Garrett Cunningham, Crawfordville, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
WARNER, FORST and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2892818/ | NO. 07-04-0458-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 3, 2005
______________________________
ROBERT W. PAIGE, M.D., APPELLANT
V.
DUDLEY R. STANLEY AND FLAGSHIP FINANCIAL, APPELLEES
_________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 47,937-A; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
ORDER OF ABATEMENT PURSUANT TO
RULE 8.2 OF THE TEXAS RULES OF APPELLATE PROCEDURE
Attorney Kent Ries, as Chapter 7 Trustee for appellant Robert W. Paige, M.D., filed
a notice of appeal in the trial court challenging the trial court's judgment in favor of
appellees Dudley R. Stanley and Flagship Financial. Pending before this Court is Paige's
notice of bankruptcy and motion for extension of time in which to file the notice of appeal.
According to the limited documents on file, Paige filed chapter 7 bankruptcy on
February 6, 2004. On March 15, 2004, the United States Bankruptcy Court for the
Northern District of Texas signed an agreed order lifting the automatic stay for the "express
purpose of allowing the Trial Court to enter a judgment . . . ." The order further recites:
[t]he Stay is not lifted with respect to any appeal or appellate timetable. The
Stay will remain in effect as to any appeal, as described in Texas Rule of
Appellate Procedure 8.
Pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure, the appeal is
suspended. For administrative purposes, the appeal is removed from the docket and
abated. It appearing to the Court that the notice of appeal and motion for extension of time
in which to file the notice were filed out of an abundance of caution, they will not be
considered ineffective because they were filed while the proceeding was stayed. See Tex.
R. App. P. 82. Any documents filed subsequent to the bankruptcy proceeding will remain
pending until the appeal is reinstated. The appeal will be reinstated upon proper showing
from the United States Bankruptcy Court for the Northern District of Texas that the stay has
been lifted for purposes of appeal and a party's request for specific action by this Court.
See Tex. R. App. P. 8.3(a).
Accordingly, the appeal is abated.
Per Curiam
support payments directly to Vikki. Ralph also bought Vikki a vehicle for which
she gave him credit against his future support payments.
The State subsequently filed a motion for enforcement of the child support order
and sought collection of the amounts Ralph failed to pay to the State. Ralph's employer
was also administratively ordered to withhold payments, and the State intercepted his
federal tax refund.
The trial court held a hearing and found there was no arrearage in Ralph's child
support obligation and that he was entitled to reimbursement of $5,463 from the State for
monies which were wrongfully withheld or garnished. The State appealed.
Issue One - Discharge of Obligation to the State
In the first issue, it is argued that because Ralph received notice of the assignment
of Vikki's child support payments to the State, he could not legally discharge his obligation
by making payments directly to her. Thus, the trial court erred in declaring that he owed
the State nothing. We agree and sustain the issue.
As authorized by federal law, the approval of an application for financial assistance
constitutes an assignment to the Office of the Attorney General of any right the applicant
or his child has to child support from any other person. Tex. Fam. Code Ann. §231.104(a)
(Vernon 2002). Thus, once Vikki applied for and began receiving AFDC benefits, the State
was entitled to receive (via assignment) Ralph's child support payments as reimbursement
for the financial assistance being given to Vikki. In the Interest of A.M.E., 71 S.W.3d 401,
403 (Tex. App.--San Antonio 2001, no pet.) (holding to that effect).
Moreover, Ralph did not argue that he failed to receive notice of the assignment of
Vikki's right to child support or of the court's order directing payment to the State. Indeed,
after those documents were executed, he communicated to the State and explained that
he was making the payments directly to Vikki because when she received child support
from the district clerk the money took too long to reach her and she did not receive the full
$200 per month. Thus, it is clear that he knew of the assignment in question.
Parties to a divorce decree do not have the authority to modify a child support
obligation without court approval. State v. Borchers, 805 S.W.2d 880, 882 (Tex.
App.--San Antonio 1991, writ denied). Nor may they opt to disregard federal and state law
effectuating assignments. Thus, by law, Ralph's support payments belonged to the State,
and sending them directly to Vikki did not somehow negate the State's right to them. And,
though Ralph delivered the payments to someone other than the assignee, he remains
liable for their payment to the State. See Buffalo Pipeline Co. v. Bell, 694 S.W.2d 592, 596
(Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.); (holding that after the debtor receives
notice of a valid assignment, payment made by the debtor to the assignor or to any person
other than the assignee does not discharge the debtor from liability to the assignee);
Manes Const. Co., Inc. v. Wallboard Coatings Co., Inc., 497 S.W.2d 334, 337 (Tex. Civ.
App.--Houston [14th Dist.] 1973, no writ) (holding that where the account debtor paid
money directly to the assignor of accounts receivable at a time when he had actual notice
of the assignment, the debtor subjected himself to double liability). Therefore, the trial
court erred in finding that Ralph was not indebted to the State and in rendering judgment
in favor of Ralph for the monies or tax refunds withheld from his pay and intercepted,
respectively.
Our disposition of this issue relieves us from having to address the State's
remaining issues. Accordingly, we reverse the judgment of the trial court and remand the
cause for a new trial.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. tex. gov't
code ann. §75.002(a)(1) (Vernon Supp. 2002). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3447942/ | Reversing.
Jess Carter was indicted in the Jessamine circuit court for the crime denounced by section 1155, Kentucky Statutes. It being charged in the indictment that the prosecutrix was under the age of 16 years, and that accused was over the age of 21 years. By the verdict of the jury and judgment of the court, he was found guilty and his punishment fixed at imprisonment for 5 years. He has appealed.
For reversal, it is argued that the verdict is flagrantly against the evidence, and that the court committed prejudicial error in the admission of incompetent evidence over the objection of appellant.
Appellant is 33 years of age, and lives with his wife and five children in the Little Hickman neighborhood in Jessamine county. He is a near neighbor to Ben Davis, father of Mary Della Davis, who has a wife and eleven children, one of whom is married. The Davis home is a two-story loghouse with two rooms on the first floor and two shed rooms to the side. Mary Davis slept in what they call "the front room," which has an outside door and also a door leading to the adjoining room in which the father, mother, and perhaps some of the children slept. Sometimes the connecting door would be open and at other times closed, and there is evidence that sounds from one room could be heard in the other. *Page 258
Mr. and Mrs. Davis testified that the first they knew of their daughter's improper relations with any man was when she had a miscarriage in December, 1931. They testified, as did their daughter, Dr. Beverly, and others that she told them her brother-in-law, Ralph Fain, was responsible for her condition, but later, after the father had declared his intention to kill Fain, changed her story, and told that appellant was the guilty party.
The only evidence upon which the commonwealth can rely to sustain the verdict is that of the prosecutrix, Mary Della Davis.
Her evidence as to the improper relations between herself and appellant is, in substance, that some time during the month of October, about 12 o'clock at night, appellant came into her bedroom, where she was sleeping with her 9 year old sister; that, when he came in, she got out of bed and started to her mother's room; that she called rather loudly to her mother once, but he placed his hand over her mouth, and told her he would kill her if she did not submit to his desires; that he threw her on the bed, removed his clothes, got in bed with her, and accomplished his purpose, and that all the while he was holding his hand over her mouth so she could make no further outcry. He remained there in bed with her until about 3 o'clock. She testified that he came back at night several times during that week and three times every week thereafter; that he would usually leave about 2 or 3 o'clock in the morning. She further testified that, when she learned she was in a delicate condition, she told appellant about it, and he told her he would take her to some woman up at Lexington; that on the night of December 22, after she attended a Christmas tree, he did take her to Lexington, where a woman performed an illegal operation upon her. She did not know this woman, nor did she hear her name, but attempted to describe her. She testified that she left for Lexington about 12 and returned about 3 o'clock. She gave as her reason for telling that Fain was responsible for her condition that appellant told her they would not do anything to Fain because he was in the family, but would send appellant to the penitentiary if she told on him, and that he would kill her if she did not tell it was Fain.
There is evidence that the Davis girl was often in the Carter home and that Carter was often in her *Page 259
home; that she frequently accompanied the Carters in their automobile to Lexington and elsewhere. But there is no evidence that appellant and the prosecuting witness were ever together and alone except her evidence as to the trip made to Lexington, when she claims the operation was performed and there is no evidence of undue intimacy between these parties, except her recital of his visits to her bedroom in the nighttime.
Since Carter denies in toto the evidence of the Davis girl connecting him in any way with the commission of the crime, and her evidence in that respect is without any corroboration whatever, we are left to determine whether, in the light of attending circumstances, that alone is sufficient to sustain the verdict.
Under prevailing rules in this jurisdiction any evidence, even though it be slight, tending to establish the guilt of the accused, is sufficient to take the case to the jury, and this court will not disturb the verdict of a properly instructed jury as not supported by sufficient evidence, unless it be so palpably and flagrantly against the evidence as to shock the conscience or necessarily lead to the conclusion that it was the result of passion or prejudice rather than deliberate consideration upon the part of the jury. Branham v. Commonwealth, 223 Ky. 233, 3 S.W.2d 629, and cases cited.
It is equally as well established that it is the peculiar province of the jury to determine the credibility of witnesses and the weight to be given their evidence, and in the exercise of that function they may believe one witness, though contradicted by a number of others, or one set of witnesses to the exclusion of another set. Kennedy v. Commonwealth, 194 Ky. 502, 239 S.W. 796; Allison v. Commonwealth, 196 Ky. 140,244 S.W. 422.
But it is the province of the court to determine whether there is any evidence to support a case or any particular theory of a case, and in so doing to reject any alleged statement of facts inherently impossible and wholly at variance with universally recognized laws. Harris v. Commonwealth,183 Ky. 542, 209 S.W. 509; L. N. R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041, Ann. Cas. 1917B, 471; Louisville Water Co. v. Lally, 168 Ky. 348, 182 S.W. 186, L.R.A. 1916D, 300.
"Probative evidence is testimony carrying the *Page 260
quality of proof and having fitness to induce conviction." Globe Indemnity Co. v. Daviess, 243 Ky. 356, 47 S.W.2d 990,992.
The evidence of a witness to establish a case may be so completely overwhelmed and destroyed by contradictory statements of the witness or others, or by evidence as to the acts and conduct of the witness and the attending circumstances, as to render a verdict based thereon flagrantly against the evidence. Consolidation Coal Co. v. Potter, 182 Ky. 562, 206 S.W. 776; Haynes v. Commonwealth, 194 Ky. 469,239 S.W. 780.
While it may not be said that the prosecuting witness' recital as to how the alleged crime occurred is inherently impossible and totally at variance with natural laws, the evidence as to the attending circumstances and her subsequent conduct is such as to render it inherently improbable and to rob it of any probative value or fitness to carry conviction.
In such circumstances, we are constrained to hold that the verdict is flagrantly against the evidence, and this conclusion renders it unnecessary to discuss the other ground urged for reversal.
Judgment reversed for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447943/ | Affirming.
In September, 1919, the appellees, J.S. Collins and Morgan Taylor, became indebted to the appellant in the sum of $2,000, which sum is as yet unpaid. At that time J.S. Collins was the owner of a house and lot in Richmond, Ky., in which he was then living and in which he continued to live until January, 1925. There was at the time Collins and Taylor became indebted to the appellant a mortgage on this house and lot slightly in excess of *Page 62
$2,000. In 1921 the son of J.S. Collins paid off the mortgage, in consideration of which J.S. Collins deeded the property in question to his wife, the appellee Katie M. Collins, she executing a note secured by a lien on the property to her son for the money he thus advanced her. Later this lien was released by her son. Of course to the extent that the property exceeded in value this mortgage this conveyance by J.S. Collins to his wife was a voluntary one, but there is no evidence in the record to show that Mrs. Collins knew that her husband was at that time financially involved, or owed any debts other than the mortgage in question, or that the conveyance was made with any fraudulent intent to cheat, hinder, delay, or defraud any creditor of her husband. Later a Richmond bank to whom J.S. Collins was indebted brought a suit to collect its indebtedness, at the same time attacking this conveyance made by Collins to his wife. In this suit the Richmond bank procured an attachment to be issued and had it levied on this house and lot. Thereafter a nephew of Collins, to protect his aunt, settled with this Richmond bank by paying it approximately $1,500 in settlement of its claim. On his doing so, the bank dismissed its suit and attachment. The nephew was of the opinion that, by doing as he did, the title would be absolutely vested in his aunt free from any further claim of any other creditor of J.S. Collins. The proof is indisputable that the property has never been worth in excess of the sum of the mortgage which Collins' son paid, the amount paid by this nephew to the Richmond bank, and the homestead exemption which Collins had in this property by virtue of his residence therein. In 1924 this suit was brought by the appellant also to set aside this conveyance by Collins to his wife on the ground that it was voluntary and therefore void under section 1907 of the Kentucky Statutes. It will be noted that appellant sought to set aside the conveyance here in question, not because of any actual fraud involved in it, but solely because of the fact that it was a voluntary conveyance. To the extent of the mortgage that was on the property at the time Collins conveyed to his wife, and which was paid by their son for his mother, the conveyance was not voluntary. It was only voluntary to the extent of the equity which Collins owned in the house and lot at that time. When the Richmond bank brought its suit and procured its attachment, in the absence of bankruptcy proceedings or proceedings under *Page 63
section 1910 of our Statutes, this bank, if its claim was valid, could have exhausted the value of Collins' equity in this property in the payment of its claim and there would have been nothing left for any other creditor of Collins. When Collins' nephew paid the Richmond bank what was due it and settled its claim for his aunt it was just the same as though the bank had had the property sold, bought it in, and then resold it to this nephew making the deed to Mrs. Collins. By this settlement with the Richmond bank full consideration was finally paid for Mrs. Collins for the property.
In 27 C. J. 468, the rule governing this case is thus stated:
"If a conveyance is such as creditors may set aside because voluntary, if a consideration is afterward paid, this may purge the fraud and give validity to the transaction."
It is on this principle that the case of Walker v. Williamson, 177 Ky. 599, 198 S.W. 10, in its ultimate analysis, must be based. We there held that a conveyance by a debtor in consideration of future support is a voluntary conveyance, but that where support has been furnished in good faith, the conveyance will be sustained to that extent. In Hutchins v. Sprague, 4 N.H. 469, 17 Am. Dec. 439, the reason for the rule is succinctly stated in these words:
"However fraudulent the contract under which the goods went into the hands of the trustee might have been, if, before the service of the process, he had repented of the fraudulent purpose and restored the goods to the principal, it is clear, he would have been entitled to be discharged in this case. And we see no reason why a bona fide payment of debts due from the principal to the full value of the goods . . . should not be deemed equivalent in this case to a restoration of the goods."
In 12 Rawle C. L. p. 641, the rule is thus stated:
"A fraudulent grantee cannot be required to account to the creditors of his vendor for any greater sum than the value of the property acquired by him under the transfer, and he may relieve himself from liability to the creditors of his grantor by paying to bona fide creditors a sum of money equal to the value *Page 64
of such property, or he may claim credit pro tanto for a smaller sum so paid, and it is immaterial that he was compelled to make such payment by legal process; but in such case the burden is on the fraudulent grantee not only to show the payment, but also to show that the debts discharged were subsisting, legal, bona fide demands against his grantor. The whole object of the law is to make the grantee disgorge the ill-gotten gain by virtue of the fraudulent transaction. When he does this, either by returning the property or its equivalent in money, he cannot be punished by making him pay more."
See, also, 12 Rawle C. L. p. 476.
The case of Poague v. Boyce, 6 J.J. Marsh, 70, is not in conflict with these principles. In that case, the fraudulent grantee participated in the actual fraud involved in the alleged fraudulent conveyance, and, further, thereafter paid his fraudulent grantor the consideration for the alleged fraudulent conveyance in order that his grantor might thus get the consideration to the prejudice of his creditors.
Applying these principles to the case before us, we find that the conveyance by Collins to his wife was voluntary only to the extent of his equity in the property. There was no actual fraud shown on the part of Mrs. Collins. The Richmond bank by its attachment has effectively put itself into a position of priority as against the other creditors of Collins. This position of priority was not attacked in any way by the other creditors of Collins. The bank's claim exhausted all the equity Collins had in this property which could be subjected to his debts. By the nephew paying off that claim for his aunt, full consideration was paid for Collins' equity, and to a creditor who by virtue of its attachment then stood in a position of priority so far as the other creditors of Collins were concerned. Under such circumstances, such payment should be deemed equivalent to the restoration of the property; and that is all the grantee, could ever have been compelled to do. The payment of the nephew in this case purged whatever fraud in law there was in the conveyance. Therefore equity will allow Mrs. Collins to retain the property even though there are other creditors of her husband yet unsatisfied. The lower court having so held, its judgment is affirmed.
Whole court sitting. *Page 65 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2675999/ | Filed 5/28/14 In re E.R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.R., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E059996
Plaintiff and Respondent, (Super.Ct.No. J248085)
v. OPINION
V.V.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield,
Judge. Affirmed with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,
for Plaintiff and Respondent.
1
I
INTRODUCTION
V.V., the biological father of E.R., appeals from an order of the juvenile court
denying his Welfare and Institutions Code1 section 388 petition and terminating his
parental rights to E.R. who was born in February 2013. V.V. also asserts a violation of
the Indian Child Welfare Act of 1978 (ICWA)2 notice requirements.
The record demonstrates that V.V. dated mother briefly from April to June 2012.
In August or September 2012, V.V. knew mother was pregnant but he ceased having any
contact with her. In April or May 2013, he knew E.R. had been born. Nevertheless, V.V.
did not come forward to claim paternity until mid-June 2013.
We hold the juvenile court properly denied V.V.’s section 388 petition and
terminated parental rights. We remand, however, ordering the juvenile court to comply
with ICWA notice provisions. Otherwise, we affirm the judgment.
1 All further statutory references are to the Welfare and Institutions Code.
2 25 United States Code section 1901 et seq.
2
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention and Pretrial Proceedings
CFS3 filed an original dependency petition in February 2013. When E.R. was
born that month, both he and the mother tested positive for methamphetamine. The
petition alleged failure to protect, no provision for support, and abuse of a sibling.
(§ 300, subds. (b), (g), and (j).) Mother had two older children, ages two and four years
old, being placed for adoption. Additionally, the petition alleged that father’s identity
and whereabouts were unknown. Mother said father was a Marine named “James”—
whom she had been with “a couple of times.” Father was still unknown in March 2013.
A declaration of due diligence, filed March 27, 2013, stated that CFS could not locate
father.
At the contested jurisdiction and disposition hearing on March 27, 2013, mother
denied any Indian ancestry and the court ruled ICWA did not apply. The court sustained
the dependency petition and denied mother reunification services. The court found that
“James” was an alleged father who was not entitled to reunification services. The court
set a section 366.26 hearing for July 25, 2013.
CFS filed a section 366.26 report in July 2013, recommending termination of
parental rights and adoption placement for E.R. CFS disclosed that V.V. had visited the
3 Children and Family Services, County of San Bernardino.
3
CFS office in June 2013 claiming possible paternity. V.V. said he had been dating
mother when she became pregnant but they had lost contact. He asked to have a DNA
test.
The infant E.R. was bonded with his foster parents—the prospective adoptive
parents—and developmentally on target although he displayed the effects of prenatal
drug exposure. The foster parents were a stable young married couple. The foster father
was employed on a Marine base where they lived in base housing.
V.V. appeared at the hearing on July 25, 2013, and informed the court that his
father and his uncles are registered members of the Soboba Indian tribe and his paternal
grandfather was one-quarter Cherokee. The hearing was continued for further
proceedings regarding paternity.
V.V. executed a statement regarding parentage requesting DNA testing. In the
paternity questionnaire, V.V. stated he was not married to mother. He had not
participated in paternity testing, he was not at the hospital when E.R. was born, and he
was not on the birth certificate. He was not paying child support. In June 2013, he was
told he was the child’s father and he believed he was the father. The court ordered
paternity testing.
In September 2005, CFS filed an ICWA declaration of due diligence, in which it
recorded the response of the Soboba tribe of Luiseno Indians that the child was not
enrolled or eligible for enrollment and the tribe would not intervene. No mention was
made of notice to a Cherokee tribe.
4
The DNA test identified V.V. as the biological father. CFS filed an addendum
report stating V.V. is “merely [the] biological father; it is not in [E.R.’s] best interest to
provide services.” CFS recited the history of V.V. coming to its office in June 2013,
claiming to be the father and asking for a DNA test. On April 29, 2013, however, there
was a Facebook posting, comparing photos of both V.V. and E.R. when they were born.
During visitations and at court hearings, V.V. had little interaction with E.R. CFS
believed that V.V. wanted to help mother but did not seek to have relationship with E.R.
V.V. had been arrested for being under the influence and disorderly conduct. He had a
criminal history of five theft and burglary offenses in 2012 and 2013.
E.R. had sensory and digestive problems stemming from his prenatal drug
exposure. The foster parents were strongly committed to caring for E.R. and his special
needs.
At the hearing on September 5, 2013, the court found V.V. was the biological
father but denied visitation.
B. Section 388 Petition
On September 18, 2013, V.V. filed a section 388 petition asking the court to order
reunification services. The petition explained that V.V. had not known he was the father
until June 2, 2013, when mother told V.V.’s mother he was the father. Mother had
warned V.V. that he could only visit E.R. under restrictions against holding or touching
the baby. V.V. disclaimed any present relationship with mother. It was V.V.’s sister
who had posted the baby pictures of E.R. and V.V. on Facebook. V.V. wanted to unify
5
with E.R. with his own mother’s help until he was actually capable of acting in a parental
role.
CFS responded that V.V. must have suspected he was the father earlier and
certainly after he had notice from the Facebook posting of the baby photos. CFS
described V.V. as an unfit parent because of his substance abuse, his unstable housing,
and his criminal activity. CFS denied there was any attachment or bond between father
and son.
C. The Contested Section 366.26 Hearing
At the hearing on November 7, 2013, V.V. testified he had a sexual relationship
with mother from April to June 2012 and they did not use birth control. In August or
September 2012, when mother was about three months pregnant, she said V.V. might or
might not be the father but then they stopped talking to one another. In April or May
2013, V.V. saw the baby pictures of E.R. and V.V. his sister had posted on Facebook.
Although V.V. thought he was the father, he did not try to contact mother. He did not see
mother again until June 2013 after V.V.’s mother said he was probably the father and he
found out E.R. was in foster care. V.V. immediately visited the CFS office to see what
could be done to recover E.R.
V.V. was subject to a warrant for failure to appear in October 2012. He was
arrested on May 26, 2013, for being drunk in public and disturbing the peace. He was not
employed. He was not prepared to assume custody of E.R. because he was living in a
group home, receiving counseling, and trying to find a job.
6
The court denied the section 388 petition, finding V.V. could not show he could
assume responsibility for E.R. and he did not qualify as a presumed father. The court
also found it was in the best interests of the child to be adopted and the court terminated
parental rights.
III
DENIAL OF THE SECTION 388 PETITION
AND TERMINATION OF PARENTAL RIGHTS
V.V. argues the juvenile court erred by denying the section 388 petition based on
its finding that he was not a presumed father. V.V. protests that the court violated his
rights to due process and equal protection by denying him the rights of a presumed father
pursuant to Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 849. Further, the juvenile court
had to conclude that V.V., as a “quasi-presumed” father, was an unfit parent before
terminating his parental rights and the court violated his rights to due process by failing
to do so.
A biological father is a “natural” father. A man who holds out a child as his own
and receives the child into his home is a “presumed” father even if he is not a natural
father. (In re Jerry P. (2002) 95 Cal. App. 4th 793, 801-802.) Under the dependency
statutes, presumed fathers have far greater rights than biological fathers. (In re Zacharia
D. (1993) 6 Cal. 4th 435, 448-449 (Zacharia D.).) A presumed father is entitled to
reunification services under section 361.5 and custody of his child. (Zacharia D., at p.
451.) The presumed father must prove his status by a preponderance of the evidence.
7
(Glen C. v. Superior Court (2000) 78 Cal. App. 4th 570, 585-586.) We employ a mixed
standard of review based on substantial evidence and independent judgment. (Adoption
of Myah M. (2011) 201 Cal. App. 4th 1518, 1539.)
Under Family Code section 7611, “a man who has neither legally married nor
attempted to legally marry the mother of his child cannot become a presumed father
unless he both ‘receives the child into his home and openly holds out the child as his
natural child.’ [Citation.]” (Adoption of Michael H. (1995) 10 Cal. 4th 1043, 1051, italics
omitted, citing Fam. Code, § 7611, subd. (d).) In order to demonstrate a full commitment
to his parental responsibilities, the biological father must immediately attempt to assume
full parental responsibilities as soon as he reasonably knows of the pregnancy. (In re
Julia U. (1998) 64 Cal. App. 4th 532, 541; Adoption of Kelsey S., supra, 1 Cal.4th at pp.
848-849.)
The Supreme Court in Kelsey S. held that Civil Code “section 7004, subdivision
(a) and the related statutory scheme violates the federal constitutional guarantees of equal
protection and due process for unwed fathers to the extent that the statutes allow a mother
unilaterally to preclude her child’s biological father from becoming a presumed father
and thereby allowing the state to terminate his parental rights on nothing more than a
showing of the child’s best interest. If an unwed father promptly comes forward and
demonstrates a full commitment to his parental responsibilities--emotional, financial, and
otherwise--his federal constitutional right to due process prohibits the termination of his
parental relationship absent a showing of his unfitness as a parent.” (Adoption of Kelsey
8
S., supra, 1 Cal.4th at p. 849, italics omitted.) Hence, a man may attain presumed father
status even if the mother thwarts his efforts if he at least initiates prompt legal action to
seek custody of the child. (Id. at pp. 825, 849; see also Zacharia D., supra, 6 Cal.4th at
p. 450, fn. 19.)
This case presents a different circumstance than Kelsey S. given the belated stage
of the dependency process in which the presumed father issue was raised: “‘[U]p until
the time the section 366.26 hearing is set, the parent’s interest in reunification is given
precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once
reunification services are ordered terminated, the focus shifts to the needs of the child for
permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove
changed circumstances pursuant to section 388 to revive the reunification issue. Section
388 provides the “escape mechanism” that . . . must be built into the process to allow the
court to consider new information.’ [Citation.]” (See Zacharia D., supra, 6 Cal.4th at p.
447.)
“Zacharia D. held that biological fathers who appear after the end of any
reunification period must file a section 388 petition to revive the issue of reunification
services. [Citation.]” (In re Vincent M. (2008) 161 Cal. App. 4th 943, 956.) The court
noted that it was not presented with the issue of a father who comes forward “‘early in
the dependency process, and who displays a commitment consistent with the standard set
forth in Kelsey S.’” but is thwarted from achieving presumed father status by the mother.
(Id. at p. 958.)
9
Vincent M. followed Zacharia D. and also held that a biological father’s only
remedy to assert paternity and receive reunification services after the expiration of the
reunification period is to file a section 388 petition to modify. (In re Vincent M., supra,
161 Cal.App.4th at pp. 954-955.) Vincent M. expressly stated, “The section 388 petition
will not be granted unless there are changed circumstances or new evidence
demonstrating it is in the child’s best interest to grant reunification services or custody.”
(Id. at p. 955; In re Zachary G. (1999) 77 Cal. App. 4th 799, 806.) “The grant or denial of
a section 388 petition is committed to the sound discretion of the trial court and will not
be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Shirley
K. (2006) 140 Cal. App. 4th 65, 71.)
The juvenile court did not abuse its discretion by refusing to find that V.V. was the
presumed father. V.V. had unprotected sex with mother and did not try to determine
whether this had resulted in her pregnancy. V.V. waited until four months after E.R. was
born before making a request for custody. There is no evidence that V.V.’s living
situation, his ability to care for E.R. or his background would promote the best interests
of the child. Nothing in the record supports that V.V. should be granted Kelsey S. status.
(In re Baby Boy V. (2006) 140 Cal. App. 4th 1108, 1117.) The juvenile court did not
abuse its discretion by concluding that removing E.R. from his loving foster family was
not in his best interests.
V.V. further contends that the juvenile court could not terminate his parental rights
at the section 366.26 hearing because his rights could not be terminated unless there was
10
a finding that he was an unfit parent and his rights to due process were violated. After
denying the section 388 petition and concluding V.V. was not entitled to presumed father
status, V.V. was a mere biological father. A mere biological father’s parental rights may
be terminated in the absence of an unfitness finding, without violating due process.
“‘[P]arental rights may be terminated based solely upon the child’s best interest and
without any requirement for a finding of detriment or unfitness . . . .’ [Citations.]” (In re
Jason J. (2009) 175 Cal. App. 4th 922, 933-934.) There was no due process violation.
IV
ICWA NOTICE
Respondent concedes that the social worker in this case neglected to send ICWA
notice to the Cherokee tribe and omitted to include the name of V.V.’s paternal uncle in
the notice given to the Soboba tribe. CFS had a duty to give such full and complete
notice as information allows. (In re S.M. (2004) 118 Cal. App. 4th 1108, 1116; In re Louis
S. (2004) 117 Cal. App. 4th 622, 631.) Therefore, we agree with respondent’s suggestion
that the case be remanded to juvenile court to correct the ICWA notice.
11
V
DISPOSITION
We remand, ordering the juvenile court to comply with ICWA notice provisions.
Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
12 | 01-03-2023 | 05-28-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2987489/ | March 14, 2013
JUDGMENT
The Fourteenth Court of Appeals
BONNIE ESPARZA, Appellant
NO. 14-13-00136-CV V.
DOW CORNING CORPORATION, Appellee
________________________________
Today the Court heard appellant's motion to dismiss the appeal from the
order signed by the court below on January 29, 2013. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellant, Bonnie Esparza.
We further order that mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1107117/ | 981 So. 2d 1184 (2006)
LYSLE JOHN FLEMING
v.
REGINA DIANE FLEMING.
No. 2050199.
Supreme Court of Alabama.
February 2, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Dismissed on motion of appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/131539/ | 540 U.S. 831
TUCKERv.CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL.
No. 02-10584.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3810918/ | Fraus est celare fraudem. I concur, not upon the law of bailment as expressed in the opinion of the Vice Chief Justice, but by reason of the law applicable to conspirators and embezzlers who defraud. The cause at bar involves the banks of Garber and Enid and plaintiffs. The defendants were joint tort-feasors, thus they were jointly and severally liable for the entire loss resulting from their unlawful enterprise.
The instructions given by the trial court were more favorable to defendant than required under the issues. These issues were sustained by uncontradicted proof.
But, under the law of bailment, when the Enid bank, as gratuitous bailee, defrauded the plaintiffs in one instance, it became liable for the sum total of all loss connected with the bailments which from time to time occurred under the general plan and scheme, of which bailments were a small part.
The record supports the view that the entire transaction by which the loss adjudged, occurred, resulting from a well-defined and coextensive plan and scheme. It does not matter which actor in the plan and scheme was the motivating spirit. The fact remains that the entire amount of value fixed by the judgment was embezzled, and being so, the joint acts were mala in se. Party defendants were in pari delicto and should be, as they were, jointly and severally liable for the whole loss resulting to the plaintiffs. Falsus in uno, falsus in omnibus. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/483285/ | 811 F.2d 949
59 A.F.T.R.2d (RIA) 87-706, 87-1 USTC P 9206
Hans RASMUSSEN, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant.
No. 86-3471.
United States Court of Appeals,Fifth Circuit.
March 10, 1987.
Raymond W. Hepper, Steven Shapiro, Chief, Civil Trial Section, Southern Region, Justice Dept., Tax Div., William D.M. Holmes, Tax Div., U.S. Dept. of Justice, Michael L. Paup, Chief, Appellate Sec., Roger M. Olsen, Asst. Atty. Gen., Jonathan S. Cohen, Washington, D.C., for defendant-appellant.
Herman C. Hoffmann, Jr., Hurley & Hoffman, New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, GEE, and REAVLEY, Circuit Judges.
THORNBERRY, Circuit Judge:
1
The United States appeals the district court's judgment in favor of taxpayer Hans Rasmussen on Rasmussen's claim for refund of overpaid federal income tax. We agree with the United States that Rasmussen did not satisfy the mitigation provisions of the Internal Revenue Code, and the statute of limitations therefore bars his claim.
2
On October 23, 1984, Hans Rasmussen, as sole shareholder and liquidator of Canal Marine Repairs, Inc. ("Canal"), filed this action to recover $84,235 in corporate income taxes paid by Canal for its taxable year ended April 30, 1978. Canal sold all its assets and adopted a plan of liquidation in May 1977, and received a certificate of liquidation from the State of Louisiana in December 1977. On July 10, 1978, Canal filed its federal income tax return for its taxable year ended April 30, 1978. On that return, it reported the sale of the assets and paid $84,504 in tax.
3
Rasmussen did not report any gain or loss from the liquidation of Canal on his individual return. As the result of an audit, the Internal Revenue Service ("Service") alleged that Rasmussen, individually, owed capital gains tax on Canal's liquidation because he had actually or constructively received the proceeds of the liquidation. In November 1981, Rasmussen consented to the adjustments to his tax liability and paid the additional individual income tax due.
4
On October 13, 1982, Rasmussen filed a claim for refund on behalf of Canal seeking to recover the corporate income tax paid on the sale of Canal's assets. Rasmussen argued that because the Service had determined that Canal had distributed the proceeds of the liquidation to him, I.R.C. Sec. 337 applied to the liquidation. Under I.R.C. Sec. 337, Canal did not owe tax on the liquidation and therefore, it overpaid its federal income tax for the taxable year ended April 30, 1978. The Service denied the claim because Rasmussen filed it more than three years after he had filed the return for Canal's taxable year ended April 30, 1978. See I.R.C. Sec. 6511(a)
5
On October 23, 1984, Rasmussen filed suit in the U.S. District Court to recover the tax that Canal paid on its liquidation. The complaint alleged that his claim for refund fell within the mitigation provisions of the Code. I.R.C. Secs. 1311-1314. The complaint also alleged that I.R.C. Sec. 337 applied to Canal's liquidation and that as a result, Canal had overpaid its corporate income tax.
6
The government moved to dismiss the complaint because Rasmussen's claim was not timely and therefore did not confer jurisdiction on the district court. The government contended that the mitigation provisions were inapplicable because Rasmussen did not satisfy the specific statutory requirements. The district court denied the government's motion to dismiss and held that I.R.C. Sec. 337 applied to the transaction.
7
No taxpayer may sue the United States for a refund of federal income taxes paid until "a claim for refund ... has been duly filed with the Secretary, according to the provisions of law in that regard...." I.R.C. Sec. 7422(a). Generally a taxpayer must file a claim for refund within three years from the time the return was filed or two years from the time the tax was paid, whichever is later. I.R.C. Sec. 6511(a). Rasmussen stipulated that he filed his claim for refund more than three years after he filed the return and paid the tax for Canal's taxable year ended April 30, 1978.
8
In certain narrowly tailored situations the mitigation provisions of the Internal Revenue Code provide relief from the application of the general three-year statute of limitations:
9
(a) GENERAL RULE.--If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314.
10
I.R.C. Sec. 1311. The government argues that Sec. 1311 does not apply to Rasmussen's claim for three reasons: (1) Rasmussen never received a "determination" within the meaning of I.R.C. Sec. 1313; (2) Rasmussen's claim satisfied none of the "circumstances of adjustment" as defined in I.R.C. Sec. 1312; and (3) the Service did not maintain an inconsistent position within the meaning of I.R.C. Sec. 1311(b). We agree with the government that Rasmussen never received a "determination" within the meaning of I.R.C. Sec. 1313.
11
Section 1313 defines the word "determination" to include four things:
12
(1) a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final;
13
(2) a closing agreement made under section 7121;
14
(3) a final disposition by the Secretary of a claim for refund....
15
(4) under regulations prescribed by the Secretary, an agreement for purposes of this part, signed by the Secretary and by a person, relating to the liability of such person (or the person for whom he acts) in respect of a tax under this subtitle for any taxable period.
16
I.R.C. Sec. 1313(a). Rasmussen argues that, "Form 870, evidencing [his] personal tax liability, and his subsequent payment of the deficiency, constituted a final determination by the Commissioner. In making this final determination as to Rasmussen's personal tax liability based on the corporation's liquidation status, the Government made a final determination respecting the corporation's tax liability as well." The district court accepted Rasmussen's argument.
17
Both Rasmussen and the district court ignore the statutory definition of "determination" in I.R.C. Sec. 1313. Rasmussen stipulated that there was neither a Tax Court decision, nor a judgment of any other court, nor a closing agreement, nor a final disposition of a refund claim, nor an agreement between Rasmussen and the Secretary as defined in Sec. 1313(a)(4).
18
Rasmussen cites cases for the proposition that the mitigation provisions are remedial in nature and should be construed to do equity. The government cites cases for the proposition that the provisions should be strictly construed. In any case,
19
[t]his Circuit has held that when applying the mitigation statutes the facts of each case must fit "into the concrete, detailed requirements set out in the statute." United States v. Rachal, 312 F.2d 376, 383 (5th Cir.1962). Moreover, taxpayer has the burden of proving that the mitigation statutes apply. United States v. Rushlight, 291 F.2d 508, 514 (9th Cir.1961).
20
Cocchiara v. United States, 779 F.2d 1108, 1112 (5th Cir.1986). Because neither the district court nor Rasmussen can fit the facts of this case into the statutory definition of "determination," we reverse the district court's judgment in favor of Rasmussen and remand the case with instructions to dismiss. We do not reach the government's alternative arguments because the lack of a "determination" disposes of the case.
21
REVERSED AND REMANDED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3830552/ | W.A. Jones was convicted of the crime of depositing crude oil in streams, in the county court of Carter county, and his punishment fixed at a fine of $100.
This appeal has been pending in this court since the 29th day of December, 1920. The cause was submitted on May 30, 1922, at which time no appearance was made by any counsel representing plaintiff in error, but plaintiff in error was allowed 10 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:
"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment."
An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892800/ | NO. 07-04-0306-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 8, 2005
______________________________
CAROL ANN LYON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242NC DISTRICT COURT OF HALE COUNTY;
NO. B13422-9906; HONORABLE ED SELF, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Upon receiving her plea of true and hearing evidence that appellant Carol Ann Lyon had violated the terms of community supervision for her conviction for possession of a controlled substance, the trial court revoked community supervision and sentenced her to five years confinement and a $500 fine.
(footnote: 1) In presenting this appeal, counsel has filed an
Anders
(footnote: 2) brief in support of a motion to withdraw. We grant counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).
Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of her right to review the record and file a
pro se
brief if she desired to do so. Appellant did not file a
response. Neither did the State favor us with a brief.
By the
Anders
brief, counsel concludes no reversible error is presented. We agree. When reviewing an order revoking community supervision, the sole question before this Court is whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984);
Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). In a revocation proceeding the State must prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion to revoke.
Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). If the State fails to meet its burden, the trial court abuses its discretion in revoking community supervision.
Cardona
, 665 S.W.2d at 494.
A plea of true standing alone is sufficient to support the trial court’s revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).
The State filed a motion to revoke appellant’s community supervision alleging numerous violations of the conditions thereof. At the hearing on the motion, after being properly admonished, appellant plead true and the court found her plea was freely, voluntarily, knowingly, and intelligently made. Additionally, appellant’s community supervision officer testified of violations of the conditions of community supervision. We conclude the trial court did not abuse its discretion in revoking community supervision and imposing a five-year sentence and a $500 fine.
We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal.
See
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
FOOTNOTES
1:Appellant had been granted deferred adjudication for two years in 1999, but was adjudicated guilty in 2000 and sentenced to five years confinement and a $500 fine, suspended for five years.
2:Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3237878/ | After judgment and verdict for defendant, the court, on motion of the plaintiff, awarded a new trial, and the defendant has appealed.
The case went to the jury on the fifth count of the complaint, ascribing the plaintiff's injury and damage to the negligence of the defendant's servant or agent in the operation of a truck in "negligently causing or allowing said truck to run into, upon, against or over said embankment or ditch, or to overturn, or plaintiff to be knocked, thrown or caused to fall from said truck"; and defendant's plea of the general issue, in short by consent, etc.
Under the evidence, the issue of negligence, and contributory negligence as well, was for the jury.
Among other special charges given on defendant's request was charge 34: "The court charges you that if you are reasonably satisfied from all the evidence in this case that the plaintiff, at the time and on the occasion named in the complaint, failed to exercise the care and prudence that would have been exercised by an ordinarily prudent man similarly situated in preventing himself from falling out of or frombeing thrown out of the truck named in the complaint, then you would not be authorized to return a verdict against the defendants under counts five and seven wherein simple negligence is charged." (Italics supplied.)
This charge assumes that negligence hypothesized in the charge proximately contributed to plaintiff's injury, and was invasive of the province of the jury.
The case of Gillespie v. Woodward Iron Co., 209 Ala. 458,96 So. 595, cited as justifying the omission from the charge of the thought that the negligence hypothesized must have "proximately contributed" to plaintiff's hurt, was an action for damages resulting from a nuisance, not involving a question of negligence, and is not pertinent to the question presented here. *Page 24
The motion for new trial contained seventy different grounds, but we deem the foregoing sufficient to justify the ruling of the trial court, and deem it unnecessary to treat the case further.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892802/ | NO. 07-04-0071-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 8, 2005
______________________________
BRIAN EDWARD LYNCH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 47,323-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following his plea of not guilty, appellant Brian Edward Lynch was convicted by a
jury of injury to a child and sentenced to 60 years confinement and a $10,000 fine.
Presenting two points of error, appellant contends (1) he was denied a fair and impartial
trial because the trial court permitted the State to introduce into evidence before a jury
during the punishment hearing a misdemeanor conviction without prior identification of
same, and (2) trial counsel was ineffective for failing to make a timely objection to the
introduction of the misdemeanor conviction. We affirm.
Appellant discharged a shotgun at his 14 year-old girlfriend following an argument.
One of her hands was severely injured and had to be cut off and she also sustained severe
injuries to her mouth and chin. Appellant does not challenge the sufficiency of the evidence
to support his conviction; rather, he complains of admission of a misdemeanor conviction
during the punishment phase and trial counsel's failure to object to its admission.
During the punishment hearing, the State, defense counsel, and the trial court
discussed the State's intent to introduce juvenile adjudications and extraneous conduct
involving the use of a firearm. Defense counsel objected on the basis of Rules 403 and
404 of the Texas Rules of Evidence, which the trial court overruled. The court also ruled
that the juvenile adjudications were admissible per article 37.07, section 3 of the Texas
Code of Criminal Procedure. At the conclusion of the testimony, the State offered three
exhibits which were admitted after the trial court granted defense counsel a running
objection based on her earlier objection. Defense counsel also informed the court that she
had "agreed to stipulate that Mr. Lynch was indeed the same Brian Lynch as contained
within the adjudication." The court accepted the stipulation subject to and without waiving
counsel's prior objection based on Rules 403 and 404.
Appellant first contends he was denied a fair and impartial trial because the trial
court permitted the State to introduce into evidence during the punishment hearing a
misdemeanor conviction without prior identification of the same. We disagree. In order to
preserve a complaint for appellate review, a timely and specific objection must be made
and followed by an adverse ruling. Tex. R. App. P. 33.1(a); Martinez v. State, 91 S.W.3d
331, 335-56 (Tex.Cr.App. 2002). Defense counsel stipulated to appellant's identity for prior
convictions and her objection to admission of the prior offenses was based on Rules 403
and 404 of the Texas Rules of Evidence. As the State points out, no mention of the exhibit
for the misdemeanor conviction was even mentioned during closing argument. Further,
as raised in appellant's second point of error, trial counsel failed to object to the introduction
of the misdemeanor conviction. Thus, appellant's first point contention is not preserved for
review.
By his second point, appellant contends he was denied effective assistance of
counsel because trial counsel failed to make a timely objection to the introduction of a
misdemeanor conviction. We disagree.
A claim of ineffective assistance of counsel during the punishment phase is reviewed
under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). (1) Under Strickland, a defendant must establish that (1) counsel's
performance was deficient (i.e., fell below an objective standard of reasonableness), and
(2) there is a reasonable probability that but for counsel's deficient performance, the result
of the proceeding would have been different, a reasonable probability being a probability
sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110
(Tex.Cr.App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986).
In other words, appellant must demonstrate that the deficient performance prejudiced his
defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert.
denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995).
The adequacy of defense counsel's assistance is based upon the totality of the
representation rather than by isolated acts or omissions of trial counsel. Id. Although the
constitutional right to counsel ensures the right to reasonably effective counsel, it does not
guarantee errorless counsel whose competency or accuracy of representation is to be
judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also
Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Appellate review of trial
counsel's representation is highly deferential and presumes that counsel's conduct fell
within the wide range of reasonable and professional representation. Bone v. State, 77
S.W.3d 828, 833 (Tex.Cr.App. 2002); see also Mallett v. State, 65 S.W.3d 59, 63
(Tex.Cr.App. 2001).
Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9
S.W.3d 808, 813 (Tex.Cr.App. 1999). Generally, the record on direct appeal will not be
sufficient to show that counsel's conduct was so deficient as to meet the first prong of the
Strickland standard as the reasonableness of counsel's choices often involves facts that
do not appear in the record. See Mitchell, 68 S.W.2d at 642. Instead, an application for
a post-conviction writ of habeas corpus is usually the appropriate manner in which to raise
and develop claims based on ineffective assistance of counsel. Id.
Although a motion for new trial was filed, no hearing was held in which appellant
could have presented evidence as to why defense counsel did not object to the admission
of the misdemeanor conviction. The record neither demonstrates counsel's motive for not
objecting nor does it explain whether her silence was sound trial strategy. Thus, appellant
did not overcome the presumption that counsel's conduct fell within the wide range of
reasonable and professional representation. Moreover, the State was prepared to
introduce testimony to establish appellant's identity on the prior convictions. Point of error
two is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507,
516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its
decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2972011/ | File Name: 05a0221n.06
Filed: March 29, 2005NOT RECOMMENDED FO
R FULL-TEXT PUBLICATION
No. 03-2548
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
-vs- ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
CARL ROBERT KOPIETZ III, )
)
Defendant-Appellant. )
Before: NELSON and SUTTON, Circuit Judges; WELLS, District Judge*
WELLS, District Judge. Appellant Carl Robert Kopietz III contends that the
district court misapplied the federal sentencing guidelines in imposing his sentence. Mr.
Kopietz was sentenced prior to the United States Supreme Court’s decision in United
States v. Booker, 125 S. Ct. 738 (2005). Although the district court committed no clear
errors in calculating Mr. Kopietz’s guideline range, under the impact of Booker and
United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), it plainly erred by treating the
guidelines as mandatory. Accordingly, we vacate Mr. Kopietz’s sentence and remand
his case for resentencing.
*
The Honorable Lesley Wells, United States District Judge for the Northern District of Ohio,
sitting by designation.
I.
On June 26, 2003, Mr. Kopietz and a co-defendant were indicted on a single
count of conspiring to defraud the Internal Revenue Service (“IRS”) by obtaining and
aiding to obtain the payment of false and fictitious claims against the United States, in
violation of 18 U.S.C. §§ 286 and 287. On September 3, 2003, defendant entered a
plea of guilty to the indictment. Mr. Kopietz admitted that he had conspired with John
Edward Barnes to file false income tax returns. Because his co-conspirator was
incarcerated, Mr. Kopietz did all the ground work including ordering the tax forms from
the government, obtaining W-2 employer identification numbers, and collecting
addresses where the tax returns could be sent. He sent all that information to Mr.
Barnes who provided the names for the fraudulent taxpayers and prepared the
fraudulent tax returns. Although no funds were received from the IRS, Mr. Kopietz
admitted that had they been, he would have been in charge of collecting the tax refund
checks and cashing them.
The district court’s offense level calculations were adopted from the pre-sentence
report (PSR):1
Base Offense Level: [Section 2B1.1(a)] 6
Specific Offense Characteristic: [Section 2B1.1(b)(1)(D)--
Amount of Loss] +6
Specific Offense Characteristic: [Section 2B1.1(b)(8)(C)--
Sophisticated Means] +2
Adjusted Offense Level (Subtotal): 14
1
The 2003 version of the guidelines was used in calculating Mr. Kopietz’s offense level, as so all
references to the guidelines refer to that version.
2
Adjustment for Acceptance of Responsibility: [Section 3E1.1(a)] -2
Total Offense Level: 12
At sentencing, Mr. Kopietz objected to these calculations, arguing that: 1) the offense
conduct did not involve sophisticated means and thus the two-level enhancement was
improper; and, 2) he played a minor role in the offense and therefore should have
received a two-level reduction, pursuant to Section 3B1.2(b). Accordingly, Mr. Kopietz
asserted his total offense level should be 8.
The district court disagreed on both points, overruling Mr. Kopietz’s objections
and concluding that the appropriate guideline range was 27-33 months, based on a total
offense level of 12 and a criminal history of V. Mr. Kopietz was sentenced to a 27
month term of imprisonment, imposed consecutive to two state sentences.
II.
On appeal, Mr. Kopietz contends the district court erred in resolving his
objections to the guideline calculations. He argues the district court clearly erred in
finding that the crime involved “sophisticated means” and that he was more than a
minor participant in the offense.
A sentencing court’s determination that a downward adjustment for a defendant’s
role in the offense is not warranted is reviewed for clear error. United States v. Latouf,
132 F.3d 320, 332 (6th Cir. 1997). U.S.S.G. § 3B1.2 provides a downward adjustment
of two levels if the defendant was a minor participant in the offense. Such an
adjustment is “not appropriate in the absence of a finding that the defendant was
'substantially less culpable than the average participant' in the criminal enterprise." Id.
3
Moreover, a defendant whose participation “is indispensable to the carrying out of the
plan is not entitled to a role reduction.” Id. Under the Sentencing Guidelines, Mr.
Kopietz must prove the mitigating factors that justify a reduction by a preponderance of
the evidence. Id. This he has failed to do.
Although Mr. Kopietz did not prepare the fraudulent tax returns, he did everything
else. Because his co-conspirator was incarcerated, Mr. Kopietz obtained the necessary
information for the fraudulent returns and he would have been critical to the completion
of the crime in picking up the tax refunds and cashing them. Such roles in the offense
are not minor. Mr. Kopietz’s conduct was indispensable to carry out the criminal
enterprise. Under these circumstances, the district court did not clearly err in finding a
reduction for Mr. Kopietz’s role in the offense unjustified.
In Mr. Kopietz’s other argument on appeal, he asserts that the district court
clearly erred in finding that he and his co-defendant utilized “sophisticated means” in
carrying out the criminal conspiracy. Section 2B1.1(B)(8)(C) provides for a 2-level
enhancement if the “offense otherwise involved sophisticated means.” In this context,
sophisticated means refers to “especially complex or intricate offense conduct
pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1,
application note 7. The district court’s finding the Section 2B1.1(B)(8)(C) enhancement
applied is a factual finding subject to clear error review. United States v. Ables, 167
F.3d 1021, 1035 (6th Cir. 1999); United States v. Johnson, 344 F.3d 562, 565 (6th Cir.
2003). A factual finding is clearly erroneous where “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Ables, 167 F.3d at 1035.
4
Mr. Kopietz and his co-defendant discussed filing false income tax returns while
they were incarcerated together. Once Mr. Kopietz was released from prison he
ordered tax forms, obtained employer identification numbers from his wife and uncle’s
W-2s, and identified addresses where the false tax refunds could be sent and where Mr.
Kopietz could pick up the checks and cash them. Then he mailed this information to Mr.
Barnes in prison who then filed at least 15 fictitious and fraudulent tax returns. While
the information used was not itself unduly complex or difficult to obtain, the repetitive
nature of the necessary conduct along with defendants’ creation of numerous fictitious
identities precludes our finding “with definite and firm conviction” that the trial court erred
in applying the enhancement.
After Mr. Kopietz was sentenced and while his case was on appeal, the Supreme
Court decided United States v. Booker, 125 S. Ct. 738 (2005), which significantly
altered the landscape of federal sentencing. The Court concluded that the Sixth
Amendment, as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applied
with equal force to the federal sentencing guidelines such that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
755-56. To avoid Sixth Amendment concerns by what had been considered the
mandatory nature of the sentencing guidelines, the Supreme Court severed two
provisions of the Sentencing Reform Act of 1984, thereby rendering the guidelines
advisory. Id. at 756-57 and 764-65; see also United States v. Oliver, 397 F.3d 369,
379-80 (6th Cir. 2005). Post-Booker, a sentencing court must consider guideline
5
ranges, but may “tailor the sentence” in light of other sentencing factors set forth in 18
U.S.C. § 3553(a). Booker, 125 S. Ct. at 756-57. Booker’s holdings apply to all cases
now on direct review. Id. at 769.
Since Mr. Kopietz’s ultimate sentence of 27 months fell within the guideline range
of 21-27 months authorized by facts admitted by him in pleading guilty, the district
court’s factual findings and its increase of his guideline range by two levels did not
violate the Sixth Amendment.2 Nonetheless, it is clear that the district court sentenced
Mr. Kopietz on the assumption that the guidelines were mandatory.3 In taking his plea,
the Judge made clear that the Court was bound by the guidelines and that its discretion
was limited:
[A] new statute passed April 30th . . . appears to say that judges have very
little, if any, discretion in departing downward or maybe even upward from
the guideline range. So if that is still the law when you’re sentenced, and
who knows whether it will be or not, it’s under attack . . . I wouldn’t have
any discretion at all. I could just send a machine out here and tell you
what your sentence is because I don’t have anything to do with it. In fact,
I’m thinking about making a recording and filling in the blank line so I don’t
waste your time or mine. . . .
***
Congress is sentencing you and the U.S. Attorney is sentencing you, I’m
not, I don’t have that power anymore. . . .
***
Okay. I do have the power to chose [within a guideline range], I didn’t
mean to say I didn’t have any power, I have some . . .
(JA at 26).
2
This lower guideline range is based on a total offense level of 10, which is calculated by
excluding the two-level “sophisticated means” enhancement.
3
Mr. Kopietz does not challenge the district court’s finding regarding the amount of loss,
presumably because it was set forth in the indictment to which he pled.
6
Because Mr. Kopietz did not raise this issue below, the district court’s treatment
of the guidelines as mandatory is subject to review for plain error. Booker, 125 S. Ct. at
769 (explaining that reviewing courts should “apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and whether it fails the
‘plain-error’ test”). Under that standard of review, we may correct an error only if it is
plain under current law, if it affects the defendant’s substantial rights, and if it seriously
affects the fairness, integrity, or public reputation of the proceedings. United States v.
Schulte, 264 F.3d 656, 660 (6th Cir. 2001); Oliver, 397 F.3d at 378.
In light of Booker, application of the sentencing guidelines as mandatory was a
plain error. Barnett, 398 F.3d at 525-26; see also Johnson v. United States, 520 U.S.
461, 468 (holding that current law for the purpose of plain error review is the law as it
exists at the time of appellate consideration). The Sixth Circuit has taken the position in
Barnett that treating the guidelines as mandatory affects defendant’s substantial rights
because such an error is presumptively prejudicial. 398 F.3d at 526-29. Even though
27 months falls within the lower guideline range and one cannot know whether the
district court’s treatment of the guidelines as mandatory resulted in a more severe
sentence than if the guidelines had been treated as advisory, that is not determinative.
Instead of speculating as to the district court’s intentions in the pre-Booker
world, and trying to apply those intentions to predict the same court’s
sentence under the post-Booker scheme, we are convinced that the most
prudent course of action in this case is to presume prejudice given the
distinct possibility that the district court would have imposed a lower
sentence under the new post-Booker framework and the onerous burden
[the defendant] would face in attempting to establish that the sentencing
court would have imposed such a sentence.
7
Barnett, 398 F.3d at 529; see also United States v. Hines, 398 F.3d 713, 722 (6th Cir.
2005) (quoting United States v. Hughes, 396 F.3d 374, 381 n.1 (4th Cir. 2005)) (noting
that “an appellate court’s presumption that re-sentencing would result in the same, or a
substantially similar sentence, ‘would be tantamount to performing the sentencing
function ourselves.’”) Although this presumption of prejudice may be rebutted under
certain circumstances, Barnett, 398 F.3d at 529, there is no basis in the record in this
case for rebutting such a presumption.
The district court’s erroneous assumption regarding the guidelines and the
possibility that Mr. Kopietz might have received a lower sentence absent that
assumption implicate questions about the fairness and integrity of Mr. Kopietz’s
sentencing. Barnett, 398 F.3d at 529-30. Accordingly, we conclude that the district
court plainly erred in treating the guidelines as mandatory when sentencing Mr. Kopietz.
III.
Although the district court did not clearly err in its calculation of Mr. Kopietz’s
guideline range, it plainly erred in treating the guidelines as mandatory. Accordingly, his
sentence is vacated and this case is remanded to the District Court for resentencing.
8 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2806129/ | Filed 6/5/15
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
APPELLATE DIVISION
THE PEOPLE, Appellate Division No.: CA256406
Plaintiff and Respondent, Trial Court Case No.: M178993
Trial Court Location: Central Division
v. County Courthouse
FELIPE CAMPUZANO, OPINION
Defendant and Appellant.
Factual and Procedural Background
Subsequent to this court initially reversing the trial court on the basis that a mistake of law
could not support a reasonably suspicion under the Fourth Amendment, the United State Supreme
Court in Heien v. North Carolina (2014) __ U.S. __, 135 S. Ct. 530 held that an objectively
reasonable mistake of law can give rise to a reasonable suspicion under the Fourth Amendment. On
January 1, 2015, the Court of Appeal remanded this matter “with directions to vacate [this court’s]
opinion and judgment filed November 6, 2014, and to reconsider the matter in light of Heien v.
North Carolina (2014) __ U.S. __, [2014 WL 7010684].” On January 7, 2015, the Appellate
Division issued an Order requesting supplemental briefing, and thereafter set the matter for
rehearing on May 14, 2015. We now affirm the trial court.
On December 17, 2013, at approximately 9:30 p.m., the defendant was straddling his
bicycle and operating it at a “very slow, walking speed” alongside of a female companion who was
walking. The couple was traveling eastbound along the 3800 block of University Avenue near the
corner of 39th Street when they were first observed by police officers. Two officers, Adam George
and Patrick Kelly, contacted and detained the defendant just before the traffic light at the
intersection of 39th Street and University Avenue because he was “riding on a bicycle in a business
district” in violation of San Diego Municipal Code subdivision (a) of section 84.09.1
Officer Kelly told the defendant the reason for the stop; the defendant was agitated,
confrontational and belligerent. He did not follow the officer’s instructions and did not seem to
understand the reason for the stop. Officer George suspected the defendant was under the influence
of a controlled substance due to his behavior, inability to focus on the conversation, rapid speech,
and failure to understand what was going on.
The officer testified that he handcuffed defendant because he was uncooperative and
potentially armed. While the defendant was handcuffed, the officer attempted to speak with him.
The officer had the defendant get off the bike and sit on the bumper of the patrol car while a third
officer conducted a records check. Officer George told the defendant he was stopped for the
infraction, but the defendant thought he was being stopped for a probation check. Defendant denied
being on probation or parole, but admitted that he used narcotics several years before. By this time,
Officer George had observed several objective symptoms that indicated to him that the defendant
was under the influence of a controlled substance so he decided to conduct a drug evaluation.
These objective symptoms included body tremors, speaking rapidly, being disoriented, occasional
incoherence, and an inability to focus on the conversation.
1
San Diego Municipal Code section 84.09 (Bicycle Riding Restricted) provides:
(a) No person shall operate a bicycle upon any sidewalk fronting any commercial business
establishment unless official signs are posted authorizing such use.
(b) Any person riding or operating a bicycle on any sidewalk or right of way not open to public
vehicular traffic shall exercise due care and shall yield the right of way to pedestrians.
(c) No person shall operate a bicycle on any sidewalk or right of way not open to public vehicular
traffic at a speed greater than is reasonable and prudent having due regard for pedestrian traffic and in
no event at a speed which endangers the safety of persons or property. (Emphasis added.)
-2-
Officer George asked the defendant to perform tests as part of a field evaluation of his
condition; the defendant agreed and submitted to field tests. The officer took a measurement of the
defendant’s pulse rate approximately five to ten minutes after the first contact with the defendant.
Based upon the defendant’s performance on these tests, the officer believed the defendant was
under the influence of a stimulant and arrested him for violating Health and Safety Code section
11550.
The officers described the area as a business district with “no residential homes on that
block.” The officers more specifically testified that there were business establishments on the west
side of that same block and that it could “absolutely” be classified as a commercial area.
Photographs of businesses across the street and on the west side of the block were admitted into
evidence. There were no photographs showing any business(es) where the defendant was initially
seen or stopped.
After the testimony of witnesses was completed, the hearing was continued to permit the
parties to present additional information to the court on the nature of the businesses on the block in
question. At the subsequent hearing, the parties stipulated that the alleged bicycle offense occurred
in the area depicted in the photographic exhibits submitted to the court, that is, in front of the
former business known as Lee’s Auto Repair. The photographs show that the former Lee’s Auto
Repair is a corner lot next to the intersection of University Avenue and 39th Street, surrounded by a
chain link fence with weeds growing along the fence and in the asphalt of the parking lot of that
former business. The trial court made several references to “the former Lee’s Auto Repair” while
viewing the photographs. There was no testimony as to what type of lot was to the west-side of the
former Lee’s Auto Repair or how far down the block the next commercial business establishment
was located.
The trial court recognized that this was a case of first impression and wrestled with the
interpretation of San Diego Municipal Code section 84.09, subdivision (a). The trial court believed
the thrust of the statute was the policy to preclude bicycle riding along sidewalks where people
would be going in and out of stores. The trial court ultimately agreed with the People’s proposed
broad interpretation of the ordinance – that if there are any commercial establishments on the block,
-3-
the sidewalk of that entire block is covered by the ordinance. Based upon this expansive
interpretation of the statute and finding no prolonged detention, the trial court denied defendant’s
suppression motion.
Discussion
Statutory interpretation is subject to de novo review, and People v. Glaser (1995) 11 Cal.4th
354 explains the applicable standard of review relative to the trial court’s factual findings and the
reasonableness of a search or seizure:
[The appellate court] defer[s] to the trial court's factual findings,
express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, [an appellate court]
exercise[s] independent judgment. [Citations.]
(Id. at p. 362.)
This is a case of first impression as to the interpretation of San Diego Municipal Code
section 84.09, subdivision (a) and whether, based upon that interpretation, the stop and detention of
the defendant was reasonable. We are guided by the following rules of statutory construction:
(1) Courts look to the Legislature's intent to effectuate a statute's purpose.
(2) Courts give the words of a statute their usual and ordinary meaning.
(3) A statute's plain meaning controls the court's interpretation unless the statutory words
are ambiguous.
(4) If the words of a statute do not themselves indicate legislative intent, courts may resolve
ambiguities by examining the context and adopting a construction that harmonizes
the statute internally and with related statutes.
(5) A literal construction does not prevail if it is contrary to the apparent legislative intent.
(6) If a statute is amenable to two alternative interpretations, courts will follow the one that
leads to the more reasonable result.
(7) Courts may consider legislative history, statutory purpose, and public policy to construe
an ambiguous statute.
(8) If a statute defining a crime or punishment is susceptible of two reasonable
interpretations, courts will ordinarily adopt the interpretation more favorable to the
defendant.
(People v. Arias (2008) 45 Cal.4th 169, 171.)
The People propose an expansive reading of the statute consistent with the police officers’
interpretation of the ordinance -- that if there are any commercial establishments on the block, the
-4-
sidewalk of the entire block is covered by subdivision (a) of section 84.09. The defense proposes a
narrow interpretation and strict construction of the ordinance – that it applies only to the operation
of a bicycle upon the sidewalk directly in front of an existing commercial establishment.
In the instant matter, the police officers saw the defendant for the first time when he was
operating a bicycle on the sidewalk in front of the former Lee’s Auto Repair lot, close to the
intersection. The finding of the court that the photographs depict the former Lee’s Auto Repair
indicates that all parties were aware that it was no longer operating as a commercial business
establishment.
The intended purpose of subdivision (a) of section 84.09 is to preclude bicycle traffic on
sidewalks where people are going in and out of commercial businesses. Subdivision (a) of the
ordinance must be read in conjunction with subdivisions (b) and (c), which permit the riding or
operation of a bicycle on any sidewalk not open to vehicular traffic with due care and the yielding
of the right of way to pedestrians and at a speed that is no greater than is reasonable and prudent
having due regard for pedestrian traffic. The plain meaning of subdivision (a) is that bicycle
operation is precluded only on that portion of the sidewalk2 fronting3 commercial4 business5
establishments or places that are open for the trading of commodities and/or services.
If the City Council intended for subdivision (a) to apply to the entire block in a commercial
or business district, they could have readily and expressly included such language in the ordinance.6
Similarly, if the City Council intended that the ordinance apply to the entire block when there are
one or more businesses on the block, they could have so stated. However, the City Council chose
to limit the offense to operating a bicycle upon any portion of the sidewalk directly fronting a
2
Webster’s New World Dictionary defines “sidewalk” as “a path for pedestrians, usually paved, along the side
of a street.” This definition and common usage suggest the sidewalk generally extends the length of the block.
3
Webster’s New World Dictionary defines “front” as “…the part of something that faces forward or is
regarded as facing forward; most important side; forepart; the place or position directly before a person or thing; Archit.
A face of a building; esp., the face with the principal entrance.”
4
Webster’s New World Dictionary defines “commercial” as “…of or connected with commerce or trade; of or
having to do with stores, office buildings, etc. [commercial property].” The same dictionary defines commerce as “the
buying or selling or goods…; trade.”
5
Webster’s New World Dictionary defines “business” as “the buying and selling of commodities and services;
store, factory, etc.; …a commercial or industrial establishment; a store, factory, etc.; the trade or patronage of
customers.”
6
See, e.g., Vehicle Code section 22102 (U-turn in business district), which provides: “No person in a business
district shall make a U-turn, except at an intersection, or on a divided highway where an opening has been provided in
accordance with Section 21651.”
-5-
commercial business establishment. The ambiguity of subdivision (a) of section 84.09 does not
stem only from the definition of “commercial business establishment” but also from the meaning of
“sidewalk.” The words of the ordinance are clear and unambiguous, however, when read in context
along with subdivisions (b) and (c).
This narrow interpretation of the ordinance will serve to provide police officers with clear
guidance and direction and will appropriately limit police power. Officers should not have carte
blanche to stop anyone riding a bicycle on the sidewalk of any block with a commercial business
establishment, including mixed-use blocks where residences7 and business establishments co-exist
on the same block. Similarly, there is no need to generally prevent bicycle riding on sidewalks
where a few of the buildings or lots on the block have been boarded up or are closed to all business,
or in front of residences within a block that also contains commercial business establishments.
In the instant matter, the officers’ interpretation of San Diego Municipal Code section
84.09, subdivision (a) was a mistake of law. The focus of our inquiry is whether the officer’s
mistake of law was objectively reasonable under the facts of the case to support the reasonable
cause to stop and detain the defendant. (Heien v. North Carolina (2014) __ U.S. __ , 135 S. Ct.
530.) In this opinion of first impression on the interpretation of the municipal ordinance, we
discuss the expansive and narrow interpretations of the statute. There was no prior guidance for the
officers in interpreting the ordinance. Under the facts of this case, we find that it was objectively
reasonable for the officer to read the ordinance expansively8, giving rise to a reasonable cause to
stop and detain the defendant for a violation of San Diego Municipal Code section 84.09,
subdivision (a), an infraction. Further, there was probable cause to arrest him for that infraction.
7
Respondent acknowledged in oral argument that had the former Lee’s Auto Repair Shop been a residence,
there would have been no violation of the ordinance.
8
The trial court closely examined this ordinance and interpreted it to prohibit bicycle riding on a block that
includes any business. The fact that this court interprets the ordinance differently does not mean the trial court’s
conclusion was necessarily “wholly unreasonable” as argued by defendant. In fact, it highlights the sometimes difficult
task for lawyers and judges of determining the meaning of statutes by way of statutory construction. We do not, and
cannot, expect our police officers to be legal scholars. And as Justice Roberts stated in Heien, police officers may
indeed confront situations in the field “as to which the application of a statute is unclear – however clear it may later
become.” (Heien, supra, 135 S.Ct. at p. 539.) It is axiomatic that if an experienced judge, who is obviously legally
trained, found that defendant’s conduct at this location was prohibited by this ordinance, it was also reasonable for an
officer to so believe. However, moving forward, officers should have a clear understanding of the application of this
ordinance.
-6-
(See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354, 121 S. Ct. 1536; People v. McKay
(2002) 27 Cal. 4th 601, 607; People v. Gomez (2004) 117 Cal. App. 4th 531, 538-539.)
Under the totality of the circumstances, there was no prolonged detention because
immediately after the stop and detention for the infraction, the officer observed the defendant’s
objective symptoms of drug intoxication and had probable cause to arrest the defendant for being
under the influence of a controlled substance.
Conclusion
Ultimately, the stop, detention, arrest and search were lawful. The pre-trial Order of the
trial court denying the pretrial suppression motion is affirmed. This matter is remanded to the trial
court for further action consistent with this Opinion.
__________________________________
GALE E. KANESHIRO
Judge, Appellate Division
WELLS, P.J., concurring:
I concur.
______________________________
KERRY WELLS
Presiding Judge, Appellate Division
CAMPOS, J., concurring:
I concur.
______________________________
YVONNE E. CAMPOS
Judge, Appellate Division
-7-
San Diego Superior Court Trial Judge
Honorable Kenneth K. So
Attorney for Appellant Attorney for Respondent
Robert Ford, Deputy Public Defender Shelley A. Webb, Deputy City Attorney | 01-03-2023 | 06-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3445004/ | Appeal denied. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/818424/ | Slip Op. 06-72
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: GREGORY W. CARMAN, JUDGE
FORMER EMPLOYEES OF MERRILL
CORPORATION,
Plaintiffs,
v. Court No. 03-00662
THE UNITED STATES DEPARTMENT
OF LABOR,
Defendant.
ORDER
Upon consideration of Plaintiff’s letter dated April 14, 2006, advising the Court of a
change in Department of Labor policy, it is hereby
ORDERED that this case is remanded to the Department of Labor to determine what, if
any, affect its decision in Lands’ End, A Subsidiary of Sears Roebuck and Company, Business
Outfitters CAD Operations, Dodgeville, Wisconsin (“Lands’ End”), 71 Fed. Reg. 18357 (Dep’t
Labor Apr. 11, 2006) (notice of revised remand determination) has on Plaintiffs’ claim for Trade
Adjustment Assistance certification; and it is further
ORDERED that the Department of Labor will specifically determine whether Plaintiffs
produce an “intangible article” as contemplated in Lands’ End (see also, Former Employees of
Elec. Data Sys. Corp. v. United States Sec’y of Labor, Slip Op. 06-53, 2006 Ct. Intl. Trade
LEXIS 50 (CIT Apr. 17, 2006); and it is further
ORDERED that if the Department of Labor determines that Plaintiffs do not produce an
“intangible article” as contemplated in Lands’ End the Department of Labor will provide the
Court with a thorough and reasoned explanation for its denial; and it is further
ORDERED that the remand results shall be filed no later than July 17, 2006; and it is
further
ORDERED that Plaintiffs may file papers with the Court indicating whether they are
satisfied or dissatisfied with the remand results no later than August 7, 2006; and it is further
ORDERED that Defendant may respond to Plaintiffs’ comments no later than August
21, 2006.
SO ORDERED.
The Clerk of the Court is directed to forward copies of this Order to counsel for the
parties.
/s/ Gregory W. Carman
Gregory W. Carman
Judge
Dated: May 17, 2006.
New York, New York | 01-03-2023 | 02-02-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3445005/ | Affirming.
Appellant was a coal miner in the service of appellee, and was injured by a block of slate falling upon him in the mine. He brought this suit to recover for his injury, and on the trial of the case he recovered a verdict for $6,000. The coal company appealed to this court, urging a number of grounds for reversal. The judgment was reversed for an omission in one of the instructions and misconduct of the plaintiff's attorney in arguing the case to the jury. All other questions were reserved. The facts of the case are stated in that opinion. Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106 *Page 753 41 S.W.2d 661. On the return of the case to the circuit court, it was tried again, and resulted in a verdict for $500 in favor of the plaintiff. The plaintiff's motion for a new trial having been overruled, be appeals, urging the following grounds for reversal:
(1) The verdict is inadequate and should be set aside. In Rossi v. Jewell Jellico Coal Co., 157 Ky. 334, 163 S.W. 220,221, where the same objection was made, this court said:
"Section 341 of the Civil Code provides:
" 'A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence.'
"In construing this section it has been held not to apply to actual pecuniary damages resulting directly from a wrong, which are capable of being measured. This exception, however, is confined to special damages, such as physicians' bills, medical bills, lost time, etc., when properly pleaded and proved. In such cases, if the jury disregards the evidence and the law, and finds for the plaintiff a sum wholly insufficient to compensate him for the special damages actually alleged and proved, a new trial should be granted. Ray v. Jeffries, 86 Ky. 367, 5 S.W. 867, 9 Ky. Law Rep. 602; Taylor v. Howser, 12 Bush, 465; Jesse v. Shuck, 11 Ky. Law Rep. 463, 12 S.W. 304; Baries v. Louisville Electric Light Co., 118 Ky. 830, 80 S.W. 814, 85 S.W. 1186, 25 Ky. Law Rep. 2303, 27 Ky. Law Rep. 653. In the present case no items of special damage were alleged or proved. Plaintiff sued merely for pain and suffering and the permanent impairment of his power to earn money. These items constitute general damages (Cumberland Tel. Tel. Co. v. Overfield, 127 Ky. 548, 106 S.W. 242, 32 Ky. Law Rep. 421), and, not being susceptible of accurate measurement, it is for the jury to fix the amount. As to such damages, the section of the Code, supra, applies with full force. Baries v. Louisville Electric Light Co., supra; Schmidt v. Ky. River Mills, *Page 754 142 Ky. 80, 133 S.W. 1142. To same effect see Conder v. Ledford, 167 Ky. 137, 180 S.W. 77: Outland v. Dayer, 235 Ky. 492, 31 S.W.2d 725, and cases cited."
In this case no items of special damages were alleged in the petition. The petition merely set out the plaintiff's injury, his pain and suffering, and the permanent impairment of his power to earn money. The allegations of the petition are the same in substance as in the case above quoted, and under the well-settled rule the verdict cannot be disturbed on the ground that it is inadequate. In so holding we violate no constitutional right, state or federal, of appellant.
(2) When the case was called for trial, both parties accepted the jury without objection, but, after the verdict was returned, the plaintiff, among other grounds for a new trial, assigned that the proper method of getting the jury into the wheel had not been followed in this. The commissioners got the names from memory, and in fact nineteen out of thirty-six names were not on the assessor's book at all. Section 2247, Kentucky Statutes, among other things, provides:
"And if the name of a juror does not appear on the last returned assessor's book for the county, it shall be a ground for challenge for cause."
The rule is well settled that a challenge to a juror for cause must be made before the trial, The acceptance of the jury precludes the defendant from thereafter presenting a challenge for cause. This objection to the jury therefore came too late. The assessor's book is a public record. The names of the jury when drawn are also a public record, and, if a litigant wishes to complain, he must complain before the jury is accepted. It was also set out in affidavits and in the motion and grounds for a new trial that the judge had not drawn the jury in open court. But on this question affidavits were filed showing that the jury were regularly drawn in open court. And, however the fact may be, this objection, like the other, was waived by the acceptance of the jury without objection, and could not be presented by the plaintiff after an unsatisfactory verdict had been returned. Haggard v. Com., 79 Ky. 366; Eichman v. South Covington, etc., R. Co., 126 Ky. 519, 104 S.W. 316, 31 Ky. Law Rep. 880. *Page 755
(3) The plaintiff offered evidence tending to show that, after he was injured, he was put in charge of the mine doctor, and that the doctor neglected him and thereby caused him great suffering. But this was special damages that occurred after he was hurt, and according to the evidence continued for some weeks. This special damage should have been averred in the petition, and, not being averred, could not be sued for here. The evidence does not make it clear whether the doctor was employed by the coal company or by the employees. There was therefore no substantial error in this matter.
(4) The defendant testified before the jury as to his injuries and how he was affected thereby. He introduced several doctors who had examined him, and they testified as to his injuries and the probable effect on him; then the company put on several physicians who testified that they had examined the plaintiff, and they testified to the extent of his injuries. One of the doctors was then asked this question:
"Q. Are you willing to take this fellow here and have him lie on his stomach and put pressure on his back, here to the jury. (Defendant objects. Court sustained objection, plaintiff accepts. Witness excused.)"
It will be observed that there was no avowal as to what the examination would show if allowed, and no rule is better settled than that a new trial will not be granted for the refusal to admit testimony without an avowal of what the testimony would have shown. In addition to this, the plaintiff had not only testified as to his injuries, but had introduced several doctors who had examined him and the company had introduced several doctors who had examined him and before whom the plaintiff had exhibited his injuries. The court has some discretion in matters of this sort, and, in view of the amount of evidence that had been given on these subjects, clearly the discretion of the circuit judge here was not abused.
(5) At the conclusion of the evidence on both sides, the court gave the jury instructions 1 and 2 as directed by this court on the former appeal, but, at the conclusion of the argument by counsel for the plaintiff and defendant, the court of his own motion gave the jury instruction No. 2 1/2 in these words: *Page 756
"Although the jury may believe from the evidence that plaintiff was assigned to, or allowed to work at a place in defendant's mine, which under accepted methods of robbing coal, was regarded unsafe or improper, yet if you further believe from the evidence that independent of this, the plaintiff's digging and removal of coal from under the rock or slate which fell on him, was the only and sole cause of plaintiff's injury, then the law is for the defendant and you should so find."
Both sides objected and excepted to the instruction, and both declined to argue the case further, though given the opportunity to do so. It is insisted for the appellant that the instruction was erroneous and that the judgment should be reversed for this. But the jury did not find for the defendant as they were directed to do if they believed the facts to be as stated in the instruction. The plaintiff cannot complain here of the instruction when the jury, under the instruction, found for him. If the jury had found for the defendant under the instruction, a different question would be presented. St. Bernard Mining Co. v. Ashby, 164 Ky. 416, 175 S.W. 626; Morgan v. Bennett, 182 Ky. 499, 206 S.W. 767.
All the instructions must be read together, and this instruction, when read with the others, could not reasonably have misled the jury substantially to the prejudice of appellant.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4152668/ | Cite as 2017 Ark. App. 166
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-798
NATIONAL ASSOCIATION FOR Opinion Delivered: March 15, 2017
THE ADVANCEMENT OF
COLORED PEOPLE APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
APPELLANT [NO. 18CV-10-757]
V. HONORABLE VICTOR L. HILL,
JUDGE
HUBERT BASS, MEMBER AND
CHAIRMAN OF THE ELECTION
SUPERVISORY COMMITTEE OF
THE CRITTENDEN COUNTY AFFIRMED
BRANCH OF THE NAACP
APPELLEE
RAYMOND R. ABRAMSON, Judge
This case stems from a lengthy and contentious dispute between appellant, the
National Association for the Advancement of Colored People (“NAACP”), and the
Crittenden County Branch of the NAACP (“the Branch”), represented by appellee, Hubert
Bass. In 2010, Mr. Bass filed suit in the Crittenden County Circuit Court to resolve a
controversy over the election of Branch officers. The NAACP intervened and was
ultimately held in contempt for failing to obey court orders. As sanctions, the circuit court
directed the NAACP to pay the Branch $100,000, plus $20,000 in attorney’s fees, and
imposed a three-year “pre-clearance” period, during which the NAACP could take no
Cite as 2017 Ark. App. 166
action regarding the Branch without the court’s permission. The NAACP appeals the
contempt order. We affirm.
I. Background
On November 15, 2010, the Branch held an election to choose its local officers.
Prior to the election, the incumbent president, Willa Catha-Jones, advised the NAACP’s
national office that a group of people were trying to “seize” the Branch. Fearing a disruption
in the election process, the national office urged NAACP Arkansas State Conference
President Dale Charles to oversee the election. Mr. Charles traveled to West Memphis for
that purpose but was prevented from monitoring the election by Mr. Bass and others on the
Branch’s election committee. The election proceeded, and all incumbent officers were
defeated, including Willa Catha-Jones.
Despite the election results, Ms. Catha-Jones refused to relinquish her presidency.
The national NAACP apparently supported her stance in a December 2010 letter, which
stated that the election was void. This led Mr. Bass to file suit to validate the election results
and enjoin any interference with the new officers’ installation. Mr. Bass listed Ms. Catha-
Jones and the Branch as defendants but did not name the national NAACP as a party.
After a hearing, the circuit court issued a temporary injunction on February 17, 2011,
confirming the election results and stating that “the unilateral claim of a third party that the
election is void does not qualify to void the election.” The court then listed the roster of
newly elected officers, including the new Branch president, Mr. Shabaka Afrika. 1
1
The court also ordered outgoing president Catha-Jones to turn over the Branch’s
office key, meeting minutes, checkbook, and other items. Ms. Catha-Jones did not comply
2
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On March 9, 2011, the NAACP’s national office sent a letter to Mr. Afrika stating
that the election was “suspended”; that new elections had been scheduled; and that the
Branch’s former officers would “continue to serve.” The court learned of the letter and
entered an order on March 31, 2011, stating that persons “outside Crittenden County” were
attempting to overturn the court’s rulings in concert with Ms. Catha-Jones. The court
warned that those in league with Ms. Catha-Jones acted at their own peril and invited the
NAACP to come before the court to explain its actions.
The following day, April 1, 2011, the NAACP filed a motion to intervene in the
case. The motion was granted on April 12, 2011. In the interim the NAACP sent a letter
to Mr. Afrika on April 8, 2011, suspending his membership and accusing him of
misrepresenting himself as president of the Branch.
Months later, on October 13, 2011, the court entered an order strongly suggesting
that the NAACP resolve the case by recognizing the legitimacy of the 2010 election and
granting the Branch all rights and privileges enjoyed by a branch in good standing. The
court’s suggestion apparently fell on deaf ears because, on October 26, 2011, the NAACP’s
chief operating officer, Roger Vann, distributed a letter declaring that the national board of
directors had voted to suspend the Branch’s charter; that the Branch had “no officers”; and
that the Branch was “not in good standing.” The letter bore the salutation, “Dear NAACP
Member” and was purportedly sent to the Branch membership. The letter was also copied
to various state and national NAACP officials.
and was held in contempt on several occasions. Her contempt citations are not at issue in
this appeal.
3
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In response to the letter, Mr. Bass filed a motion for an ex parte injunction to prevent
the suspension of the Branch’s charter and Mr. Afrika’s membership. The court granted the
motion in a November 4, 2011 order. The order recited that the NAACP’s October 26,
2011 letter was in “direct and flagrant contravention of the court’s previous orders” and
constituted “an act of contempt” for which sanctions would be considered. The court
additionally stated:
To make it clear, just in case further clarification is required:
Neither the intervenor [the NAACP], its officers, agents, attorneys, or
employees, or anyone else acting on their behalf or in concert with them has
any authority to make any determinations regarding the Crittenden County
Branch of the NAACP, its status, the status or legitimacy of any of its members
or officers, or any other matter until this court, or a court with appellate
authority over this court, says otherwise.
The NAACP filed a motion to vacate the order, which the court denied on December 22,
2011. 2
Approximately eighteen months later, at an August 29, 2013 hearing, Mr. Bass’s
counsel asked the NAACP to issue a letter reinstating the Branch and its membership.
Counsel argued that the NAACP had continued to deny the Branch’s legitimacy, citing as
proof the letters suspending the Branch’s charter and Mr. Afrika’s membership as well as a
2012 incident in which Branch members were not allowed to vote at the state convention.
The NAACP declined to write a letter but stipulated in court that the Branch and Mr.
Afrika’s membership were “in good standing” and further asked that all parties be required
The December 22, 2011 order states that the matter came “before the court” at a
2
December 14, 2011 hearing. The circuit court’s docket sheet shows that a hearing was
scheduled for that date; however, the record before us contains no transcript of the
proceedings.
4
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to abide by the NAACP’s constitution and bylaws. The court stated that it would “take the
stipulation” and draft a proposed order. That order, which will be discussed in greater detail,
would not be entered until October 27, 2014.
In the intervening months, conflict between the NAACP and the Branch persisted.
In September 2013, the Branch was denied full participation at the state convention,
purportedly because it had failed to file year-end and quarterly reports, as required by
NAACP bylaws. Additionally, the NAACP sent letters to the Branch on November 21,
2013, and March 6, 2014, stating that the Branch was “revoked.” These letters also
requested a greater share of the Branch’s membership fees and stated that no future reports
would be processed until the matter was resolved.
Mr. Bass again sought help from the court and filed motions on August 28, 2014, for
contempt and an ex parte injunction. He also requested monetary compensation and fees as
the result of the NAACP’s contemptuous conduct. 3 The NAACP responded that the
Branch’s charter was not revoked and that the letters so stating were sent in error due to a
“computer system failure.” However, the NAACP insisted that the Branch’s inability to
participate in the state conventions was due to its own failure to file quarterly and year-end
reports in accordance with the bylaws.
Before the above matters could be heard, the court entered an order on October 27,
2014, memorializing the proceedings from the August 2013 hearing, held fourteen months
earlier. The court described the order as “final” and stated the following:
The parties were generally agreed that they should be bound by the Bylaws of the
organization, however, it appears that they nevertheless still evince an abiding distrust
3
Mr. Bass had filed a similar motion earlier in the case.
5
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of each other. The court is disinclined to retain jurisdiction of this matter into
perpetuity, and questions whether it has the authority to do so in any event. The
court reaffirms its earlier order that the contested branch election was properly held
and that the officers elected thereby held and hold their offices legitimately. The
court further orders that the branch office, its officers, and members be afforded the
rights and privileges of all county branches of the NAACP.
On August 7, 2015, the court held a hearing on Mr. Bass’s motions for contempt,
injunctive relief, and damages. At the hearing, Reverend Gill Ford of the NAACP testified
that the Branch was “still chartered” as “an active unit” of the NAACP but was
“noncompliant” because it had failed to file the required reports and assessments with the
national office. Reverend Ford also said that the letters sent by the national office in
November 2013 and March 2014, stating that the Branch was revoked, were the result of a
“glitch” in a “new system.” Dale Charles, the state NAACP president, testified that there
was a difference between a branch being in good standing and being compliant and that the
Branch was not compliant because it had failed to meet the requirements of the NAACP
bylaws. He said that if the Branch would simply follow the bylaws, it would be able to fully
participate in NAACP activities.
Branch President Shabaka Afrika testified that the Branch submitted its 2011 and
2012 assessments to the national office but transmitted nothing thereafter because the
November 2013 and March 2014 letters stated that the Branch had been revoked. Mr.
Afrika also said that the national office had retained the Branch’s money but did not
recognize the Branch’s membership applications. In fact, he said, the Branch had resorted
to issuing its own membership cards. Mr. Afrika further testified that the Branch was
damaged by the NAACP’s letter of October 26, 2011, which caused memberships to
6
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decrease, donations to dry up, and attendance at the annual fundraiser to decline. Mr. Afrika
asked for $100,000 plus attorney’s fees to compensate the Branch for the NAACP’s conduct.
Rubye Johnson, the Branch’s vice president, testified to the problems suffered by the
Branch as the result of the October 26, 2011 letter. She said that when she took office in
2010, the Branch had 287 members but now had fewer than sixty. Other Branch members
testified that, in recent conversations with Dale Charles, he stated that the Branch was not
in good standing.
On September 2, 2015, the circuit court entered the order that is now on appeal.
The court ruled that the NAACP’s “utter disdain” for court orders and its failure to
acknowledge the Branch constituted “persistent, deliberate, flagrant and willful contempt.”
As sanctions, the court ordered the NAACP to pay the Branch $100,000 plus $20,000 in
attorney’s fees, and to submit to a three-year preclearance period, during which it would
take no action regarding the Branch without prior court permission. The court also ordered
the NAACP to extend to the Branch every courtesy and amenity that was available to a
branch in good standing and compliance; to assist the Branch in addressing any deficiencies
in reporting; and to take no punitive actions against the Branch or restrict its participation
in the organization’s functions and activities. The NAACP filed a timely notice of appeal
from the contempt order.
II. Contempt
Our law divides contempt into two categories: civil and criminal. Balcom v. Crain,
2016 Ark. App. 313, 496 S.W.3d 405. Civil contempt may be compensatory in nature and
may impose damages for the injuries that a party suffers when the opposing party disobeys
7
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a court order. See Ransom v. JMC Leasing Specs., LLC, 2016 Ark. App. 509, 505 S.W.3d
737. The circuit court’s contempt ruling in this case compensated the Branch for the
NAACP’s noncompliance with court orders. The contempt ruling was therefore civil in
nature.
To establish civil contempt, there must be willful disobedience of a valid court order.
Balcom, supra. The order must be definite in its terms and clear about what duties it imposes.
Riddick v. Harris, 2016 Ark. App. 426, 501 S.W.3d 859. We will not reverse a finding of
civil contempt unless it is clearly against the preponderance of the evidence. Balcom, supra.
A finding of contempt is clearly against the preponderance of the evidence if, although there
is evidence to support it, the reviewing court on the entire evidence is left with a definite
and firm conviction that a mistake has been committed. Id. Issues of credibility in a contempt
proceeding are for the fact-finder. Id.
III. Violation of Court Orders
The NAACP argues that there is no evidence that it violated any court order
applicable to it. We review this argument with reference to three of the court’s orders: the
October 27, 2014 order; the November 4, 2011 order; and the February 17, 2011 order.
A. The October 27, 2014 Order
At the contempt hearing, Mr. Bass presented evidence that the NAACP had refused
to allow the Branch’s participation in the 2013 state convention; had issued the November
2013 and March 2014 letters stating that the Branch was revoked; and had issued the
October 2011 letter stating that the Branch was suspended and had no officers. These were
8
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the acts that Mr. Bass claimed constituted contempt and for which he sought redress.
However, these acts occurred before the October 27, 2014 order was entered.
Contempt is premised on disobedience of a valid judgment, order, or decree of a
court having jurisdiction. See Riddick, supra. Under Arkansas law, an order is not effective
until it is entered. Allen v. Allen, 99 Ark. App. 292, 259 S.W.3d 480. It therefore follows
that a person cannot be held in contempt of an order that had not yet been entered when
the alleged contumacious conduct occurred. See generally Ex parte Price, 741 S.W.2d 366
(Tex. 1987). The NAACP is therefore correct that the October 27, 2014 order was
applicable to prospective conduct and cannot support a finding of contempt for the conduct
that preceded its entry. 4
B. The November 4, 2011 Order
The November 4, 2011 order was entered shortly after the NAACP sent the October
26, 2011 letter, which suspended the Branch’s charter and stated that the Branch had no
officers. The order described the letter as “an act of contempt” and declared that the
NAACP had no authority to make “any determinations” regarding the Branch’s status
without court permission. Clearly, the NAACP’s subsequent conduct in 2012, 2013, and
2014, that called the Branch’s legitimacy into question, violated the November 4, 2011
order. And, we would not hesitate to uphold the circuit court’s contempt ruling on that
basis were it not for a procedural peculiarity.
4
The NAACP argues that the circuit court lacked jurisdiction to impose contempt
sanctions after the October 27, 2014 order was entered because the court designated the
order as a “final” order. However, a trial court retains jurisdiction to enforce its orders,
regardless of the nomenclature. See generally Albarran v. Liberty Health Care Mgmt., 2013 Ark.
App. 738, 431 S.W.3d 310.
9
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The November 4, 2011 order was entered in response to Mr. Bass’s motion for an
ex parte injunction. As the NAACP correctly points out, our rules of civil procedure
provide that a temporary restraining order issued without notice generally expires after
fourteen days. Ark. R. Civ. P. 65(b)(2) (2016). The NAACP therefore argues that it cannot
be held in contempt of an order that had long ago expired at the time of the conduct in
question.
While the NAACP’s position is logical on its face, there exists the possibility that the
November 4, 2011 order lost its ex parte character, given that the circuit court may have
held a hearing on this very matter after the order had been entered. See supra, note 2.
Nevertheless, because the record is not clear on this point, we will not explore that
possibility further but will instead proceed to the next order, which unquestionably supports
the circuit court’s finding of contempt.
C. The February 17, 2011 Order
Early in the case, on February 17, 2011, the circuit court entered a temporary
injunction following a hearing. The injunction confirmed the Branch’s election results. This
ruling was echoed in a March 31, 2011 order. However, after these orders had been entered,
the NAACP sent a letter on October 26, 2011, stating that the Branch’s charter was revoked
and that the branch had “no officers.” The NAACP also sent the 2013 and 2014 letters
stating that the Branch was revoked.
The NAACP argues in part that the 2013 and 2014 letters cannot support a finding
of willful contempt because they were sent in error. While there was testimony to that
effect, the credibility of that testimony was called into question by the fact that the letters
10
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were sent four months apart without the error having been corrected and by the fact that
the NAACP never clarified to the Branch or its membership that the letters had been sent
in error. Credibility determinations are the province of the circuit court. Balcom, supra.
The NAACP’s primary argument, however, is that it could not have been held in
contempt of the February 2011 order or any other order that was entered prior to its April
12, 2011 intervention. During oral argument, the NAACP modified its position by
acknowledging that it was “subject to” the earlier orders but that the orders were not broad
enough to be “directed to” the NAACP.
We disagree at the outset that the early orders in the case were not directed to the
NAACP. The February 2011 order stated that “the unilateral claim of a third party that the
election is void does not qualify to void the election,” a clear reference to the NAACP’s
December 2010 letter stating that the election was void. The March 2011 order expressly
mentioned the state and national NAACP and again referenced the national NAACP’s
attempts to void the election. It is therefore simply inaccurate to say that the orders were
not directed to the NAACP.
More importantly, the circuit court had the authority to hold the NAACP in
contempt of its early orders once the NAACP intervened in the case. Intervention is a
procedure by which a person, not originally a party to an action, is permitted to and does
become a party to the pending proceeding. Gravett v. McGowan, 318 Ark. 546, 886 S.W.2d
606 (1994). It has been recognized that an intervenor is treated as though he were an original
party and is subject to the court’s prior orders. See Estate of Lomastro v. Am. Family Ins. Grp.,
195 P.3d 339 (Nev. 2008). We further note, as a general proposition, that even nonparties
11
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may be held in contempt if they have notice of an injunctive order and may not flout a
court order with impunity. See Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440,
156 S.W.3d 228 (2004). Here, the NAACP availed itself of the intervention process and
became a party to the case, with all the rights and responsibilities attendant thereto. Having
done so, it was bound to obey all court orders, just as any other party.
For these reasons, we affirm the circuit court’s finding of contempt and thereby also
affirm the imposition of the $100,000 sanction. 5
IV. The Preclearance Period
As an additional sanction, the circuit court imposed a three-year preclearance period
during which the NAACP could take no action regarding the Branch without prior court
approval. Citing the Arkansas Activities Association v. Meyer, 304 Ark. 718, 805 S.W.2d 58
(1991), the NAACP argues that a court cannot review the actions of a voluntary association
absent fraud or other compelling reasons.
Given the lengthy history of this case, the difficulty of managing the parties’
interactions, and the NAACP’s persistent refusal to obey the court’s orders, the circuit court
determined that a period of oversight was necessary to resolve this case once and for all. We
cannot say that, in this extraordinary situation, the imposition of the preclearance period
was beyond the court’s authority.
V. Due Process
5
The amount of the sanction was not contested by the NAACP.
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The NAACP argues that it was deprived of due process because the circuit court
would not grant a continuance to allow it to call an additional witness at the contempt
hearing. We see no basis for reversal.
Initially, we observe that the NAACP’s extremely brief assignment of error on this
point contains no citation to authority or convincing argument. Our appellate courts will
not consider arguments that are unsupported by convincing argument or sufficient citation
to legal authority. Mann v. Pierce, 2016 Ark. 418, 505 S.W.3d 150.
Regardless, we will not reverse the denial of a motion for continuance absent an
abuse of discretion amounting to the denial of justice. Campbell v. Ark. Dep’t of Human
Servs., 2016 Ark. App. 146. Here, the NAACP had notice of the hearing and called its
witnesses to testify therein. At the close of the hearing, it could not sufficiently articulate
why an additional witness was needed. In these circumstances, there was no abuse of
discretion.
VI. Attorney’s Fees
The circuit court has the inherent power to award attorney’s fees in a contempt
proceeding. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427. Because we have affirmed
the contempt ruling in this case and do not otherwise see an abuse of discretion in the fee
award, it is affirmed.
Affirmed.
KLAPPENBACH and VAUGHT, JJ., agree.
Wright, Lindsey & Jennings, LLP, by: Troy A. Price; and Berliner Corcoran & Rowe LLP,
by: Melvin White, pro hac vice, for appellant.
Roy C. Lewellen, for appellee.
13 | 01-03-2023 | 03-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4268656/ | STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: White 5 Lot Subdivision } Docket No. 265-12-05 Vtec
(Appeal of White) }
}
Decision and Order on Cross-Motions for Summary Judgment
Appellant-Applicants Richard and Linda White appealed from a decision of the
Development Review Board (DRB) of the Town of Norwich denying their 2005 application
to create a five-lot subdivision of a 77.1-acre parcel of land. Appellant-Applicants are
represented by Paul S. Gillies, Esq.; the Town is represented by Frank H. Olmstead, Esq.;
and Interested Person Ann Berry represents herself. Appellant-Applicants and the Town
have moved for summary judgment. The following facts are undisputed unless otherwise
noted.
Appellant-Applicants Richard and Linda White own a 77.1-acre parcel of land
located in the Rural Residential zoning district northeasterly of the intersection of Chapel
Hill Road and Beaver Meadow Road. This parcel is the retained parcel of a two-lot
subdivision of an 80.69-acre parcel of land approved in 2003. They now seek approval to
divide it into five1 development lots.
In 2003, Appellant-Applicants received Planning Commission approval to subdivide
the original 80.69-acre parcel of land into two lots of approximately 3.59 acres and 77.1
acres in area (the “2003 Subdivision Decision”). The 77.1-acre lot is the lot now proposed
for further subdivision in the present application. The 2003 Subdivision Decision was not
1
An appeal of the DRB’s July 2006 decision not to make a density determination in
its decision on the merits of preliminary approval for a four-lot subdivision application for
the same parcel is the subject of Docket No. 175-7-06 Vtec, and is on inactive status pending
resolution of the present appeal.
1
appealed and therefore became final. 24 V.S.A. §4472(d). It may not be challenged, either
directly or indirectly. Id.
On November 28, 2005, the DRB denied Appellant-Applicants’ application to
subdivide the 77.1-acre lot into five lots on the sole ground that “the maximum number of
lots on the Property is four” based on the number of allowable lots remaining after the
smaller of the lots approved in the 2003 decision had been sold. In its 2005 decision, the
DRB did not make new findings regarding the appropriate density calculation for the 77.1-
acre parcel2 considered on its own. Rather, the DRB relied on the Planning Commission’s
calculation in the 2003 Subdivision Decision that the undivided 80.69-acre parcel had an
allowable density of five lots. The DRB reasoned that since the 80.69-acre parcel had
already been divided into two lots by Appellant-Applicants’ sale of a 3.59-acre lot from the
subdivision approved in 2003, the remaining retained lot had a maximum density of four
lots. This appeal followed.
Determinations of allowable density for subdivisions3 in Norwich are governed by
§3.2 of the Subdivision Regulations;4 within which §3.2(B) is applicable to land in the Rural
Residential district. Allowable density is based on the characteristics of the land, starting
with a nominal density of one unit per every two acres of “developable area,” and yielding
a total allowable density not less dense than one unit per every twenty acres of developable
2
In its November 28, 2005 Decision, the DRB also reconsidered and “overruled” its
earlier determination that the maximum allowable density for the 77.1-acre parcel was two
lots.
3
The regulations treat Planned Unit Developments (PUDs) and Planned Residential
Developments (PRDs) differently; Table 3.1 does not apply to PUDs and PRDs, although
Table 3.2 does apply.
4
The parties agree that pertinent sections of the Subdivision Regulations have not
changed since the 2003 Subdivision Decision.
2
area.
Thus, to determine whether any subdivision may be approved, it is necessary for the
DRB first to determine the amount of developable area within the parcel proposed for
subdivision, by reference to the methodology in Table 3.1. The calculation begins with the
portions of the parcel that are not “developable” at all, consisting of areas with slopes in
excess of 25%, areas in the 100-year floodplain, and areas of surface waters and Vermont
Class 1 and Class 2 wetlands; these areas must be deducted entirely from the total amount
of land in the parcel. After those areas are deducted, the developable area must be further
adjusted by deducting 50% of the area within two other categories: areas with slopes
between 15% and 25%, and areas within the setback buffers within 25 feet on either side of
surface waters and within 50 feet of wetlands.
After the total developable area in the parcel is calculated, then the adjustment
factors in Table 3.2 are applied to determine the allowable development density. The first
adjustment addresses the quality of the town road accessed by the parcel’s driveway or
development roadway, the second adjustment addresses the travel distance from the town
offices over that town road, and the third adjustment addresses the parcel’s proximity to
certain open lands or public lands (the Appalachian Trail Corridor and Norwich Fire
District Agreement lands).
Appellant-Applicants argue that the conclusion regarding maximum lot density for
the 77.1-acre parcel in the 2003 Subdivision Decision was mere dictum that should not bind
future subdivisions of the remaining 77.1-acre parcel, because the 2003 application had not
sought to further subdivide the 77.1-acre parcel. That is, Appellant-Applicants argue that
the 2003 determination of the maximum lot density for the parcel as a whole was not
necessary to the 2003 decision on the then-two-lot subdivision, citing cases analyzing
collateral estoppel and the preclusive effect of administrative decisions, e.g., Trickett v.
Ochs, 2003 VT 91, 176 Vt. 89, 94 (2003).
It is important to recognize that 24 V.S.A. §4472(d) holds municipal zoning litigation
3
to a higher standard of finality than does the general law of collateral estoppel in the
administrative context. A potential litigant’s “failure to appeal forecloses collateral attacks
on zoning decisions, even where the zoning body’s authority is challenged.” City of South
Burlington v. Dept. of Corrections, 171 Vt. 587, 591 (2000), and see cases cited therein. Also
see, e.g., In re: Sisters & Brothers Invest. Group, LLP, Docket No. 105-6-06 Vtec (Vt. Envtl.
Ct., Feb. 21, 2007), slip op. at 6 (“§4472 is broader than issue and claim preclusion”).
In any event, in order to decide whether to approve the two-lot subdivision in 2003,
the Planning Commission was in fact obligated to determine the entire parcel’s developable
area and its allowable density, for three reasons. First, §3.2(B)(2) required the Planning
Commission (now the DRB) to determine maximum density for all subdivisions, except as
provided in §3.2(D) for PUDs and PRDs. Second, if the 3.59-acre parcel had contained no
developable area at all, it could not have been approved. Most importantly, it was
necessary for the Planning Commission to determine the allowable density for the entire
parcel, in order to determine whether the 3.59-acre parcel was undersized, and, if so, to
determine how much remaining land would have to be reserved as open space, as required
by §3.2(B)(1).
In the 2003 Subdivision Decision, the Planning Commission calculated the
“allowable density” under §3.2(B) of the Subdivision Regulations for the 80.69-acre
property as five lots, based on the following measurements: “access from a paved road,
over 4.5 miles from Tracy Hall, 80.6 total acres, 9 acres over 25% slopes, 38.6 acres with 15%
to 25% slopes, and .4 acres buffer from surface waters.” (Emphasis added.) The 2003
Subdivision Decision also found that access to the 3.59-acre lot was “by an existing
driveway from Stagecoach Road, a private road off of Beaver Meadow Road,” and that
access to the remaining 77.1-acre lot “will be by a driveway also from Stagecoach Road,”5
5
As the Town also did not appeal the 2003 Subdivision Decision, it cannot now
claim that the subdivision access is in fact via Chapel Hill Road, unless Appellant-
Applicants’ present subdivision proposal shows a change in the driveway configuration
4
which “will need to be widened to meet Norwich Private Highway specifications.”
Applying the methodology in §3.2(B) to the facts found by the Planning Commission
in 2003, the 2003 Subdivision Decision correctly calculated6 the number of lots for the 80.6-
acre parcel as five lots, each having a minimum size of ten acres.
The Subdivision Regulations provide for the approval of an undersized lot,
§3.2(B)(1), but, under that section, in the event the proposed lot size is less than that
calculated according to the maximum density, “the balance of the land” required to make
up the minimum lot size “shall be reserved as open space.” This open space land may be
held in common or remain with another lot. Thus, implicit in the 2003 Subdivision
with new driveways to Chapel Hill Road. The parties have not supplied the Court with
a subdivision plan in connection with the present motions.
6
The first step is to determine the developable area of the original 80.6-acre parcel.
Of the 80.6 acres, the 9 acres with slopes in excess of 25% must be excluded entirely, leaving
71.6 acres of developable area. Of those 71.6 acres, a further reduction must be taken of
50% of the 38.6 acres with slopes between 15% and 25%, leaving 52.3 acres of developable
area. Of those 52.3 acres, a further reduction must be taken of 50% of the 0.4 acres in the
setback or buffer area from surface waters, leaving 52.1 acres of developable area. The
developable area of the parcel could have been subdivided into twenty-five two-acre lots
if none of the Table 3.2 adjustments were necessary.
The next step is to apply the adjustments from Table 3.2 to the two-acre lot size, to
calculate the maximum density. The 2003 Subdivision Decision determined that access to
both lots was via the proposed driveway or development access road to Beaver Meadow
Road, which the parties agree is a “paved Class 2 Road,”so that no access adjustment is
necessary. Travel distance from the Town Office to the intersection of Stagecoach Road
with Beaver Meadow Road is 4.8 miles, within the range of “4.5 to 5.5 miles” for which the
density adjustment factor is 2.5, making the minimum lot size five acres (two acres x 2.5).
(In any event, whether travel distance is measured from the Town Office to the intersection
of Stagecoach Road with Beaver Meadow Road or to the parcel’s road frontage on Chapel
Hill Road (5.4 miles), the travel distance falls within the range of “4.5 to 5.5 miles.”) The
parcel also shares a boundary with Norwich Fire District Agreement Lands, for which the
density adjustment factor is 2, making the minimum lot size ten acres (five acres x 2). The
complete calculation results in a maximum allowable density of five ten-acre lots,
calculated by dividing the 52.1 acres of developable area by the ten-acre adjusted lot size.
5
Decision’s approval of the creation of a 3.59-acre lot and a 77.1-acre lot when the minimum
lot size was ten acres, was the determination that the remaining 6.41 acres of the ten-acre
lot size attributable to the undersized lot is required to remain as open space within the
77.1-acre retained lot.
Appellant-Applicants have not provided a plan for the present proposed
subdivision that would show which 6.41 acres of the 77.1-acre lot will be designated as
open space attributable to the 2003 undersized lot. Nor have they shown whether any of
the 2003 undersized lot contained any undevelopable7 area. In any event, the Town is
correct that it is for the DRB in the first instance to perform those calculations, if necessary.
See V.R.E.C.P. 5(i).
Therefore, although the 2003 Subdivision Decision is final and binding, it is only
final as to what that decision decided. Town of Bennington v. Hanson-Walbridge Funeral
Home, Inc., 139 Vt. 288, 292 (1981). The 2003 Subdivision Decision decided the underlying
facts and the maximum number of lots, minimum lot size, and resulting density on the
original 80.6-acre parcel, as to the amounts of land on that parcel having slopes greater than
25% and between 15% and 25%, and as to which road provided access to each of the two
7
In their statement of undisputed facts, Appellant-Applicants claim that the 77.1-
acre parcel contains 7.8 acres with slopes greater than 25%, although the 2003 Subdivision
Decision found that the original parcel contained 9 acres with slopes greater than 25%. This
discrepancy suggests either that the 2003 3.59-acre lot contained 1.2 acres with slopes
greater than 25%, or that facts are disputed regarding the amount of land in this category
in the 77.1-acre lot. Similarly, their statement of undisputed facts claims that the 77.1-acre
parcel contains 37 acres with slopes between 15% and 25%, although the 2003 Subdivision
Decision found that the original parcel contained 38.6 acres with slopes between 15% and
25%. This discrepancy suggests either that the 2003 3.59-acre lot contained 1.6 acres with
slopes between 15% and 25%, or that facts are disputed regarding the amount of land in
this category in the 77.1-acre lot. These discrepancies alone would make the difference
between a 48.6-acre developable area calculation for the 77.1-acre parcel (yielding only four
remaining lots) and a 50.6-acre developable area calculation (yielding five remaining lots),
even without accounting for the 6.41 acres of open space that must still be reserved as
attributed to the 2003 3.59-acre lot.
6
resulting lots. Nevertheless, that finality does not necessarily determine whether
Appellant-Applicants are limited to four lots on the remaining parcel. Rather, Appellant-
Applicant must provide the DRB with the necessary information regarding the
configuration of the proposed subdivision, its topography regarding the location of the
undevelopable land on which the 2003 Subdivision Decision’s findings were made, the
remaining undevelopable land, and what land is proposed to be reserved for the 6.41 acres
of open space required due to the 2003 approval of the 3.59-acre undersized lot. It will then
be for the DRB in the first instance to calculate whether the 77.1-acre parcel can be
developed into four or five resulting lots, and in what configuration.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
both motions for summary judgment are DENIED in part and GRANTED in part, as
discussed above, concluding this appeal (Docket No. 265-12-05 Vtec). A telephone
conference has been scheduled in Docket No. 175-7-06 Vtec to discuss the effect of this
decision on the procedural status of that appeal, and whether it should also be remanded
to be considered by the DRB in light of the outcome of the present appeal. We will
postpone issuing a judgment order in the present appeal until after that conference, to
allow the parties to consider the possibility of mediation in Docket No. 175-7-06 Vtec and
whether such mediation should include the issues that would otherwise be before the DRB
upon the conclusion of the present appeal.
Done at Berlin, Vermont, this 19th day of March, 2007.
_________________________________________________
Merideth Wright
Environmental Judge
7 | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4134436/ | May 8, 1968
Mrs. Marie Winters Opinion No. M-231
Firemen's Pension Commissioner
1010 Sam Houston Building Re: Whether paid firemen op-
Austin, Texas 78701 erating an emergency am-
bulance service as a
regular operating por-
tion of the Fire Depart-
ment are covered for dis-
ability benefits under
Section 7 of the Firemen's
Relief.and Retirement Law
in the event of injury on
such ambulance duty,.and
Dear Mrs. Winters: related question.
you have requested an opinion of this office on the
following question:
"May we have your official.,rulingon
whether or not paid firemen operating an
emergency ambulance service as a regular
operating portion of the Fire Department
would be covered for disability benefits
under Section 7 of the Firemen's Relief
and Retirement Law in the event they were
injured.on ambulance duty - and whether or
not their widows or.beneficiaries would be
covered under Section 12."
By describing the ambulance service as "emeraency' in
nature, we presume that it is to function only when it becomes
the duty of the firemen to provide this necessary service,
-1126-
Mrs. Marie Winters, ~page 2 (M-231)
House Bill 68, Acts 55th Legislature, Regular Session,
1957, Ch. 275, p. 617, codified as Section 7 and Section 12 of
Article 6243e, Vernon's Civil Statutes, read, in part, as follows
#Sec. 7. Whenever a person servins as
an active fireman dulv enrolled in anv reo-
ularlv active fire department in anv city or
town in the State having a population of less
G, five hundred thousand (500,000) according
to the lastpreceding Federal Census, which
city or town is now within, or may hereafter
corm withinthe provisions of this Act, shall
become nhvsicallv or mentally disabled ws
in and/or in conseauence of, the performance
of his duty'.,saidBoard of Trustees shall upon
his request, or without such request if it shall
deem proper and for the good of the department,
retire .such person from active service either
upon total or partial disability as the case
inay'~warrant. . .* (Emphasis added.)
Sections 4 and 5 of Article XI of the Constitution of
Texas authorize cities and towns to be incorporated as political
subdivisions of the state, subject to such limitations as the
Legislature may prescribe and provided that the charter or or-
dinances passed under ,authorityof the charter'comply with the
Constitution of the State of Texas and all general laws enacted
by the Legislature.
Article 1011, Vernon's Civil Statutes, reads, in part,
as follows:
"The City Council, or other governing
body shall have power to pass, publish, amend
or repeal all ordinances, rules and police
regulations, not contrary to the Constitution
of this State, for the good government, peace
and order of the City . . ."
Article 1175, Vernon's Civil Statutes, reads, in part,
as follows:
-1127-
*s. Marie Winters, page 3 (M-231)
"Cities adopting the charter or amend-
ment hereunder shall have ~full power of local
self-government, and among the other powers
that may be exercised by any such city the
following are hereby enumerated for greater
certainty:
II
. . .
"27. To provide for police and fire
departments.
-28. To provide for a health depart-
ment and the establishment of rules and reg-
ulations protecting the health of the city
and the establishment of quarantine stations,
and pest houses, emergency hospitals and
hospitals, . . .
II
. . .
"34. To enforce all ordinances necessary
to protect health, life and property, and to
prevent and summarily abate and remove all
nuisances and to preserve and enforce the
good government, order and security of the
city and its inhabitants."
Cur Courts have held that under authority of Articles
1011 and 1175 that the State ,has delegated to municipalities under
the police power, the right to protect the health, safety.morals
and general welfare of their citizens by regulations that are
reasonable and necessary for that purpose, subject to limitations
imposed by the Constitution and statutes enacted by the Legislature
40 Tex.Jur.2d 12, Municipal Corporations B 321,,322: Keel v. Pulte
Comm. of Appeals, Sec. A (19281, 10 S.W.2d 694; tombardo v. Dallas,
124 Tex. 1, 73 S.W.2d 475: City of Dallas v. Smith, 130 Tex. 225,
107 S.W.2d 872 (1937); 12 Tex.Jur.2d 408 8 62, 63 and 64.
The health and safety of~the public is of primary
importance to all ordered forms of government. In the preservation
-1128-
Mrs. Marie Winters, page 4 (X-231)
and protection of the public health, every sovereign may, in
the exercise of the police power, enact laws directed to that
purpose. The Legislature may delegate powers relating to the
public health to various agencies or subdivisions of the State.
28 Tex.Jur.2d 9, Health R 1, 2; 39 C.J.S. 811, Health E!2.
The provisions of Articles 1011 and 1175 and Sections
4 and 5 of Article XI of the Constitution plainly show that
cities and towns, duly incorporated, are charged with the important
gwernmental function of the preservation and protection of the
public health within those towns and cities which is within the
police power of the state.
In Attorney General's Opinion C-772 (1966), we held
that pursuant to the general powers of the county to expend
general revenues of the county in behalf of the public health
and sanitation under Article 4418f, Vernon's Civil Statutes,
the county may operate and maintain an ambulance service within
the county. We have also held that the Tarrant County Hospital
District, under the provisions of Article 4494n and Section 4 of
Article XI of the Constitution, is charged with the preservation
and promotion of the public health within the district under the
police power of the state, and is authorized to acquire and op-
erate an ambulance service within the district. Attorney Gen-
eral's Opinion C-759 (1966).
In view of the foregoing, you are hereby advised that
the governing bodies of cities and towns, pursuant to Section 4
and 5 of Article XI of the Constitution of Texas and Articles (
1011 and 1175 have the authority under the broad police powers
granted them by the State to perform "emeroencv" ambulance serv-
ice within their city in order to protect the health, safety and
general welfare of the citizens of the city. Any paid fireman
performing "emerqencv" ambulance service as a duty of the fire
department would be entitled to disability benefits under Sec-
tion 7 of Article 6243e in the event he was injured while acting
in the scope of such emergency ambulance service. This statute
must be given a liberal construction in favor of the fireman. *
of Firemen's Relief & Retirement Fund Trustees of Houston v. Mark%
237 S.W.Zd 420 (1951), rev. on other grounds, 150 Tex. 433, 242
S.W.2d 181.
-1129-
~rs. Marie Winters, page 5 (M-231)
SUMMARY
Paid firemen performing "emerqencv" am-
bulance services as a duty of the fire depart-
ment would be eligible for the benefits of Sec-
tion 7 and Section 12 of Article 6243e. Vernon's
Civil Statutes.
“YP truly yours,
ORD C. MARTIN
General of Texas
Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINION CCMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Banks
James Quick
Dyer Moore, Jr.
Bill Allen
A. J. CARUBBI, JR.
Bxecutive Assistant
-1130- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/708585/ | 70 F.3d 1269
Richiev.Scott**
NO. 95-20140
United States Court of Appeals,Fifth Circuit.
Oct 25, 1995
Appeal From: S.D.Tex., No. CA-H-94-2635
1
AFFIRMED.
**
Conference Calendar | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2972204/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0285n.06
Filed: April 14, 2005
No. 04-1273
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DIRUBY THOMAS FOSTER, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: MARTIN, COOK, and LAY*, Circuit Judges.
PER CURIAM. Diruby Thomas Foster pleaded guilty below to being a felon in possession
of a firearm. His plea agreement waived all appellate rights, except with regard to whether the
evidence against him, which the district court refused to suppress, was the fruit of an illegal search
and seizure. After reviewing the record, the parties’ briefs, and the applicable law, the panel
unanimously agrees that oral argument is not needed in this case, Fed. R. App. P. 34(a), and that the
district court’s refusal to suppress the evidence was based on a credibility finding that was not
clearly erroneous. We therefore affirm the conviction.
*
The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-1273
United States v. Foster
We also deny Foster’s motion to remand for resentencing in light of United States v. Booker,
125 S. Ct. 738 (2005), because Foster waived his right to raise this issue on appeal. See United
States v. Bradley, No. 03-6328, ___ F.3d ___, 2005 U.S. App. LEXIS 3970, at *18-*19 (6th Cir.
Mar. 10, 2005) (dismissing Booker claim because defendant’s plea agreement waived right to
appeal).
-2- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131600/ | 540 U.S. 836
WILLIAMSONv.SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL.
No. 02-10756.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3808162/ | The questions of law and fact in this case are identical with the questions involved in the case of Ex parte Ellis (being case No. A-434, decided by this court on this November 27, 1909),ante, p. 220, 105 P. 184, and on the strength of that decision and stipulation of counsel the writ of habeas corpus is allowed, and the petitioner discharged. *Page 230 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1107122/ | 981 So. 2d 1177 (2006)
FRIESE HAULING, INC.
v.
MARGARET C. POWE.
No. 2030870.
Supreme Court of Alabama.
January 27, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3183288/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF W ASHINGTON, ) No. 73430-0-1
) (consolidated with No. 73431-8-1
Respondent, ) and No. 73432-6-1)
\ /. DIVISION ONE
UNPUBLISHED OPINION 3C
~5-
CHRISTOPHEER ALLEN NAKAMURA, -11 T.
\ 3> —
Appellant. FILED: March 7, 2016
• *
is
•i-ca.
Trickey, J. — Christopher Nakamura appeals the trial court's decision to eg gg»"
impose a standard range sentence instead of a prison-based drug offender
sentencing alternative (DOSA). Nakamura claims that the court did not
meaningfully consider his request for a DOSA. We affirm because the trial court
did consider Nakamura's request and exercised its discretion to impose a standard
range sentence instead of a DOSA.
FACTS
Christopher Nakamura was charged with possession of a controlled
substance, possession of a controlled substance with intent to manufacture or
deliver, and possession of a stolen vehicle. He entered the Snohomish County
Superior Court adult drug treatment court (ADTC) program for all three crimes in
February 2013. In January 2015, the court terminated him from the ADTC program
because of a failed urinary analysis (UA) that would have required "him to be in
drug court beyond the 24 month maximum."1
The case proceeded to a bench trial on agreed documentary evidence. The
Clerk's Papers (CP) at 38, 151, 241.
No. 73430-0-1 / 2
court found Nakamura guilty on all three charges. The court agreed to delay
sentencing so that the Department of Corrections (DOC) could evaluate
Nakamura's eligibility for a DOSA. The DOC concluded that Nakamura was
eligible for a DOSA, but found that he was "a questionable candidate for a DOSA
sentence" and recommended a standard range sentence instead.2
At sentencing, the State agreed with the DOC's recommendation and urged
the court to impose a sentence at the high end of the standard range. Nakamura
argued that he would benefit from a DOSA and had eleven friends and family
members testify on his behalf.
In its oral ruling, the court noted that, despite failing the UA, Nakamura
maintained that he had not used any drugs. The court commented that it did not
think that there was a point to placing Nakamura in treatment, because Nakamura
would not admit that he had been using. It denied Nakamura's request and
sentenced him to a high end standard range for each of his charges.
Nakamura appeals.
ANALYSIS
Nakamura argues that the trial court did not meaningfully consider his
request for a DOSA. We reject this argument because the record shows that the
trial court did consider the request but exercised its discretion to deny it.
For eligible offenders, the court may impose a DOSA instead of a standard
range sentence. RCW 9.94A.660. Fora prison-based DOSA, the offender serves
"one-half the midpoint of the standard range or twelve months, whichever is
2 CP at 316-17.
No. 73430-0-1 / 3
greater" in a state facility and the other half in community custody, "which must
include appropriate substance abuse treatment" in an approved program. RCW
9.94A.662(1)(a),(b). While incarcerated, the offender receives appropriate
substance abuse treatment. RCW 9.94A.662(2). If the offender willfully violates
the conditions of his community custody or is terminated from the program, he may
be required to serve the rest of his sentence. RCW 9.94A.662(3).
Generally, defendants may not seek review of a sentencing court's
discretionary decision not to grant a DOSA. State v. Bramme, 115 Wn. App. 844,
850, 64 P.3d 60 (2003). But a defendant may appeal his sentence if the "court
refuse[d] to exercise its discretion at all." State v. Smith, 118 Wn. App. 288, 292,
75 P.3d 986 (2003). Every eligible defendant is entitled to request a DOSA and
have the court actually consider that request. State v. Grayson. 154 Wn.2d 333,
342,111 P.3d 1183 (2005). The failure to consider a DOSA "is effectively a failure
to exercise discretion and is subject to reversal." Gravson, 154 Wn.2d at 342.
Here, the trial court meaningfully considered whether to grant Nakamura's
request for a DOSA. The oral ruling shows that the trial court decided to deny
Nakamura's request primarily because the judge believed that, given Nakamura's
denial of his recent drug use, he was not amenable to treatment:
You don't need treatment because you claim you didn't use. So you
want to take up bed space in a therapeutic setting where you will
maintain that you didn't use. How is that beneficial to any other
participants who readily admit that they did use? But you're there
saying you didn't use. It's hard for me to give you that opportunity, I
can't do iU3]
Accordingly, we affirm the trial court's exercise of discretion.
3 Verbatim Report of Proceedings (April 17, 2015) at 22-23.
3
No. 73430-0-1/4
Nakamura argues that the trial court abused its discretion because it "relied
solely on Mr. Nakamura's negative conduct" and "refused to consider Mr.
Nakamura's positive achievements after his termination from drug court."4 We
have previously held that "[fjailure of a candidate to successfully complete drug
court ... is a tenable basis for the exercise of the court's discretion to decline to
grant a DOSA." Smith. 118 Wn. App. at 292. The trial court properly considered
Nakamura's performance in ADTC, instead of his efforts after termination.
Further, there is no reason to believe that the court ignored Nakamura's
successes or "conflated the standards for termination from drug court with the
person's eligibility for a DOSA."5 The court heard testimony and read letters from
many of Nakamura's friends and family explaining why they believed Nakamura
could benefit from a DOSA. But the court also received the DOC's assessment
that, although Nakamura was eligible for a DOSA, it recommended that the court
impose a standard range sentence. Finally, the court drew on its own experiences
with Nakamura in drug court. It decided not to grant Nakamura's request. This
was not error.
Affirmed.
WE CONCUR:
JLA wQ&.
4 Br. of Appellant at 5-6.
5 Br. of Appellant at 6. | 01-03-2023 | 03-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892830/ | NO. 07-04-0598-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 1, 2005
______________________________
ARTHUR RAY WILLIAMS, APPELLANT
V.
REGIONAL ISLAMIC CHAPLAIN TALIB, ET AL., APPELLEES
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 48692-C; HONORABLE PATRICK A. PIRTLE, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant Arthur Ray Williams an inmate proceeding pro se and in forma pauperis,
initiated legal action on July 3, 2000, against appellees for, among other causes, civil rights
violations. Williams filed and signed numerous pleadings; however, as early as September
14, 2000, inmate Herbert Feist began signing pleadings for Williams. On December 6,
2004, this Court received a notice of appeal signed by Feist complaining of the trial court's
order of dismissal for want of prosecution dated August 18, 2004. On December 27, 2004,
this Court received a letter from Feist referencing a second attempt to appeal. This Court
notified Feist by letter dated January 5, 2005, that the notice of appeal appeared untimely
and requested a response. Feist responded insisting that a timely notice had been filed on
November 8, 2004. For the reasons expressed herein, we affirm the trial court's order of
dismissal.
A review of the clerk's record filed on January 5, 2005, does not contain a notice of
appeal allegedly filed on November 8, 2004. However, it does contain a notice of appeal
signed by Williams and filed on February 13, 2003, complaining of the trial court's order to
appear on January 24, 2003, noting that failure to appeal would result in dismissal. Rule
27.1(a) of the Texas Rules of Appellate Procedure provides that a prematurely filed notice
of appeal is effective and deemed filed on the day of, but after, the event that begins the
period for perfecting the appeal. Thus, we conclude our jurisdiction was invoked by
Williams's premature notice.
This appeal is now being pursued by Feist. A person who is not a licensed attorney
is not permitted to represent anyone other than himself. 7 Tex. Jur.3d Attorneys At Law
§ 108 (1997). The Texas Legislature mandates that a person who is not a member of the
State Bar may not practice law. Tex. Gov't Code Ann. § 81.102(a) (Vernon 1998).
However, section 81.102(b) provides that the Supreme Court of Texas may promulgate
rules for the limited practice of law by (1) attorneys licensed in another jurisdiction; (2) bona
fide law students; and (3) unlicensed graduate students who are attending or have attended
a law school approved by the Supreme Court. The Legislature defines the practice of law,
among other things, as the preparation of a pleading or other document incident to an
action or special proceeding or the management of the action or proceeding on behalf of
a client before a judge in court. § 81.101(a).
On March 19, 2001, Feist filed a motion to intervene in Williams's suit contending
he was a necessary party as the unit Islamic leader. However, there is no order from the
trial court granting his request. Feist has not demonstrated he was a party to the
underlying case nor that he falls within any of the categories of persons who are permitted
to practice law. As such, he has no authority to pursue this appeal on Williams's behalf.
See Jimison by Parker v. Mann, 957 S.W.2d 860, 861 (Tex.App.-Amarillo 1997, no writ)
(per curiam); see also Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex.App.-Houston [1st
Dist.] 1994, no writ); cf. Tex. Code Crim. Proc. Ann. art. 11.13 (Vernon 1977) (providing
that a petition for a writ of habeas corpus may be signed by any person).
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
" Name="Emphasis"/>
NO. 07-10-00457-CR
IN THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL C
NOVEMBER
16, 2010
VANESSA ORNELAS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER
COUNTY;
NO. 60,409-D; HONORABLE DON R. EMERSON, JUDGE
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On June
10, 2010, appellant, Vanessa Ornelas, was convicted
of committing the offense of possession of a controlled substance with intent
to deliver in a drug-free zone, and sentenced to incarceration in the Texas
Department of Criminal Justice, Institutional Division, for a period of five
years. On November 4, 2010, appellant
filed her notice of appeal with the trial court.[1] We dismiss for want of jurisdiction.
Unless a
defendant timely files a motion for new trial, a defendant must file a written
notice of appeal with the trial court clerk within 30 days after the date
sentence is imposed. Tex. R. App. P. 26.2(a). Therefore, appellants notice of appeal was
due on July 12, 2010. Because
appellants notice of appeal was filed 114 days after it was due, this Court is
without jurisdiction over this appeal. See
Olivo v. State, 918
S.W.2d 519, 522 (Tex.Crim.App. 1996). Because this Court is without jurisdiction to
address the merits of this appeal, we have no authority to take any action
other than to dismiss the appeal. See
Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).
Accordingly,
the purported appeal is dismissed for want of jurisdiction.[2]
Mackey
K. Hancock
Justice
Do not publish.
[1] Appellant filed a letter addressed
to the Honorable Don R. Emerson that indicates that appellant desires to appeal
and that complies with the requirements of a notice of appeal. See Tex.
R. App. P. 25.2(c). This Court has deemed this letter to be a
notice of appeal.
[2]
Appellant may have recourse by
filing a post-conviction writ of habeas corpus returnable to the Texas Court of
Criminal Appeals for consideration of an out-of-time appeal. See Tex.
Code Crim. Proc. Ann. art.
11.07 (Vernon Supp. 2010). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1485984/ | 649 S.W.2d 491 (1983)
Constance L. LINDSAY, Respondent,
v.
Don McMILIAN, et al., Appellants.
No. WD 33331.
Missouri Court of Appeals, Western District.
February 15, 1983.
Motion for Rehearing and/or Transfer Overruled and Denied March 29, 1983.
John J. Phillips, Independence, for appellants.
Gene P. Graham, Independence, for respondent.
Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 29, 1983.
*492 KENNEDY, Judge.
Plaintiff had a verdict and judgment against defendant Don McMilian, who was a partner with Troy "Vines in a retail used car business from which she had purchased a 1975 Torino automobile, for $1,000 actual damages and $2,500 punitive damages for fraudulent misrepresentation. Defendant Don McMilian appeals.
We find no reversible error in the points he has presented, and we affirm the judgment.
Plaintiff's action against the defendants was based upon an allegedly false representation made to her to induce her purchase of the automobile, that the car was "in good condition" and that it was "a good running car," representations which proved to be quite false. The case was submitted to the jury upon an instruction which hypothesized (among other facts, per MAI 23.05) that Troy Vines, one of the partners, who actually negotiated the sale of the automobile to the plaintiff and made the false representations, "did not know whether the representations [were] true or false."
I
We take up first defendant's argument that plaintiff made no submissible case in that she failed to prove that the representation (that the car was in good condition) was false when made. His argument is that the defects could have originated after the sale took place, and that the car could have been in good condition at the time of the sale.
We conclude that the evidence was sufficient to prove prima facie that the car was not in good condition when the representations were made to Mrs. Lindsay, and that the representations were therefore actually false. Viewing the evidence and inferences most favorably to the successful plaintiff, as we must, the record supports the following facts. Plaintiff Constance Lindsay agreed to buy the 1975 Torino on May 10, 1978, closing the purchase the next day, on May 11. The asking price was $1,700 and Mrs. Lindsay agreed to pay that price without haggling. It was the first car Mrs. Lindsay had bought and she had no knowledge of the value of the car. The car, she testified, was "pretty", the motor clean in appearance. She had been taken to the defendant's used car business by a Mr. Rudy Langer, whom she described as a friend of hers. The business was operated under the name of "Plaza 23 Motors" in Independence. Mr. Langer had a "shop" and himself had a car dealer's license.
Two days after Mrs. Lindsay had bought the car, a parking attendant where she parked her car at work in downtown Kansas City told her she had an oil leak and should have it checked out. She took it to a service station to be checked. She was not permitted to testify what report she got from the service station, but as a result of it she took the car back to defendant Vines and demanded the return of her money. Mr. Vines declined, but offered to allow her $1,000 trade-in on another car on the lot, an offer she declined. This took place about two weeks after the purchase, Mrs. Lindsay estimated. Mrs. Lindsay testified that the car was consuming a quart of oil on her way to work, and another quart on the way back home. We estimate that the distance between her home and her work was about eight miles.[1] She took the car to the Triple-A Diagnostic Center on June 9. They were unable to complete the inspection because of the oil leak. Mr. Williams of the Triple-A Diagnostic Center said they were unable to complete the checking because "the oil leak's too severe, had to add two quarts of oil to get it out of the shop so they could drive it away." Mrs. Lindsay had a rebuilt motor installed in the car at a cost of $350, and spent another $70 to repair hoses and air conditioning.
Mr. Langer testified that Mrs. Lindsay called him two days after she had purchased the car and told him it was heating up. Mr. Langer had the car towed to his shop. The water pump was "busted" and had to be repaired, and a hose replaced. Mr. Langer paid for the towing and for the repairs and did not charge Mrs. Lindsay for it"[n]ot as mad as she was." She also complained to Mr. Langer of the car's *493 smoking. Mr. Langer said the automobile would have been worth $1,900 if it had been in good shape, but was worth $1,000 in the condition it was in.
The odometer showed 40,027 miles when Mrs. Lindsay purchased the car. It had floor mats on the floor, which she did not raise to look under. The floorboard, or the carpet under the floor mat was worn through.
On August 24 Mrs. Lindsay traded the car to another dealer on another automobile.
Defendant McMilian testified that the automobile had been driven in from St. Joseph where it had been purchased at auction. It had not been on the lot long enough for the engine to cool. The person who had driven it from St. Joseph to defendant's lot was deceased. Mr. McMilian's wife testified that the car was sold to Mrs. Lindsay for the same price as had been paid for it at auction, with no profit. Mr. McMilian said the loan value of the automobile was $2,250. After testifying on cross-examination that its value would have been "at least that much" he gave the following testimony:
Q. And this is the value that you placed upon it; is that correct, Mr. McMilian, assuming that the car was a good car in good running condition?
A. That would be true.
Q. All right. Now, would you tell the jury, please, would it make a difference in the value of the car on that day if the engine was actually shot?
A. That's why she bought it for some $500.00 less, sir.
From the evidence of the severity of the condition as it existed so soon after the sale, coupled with the fact that the sellers sold it without any profit, and the revealing testimony of Mr. McMilian which we have quoted in the preceding paragraph, we are satisfied that the jury could have found that the defects existed at the time the representations were made.
II
Defendant's second point is aimed at plaintiff's verdict-directing instruction. The instruction hypothesized that the representation was made that the car was a good-running car and in good condition; that defendant intended that plaintiff rely on the representation; that the representations were false; and "[t]hird, Troy Vines did not know whether the representations was (sic) true or false;" the materiality of the representation, plaintiff's reliance; plaintiff's ordinary care in so relying; and plaintiff's resulting damage.
It is the hypothesization enclosed in quotation marks above that defendant criticizes, i.e., that "Troy Vines did not know whether the representations was true or false." The instruction is patterned upon MAI 23.05 without deviation, but defendant says that the quoted words "misstate the law of fraudulent misrepresentation." He says that the quoted paragraph should read: "Defendant knew he did not know whether the representation was true." The instruction as given, defendant says, "permits a jury to find liability for a negligent or innocent misrepresentation under a statute directed at fraud." He calls our attention to language in Wilson v. Murch, 354 S.W.2d 332, 338-39 (Mo.App.1962), in which the court held that to make a case for fraudulent misrepresentation,
it is not necessary that it be shown that defendant had actual knowledge of the falsity of the facts stated by him. It is sufficient that he made the representations with the consciousness that he was without knowledge as to their truth or falsity, when, in fact, they were false.
He also cites Judge Welliver's dissent in Huttegger v. Davis, 599 S.W.2d 506, 516 (Mo. banc 1980), where a footnote says, "More properly, the instruction should express the requirement that the defendant made a false representation `with the consciousness that he was without knowledge as to their truth or falsity.'"
It would be enough, perhaps, to answer defendant's point by saying that MAI instructions, promulgated and approved by the Supreme Court, are authoritative if applicable to the factual situationand we repeat that there is no issue *494 of the applicability of MAI 23.05 to this factual situationand this court, as was the trial court, is bound by them as surely as it is bound by Supreme Court cases and rules. Supreme Court Rule 70.02(b); Eckert v. Dishon, 617 S.W.2d 649, 650 (Mo.App.1981); Weltscheff v. Medical Center of Independence, 604 S.W.2d 796, 802 (Mo.App.1980). See also Missouri Approved Jury Instructions, p. XL (3d ed. 1981). Our course, should we believe the MAI instructions do "misstate the law," as defendant argues, is to transfer to the Supreme Court under Mo. Const. Art. 5, § 10 (1945, amended 1976).
We do not agree with defendant that the criticized language is a "misstatement of the law." We conclude that the language was deliberately used and deliberately retained in the instruction first by the Committee, then by the Supreme Court. They had before them, and quote in the Committee's comment on MAI 23.05, the very language in Wilson v. Murch, supra, which the defendant said should have been used in the pattern instruction in lieu of the language which was used. At the time of its 1981 revision of MAI 23.05 they had before them also the footnote from Huttegger v. Davis, supra. It is therefore clear that the Supreme Court has considered and rejected the language for which the defendant contends. It is not necessary for us to justify the decision of the Supreme Court and its instruction committee, but evidently they believed that it would be drawing it out too fine to require a finding of another level of knowledge on the part of the speaker. When the instruction says, "defendant did not know whether the representation was true or false," it is implied, without requiring a specific finding to that effect, that the defendant knew he did not know. See Brown v. Bryan, 419 S.W.2d 62, 67 (Mo.1967).
MAI 23.05 did not "misstate the law," and defendant's point is denied.
III
For his third point, defendant attacks the sufficiency of the evidence to support a punitive damage award. Specifically he attacks the sufficiency of the evidence to authorize a punitive damage instruction.
The instruction given was MAI 10.01. Defendant says that Mr. Vines' representation might have been innocent or might have been ordinary negligence, neither of which would justify the giving of a punitive damage instruction. Assuming the evidence would have justified a finding that Mr. Vines' misrepresentation was innocent or merely negligent, still the evidence which we have recounted above also justified a finding by the jury that his representation was false and made (in the words of MAI 10.01) "willful[ly], wanton[ly], or malicious[ly]." Defendant says that the jury might under this instruction award punitive damages even for an innocent or a merely negligent representation, but that plainly is not so. The instruction expressly requires a finding of willfulness, "intentional-ness" or malice as a predicate for an award of punitive damages, and it would disallow punitive damages if the misrepresentation was found to be innocent or merely negligent. The facts we have recited above are sufficient to justify a punitive damage instruction, and an award of punitive damages by the jury.
Finding no error, the judgment is affirmed.
All concur.
NOTES
[1] 9613 Truman Road, Independence, to 21 West 10th Street, Kansas City, Missouri. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3053905/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
14.02 ACRES OF LAND MORE OR
LESS IN FRESNO COUNTY; EDNA E.
STONE; PAUL KRAJIAN; SHRINERS No. 05-17347
HOSPITAL FOR CRIPPLED CHILDREN; D.C. No.
DAVID C. WHITLOCK; EDWARD H. CV-03-06019-REC/
MARSELLA; HENRY SCHAFER, Jr.; LJO
SHARON CECILE PECKINPAH; SHARON
ORDER
CECILE MARCUS aka Sharon Cecile
AMENDING
Peckinpah; FERN L. PETER, LOLA
OPINION AND
A. SWANSON; FLORENCE F. CLASS;
CLARENCE E. BERNHAUER, JR.; JANE DENYING THE
PETITION FOR
WHITLOCK STILES; NORMA B.
PANEL
GIBBS; JUNE E. LUCAS; IRENE
REHEARING AND
MARLEY; HENRY SCHAFER, SR.;
PETITION FOR
DENVER C. PECKINPAH; SUSAN JANE
REHEARING
PECKINPAH; AGNES H. VIGNOLA;
EN BANC AND
DONG SHE MAR; BESSIE E.
AMENDED
BERNHAUER; LEONARD P. LEBLANC;
OPINION
IVONE M. CARLSON; ELVIRA
MOSHER; LORRAINE S.
EICHENBERGER; ELEANOR C. HICKS;
TRUSTEE PETER FRECHOU; KATHRYN
MCAFEE; TRUSTEE JOHN C. RICKSEN
KATHRYN BROWN;
14889
14890 UNITED STATES v. SAWYER
ESTATE OF JOHNNY BELLO;
ESTATE OF LOUIS BELLO; FRANCIS
BELLO; EDWARD C. BEAUMONT;
PAULINE EICHENBERGER; LORRAINE
C. FORTNOY; FLOREEN L. WALSH;
TRUSTEE MARY FRECHOU ALLEN
MOORE; BEVERLY M. FIELDER; HAL
E. VERBLE; MAY EVYLEN
BERNHARD; GORDON WINANT
HEWES; PAULINE D. HANSON;
ELOISE MITCHELL; LAWRENCE E.
AUSTIN; EVELYN SANTOS; SAMUEL
B. BRECK DAVID BISWELL; STEPHEN
BISWELL; MELISSA BROOK
PECKINPAH; JOAN LEONARD; MAUDE
DAWSON; GERTRUDE PORTERFIELD;
WILLIAM J. MATHOS; JOHN ROBERT
SHORB; CANDACE HAAS; KRISTEN
LOUISE PECHINPAH; MATTHEW
DAVID PECHINPAH; J. DANIEL HARE,
III; BRADLEY B. LEONARD;
SECURITY TITLE INSURANCE; VICKI
TREASURER, FRESNO COUNTY; RUSS
FREEMAN; THOMAS C. HARE,
Defendants,
and
MAXINE H. SAWYER; MARK W.
SAWYER; HARRIET H. LEONARD;
CHARLES A. SAWYER; ANDREW
KLEMM; RAMON ECHEVESTE,
Defendants-Appellants.
UNITED STATES v. SAWYER 14891
Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, District Judge, Presiding
Argued and Submitted
February 14, 2008—San Francisco, California
Filed June 24, 2008
Amended October 24, 2008
Before: William C. Canby, Jr. and Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Canby
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
UNITED STATES v. SAWYER 14893
COUNSEL
Bruce Leichty, Clovis, California, for the defendants-
appellants.
Douglas R. Wright, United States Attorney, Department of
Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for the plaintiff-appellee.
14894 UNITED STATES v. SAWYER
ORDER
The opinion filed June 24, 2008, slip op. 7271, and appear-
ing at 530 F.3d 883 (9th Cir. 2008), is amended as follows:
At slip op. at 7271, delete the full paragraph (beginning “In
any event . . .”) and its accompanying footnote 3, and substi-
tute therefor the following two paragraphs:
In any event, the Supremacy Clause, Article VI,
clause 2, of the United States Constitution forecloses
Sawyer’s noncompliance argument. Because WAPA
is an agency of the federal government, its activities
“in connection with the construction and operation
of the transmission line in question, are wholly
immune from local control, unless it can be estab-
lished that Congress has directed that [WAPA] sub-
jects itself thereto.” Maun v. United States, 347 F.2d
970, 974 (9th Cir. 1965). We have accordingly
required federal agencies seeking to condemn ease-
ments to construct power transmission lines to com-
ply with state and local siting requirements where
the Congress’ authorization expressly required such
compliance. See id. at 975 (requiring Atomic Energy
Commission to comply with local ordinances in con-
structing overhead transmission line where the
authorizing statute mandated that “[n]othing in [the
relevant] chapter shall be construed to affect the
authority or regulations of any Federal, State, or
local agency with respect to the generation, sale, or
transmission of electric power produced through the
use of nuclear facilities licensed by the Commis-
sion”); cf. Columbia Basin Land Protection Ass’n v.
Schlesinger, 643 F.2d 585, 603 (9th Cir. 1981)
(requiring the Bonneville Power Administration to
comply with the substantive standards of Washing-
ton State’s siting act—but not its procedural hurdles
UNITED STATES v. SAWYER 14895
—where an applicable statute expressly required
“compliance with State standards”).
In this case, however, Sawyer has not pointed to
a comparable unequivocal pronouncement by Con-
gress to overcome the presumption of preemption—
and we could find none. None of the authorizing
statutes discussed earlier in this opinion mandate
compliance with state law. Indeed, the only statutory
provision cited by Sawyer in support of its noncom-
pliance argument is the Reclamation Act of 1902. 43
U.S.C. § 383. Although the Reclamation Act of 1902
does disclaim preemption of state law, it is irrelevant
to this case, for it applies only to the “control, appro-
priation, use, or distribution of water used in irriga-
tion, or any vested right acquired thereunder.” Id.
(emphases added). We therefore conclude that Cali-
fornia law is preempted and WAPA is not required
to comply therewith in constructing the
congressionally-authorized Path 15 Upgrade.
With these amendments, the panel has voted to deny the
appellants’ petition for panel rehearing. Judge Smith has
voted to deny appellants’ petition for en banc rehearing, and
Judges Canby and Larson have so recommended.
The full court has been advised of the above amendments
and of appellants’ petition for rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
Appellants’ petition for panel rehearing and petition for
rehearing en banc are denied. There are no other pending peti-
tions for panel or en banc rehearing. No further petitions for
panel or en banc rehearing will be entertained.
14896 UNITED STATES v. SAWYER
OPINION
CANBY, Circuit Judge:
Pursuant to a 2001 order of the Secretary of Energy, the
Western Area Power Administration (“WAPA”) selected cer-
tain land estates in the western portion of the San Joaquin
Valley in California, where it planned to construct a high-
voltage transmission line. The United States began condemna-
tion proceedings in the district court on behalf of WAPA,
seeking transmission easements on the lands selected by
WAPA. Sawyer and a few other individual owners of con-
demned property (collectively “Sawyer”) challenged the gov-
ernment’s exercise of its power of eminent domain, claiming
that the taking lacked proper congressional authorization, was
not for a “public use” as required by the Takings Clause, and
violated California law. The district court dismissed Sawyer’s
objections and, when the parties reached an agreement on the
compensation amount, entered summary judgment sua sponte.
Sawyer filed this appeal. We affirm.
BACKGROUND
In 2001, in an effort to mitigate California’s electric power
transmission constraints, the Secretary of Energy directed
WAPA to prepare plans to construct the Los Banos-Gates
Transmission Project, or Path 15 Upgrade. The project con-
sists of an additional 84-mile, 500-kilovolt transmission line
along Path 15, which is located in the western portion of the
San Joaquin Valley and connects its northern terminus near
Los Banos, California with its southern terminus at the Gates
Substation near Coalinga, California. See Department of
Energy, Los Banos-Gates Transmission Project: Record of
Decision (hereinafter, “DOE Record of Decision”), 66 Fed.
Reg. 65,699 (Dec. 20, 2001). The Secretary also instructed
WAPA to explore partnership opportunities with private
industry, see id., and delegated authority to WAPA to acquire
and condemn property interests in land to complete the proj-
UNITED STATES v. SAWYER 14897
ect. Department of Energy, Delegation Order No. 00-036.00
(Dec. 6, 2001), available at http://www.directives.doe.gov/
pdfs/sdoa/00-036_00.pdf (last visited May 28, 2008). WAPA
updated plans that it had originally developed in the mid-
1980s and accepted proposals from Trans-Elect and Pacific
Gas and Electric Company to “finance, construct, and co-own
the system additions.” DOE Record of Decision, 66 Fed. Reg.
at 65,699-700. The Federal Energy Regulatory Commission
(“FERC”) approved the proposed upgrade, which provided,
among other things, that “WAPA w[ould] own the new 500
kV transmission line and associated land that is the most sig-
nificant part of the transmission upgrades.” Western Area
Power Administration, FERC Order Accepting Letter Agree-
ment, 99 FERC ¶ 61,306, at 62,278, 2002 WL 1308653
(2002), aff’d, Pub. Util. Comm’n. of Cal. v. FERC, 367 F.3d
925 (D.C. Cir. 2004).
In 2003, the United States began condemnation proceed-
ings in the district court on behalf of WAPA to acquire ease-
ments on approximately 14.02 acres of land in western Fresno
County, California. Sawyer filed an answer to the govern-
ment’s complaint and challenged the condemnation by assert-
ing eight affirmative defenses. The government moved to
strike the affirmative defenses or, in the alternative, for judg-
ment on the pleadings as to its authorization to take. The dis-
trict court granted the government’s motion, concluding that
“WAPA was fully authorized by federal law to construct the
Path 15 Project and to condemn the power line transmission
easement[s] for it.” The district court also rejected Sawyer’s
argument that the upgrade did not serve a “public purpose.”
One year later, the parties filed a Joint Pretrial Statement,
in which they agreed that the “value of the property taken is
$7,374.32.” At a later evidentiary hearing, the government
asserted that no viable issue remained for trial because the
district court had previously granted judgment as to the law-
fulness of the taking. Sawyer disagreed. The district court
then requested supplemental briefing.
14898 UNITED STATES v. SAWYER
With the benefit of the parties’ briefing, the district court
concluded that no issue remained for trial and granted sum-
mary judgment sua sponte in favor of the government. The
district court then entered final judgment and apportioned the
stipulated value of the easements, $7,374.32, among the “ap-
proximately 73 ownership entities.” Each entity was assigned
compensation according to its percent ownership interest.
(Id.) Ownership interests were computed on the basis of the
title information supplied by the government. As of final
judgment, neither Sawyer nor any other condemnation defen-
dant had disputed such information.1 (Id.) Sawyer filed this
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Authorization and Lawfulness of the Taking
Where, as here, the parties do not dispute the amount of
compensation, “[t]he only [substantive] question for judicial
review in a condemnation proceeding is whether the purpose
for which the property was taken is for a Congressionally
authorized public use.” United States v. 0.95 Acres of Land,
994 F.2d 696, 698 (9th Cir. 1993) (internal quotation marks
and citation omitted). “Once the question of the public pur-
pose has been decided, the amount and character of land to be
taken for the project and the need for a particular tract to com-
plete the integrated plan rests in the discretion of the legisla-
tive branch.” Berman v. Parker, 348 U.S. 26, 36-37 (1954).
In addressing Sawyer’s challenges, we must assess both
prongs of the “public purpose” inquiry set forth in our prece-
dent. First, we must satisfy ourselves that the Secretary of
Energy and the Administrator of WAPA enjoy statutory
authorization to condemn property interests to construct the
1
To the extent that other unnamed interest owners or their successors
are not specifically mentioned in the district court’s order, they remain
entitled to claim their share of the award by presenting appropriate docu-
mentation to the district court. 28 U.S.C. § 2042.
UNITED STATES v. SAWYER 14899
Path 15 Upgrade. Second, we must decide whether the Path
15 Upgrade qualifies as a “public use” under the Takings
Clause of the Fifth Amendment.
A. Statutory Authority
There is no dispute that, if any federal agency is authorized
to acquire land by eminent domain for the purpose of con-
structing the Path 15 Upgrade, that agency is WAPA. See 42
U.S.C. § 7152(a)(1)(D) (“There are transferred to, and vested
in, the Secretary [of Energy] all functions [previously] of the
Secretary of the Interior . . . with respect to . . . the power
marketing functions of the Bureau of Reclamation, including
the construction, operation, and maintenance of transmission
lines and attendant facilities.”); Department of Energy, Dele-
gation Order No. 00-036.00 (Dec. 6, 2001), available at
http://www.directives.doe.gov/pdfs/sdoa/00-036_00.pdf (last
visited May 28, 2008). The operative question before us, then,
is whether Congress ever authorized the construction of the
Path 15 Upgrade at all.
[1] Numerous congressional enactments convince us that it
did. In 1984, Congress enacted the Energy and Water Devel-
opment Appropriations Act. The Act generally authorized
the Secretary of Energy . . . to construct or partici-
pate in the construction of such additional facilities
as he deems necessary to allow mutually beneficial
power sales between the Pacific Northwest and Cali-
fornia and to accept funds contributed by non-
Federal entities for that purpose.
Pub. L. No. 98-360, tit. III, 98 Stat. 403, 416 (1984) (codified
at 16 U.S.C. § 837g-1). This enactment clearly conferred dis-
cretion on the Secretary of Energy to construct power lines in
the area where the Path 15 Upgrade is located. By citing this
statutory provision in the Declaration of Taking, then, the
Administrator of WAPA, as delegate of the Secretary, evi-
14900 UNITED STATES v. SAWYER
dently made the discretionary finding that the Path 15
Upgrade would facilitate the consolidation of the Pacific
Northwest-California market.
[2] Since passage of this 1984 Act, Congress has repeatedly
confirmed its authorization and appropriated funds to develop
the Path 15 Upgrade. In the Supplemental Appropriations Act
of 1985, Congress again authorized construction of transmis-
sion lines along the Pacific Northwest-California Intertie:
Public Law 98-360 . . . authorized the Secretary of
Energy to construct or participate in the construction
of such project for the benefit of electric consumers
of the Pacific Northwest and California. . . .
Pub. L. No. 99-88, tit. I, ch. IV, 99 Stat. 293, 321 (1985). In
the same provision, Congress further indicated that “sufficient
capacity shall be reserved, as recognized in [the] Memoran-
dum, to serve the needs of the Department of Energy labora-
tories and wildlife refuges in California.” Id. In turn, the
Memorandum referenced by Congress committed WAPA to
provide “a reasonable and proportionate share of the capital
required for increasing the transfer capability between Los
Banos and Gates,” i.e., the Path 15 Upgrade. Department of
Energy, Memorandum of Understanding for the California-
Oregon Transmission Project, 50 Fed. Reg. 421 (Dec. 24,
1984). Thus, we have little doubt that, as early as the mid-
1980s, Congress had authorized the Path 15 Upgrade.
Although construction of the Path 15 Upgrade did not prog-
ress beyond the planning stages in the 1980s and 1990s, in
2001, the House Appropriations Committee again proposed
special funding to “complete the planning and environmental
studies to support the proposed 84-mile, 500-kilovolt trans-
mission line between Los Banos and Gates (also known as
‘Path 15’) in California.” H.R. Rep. No. 107-102, at 24
(2001). The Conference Committee “provide[d] . . . [n]on-
reimbursable funding of $1,328,000 . . . to complete planning
UNITED STATES v. SAWYER 14901
and environmental studies for the Path 15 transmission line,”
H.R. Rep. No. 107-148, at 61 (2001) (Conf. Rep.), reprinted
in 2001 U.S.C.C.A.N. 259, 278, and Congress appropriated
those funds through the Supplemental Appropriations Act of
2001, Pub. L. No. 107-20, 115 Stat. 155, 174 (2001).
[3] Finally, although no appropriation has specifically men-
tioned the Path 15 Upgrade since 2001, Congress has implic-
itly reaffirmed its authorization by funding WAPA through
general appropriations “[f]or carrying out the functions autho-
rized by title III, section 302(a)(1)(E) of the Act of August 4,
1977 (42 U.S.C. 7152).” Consolidated Appropriations Resolu-
tion, 2003, Pub. L. No. 108-7, 117 Stat. 11, 152 (2003). These
functions, in turn, encompass “the construction . . . of trans-
mission lines and attendant facilities,” which is the essence of
the Path 15 Upgrade.2 42 U.S.C. § 7152(a)(1)(D). We there-
fore conclude that WAPA is authorized to carry out the Path
15 Upgrade by acquiring lands by eminent domain.
In reaching this conclusion, we reject Sawyer’s argument
2
Sawyer’s discussion of the Flood Control Act of 1944 and its restric-
tion on the construction of new transmission lines is unavailing. The Act
applies only to “[e]lectric power and energy generated at reservoir projects
under the control of the Department of the Army and in the opinion of the
Secretary of the Army not required in the operation of such projects.” Pub.
L. No. 78-534, § 5, 58 Stat. 887, 890 (1944) (codified at 16 U.S.C.
§ 825s). Nothing suggests that the Path 15 Upgrade was ever under the
control of the Department of the Army.
Similarly, it is true that the Reclamation Project Act of 1939 confers on
the Secretary only limited authority to condemn land in connection with
the construction of new transmission lines: “The Secretary is authorized,
in connection with the construction or operation and maintenance of any
project . . . to purchase or condemn suitable lands or interests in lands for
relocation of . . . electric transmission lines . . . , the relocation of which
in the judgment of the Secretary is necessitated by said construction or
operation and maintenance.” 43 U.S.C. § 389. But the “relocation”
condition—to the extent it is judicially reviewable at all—does not curtail
the Secretary’s authorization to condemn land stemming from the other
enactments to which we already have referred.
14902 UNITED STATES v. SAWYER
that, even if the Path 15 Upgrade has been authorized, WAPA
is not at liberty to condemn property interests to realize the
project. To the extent that Congress did not spell out the Sec-
retary’s and WAPA’s eminent domain prerogatives in the
enactments specifically authorizing the Path 15 Upgrade, we
deem such omissions irrelevant. When Congress mandates the
construction of a new high-voltage transmission line and
appropriates funds to carry it out, it implies, by necessity if
not common sense, the authority on the part of the executing
agency to acquire land on which the transmission line may be
constructed. See, e.g., City of Davenport v. Three-Fifths of an
Acre of Land, 252 F.2d 354, 356 (7th Cir. 1958) (rule of
implied necessity authorizes eminent domain for the construc-
tion of duly authorized bridge, where condemnation is
required to realize the project).
Finally, Sawyer generally contends that any authorization
contained in these statutes is conditional on a preliminary
finding that the Path 15 Upgrade is “necessary.” Whereas a
threshold finding of necessity is in fact required under the
1984 authorization, Congress has unequivocally committed
that determination to the discretion of the Secretary (which
has been delegated to WAPA). See 16 U.S.C. § 837g-1
(authorizing the Secretary of Energy “to construct or partici-
pate in the construction of such additional facilities as he
deems necessary to allow mutually beneficial power sales
between the Pacific Northwest and California and to accept
funds contributed by non-Federal entities for that purpose.”)
(emphasis added). We are therefore not at liberty to review
the agency’s determination with respect to the necessity con-
dition. See United States v. 80.5 Acres of Land, 448 F.2d 980,
983 (9th Cir. 1971) (“[T]he necessity of taking or appropriat-
ing private property for public use is legislative in nature and
one over which the courts lack jurisdiction.”).
B. The “Public Use” Requirement Under the Takings
Clause
[4] We must next decide whether the Path 15 Upgrade sat-
isfies the “public use” requirement of the Takings Clause
UNITED STATES v. SAWYER 14903
even though it is a partnership of public and private entities
and the beneficiaries of the project arguably are the customers
of privately-owned utilities, as opposed to the public at large.
For over a century, the Supreme Court’s “public use jurispru-
dence has wisely eschewed rigid formulas and intrusive scru-
tiny in favor of affording legislatures broad latitude in
determining what public needs justify the use of the takings
power.” Kelo v. City of New London, 545 U.S. 469, 483
(2005). It remains true, of course, that “the sovereign may not
take the property of A for the sole purpose of transferring it
to another private party B, even though A is paid just compen-
sation.” Id. at 477. At the same time, the Court has long aban-
doned any “use by the public” test for private-to-private
transfers by eminent domain. See id. at 479-81 & nn.7, 9, 10
(collecting cases). “ ‘It is only the taking’s purpose, and not
its mechanics’ . . . that matters in determining public use,” id.
at 482 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229,
244 (1984)), and we do “not substitute [our] judgment for a
legislature’s judgment as to what constitutes a public use
‘unless the use be palpably without reasonable foundation.’ ”
Midkiff, 467 U.S. at 241 (quoting United States v. Gettysburg
Elec. Ry. Co., 160 U.S. 668, 680 (1896)).
[5] Applying these principles, we conclude that the Path 15
Upgrade satisfies the “public use” requirement. To begin
with, the project hardly entails a private-to-private transfer at
all. It is true that WAPA will initially receive only ten percent
of the transmission system rights arising from the 500 kV
capacity increase. Western Area Power Administration, FERC
Order Accepting Letter Agreement, 99 FERC ¶ 61,306, at
62,278, 2002 WL 1308653 (June 12, 2002). However,
“WAPA will own the new 500 kV transmission line and asso-
ciated land that is the most significant part of the transmission
upgrades.” Id. Further, in its 1985 appropriations and mandate
to the Secretary of Energy to expand the Pacific Northwest-
California Intertie, Congress specified that “sufficient capac-
ity shall be reserved . . . to serve the needs of the Department
of Energy laboratories and wildlife refuges in California.”
14904 UNITED STATES v. SAWYER
Pub. L. No. 99-88, tit. I, ch. IV, 99 Stat. 293, 321 (1985). In
short, it is clear that Congress’ purpose in authorizing the con-
demnation envisioned a continued proprietary and operational
presence of the federal government.
Moreover, to the limited extent that the project does
involve a transfer of property interests among private entities,
such transfer poses no constitutional difficulty. In the pursuit
of what it perceives as a “public use,” “the Congress and its
authorized agencies have made determinations that take into
account a wide variety of values.” Berman, 348 U.S. at 33.
Therefore, “It is not for [the courts] to reappraise them.” Id.
In its 1984 authorization, Congress unambiguously expressed
its intent to “allow mutually beneficial power sales between
the Pacific Northwest and California.” 16 U.S.C. § 837g-1. In
so doing, it spoke to the value it intended to pursue—i.e.,
facilitating the consolidation of the western electricity market.
It would therefore be impermissible for us to engage, as Saw-
yer asks us to do, in “empirical debates over the wisdom” of
increased access to electricity or the effectiveness of the Path
15 Upgrade. See Midkiff, 467 U.S. at 242-43.
C. Federal Preemption of the California Public Utility
Commission Review
In a final substantive challenge, Sawyer contends that the
condemnation is unlawful because WAPA did not obtain the
approval of the California Public Utility Commission for the
Path 15 Upgrade as required by California law. See Cal. Pub.
Util. Code §§ 1001-06. We agree with the district court that
Sawyer waived this argument by not advancing it in the
Answer. Under Rule 71.1, “[a] defendant waives all objec-
tions and defenses not stated in its answer. No other pleading
or motion asserting an additional objection or defense is
allowed.” Fed. R. Civ. P. 71.1(e)(3). Because Sawyer did not
raise the federal government’s failure to comply with Califor-
nia law in the Answer, we affirm the district court’s waiver
ruling.
UNITED STATES v. SAWYER 14905
In any event, the Supremacy Clause, Article VI, clause 2,
of the United States Constitution forecloses Sawyer’s non-
compliance argument. Because WAPA is an agency of the
federal government, its activities “in connection with the con-
struction and operation of the transmission line in question,
are wholly immune from local control, unless it can be estab-
lished that Congress has directed that [WAPA] subjects itself
thereto.” Maun v. United States, 347 F.2d 970, 974 (9th Cir.
1965). We have accordingly required federal agencies seeking
to condemn easements to construct power transmission lines
to comply with state and local siting requirements where the
Congress’ authorization expressly required such compliance.
See id. at 975 (requiring Atomic Energy Commission to com-
ply with local ordinances in constructing overhead transmis-
sion line where the authorizing statute mandated that
“[n]othing in [the relevant] chapter shall be construed to
affect the authority or regulations of any Federal, State, or
local agency with respect to the generation, sale, or transmis-
sion of electric power produced through the use of nuclear
facilities licensed by the Commission”); cf. Columbia Basin
Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 603 (9th
Cir. 1981) (requiring the Bonneville Power Administration to
comply with the substantive standards of Washington State’s
siting act—but not its procedural hurdles—where an applica-
ble statute expressly required “compliance with State stan-
dards”).
[6] In this case, however, Sawyer has not pointed to a com-
parable unequivocal pronouncement by Congress to overcome
the presumption of preemption—and we could find none.
None of the authorizing statutes discussed earlier in this opin-
ion mandate compliance with state law. Indeed, the only stat-
utory provision cited by Sawyer in support of its
noncompliance argument is the Reclamation Act of 1902. 43
U.S.C. § 383. Although the Reclamation Act of 1902 does
disclaim preemption of state law, it is irrelevant to this case,
for it applies only to the “control, appropriation, use, or distri-
bution of water used in irrigation, or any vested right
14906 UNITED STATES v. SAWYER
acquired thereunder.” Id. (emphases added). We therefore
conclude that California law is preempted and WAPA is not
required to comply therewith in constructing the
congressionally-authorized Path 15 Upgrade.
II. Procedural Challenges
Sawyer also advances a number of procedural challenges
that, he contends, require us to reverse the judgment of the
district court and remand this case for further proceedings.
We review each challenge in turn.
A. Joinder of Owners of Fractional Property Interests
[7] The district court did not err in allowing the action to
proceed without requiring the government to join all owners
of fractional interests in the condemned property. Rule 71.1(c)
provides:
When the action commences, the plaintiff need join
as defendants only those persons who have or claim
an interest in the property and whose names are then
known. But before any hearing on compensation, the
plaintiff must add as defendants all those persons
who have or claim an interest and whose names have
become known or can be found by a reasonably dili-
gent search of the records, considering both the
property’s character and value and the interests to be
acquired. All others may be made defendants under
the designation “Unknown Owners.”
Fed. R. Civ. P. 71.1(c)(3) (emphases added). Here, WAPA
and the Assistant U.S. Attorney investigated the title history
and current interests in the condemned land, enrolled the ser-
vices of an outside title investigator and, in the end, even
attempted to cooperate with the defendants in an effort to
UNITED STATES v. SAWYER 14907
identify all interest owners. We conclude that the government
has easily met the burden imposed by Rule 71.1(c).3
B. Service On Non-Objecting Defendants
[8] Sawyer contends that Rule 5 of the Federal Rules of
Civil Procedure, required the government to serve its motion
for judgment on the pleadings on those defendants who had
neither objected to the condemnation nor filed a notice of
appearance. But Rule 71.1 governs condemnation proceedings
“except as this rule provides otherwise.” Fed. R. Civ. P.
71.1(a). With regard to notice, Rule 71.1 provides that
[a] defendant that has no objection or defense to the
taking of its property may serve a notice of appear-
ance designating the property in which it claims an
interest. The defendant must then be given notice of
all later proceedings affecting the defendant.
Fed. R. Civ. P. 71.1(e)(1). The only way to give effect to Rule
71.1(e)(1) is to interpret it as overriding the default require-
ment laid out in Rule 5, which mandates that “a pleading filed
after the original complaint” be served on “every party.” Fed.
R. Civ. P. 5(a)(1)(B). Otherwise, the Rule 71.1(e)(1) option
for non-objecting defendants to remain abreast of the case by
filing a “notice of appearance” would be surplusage, for these
defendants would be entitled to receive full service under
Rule 5(a)(1)(B). Applying Rule 71.1(e)(1), therefore, the gov-
ernment was not required to serve non-objecting defendants
3
To the extent that Sawyer relies on our 1952 decision in United States
v. Adamant Co., 197 F.2d 1, 4 (9th Cir. 1952) to establish a due process
requirement to join “all persons having any interest in the property,” his
reliance is misplaced. Adamant was a post-condemnation case dealing
with the apportionment of a compensation award among former interest
holders, not a challenge to a condemnation. Id. at 3-5. Accordingly, the
“universal joinder” principle it endorses is limited to “proceedings . . . to
apportion the award[, in which] the condemnor has no interest.” Id. at 5.
14908 UNITED STATES v. SAWYER
who did not file a notice of appearance with its motion for
judgment on the pleadings.
C. Deference to Sawyer’s Factual Allegations
[9] The district court did not err in refusing to defer to Saw-
yer’s contentions pertaining to the “conditions and predicates”
that confine WAPA’s authority to take property. It is true that,
in deciding a Rule 12 motion, the district court must “take all
allegations of material fact as true and construe them in the
light most favorable to the nonmoving party.” Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
But the “conditions and predicates” to which Sawyer alludes
are not “allegations of fact.” Id. They are either nonreview-
able discretionary determinations—as in the case of the “ne-
cessity” determination, see supra Section I.A—or pure
questions of law—as in the case of the “public use” inquiry,
see supra Section I.B. The district court properly declined to
accord Sawyer’s positions any deference.
D. Consideration of Documents Outside the Pleading
[10] The district court also did not abuse its discretion in
taking judicial notice of the Department of Energy National
Transmission Grid Study (May 2002) (“DOE Study”), which
was not included in the pleadings, and referring to it as back-
ground material in its order granting the government’s motion
for judgment on the pleadings. See Ritter v. Hughes Aircraft
Co., 58 F.3d 454, 458 (9th Cir. 1995) (“An appellate court
reviews the district court’s decision to take judicial notice
under Rule 201 for an abuse of discretion.”). Although, as a
general rule, a district court may not consider materials not
originally included in the pleadings in deciding a Rule 12
motion, Fed. R. Civ. P. 12(d), it “may take judicial notice of
matters of public record” and consider them without convert-
ing a Rule 12 motion into one for summary judgment. Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (inter-
nal quotation marks and citation omitted). Judicial notice is
UNITED STATES v. SAWYER 14909
appropriate for records and “reports of administrative bodies.”
Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380,
385 (9th Cir. 1954). The district court considered the DOE
Study, which is clearly a “report[ ] of [an] administrative
bod[y].” Id. Further, it referred to the report only as back-
ground material, without relying on it to resolve any factual
dispute. We therefore conclude that the district court did not
abuse its discretion in taking judicial notice of the DOE Study
for the limited purpose for which the court considered it.
E. The District Court’s Sua Sponte Summary
Judgment
[11] The district court did not err in granting summary
judgment sua sponte. “Sua sponte grants of summary judg-
ment are only appropriate if the losing party has ‘reasonable
notice that the sufficiency of his or her claim will be in
issue.’ ” Greene v. Solano County Jail, 513 F.3d 982, 990 (9th
Cir. 2008) (quoting Buckingham v. United States, 998 F.2d
735, 742 (9th Cir. 1993)). “Notice need not be explicit. . . .
A party is ‘fairly appraised’ that the court will in fact be
deciding a summary judgement [sic] motion if that party sub-
mits matters outside the pleadings to the judge and invites
consideration of them.” In re Rothery, 143 F.3d 546, 549 (9th
Cir. 1998) (internal citations omitted). Sawyer met this condi-
tion by submitting two declarations outside the pleadings in
support of his opposition to the government’s motion, and he
had a fair opportunity to contest the issues decided in the
motion. See id. More fundamentally, with the exception of
just compensation, Sawyer never raised any issue that
required resolution of any question of fact. See supra. As a
consequence, when Sawyer eventually entered into a stipula-
tion with the government with respect to compensation, he
effectively removed the only factual issue before the court.
The district court did not err in granting summary judgment
sua sponte.4
4
We also reject Sawyer’s contention that the court’s ability to enter
judgment on the pleadings was necessarily confined to Sawyer’s affirma-
14910 UNITED STATES v. SAWYER
F. Apportionment of Just Compensation
[12] Finally, the district court did not abuse its discretion
in apportioning the total compensation by accepting at face
value the ownership information provided by the government.
See United States v. 1.377 Acres of Land, 352 F.3d 1259,
1269 (9th Cir. 2003) (“[T]he apportionment is left to either
the discretion of the court, or the allocation agreed upon by
the parties in a contract.”). “The ‘undivided fee rule’ essen-
tially operates by permitting the governmental authority to
condemn property by providing just compensation, then
allowing the respective interest holders to apportion the award
among themselves, either by contract or judicial interven-
tion.” Id. In the absence of a contractual agreement among the
property owners, it was proper for the district court to appor-
tion the total amount of compensation by “judicial interven-
tion.” Id. Nor do we find an abuse of discretion in the district
court’s deference to the ownership information provided by
the government where, as here: (1) no defendant objected to
the court’s apportionment or presented conflicting ownership
data, and (2) the court has provided an opportunity for
unknown fractional owners to obtain their share of the award
at a later time.
CONCLUSION
The district court did not err in granting summary judgment
in favor of the United States or apportioning the compensa-
tive defenses and could not reach his denial of the allegations contained
in the complaint. The government moved for—and the district court
granted—“judgment on the pleadings on the issue of the government’s
right to take in this action.” (emphasis added). Thus, the government’s
motion encompassed both affirmative defenses and the allegations in the
Answer.
UNITED STATES v. SAWYER 14911
tion among the defendants. The judgment of the district court
is
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433314/ | Certiorari denied without opinion. 217 So.2d 900. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2892098/ | NO. 07-05-0214-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 1, 2005
______________________________
GARRY LEE AMES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 69TH DISTRICT COURT OF DALLAM COUNTY;
NO. 3838; HON. RON ENNS, PRESIDING
_______________________________
MEMORANDUM OPINION
__________________________________
Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1
Pending before the Court is appellant Garry Lee Ames's motion to dismiss his
appeal by which he represents he wishes to withdraw his notice of appeal. The motion is
presented by and through his attorney, but also is personally signed by appellant. Tex. R.
App. P. 42.2(a). No decision of this Court having been delivered to date, the motion is
1
John T. Bo yd, C hief Ju stice (R et.), Se ven th Court of App eals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
granted. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained
and our mandate will issue forthwith.
James T. Campbell
Justice
Do not publish.
2 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/998709/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6192
IVERY SWEEZY,
Plaintiff - Appellant,
versus
STEVE BAILEY, Superintendent; BOB DELANEY,
Psychologist,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Shelby. Graham C. Mullen, Chief Dis-
trict Judge. (CA-96-14-MU)
Submitted: May 13, 1999 Decided: May 20, 1999
Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Affirmed by unpublished per curiam opinion.
Ivery Sweezy, Appellant Pro Se. Curtis Oscar Massey, II, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ivery Sweezy appeals the district court’s order denying relief
on his 42 U.S.C.A. § 1983 (West Supp. 1998) complaint. We have
reviewed the record and the district court’s opinion and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Sweezy v. Bailey, No. CA-96-14-MU (W.D.N.C.
Jan. 21, 1999). We deny Sweezy’s motion for the appointment of
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/998723/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES PAUL HICKMAN VERNA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Terrence W. Boyle, Chief Dis-
trict Judge. (CR-95-15-BO, CA-98-507-BO-5)
Submitted: May 13, 1999 Decided: May 19, 1999
Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
Charles Paul Hickman Verna, Appellant Pro Se. Fenita Morris
Shepard, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Paul Hickman Verna seeks to appeal the district court’s
order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994
& Supp. 1998). We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we deny
a certificate of appealability and dismiss the appeal on the rea-
soning of the district court. See United States v. Verna, Nos. CR-
95-15-BO; CA-98-507-BO-5 (E.D.N.C. Dec. 29, 1998). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3451543/ | Affirming.
Kasimir Kleber died testate in January, 1938. He left surviving him three children, Frank, Joseph and Mary Hurley; and among others, three grandchildren, Lillian Kleber Schuler, Theresa Kleber and Edward Thomas Kleber, children of his deceased son, George. The sixth clause of Mr. Kleber's will, which was executed in 1932, follows: "Item Six. I give and bequeath to my grandchildren, Theresa Kleber, Lillian Kleber and Edward Thomas Kleber (children of my deceased son, George Kleber) the sum of Two Thousand ($2000,00) Dollars each. This bequest to be paid out of my Gas Electric Company stock." The executor declined to pay any of these bequests because, subsequent to the execution of his will, Mr. Kleber had paid to Theresa and Lillian, appellees herein, the sum of $2,000 each. The following writing shows the conditions under which the payment was made to Lillian. The payment to Theresa was made subject to the same conditions.
"This Memorandum is to evidence that Kassmeier Kleber desires to give to his granddaughter, Lillian Kleber Schuler, with which she is to buy a home, the sum of Two Thousand ($2000.00) Dollars; and that said Kassmeier Kleber desires to derive therefrom, during his natural life, an income of three (3%) per cent per annum; therefore
"Witnesseth: That the said Kassmeier does hereby and herewith give unto the said Lillian Kleber Schuler the sum of Two Thousand ($2000.00) Dollars, which sum she accepts and agrees (1) that same will be used in the purchasing of a home, and (2) that she will pay to her grandfather, during the remainder of his natural life, a sum equal to three (3%) per cent per annum, in semi-annual payments.
"Should Lillian Kleber Schuler comply with the above conditions, it is expressly understood that the above shall be considered a gift, and in no event an advancement *Page 120
or loan." This memorandum was signed by Mr. Kleber, Lillian Kleber Schuler and Albert Hurley, the latter being Mr. Kleber's son-in-law and executor of his will, and was duly witnessed.
In 1936 a memorandum relating to Edward Thomas Kleber was executed as follows:
"Received of kazimir Kleber this 18th day of January, 1936, the sum of Two Thousand ($2000.00) Dollars which represents the entire share that my grandson, Edward T. Kleber, will receive from my estate.
"By accepting the above mentioned $2000.00 the undersigned, Edward T. Kleber, hereby waives all of his right, title and interest in and to the estate of Kazimir Kleber." This instrument was signed by Edward T. Kleber in the presence of two witnesses. He is not a party to this appeal.
Lillian and Theresa brought this action against the executor to settle their grandfather's estate. He defended the action by contending that the $2,000 given each girl was an advancement, thus an ademption of the legacy. Hurley presented his own personal claim against the estate for personal services rendered at the special instance and request of the deceased in the sum of $6,010.
It is insisted by the appellant that the transactions did not amount to a gift inter vivos because the essential elements thereof were not shown. He contends the gifts were not complete, and could not go into effect at once because of the conditions and limitations attached to them. It has been held by this Court that the facts necessary to constitute a gift inter vivos are: (1) There must be a competent donor; (2) an intention on his part to make the gift; (3) a donee capable to take it; (4) the gift must be complete with nothing left undone; (5) the property must be delivered and go into effect at once; and (6) the gift must be irrevocable. Gernert v. Liberty Nat. Bank Trust Co., 284 Ky. 575, 145 S.W.2d 522. The gifts here involved were complete with nothing left undone, insofar as the donor was concerned, and the memoranda expressly stated the money was to be considered as gifts when their terms had been fulfilled. The fact that the donor reserved to himself the right to collect interest does not change the nature of the transaction. It has been held that the reservation of interest or dividends is not sufficient to indicate an intention to *Page 121
retain any control over the gift itself. In re Estate of Chapple, 332 Pa. 168, 2 A.2d 719, 121 A.L.R. 422. The gifts met the required tests in other respects also.
It is next contended by the appellant that the payment to appellees of the exact amounts bequeathed to them by the will constitutes an ademption of the legacy. Most of the testator's estate consisted of stock in the Louisville Gas Electric Company, and it is pointed out that a part of this stock was sold in order to pay these sums to the grandchildren. While the will provided that the legacies were to be paid "* * * out of my Gas Electric Company stock," it must be noted that at the time of his death the testator still owned more than enough of this stock to satisfy these legacies.
Ademption of a legacy occurs when the testator, subsequent to the execution of his will, gives to the legatee that which he has provided for in his will or disposes of that part of his estate so bequeathed in such a manner as to make it impossible to carry out the provisions of the will. But where the payment or transfer is expressly shown to have been "a gift and in no way an advancement or loan," it is not considered an ademption of the legacy unless the legacy is a specific one and the subject matter of the legacy has been completely extinguished by the testator, in which event, such an act would operate as an ademption or revocation, whether it was so intended by the testator or not. Dillender v. Wilson, 228 Ky. 758,16 S.W.2d 173.
Finally, the appellant is seeking to reverse the chancellor's ruling that he was not entitled to compensation for the care and nursing of his father-in-law. During the years in controversy Mr. Kleber was past eighty years of age. While he was mentally alert and was able to get about town and attend to his affairs and visit his friends, he was, nevertheless, feeble and confined to his bed at times. He suffered from a severe kidney ailment, a hernia, and required many of the attentions attendant upon the aged and infirm. He fell quite often in and about the house, required assistance in bathing and rather constant menial care and attention in connection with his kidney ailment. With the exception of the time of the flood in Louisville, he lived with his daughter and son-in-law in the home he had given them. There was testimony to the effect that all of these needs and attentions were administered by the son-in-law. He assisted *Page 122
Mr. Kleber about the house; he attended to his soiled clothing and laundered it himself; and he bathed and helped him in every possible manner in order to ease and comfort him in his declining years. While the appellant is to be commended for the devotion and care he is shown to have given his father-in-law, no case is cited wherein this Court has approved a claim for personal services and nursing under circumstances such as are shown here. The law is well settled that an express contract must be proven before one can sustain his claim for services under similar circumstances. No such plea was made herein. Thompson v. Close, 280 Ky. 720, 134 S.W.2d 635, and cases cited therein.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2908402/ | Crow-Randall v. Burnett
IN THE
TENTH COURT OF APPEALS
No. 10-96-113-CV
     RANDALL CROW,
                                                                              Appellant
     v.
     GILBERT BURNETT
      AND GREG WILLIAM BURNETT,
                                                                              Appellees
Â
From the 40th District Court
Ellis County, Texas
Trial Court # 50,184
                                                                                                                Â
DISSENTING OPINION
                                                                                                                Â
      I dissent. See Lance v. USAA Ins. Co., 934 S.W.2d 427, 431-33 (Tex. App.âWaco 1996,
no writ) (Vance, J., dissenting). As was true in Lance, the injured party testified to pain arising
shortly after the accident and that evidence is uncontroverted. Thus, the jury's failure to find any
damages is contrary to the weight of the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58
(Tex. 1983).
      I would reverse the judgment and remand the cause for another trial.
Â
                                                                                 BILL VANCE
                                                                                 Justice
Â
Â
Opinion delivered and filed August 20, 1997
Publish
                                                                    Appellee
Â
Â
Â
From the 272nd District Court
Brazos County, Texas
Trial Court Nos. 29252F-272, 29311F-272 and 29308F-272
Â
DISSENTING Opinion
Â
     A
majority of this Court has previously found unassigned error. E.g.,
Hailey v. State, 50 S.W.3d 636 (Tex. App.ÂWaco 2001), revÂd, 87 S.W.3d 118 (Tex. Crim. App. 2002); In re B.L.D., 56 S.W.3d 203 (Tex. App.ÂWaco 2001) (per curiam), revÂd, 113 S.W.3d 340 (Tex. 2003).Â
The Court has been reversed. E.g., Hailey v. State, 87 S.W.3d 118,
121-22 (Tex. Crim. App. 2002), cert.
denied, 538 U.S. 1060 (2003); In re B.L.D., 113 S.W.3d 340, 350-51 (Tex. 2003), cert.
denied sub nom. Dossey v. Tex. DepÂt
of Protective & Reg. Servs., 124
S. Ct. 1674 (2004).Â
There is virtually no such thing as unassigned error. Id. There is
none to be addressed here.
     A
majority of this Court has previously found fundamental error. E.g.,
Rushing v. State, 50 S.W.3d 715, 722-25 (Tex. App.ÂWaco 2001), affÂd on other grounds, 85 S.W.3d 283,
284-87 (Tex. Crim. App. 2002); B.L.D., 56
S.W.3d at 214-15; In re J.F.C., 57
S.W.3d 66, 74 (Tex. App.ÂWaco 2001), revÂd,
96 S.W.3d 256 (Tex. 2002).Â
The Court has been reversed and been held to have erred. E.g.,
Rushing v. State, 85 S.W.3d 283, 284-87 (Tex. Crim. App. 2002); B.L.D., 113 S.W.3d at 350-51; In
re J.F.C., 96 S.W.3d 256, 272-74, 277-79 (Tex. 2002).Â
There is almost no such thing as fundamental error. Mendez
v. State, 138 S.W.3d 334, 340-42 (Tex. Crim. App. 2004); Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002); Paulson v. State, 28 S.W.3d 570, 573
(Tex. Crim. App. 2000) (reasonable doubt instruction not absolute systemic
requirement). There is no fundamental
error in the charge without egregious harm. Â
Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on rehÂg).Â
There is no fundamental error here.Â
     The
majority again finds unassigned and fundamental error here. I dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed November
10, 2004
Publish | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3438490/ | The Honorable Laura L. McClure State Representative, One Hundred Nineteenth District State Capital, Room 278-W Topeka, Kansas 66612-1504
Dear Representative McClure:
As representative for the 119th district you ask whether the person selected as the secretary to the board of agriculture (in accordance with current proposed legislation) may by statute be made a member of the "governor's cabinet."
We find no constitutional or statutory reference to the "cabinet." The only mention of the term in Kansas case law is in a Kansas Supreme Court dissenting opinion:
"The state government is not modeled on the cabinet system. On the contrary, the constitution expressly provides (const., art. 1, sec. 1) that the executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor, treasurer and attorney general, and superintendent of public instruction." State v. Dawson, 86 Kan. 180, 192
(1911) (J. West, dissenting). (Kan. Const., art. 1, sec. 1 was amended eliminating the auditor, treasurer, and the superintendent of public instruction from the executive department.) L. 1972, ch. 390, sec. 1.
The term "governor's cabinet" is a term of art which has evolved by tradition and is patterned after the president's cabinet, also a creation of custom and tradition. Each member of the president's cabinet has a constitutional duty as the principal officer of an executive department to provide opinions to the president as he requires pursuant to article II, section 2 of the United States Constitution. There is a similar provision in article 1, section 4 of the Kansas constitution wherein the governor may require information "from the officers of the executive department, upon any subject relating to their duties." These constitutional provisions are the basis of our argument although, as discussed below, rather than conferring power, our state constitution limits it.
The Supreme Court in Leek v. Theis, 217 Kan. 784 (1974), reiterates succinctly the principle that all governmental power under our system of government is inherent in the people of our state, who exercise such power through the legislative branch of government. Id. at 802. Accordingly, the legislature is free to act, except as it is restricted by the state and federal constitutions. Id. These principles have given rise to the oft-repeated proposition that our constitution limits rather than confers powers, and any power not limited by the constitution remains with the people and their legislators. See, e.g.,NEA-Forst Scott v. U.S.D. No. 234, 225 Kan. 607, 609 (1979).
The legislature has acted to create those executive officers that head the state departments. The governor's "cabinet" currently includes the lieutenant governor, the secretary of the board of agriculture and the secretaries of the following state departments: Wildlife and parks, commerce and housing, administration, transportation, revenue, corrections, social and rehabilitation services, health and environment, human resources, and aging. Although there is no constitutional or statutory provision which indicates that these secretaries are part of the "cabinet," they have some common characteristics. All of the secretaries listed above are appointed by the governor subject to the confirmation of the senate, and serve at the pleasure of the governor. See K.S.A. 32-801; 74-5002; K.S.A. 1994 Supp. 75-3702; 75-5001; 75-5101; 75-5203; 75-5301; 75-5601; 75-5701; 75-5903, respectively. Under proposed legislation House Bill No. 2078 the secretary would be elected by the board of agriculture. Our conclusion under these circumstances remains the same because as a head of an executive department the secretary is subject to the Kansas constitutional provision in Art. 1, sec. 4. This provision does not require that the governor take the advice of this executive head. It allows the governor to request advice as he needs it.
A legislative enactment providing that the secretary of the board of agriculture serve as a member of the executive department and thus be subject to the governor's requirement that she provide information relating to her duties does not in our judgment amount to more than what article 1, section 4 of the Kansas constitution already requires. In conclusion, and for this reason, it is our opinion that the legislature may enact legislation requiring the secretary serve as a member of the governor's cabinet that historically has been comprised of the executive department officers who provide advice as required by the governor.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Guen Easley Assistant Attorney General
RTS:JLM:GE:jm | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1022114/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-8063
MAURICE GARVIN,
Petitioner - Appellant,
versus
THEODIS BECK, Secretary,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:06-cv-00460)
Submitted: March 22, 2007 Decided: March 30, 2007
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Maurice Garvin, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Garvin seeks to appeal the district court’s order
dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Garvin has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/131689/ | 540 U.S. 842
BALDWINv.UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK.
No. 02-10912.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4538809/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JERRY FERNANDEZ,
Appellant,
v.
NINA POTTER FERNANDEZ and POTTER'S PROFESSIONAL LAWN
CARE, INC., d/b/a POTTER'S LAWN AND LANDSCAPING,
Appellees.
Nos. 4D19-1288 and 4D19-2847
[June 4, 2020]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Jessica Ticktin, Judge; L.T. Case No.
502018DR000171XXXXSB.
Benedict P. Kuehne and Michael T. Davis of Kuehne Davis Law, P.A.,
Miami; and Michael A. Pizzi, Jr. of Michael A. Pizzi, Jr., P.A., Miami Lakes,
for appellant.
Mark A. Levy, Julia Wyda and Benjamin Sunshine of Brinkley Morgan,
Fort Lauderdale, for appellees.
PER CURIAM.
Affirmed.
LEVINE, C.J., DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/131695/ | 540 U.S. 843
CORTINASv.UNITED STATES.
No. 02-10928.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 5th Cir.
2
Certiorari denied. Reported below: 55 Fed. Appx. 716. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2782000/ | Cite as 2015 Ark. App. 128
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-598
IN THE MATTER OF THE Opinion Delivered February 25, 2015
GUARDIANSHIP OF SCHERRIE
MACKLEY, A MINOR, and BECKY APPEAL FROM THE CRAWFORD
FOSTER, GUARDIAN; IN THE COUNTY CIRCUIT COURT
MATTER OF THE GUARDIANSHIP [NO. 17PR-2003-172; 17PR-2003-171]
OF CHEYENNE ENGLISH, A MINOR,
and EDDIE ENGLISH, GUARDIAN
APPELLANTS
HONORABLE GARY R. COTTRELL,
V. JUDGE
CIRCUIT COURT OF CRAWFORD
COUNTY
APPELLEE APPEAL DISMISSED
PHILLIP T. WHITEAKER, Judge
In this consolidated appeal, appellants Scherrie Mackley and Cheyenne English
challenge separate orders from the Crawford County Circuit Court denying their petitions
to terminate guardianships that had been created when they were children. On appeal,
Mackley and English both argue that their guardianships were created solely because of their
minority and that, because their incapacity had been removed, their guardianships should
have been terminated as a matter of law. We are unable to reach this argument for the
reasons set out below, however, and we must dismiss the appeal.
Cite as 2015 Ark. App. 128
I. Procedural Background
Both Mackley and English were seriously injured in an accident when they were
minors. As a result of their injuries, they each received settlements of $100,000. Because they
were minors at the time, the circuit court entered orders appointing guardians for each girl;
the girls’ only incapacity was their age. In both cases, the guardians were directed to deposit
the entirety of the settlement funds into a bank account and agreed not to permit any
withdrawals from those deposits except on authority of a circuit court order.
After Mackley and English each reached the age of eighteen, they filed joint petitions
with their respective guardians for termination of the guardianships and release of the money.
Both wards argued that, because they had reached the age of majority, the guardianships
should be terminated by operation of law pursuant to Arkansas Code Annotated section 28-
65-401 (Supp. 2013). Mackley and English filed separate motions for summary judgment on
the issue as well. The circuit court denied both requests for termination: in Mackley’s case,
the court entered an order denying her motion for summary judgment; in English’s case, the
court entered an order denying her petition to terminate.
II. Mackley’s Appeal
As just noted, Mackley’s petition for termination of guardianship was concluded by
the circuit court’s denial of her motion for summary judgment in an order that read as
follows:
On this 23rd day of April, 2014, this matter comes before the Court, the Court
being well and sufficiently advised does find as follows:
2
Cite as 2015 Ark. App. 128
1. That this Court denies the Motion for Summary Judgment filed in this
matter on April 7, 2014.
It is so ordered.
Under Arkansas Rule of Appellate Procedure–3(e), a notice of appeal must designate
the order, judgment, or decree from which the appeal is taken. Mackley’s notice of appeal
specifically states that she is appealing the “order denying a motion for summary judgment.”
With certain exceptions not applicable here, however, the denial of summary judgment is
generally not an appealable order. Banning v. LNV Corp., 2014 Ark. App. 207; Jenkins v. APS
Ins., LLC, 2013 Ark. App. 746, 431 S.W.3d 356; see also Courtney v. Ward, 2012 Ark. App.
148, at 9, 391 S.W.3d 686, 692 (“The denial of a motion for summary judgment is an
interlocutory order and is not appealable.”). Although such an order may be appealable when
combined with a dismissal on the merits, see Splawn v. Wade, 2014 Ark. App. 151, here, there
is clearly no dispositive language regarding the merits of Mackley’s petition. Because Mackley
has attempted to appeal from an unappealable order, we must dismiss her appeal.
III. English’s Appeal
We must dismiss English’s appeal as well. In this case, the circuit court entered its
order denying English’s joint petition to terminate guardianship on January 26, 2014. The
record reflects that neither a notice of appeal nor any time-extending posttrial motion was
filed within thirty days of this order. The court then entered an amended order on March
14, 2014. English filed a notice of appeal on April 14, 2014, purporting to appeal from “an
3
Cite as 2015 Ark. App. 128
order issued by this court denying the termination of guardianship, entered in this case on
December 1, 2013[1] and a sua sponte order entered on March 14, 2014.”
A timely notice of appeal is essential to this court obtaining jurisdiction. Stacks v.
Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). The failure to file a timely notice of appeal
deprives the appellate court of jurisdiction. Jefferson v. Ark. Dep’t of Human Servs., 356 Ark.
647, 158 S.W.3d 129 (2004). Arkansas Rule of Appellate Procedure–Civil 4 states that “a
notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree
or order appealed from.” Ark. R. App. P.–Civ. 4(a) (2013). The timely filing of certain
specific motions may extend the time for filing a notice of appeal. Ark. R. App. P.–Civ. 4(b).
The only motions that will extend the time are a motion for judgment notwithstanding the
verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the
court’s findings of fact or to make additional findings pursuant to Rule 52(b), a motion for
new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment
made no later than ten days after entry of the judgment. Ark. R. App. P.–Civ. 4(b); Reeve
v. Carroll Cnty., 373 Ark. 584, 285 S.W.3d 242 (2008).
The January 26, 2014 order denying English’s petition to terminate the guardianship
was a final, appealable order. See Graham v. Metheny, 2009 Ark. 481, 346 S.W.3d 273. No
1
The body of the order stated that, “Now on this 1st day of December, 2013, comes
on for consideration the joint petition to terminate guardianship and release funds.” The file-
stamp on the order, however, states that it was filed on January 26, 2014. An order is not
entered until it is file-stamped by the clerk. See Ark. Sup. Ct. Admin. Order No. 2(b)(2);
Clark v. So. Farm Bur. Cas. Ins. Co., 2014 Ark. App. 391.
4
Cite as 2015 Ark. App. 128
timely appeal was taken from this order, nor were any appropriate posttrial motions filed that
would have either extended the time for filing the notice of appeal or necessitated the circuit
court’s entry of an amended order a month and a half later.2 Because English failed to file a
timely notice of appeal from the court’s final, appealable order, we lack jurisdiction to
consider her appeal.
Appeal dismissed.
HARRISON and VAUGHT, JJ., agree.
Medlock, Gramlich & Sexton, by: M. Jered Medlock, for appellants.
No response.
2
Even if English had filed a time-extending posttrial motion, such a motion would
have had to have been filed within ten days of the January 26 order, or by February 7, 2014.
(Although the tenth calendar day following January 26, 2014, was February 5, when a period
of time prescribed by court rule is less than fourteen days, intermediate Saturdays, Sundays,
or legal holidays are excluded from the computation. See Ark. R. Civ. P. 6(a).) Any such
hypothetical motion would have been deemed denied thirty days later (or by March 10,
2014) in the absence of action by the circuit court, see Ark. R. App. P.–Civ. 4(b)(1), at
which point the circuit court would have lost jurisdiction to act. See Allen v. Allen, 2013 Ark.
App. 292.
5 | 01-03-2023 | 02-25-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2986875/ | Order filed May 15, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00414-CV
____________
IN THE INTEREST OF M.D.C., A Child
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2010-51514
ORDER
This is an accelerated appeal from a judgment in a suit in which the
termination of the parent-child relationship is at issue (“parental termination
case”). The notice of appeal was filed April 30, 2013. Appellant has established
indigence or is presumed to be indigent. See Tex. R. App. P. 20.1(a). The
reporter’s record was due within 10 days after the notice of appeal was filed. See
Tex. R. App. P. 35.1(b); 28.4(a)(1). The record has not been filed.
Appeals in parental termination cases and child protection cases are to be
brought to final disposition within 180 days of the date the notice of appeal is
filed. See Tex. R. Jud. Admin. 6.2(a) (effective May 1, 2012). The trial and
appellate courts are jointly responsible for ensuring that the appellate record is
timely filed. See Tex. R. App. P. 35.3(c). The trial court must direct the court
reporter to immediately commence the preparation of the reporter’s record and
must arrange for a substitute reporter, if necessary. See Tex. R. App. P.
28.4(b)(1).
Because the reporter’s record has not been filed timely in this accelerated
appeal, we issue the following order:
We order Phyllis Gonzales, the official court reporter, to file the record in
this appeal on or before May 28, 2013. If does not timely file the record as
ordered, the court will issue an order requiring her to appear at a hearing to show
cause why the record has not been timely filed and why she should not be held in
contempt of court for failing to file the record as ordered. Contempt of court is
punishable by a fine and/or confinement in jail.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3457342/ | Reversing.
By this action in equity the City of Lexington sought and procured a sale of a certain residence property in satisfaction of its lien for delinquent taxes amounting to approximately $600, exclusive of interest and penalties. The life tenant against whom the taxes were assessed, together with the remaindermen, one of whom was a nonresident infant, were made parties defendant. The property was appraised at $4,000, adjudged indivisible, and sold as a whole after due advertisement. The appellee became the purchaser for $3,300, and excepted to the Commissioner's report of sale on numerous grounds, among which was that the Court was without jurisdiction to sell the remainder interest until the estate of the life tenant had been exhausted.
While it was proper to assess the taxes against the owner of the life estate alone (Kentucky Statutes, Section 4049), and permissible under the provisions of Sections 3187d and 3187g, Kentucky Statutes, for the City to resort to an action in the Circuit Court to enforce its lien and the personal liability of the taxpayer created by the latter section, we are nevertheless of the opinion that it was not contemplated by the Legislature that by instituting a suit rather than by selling the property at auction at the City Hall in the manner prescribed by Section 3187, Kentucky Statutes, the City would be enabled to avoid the requirements of that section that the particular estate in real property be offered for sale before the whole property is offered.
It is not a sufficient answer that the requirement *Page 611
that the life estate be first offered for sale is found only in that section of the Statutes relating to sales by the City Treasurer, or that the petition alleged that the life tenant was without property out of which the taxes could be realized, or that the remaindermen waived the prior sale of the life estate by failure to object, since it is manifest from the whole body of our statutory law relating to taxation and our decisions relating to duties of life tenants and remaindermen with respect thereto, that it was the legislative intent that inability of the taxing authorities to collect from the life tenant should be a condition precedent to the right to sell the interests of remaindermen for taxes. As an example, see Section 3007, Kentucky Statutes, which relates to the collection of taxes by cities of the first class. Also Thomas v. Thomas' Guardian et al., 244 Ky. 724, 51 S.W.2d 949; Fenley et al. v. City of Louisville, 119 Ky. 569, 84 S.W. 582.
It is true that Section 3187d, Kentucky Statutes, provides that attested copies of the tax bills when filed with the petition shall constitute prima facie evidence of the regularity of the assessment and levy and "of every other fact and proceeding necessary to entitle the City to judgment for the taxes * * * and to have a sale of the property for the payment of same, though said relief be against a non-resident or person under disability"; and that accordingly it was not necessary for the City, unless the question was put in issue, to prove that the life tenant did not possess other property out of which the taxes could be made. But the fact that the life estate was outstanding was set forth in the petition, and until it was exhausted, the Court was without jurisdiction to sell the whole property.
Judgment reversed for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457343/ | Affirming.
This is a declaratory judgment action brought by the devisees under the will of Mrs. Lizzie R. Sweeney against her executor, J.E. Brown, wherein the court is asked to construe the will, to declare the rights of the parties and to determine whether or not the executor has implied power under the will to sell and convey the real estate of his decedent.
All three of the beneficiaries, one of whom is an infant suing by his next friend, want the real estate sold and the proceeds divided. The executor, being in doubt *Page 680
as to his authority to sell under the will, refused to do so unless directed by the court.
The chancellor held that the real estate was not susceptible of division and in order to carry out the intention of the testatrix that the property be equally divided among the three devisees, who reside in a foreign state, it is necessary that the house and lot be sold, therefore the will by implication authorized the executor to sell it. The executor appeals.
Mrs. Sweeney was a widow, who resided in a modest one-family cottage on a small lot in Harrodsburg. She executed her will on June 6, 1946, which was evidently written by a layman. The record shows that at the time she executed the paper she owned no real estate and all of her estate was in personal property. Several months after making her will she acquired this cottage, which the record shows is worth approximately $4500. The petition itemizes her personal estate at $8,960.61, all of which appears to be in high grade securities, except $260.61 cash and household goods of the approximate value of $500. She left no debts except the expense of her last illness and funeral, not exceeding $1000.
After providing for the payment of her debts, funeral expenses and naming an executor, the will of Mrs. Sweeney reads:
"I hereby give, devise and bequeath all of my property both real and personal to my two nieces, Mary Dudley Anderson and Katherine R. Coleman and my nephew (Great) John D. Jackson to be equally divided between the three. Should Mary Dudley Anderson not survive me then I direct that her share of my estate as above set out go to my great nephew John D. Jackson.
"I direct that such articles of my personal property that my nieces and nephew may want that they be equally divided between them as they may agree and the remainder to be sold and the proceeds equally divided."
The rule seems to be that where the will does not confer upon the executor the authority to sell the property of the estate but does direct him to take certain action from which it may be reasonably inferred that *Page 681
the testator manifested an intention that the executor should have the power of sale, the will is construed as granting such power by implication. Martin v. Buechel, 186 Ky. 786,218 S.W. 278; Walker's Trustee v. Walker, 196 Ky. 346, 244 S.W. 772; Evans v. Smith, 302 Ky. 871, 196 S.W.2d 737.
The difficulty in such cases is discovering the true intention of the testator. Where it is necessary to sell property for the payment of decedent's debts or to carry out testator's intention as to the division of the estate, courts usually hold there is an implied power of sale given the executor by the testamentary paper. But the authorities are not in accord as to the power being implied where the will only directs a division of the estate among the beneficiaries. In such instances the phraseology of the entire will together with the number of devisees, their respective shares, the value and character of the estate all must be taken into consideration in determining whether the paper implies a power of sale in the personal representative. See Annotations 134 A.L.R. 387.
The law favors division in kind, especially as to real estate, and where the word "divide" or like words are used in a will merely to denote the share of the devisees and an actual division of the whole estate may be made, the paper will be construed as not granting an implied power of sale. Walker's Trustee v. Walker, 196 Ky. 346, 244 S.W. 772; Evans v. Smith,302 Ky. 871, 196 S.W.2d 737.
Let us now apply the above law to the will before us. Testatrix owned no real estate when she executed her will. Consequently, when she wrote that the estate "be equally divided between the three," and after providing that the nieces and nephew divide her personal property equally among themselves as they may agree, "the remainder to be sold and the proceeds equally divided," it is patent she intended for her executor to reduce the estate to cash and then divide it as the will directed. Furthermore, the two nieces lived in a distant state and the nephew was an infant, and after acquiring this little home testatrix must have realized that none of her devisees would occupy it; also, she knew this modest home was indivisible. Since she had directed her *Page 682
estate to be divided equally among the beneficiaries and had directed a sale of all personal property which they might not agree upon in the division, it is evident that her intention was that this indivisible real estate should be sold along with her personal property and the proceeds divided among the three beneficiaries, else she would have changed her will.
This case is clearly distinguishable from the Walker case,196 Ky. 346, 244 S.W. 772, and Allen v. Riedling, 283 Ky. 90,140 S.W.2d 833, in which appellant places so much reliance. In the Walker estate there were 70 acres in the corporate limits of the city of Richmond, Ky., also, decedent's home place of some eight acres was situated in a good residential part of that city. The whole tenor of the Walker will shows a desire by testator to protect the beneficiaries and to supply them with a living rather than money. It provides (196 Ky. 346,244 S.W. 773) "at the death of Mary (the mother) an equal divide of the balance, if any." It was correctly said in the opinion that the will implied no power of sale in the executor; that the real estate could and should be cut into town lots and divided among the six beneficiaries, which would carry out the intent of the testator. The Allen case recited that all the residue of the estate (283 Ky. 90, 140 S.W.2d 835) "be divided share and share alike" and we held that such language contained no implied power to the executor to sell the real estate, largely basing our opinion on the Walker case.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457344/ | Certifying the law.
The grand jury of Letcher county indicted Kelsey Fields for converting the property of another without the consent of the owner, a crime denounced by section 1358a, Kentucky Statutes. A demurrer was sustained to the indictment, and the indictment was dismissed. The commonwealth appeals for the purpose of having the law certified.
The indictment reads as follows:
"The Grand Jury of the County of Letcher, in the name and by the authority of the Commonwealth of Kentucky, accuse Kelsey Fields of the crime of unlawfully, fraudulently and feloniously converting to his own use money of value, the property of another, without the consent of the owner thereof, committed in manner and form as follows, to-wit:
"The said defendant Kelsey Fields in the County of Letcher, on the 20th day of April A.D. 1936, and before the finding of this indictment, did unlawfully, *Page 410
willfully, feloniously, and fraudulently, he then and there being the agent, servant and collector of and for F.G. Fields, Justice of the Peace of Letcher County, unlawfully, fraudulently and feloniously, and without the consent and against the will of the said F.G. Fields, Justice of the Peace as aforesaid, convert to his own use the sum of $101.55, collected by the said Kelsey Fields from Elk Horn Coal Corporation, and representing various sums and amounts held by the said Elk Horn Coal Corporation as garnishee defendant in various civil actions pending in the court of the said F.G. Fields, Justice of the Peace of Letcher County, Magisterial District No. 1 thereof, which said money had then and there been entrusted to the care, custody and keeping of the said Kelsey Fields by reason aforesaid and virtue of the said agency, service and clerkship, existing as aforesaid, and that he the said Kelsey Fields collected said moneys and disposed of the same with the fraudulent and felonious intent then and there to permanently deprive the owner thereof of their property therein, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the Commonwealth of Kentucky."
The indictment was held insufficient on the ground that it failed to name the owner of the property converted. The Commonwealth insists that the indictment is sufficient under the rule laid down in Roland v. Commonwealth, 134 Ky. 170,119 S.W. 760, and Commonwealth v. Bain, 240 Ky. 611,42 S.W.2d 876. In the first-mentioned case Roland, the prison clerk, was indicted for embezzling funds belonging to the convicts in the penitentiary. The indictment alleged that the funds embezzled belonged to the convicts, and that the names of the several owners of the funds were unknown to the grand jurors. The indictment was held sufficient, although it failed to name the convicts whose money was deposited with Roland, the clerk. In the case of Commonwealth v. Bain, Bain was indicted for fraudulently converting to his own use money and other property of Allie Bain, city tax collector of Pineville, and of the city of Pineville, of the value of more than $20. Not only did the indictment allege ownership of the property in the city, but also in the tax collector. It was held that a tax collector *Page 411
has special ownership of taxes collected as regards conversion of such property, and allegations of either absolute or special ownership are sufficient. It was further held that an indictment involving conversion was not defective in that it charged ownership of the property in two or more different persons. The indictment under consideration did not name the owner or owners of the property converted, nor did it state that their names were unknown to the grand jurors, nor was the offense described in other respects with sufficient certainty to identify the act and render an erroneous allegation of ownership immaterial. It has always been the rule that ownership of the property embezzled or converted must be stated with the same degree of care as is required in an indictment for larceny. Commonwealth v. Bradley, 132 Ky. 512,116 S.W. 761. As pointed out in Commonwealth v. Bain, supra, the purpose of charging ownership in embezzlement or conversion cases is not only to show that the title or ownership was not in the accused, but to bring notice to him of the particular offense which he is called on to answer, and to bar his subsequent prosecution for the same offense. The indictment in question does not come up to these requirements. It is so vague, uncertain, and indefinite as to leave the accused in doubt as to the crime charged, and permits several prosecutions for the same offense. It follows that the demurrer was properly sustained.
Wherefore this opinion is certified as the law of the case. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457348/ | Affirming.
On June 2, 1926, the Fidelity Mutual Life Insurance Company issued to Darrell D. Gardner a policy insuring his life in the sum of $1,000, payable to his estate, and providing for permanent total disability benefits for which $2.47 of the annual premium of $30.79 was paid. Among the miscellaneous provisions contained in section 4 of the policy is the following:
"Payment of premiums and Days of Grace. — Every premium is due and payable in advance at the Head Office of the Company in Philadelphia, Pennsylvania, but may be paid to an authorized agent of the Company upon delivery of a receipt signed by the President and Treasurer of the Company and countersigned by said agent. A grace of thirty-one days from the due date named in this policy for the payment of every premium after the first is hereby granted, during which time the insurance shall continue in force, and if the insured shall die within the days of grace, the amount of the over-due premium shall be deducted in any settlement hereunder. When this policy shall become payable by the death of the insured, there shall be deducted any unpaid premium or premiums for the full policy year within which the insured may die. Except as herein provided, the payment of the premium shall not maintain this policy in force beyond the due date of the next premium. Upon default in the payment of any premium or premium obligation, this policy shall immediately cease and determine and become void and all premiums previously paid shall be forfeited to the Company except as provided in Section 3." *Page 90
The material provisions of section 6, relating to permanent disability benefits, are as follows:
"After the first premium shall have been paid hereunder, and prior to default in payment of any subsequent premium, upon receipt by the Company at its Head Office of due proof that the insured has become totally and presumably permanently disabled after the insurance under this policy became effective and prior to the anniversary of this policy on which insured's age at nearest birthday is sixty-five years the Company will allow permanent total disability benefits upon the terms and conditions hereinafter set forth in this Section.
"Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease, so that he is prevented thereby from performing any work or from following any occupation whatsoever for compensation, gain or profit, and such total disability shall be presumed to be permanent after the insured has been continuously so disabled for three months or more. The entire and irrecoverable loss of the sight of both eyes or the use of both hands or of both feet, or of one hand and one foot, shall be considered a permanent total disability.
"1. Waiver of Premium. — The Company will, during the continuance of such permanent total disability, waive payment of each premium on this policy, as it becomes due, beginning with the first premium due after approval of such proof by the Company. Any premium due prior to such approval must be paid in accordance with the terms of this policy, and when so paid, if it fell due after the commencement of such permanent total disability, will be refunded upon approval of such proof.
"2. Disability Income. — In addition to waiving the payment of premiums as aforesaid, the Company will allow to the insured, upon receipt and approval of such proof, a disability income of $10.00 as of the date of the commencement of such permanent total disability and a like amount on the corresponding day of each calendar month thereafter during the continuance of such permanent total disability.
"Other Benefits Not Decreased. — The benefits payable under this policy at the death of the insured *Page 91
or at Maturity as Endowment and the benefits provided in Sections 2 and 3 on second page hereof shall not be decreased by reason of the allowance of any permanent total disability benefit, and dividends will be paid in the same manner as if no permanent total disability benefit has been received hereunder."
The premiums due on June 2, 1926, and June 2, 1927, were paid. The premium due on June 2, 1928, was not paid; but during the latter part of June, and within the period of grace, the insured became totally and permanently disabled. The insured was confined to his bed from that time until July 5th, when he was sent to the Louisville City Hospital. Immediately after entering the hospital he was operated on for appendicitis. Peritonitis developed, and he died on July 13th, ten days after the grace period expired. No notice or proof that the insured was disabled was given the company prior to default in payment of the premium, but on July 16, 1928, counsel for Gardner's administrator notified the company's local agency of his death, and requested blanks for proof of death. The company then denied liability. Thereupon this suit was brought in equity to recover on the policy. On final hearing the court rendered judgment in favor of the administrator for the face amount of the policy, together with certain disability income benefits, amounting to $10.06. The company appeals.
Appellant first insists that the policy lapsed for nonpayment of premium, as payment of the premium due June 2, 1928, was not waived because (1) Gardner's disability accrued after the premium fell due; and (2) Fidelity Mutual was not notified of the disability during the grace period. In Southern Life Insurance Co. v. Hazard, 148 Ky. 465, 146 S.W. 1107, 1109, we had occasion to consider a similar policy to determine whether furnishing proof of total and permanent disability prior to default in payment of the premium was a condition precedent to the waiver of premium. There the policy was issued September 27, 1909, and the first premium was paid. The next premium was due on September 27, 1910. On June 25, 1910, insured became wholly disabled. The disability continued until death on May 18, 1911. On December 21, 1910, the insured furnished the required proof. The policy provided that premiums would be paid by the company if the insured was wholly disabled *Page 92
after one full annual payment had been made, and before a default in the payment of any subsequent premium if the insured furnished satisfactory proof that he had been wholly disabled by disease and would be permanently, continuously, and wholly prevented from pursuing any occupation. The court said:
"In the case at bar Hazard's right to have the company pay his premiums was fixed, under the terms of the policy, at the time he became disabled, on June 25, 1910. He was not required to pay anything to have that right perfected, since by the terms of the policy all he had to do was to furnish proof of his disability. The right, therefore, having been fixed during the life of the policy, and without the payment of any further premiums, it is apparent, under the authority of the Montgomery case, and the other cases heretofore cited, that time was not of the essence of Hazard's right to have the company pay his premiums. The presumption naturally arises that, having become totally disabled physically, he was not in a condition to attend to his business with that promptness which is required of persons in a normal condition. It is such conditions as these that give rise to the doctrine that time is not, in equity, of the essence of the contract. Since Hazard had the right at the time he became disabled, for the mere asking, to have the company pay his premiums until his death, we see no reason why, under the authorities heretofore cited, that he should not have had a reasonable time thereafter in which to present the proofs of his disability as required by the policy. Under the facts of this case we are clearly of opinion that the proofs of disability were furnished within a reasonable time."
In the more recent case of Metropolitan Life Insurance Co. v. Carroll, Adm'r, 209 Ky. 522, 273 S.W. 54, 56, involving a similar policy, the facts were these: McLaren, the insured, paid the first premium due on June 27, 1922. The next premium was due on June 27, 1923. Before the days of grace expired he became totally and permanently disabled, and died on July 30, 1928. Proofs of disability were not furnished during the days of grace, or prior to his death. After his death the insurer denied *Page 93
liability on the contract. In upholding a recovery on the policy, the court said:
"Before the days of grace expired and on July 15th, the insured was stricken with a mortal disease. He could not present proofs before he was taken sick, and it would be a very unreasonable construction of the contract to say that he lost his rights by not presenting proofs while in this condition and before his death on July 30th. Such a construction of the contract would make it of no value to the insured in such cases, although this clause of the contract would, in many cases, be the inducement for taking the insurance, for this kind of insurance is usually taken by people who work for a living and who would rely on the company carrying the premium in case they become disabled.
"A very strict rule has been followed in favor of the insurer where the annual premium is not paid when due, but this is for the reason that the annual premium is the basis of the contract, and the business cannot be carried on without the payment of the premiums. But the furnishing of proofs of disability is entirely a different matter, and it is a sound rule that time is not of the essence of the contract, and that proofs may be furnished in a reasonable time. It would have been nugatory to furnish the proofs after the insured died and after the insured denied liability on the contract. The denial of liability excused the furnishing of proofs then, and a reasonable time for furnishing the proofs had not then elapsed."
In the case under consideration the insured became totally and permanently disabled during the period of grace, and was unable to care for himself or furnish proof of his disability before that period expired. On the second day after the expiration of the grace period he was operated on, and died eight days thereafter. Three days after his death his administrator offered to prove his prior disability and death. Clearly this was within a reasonable time, and the company's denial of liability dispensed with the necessity of furnishing the proof.
But appellant makes the contention that the policy in question provides for a waiver "beginning with the *Page 94
first premium due after approval of such proof by the Company," and further declares "any premium due prior to such approval must be paid in accordance with the terms of this policy," and that neither of the policies in the cases referred to above contains a similar provision. The provision relied on must be considered in connection with the words "and prior to default in payment of any subsequent premium." Though technically a premium is due on its due date, it is generally regarded as due and payable at any time within the period of grace, and there is no default in its payment until the expiration of that period. Construing the provision in question most favorably to the insured, we conclude that a premium is the next due premium where the period of grace does not expire until after the commencement of the permanent total disability. Such being the situation here presented, it follows that the policy did not lapse because of the nonpayment of the premium due on June 2, 1928, but that the payment thereof was waived by the company, and that the policy was in force at the time of the death of the insured.
Having held that the payment of the premium of $30.79 due on June 2, 1928, was waived by the company, it likewise follows that the lower court did not err in refusing to credit the company with that sum.
In reply to the contention that certain evidence was improperly admitted, it is sufficient to say that the case was tried in equity, and even if the evidence complained of should have been excluded, the other evidence is sufficient to sustain the chancellor's finding that the insured was totally and permanently disabled before the expiration of the period of grace.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1022113/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-8084
RONNIE CLARENCE HEADEN,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cv-00560-RBS)
Submitted: March 22, 2007 Decided: March 30, 2007
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ronnie Clarence Headen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Clarence Hayden seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2000)
petition. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Headen has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We also deny Headen’s
motions for appointment of counsel and for a court order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
- 2 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3457350/ | Affirming.
The city of Lebanon reconstructed Main street in said city, and in doing so lowered the grade of the street next the garage of appellee. Appellee instituted suit to recover damages by reason of the lowering of the grade. The trial resulted in a verdict in favor of appellee for $750.
It is insisted by counsel for the city that a demurrer should have been sustained because the petition did not allege negligent construction. The suit was one for the taking of property under section 242 of the Constitution, and it was not necessary to allege negligence. It is also insisted that the court erred in not requiring appellee to elect whether he was seeking to recover for a permanent injury to his property or a temporary injury. The petition was for a permanent taking of the property, and the court did not err in overruling the motion. It is insisted that the court erred in failing to give an instruction offered by the city which required the jury to find for the city, if it should believe from the evidence that the work was original construction, and that no grade had theretofore been established. The petition alleged that the city had maintained the street for many years at a fixed grade, and this allegation was not denied. The court did not err in refusing this instruction. It is also insisted that the verdict is excessive. It is true the verdict is large, as we view it, and the evidence was not very satisfactory as to the difference in the value of the property just before the construction of the street and just after the construction of the street, but it was a question for the jury to determine, and there was evidence from which the jury might reach the conclusion that the difference in value was as much as $750.
The instructions given by the court were not complained of in the motion and grounds for a new trial.
We deem it unnecessary to enter into a discussion of the question of law controlling in cases of this nature. This court has recently, in the case of Board of Councilmen of the City of Frankfort v. Brammell, 220 Ky. 132, 294 S.W. 1076, reviewed all the cases where similar questions were involved. Measuring this case by the law as determined in that case, we find no prejudicial error to the rights of the city.
Judgment affirmed. *Page 379 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2832762/ | Case: 14-51061 Document: 00513176721 Page: 1 Date Filed: 09/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51061 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, September 1, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
JEFFERY NEWTON SHARP, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CR-78-1
Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Appellant Jeffrey Newton Sharp, Jr., appeals his conviction and sentence
for possession of a firearm by a convicted felon. We AFFIRM.
FACTS AND PROCEEDINGS
Sharp pleaded not guilty to possession of a firearm by a convicted felon.
At a one-day jury trial, the government adduced the following facts. On March
16, 2014, two police officers from the Waco Police Department responded to a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-51061 Document: 00513176721 Page: 2 Date Filed: 09/01/2015
No. 14-51061
call that an individual was trespassing at Highland Cove Apartments. Upon
arriving at the apartments, the officers learned that the suspect was Sharp.
One of the officers, Officer Austin Evans, testified that he had previously told
Sharp to leave the apartments. Upon receiving information that Sharp was in
one of the apartments, Officer Evans’s partner, Officer Adam Brewer, went
around to the back of the apartment building in case Sharp tried to run from
the police. Meanwhile, Officer Evans knocked on the apartment’s door to ask
whether Sharp was there. The resident responded that Sharp was not there,
at which point Officer Evans heard Officer Brewer yell from behind the
building, “[S]top. Police.” Officer Brewer testified that he had been looking in
a different direction when he heard someone running. Officer Brewer
identified himself as a police officer and told the suspect to stop, at which point
Sharp stopped, put his hands up, and laid on the ground after Officer Brewer
directed him to do so.
Officer Evans then joined Officer Brewer. The officers handcuffed Sharp
and frisked him for weapons, discovering a medium-sized knife. The officers
then took Sharp to the front of a patrol vehicle, which was in a better-lit area,
to perform a more thorough search. During this second search, the officers
discovered 41 rounds of .380 ammunition. Sharp told them that he did not
have a gun on his person. Instead, the ammunition was in his pocket because
he had gone target shooting with friends. Officer Evans then arrested Sharp
for criminal trespass. The officers performed a search of the apartment where
they suspected he had been staying, but they were unable to find a firearm.
Officer Evans then transported Sharp to the McLennan County Jail.
Deputy Justin Harrison of the McLennan County Sheriff’s Department
was working in the booking area of the jail that day. After Sharp was placed
in a cell, he hit the cell’s intercom button to ask Deputy Harrison a question
about booking. Deputy Harrison testified that he “got[ ] busy doing other
2
Case: 14-51061 Document: 00513176721 Page: 3 Date Filed: 09/01/2015
No. 14-51061
things and did not click off the button.” While the intercom feed was still live,
Deputy Harrison overheard Sharp saying “that Waco PD was so stupid because
they didn’t find the gun that he tossed right beside him.” Deputy Harrison was
unsure if Sharp was talking to an inmate in a different cell or if he was talking
to himself. After Deputy Harrison’s shift ended a short time later, he called
Officer Evans and told him about Sharp’s statement.
In response, Officers Evans and Brewer returned to the scene to search
for the gun, arriving back at the apartments at least 30 minutes after they had
left it. According to Officer Evans, they “located a .380 firearm with the
magazine a short distance from” where the officers “had initially detained
Jeffrey Sharp.” Specifically, the officers “had detained the defendant . . . on a
ledge. There was a brick wall drop-off and a few feet on the other side of that
drop-off and down is where the firearm was located.” Officer Evans estimated
that the gun was approximately five to six feet from the ledge. The firearm
was collected by a crime scene technician. It was found to be an operable Ruger
LCP 380 that had been made in Prescott, Arizona, so it had traveled across
state lines to reach Texas. It fires .380 ammunition, which is the kind of
ammunition that the officers found on Sharp’s person.
Sharp and the government stipulated that he had a prior felony
conviction. He did not present any evidence in his defense. He raised a motion
for judgment of acquittal before the jury rendered its verdict. The district court
denied the motion, and the jury convicted Sharp of being a felon in possession
of a firearm.
A probation officer prepared a presentence investigation report (“PSR”).
The PSR calculated a total offense level of 22, which included an enhancement
for a stolen firearm. It also calculated a Criminal History Category of III. It
therefore calculated a Guidelines imprisonment range of 51 to 63 months. The
PSR noted that “[t]he probation officer has not identified any factors that
3
Case: 14-51061 Document: 00513176721 Page: 4 Date Filed: 09/01/2015
No. 14-51061
would warrant a departure from the applicable sentencing guideline range” or
“any factors under 18 U.S.C. § 3553(a) that may warrant a variance and
imposition of a non-guideline sentence.” Neither the government nor Sharp
objected to the PSR.
At the sentencing hearing, the court announced that it planned to
“depart upward in this case by two levels” because, “while there’s no specific
victim for the offense of being in possession of a firearm by a convicted felon,
the circumstances involved the association of Mr. Sharp with a special needs
adult of which he took advantage of in many different ways.” By increasing
the offense level by two levels, the imprisonment range became 63 to 78
months. The court then gave Sharp and his counsel an opportunity to respond,
and both asked the court to follow the Guidelines. The court orally imposed an
above-Guidelines sentence of 78 months of incarceration.
About a week after the sentencing hearing, the court sua sponte vacated
this sentence because it had not given Sharp advance notice of an upward
departure. 1 In this order, the district court stated that it would instead impose
“a term of incarceration of 63 months, which is within the Guideline range.”
The court’s written judgment provided for this sentence of 63 months of
imprisonment.
DISCUSSION
Sharp challenges his conviction, arguing that there was insufficient
evidence that he possessed a firearm. He also challenges the reasonableness
of his sentence. We deal with each challenge in turn.
1This order was apparently issued pursuant to Federal Rule of Criminal Procedure
35(a), which provides that, “[w]ithin 14 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear error.” Sharp does not
argue on appeal that the district court lacked authority to vacate the sentence and impose a
new sentence.
4
Case: 14-51061 Document: 00513176721 Page: 5 Date Filed: 09/01/2015
No. 14-51061
A. Challenge to the Conviction
Sharp first challenges his conviction, arguing that there was insufficient
evidence for the jury to find that he had possessed the firearm that was found
by Officers Evans and Brewer. 2 Sharp preserved this challenge by filing a
motion for judgment of acquittal, so we review the court’s denial of the motion
de novo. See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007).
“Therefore, we determine whether a rational jury could have found the
essential elements of the offense beyond a reasonable doubt.” Id. (internal
quotation marks and alteration omitted). “We review the evidence and the
reasonable inferences which flow therefrom in the light most favorable to the
verdict.” Id. (internal quotation marks omitted).
Here, a rational jury easily could have found beyond a reasonable doubt
that Sharp actually possessed the firearm before discarding it. As described
above, when Sharp was arrested, .380 caliber ammunition was found on his
person. He told the police that he had the ammunition because he had gone
target shooting with his friends, effectively admitting that he had possessed a
firearm, even if it was no longer in his possession. After he was booked into
the jail, Officer Harrison heard him say that the Waco Police Department had
failed to find a gun that he had “tossed right beside him.” When police officers
returned to the scene, they found a .380 caliber gun a few feet away from where
they had originally apprehended Sharp. When viewed in the light most
favorable to the government, the government’s evidence was more than
sufficient for the jury to find beyond a reasonable doubt that Sharp had
possessed the firearm that the police later located. 3
2 Sharp does not challenge the sufficiency of the evidence as to the other elements of
the offense of conviction.
3 Sharp also mentions that “the jury was arguably misinformed by the trial judge”
when, in response to a jury question, the court “indicated that no firearms registration is
required by law in Texas.” Sharp did not object to the district court’s instruction to this effect.
5
Case: 14-51061 Document: 00513176721 Page: 6 Date Filed: 09/01/2015
No. 14-51061
B. Challenges to the Sentence
We review the reasonableness of a sentence for abuse of discretion.
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). 4 We
first ask whether the district court “err[ed] procedurally by, for example,
miscalculating or failing to calculate the sentencing range under the
Guidelines, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Id. “If the sentence is
procedurally proper, the court engages in a substantive review based on the
totality of the circumstances.” Id. “[A] sentence within the Guidelines range
is presumed reasonable on appeal.” Id.
Sharp seems to raise procedural and substantive challenges to his
sentence. His first procedural challenge is based on the district court’s failure
to explain the sentence. 5 A sentence that is within the Sentencing Guidelines
Thus, plain error review applies. Sharp fails to argue that any purported error affected his
substantial rights, so his challenge fails. See Puckett v. United States, 556 U.S. 129, 135
(2009) (providing that, for plain error review, the appellant must show that the error “affected
the appellant’s substantial rights”).
4 The Government argues that we should review the reasonableness of the sentence
for plain error because Sharp did not object to the sentence. But plain error review does not
apply if Sharp lacked the opportunity to object to the sentence. Fed. R. Crim. P. 51(b) (“If a
party does not have an opportunity to object to a ruling or order, the absence of an objection
does not later prejudice that party.”). Sharp did not have a chance to object to the district
court’s articulation of its reasons for the sentence. In contrast, by requesting only a within-
Guidelines sentence at the sentencing hearing, he arguably forfeited any objection to the
substantive reasonableness of a within-Guidelines sentence. Regardless, because we
conclude that the district court did not abuse its discretion, let alone plainly abuse its
discretion, we need not determine whether he forfeited the issue.
5 Sharp also “point[s] out that the prosecution never tendered as evidence at the
sentencing hearing any tangible evidence to support the stolen gun enhancement,” which is
“somewhat troubling to [him].” Assuming that Sharp is attempting to challenge the stolen
gun enhancement provided in the PSR, this challenge is meritless. The PSR had an adequate
evidentiary basis because it was based upon police reports that provided that the serial
number of the gun collected at the scene “came back as reported stolen.” Thus, because Sharp
failed to offer evidence rebutting the PSR’s factual assertion that the gun was stolen, the
6
Case: 14-51061 Document: 00513176721 Page: 7 Date Filed: 09/01/2015
No. 14-51061
generally requires “little explanation.” Mondragon-Santiago, 564 F.3d at 362
(quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)) (internal
quotation marks omitted). More is required, however, “if the parties present
legitimate reasons to depart from the Guidelines.” Id.
Here, Sharp did not present any reasons to depart from the Guidelines.
He did not object to the PSR or file a sentencing memorandum requesting a
downward variance or downward departure from the Guidelines. Further,
when the district court orally informed Sharp and his counsel that it planned
to apply an upward departure, both responded only that they hoped the court
would impose a within-Guidelines sentence. The order vacating the orally
imposed sentence provided that the court was imposing “a term of
incarceration of 63 months, which is within the Guidelines range.” The order
therefore made it clear that 63 months’ imprisonment was selected because it
was within the Guidelines range. The Statement of Reasons also provided that
the court “adopt[ed] the presentence investigation report without change” and
stated that “[t]he sentence is within an advisory guideline range that is not
greater than 24 months, and the [c]ourt finds no reason to depart.”
We conclude that the “[c]ircumstances . . . make clear that the judge
rest[ed] his decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge . . . found that the case before
him [was] typical.” Rita v. United States, 551 U.S. 338, 357 (2007). Further,
because the Guidelines range of imprisonment was 51 to 63 months, a range
of less than 24 months, the district court was not required to explain why it
district court was entitled to adopt it as a fact. See United States v. Stalnaker, 571 F.3d 428,
441 (5th Cir. 2009) (“A district court may adopt facts contained in the PSR without further
inquiry if the facts have an adequate evidentiary basis and the defendant does not present
rebuttal evidence.” (quoting United States v. Alford, 142 F.3d 825, 831–32 (5th Cir. 1998)
(internal quotation mark omitted)).
7
Case: 14-51061 Document: 00513176721 Page: 8 Date Filed: 09/01/2015
No. 14-51061
selected a particular sentence within that range. United States v. Akpan, 407
F.3d 360, 378 (5th Cir. 2005); see also § 3553(c)(1) (providing that district court
shall explain “the reason for imposing a sentence at a particular point within
the range” if the Guidelines “range exceeds 24 months”). We conclude that,
given Sharp’s failure to argue for a downward departure or variance from the
Guidelines, the district court’s explanation of the sentence was sufficient. 6
Sharp also apparently challenges the district court’s failure to consider
the § 3553(a) sentencing factors when it resentenced him. We assume without
deciding that the district court was required to reconsider the § 3553(a) factors
when it issued a revised judgment under Rule 35(a). Cf. United States v.
Lightfoot, 724 F.3d 593, 598–99 (5th Cir. 2013) (holding that a district court is
not required to reconsider the § 3553(a) factors in resolving a Rule 35(b) motion
to reduce a sentence based on substantial assistance to the government). We
hold that, even assuming that the district court was required to reconsider the
§ 3553(a) factors, it adequately did so here.
“We afford great deference to sentences within the Guidelines range, and
we ‘infer that the judge has considered all the factors for a fair sentence set
forth in the Guidelines in light of the sentencing considerations set out in
§ 3553(a).’” Mondragon-Santiago, 564 F.3d at 365 (quoting United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)). Such an inference is
warranted here because the court imposed a within-Guidelines sentence.
Further, although the district court did not explicitly discuss each § 3553(a)
factor, it was not required to do so. United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006) (holding that a district court “need not engage in robotic
incantations that each statutory [§ 3553(a)] factor has been considered”
6 Sharp does not challenge the fact that the explanation of the sentence was not
performed “in open court” at the sentencing hearing, as provided in § 3553(c).
8
Case: 14-51061 Document: 00513176721 Page: 9 Date Filed: 09/01/2015
No. 14-51061
(internal quotation marks omitted)). Moreover, the district court did explicitly
consider some of the factors by imposing a sentence within the Guidelines
range and adopting the PSR. By basing its sentence on the Guidelines, the
court explicitly considered the Guidelines range, the factor contained in
§ 3553(a)(4)(A). And by adopting the PSR, the court adopted statements about
“the nature and circumstances of the offense and the history and
characteristics of the defendant,” thereby explicitly considering another
statutory factor, § 3553(a)(1). We hold that the district court therefore did not
procedurally err by failing to consider the § 3553(a) factors when it resentenced
Sharp.
The final question is whether Sharp’s sentence was substantively
reasonable. Again, in this circuit, “a sentence within the Guidelines range is
presumed reasonable on appeal.” Mondragon-Santiago, 564 F.3d at 360.
Sharp does not point to any particular reason why his within-Guidelines, 63-
month sentence was unreasonable. Instead, his appellate brief merely asserts
that “[a] sentence much closer to the properly-calculated lower end of the
guidelines range would have been more than adequate to satisfy the requisite
policy concerns.” “A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence.” United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010). Sharp has therefore failed to rebut the presumption
that his sentence was reasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM.
9 | 01-03-2023 | 09-01-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892834/ | NO. 07-04-0433-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 1, 2005
______________________________
AMANDA NICOLE STANFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B15341-0401; HON. ED SELF, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant, Amanda Nicole Stanford, appeals her conviction for possessing a
controlled substance (methamphetamine) in an amount of more than four but less then 200
grams. In one issue, she challenges the sufficiency of the evidence to show that she
knowingly and intentionally possessed a controlled substance. (1) We affirm the judgment
of the trial court.
Background
On January 3, 2004, an off duty deputy was driving south on Interstate 27. While
doing so, he observed a red vehicle being driven by appellant in an erratic manner. As he
approached the Hale County line, he called Hale County Deputy Tommy Baker and alerted
him to the vehicle. In response, Baker waited for it to come into view, observed the vehicle
change lanes without signaling, and made a traffic stop.
During the stop, the deputy learned that the car had been rented by appellant and
that she had an outstanding warrant. This resulted in her being arrested and the deputy
conducting an inventory search of the car. As he did so, he discovered a package wrapped
in black tape placed in the space between the two front seats. The package measured
approximately 6" x 3" x 3". When the deputy asked appellant what the package was, she
told him that it was not hers. Finding the answer non-responsive, he repeated his question
to her. She again told him it was not hers. Thereafter, the deputy opened the item and
discovered that it contained methamphetamine.
Sufficiency
In her sole issue, appellant asserts that the evidence is "insufficient" to prove she
knowingly and intentionally possessed the drugs. That is, she posits that the evidence did
not sufficiently "link" her to the package containing the controlled substance. We overrule
the issue.
To convict one of possessing a controlled substance, the State must prove beyond
reasonable doubt that the defendant exercised care, custody, control, or management over
the substance while knowing it was contraband. See Tex. Health & Safety Code Ann. §
481.002(38) (Vernon Supp. 2004-2005); see also King v. State, 895 S.W.2d 701, 703 (Tex.
Crim. App. 1995). Control over the drug can be established through either direct or
circumstantial evidence. Park v. State, 8 S.W.3d 351, 353 (Tex. App.-Amarillo 1999, no
pet.).
Here, the record illustrates that appellant had rented the car. And, other than for a
dog that traveled with her, she was alone in the vehicle. Moreover, the wrappers, dog food,
and miscellaneous matter strewn about the car suggests that she had exercised
possession over it for more than a brief period. To this we add her non-responsive answer
to the deputy's question. Again, instead of disclaiming knowledge of what the package was
or held when asked, she simply told the deputy that it was not hers. In other words, she
attempted to distance herself from it. And, while the package may not have been instantly
visible from between the seats, it was not hidden but simply placed in the "crack" between
the seats. So too was it of a size (6" x 3" x 3") and appearance (wrapped in black tape)
that one could reasonably deduce would not escape notice by someone driving the car for
more than a brief period. Finally, given its location, it was readily accessible to her.
Exclusive possession of the place where illegal substances are found can be
evidence of knowledge and control. Bethancourt-Rosales v. State, 50 S.W.3d 650, 654
(Tex. App.-Waco 2001, pet. ref'd) (holding that knowledge can sometimes be inferred
solely from the defendant's control of the vehicle in which the drugs are found, especially
when the amount of contraband is large enough to indicate that the accused knew of its
presence). Here, appellant was the person with the right to possess the vehicle, was the
only person in it at the time, and had with her various of her personal belongings.
Furthermore, the drugs were found in close proximity to her and were of a considerably
greater quantity than that indicative of personal use. Given this, we hold that the evidence
is both legally and factually sufficient to "link" her to the drugs and support her conviction.
Accordingly, the issue is overruled and the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
1. Appellant does not indicate whether she complains about the legal or factual sufficiency of the
evidence or both. Nonetheless, we will address both per the standards of review described in King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000).
AN STYLE="font-size: 11pt">See TRAP 25.2(b)(3); White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001).
Dismissal of an issue or the entire matter is appropriate unless the form of the notice of
appeal is proper to perfect appeal as to the issue or matter. Id.
Appellant's Notice of Appeal does not contain one of the three allegations
necessary to invoke our appellate jurisdiction over an appeal from his conviction. See
TRAP 25.2(b)(3); White, 61 S.W.3d at 428. Accordingly, our jurisdiction has not been
invoked and we dismiss the appeal for want of jurisdiction.
Per Curiam
Do not publish.
1. A rule of appellate procedure will be referred to as "TRAP_" hereafter.
2. In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R.
App. P. 25.2(a). The notice of appeal must be filed within 30 days after the day sentence
is imposed or after the day the trial court enters an appealable order, unless a timely
motion for new trial is filed. Id. Because appellant's notice did not invoke our appellate
jurisdiction even if timely filed, we need not and do not address the question of the
discrepancy between the date of July 28, 2001, in the certificate of service and the date
of February 4, 2002, on which the document was filed by the clerk. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892835/ | NO. 07-04-0433-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 1, 2005
______________________________
AMANDA NICOLE STANFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B15341-0401; HON. ED SELF, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant, Amanda Nicole Stanford, appeals her conviction for possessing a
controlled substance (methamphetamine) in an amount of more than four but less then 200
grams. In one issue, she challenges the sufficiency of the evidence to show that she
knowingly and intentionally possessed a controlled substance.1 We affirm the judgment
of the trial court.
1
Appellant does not indicate whether she complains about the legal or factual sufficiency of the
evidence or both. Nonetheless, we will address both per the standards of review described in King v. State,
29 S .W.3d 556 (Tex. C rim. App. 2000 ).
Background
On January 3, 2004, an off duty deputy was driving south on Interstate 27. While
doing so, he observed a red vehicle being driven by appellant in an erratic manner. As he
approached the Hale County line, he called Hale County Deputy Tommy Baker and alerted
him to the vehicle. In response, Baker waited for it to come into view, observed the vehicle
change lanes without signaling, and made a traffic stop.
During the stop, the deputy learned that the car had been rented by appellant and
that she had an outstanding warrant. This resulted in her being arrested and the deputy
conducting an inventory search of the car. As he did so, he discovered a package wrapped
in black tape placed in the space between the two front seats. The package measured
approximately 6" x 3" x 3". When the deputy asked appellant what the package was, she
told him that it was not hers. Finding the answer non-responsive, he repeated his question
to her. She again told him it was not hers. Thereafter, the deputy opened the item and
discovered that it contained methamphetamine.
Sufficiency
In her sole issue, appellant asserts that the evidence is “insufficient” to prove she
knowingly and intentionally possessed the drugs. That is, she posits that the evidence did
not sufficiently “link” her to the package containing the controlled substance. We overrule
the issue.
To convict one of possessing a controlled substance, the State must prove beyond
reasonable doubt that the defendant exercised care, custody, control, or management over
the substance while knowing it was contraband. See TEX . HEALTH & SAFETY CODE ANN . §
481.002(38) (Vernon Supp. 2004-2005); see also King v. State, 895 S.W.2d 701, 703 (Tex.
2
Crim. App. 1995). Control over the drug can be established through either direct or
circumstantial evidence. Park v. State, 8 S.W.3d 351, 353 (Tex. App.–Amarillo 1999, no
pet.).
Here, the record illustrates that appellant had rented the car. And, other than for a
dog that traveled with her, she was alone in the vehicle. Moreover, the wrappers, dog food,
and miscellaneous matter strewn about the car suggests that she had exercised
possession over it for more than a brief period. To this we add her non-responsive answer
to the deputy’s question. Again, instead of disclaiming knowledge of what the package was
or held when asked, she simply told the deputy that it was not hers. In other words, she
attempted to distance herself from it. And, while the package may not have been instantly
visible from between the seats, it was not hidden but simply placed in the “crack” between
the seats. So too was it of a size (6" x 3" x 3") and appearance (wrapped in black tape)
that one could reasonably deduce would not escape notice by someone driving the car for
more than a brief period. Finally, given its location, it was readily accessible to her.
Exclusive possession of the place where illegal substances are found can be
evidence of knowledge and control. Bethancourt-Rosales v. State, 50 S.W.3d 650, 654
(Tex. App.–Waco 2001, pet. ref’d) (holding that knowledge can sometimes be inferred
solely from the defendant’s control of the vehicle in which the drugs are found, especially
when the amount of contraband is large enough to indicate that the accused knew of its
presence). Here, appellant was the person with the right to possess the vehicle, was the
only person in it at the time, and had with her various of her personal belongings.
Furthermore, the drugs were found in close proximity to her and were of a considerably
greater quantity than that indicative of personal use. Given this, we hold that the evidence
3
is both legally and factually sufficient to “link” her to the drugs and support her conviction.
Accordingly, the issue is overruled and the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
4 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2972461/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0527n.06
Filed: June 20, 2005
No. 04-1491
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TROY EASTERLING, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
AUTO ZONE, INC.; BRIAN CHURCH, ) EASTERN DISTRICT OF MICHIGAN
)
Defendants-Appellees. )
Before: MOORE and COOK, Circuit Judges; GWIN, District Judge.*
PER CURIAM. Troy Easterling appeals the district court’s grant of summary judgment
in favor of Defendants, AutoZone and Brian Church, on his claims of race discrimination and
retaliation under 42 U.S.C. § 1981 and Michigan law. We find no error in the district court’s
decision on the appealed issues and determine that no jurisprudential purpose would be served by
a panel opinion. Accordingly, we affirm the district court for the reasons stated in that court’s
opinion.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 04-1491
Easterling v. Auto Zone
-2-
No. 04-1491
Easterling v. Auto Zone
KAREN NELSON MOORE, Circuit Judge, concurring. I believe that Mr. Easterling did
establish a prima facie case of racial discrimination under 42 U.S.C. § 1981. However, he failed to
establish that Auto Zone’s asserted reason for his discharge was pretextual. Therefore, I concur in
the judgment of the court.
-3- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4267332/ | Town of Richmond v. Cowan, No. S0688-04 CnC (Norton, J., Aug. 2,
2005)
[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]
STATE OF VERMONT SUPERIOR COURT
Chittenden County, ss.: Docket No. S0688-04
TOWN OF RICHMOND
v.
COWAN
ENTRY
Town seeks restoration of landowner’s drainage ditch through
several theories of control. Landowner disputes Town’s ability to
retroactively veto his riparian improvements. Both parties have motioned
for summary judgment on their competing legal theories. Third-party
intervenors, homeowners who live downstream from Landowner, oppose
Landowner’s motion for reasons that mirror Town’s.
This case is about water. Specifically, it is about how water flows
over Landowner’s property. Situated on a downward sloping hill,
Landowner’s property sits between Snipe Ireland Road at the top and Snipe
Ireland Brook at the bottom. Water collects on this particular section of
Snipe Ireland Road into a drainage culvert that runs underneath the road
and empties onto Landowner’s property at a point on the slope about two
feet below the road. Prior to Landowner’s improvements, water from this
culvert flowed downhill within a shallow drainage ditch emptying into the
brook at the bottom of the hill. In 2000, Landowner added fill to the site,
regraded the hill, planted vegetation, removed trees, and built a stone
retaining wall. These improvements buried the old drainage ditch.
Nevertheless, Water, being subject to the dominion of gravity,
continues to flow from the culvert down the hill and into the brook. Only
now without the ditch to channel it, the water takes the diffuse path of least
resistance over Landowner’s property, which the evidence shows is causing
some erosion and possible silt deposits in the Brook.
19 V.S.A. § 1111(b) Obstruction of a Drainage Ditch
Town’s legal challenges to Landowner’s improvements derive from
its position as a sovereign and an uphill property owner. The first basis that
Town uses to demand the restoration of the old drainage ditch is 19 V.S.A.
§ 1111(b). This statute deals with right-of-ways and improvements to areas
that affect highway drainage. It reads:
§ 1111 Permitted use of the right-of-way
* * *
(b) Driveway entrances, highway grades; drainage. It shall be
unlawful to develop, construct, regrade or resurface any driveway,
entrance, or approach, or build a fence or building, or deposit
material of any kind within, or to in any way affect the grade of a
highway right-of-way, or obstruct a ditch, culvert or drainage
course that drains a highway, or fill or grade the land adjacent to a
highway so as to divert the flow of water onto the highway right-
of-way, without a written permit from the agency, in the case of
state highways, or the legislative body, or designee of a
municipality, in the case of town highways. . . . The agency or
legislative body, within their respective jurisdictions, may make
such rules to carry out the provisions of this sections as will
adequately protect and promote the safety of the traveling public,
maintain reasonable levels of service on the existing highway
system, and protect the public investment in the existing highway
infrastructure, but in no case deny reasonable entrance and exit to
or from property abutting the highways, except on limited access
highways, using safety, maintenance of reasonable levels of
service on the existing highways, and protection of the public
investment in the existing highway structure as the test for
reasonableness, and except as necessary to be consistent with the
planning goals of 24 V.S.A. § 4302 and to be compatible with any
regional plan, state agency plan or approved municipal plan. . . .
Town latches onto a clause in the first sentence to argue that it is
unlawful to “obstruct a ditch, culvert or drainage course that drains a
highway” regardless of how far that ditch, culvert or drainage course is
from the right-of-way. In this case, the ditch that Town seeks to restore is
not located in the right-of-way but receives water from the right-of-way.
Changing the ditch did not alter the highway’s drainage. And, in truth, it
did not affect either the highway or the right-of-way. Town’s use of §
1111(b) extends beyond the intended use of § 1111(b) to prevent adjoining
landowners from making alterations to their land that would impact the
drainage of state and town highways. Nevertheless, Town argues that the
above-quoted language grants it the power to review and veto all changes
that involve highway runoff.
Following the Town’s reasoning, § 1111(b) would hereafter require
any homeowner receiving runoff from a highway, no matter how far this
property was from the highway in question—or what effect the runoff had
on the highway—to submit any change fitting § 1111(b)’s description to
the relevant Town or agency. This might be dubbed the “Watershed”
interpretation of § 1111(b). It appears to posit that a town or agency gains
dominion over any drainage feature—or in the case of § 1111(b)’s
preceding clause, any driveway or entrance—merely because the water has
passed or will pass over the highway. Couple this “Watershed” theory
with the reality that most all developed parcels in Vermont abut a road at
either a higher or lower elevation—or at least receive runoff from or send it
to property that abuts a road—and § 1111(b) becomes a pervasive,
potentially tyrannical, mock-zoning power. Any driveway or land
improvements would, apart from the normal zoning regulation, have to seek
town or agency approval as a matter of course regardless of their potential
impact on the adjoining road or highway. The court is dubious that the
legislature intended to vest such overarching property regulatory power
within a statute that otherwise deals more directly with highway safety and
maintenance.
The court’s purpose in construing a statute is to give its language the
effect that the legislature intended. Ludlow v. Watson, 153 Vt. 437, 441
(1990) (citing In re Southview Associates, 153 Vt. 171, 175 (1989)).
Section 1111and subsection (b) must be read as a whole to effectuate such
intent. Read piecemeal and divorced from the statute’s overarching
purpose gives the clauses in the first sentence the overreaching effect
discussed above. As a whole § 1111(b) has the straightforward purpose of
protecting highways from new or inadequate drainage patterns caused by
adjoining private property owners. As the last sentence of the statute
requires, any decision by a town or agency must balance a property owner’s
right to reasonable access against three public purposes, “safety,
maintenance of reasonable levels of service on the existing highways, and
protection of the public investment in the existing highway structure.”
While the immediate function of these three purpose is to test an town or
agency’s decision—a function not at issue here—they also encapsulate the
statute’s overall intent.
While § 1111(b) does not specify or require a specific level of
impact or a standard of proof, each of the three underlying purposes
requires some impact on the highway or its drainage system. Without some
impact on the highway’s drainage, there simply is no safety concern, threat
to maintenance, or anything from which to protect the public’s investment
in the infrastructure. Neither party disputes that Landowner’s changes do
not affect Snipe Ireland Road. They do not alter the drainage culvert or
block it from emptying onto Landowner’s property. They do not redirect
water back on to the Road, delay the drainage process, or limit how much
water the property will accept. Landowner’s property accepts, as it did
with his predecessors in title, all of the water from the drainage culvert.
While there might have been some question of this prior to his regrading,
five years later there is no doubt about the lack of any effect. In light of
this, the court is even less inclined to interpret § 1111(b) to create a new
power in Town to regulate water courses merely because they once touched
a Town regulated right-of-way. The legislative intent does not support such
a reading. Landowner’s changes do not fit within the purview of § 1111(b)
because they do not affect, in any way, Snipe Ireland Road’s drainage.
Prescriptive Easement
For its second basis, Town argues that it has a prescriptive easement
over the old drainage ditch, and Landowner must restore Town’s property
interest therein.
A prescriptive easement is an offshoot of adverse possession that
gives a party whose has used property in a certain manner the right to
continue that use. Community Feed Store, Inc. v. Northeastern Culvert
Corp., 151 Vt. 152, 155 (1989); see also In re Town Highway No. 20, 2003
VT 76, ¶ 22. As in adverse possession, Town must prove that it has used
the land in an open, notorious, continuous, and hostile manner for 15 years.
Chittenden v. Waterbury Ctr. Community Church, Inc., 168 Vt. 478, 483
(1998). In this case, Town demonstrates through the evidence that the ditch
dates back to at least 1976 and has functioned as a drainage ditch ever since
that date, taking water from the culvert beneath Snipe Ireland Road down to
Snipe Ireland Brook until 2000. This shows that the old drainage ditch
functioned in an open, notorious, and continuous manner for at least 23
years.
What the evidence does not show is whether or not this ditch was
operated in a hostile manner to Landowner and his predecessor’s interests.
Neither Town nor Landowner’s evidence establishes who dug the ditch,
who maintained the ditch, or even who planned it. Given the
straightforward, unadorned flow, there are at least three possible suspects.
The Town or one of its agents might have dug it when installing the culvert.
A predecessor to Landowner may have dug it to channel water through the
property and avoid the flooding that is now occuring. Or nature, through its
redoubtable hydro-geologic process, may have been responsible. The
answer to this question is important. If either nature or a predecessor to
Landowner created the ditch, then Town’s claims would be less than
hostile, perhaps a mere license. This is because the right that Town seems
to assert over this ditch comes from a statute which empowers selectmen of
a town to lay out, establish, construct, or cause to be constructed and
maintained a drainage ditch to lead water from a highway. 19 V.S.A. §
950. Such a decision constitutes a taking, however, which must be
compensated. Sargent v. Cornwall, 130 Vt. 323, 328–29 (1972) (citing a
predecessor to § 950). If anyone but the Town or its agent dug the ditch,
the ditch cannot have been established as a taking because it was not
authorized by the Town Selectmen as § 950 requires. Furthermore, if the
Town did nothing to establish or maintain this ditch by act or command,
then it has not acted adversely. That is, it has not asserted its rights in a
manner hostile to Landowner’s interests. See In re .88 Acres of Property,
165 Vt. 17, 21 (1996) (beyond statutory taking provisions, municipalities
many adversely possess property through acts hostile to owner’s title).
Instead, it may merely be said to be taking advantage of another ditch
without asserting an interest in it. See 16 Backman, at § 1013[2][c]
(“‘Hostile’ possession has been defined as possession that is opposed and
antagonistic to all other claims, and which conveys the clear message that
the possessor intends to possess the land as his own.”).
To a certain extent, Town’s arguments may also go to a larger right
to the ditch as a drainage channel merely by its position as an upper
landowner. While this argument smacks of the same “watershed” theory as
Town’s earlier 19 V.S.A. § 1111(b) argument, it does raise a question of
whether Town gained some inherent right to the ditch through the 23 years
that Landowner or his predecessors accepted runoff from the Town’s
culvert. If such a right may be said to exist separate from general riparian
rights, it cannot be said to exist in a specific form. See generally Scanlan v.
Hopkins, 128 Vt. 626 (1970) (discussing riparian rights between lower and
upper property owners).
Any right that Town has acquired merely by Landowner’s repeated
acceptance of water from the culvert is just that. Town—short of proof
under § 950 or affirmative actions toward the creation or maintenance of
the ditch—has only established that it has given water to Landowner, and
Landowner has accepted it onto his property. The right to an easement over
a specific drainage ditch on another’s property simply for letting one’s
water flow into it does not exist. 78 Am. Jur. 2d Water § 370 (“[B]efore a
use can be adverse in the sense of this rule, it must be an invasion of the
rights of the party against whom it is set up, of such a character as to afford
the person grounds of action . . . .”). Thus, the only right that the evidence
shows that the Town has is one akin to the riparian right of an upper
property owner. Landowner’s improvements have not altered that right.
Riparian Rights
Landowner has also moved for summary judgment based on riparian
law. This argument is primarily about what duties Landowner owes to his
upper and lower neighbors. Under Scanlan, Vermont follows the civil-law
rule, which “recognizes a natural servitude for natural drainage between
adjoining lands”; so that the lower property owner must accept naturally
flowing surface water from upper property owners, and the upper property
owner must not change the natural drainage system so as to increase the
burden on the lower. 128 Vt. at 631–32; Am. Jur. 2d Water § 177. The
facts of this case do not implicate the riparian rights between Town and
Landowner. Landowner’s improvements have not altered his acceptance of
Snipe Ireland Road’s runoff, and Town has no riparian right under Scanlan
or its successors to claim any right to how water flows over Landowner’s
lower parcel.
Notwithstanding this conclusion, Town argues that Landowner’s
improvements have altered the drainage and threaten to pollute Snipe
Ireland Brook with sewage, silt, or pollution from his proposed house. This
argument mistakes riparian rights with water pollution control. Town does
not have a claim against Landowner for future pollution under the doctrine
of riparian rights as none of the “affected” water even threatens to come
back onto Town’s property. Arguments under 10 V.S.A. § 1263 (discharge
permits) or § 1264 (stormwater) are inapposite in this case as they deal with
enforcement regulations that are under the purview of either the Agency of
Natural Resources or the Environmental Court. 10 V.S.A. §§ 1251a, 1274.
Town does not have standing to bring such an action here.
Town’s arguments also touch upon the idea that an upper land owner
can bring suit to require a lower landowner to restore a “proper outlet” to
carry runoff from the lower property owner’s property. This is a bridge too
far. Riparian rights do not allow for that much control. Town’s concerns
are better left to lower property owners, who do have standing under this
theory, and the Agency of Natural Resources, which has the power to
enforce pollution laws. Town’s theory would subvert the reciprocal nature
of the civil-law rule and has no support in either Scanlan or its progeny.
See 128 Vt. at 630 (discussing the balance between benefits and burdens
for upper and lower property owners). As such, Town’s riparian arguments
are invalid.
Conclusion
Without recourse to 19 V.S.A. § 1111(b), Town’s remaining claim
of prescriptive easement depends upon some evidence that it authorized the
drainage ditch, built it, or somehow affirmatively maintained it. Without
proof of this type of hostile possession, Town cannot carry its burden and
must be dismissed as a party. As for Landowner, he may still be liable to
intervenors, who are lower adjoining property owners and receive or will
receive any pollution or the effects thereof resulting from Landowner’s
improvements. Intervenors also allege claims that appear to sound in
nuisance, but neither party has moved for summary judgment on these
claims.
Based on the foregoing, Defendant Landowner’s motion for
summary judgment is Granted in regards to 19 V.S.A. § 1111(b) and
Denied as far as there is an issue of material fact concerning the hostile
element of Plaintiff Town’s prescriptive easement. Plaintiff Town’s
Motion for summary judgment is Denied.
Dated at Burlington, Vermont________________, 2005.
__________________________________
Judge | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3063064/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11961 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 05-60016-CR-RWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES W. LONG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2010)
Before BIRCH, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
James W. Long (“Long”) appeals the district court’s order instructing the
district court clerk to provide to the court financial office a list of victims to
facilitate execution of the court’s prior criminal restitution order. Long makes two
arguments on appeal. First, Long argues that the order was beyond the 90-day time
limit allowed for entering or amending restitution orders, and that the government
waived its right to contest the restitution order by failing to appeal the original
district court order. Second, Long argues that the amended restitution order is
invalid in that it fails to identify victims or amounts to be paid to them so as to
afford the defendant due process. After reviewing the record we find no error and
AFFIRM the district court order.
I. BACKGROUND
For a full discussion of facts related to Long’s conviction see United States
v. Long, 300 Fed. Appx. 804 (11th Cir. 2008) (per curiam). In that unpublished
opinion, we affirmed Long’s conviction and sentence for conspiracy to commit
wire and mail fraud and substantive wire fraud stemming from his operation of a
payday loan company.
The facts related to Long’s criminal restitution order are as follows. In
March 2006, after Long’s conviction, the district court entered a preliminary order
of forfeiture requiring “all [of Long’s] right, title and interest” in certain
enumerated funds to be forfeited to the government under 18 U.S.C.
2
§ 982(a)(2)(b)(1) and 21 U.S.C. § 853. R1-105 at 3. The order stated inter alia:
It is further ORDERED that upon adjudication of all third-party
interests, this Court will enter a Final Order of Forfeiture . . . in which
all interests will be addressed. If no claims are filed within 30 days of
the final publication or receipt of actual notice . . . then, pursuant to
[21 U.S.C. § 853(n)(7)], this Order shall be deemed a final order of
forfeiture.
Id. at 4 (emphasis added). In May 2006, the court sentenced Long to a total of 72
months of imprisonment and ordered him to pay $2,119,946 in restitution. R1-113
at 2, 5. At the sentencing hearing, the court acknowledged that the government
had identified the number of victims and the loss amounts, and the probation office
had a list of the victims and their addresses. R5 at 27-30. Long appealed his
convictions and sentences, R1-115, and we affirmed the district court’s judgment.
Long, 300 Fed. Appx. at 820.
While Long’s appeal was pending, the government moved the district court
to “amend” its restitution order by specifying the victims and the amount of
forfeited funds to which each victim was entitled. R2-167 at 1-3. The government
stated that it had seized all of the funds outlined in the preliminary order of
forfeiture. Id. at 2. Because it had not obtained a final order of forfeiture in the
criminal case, the government obtained a judgment of civil forfeiture against all the
bank accounts enumerated in the preliminary order of forfeiture, and it attached a
copy of that civil forfeiture order to its motion. Id. at 2-3, Exhibit 1. In the civil
3
forfeiture order, the district court noted that the government had published a Public
Notice of Action, but no party had filed a claim for Long’s accounts. Id. at Exhibit
1, p. 2. The government also attached a list of all the victims and the verified loss
amounts. Id. at Exhibit 2.
Long responded in opposition to the government’s motion and argued that
the motion was untimely because it was filed after the 90-day time limit under 18
U.S.C. § 3664(d)(5). R2-168 at 1. Long argued that the government had waived
its right to complain about the fact that the criminal judgment neglected to list the
names and loss amounts of the victims by waiting until after we had affirmed the
district court’s conviction and sentences. Id. at 2. In March 2009, after our
mandate issued affirming Long’s criminal convictions and sentences, the district
court granted the government’s motion in part and denied it in part. R2-170 at 1.
Specifically, the court stated that the amount of restitution remained the same, but
it declined to disclose the amount of verified losses and the names of the victims in
the order. Id. The court did, however, order “that the Clerk [ ] provide the [court]
Financial Department with the list of victims and their verified losses in
accordance with their claim [ ] to satisfy the restitution obligations imposed” on
Long. Id.
Long now argues that the district court’s March 2009 order was invalid for
4
two reasons. First, Long contends that the order was untimely under the “90-day
time limit on restitution orders” under 18 U.S.C. § 3664(d)(5). He cites United
States v. Maung, 267 F.3d 1113 (11th Cir. 2001), for the proposition that there is
no prejudice requirement under 18 U.S.C. § 3664, and the 90-day time limit is
clear. Further, Long maintains that even if 18 U.S.C. § 3664 does not bar entry of
the order, the government was barred from seeking an amended restitution order
under the mandate rule and the law of the case doctrine. Long submits that the
government failed to address the validity of the restitution order in Long’s direct
appeal, and the district court amended the restitution order only after issuance of
the mandate. He asserts that the government is barred under the law of the case
doctrine from revisiting an issue that could have been raised and decided on
appeal. Second, Long argues that the amended restitution order is defective and
violates his due process rights because it does not identify specific victims and
their respective loss amounts.
II. DISCUSSION
A. Timeliness of the Restitution Order
“We review the validity of a restitution order for abuse of discretion.”
United States v. Alas, 196 F.3d 1250, 1251 (11th Cir. 1999) (per curiam). “The
interpretation of a statute is a question of law subject to de novo review.” United
5
States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
Title 18 U.S.C. § 3664(d)(5) provides:
If the victim’s losses are not ascertainable by the date that is 10 days
prior to sentencing, the attorney for the Government or the probation
officer shall so inform the court, and the court shall set a date for the
final determination of the victim’s losses, not to exceed 90 days after
sentencing. If the victim subsequently discovers further losses, the
victim shall have 60 days after discovery of those losses in which to
petition the court for an amended restitution order. Such order may be
granted only upon a showing of good cause for the failure to include
such losses in the initial claim for restitutionary relief.
18 U.S.C. § 3664(d)(5)(2000).
In Maung, we interpreted 18 U.S.C. § 3664(d)(5) and held that a district
court ordinarily may not “impose a sentence and then delay determination of the
amount of losses more than 90 days from sentencing.” Maung, 267 F.3d at 1121.
In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002), the district court
ordered the defendants to pay restitution at sentencing but postponed ruling on the
amount of restitution owed until a later hearing. Kapelushnik, 306 F.3d at 1093.
After sentencing, but before the district court had decided on the restitution
amount, the government appealed the sentences, and we held that when “the
district court fails to make such a determination within the 90-day limitations
period, the judgment of conviction becomes final and contains no enforceable
restitution provision.” Id. at 1093-94.
6
Here, the district court’s March 2009 order was not untimely under 18
U.S.C. § 3664(d)(5) because that provision does not apply. Section 3664(d)(5)
pertains to situations where the amount of restitution is uncertain or not
ascertainable at the time of sentencing, and the 90-day period refers to the time
limit after sentencing for determining the amount of restitution. 18 U.S.C.
§ 3664(d)(5). In Long’s case, the district court determined the amount of
restitution at sentencing and set forth that amount in the final judgment. The court
did not amend the amount of the restitution judgment in its March 2009 order;
instead, it merely directed the clerk to execute that order.
Finally, the district court’s order did not violate the law of the case doctrine
or the mandate rule. We have explained the law of the case doctrine as:
Under the law of the case doctrine, both the district court and the court
of appeals are bound by findings of fact and conclusions of law made
by the court of appeals in a prior appeal of the same case unless (1) a
subsequent trial produces substantially different evidence, (2)
controlling authority has since made a contrary decision of law
applicable to that issue, or (3) the prior decision was clearly erroneous
and would work manifest injustice.
United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (per curiam). And we
have explained the mandate rule as:
The mandate rule is simply an application of the law of the case
doctrine to a specific set of facts. Accordingly, when acting under an
appellate court’s mandate, a district court cannot vary it, or examine it
for any other purpose than execution; or give any other or further
7
relief; or review it, even for apparent error, upon a matter decided on
appeal; or intermeddle with it, further than to settle so much as has
been remanded.
United States v. Amedeo, 487 F.3d 823, 830 (11th Cir. 2007) (quotation marks and
citation omitted). In this case, there was no violation of the law of the case
doctrine or the mandate rule because the district court never varied from our
mandate.
B. Whether the Amended Restitution Order Was Defective
“Constitutional objections not raised before the district court are reviewed
only for plain error.” United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir.
2005) (per curiam). To prove plain error, a defendant must show: (1) error, (2)
that is plain, and (3) that affects substantial rights. United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are met, we may exercise
our discretion to correct the error if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id.
Long argues that even if the court’s amended order was timely and not
barred by the law of the case doctrine or the mandate rule, the order is still invalid
because it fails to identify victims or amounts to be paid to them so as to afford
him due process. He submits that the court’s vague instruction to the clerk to
provide undisclosed information regarding victims and losses is invalid in that it
8
fails to identify such claimants.
In this case, Long did not raise any due process challenge before the district
court in his response to the government’s motion to provide the names of the
victims for the restitution order. We therefore apply plain error review to Long’s
due process claim. Given that Long does not articulate how the court’s March
2009 order affected his substantial rights or amounted to an error that “seriously
affects the fairness, integrity, or public reputation of judicial proceedings,” he has
not demonstrated plain error.
III. CONCLUSION
Long appeals the district court’s order instructing the court Clerk to provide
to the court Financial Office information to facilitate execution of the court’s prior
restitution order. As we have explained, the district court’s amended restitution
order did not change the amount of restitution, did not violate our mandate, and did
not violate Long’s due process rights. Accordingly, we AFFIRM the district court
order.
AFFIRMED.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3239644/ | Affirmed. *Page 681 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892836/ | NO. 07-04-0433-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 1, 2005
______________________________
AMANDA NICOLE STANFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242
ND
DISTRICT COURT OF HALE COUNTY;
NO. B15341-0401; HON. ED SELF, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant, Amanda Nicole Stanford, appeals her conviction for possessing a controlled substance (
methamphetamine) in an amount of more than four but less then 200 grams. In one issue, she challenges the sufficiency of the evidence to show that she knowingly and intentionally possessed a controlled substance.
(footnote: 1) We affirm the judgment of the trial court.
Background
On January 3, 2004, an off duty deputy was driving south on Interstate 27. While doing so, he observed a red vehicle being driven by appellant in an erratic manner. As he approached the Hale County line, he called Hale County Deputy Tommy Baker and alerted him to the vehicle. In response, Baker waited for it to come into view, observed the vehicle change lanes without signaling, and made a traffic stop.
During the stop, the deputy learned that the car had been rented by appellant and that she had an outstanding warrant. This resulted in her being arrested and the deputy conducting an inventory search of the car. As he did so, he discovered a package wrapped in black tape placed in the space between the two front seats. The package measured approximately 6" x 3" x 3". When the deputy asked appellant what the package was, she told him that it was not hers. Finding the answer non-responsive, he repeated his question to her. She again told him it was not hers. Thereafter, the deputy opened the item and discovered that it contained methamphetamine.
Sufficiency
In her sole issue, appellant asserts that the evidence is “insufficient” to prove she knowingly and intentionally possessed the drugs. That is, she posits that the evidence did not sufficiently “link” her to the package containing the controlled substance. We overrule the issue.
To convict one of possessing a controlled substance, the State must prove beyond reasonable doubt that the defendant exercised care, custody, control, or management over the substance while knowing it was contraband.
See
Tex. Health & Safety Code Ann.
§ 481.002(38) (Vernon Supp. 2004-2005);
see also King v. State,
895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Control over the drug can be established through either direct or circumstantial evidence.
Park v. State,
8 S.W.3d 351, 353 (Tex. App.–Amarillo 1999, no pet.).
Here, the record illustrates that appellant had rented the car. And, other than for a dog that traveled with her, she was alone in the vehicle. Moreover, the wrappers, dog food, and miscellaneous matter strewn about the car suggests that she had exercised possession over it for more than a brief period. To this we add her non-responsive answer to the deputy’s question. Again, instead of disclaiming knowledge of what the package was or held when asked, she simply told the deputy that it was not hers. In other words, she attempted to distance herself from it. And, while the package may not have been instantly visible from between the seats, it was not hidden but simply placed in the “crack” between the seats. So too was it of a size (6" x 3" x 3") and appearance (wrapped in black tape) that one could reasonably deduce would not escape notice by someone driving the car for more than a brief period. Finally, given its location, it was readily accessible to her.
Exclusive possession of the place where illegal substances are found can be evidence of knowledge and control.
Bethancourt-Rosales v. State,
50 S.W.3d 650, 654 (Tex. App.–Waco 2001, pet. ref’d) (holding that knowledge can sometimes be inferred solely from the defendant’s control of the vehicle in which the drugs are found, especially when the amount of contraband is large enough to indicate that the accused knew of its presence). Here, appellant was the person with the right to possess the vehicle, was the only person in it at the time, and had with her various of her personal belongings. Furthermore, the drugs were found in close proximity to her and were of a considerably greater quantity than that indicative of personal use. Given this, we hold that the evidence is both legally and factually sufficient to “link” her to the drugs and support her conviction. Accordingly, the issue is overruled and the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
FOOTNOTES
1:Appellant does not indicate whether she complains about the legal or factual sufficiency of the evidence or both. Nonetheless, we will address both per the standards of review described
in
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063072/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 24, 2010
No. 09-15648 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00405-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORACIN WATSON FILSAIME,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 24, 2010)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Leonard E. Clark, appointed counsel for Oracin W. Filsaime, has moved to
withdraw from further representation of the appellant, because, in his opinion, the
appeal is without merit. Counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of
the entire record reveals that counsel’s assessment of the relative merit of the
appeal is correct. Because independent examination of the entire record reveals no
arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the
district court’s denial of Filsaime’s 18 U.S.C. § 3582(c)(2) motion is AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063074/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 23, 2010
No. 09-13759
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 09-00015-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WILSON SMITH, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 23, 2010)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Randolph Murrell, appointed counsel for John Wilson Smith, Jr., has filed a
motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent
review of the entire record reveals that counsel’s assessment of the relative merits
of the appeal is correct. Because independent examination of the entire record
reveals no issues of arguable merit, counsel’s motion to withdraw is GRANTED,
and Smith’s convictions and sentences are AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2985251/ | December 17, 2013
JUDGMENT
The Fourteenth Court of Appeals
SETH TRIGGS, Appellant
NO. 14-13-01028-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below. The
record indicates that the appeal should be DISMISSED. The Court orders the
appeal DISMISSED in accordance with its opinion.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131728/ | 540 U.S. 845
RATCLIFFv.UNITED STATES.
No. 02-10957.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1029783/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE CHAMBERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:94-cr-00089-JRS-1)
Submitted: July 23, 2009 Decided: August 12, 2009
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
George Chambers, Appellant Pro Se. Richard Daniel Cooke, Joan
Elizabeth Evans, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Chambers appeals the district court’s order
denying his motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. See United States v. Chambers, No. 3:94-
cr-00089-JRS-1 (E.D. Va. June 19, 2008). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2986929/ | Dismissed and Memorandum Opinion filed May 9, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00247-CV
MARGARET STONE, Appellant
V.
JEFFREY C. STONE, Appellee
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Cause No. 11-DCV-190152
MEMORANDUM OPINION
This is an attempted appeal from an order disqualifying counsel. Generally,
appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if
permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352
(Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)
(orig. proceeding). This appeal is not from a final judgment or an appealable
interlocutory order.
On April 19, 2013, notification was transmitted to all parties of the court’s
intention to dismiss the appeal for want of jurisdiction unless any party filed a
response within ten days showing meritorious grounds for continuing the appeal.
Appellant filed no response.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Christopher, Jamison, and McCally.
2 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048143/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1211
___________
Jimmy Doyle Bumgardner, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
City of Benton; Benton Police *
Department; Gary Sipes, Police Chief, * [UNPUBLISHED]
Benton, AR; Daniel Creasey, Officer, *
Benton Police Department; David *
Richey, Officer, Benton Police *
Department, *
*
Appellees. *
___________
Submitted: December 4, 2009
Filed: December 9, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Jimmy Doyle Bumgardner, Jr. (Bumgardner) appeals following the district
court’s1 adverse grant of summary judgment in his suit under 42 U.S.C. § 1983,
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable H. David Young, United States Magistrate Judge for the Eastern District
of Arkansas.
arguing summary judgment was granted before discovery was complete, the court
should have appointed counsel for him, and the grant of summary judgment was
unwarranted. Having carefully reviewed the record de novo and considered
Bumgardner’s appellate arguments, we conclude summary judgment was proper for
the reasons explained by the district court, see Scheeler v. City of St. Cloud, 402 F.3d
826, 830 (8th Cir. 2005) (standard of review); summary judgment was not granted
prematurely, see Ballard v. Heineman, 548 F.3d 1132, 1136-37 (8th Cir. 2008); and the
magistrate judge did not abuse his discretion in declining to appoint counsel, see
Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006) (standard of review).
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050702/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-10479
Plaintiff-Appellee,
v. D.C. No.
CR-05-00238-JSW
AGOSTO AYSON BIAGON,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
April 18, 2007—San Francisco, California
Filed December 17, 2007
Before: David R. Thompson, Andrew J. Kleinfeld, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Concurrence by Judge Kleinfeld
16437
UNITED STATES v. BIAGON 16439
COUNSEL
Claire M. Leary, San Francisco, California, for the appellant.
Jeffrey R. Finigan, Assistant United States Attorney, San
Francisco, California, for the appellee.
16440 UNITED STATES v. BIAGON
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether the district court vio-
lated the defendant’s right of allocution when it denied a
motion to close the courtroom for sentencing. We conclude
that the defendant’s rights were not violated, and affirm the
judgment of the district court.
I
On May 4, 2005, an indictment was filed against Agosto
Ayson Biagon and a dozen or so other defendants, charging
them with conspiracy to steal valuable items, and theft of
valuable items, found in U.S. mail bound for military person-
nel stationed in Japan. The defendants, including Biagon,
worked at a company that provided temporary staffing for
Nippon Cargo Airlines at the San Francisco International Air-
port. Biagon pled guilty to mail theft under 18 U.S.C. § 1708,
Count Four of the indictment, on November 29, 2005. He
admitted to stealing a laptop from the mail. In addition to
pleading guilty, Biagon cooperated with the government,
offering “valuable information against his co-defendants and
about the conspiracy in general,” identifying the individuals
involved, corroborating the statements of another cooperator,
and agreeing to cooperate in the future against an at-large
defendant.
As a result of his cooperation and lack of criminal history,
the pre-sentence report recommended Biagon receive a sen-
tence of three months in prison followed by three years of
supervised release, along with $2,000 in restitution. The gov-
ernment recommended the same sentence but contended that
two years of supervised release was more appropriate. In his
sentencing memorandum, Biagon requested that he be sen-
tenced to live in a halfway house in lieu of three months in
prison, allowing him to pay the $2,000 restitution while serv-
UNITED STATES v. BIAGON 16441
ing his time. He noted that no prison sentence would be
required under the Sentencing Guidelines and suggested that
he could be given a sentence exceeding three months if he
could serve it in a halfway house.
The sentencing memoranda produced by both the govern-
ment and Biagon were filed under seal. The government
moved for an order sealing its sentencing memorandum
because “Mr. Biagon cooperated with the government in this
prosecution and revelation of these documents could jeopar-
dize him.”
At the beginning of the sentencing hearing, Biagon’s attor-
ney immediately asked the judge to clear the courtroom or
move the hearing to the end of the day so that Biagon’s coop-
eration with the government could be discussed freely, but the
district judge refused:
Ms. Leary: Your Honor, can the courtroom be
cleared, or can we be moved to a point where it’s
easier —
The Court: Well, I don’t think it’s necessary, in
the sense that the matters are well laid out in the —
both the presentence report and in your respective
sentencing memoranda; and so the issues that you
raise are. . . . I understand your position, I under-
stand the government’s position, and I don’t think
it’s necessary to bare them in court, and therefore, I
don’t believe — I’ve sealed the documents, but I
don’t need — I’m familiar with all of these cases.
There are many of them. So I have a great deal of
knowledge about what has happened in this case.
Ms. Leary: I see.
The Court: So if you want to refer to it in sort of
elliptical terms, you can do so, but I’m not inclined
to seal the courtroom.
16442 UNITED STATES v. BIAGON
The district court again addressed the cooperation issue
when it stated: “putting aside the point that we’re not going
to discuss, which is sort of the elephant in the room here, but
I’m familiar with the elephant as we all are . . . .” Later in the
hearing, the district court gave Biagon the chance to exercise
his right of allocution, asking if there was anything he wished
to say. Presumably through a translator, Biagon stated: “I am
asking for the forgiveness of this court, from the United States
government, for my involvement in this case, and the people
that I hurt, I asked for forgiveness. I am very sorry for what
I did. And that’s it.” Neither Biagon nor his attorney men-
tioned his cooperation or referred to it during the hearing.
At the hearing, Biagon’s counsel again asked for more than
three months in a halfway house instead of three months in
prison, in order to allow him to pay restitution, arguing that
he would not be able to pay after prison because he would
likely be deported upon release. The government continued to
recommend a prison sentence. The district court sentenced
Biagon to three months’ imprisonment followed by a three-
year term of supervised release. The court also ordered Bia-
gon to pay restitution of $2,000. This timely appeal of his sen-
tence followed.
II
[1] The sole question in this appeal is whether Biagon’s
right of allocution was violated. “In the context of criminal
law, the backbone of [our] democratic faith is the right of a
criminal defendant to defend himself against his accusers; and
it has long been recognized that allocution, the right of the
defendant to personally address the court, is an essential ele-
ment of a criminal defense.” Boardman v. Estelle, 957 F.2d
1523, 1526 (9th Cir. 1992) (footnote omitted). “The purpose
of the right of allocution is to allow a defendant to “bring mit-
igating circumstances to the attention of the court.” Sherman
v. United States, 383 F.2d 837, 839 (9th Cir. 1967). Due pro-
cess requires that a defendant who seeks to speak must be
UNITED STATES v. BIAGON 16443
given such an opportunity before a sentence is imposed.
Boardman, 957 F.2d at 1524. However, we have “never held
that a defendant has a right to unlimited allocution.” United
States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997)
[2] The Federal Rules of Criminal Procedure specify a
means of implementing this right. Before imposing a sen-
tence, a district court must provide the defendant’s attorney an
opportunity to speak, and also must “address the defendant
personally in order to permit the defendant to speak or present
any information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(i) and (ii). The right to allocution “may be satis-
fied by allowing a defendant an opportunity to make a state-
ment before the end of sentencing but after the court has
indicated its tentative conclusions on sentencing.” United
States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997).
[3] In this case, the record clearly shows that the district
court asked Biagon whether there was anything he wished to
say before sentence was imposed, and Biagon made a brief
statement to the district court. Biagon actually exercised his
right of allocution. He was not deprived of any constitutional
right.
All of this is conceded by Biagon on appeal. However, he
contends that because the district court did not grant defense
counsel’s motion to close the proceedings at the onset of the
sentencing hearing, his right of allocution was infringed
because he could not allocute fully.
[4] First, the district court did not err in denying the motion
to close the courtroom. The Federal Rules of Criminal Proce-
dure provide for a method of hearing a defendant’s statement
in camera. Rule 32 provides in relevant part that “[u]pon a
party’s motion and for good cause, the court may hear in cam-
era any statement made under Rule 32(i)(4).” Fed. R. Crim.
P. 32(i)(4)(C).
16444 UNITED STATES v. BIAGON
[5] However, Biagon did not make a motion under Rule
32(i)(4)(C). Rather, defense counsel simply requested closure
of the courtroom at the onset of the hearing. The request was
general; it was not tethered to Biagon’s desire to allocute.
Defense counsel did not argue at that time, nor later when
Biagon exercised his right of allocution, that Biagon’s right to
allocute would be infringed if he were to allocute in open
court.
[6] Under these circumstances, the district court was quite
correct in denying the motion, particularly given that the
motion was made orally at the hearing without prior notice.
A notice to the public is required before a court may close
court proceedings to which a qualified right of access exists.
Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940,
946 (9th Cir. 1998); Oregonian Pub. Co. v. District Court,
920 F.2d 1462, 1465 (9th Cir. 1990). Under the proper proce-
dure, notice to the public would have been accomplished by
the filing of a motion under Fed. R. Crim. P. 32(i)(4)(C). If
that had been done, and if the district court had made proper
findings, see Phoenix Newspapers, 156 F.3d at 949, Orego-
nian, 920 F.2d at 1466, then the defendant could have con-
ducted his allocution in camera. Failure to follow the proper
procedures as a predicate to closure of the courtroom would
have been error. Press-Enterprise Co. v. Superior Court, 478
U.S. 1, 8-9 (1986). As we noted in Oregonian:
The Supreme Court has made clear that criminal
proceedings and documents may be closed to the
public without violating the first amendment only if
three substantive requirements are satisfied: (1) clo-
sure serves a compelling interest; (2) there is a sub-
stantial probability that, in the absence of closure,
this compelling interest would be harmed; and (3)
there are no alternatives to closure that would ade-
quately protect the compelling interest. Press Enter-
prise, 478 U.S. at 13-14 (test applied to accused’s
right to a fair trial). The court must not base its deci-
UNITED STATES v. BIAGON 16445
sion on conclusory assertions alone, but must make
specific factual findings. Id. at 13-15.
920 F.2d at 1466.
[7] Given these considerations, without prior notice of the
motion, much less an opportunity to follow the process
required by the Supreme Court in Press-Enterprise for closure
of a public criminal proceeding, the district court was entirely
correct in denying the contemporaneous oral motion to close
the hearing.
Second, the record clearly shows that the district court was
fully aware of the extent of Biagon’s cooperation with the
government. Therefore, there is no merit to Biagon’s sugges-
tion that the district court did not consider his cooperation, or
that his sentence would have been different if he had
described the extent of his cooperation during his allocution.
[8] Finally, although the right to allocution is an important
one, we have “never held that a defendant has a right to
unlimited allocution.” Leasure, 122 F.3d at 840. Here, the
court did not restrict the defendant’s statement in any respect.
The defendant’s apparent desire to say more was not commu-
nicated to the court, nor was the request for closure of the
courtroom made specifically for the purpose of allowing in
camera allocution. A sentencing court does not deny a defen-
dant’s constitutional right of allocution by declining a general
request to close a courtroom for a sentencing hearing, particu-
larly when the defendant fails to move for in camera allocu-
tion pursuant to Rule 32(i)(4)(C), is afforded the opportunity
to allocute, and actually exercises the right to allocute. Not
only was there no constitutional error, but the district court
acted entirely properly under the circumstances in conducting
the sentencing hearing.
AFFIRMED.
16446 UNITED STATES v. BIAGON
KLEINFELD, Circuit Judge, concurring:
I concur in the result the majority reaches, and in most of
the reasoning. I respectfully disagree as to the matters dis-
cussed below.
The majority correctly points out that Biagon (1) had a con-
stitutional right to allocution, (2) he exercised it, (3) he did
not say that he had more that he wanted to say if he could
speak in a closed courtroom, and (4) the judge did not abuse
his discretion under Federal Rule of Criminal Procedure 32 in
denying his lawyer’s request at the commencement of the sen-
tencing hearing to close the courtroom to the public or move
the hearing to when everyone else (probably lawyers and
defendants in other cases) would be gone. That is all that Bia-
gon’s brief puts before us.
Defense counsel did not want the public proceeding to
reveal Biagon’s cooperation with the government. His cooper-
ation was the reason urged for lenience in sentencing. The
judge said he was familiar with this “elephant in the room”
and would consider it, so closing the courtroom in order to
bring the “elephant” to his attention was unnecessary. The
court’s decision was within its discretion under Federal Rule
of Criminal Procedure 32(i)(4)(C), because the “good cause”
shown for in camera proceedings did not outweigh the inter-
est in an open courtroom.1
That is all we needed to say to decide the case. The major-
ity has said it.
I do not agree with the majority’s holding that “Biagon did
not make a motion.” There is no requirement in the rule that
a written motion be filed. Counsel’s request was clear. Coun-
1
Fed R. Crim. P. 32(i)(4)(C) (“In Camera Proceedings. Upon a party’s
motion and for good cause, the court may hear in camera any statement
made under Rule 32(i)(4).”).
UNITED STATES v. BIAGON 16447
sel often phrase oral motions as “requests.” A “motion” is
nothing more than a word lawyers use to refer to requests
made of the court. There is no support for requiring more than
what counsel did to invoke the court’s discretion under Rule
32(i)(4)(C) to seal the courtroom.
The majority goes on to say, in error, that “[a] notice to the
public is required before a court may close court proceedings
to which a qualified right of access exists.” That proposition
is mistaken. The precedents the majority cites are Oregonian
Publishing Company v. United States District Court2 and
Phoenix Newspapers Inc. v. United States District Court.3
Neither is on point. Both cases are petitions for mandamus by
newspapers for access to documents. In Oregonian Publish-
ing, the newspaper wanted access to the plea agreement and
related documents filed under seal.4 In Phoenix Newspapers,
we carefully restricted the reach of our opinion by saying that
“[t]he issue to which our attention is directed is post-trial tran-
script access.”5 Neither case involves a defendant’s request to
conduct proceedings in camera, and neither case involves the
right of the press or the public to be physically present in the
courtroom during a sentencing hearing or any other kind of
hearing.
I do not see a good reason to turn this easy case affirming
denial of a defendant’s motion to seal the courtroom into a
case about an entirely different subject not raised by appel-
lant’s brief, a new press right to be present during sentencing
hearings.
2
Oregonian Publishing Company v. United States District Court, 920
F.2d 1462 (9th Cir. 1990).
3
Phoenix Newspapers Inc. v. United States District Court, 156 F.3d 940
(9th Cir. 1998).
4
Oregonian Publishing, 920 F.2d at 1464.
5
Phoenix Newspapers, 156 F.3d at 947.
16448 UNITED STATES v. BIAGON
Generally courtrooms ought to be open and ordinarily sen-
tencing hearings ought to be open, as this one quite properly
was. In criminal prosecutions, the right to a “public trial” is
protected by the Sixth Amendment. The public and whatever
press have any interest, including newspapers, freelance writ-
ers, bloggers and anyone else, ought generally to be able to
see what is going on in courtrooms, including sentencing
hearings. But occasionally there is a good reason to hold sen-
tencing proceedings, at least partially, in camera.
The most common reason for in camera proceedings during
sentencing arises when a defendant has cooperated with the
government. The purpose is to protect him or her from being
murdered by individuals sharing the defendant’s interest, or
fellow prisoners who find out that he was a “snitch.” Many
criminals have strong feelings about people they call “snitch-
es,” even where their own cases were not affected. It is one
thing to send a defendant to jail or prison and quite another
to set him up to be hurt or killed there.
Another commonly arising reason for in camera proceed-
ings is where details of sexual matters will be exposed, such
as where children and others testify about the consequences
of being molested. Sometimes embarrassing medical informa-
tion has to be brought before the court. Sometimes the victim
of a financial crime does not want the public to know just how
precarious his or her business or charity is on account of the
defendant’s fraud or embezzlement, because exposure will
complete the destruction the defendant started. Sometimes the
government has to bring out matters of national security.
These are only some of the many legitimate “good cause”
considerations that the court should weigh when it exercises
its discretion under Rule 32(i)(4)(C).
An oral request without prior notice has been consistent
with the law, at least until this case. Rule 32(i)(4)(C), Phoenix
Newspapers, and Oregonian Publishing say nothing to the
contrary. Where last minute oral notice unduly risks the pub-
UNITED STATES v. BIAGON 16449
lic interest in access, the court has discretion to require that
a written motion be filed, and may continue the proceeding so
that the press or other public interests in openness can be
heard and considered. There is no basis in the rule or the cases
the majority relies on for denying the court this discretion.
Sometimes the court will require a written motion or issue a
continuance on a party’s motion or on its own motion. Judges
read newspapers, look at blogs, and notice crowds in the spec-
tator seats, so they have some sense of what cases have
attracted public interest. Sometimes the court may reasonably
proceed immediately on an oral motion with an in camera
proceeding, where, for example, a public proceeding might
get someone killed or cause needless embarrassment in a mat-
ter of no apparent public concern, or a reluctant victim or wit-
ness has just agreed to testify.
We ought not use this case as a vehicle to develop a new
rule unnecessary to a decision that may sacrifice other impor-
tant public interests to the interest in press access. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050703/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAE GOVERNMENT SERVICES, INC., a
California corporation,
No. 06-56438
Plaintiff-Appellant,
v. D.C. No.
CV-06-00964-RGK
MPRI, INC., a Delaware
OPINION
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
October 15, 2007—Pasadena, California
Filed December 18, 2007
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and M. Margaret McKeown, Circuit Judges.
Opinion by Chief Judge Kozinski
16483
PAE GOVERNMENT SERVICES v. MPRI, INC. 16485
COUNSEL
Richard E. Drooyan, Mark H. Epstein, Katherine K. Huang
and E. Dorsey Heine, Munger, Tolles & Olson LLP, Los
Angeles, California, for the plaintiff-appellant.
Kathleen M. Wood and Nicholas P. Connon, Connon Wood
Sheidemantle LLP, Los Angeles, California, for the
defendant-appellee.
OPINION
KOZINSKI, Chief Judge:
We consider whether a district court may strike allegations
from an amended complaint because they contradict an earlier
iteration of the same pleading.
Facts
PAE Government Services, Inc. and MPRI, Inc. sell ser-
vices to government agencies. The companies agreed to work
together to submit a bid for a government contract, and signed
a “Teaming Agreement” that divided duties between them.
16486 PAE GOVERNMENT SERVICES v. MPRI, INC.
MPRI submitted the bid as “prime contractor” and won.
MPRI thereafter refused to subcontract to PAE all the work
specified in the Teaming Agreement—or so PAE claimed in
its original complaint.
The district court dismissed that complaint because, in its
view, the Teaming Agreement is no more than an “agreement
to agree.” The agreement is governed by Virginia law, and the
district court held that Virginia won’t enforce agreements to
agree.1 PAE thereupon amended its complaint to allege that,
after MPRI won the government contract, it entered into a
second agreement with PAE. According to the amended com-
plaint, this second agreement was “confirmed” in “written
communications” and by the parties’ “course of conduct.”
The amended complaint also added a promissory estoppel
claim against MPRI.
The district court found PAE’s new allegations of a second
agreement with MPRI to be “sham pleadings that contradict
allegations made in the original Complaint.” In particular, the
allegation of a second agreement contradicted PAE’s original
claim that “[f]ollowing the award of the . . . [government con-
tract], MPRI failed and refused to enter into a subcontract
with PAE.” The district court therefore struck the new allega-
tions from PAE’s First Amended Complaint. After holding
that Virginia law also barred PAE’s promissory estoppel
claim, the district court dismissed the complaint.
PAE amended its complaint yet again, adding more detail
about its second agreement with MPRI. The district court
remained unmoved; it deemed the Second Amended Com-
plaint to be “merely a revision of the [First Amended Com-
plaint] which alleges more specific facts evidencing the
existence of a subsequent subcontract between the parties.”
1
PAE has not appealed that ruling, so we don’t consider the district
court’s interpretation of Virginia law or its application of that law to the
Teaming Agreement.
PAE GOVERNMENT SERVICES v. MPRI, INC. 16487
The district court struck the additional allegations and dis-
missed the complaint—this time, with prejudice.
Analysis
[1] 1. By striking the allegations in PAE’s amended com-
plaint as a “sham,” the district court effectively resolved those
allegations on the merits. In other words, it determined that
the allegations in the amended complaint were unfounded
because they contradicted (in the district court’s view) earlier
allegations PAE made in its original complaint. But the Fed-
eral Rules of Civil Procedure do not authorize a district court
to adjudicate claims on the merits at this early stage in the
proceedings; the court may only review claims for legal suffi-
ciency. See Fed. R. Civ. P. 12(b). Adjudication on the merits
must await summary judgment or trial. Rule 12(f) does autho-
rize the court to strike “any insufficient defense,” which this
is clearly not, and “any redundant, immaterial, impertinent, or
scandalous matter.” PAE’s allegations of a second agreement
are certainly not any of those things; they are normal contract
claims that would not be in the least bit objectionable, but for
the fact that they appeared, in the district court’s view, to con-
tradict allegations in an earlier version of the complaint.
[2] Which brings us to the meat of the coconut: Does the
fact that an amended complaint (or answer) contains an alle-
gation that is apparently contrary to an earlier iteration of the
same pleading render the later pleading a sham? The answer
is: not necessarily. To begin with, allegations in the two ver-
sions of the complaint might not conflict at all. Here, for
example, PAE explains that the allegations in the original
complaint referred to MPRI’s refusal to sign the specific sub-
contract contemplated in the Teaming Agreement; the
amended complaint, by contrast, referred to an entirely differ-
ent agreement reached over email. Only a careful comparison
of the two documents, rather than a glance at isolated provi-
sions, can determine whether PAE’s account is plausible. We
have not undertaken such a comparison, however, nor need
16488 PAE GOVERNMENT SERVICES v. MPRI, INC.
we do so to resolve this case. Even assuming that the two
pleadings were irreconcilably at odds with each other, this
would not, by itself, establish that the later pleading is a sham.
At the time a complaint is filed, the parties are often uncer-
tain about the facts and the law; and yet, prompt filing is
encouraged and often required by a statute of limitations,
laches, the need to preserve evidence and other such concerns.
In recognition of these uncertainties, we do not require com-
plaints to be verified, see Fed. R. Civ. P. 11(a), and we allow
pleadings in the alternative—even if the alternatives are mutu-
ally exclusive. As the litigation progresses, and each party
learns more about its case and that of its opponents, some
allegations fall by the wayside as legally or factually unsup-
ported. This rarely means that those allegations were brought
in bad faith or that the pleading that contained them was a
sham. Parties usually abandon claims because, over the pas-
sage of time and through diligent work, they have learned
more about the available evidence and viable legal theories,
and wish to shape their allegations to conform to these newly
discovered realities. We do not call this process sham plead-
ing; we call it litigation.2
[3] This does not mean, of course, that allegations in a
complaint can never be frivolous, or that a district court can
never determine that a complaint or answer was filed in bad
2
PAE’s earlier allegation may or may not have relevance to further pro-
ceedings in the case, including any under Rule 11. To the extent the super-
seded pleading is verified, it becomes something akin to a sworn
declaration, and the party that presented it may suffer a loss of credibility
before the trier of fact, which may be less inclined to believe a party that
has sworn to inconsistent material statements. Also, a party’s representa-
tions may judicially estop it from taking a contrary position in later pro-
ceedings. We mention this only as a theoretical possibility in the interest
of completeness, not because we believe it could apply here. Indeed, the
requirements for judicial estoppel are strict, see Fredenburg v. Contra
Costa County Dep’t of Health Servs., 172 F.3d 1176, 1180 (9th Cir. 1999),
and nothing we have seen in this record suggests those requirements are
met here.
PAE GOVERNMENT SERVICES v. MPRI, INC. 16489
faith. But the mechanism for doing so is in Rule 11, which
deals specifically with bad faith conduct. MPRI points to Rule
11 as a source of the district court’s authority for the order it
entered here. But Rule 11 can play no role in this case
because the district court did not invoke the rule’s procedural
safeguards, nor did it employ the rule’s substantive standard,
which would have required a finding that PAE or its counsel
acted in bad faith.3 The district court has no free-standing
authority to strike pleadings simply because it believes that a
party has taken inconsistent positions in the litigation. Rather,
the district court’s powers are generally limited to those pro-
vided by the Federal Rules of Civil Procedure. Though the
Federal Circuit reached a contrary conclusion in Bradley v.
Chiron Corp., 136 F.3d 1317, 1326 (Fed. Cir. 1998), no other
court of appeals has followed that decision, and we decline to
do so.4
3
A prior version of Rule 11 did authorize a district court to “strike
pleadings . . . as sham and false,” but this provision was eliminated in
1983. See Fed. R. Civ. P. 11 advisory committee’s note to 1983 amend-
ment; 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1336.3 (3d ed. 2004). MPRI relies on one of our Rule 11 pre-
cedents, Ellingson v. Burlington Northern, Inc., 653 F.2d 1327 (9th Cir.
1981), but Ellingson is no longer good law after the amendment to Rule
11.
The Advisory Committee notes to Rule 11 suggest that the 1983 amend-
ment was designed to avoid precisely the type of error committed by the
district court here: “confus[ing] the issue of attorney honesty with the mer-
its of the action.” Though false factual assertions may be evidence of bad
faith, they are usually not; generally, they are the result of ignorance, mis-
understanding or undue optimism. If bad faith is found, in accordance with
the procedures outlined in Rule 11, the district court has wide latitude to
impose sanctions, including the striking of the offending pleading. See,
e.g., Morris v. Wachovia Sec., Inc., 448 F.3d 268, 284 (4th Cir. 2006). But
absent a finding of bad faith, factual allegations in the complaint (or
answer) must be tested through the normal mechanisms for adjudicating
the merits.
4
Ironically, Bradley purported to rely on two of our cases. One of them
is Ellingson; for reasons explained p.16489 n.3 supra, that case does not
survive the amendments to Rule 11. The other case Bradley relied on was
16490 PAE GOVERNMENT SERVICES v. MPRI, INC.
[4] The short of it is that there is nothing in the Federal
Rules of Civil Procedure to prevent a party from filing succes-
sive pleadings that make inconsistent or even contradictory
allegations. Unless there is a showing that the party acted in
bad faith—a showing that can only be made after the party is
given an opportunity to respond under the procedures of Rule
11—inconsistent allegations are simply not a basis for striking
the pleading. The district court’s order, which is based on the
contrary conclusion, must be reversed.
[5] 2. Because MPRI made its alleged promises in con-
nection with the Teaming Agreement, that agreement’s
choice-of-law clause governs PAE’s promissory estoppel
claim. See Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th
459, 470 (1992) (agreement’s choice-of-law clause applies to
“all causes of action arising from or related to that agree-
ment”); Olinick v. BMG Entm’t, 138 Cal. App. 4th 1286,
1300 (Ct. App. 2006) (choice-of-law clause applies to claims
that are “inextricably intertwined with the construction and
enforcement” of the contract). The Teaming Agreement
chooses Virginia law, which doesn’t recognize promissory
estoppel as a cause of action. W.J. Schafer Assocs., Inc. v.
Cordant, Inc., 254 Va. 514, 521 (1997). We see no reason not
to enforce the agreement’s choice of law: Virginia has a sub-
stantial relationship to MPRI (which has its principal place of
business there), and enforcing the clause won’t violate a fun-
damental policy of California. See Gamer v. duPont Glore
Forgan, Inc., 65 Cal. App. 3d 280, 287-88 (Ct. App. 1976)
(quoting Restatement (Second) Conflict of Laws § 187). The
district court properly dismissed PAE’s promissory estoppel
claim.
Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir. 1990), a case that
stands for the unremarkable proposition that, where a complaint cannot be
cured by amendment, the district court may deny leave to amend under
Rule 15. Id. at 296. We see no analogy between that situation and the one
presented here. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“futility
of amendment” is reason to deny leave to amend).
PAE GOVERNMENT SERVICES v. MPRI, INC. 16491
* * *
Rule 12 provides no authority to dismiss “sham” pleadings.
If a party believes that its opponent pled in bad faith, it can
seek other means of redress, such as sanctions under Rule 11,
28 U.S.C. § 1927 or the court’s inherent authority. Chambers
v. NASCO, Inc., 501 U.S. 32, 45-46 (1991).
REVERSED in part, AFFIRMED in part and
REMANDED. No costs. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050716/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-50684
Plaintiff-Appellee,
v. D.C. No.
CR-06-00468-RTB
DAVID BERBER-TINOCO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
September 27, 2007—Pasadena, California
Filed December 19, 2007
Before: J. Clifford Wallace, Thomas G. Nelson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
16531
16534 UNITED STATES v. BERBER-TINOCO
COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the defendant-appellant.
David D. Leshner, Assistant United States Attorney, Office of
the United States Attorney, San Diego, California, for the
plaintiff-appellee.
UNITED STATES v. BERBER-TINOCO 16535
OPINION
IKUTA, Circuit Judge:
We consider the challenge brought by David Berber-
Tinoco to the district court’s denial of his motion to suppress.
Berber sought to suppress his statements and fingerprints
which were taken pursuant to an arrest by Border Patrol offi-
cers. Berber argues that the officers lacked reasonable suspi-
cion to stop him, and also argues that we must reverse the
district court’s ruling due to misconduct by the district court
judge during the suppression hearing. We hold that there was
reasonable suspicion for the stop and that the judge’s viola-
tion of Rule 605 of the Federal Rules of Evidence was harm-
less. Therefore, we affirm.
I
Around 10:30 on the night of February 9, 2006, Border
Patrol Officers Thomas Englehorn and Robert Lenoir were
positioned in their vehicles at different spots on Lyons Valley
Road between Honey Springs and Japatul Valley Road. This
area is completely rural with no residences and no businesses
other than a juvenile detention center and a fire station. Two
hours earlier, a seismic intrusion device had been activated.
Based on their experience, the officers knew that it would
take an alien crossing the border approximately two hours to
get to this site, which was a notorious smuggling area with
known load sites for aliens.
From his position at the Japatul Fire Station off of Lyons
Valley Road, Officer Engelhorn saw two vehicles, a Dodge
Durango and a Ford pickup truck, approach the area. Already
on the look-out for smuggling because of the alarm from the
seismic intrusion device, Officer Engelhorn became suspi-
cious when he observed the two vehicles driving “right next
to each other, not more than a car or two car lengths apart,
traveling at a slow rate of speed.” The cars repeatedly braked
16536 UNITED STATES v. BERBER-TINOCO
and then continued at their slow speed until they were out of
Officer Engelhorn’s view. Officer Engelhorn did not stop the
vehicles at that point; he wanted to see if the two vehicles
continued westbound in the same direction toward Honey
Springs, which would suggest the vehicles were merely local
traffic.
After the vehicles left his sight, Officer Engelhorn pulled
out and followed the vehicles westbound toward the juvenile
detention center. Given the terrain and the officer’s attempt to
remain undetected, he did not have the cars within his vision
the entire time. He then saw the two cars turn around at the
detention center and return eastbound. The Durango passed
him, and the pickup truck pulled over between a 15-mile
marker and the detention center. It then pulled out again and
continued east.
According to Officer Engelhorn, the area where the vehi-
cles were turning around was heavily used for loading aliens.
He testified that “based on [his] experience, it’s almost a
nightly occurrence between there and the 15-mile marker and
the . . . fire station.” Given the alarm from the seismic intru-
sion device, the timing when the vehicles approached the
area, and their conduct which included turning around at
known loading spots, the officer believed the vehicles were
loading up with illegal aliens as part of a smuggling opera-
tion. Relying on this evidence and their suspicions, the offi-
cers made an investigatory stop of the two vehicles at that
point.
Berber, a passenger in one of the vehicles, was arrested and
charged with unlawful re-entry into the United States after
deportation in violation of 8 U.S.C. § 1326.1 Berber filed a
1
8 U.S.C. § 1326(a) provides:
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed
or has departed the United States while an order of exclusion,
deportation, or removal is outstanding, and thereafter
UNITED STATES v. BERBER-TINOCO 16537
motion to suppress evidence of his fingerprints and statements
to the officers as the fruits of an allegedly unlawful stop. After
an evidentiary hearing, the district court denied the motion to
suppress. Berber entered into a conditional guilty plea agree-
ment that allowed him to appeal this ruling.
II
We review de novo whether the officers had reasonable
suspicion to make an investigatory stop. Ornelas v. United
States, 517 U.S. 690, 699 (1996). We review the district
court’s findings of fact for clear error. Id.; United States v.
Tiong, 224 F.3d 1136, 1139 (9th Cir. 2000).
[1] The Fourth Amendment right to be secure from unrea-
sonable searches and seizures by the government “applies to
all seizures of the person, including seizures that involve only
a brief detention short of traditional arrest.” United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975). A brief investiga-
tory stop does not violate the Fourth Amendment, however,
“if the officer has a reasonable suspicion supported by articul-
able facts that criminal activity ‘may be afoot.’ ” United
States v. Sokolow, 490 U.S. 1, 7 (1989).
In determining whether a stop was justified by a reasonable
suspicion, we consider whether, in light of the totality of the
(2) enters, attempts to enter, or is at any time found in, the
United States, unless (A) prior to his reembarkation at a place
outside the United States or his application for admission from
foreign contiguous territory, the Attorney General has expressly
consented to such alien’s reapplying for admission; or (B) with
respect to an alien previously denied admission and removed,
unless such alien shall establish that he was not required to obtain
such advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
16538 UNITED STATES v. BERBER-TINOCO
circumstances, the officer had “a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U.S. 411, 417-18
(1981). For purposes of this analysis, the totality of the cir-
cumstances includes “objective observations, information
from police reports, if such are available, and consideration of
the modes or patterns of operation of certain kinds of law-
breakers.” Id. at 418. In the context of border patrol stops, the
totality of the circumstances may include “(1) characteristics
of the area; (2) proximity to the border; (3) usual patterns of
traffic and time of day; (4) previous alien or drug smuggling
in the area; (5) behavior of the driver, including ‘obvious
attempts to evade officers’; (6) appearance or behavior of pas-
sengers; (7) model and appearance of the vehicle; and, (8)
officer experience.” United States v. Garcia-Barron, 116 F.3d
1305, 1307 (9th Cir. 1997) (quoting Brignoni-Ponce, 422
U.S. at 885).
As noted above, in order to uphold the validity of the inves-
tigatory stop, we must discern from this melange of factors “a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.” Cortez, 449 U.S. at 417-
18. Often, the data in the record seems equally capable of sup-
porting an innocent explanation as a reasonable suspicion. In
such cases, the Supreme Court directs us to give due weight
to the factual inferences drawn by law enforcement officers,
United States v. Arvizu, 534 U.S. 266, 277 (2002), and has
noted that officers may make reasonable deductions and infer-
ences based on their experience and specialized training that
“might well elude an untrained person.” Id. at 273 (internal
quotation marks omitted). In this vein, the Court has empha-
sized that even when factors considered in isolation from each
other are susceptible to an innocent explanation, they may
collectively amount to a reasonable suspicion. Id. at 274. Of
course, officers cannot rely solely on factors that would apply
to many law-abiding citizens. See, e.g., United States v. Diaz-
Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002) (“Reasonable
suspicion may not be based on broad profiles which cast sus-
UNITED STATES v. BERBER-TINOCO 16539
picion on entire categories of people without any individual-
ized suspicion of the particular person to be stopped.”)
(internal quotation marks omitted); United States v. Sigmond-
Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002) (holding that
there was no reasonable suspicion where the factors underly-
ing the suspicion depicted “ ‘a very large category of presum-
ably innocent travelers, who would be subject to virtually
random seizures were the Court to conclude that as little foun-
dation as there was in this case could justify a seizure’ ”)
(quoting Reid v. Georgia, 448 U.S. 438, 441 (1980)). How-
ever, the Supreme Court prohibits courts from adopting a
“divide-and-conquer analysis” by looking at each factor in
isolation and according it no weight if it is susceptible to an
innocent explanation. Arvizu, 534 U.S. at 274.
[2] A reasonable suspicion of criminal activity may be suf-
ficiently particularized where officers have narrowed the time
and place of expected criminal activity through deduction or
through a reliable tip. See, e.g., United States v. Paopao, 469
F.3d 760, 766-67 (9th Cir. 2006) (holding there was reason-
able suspicion for a protective sweep based on a reasonably
detailed tip from a reliable informant); see also Cortez, 449
U.S. at 419-20. In Cortez, border patrol agents deduced solely
from their observation of footprints in the desert that groups
of aliens, probably led by a guide, were crossing the border
and proceeding 30 miles to an isolated point on Highway 86.
Based on their experience, the officers further deduced that
another crossing was likely to occur on the next clear night,
and that a group would likely arrive at the highway between
2 a.m. and 6 a.m. In light of these “permissible deductions,”
id. at 419, the Supreme Court concluded that the officers had
a reasonable suspicion to stop a pickup truck with a camper
shell (the sort of vehicle the officers expected would be used
to carry aliens that night) that passed a crossing point twice.
Id. at 413-15, 421-22; see also United States v. Ordaz, 145
F.3d 1111 (9th Cir. 1998) (holding that the fact that the offi-
cers knew that border sensors had been activated, and one
officer had seen a bundle put in a vehicle of undetermined
16540 UNITED STATES v. BERBER-TINOCO
make, was a sufficient basis for reasonable suspicion to stop
four vehicles coming out of the observed area).
[3] In this case, based on the totality of the circumstances,
we conclude that the officers did have an objective and partic-
ularized suspicion that the two vehicles observed on Lyons
Valley Road were “engaged in wrongdoing.” Cortez, 449 U.S.
at 418. First, the officers were able to narrow their suspicion
through deduction. The officers testified that a seismic intru-
sion device was activated, which in their experience indicated
that someone had just illegally crossed the border. We have
long accepted alarms from seismic intrusion devices at the
border as an acceptable factor in a reasonable suspicion analy-
sis. See, e.g., United States v. Olafson, 213 F.3d 435, 439-40
(9th Cir. 2000); United States v. Avalos-Ochoa, 557 F.2d
1299, 1301-02 (9th Cir. 1977). The officers deduced that ille-
gal aliens would likely be picked up at the Lyons Valley Road
loading area that was notorious for alien smuggling. Because
the site was within a two hour walk from the border, the offi-
cers reasonably deduced that vehicles picking up aliens were
likely to arrive at the site during that time frame, and therefore
staked out the site at that time to watch for suspicious behav-
ior. The ensuing conduct of the vehicles, which arrived at the
suspected time at the suspected site, created a particularized
set of circumstances and did not raise a concern that officers
might on this basis target “[t]housands of United States citi-
zens.” United States v. Salinas, 940 F.2d 392, 395 (9th Cir.
1991). Indeed, the chain of deductions here was much more
direct than the reasoning upheld by the Supreme Court in
Cortez.
[4] Second, the officers made reasonable factual inferences
based on their experience with smuggling activities in the
area. The officers testified that at that hour (about 10:30 at
night) in that rural, remote area, local traffic would normally
travel around 55 miles per hour and continue westbound
toward Honey Springs. Therefore, it was reasonable for the
officers to conclude that the behavior of the two vehicles at
UNITED STATES v. BERBER-TINOCO 16541
issue was suspicious, given that the vehicles arrived at the site
traveling slowly, closely together, braking periodically, stop-
ping at known pick-up areas, and finally turning around and
reversing direction to travel eastbound.
[5] In light of the totality of the circumstances, giving due
weight to the officers’ experience and reasonable deductions,
we conclude that the officers had a reasonable, particularized
basis for suspecting the vehicles of picking up illegal aliens,
and that their stop was supported by reasonable suspicion.
Accordingly, we reject Berber’s arguments that the grounds
for the officers’ suspicions lacked particularity and that each
of the factors, taken individually, is susceptible of innocent
explanation. See Arvizu, 534 U.S. at 273-75. Alternate expla-
nations for individual factors are unpersuasive if the factors,
“when viewed in their totality . . . create reasonable suspicion
of criminal activity.” Diaz-Juarez, 299 F.3d at 1142.
III
[6] Berber argues that even if we determine that the investi-
gatory stop was based on reasonable suspicion, we must
reverse the district court for violating Rule 605 of the Federal
Rules of Evidence when the judge made interjections based
on his own knowledge during the suppression hearing.2 Rule
605 provides that “[t]he judge presiding at the trial may not
testify in that trial as a witness.”
Berber claims that a number of the judge’s interjections
violated Rule 605. First, the judge interrupted defense coun-
2
Berber stated that the judge violated 28 U.S.C. § 455(b)(1) by failing
to disqualify himself on the ground that he had “personal knowledge of
disputed evidentiary facts concerning the proceeding.” 28 U.S.C.
§ 455(b)(1). However, Berber has failed to develop this argument, and it
may be deemed abandoned. See Fed. R. App. P. 28(a)(9)(A); United States
v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997). Moreover, the argument
is meritless, because none of the judge’s interjections related to evidenti-
ary facts that were disputed by the parties.
16542 UNITED STATES v. BERBER-TINOCO
sel’s questions to Officer Engelhorn regarding the stop signs
on Lyons Valley Road, and the following exchange took
place:
Court: Counsel, let me interrupt you for just a sec-
ond. I’m really familiar with that area. So if you’re
doing this for my benefit, you can stop because I
happen to know where that stop sign is and what’s
further on down at Lyons Valley.
Defense counsel: This is also for my edification,
Your Honor.
Court: This is discovery. This is not a discovery
motion.
Defense counsel: I understand, Your Honor; how-
ever, it is important to my argument. I would like to
find out from the officer.
Court: The problem is you’re unduly consuming
time. The next stop sign beyond that is at Lawson
Valley Road, which is a long ways down the road,
so why don’t you move on.
In subsequent cross-examination, defense counsel again
asked Officer Lenoir about the stop signs on Lyons Valley
Road. The officer testified that there were two stop signs, but
the judge interjected, “Actually, I think there’s four, counsel.”
The judge went on at some length:
Court: Well, there’s four. Including the whole dis-
tance of Lyons Valley Road, there’s four. The area
he’s talking about there’s one at the intersection of
Lyons and Japatul, and there’s one at Four Corners,
which is the intersection of Honey Springs, Lyons
Valley, and Skyline Truck Trail, and it’s a distance
of about seven miles between those two stretches.
UNITED STATES v. BERBER-TINOCO 16543
If that’s what you’re talking about, which I think is
what the officer’s talking about, for my purposes, for
the purposes of the hearing today, it doesn’t do any
good to talk about the second stop sign, or the third
stop sign at Lawson Valley road, or the fourth stop
sign, which is down by Skyline Truck Trail, again,
down at the—almost the intersection of 94.
Defense Counsel: But there is at least one stop sign
in this area.
Court: There’s a stop sign up at Four Corners, and
there’s a stop sign at Japatul Valley Road and Lyons
Valley Road. So if you look at it as a piece of string,
at both ends of that string there are stop signs, okay.
Later, in summing up the evidence, the district court stated:
First of all, that’s an extremely rural and somewhat
mountainous area. There’s really not much between
there and Highway 94 that’s right to the border of
Mexico, other than the mountains, so to speak.
That’s a fairly narrow road running from Japatul
Valley Road to the intersection with Honey Springs,
not a whole lot of traffic on that road at 10:30 at
night.
The evidence before me shows the following: there
were two vehicles traveling together in a very rural,
remote area of the county, known to be notorious for
alien smuggling. They’re traveling slowly. They
brake periodically. They stop. They keep going.
They turn around. One of the vehicles again stops.
And at that point in time the officer, who has had a
report of a seismic intrusion device, as I said, that
whole area is—I guess it’s south of Lyons Valley
Road—is very mountainous, so it makes sense that
what these officers are waiting for is for someone to
16544 UNITED STATES v. BERBER-TINOCO
come out of that area, after having triggered the
motion—the seismic device, and so all this is consis-
tent with someone who is driving around looking to
pick up someone.
I guess one could make the argument, if it was one
vehicle, perhaps, there wouldn’t be probable cause
or reasonable suspicion to pull these vehicles over.
If there were two vehicles, and they were going in
one direction, and they were traveling at the rate of
speed—
By the way, I think, [Defense Counsel], I may be
mistaken on this, but I think the speed limit in Cali-
fornia, unless otherwise posted, is 55 miles an hour.
So if the vehicle is traveling between 20 and 35
miles an hour, which is a very low rate of speed in
a rural area, stopping periodically along areas where
the officers know that people are going to be picked
up, and particularly following setting off a seismic
device, I believe that that’s enough to create reason-
able suspicion.
I don’t think that the law requires that the officers
actually see someone load into the vehicles. In fact,
in that type of area, I suspect that it’s probably very
difficult to see that sort of thing, which is—that’s
why they use that area.
Berber claims that the judge relied on personal knowledge
in commenting on the location of the stop signs and in making
the following six statements: (1) the area at issue is an “ex-
tremely” rural area; (2) “there’s not much between there and
Highway 94 that’s right to the border of Mexico”; (3) “that’s
a fairly narrow road running from Japatul Valley Road to the
intersection with Honey Springs”; (4) there is “not a whole lot
of traffic on that road at 10:30 at night”; (5) “I may be mis-
taken on this, but I think the speed limit in California, unless
UNITED STATES v. BERBER-TINOCO 16545
otherwise posted, is 55 miles an hour. So if the vehicle is trav-
eling between 20 and 35 miles an hour, which is a very low
rate of speed in a rural area . . . .”; and (6) “in fact, in that type
of area, I suspect that it’s probably very difficult to see that
sort of thing [loading of aliens], which—that’s why they use
that area.” Berber claims these interjections violated Rule
605.
[7] We agree that the judge violated Rule 605 when he
interjected his own observations regarding the location of the
stop signs along the Lyons Valley Road and the narrowness
of the road from Japatul Valley Road to the intersection with
Honey Springs. At the time the judge first stated these facts,
they were not in the record nor were they reasonable infer-
ences from the record. Although a closer call, the judge also
violated Rule 605 when he relied on personal knowledge to
conclude that no speed limit was posted on Lyons Valley
Road and therefore the speed limit was 55 miles per hour.
Although a court might be able to take judicial notice of a
speed limit under some circumstances, see FED. R. EVID.
201(b); United States v. Bradford, 78 F.3d 1216, 1221 n.8
(7th Cir. 1996), the judge here provided a personal conjecture,
rather than a judicially noticed fact.
[8] A trial judge is not a competent witness to such factual
issues. See United States v. Lewis, 833 F.2d 1380, 1385 (9th
Cir. 1987) (citing FED. R. EVID. 605). Nor can the judge take
judicial notice of such issues. “A trial judge is prohibited from
relying on his personal experience to support the taking of
judicial notice. ‘It is therefore plainly accepted that the judge
is not to use from the bench, under the guise of judicial
knowledge, that which he knows only as an individual
observer outside of court.’ ” Id. (quoting 9 J. WIGMORE, EVI-
DENCE IN TRIALS AT COMMON LAW § 2569, at 723) (J. Chabourn
rev. ed. 1981). The type of specific personal knowledge
offered by the judge is not akin to the general knowledge we
have found acceptable in other contexts. See United States v.
Mariscal, 285 F.3d 1127, 1131-32) (9th Cir. 2002) (holding
16546 UNITED STATES v. BERBER-TINOCO
that judicial knowledge that a road is heavily traveled is
“nothing like the obvious fact that surgery is painful and can
have dire consequences” or “like common knowledge about
the general shape of snowmen”). While a resident judge’s
background knowledge of an area may “inform the judge’s
assessment of the historical facts,” Ornelas v. United States,
517 U.S. 690, 700 (1996), the judge may not actually testify
in the proceeding or interject facts (excluding facts for which
proper judicial notice is taken). Therefore, the judge erred in
making his observations about such issues.
The other statements made by the judge in summing up the
evidence did not violate Rule 605. The assertions that the area
at issue was extremely rural and sparsely populated were sup-
ported by the record, given the officers’ testimony that the
area at issue was a rural, remote area, with few residences and
no businesses other than a fire station and a detention center.
Similarly, the judge’s statement that there would be little traf-
fic on the road at 10:30 at night could be reasonably inferred
from the officers’ testimony that the road was in a remote
area. Finally, the judge’s inference that it was probably diffi-
cult to see the alien loading activity was supported by the offi-
cers’ testimony that they did not have a complete view of the
vehicles. A judge may make reasonable inferences from the
record in summing up the evidence without violating Rule
605. See Ornelas, 517 U.S. at 699.
[9] Given our conclusion that three of the judge’s remarks
violated Rule 605, we must next determine whether such vio-
lations are subject to harmless error review and, if so, whether
these errors were harmless. In evaluating other violations of
the Federal Rules of Evidence, we have held that we need not
reverse a district court’s decision so long as we have a “ ‘fair
assurance’ that the verdict was not substantially swayed by
error.” United States v. Seschillie, 310 F.3d 1208, 1214 (9th
Cir. 2002); see also United States v. Morales, 108 F.3d 1031,
1040 (9th Cir. 1997) (en banc). This standard is equally appli-
cable to violations of Rule 605. See United States v. Nickl,
UNITED STATES v. BERBER-TINOCO 16547
427 F.3d 1286, 1293 (10th Cir. 2005) (applying harmless
error review to a Rule 605 violation).
[10] We reject Berber’s argument that a Rule 605 error
constitutes a structural constitutional error requiring reversal.
The Supreme Court has held that only “a limited class of fun-
damental constitutional errors” are structural errors, and not
subject to harmless error analysis. Neder v. United States, 527
U.S. 1, 7 (1999). These structural errors include the complete
denial of counsel, a biased trial judge, racial discrimination in
the selection of a grand jury, denial of self-representation at
trial, denial of a public trial, and a defective reasonable doubt
instruction. Id. at 8. Berber claims that a judge’s interjections
in violation of Rule 605 destroy the court’s image of impar-
tiality and thus violate a defendant’s constitutional right to an
unbiased trial judge. However, as we recently noted, the
Supreme Court has required recusal due to an appearance of
bias (as opposed to actual bias) only when a judge: (i) has a
“direct, personal, substantial pecuniary interest” in the out-
come; (ii) becomes “embroiled in a running, bitter controver-
sy” with a party; or (iii) participates as “part of the accusatory
process.” Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir.
2007) (internal quotation marks omitted). Rule 605 violations
will rarely rise to this level. A judge’s conduct during judicial
proceedings “should not, except in the ‘rarest of circum-
stances’ form the sole basis for recusal under § 455(a).”
United States v. Holland, 501 F.3d 1120, 1124-25 (9th Cir.
2007) (footnote omitted). See also Nickl, 427 F.3d at 1296-99.
We therefore decline to hold that a Rule 605 violation, with-
out more, mandates reversal. Here, there was no evidence of
actual bias, and the judge’s conduct does not fall within the
three circumstances where the Supreme Court has required
recusal.
Because we conclude that this Rule 605 error does not rise
to the level of a structural constitutional error, we apply the
harmless error standard and consider whether there is a “fair
assurance,” based on an independent review of the record,
16548 UNITED STATES v. BERBER-TINOCO
that the judge’s unsupported remarks did not affect the deci-
sion to deny Berber’s motion to suppress. See Seschillie, 310
F.3d at 1214. We undertook a similar inquiry in both Mariscal
and Lewis. In Mariscal, the district court considered whether
an officer had reasonable suspicion to stop a defendant for
failure to give a turn signal “in the event any other traffic may
be affected by the movement.” 285 F.3d at 1131 (quoting
Ariz. Rev. Stat. § 28-754(A)). Although the prosecution failed
to introduce any evidence as to whether traffic could be
affected by the defendant’s turn, the district court judge con-
cluded that this factor was met because “ ‘McDowell Road is
a heavily traveled east-west street in the City of Phoenix.’ ”
Id. Because there was insufficient reasonable suspicion for the
stop absent the judge’s observation, we determined that “the
objective facts of record” did not support the determination
that there was reasonable suspicion for the stop. We therefore
reversed the district court’s order denying the motion to sup-
press. Id. at 1133.
[11] Here, by contrast, the judge’s interjections regarding
the stop signs and the statement that the road from Japatul
Valley Road to the intersection with Honey Springs was nar-
row did not fill in any critical evidentiary gaps in this case.
The judge’s conjecture as to the speed limit and subsequent
comparison of the slow speed of the vehicles to a speed limit
of 55 miles an hour was cumulative, given the officers’ testi-
mony that the vehicles were traveling at no more than 30
miles per hour, and that traffic typically travels at 50 miles per
hour. An independent review of the record, striking the erro-
neous judicial comments, supports the district court’s ultimate
ruling that the officers in this case had reasonable suspicion
to stop the vehicle in which Berber was traveling. Moreover,
as in Lewis and Mariscal, there is no serious concern here that
the judge’s comments and personal knowledge influenced any
aspect of the trial or hearing other than the judge’s own determi-
nation.3 The judge did not, for instance, make damaging state-
3
Berber claims the judge’s statements regarding the location of the stop
signs “tipped off” the prosecutor to Berber’s theory that the cars were
UNITED STATES v. BERBER-TINOCO 16549
ments to the jury. Cf. United States v. Pritchett, 699 F.2d 317,
320 (6th Cir. 1983) (holding that the trial judge’s statements
in front of the jury that one of defendant’s acquaintances was
a convicted cocaine dealer created “a sufficient risk of preju-
dice” requiring reversal).
[12] It was inappropriate for the judge to interrupt question-
ing in order to interject his personal knowledge of facts out-
side the record. Nevertheless, because we can say with fair
assurance that the district court’s violations of Rule 605 were
harmless, we affirm.
AFFIRMED
braking on the road because of the stop signs and not to pick up aliens at
loading points. However, the defense counsel’s initiation of a line of ques-
tions about the stop signs was sufficient to “tip off” the prosecutor. Berber
also claims that the judge erroneously curtailed this line of inquiry. Given
the district court’s “wide discretion in limiting the scope of cross-
examination,” the court did not err in cutting short the questions about the
stop signs. United States v. Payne, 944 F.2d 1458, 1469 (9th Cir. 1991).
Moreover, despite the judge’s interruptions, the defense counsel was able
to elicit testimony from the two officers regarding the location of the stop
signs on Lyons Valley Road. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048147/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3127
___________
Wilian Rene Barrientos-Ayala, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
1
Eric H. Holder, Jr., Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: December 3, 2009
Filed: December 8, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Guatemalan citizen Wilian Barrientos-Ayala petitions for review of an order of
the Board of Immigration Appeals (BIA), which affirmed an immigration judge’s
denial of cancellation of removal and relief under the Convention Against Torture
(CAT). We conclude substantial evidence supports the BIA’s determination that
Barrientos-Ayala did not meet his burden of proof for CAT relief. See 8 C.F.R.
1
Eric H. Holder, Jr., has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
§§ 1208.16(c), 1208.18(a) (CAT eligibility requirements); Marroquin-Ochoma v.
Holder, 574 F.3d 574, 579-80 (8th Cir. 2009). As to cancellation of removal, we lack
jurisdiction to review the BIA’s discretionary determination--made by applying the
correct legal standard--that Barrientos-Ayala failed to prove his removal would cause
an exceptional and extremely unusual hardship to his qualifying relatives under 8
U.S.C. § 1229b(b)(1)(D). See Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434
(8th Cir. 2007).
Accordingly, we deny the petition for review.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8541099/ | RESOLUCIÓN
Examinada la Moción en Auxilio de Jurisdicción, así como el Recurso de Certificación Intrajurisdiccional presentados por la parte peticionaria de epígrafe, se provee “no ha lugar” a ambas.
Notifíquese por teléfono y facsímil.
Lo acordó el Tribunal y certifica la Secretaria del Tribunal Supremo. La Juez Asociada Señora Rodríguez Rodríguez emitió un voto particular de conformidad, al que se *517unió la Jueza Asociada Oronoz Rodríguez. La Jueza Asociada Señora Pabón Charneco certificaría el asunto de epígrafe e hizo constar las expresiones siguientes:
Al igual que en otras ocasiones, por ser un caso de alto interés público y en el que solo existen controversias de derecho, hubiera certificado el caso de autos. Véanse: Rivera Schatz v. ELA et als., 191 DPR 449 (2014); AMPR et als. v. Sist. Retiro Maestros II, 190 DPR 88 (2014). No obstante, es mi opinión que ante el derecho aplicable, los peticionarios no tienen probabilidad de prevalecer en los méritos de la controversia, por lo que conviene atenderla inmediatamente para no dilatar más los procedimientos en nuestros tribunales.
En el esquema constitucional federal, Puerto Rico es un territorio de Estados Unidos sujeto a los poderes plenarios del Congreso por virtud de la Cláusula Territorial de la Constitución federal. Harris v. Rosario, 446 US 651 (1980); Franklin California Tax-Free v. Puerto Rico, 2015 WL 4079422 (1er Cir. 2015); Pueblo v. Sánchez Valle et al., 192 DPR 594 (2015). Siendo ello así, el Tribunal Supremo federal ha decidido que las garantías constitucionales que se denominen como fundamentales aplican a Puerto Rico por su propia fuerza, ya sea por virtud de la Decimocuarta o de la Quinta Enmienda de la Constitución federal. Torres v. Puerto Rico, 442 US 465, 471 (1979).
El 26 de junio de 2015 el Tribunal Supremo federal resolvió el caso Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed.2d 609. En este se determinó que al amparo del interés libertario garantizado por la cláusula de debido proceso de ley de la Decimocuarta Enmienda de la Constitución federal, existe un derecho fundamental al matrimonio. Es decir, la decisión de nuestro más alto foro judicial fue diáfana al reconocer un derecho fundamental que emana del debido proceso de ley, el cual se garantiza tanto en la Decimocuarta como en la Quinta Enmienda de la Constitución federal. Por lo tanto, soy del criterio que lo resuelto en Obergefell v. Hodges, supra, aplica ex proprio vigore al territorio de Puerto Rico.
La Rama Judicial del territorio de Puerto Rico, al igual que los tribunales de los estados de la unión, no tiene poder para revisar o cuestionar una decisión del Tribunal Supremo federal.
El Juez Asociado Señor Kolthoff Caraballo expediría para pautar. El Juez Asociado Señor Rivera García desea hacer constar la expresión siguiente:
Entiendo que el recurso de certificación intrajurisdiccional *518peticionado se trata de un asunto de alto interés público concerniente a una controversia de estricto derecho para la cual los peticionarios demandantes aducen argumentos que bajo el actual estado de derecho son improcedentes a la luz de la opinión emitida por el Tribunal Supremo de Estados Unidos en Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed.2d 609. En ese caso, la Corte Suprema federal resolvió específicamente que la prohibición del matrimonio entre parejas del mismo sexo es inconstitucional. Esto fundamentado en las garantías propias de libertad y debido proceso de ley cobijadas en la Decimocuarta Enmienda de la Constitución de Estados Unidos. Es innegable que dictámenes como el anterior aplican al territorio de Puerto Rico. Véase, e.g., Examining Bd. v. Flores de Otero, 426 U.S. 572, 600 (1976). Siendo así, cualquier disposición en nuestro ordenamiento que no sea cónsona con ello pierde cualquier validez jurídica. Puerto Rico no puede negarse a reconocer los matrimonios entre la personas del mismo sexo. Ese es el derecho vigente y según el cual todos los tribunales, incluyendo esta Curia, deben regirse. En atención a lo anterior, expediría el recurso solicitado y finiquitaría la controversia de forma expedita.
(.Fdo.) Aida Ileana Oquendo Graulau
Secretaria del Tribunal Supremo
Voto particular de conformidad emitido por la
Juez Asociada Señora Rodríguez Rodríguez, al que se une la Jueza Asociada Oronoz Rodríguez.
Cuando los funcionarios del Estado promueven una acción para negarles a sus ciudadanos las protecciones que dispensa la Constitución e impedirles el ejercicio de un derecho fundamental palmariamente reconocido al amparo de esta, no cabe duda de que nuestro ordenamiento constitucional está bajo asedio. Más aún, cuando para ello esgrimen argumentos harto artificiosos que, a lo sumo, denotan un desconocimiento alarmante de las normas cardinales que rigen nuestro ordenamiento constitucional. Así, dado que el recurso de epígrafe pretende impedir la efectiva materialización de un derecho fundamental debidamente re*519conocido por la Constitución federal, la cual indefectiblemente vincula los poderes públicos del Estado Libre Asociado de Puerto Rico (ELA), me veo obligada a suscribir este voto particular de conformidad. Ello, con el fin de atender el asunto principal planteado en el caso de epígrafe, a saber, la aplicabilidad, en nuestra jurisdicción, de lo resuelto por el Tribunal Supremo federal en Obergefell v. Hodges, 135 S. Ct. 2584; 192 L. Ed. 2d 609 (26 de junio de 2015).
I
El 26 de junio de 2015, el Tribunal Supremo de EE. UU., en Obergefell, resolvió que la prohibición de matrimonios de parejas del mismo sexo es inconstitucional, de acuerdo con la libertad protegida por la cláusula del debido proceso de ley de la Decimocuarta Enmienda. Ello en la medida en que tal prohibición incide en el legítimo ejercicio del derecho fundamental a contraer nupcias, esto es, al matrimonio. Asimismo, ese Foro aludió al principio de igualdad contenido en esa enmienda como fundamento ulterior de lo allí resuelto. Véase Obergefell v. Hodges, No. 14-556, slip op., pág. 22 (“[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty”), http://www.supremecourt.gov/opinions/ 14pdf714-556-3204.pdf
Así las cosas, el 9 de julio de 2015, los peticionarios(1) presentaron una demanda contra el ELA y varios de sus funcionarios. En esta alegaron que lo resuelto por el Tribunal Supremo de EE. UU. en Obergefell no aplica en la jurisdicción del ELA, puesto que este es un territorio y no un estado sujeto a las limitaciones que supone la Decimo*520cuarta Enmienda de la Constitución federal. Es decir, los peticionarios argumentaron que la presunta condición territorial del ELA es un fundamento legítimo para distinguir la decisión del Tribunal Supremo federal, puesto que esta se fundamentó en la Decimocuarta Enmienda, la cual es únicamente aplicable a los estados.
Además, solicitaron que se paralizaran los efectos de la Orden Ejecutiva OE-2015-021, mediante la cual el Gobernador del ELA—Hon. Alejandro García Padilla— ordenó a las agencias y dependencias de la Rama Ejecutiva que atemperaran sus procedimientos administrativos con tal de acatar lo resuelto por el máximo foro federal en Obergefell. Adujeron, pues, que la orden ejecutiva en cuestión es inconstitucional, toda vez que contraviene la doctrina de separación de poderes.
El 10 de julio de 2015, por su parte, el Tribunal de Primera Instancia emitió una orden, en la que denegó la solicitud de paralización presentada por los peticionarios. Asimismo, el foro primario determinó que la controversia planteada por los peticionarios era de estricto Derecho. Por ende, concedió a los demandados un término de cinco días para que estos expresaran su postura.
Inconformes, el 13 de julio de 2015, los peticionarios recurrieron de esta orden ante este Tribunal, a través de un recurso de certificación intrajurisdiccional, acompañado de una moción en auxilio de jurisdicción. En estos, se limitan a reiterar los argumentos presentados ante el foro primario y, en consecuencia, solicitan que este Tribunal obvie el trámite juridicial ordinario y atienda las controversias planteadas en primera instancia.
El ELA, por su parte, se opuso y señaló, entre otros particulares, que no se satisfacían los requisitos para la expedición del recurso de certificación intrajurisdiccional ni de la moción en auxilio de jurisdicción. Además, cuestionó los méritos de los planteamientos esbozados por los peticionarios, así como la legitimación activa de estos.
*521Hoy, una mayoría de este Tribunal rechaza la invitación que le cursaran los peticionarios. En el mejor de los casos, tal rechazo no es más que un reconocimiento tácito de cuán inmeritorios —acaso frívolos— son los planteamientos que aducen los peticionarios. Así, con tal de disipar cualquier duda respecto a estos, conviene dilucidar someramente la controversia medular que presenta el recurso de epígrafe: lo resuelto por el Tribunal Supremo de EE. UU. en Obergefell, ¿aplica al ELA?
II
De entrada, conviene destacar que el ámbito de libertad protegido por la Decimocuarta Enmienda, en virtud de la cláusula del debido proceso de ley, es virtualmente idéntico a aquél protegido por la Quinta Enmienda. Véanse, por ejemplo: Wallace v. Jaffree, 472 US 38, 48-49 (1985); E. Chemerinsky, Constitutional Law.: Principles and Policies, 3ra ed., Nueva York, Aspen Pub., 2006, págs. 506-507.(2) Por lo tanto, es indudable que la vertiente sustantiva del debido proceso de ley que tutela la Decimocuarta Enmienda limita las prerrogativas de los estados en la misma extensión que la cláusula análoga de la Quinta Enmienda, la cual hace lo propio respecto al gobierno federal. Chemerinsky, op. cit., pág. 507 (“From a practical perspective, except for the requirements of a 12-person jury and a unanimous verdict, the Bill of Rights provisions that have been incorporated apply to the states exactly as they apply to the federal government”).
En lo que atañe al ELA, y en atención a su particular situación en el andamiaje constitucional norteamericano,*522(3) el Tribunal Supremo de EE. UU. ha dicho expresamente que las protecciones que consagra la cláusula del debido proceso de ley —dimane ésta de la Decimocuarta o de la Quinta Enmienda— limitan los poderes públicos que este ejerce en sus límites territoriales.
The Court’s decisions respecting the rights of the inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform. The nature of this country’s relationship to Puerto Rico was vigorously debated within the Court as well as within the Congress. Coude, The Evolution of the Doctrine of Territorial Incorporation, 26 Col.L.Rev. 823 (1926). It is clear now, however, that the protections accorded by either the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico. The Court recognized the applicability of these guarantees as long ago as its decisions in Downes v. Bidwell, 182 U.S. 244, 283-284, 21 S.Ct. 770, 785, 45 L.Ed. 1088 (1901), and Balzac v. Porto Rico, 258 U.S. 298, 312-313, 42 S.Ct. 343, 348, 66 L.Ed. 627 (1922). The principle was reaffirmed and strengthened in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), and then again in Calero-Toledo, 6 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), where we held that inhabitants of Puerto Rico are protected, under either the Fifth Amendment or the Fourteenth, from the official taking of property without due process of law. (Enfasis suplido). Examining Bd. v. Flores de Otero, 426 US 572, 599-601 (1976). Véanse, también: Torres v. Puerto Rico, 442 US 465, 471 (1979); Caledo-Toledo v. Pearson Yacht Leasing Co., 416 US 663, 668 esc. 5 (1974).
En consecuencia, no existe controversia en torno a la aplicación de la cláusula del debido proceso de ley en el ELA, al margen de si ésta proviene de una enmienda u otra. La indeterminación respecto a la enmienda según la cual la cláusula en cuestión aplica al ELA es, en cualquier caso, inocua. Esto, ya que, según se dijo, esa cláusula, en ambas enmiendas, tiene el mismo alcance.
*523Por otro lado, el Tribunal Supremo federal ha reconocido que el matrimonio es un derecho fundamental al amparo de la libertad protegida por la cláusula del debido proceso de ley, en su vertiente sustantiva. Véanse: Obergefell v. Hodges, No. 14-556, slip op., págs. 22-23; United States v. Windsor, 133 S.Ct. 2675, 2695 (2013); Zablocki v. Redhail, 434 US 374, 384 (1978); Loving v. Virginia, 388 US 1, 12 (1967). Véase, además, Chemerinsky, op. cit., págs. 798-801. Así, es imperativo concluir que el derecho a contraer nupcias es de carácter fundamental con independencia de la enmienda de la Constitución federal que se invoque para su vindicación. Por ende, dado que el ámbito de protección de tales enmiendas es virtualmente el mismo, es inmeritorio cualquier planteamiento que pretenda distinguir entre una enmienda y otra, so pena de atentar contra el carácter fundamental del derecho en cuestión. Valga enfatizar que lo verdaderamente fundamental en ese derecho es el reconocimiento que supone de la libertad individual que la vertiente sustantiva del debido proceso de ley protege.
H-1 H-1 1—(
En consideración de lo anterior, es innegable que lo resuelto por el Tribunal Supremo federal en Obergefell es aplicable en el ELA, sea bajo la Quinta o la Decimocuarta Enmienda. Más aún, dado el carácter fundamental del derecho concernido, este aplicaría al ELA incluso bajo la lógica de los Casos insulares. Según esta, la Constitución federal no aplica ex proprio vigore a los territorios no incorporados, salvo lo atinente a derechos fundamentales. Véanse, por ejemplo: Flores de Otero, supra, pág. 599 esc. 30; E. Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico, Washington, DC, American Psychological Association, 2001, pág. 91; E. Rivera Ramos, The Legal Cons*524truction of American Colonialism: The Insular Cases (1901-1922), 65 Rev. Jur. UPR 225, 261 (1996). En consecuencia, establecido el carácter fundamental del derecho que nos ocupa, la tutela de este sería insoslayable en nuestra jurisdicción. El planteamiento sustantivo de los peticionarios, por tanto, es patentemente inmeritorio. Lo resuelto por el Tribunal Supremo de EE. UU. en Obergefell, en tanto reafirma el carácter fundamental del derecho al matrimonio y en cuanto delimita la extensión de este, es incuestionablemente aplicable en el ELA.
IV
Por los fundamentos previamente expuestos, y puesto que los argumentos sustantivos de los peticionarios carecen de mérito alguno, estoy conforme con la determinación de proveer “no ha lugar” tanto al recurso de certificación intrajurisdiccional como a la moción en auxilio de jurisdicción.
A saber, los legisladores María M. Charbonier Laureano, Waldemar Quiles Rodríguez, Pedro J. Santiago Guzmán y Luis G. León Rodríguez.
En otros contextos, además, se ha reiterado que incluso los derechos fundamentales incorporados a través de la cláusula del debido proceso de ley de la Decimocuarta Enmienda tienen la misma extensión que sus formulaciones originales en las primeras diez enmiendas de la Constitución federal (llamadas, en conjunto, Bill of Rights). Véanse, por ejemplo: McDonald v. Chicago, 561 US 742, 766 (2010); Malloy v. Hogan, 378 US 1, 10-11 (1964).
Véase, por ejemplo, Examining Bd. v. Flores de Otero, 426 US 72, 596 (1976) (“We readily concede that Puerto Rico occupies a relationship to the United States that has no parallel in our history”). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3110894/ | 02-12-170-CR
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00170-CV
In the Interest of G.A.R., A Child
------------
FROM THE 324th
District Court OF Tarrant COUNTY
------------
MEMORANDUM
OPINION[1] AND
JUDGMENT
------------
We
have considered “Appellant's Motion To Dismiss Appeal.” It is the court=s
opinion that the motion should be granted; therefore, we dismiss the appeal. See
Tex. R. App. P. 42.1(a)(1), 43.2(f).
Costs
of the appeal shall be paid by appellant, for which let execution
issue. See Tex. R. App. P. 42.1(d).
PER
CURIAM
PANEL:
MEIER,
J.; LIVINGSTON, C.J., and GABRIEL, J.
DELIVERED:
July 19, 2012
[1]See Tex. R. App. P. 47.4. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4350510/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/14/2018 01:11 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. LESSLEY
Cite as 301 Neb. 734
State of Nebraska, appellee, v.
Tyeric L. Lessley, appellant.
___ N.W.2d ___
Filed November 30, 2018. No. S-18-096.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Homicide: Lesser-Included Offenses: Jury Instructions. A court is
required to instruct the jury on all lesser degrees of criminal homicide
for which there is proper evidence before the jury, whether requested to
do so or not.
4. ____: ____: ____. A court is not required to instruct a jury on lesser
degrees of homicide where the first degree murder charge against the
defendant is based upon a theory of felony murder.
5. Sentences: Time. A sentence validly imposed takes effect from the time
it is pronounced.
6. Sentences. When a valid sentence has been put into execution, the trial
court cannot modify, amend, or revise it in any way, either during or
after the term or session of court at which the sentence was imposed.
7. Sentences: Judges: Records. The circumstances under which a judge
may correct an inadvertent mispronouncement of a sentence are lim-
ited to those instances in which it is clear that the defendant has not
yet left the courtroom; it is obvious that the judge, in correcting his
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. LESSLEY
Cite as 301 Neb. 734
or her language, did not change in any manner the sentence originally
intended; and no written notation of the inadvertently mispronounced
sentence was made in the records of the court.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Thomas C. Riley, Douglas County Public Defender, Matthew
J. Miller, and Natalie M. Andrews for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Tyeric L. Lessley was convicted of first degree murder,
first degree assault, two counts of use of a weapon to commit
a felony, and possession of a deadly weapon by a prohibited
person. Lessley appeals, arguing that the evidence was not
sufficient to support his convictions and that he was entitled
to a manslaughter instruction. We affirm Lessley’s convic-
tions and sentences for first degree murder and first degree
assault, affirm his convictions and vacate the sentences for
use of a weapon to commit a felony and possession of a
deadly weapon by a prohibited person, and remand the cause
for resentencing.
BACKGROUND
Events of October 29, 2016.
Between 4 and 4:30 a.m. on October 29, 2016, Curtis
Goodwin was awake in the home shared with his fiance,
Suzanne Pope. The home was located on North 39th Street in
Omaha, Nebraska, at the corner of 39th and Kansas Streets.
Goodwin was paying bills on his laptop computer, and Pope
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. LESSLEY
Cite as 301 Neb. 734
was sleeping in a bed in the main floor living room of the
residence, which the couple used as their bedroom. Also in the
home was Pope’s 7-year-old daughter.
During this time, Goodwin left the home through the back
door to investigate a knocking sound he heard at the front of
the house. Goodwin testified that family and friends never used
the front door of the residence, which faced North 39th Street,
but instead entered and exited through the rear door. Indeed,
pictures of the scene show that the front door was blocked
from the inside by Goodwin and Pope’s bed.
Goodwin grabbed a baseball bat before leaving the house.
Goodwin then walked around to his front door, where he
discovered a male knocking on the door. Goodwin asked
the male if he could help him. The male pointed a gun in
Goodwin’s face and responded, “Yeah, n-----, I’m your worst
mother fucking nightmare.” The male, whom Goodwin tes-
tified he did not recognize, then told Goodwin to get into
the house.
The two walked around the side of the house to the back
entrance. Goodwin testified that at some point along the way,
he dropped the bat. Once inside, the male told Goodwin to
“give me all your money and your shit.” Goodwin woke Pope
to tell her that someone was there to rob them. According
to Goodwin, both he and Pope told the intruder they did not
have any money. At that point, the intruder shot Pope, took
Goodwin’s laptop, and shot Goodwin as Goodwin lunged
at him.
Goodwin was able to follow the intruder out of the house
and into the backyard, where Goodwin collapsed as the
intruder ran down the street carrying Goodwin’s laptop. At this
time, Goodwin noticed an unfamiliar dark-colored Chevrolet
Suburban or Tahoe parked in his driveway, which was located
in the backyard of the residence and opened onto Kansas
Street. Goodwin testified that this vehicle had no license plates
and described the back doors as opening “like kitchen cabi-
nets.” The intruder walked back past Goodwin. By this time,
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STATE v. LESSLEY
Cite as 301 Neb. 734
Goodwin had retrieved the bat he dropped earlier and swung
it in the direction of the intruder. Goodwin testified that he
hit “something,” but did not know if it was the intruder. The
intruder then shot Goodwin again, dropped the laptop, and
drove away in the vehicle, westbound on Kansas Street.
Pope was killed and Goodwin was injured in this incident.
Goodwin was in a coma for nearly 3 months and sustained
the loss of one of his kidneys, his spleen and gallbladder,
and several feet of his small intestine. Goodwin has been
diagnosed with short bowel syndrome, which requires liquid
nutrition and a colostomy bag. Complications from his injuries
caused Goodwin to fall into a second coma, during which he
nearly died.
“ShotSpotter” evidence corroborated the timing of the gun-
shots. ShotSpotter is a technology utilized by the Omaha
Police Department to determine the location of gunshots based
upon sounds captured by microphones positioned in certain
parts of the city. Here, ShotSpotter captured the sound of two
gunshots, 20 seconds apart, sounding from outside Goodwin
and Pope’s residence at 4:30 and 4:31 a.m. Neighbors also
testified they heard gunshots around that time.
In addition, neighbors witnessed a vehicle travel west from
the residence after they heard the gunshots. One neighbor
testified that she saw a dark blue, green, or black Suburban
or Tahoe. A second neighbor testified that he witnessed a
dark-colored Suburban or Tahoe with a loud exhaust, custom
wheels, and tinted windows, and that based upon his experi-
ence with vehicles, he estimated the vehicle was between a
1996 and a 1999 model due to its more squared frame.
DNA and Other Evidence.
Multiple items were located at the scene of the shooting. In
particular, one firearm projectile was found in the driveway
of the residence; another was dug from a wall of the living
room of the residence; and a third was retrieved from Pope’s
body during autopsy. A firearms examiner determined that all
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three projectiles were fired from the same firearm. No firearm
was ever recovered in this case.
Goodwin’s laptop computer was found in the backyard near
the driveway. It had a partial shoeprint on its cover. A tread
expert testified that the shoeprint was consistent with a Nike
“Shox” tennis shoe. The laptop was swabbed for DNA, but the
only profiles recovered were Goodwin’s and Pope’s; testing as
to Lessley was inconclusive.
Various items of evidence were also recovered from the
scene and tested. A substance appearing to be blood was
found on the driveway and on a section of the bat. In addi-
tion, a swab was taken from the end of the bat. The State’s
DNA expert testified that the blood found on the driveway
was a match to Lessley’s profile and that the probability that
the DNA belonged to another person was 1 in 1.67 quintillion.
Lessley could also not be excluded as a contributor to the DNA
found at the end of the bat, and the probability that the DNA
belonged to a person other than Lessley was 1 in 6.60 quadril-
lion. Finally, Lessley could not be excluded as a contributor to
the DNA from the blood found elsewhere on the bat, with the
probability of that DNA belonging to another person being 1 in
23.9 trillion.
Initially, the DNA profile obtained was from an unidenti-
fied male, but a DNA database eventually identified the male
as Lessley. Based upon that identification, law enforcement
determined that on October 12, 2016, Lessley had purchased
a 2001 green Chevrolet Suburban from an Omaha dealer-
ship. That dealership had global positioning system (GPS)
records placing the Suburban less than a mile southeast of the
Goodwin-Pope residence at 4:18 a.m. on October 29. One of
the investigating officers testified that it had taken him about
2 minutes to drive from the residence to the location noted in
the GPS records.
Lessley was arrested in January 2017. At the time of arrest,
Lessley was wearing a pair of Nike Shox shoes, which were
consistent with the shoeprint found on the laptop computer.
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Lessley’s Suburban was impounded at the time of his arrest.
The Suburban still had in-transit signs and no license plates.
It also had tinted windows, “barn-door” style rear doors, and
a louder-than-stock exhaust. A search of Lessley’s residence
recovered custom aftermarket rims.
At the time of the shooting, Lessley and his girlfriend lived
a 3-minute drive northwest of the Goodwin-Pope residence.
Lessley’s girlfriend testified that Lessley returned from work
on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
asleep shortly after Lessley returned home and was awoken
before 5:30 a.m. by Lessley talking on the telephone. At this
time, Lessley’s girlfriend noticed a “hole” in the right side of
Lessley’s forehead that he did not have when he came home
from work. Lessley’s cell phone records show that he was
on the cell phone between 4:58 and 5:06 a.m. on October 29.
Lessley later told his girlfriend during a jailhouse telephone
call that she did not have to say anything at his trial.
Lessley was charged with first degree murder for Pope’s
death, under alternative theories of premeditated murder or fel-
ony murder during the commission of a robbery or attempted
robbery. Additionally, Lessley was charged with first degree
assault for Goodwin’s injuries, possession of a deadly weapon
by a prohibited person, and two counts of use of a weapon to
commit a felony.
On the first day of trial, the State amended the infor-
mation by interlineation to remove the premeditated murder
theory. Trial proceeded under the State’s felony murder theory.
The jury was instructed only on felony murder and was not
instructed as to any other theory of first degree murder, or as
to any other degree of murder. Lessley did not object to the
instructions as given and did not offer any proposed instruc-
tions. Lessley was found guilty on all five counts in less than
2 hours.
The district court initially sentenced Lessley to consecu-
tive sentences of life imprisonment for felony murder, 20 to
20 years’ imprisonment for first degree assault, 3 to 3 years’
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imprisonment for possession of a weapon by a prohibited
person, and 5 to 5 years’ imprisonment on each use convic-
tion. Following a discussion with counsel for the State and for
Lessley, the court added 1 day to the maximum term of each
sentence (except the life sentence), so that the minimum and
maximum terms would not be the same.
Lessley appeals.
ASSIGNMENTS OF ERROR
On appeal, Lessley assigns that (1) there was insufficient
evidence to support his convictions and (2) the district court
erred in not instructing the jury on the lesser-included offense
of manslaughter.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after 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.1
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.2
ANALYSIS
Sufficiency of Evidence.
In his first assignment of error, Lessley contends that the
evidence was insufficient to support his convictions. This con-
tention is without merit.
1
State v. McCurdy, ante p. 343, 918 N.W.2d 292 (2018).
2
State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (2018).
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Lessley argues that “[t]he testimony provided by witnesses
was not consistent with the testimony of one another, nor
was it consistent with other evidence adduced at trial so as
to amount to competent evidence . . . .”3 Lessley concedes
that DNA profiles were obtained, but argues that it is not pos-
sible to “determine definitively whether or not the evidence
collected belongs to a particular individual. . . . [E]ven if
the DNA collected from the bat and driveway belonged to
[Lessley], this evidence does not connect [Lessley] to the
crimes” conclusively, because it is not possible to discern
how long the DNA has been present at a particular location.4
Finally, Lessley takes issue with multiple individual pieces
of evidence to support his conclusion that a jury should have
found reasonable doubt.
But this is not our standard of review. This court does not
resolve conflicts in the evidence or reweigh the evidence, but
instead only reviews the evidence to determine whether the
evidence offered supported the convictions.
In this case, Goodwin testified that an intruder pointed a
gun at him and told him to give him all his money and “shit.”
In addition, Goodwin testified that the intruder took a laptop
computer from the residence. This testimony supported the
robbery or attempted robbery allegations underlying the felony
murder charge.
Goodwin further testified that he hit “something” with his
bat when he was struggling with the intruder. DNA evidence
found on the bat and on the driveway near where the strug-
gle occurred matched Lessley, with a probability of between
1 in 23.9 trillion and 1 in 1.67 quintillion (depending on
the evidence) that the DNA belonged to another individual.
Meanwhile, Lessley sustained an injury on his forehead during
the same timeframe as when Goodwin hit “something” with
the bat.
3
Brief for appellant at 19.
4
Id.
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Also found in the driveway at the Goodwin-Pope residence
was a laptop computer with a shoeprint on it. The shoeprint
was consistent with a Nike Shox shoe, the same type of shoe
worn by Lessley at the time of his arrest. Lessley’s vehicle
generally matched the description of a vehicle observed leav-
ing the scene. The vehicle’s GPS records indicated that it was
within a 2-minute drive of the residence approximately 12 min-
utes prior to the shooting.
The evidence plainly supported Lessley’s convictions. There
is no merit to Lessley’s first assignment of error.
Manslaughter Instruction.
In his second assignment of error, Lessley contends that the
district court erred in not instructing the jury on the elements
of manslaughter. The State contends both that manslaughter
is not a lesser-included offense of felony murder, and thus no
instruction was required, and that in any case, there was insuf-
ficient evidence to support a manslaughter instruction.
[3] Neb. Rev. Stat. § 29-2027 (Reissue 2016) provides in
part that “[i]n all trials for murder the jury before whom such
trial is had, if they find the prisoner guilty thereof, shall ascer-
tain in their verdict whether it is murder in the first or second
degree or manslaughter.” We have held that under § 29-2027,
a court is required to instruct the jury on all lesser degrees of
criminal homicide for which there is proper evidence before
the jury, whether requested to do so or not.5
[4] But a court is not required to instruct a jury on lesser
degrees of homicide where the first degree murder charge
against the defendant is based upon a theory of felony murder.6
The distinction between felony murder and other degrees of
murder involves the element of intent. We have reasoned that
when a first degree murder charge is predicated on a theory of
5
State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
6
See, e.g., State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010); State
v. Masters, 246 Neb. 1018, 524 N.W.2d 342 (1994).
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premeditated murder, second degree murder, or voluntary man-
slaughter, the intent of the defendant is relevant, but that “[i]n
a felony murder case, the proof of a particular mental state
is not required as to the killing.”7 We therefore conclude that
under § 29-2027, where a defendant is charged solely under
a felony murder theory, a jury need not be instructed on the
lesser degrees of homicide.
But in any event, there was insufficient evidence to sup-
port a manslaughter instruction. Lessley argues that there was
evidence in the record indicating there was a struggle at the
Goodwin-Pope home. As such, there was evidence adduced
that there had been a quarrel, and an instruction should have
been given.
Lessley’s contentions are without merit. In State v. Smith,8
we concluded that evidence that the defendant and the victim
had been arguing was not enough to support a sudden quarrel
manslaughter instruction. We reasoned that even if there had
been an argument, there was no evidence about who started the
argument, what words were said or actions taken, or whether
there was evidence of provocation. We noted that “[i]n the
absence of some provocation, a defendant’s anger with the vic-
tim is not sufficient to establish the requisite heat of passion”9
for sudden quarrel manslaughter.
Here, Lessley points us to some disarray at the scene,
including a stove seemingly out of place, refrigerator mag-
nets on the floor, a tipped-over laundry basket and fan, and
the bat used on the intruder inside the residence (rather than
outside, where Goodwin testified he swung at the intruder and
hit “something”). But there is no evidence in the record that
these items were in disarray because of these events. And there
is certainly no evidence of any provocation that might have
7
State v. McDonald, 195 Neb. 625, 636-37, 240 N.W.2d 8, 15 (1976). Cf.
Hopkins v. Reeves, 524 U.S. 88, 118 S. Ct. 1895, 141 L. Ed. 2d 76 (1998).
8
State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
9
Id. at 735, 806 N.W.2d at 395.
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provided any justification for the actions in this case. Lessley’s
counsel did ask Goodwin whether Pope and Lessley had been
having an affair, but Goodwin denied that allegation and coun-
sel offered no evidence to back up that assertion.
There is no merit to Lessley’s second assignment of error.
Plain Error in Sentencing.
Finally, the State contends that the district court committed
plain error with respect to the sentences imposed for Lessley’s
convictions for possession by a prohibited person and use of
a deadly weapon.
[5-7] A sentence validly imposed takes effect from the time
it is pronounced.10 When a valid sentence has been put into
execution, the trial court cannot modify, amend, or revise it
in any way, either during or after the term or session of court
at which the sentence was imposed.11 Any attempt to do so
is of no effect, and the original sentence remains in force.12
The circumstances under which a judge may correct an inad-
vertent mispronouncement of a sentence are limited to those
instances in which it is clear that the defendant has not yet left
the courtroom; it is obvious that the judge, in correcting his
or her language, did not change in any manner the sentence
originally intended; and no written notation of the inadver-
tently mispronounced sentence was made in the records of
the court.13
The district court originally sentenced Lessley to 3 to 3
years’ imprisonment for the possession conviction and to 5
to 5 years’ imprisonment for the use convictions. During the
same hearing, however, the district court attempted to modify
those sentences to 3 to 3 years’ imprisonment plus 1 day and
to 5 to 5 years’ imprisonment plus 1 day, respectively. This
10
State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
11
Id.
12
Id.
13
Id.
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modification was done after discussion with the parties due to
the prosecuting attorney’s concern that the minimum and maxi-
mum terms of the sentences could not be the same.
The State argues that the original sentences for the use
and possession convictions were valid and thus could not be
modified. But the State agrees that the original sentence for
first degree assault was invalid and thus was subject to modi-
fication. Use of a weapon to commit a felony is a Class IC
felony, punishable by 5 to 50 years’ imprisonment. Possession
of a deadly weapon by a prohibited person is a Class ID fel-
ony, punishable by 3 to 50 years’ imprisonment. First degree
assault is a Class II felony, punishable by 1 to 50 years’
imprisonment.
The State bases its argument in the language of Neb. Rev.
Stat. § 29-2204 (Supp. 2017). As relevant, § 29-2204 provides:
(1) Except when a term of life imprisonment is required
by law, in imposing a sentence upon an offender for any
class of felony other than a Class III, IIIA, or IV felony,
the court shall fix the minimum and the maximum terms
of the sentence to be served within the limits provided
by law. The maximum term shall not be greater than the
maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any
term of years less than the maximum term imposed by the
court; or
(b) The minimum term shall be the minimum limit
provided by law.
We turn first to the use convictions. Section 29-2204(1)
provides that the maximum term shall not be greater than the
maximum term provided by law, which, for a Class IC felony,
is 50 years. As for the minimum term, it shall be either any
term of years less than the maximum term imposed by the
court or the minimum term provided by law. The State argues
that the sentences of 5 to 5 years’ imprisonment initially
imposed on Lessley by the district court were proper, because
the maximum term imposed by the court (5 years) was not
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greater than the maximum term provided for by law (50 years)
and the minimum term was the minimum term provided for by
law (5 years) as set forth in § 29-2204(1)(b).
The same reasoning goes for the possession conviction. The
maximum term for a Class ID felony is 50 years; the maximum
term imposed by the district court of 3 years was less than 50
years, and the minimum term of 3 years is the minimum pro-
vided for by law. As such, these sentences were valid, and the
attempt to modify them was unsuccessful.
Because the district court’s intended sentences are appar-
ent from the record,14 we vacate the sentences imposed for
the use and possession convictions and remand the cause for
resentencing Lessley in conformity with the initial sentences
imposed by the district court of 5 to 5 years’ imprisonment for
each use conviction and 3 to 3 years’ imprisonment for the pos-
session conviction.
We turn now to the sentence imposed on Lessley’s first
degree assault conviction. The State asserts that the sentence
initially imposed by the district court of 20 to 20 years’ impris-
onment was not valid.
The maximum term provided for by law for a Class II felony
is 50 years’ imprisonment. The 20-year maximum imposed on
Lessley was less than the allowed maximum. But the minimum
imposed by the district court was also 20 years’ imprison-
ment. The minimum provided for by law is 1 year, so the
minimum term imposed on this conviction did not comply with
§ 29-2204(1)(b). Nor did it comply with § 29-2204(1)(a), which
provides that “[t]he minimum term fixed by the court shall be
any term of years less than the maximum term imposed by the
court[.]” As such, the State is correct that the initial sentence of
20 to 20 years’ imprisonment was invalid. Therefore, the sen-
tence was subject to modification, and we accordingly affirm
the modified sentence of 20 to 20 years’ imprisonment plus 1
day for first degree assault.
14
See State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
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CONCLUSION
Lessley’s convictions are affirmed. Lessley’s sentences for
first degree felony murder and first degree assault are also
affirmed. But the sentences imposed for use of a weapon to
commit a felony and possession of a deadly weapon by a
prohibited person are vacated and new sentences are to be
imposed as set forth above. We remand this cause to the district
court for resentencing.
A ffirmed in part, and in part vacated
and remanded for resentencing. | 01-03-2023 | 12-14-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2973016/ | RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0456p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
NATIONWIDE MUTUAL INSURANCE COMPANY,
-
-
-
No. 04-4344
v.
,
>
HOME INSURANCE COMPANY, -
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 03-00933—Edmund A. Sargus, Jr., District Judge.
Argued: September 13, 2005
Decided and Filed: November 29, 2005
Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael L. Cohen, COHEN & BUCKLEY, Baltimore, Maryland, for Appellant. Philip
J. Loree Jr., CADWALADER, WICKERSHAM & TAFT, New York, New York, for Appellee.
ON BRIEF: Michael L. Cohen, COHEN & BUCKLEY, Baltimore, Maryland, Randolph Carson
Wiseman, Stephen C. Gray, BRICKER & ECKLER, Columbus, Ohio, for Appellant. Philip J. Loree
Jr., Clifford H. Schoenberg, CADWALADER, WICKERSHAM & TAFT, New York, New York,
Gerald P. Ferguson, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Plaintiff Nationwide Mutual Insurance Company (“Nationwide”)
appeals a district court order denying its application for vacatur of a final arbitration award issued
in this reinsurance dispute with defendant Home Insurance Company (“Home”). For the reasons
set forth below, we affirm the judgment of the district court confirming the award.
I.
This long-running dispute originated in 1995, when Nationwide filed suit against Home for
breach of a reinsurance contract that the parties had originally entered into in 1977. The district
court referred the parties to arbitration pursuant to the terms of an arbitration clause in the
reinsurance agreement. Numerous interim decisions of the arbitration panel were thereafter
challenged in the district court, and, in fact, this is the fourth time this matter has come before the
1
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 2
Sixth Circuit for review. The extensive procedural history and involvement of this Court is found
at Nationwide Mut. Ins. Co. v. Home Ins. Co., 150 F.3d 545 (6th Cir. 1998) (Nationwide I);
Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002) (Nationwide II); and
Nationwide Mut. Ins. Co. v. Home Ins. Co., 330 F.3d 843 (6th Cir. 2003) (Nationwide III). The facts
are succinctly set forth in detail in these prior opinions and will not be reiterated here except to the
extent necessary to dispose of the issues presented on this appeal.
After this Court’s decision in Nationwide III, the parties proceeded to the third phase of
arbitration, culminating in a merits hearing. On July 17, 2003, the three-member arbitration panel1
rendered its unanimous final decision which, in pertinent part, awarded Home the sum of $1,250,000
in costs and interest.2
Nationwide filed suit in district court to vacate the final award and two interim rulings
rendered by the arbitration panel. In the alternative, Nationwide sought vacation of the interim
rulings and Paragraphs 9 and 11 of the final decision granting Home’s request for recovery of its
1
This was the second arbitration panel to be appointed in this matter, following the resignation of the initial
panel members. See Nationwide III, 330 F.3d at 844-45.
2
The complete text of the panel’s final decision states as follows:
1. Contract R is a contract of reinsurance.
2. The Addendum to Contract R, by necessary inference, imposed on Home a duty to supervise
Rutty’s inward and outward claim handling in respect of Nationwide’s fixed pool share only but not
a duty to otherwise replace Nationwide in the runoff or to fund Rutty.
3. In relation to Nationwide’s fixed pool share of inward and outward claims, Home and Rutty agreed
to deal only with each other. In relation to all other matters, Nationwide retained responsibility to
supervise Rutty.
4. Home had a duty to pay accounts within a reasonable time from receipt. In that regard, Home also
had the right to make reasonable inquiries and conduct reasonable inspections.
5. In exercising those rights and fulfilling those duties, Home was obligated to act in good faith and
with fair dealing.
6. Although many of Home’s queries and inspections were appropriate and legitimate, others were
excessive and inappropriate. Likewise, many of Home’s claim payments were timely but others were
not. To the extent that some queries and inspections were excessive, and to the extent that some claim
payments (including the Excess claim) were untimely, they constituted breaches of duty by Home.
7. Home’s breaches of duty did not amount to bad faith.
8. Nationwide has failed in most respects to sustain its burden of demonstrating specific damages
flowing from specific breaches by Home. The Panel nevertheless believes that some damage
necessarily resulted from Home’s breaches, and concludes in its discretion that it would be wrong to
deprive Nationwide of any recovery at all. We accordingly award to Nationwide the sum of $750,000
in respect of Home’s breaches of duty.
9. Home is awarded the sum of $1,250,000 in respect of its counterclaims for administrative costs and
interest.
10. Nationwide is awarded a contribution from Home of $500,000 toward Nationwide’s costs.
11. Home is awarded a contribution from Nationwide of $1,250,000 toward Home’s costs.
12. All other claims and counterclaims between the parties are dismissed.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 3
“fronting share administrative costs” (FSAC) and part of its costs in the arbitration. Home opposed
the vacatur application and sought confirmation of the final order.
On September 24, 2004, the district court issued an opinion and order denying Nationwide’s
vacatur application, granting Home’s cross-motion for confirmation of the arbitration award, and
entering a final judgment in favor of defendant Home Insurance.
Nationwide now appeals the district court’s denial of its vacatur application, primarily on
the ground of evident partiality based on an arbitrator’s alleged nondisclosure of certain business
and social relationships with Home.
II.
The Federal Arbitration Act (“FAA”) expresses a presumption that arbitration awards will
be confirmed. 9 U.S.C. § 9; Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308, 328 (6th Cir.
1998). “When courts are called on to review an arbitrator’s decision, the review is very narrow; one
of the narrowest standards of judicial review in all of American jurisprudence.” Nationwide II, 278
F.3d at 625 (quoting Lattimer-Stevens Co. v. United Steelworkers, 913 F.3d 1166, 1169 (6th Cir.
1990)). “[A]s long as the arbitrator is even arguably construing or applying the contract and acting
within the scope of his authority, that a court is convinced he committed serious error does not
suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38
(1987). Thus, “[a] federal court may vacate an arbitration award only in very limited
circumstances.” Nationwide III, 330 F.3d at 845. “Those circumstances include ‘where the
arbitrators exceeded their powers,’ 9 U.S.C. § 10(a)(4), and where the arbitrators act with ‘manifest
disregard for the law.’” Id. (quoting Dawahare v. Spencer, 210 F.3d 666, 669 (6th Cir. 2000)). In
addition, an arbitration award may be vacated upon application of any party to the arbitration “where
there was evident partiality or corruption in the arbitrators, or either of them.” 9 U.S.C. § 10(a)(2).
When reviewing a district court’s denial of a motion to vacate an arbitration decision, we accept the
court’s findings of fact, unless clearly erroneous, and consider questions of law de novo.
Nationwide II, 278 F.3d at 625; Dawahare, 210 F.3d at 669.
III.
A.
In the district court, Nationwide sought to vacate the final award of the second arbitration
panel on the ground that the Home-appointed arbitrator, Ronald Jacks, displayed evident partiality
contrary to subsection 10(a)(2) of the FAA, 9 U.S.C. § 10(a)(2). Nationwide also alleged that Jacks
engaged in improper ex parte contacts with one of Home’s attorneys and with employees of
ACE/INA Holdings, Inc., and CIGNA Corporation (“ACE/CIGNA”).3 Specifically, Nationwide
alleged that during the course of arbitration Jacks failed to disclose certain business and social
relationships with Home and its counsel.4 Relying on Apperson v. Fleet Carrier Corp., 879 F.2d
1344, 1358 (6th Cir. 1989), cert. denied 495 U.S. 947 (1990), which held that evident partiality will
be found only where a reasonable person would have to conclude that an arbitrator was partial to
3
In 1983, Home sold part of its business, including the reinsurance contract at issue, to CIGNA (now ACE),
which performed its obligations to Nationwide through a subsidiary, AISUK. See Nationwide III, 330 F.3d at 844-45.
4
In June 2002, Jacks, one of Home’s attorneys, and their wives had dinner to celebrate a birthday. Jacks also
had contact with one or two ACE employees concerning a recent arbitration in which ACE had appointed him as a
mediator. In June 2002, he also had a very brief conversation, apparently about the weather and politics, with ACE’s
CEO at the School of Risk Management’s annual New York dinner.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 4
one party to the arbitration, the district court concluded that Nationwide’s claims of evident
partiality were unfounded.
Nationwide now contends that, in assessing the effects of Jacks’ alleged nondisclosures, the
district court applied the wrong standard. Nationwide urges this Court to limit application of the
Apperson standard to so-called “actual bias” cases, where the evident partiality claim is based on
facts known or disclosed and objected to by the challenging party prior to or during the arbitration.
Citing Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21
L.Ed.2d 301 (1968),5 Nationwide maintains that the fact of the nondisclosure alone mandates
vacatur under either a “reasonable impression of bias” or “appearance of bias” standard. We
disagree.
In Apperson, this Court, addressing allegations of “evident partiality” in the context of the
arbitration of a labor contract dispute,6 adopted the objective test utilized by the Court of Appeals
for the Second Circuit in Morelite Construction Corp. v. New York City Dist. Council Carpenters
Benefit Funds, 748 F.2d 79, 84 (2d Cir. 1984), in which the Second Circuit held that evident
partiality “will be found where a reasonable person would have to conclude that an arbitrator was
partial to one party to the arbitration.”7 Id. at 84 (quoted in Apperson, 879 F.2d at 1358). We also
accepted Morelite’s rejection, as dicta, of the appearance of bias standard espoused in the plurality
opinion in Commonwealth Coatings. Apperson, 879 F.2d at 1358 n.19.
Consequently, “[u]nder Apperson, the party seeking invalidation must demonstrate more than
an amorphous institutional predisposition toward the other side; a lesser showing would be
tantamount to an ‘appearance of bias’ standard.” Andersons, Inc., 166 F.3d at 329. “The alleged
partiality must be direct, definite, and capable of demonstration, and ‘the party asserting [it] . . . must
establish specific facts that indicate improper motives on the part of the arbitrator.’” Id. (quoting
Consolidation Coal Co. v. Local 1643, United Mine Workers of Am., 48 F.3d 125, 129 (4th Cir.
1995)).
We have since reiterated and followed the Apperson standard in Nationwide II, 278 F.3d at
626; Dawahare, 210 F.3d at 669; and Andersons, Inc., 166 F.3d at 329. We conclude that the
present circumstances do not warrant deviation from Apperson’s case-by-case objective inquiry into
5
In Commonwealth Coatings, a divided court addressed the issue of “evident partiality.” A neutral arbitrator
failed to disclose that he had engaged in periodic and significant business relationships with the successful party to the
arbitration, including services related to the subject of the arbitration, and had been paid approximately $12,000 by the
party in consulting fees. 393 U.S. at 146. The Court held that the arbitrator’s failure to disclose this information justified
vacating the arbitration award for evident partiality. Id. at 146-149. In so holding, Justice Black, writing for a plurality
of four justices, indicated that arbitrators, like judges, must avoid even the “appearance of bias.” Id. at 150. Justice
White, joined by Justice Marshall, concurred in the result, but declined to hold that arbitrators are to be held to the
standards of judicial decorum of Article III judges, or indeed of any judges. Id. Justice White opined that “[t]his does
not mean the judiciary must overlook outright chicanery in giving effect to their awards”; however, “it does mean that
arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are
informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial.” Id. at 150.
Consequently, a majority of the Court did not endorse the “appearance of bias” standard set forth in the plurality opinion.
See Apperson, 879 F.2d at 1358 n.19.
6
Although the FAA exempts labor contracts from its purview, the Apperson Court looked to the FAA for
guidance and utilized the “evident partiality” standard of subsection 10(a)(2) [formerly subsection 10(b)] in reviewing
the bias claims. Apperson, 879 F.2d at 1353 n.9, 1358.
7
The Morelite court, “[m]indful of the trade-off between expertise and impartiality, and cognizant of the
voluntary nature of submitting to arbitration,” interpreted evident partiality “as requiring a showing of something more
than the mere ‘appearance of bias’ to vacate an arbitration award,” yet not as insurmountable as “proof of actual bias.”
748 F.2d at 83-84.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 5
evident partiality, particularly where, as here, the complaint of evident partiality concerns a party-
appointed, as opposed to a neutral, arbitrator. Accord, Sphere Drake Ins. Ltd. v. All Am. Life Ins.
Co., 307 F.3d 617, 620-23 (7th Cir. 2002); Delta Mine Holding Co. v. AFC Coal Prop., Inc., 280
F.3d 815, 821-22 (8th Cir. 2001); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753,
759 (11th Cir. 1993); Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679-80, 683 (7th Cir.
1983).
The arbitration agreement in this case requires that the arbitrators come from within the
insurance industry and further provides for a tripartite panel consisting of two party-appointed
arbitrators and one neutral umpire. See Nationwide Mut. Co. v. Home Ins. Co., 90 F. Supp. 2d 893,
901-02 (S.D. Ohio 2000). Thus, as the district court noted, the parties clearly agreed to submit their
claims to panel members who are involved in the business of insurance.8 “The most sought-after
arbitrators are those who are prominent and experienced members of the specific business
community in which the dispute to be arbitrated arose. Since they are chosen precisely because of
their involvement in that community, some degree of overlapping representation and interest
inevitably results.” Int’l Produce, Inc. v. A/S Rosshavet, 638 F.2d 548, 552 (2d Cir. 1981).
Home’s party-appointed arbitrator, Ronald Jacks, who is the focus of the present case, has
extensive experience serving as an international reinsurance arbitrator, a fact noted by the Seventh
Circuit in Sphere Drake, 307 F.3d at 619, when it addressed a claim of evident partiality against
Jacks in another unrelated reinsurance arbitration. The Seventh Circuit overturned the district
court’s finding of evident partiality based on Jacks’ alleged failure to fully disclose that he had acted
as counsel for a subsidiary of a party to the arbitration in an unrelated matter four years earlier. In
so holding, the court held that Jacks’ status as a party-appointed arbitrator on a tripartite panel was
of particular significance:
Industry arbitration, the modern law merchant, often uses panels composed of
industry insiders, the better to understand the trade’s norms of doing business and the
consequences of proposed lines of decision. See Lisa Bernstein, Private Commercial
Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and
Institutions, 99 Mich. L. Rev. 1724, 1728 (2001). The more experience the panel
has, and the smaller the number of repeat players, the more likely it is that the panel
will contain some actual or potential friends, counselors, or business rivals of the
parties. Yet all participants may think the expertise-impartiality tradeoff worthwhile;
8
As the Seventh Circuit aptly observed in Merit Insurance Co., 714 F.2d at 679:
The different weighting of impartiality and expertise in arbitration compared to adjudication is
dramatically illustrated by the practice whereby each party appoints one of the arbitrators to be his
representative rather than a genuine umpire. See Note, The Use of Tripartite Boards in Labor,
Commercial, and International Arbitration, 68 Harv.L.Rev. 293 (1954). No one would dream of
having a judicial panel composed of one part-time judge and two representatives of the parties, but
that is the standard arbitration panel, the panel Leatherby chose – presumably because it preferred a
more expert to a more impartial tribunal – when it wrote an arbitration clause into its reinsurance
contract with Merit.
If Leatherby had wanted its dispute with Merit resolved by an Article III judge (to whom it had access
under the diversity jurisdiction), it would not have inserted an arbitration clause in the contract, or
having done so move for arbitration against Merit’s wishes. Leatherby wanted something different
from judicial dispute resolution. It wanted dispute resolution by experts in the insurance industry, who
were bound to have greater knowledge of the parties, based on previous professional experience, than
an Article III judge, or a jury. “The parties to an arbitration choose their method of dispute resolution,
and can ask no more impartiality than inheres in the method they have chosen.” Cf. Am. Almond
Products Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 451 (2d Cir. 1944) (L. Hand, J.).
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 6
the Arbitration Act does not fasten on every industry the model of the disinterested
generalist judge.
Id. at 620 (emphasis added).
The Sphere Drake court, acknowledging these industry practices and the fact that “only
evident partiality, not appearances or risks, spoils an award,” id. at 621, concluded that Jacks’ prior
engagement did not demonstrate evident partiality within the meaning of § 10(a)(2):
Let us suppose that the district judge’s inferences are sound – that Jacks spent two
months of equivalent full-time service as counsel for Sphere Drake in an
international insurance arbitration, four years before the unrelated arbitration with
All American. Even if Jacks had been the umpire, this would not have implied
“evident partiality.” Indeed, Jacks could have served as a federal judge in this case
without challenge on grounds of partiality, and the scope of disqualification under
§ 10(a)(2) is considerably more confined than the rule applicable to judges.
Id.
The Sphere Drake court further held that, even assuming arguendo that Jacks had not
adequately disclosed the extent of his involvement in the prior, unrelated proceedings, this
nondisclosure alone did not demonstrate evident partiality:
Commonwealth Coatings did not hold . . . that disclosure is compulsory for its own
sake, and its absence fatal even if the arbitrator meets judicial standards of
impartiality . . . . Nor did Commonwealth Coatings so much as hint that party-
appointed arbitrators are governed by the norms under which neutrals operate. The
point of Commonwealth Coatings is that the sort of financial entanglements that
would disqualify a judge will cause problems for a neutral under § 10(a)(2) unless
disclosure is made and the parties’ consent obtained.
Id. at 623.
The Seventh Circuit’s well-reasoned decision in Sphere Drake reinforces our conclusion that
we should continue to adhere to the Apperson standard in this case, where evident partiality based
on the alleged nondisclosure of material relationships by a party-appointed arbitrator is claimed.
In formulating the objective standard now used by the Sixth Circuit, the Morelite court, like the
Seventh Circuit in Sphere Drake, was cognizant of the practices and norms peculiar to industry
arbitration and incorporated these considerations in its analysis. 748 F.2d at 83 (“[T]o disqualify
any arbitrator who had professional dealings with one of the parties (to say nothing of a social
acquaintanceship) would make it impossible, in some circumstances, to find a qualified arbitrator
at all.”). The rationale of Sphere Drake, which places an onerous burden of proof on the party
alleging evident partiality of a party-appointed arbitrator, is entirely consistent with the Apperson
standard, which likewise requires proof of circumstances “powerfully suggestive of bias.”
Apperson, 879 F.2d at 1358 (quoting Merit Ins. Co., 714 F.2d at 681).
Given the arbitration format voluntarily chosen by the parties in this case, to permit vacatur
based upon the mere “appearance of bias” of a party-appointed arbitrator “would be to render this
efficient means of dispute resolution ineffective in many commercial settings.” Morelite, 748 F.2d
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 7
at 84.9 We thus proceed to review Nationwide’s allegations of evident partiality pertaining to
arbitrator Jacks to determine whether a reasonable person would have to conclude that the arbitrator
was partial to one party to the arbitration.
B.
During an October 1999 organization meeting with the arbitration panel, the panel members
disclosed their contracts and connections with each other, the parties, and the parties’ attorneys.
Arbitrator Jacks, a retired lawyer, disclosed that he had no prior involvement with Nationwide, but
stated that he had served as Home’s arbitrator on six matters over twenty years, and as opposing
arbitrator twice. Jacks further stated that he had “served on a number of occasions in the last 20
years as a party arbitrator to CIGNA, and with regard to ACE, I represented ACE when . . . I was
actively practicing law.” At the time of the arbitration, Jacks’ law firm was outside general counsel
for ACE, “but I have no continuing involvement in that representation.” He disclosed that he had
been a party arbitrator for his firm’s clients in eighteen arbitrations over a period of more than
twenty years; he was opposing party arbitrator in three or four cases; he served as an umpire in two
cases; and he was currently serving as an expert for one of their clients. Jacks opined at that time
that he would accept future engagements with ACE/CIGNA if he thought it was appropriate.
Over the next two years, no additional disclosures were made by the arbitrators. In
November 2001, Nationwide’s attorney wrote the arbitrators requesting that each update their
disclosures. Jacks promptly replied, noting his appointment as an arbitrator for ACE in an unrelated
matter. Nationwide did not object to Jacks’ service at the time of the disclosure. Further details of
his involvement were sent by Jacks in January 2002 upon Nationwide’s request. Specifically, Jacks
disclosed that he served approximately twenty times over a twenty-three year period as an arbitrator
appointed by ACE or CIGNA.
Nationwide took no further action regarding Jacks’ supplemental disclosures until after the
United States District Court for the Northern District of Illinois issued its decision in Sphere Drake,
finding evident partiality on the part of Jacks in an unrelated arbitration. Sphere Drake Ins. Ltd. v.
All Am. Life Ins. Co., No. 01-C-5226, 2002 WL 1008464 (N.D. Ill. May 17, 2002).10 Nationwide
readily acknowledges that it was prompted by the district court’s decision in Sphere Drake to make
further inquiries in the present case concerning Jacks. In July 2002, Nationwide’s attorney sent
Jacks more detailed questions about his relationship with ACE/CIGNA and the compensation he had
received from them over a twenty-year period. Jacks’ prompt response noted that from 1979 to date
he had participated in over 100 arbitrations between insurers and reinsurers; he had acted as a party-
appointed arbitrator for ACE/CIGNA in twenty cases, three of them still pending; since 1985, he
had served as a party arbitrator for and against Home in six matters; and, while actively practicing
law, he was not a billing partner at his firm for any legal work he did for ACE/CIGNA. Jacks
declined to disclose the amount of total compensation he received from his prior participation in
matters involving Home and ACE/CIGNA. At a September 2002 organizational meeting,
Nationwide agreed to continue with the arbitration under a reservation of rights. Nationwide
subsequently raised the issue of arbitral bias in the district court proceedings below, and also alleged
9
Nationwide cites Olson v Merrill Lynch, Pierce, Fenner & Smith, Inc., 51 F.3d 157 (8th Cir. 1995); Schmitz
v. Zilveti, 20 F.3d 1043 (9th Cir. 1994);Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197 (11th Cir. 1982); and Positive
Software Inc. v. New Century Mortgage Corp., 337 F. Supp. 2d 868 (N.D. Tex. 2004), for the proposition that the mere
fact of nondisclosure establishes an appearance of bias and, hence, evident partiality. These cases, however, are
inapposite, either involving neutral arbitrators or different governing rules of arbitration, and, to the extent that these
cases endorse an appearance or reasonable impression of bias standard, they conflict with Apperson.
10
As previously noted, the Seventh Circuit ultimately reversed the district court’s decision. Sphere Drake, 307
F.3d at 617.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 8
that there were improper ex parte social contacts on the part of Jacks with Home’s counsel and
employees.
These facts would not, in our opinion, lead a reasonable person to conclude that Jacks was
partial to one side of the arbitration. As the district court noted, this is not even a case of
nondisclosure, as Nationwide argues; rather, Jacks made full and timely disclosures regarding his
business relationship with Home and ACE/CIGNA. These disclosures were not deficient, and
Nationwide otherwise has failed to show with specificity how the substance of these disclosures
pertaining to Jacks’ continued service in the reinsurance industry, and his prior and ongoing contacts
with Home and ACE/CIGNA in numerous unrelated matters, manifest evident partiality pursuant
to 9 U.S.C. § 10(a)(2) and are “powerfully suggestive of bias” in the present matter.
We likewise agree with the district court that Jacks’ social engagements did not constitute
improper or prohibited ex parte contacts. These events did not involve any communication
regarding the Nationwide-Home arbitration. Certainly, arbitrators and attorneys frequently
participate in activities that result in communication unrelated to the subject matter of litigation
before the arbitrator, Morelite, 748 F.2d at 83, and it would be unreasonable to suggest such contacts
in unrelated matters are prohibited.
We therefore conclude, on the basis of the above record, that the district court did not clearly
err in denying Nationwide’s application for vacatur based on the allegations of evident partiality on
the part of arbitrator Jacks.
IV.
In a related argument, Nationwide contends that it had a contractual right to withdraw its
consent to the second panel’s authority because Jacks’ disclosures rendered him unacceptable to
Nationwide, and, having purported to do so, the second panel acted in excess of its authority
contrary to 9 U.S.C. §10(a)(4) when it rendered the final award. Nationwide’s argument lacks merit.
First, as the district court properly held, because Jacks’ disclosures were not in fact deficient,
Nationwide’s contention that the second panel somehow exceeded its authority in continuing to hear
the arbitration is baseless. Second, the contractual provision which purportedly legitimizes such
withdrawal in fact merely preserves the right of either party to seek the vacation of the arbitration
panel’s award except as to fully disclosed and accepted conflicts of interest.11 The provision does
not sanction the unilateral withdrawal of support for the panel that would effectively dismantle the
11
Nationwide bases its argument on language found in the Hold Harmless Agreement, whereby both parties
agreed that neither would hold the arbitration panel members liable in connection with their arbitration service. At the
conclusion of the agreement, the following language appears:
Nothing in this stipulation, however, shall abridge any rights the Petitioner and Respondent may
have with respect to each other to seek the vacation . . . of any . . . Award which the Panel may render
except in regard to any conflicts of interest fully disclosed to the parties at the Organization Meeting, or
thereafter and accepted by the parties.
(J.A. at 471, 473-74, 530.)
Nationwide alleges that this final exception language, for which it specifically negotiated, gives Nationwide
the right to withdraw upon the subsequent disclosure of any arbitrator conflict for which Nationwide withholds its
approval. Nationwide’s argument is contrary to both the language and the context of the clause. The clause merely
reserves Nationwide’s normal rights to seek vacatur of the arbitration award, while circumscribing those rights somewhat
by disallowing either party to seek vacatur on the grounds of conflict of interest, when such a contention is premised on
a conflict fully disclosed and agreed to by the parties.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 9
ongoing arbitration process. Accordingly, Nationwide could avail itself of no governing contractual
right to withdraw its consent to the second panel’s authority.
V.
Finally, Nationwide contends that the second arbitration panel exceeded its authority when
it issued, as part of the final award, “fronting share administrative costs” (“FSAC”) to12Home.
Pursuant to the terms of the underwriting agreements for the participants of the Rutty pool, Rutty
agreed to underwrite risks on behalf of each pool member. The pool members were each responsible
for a percentage of pool liabilities in exchange for the same percentage of pool revenues. The
percentage was fixed annually and was referred to as each pool member’s “fixed quota share.” The
pool members could also act as fronting companies, whereby the cedents and insureds of the pool
would receive contracts issued in the name of one or more pool members but not in the name of all
pool members. Consistent with the terms of the underwriting agreements, however, the actual risks
and premiums were still divided among the pool members based on each pool member’s fixed quota
share. Consequently, because the contracts between the insureds and cedents of the pool and the
issuing companies did not include some pool members, the contingent liability of the fronting
companies to the insured or cedent was almost always higher than their respective fixed quota
shares.
Nationwide contends that, pursuant to the underwriting agreements, the pool was
administered solely on the basis of each pool member’s fixed quota share; thus, the panel’s award
to Home for its FSAC costs falls outside the ambit of the reinsurance contract.
Nationwide’s argument is one of arbitrability. As previously noted, the FAA, 9 U.S.C. § 10,
provides for limited judicial review of arbitration awards. The burden of proving that the arbitrators
exceeded their authority is great. Nationwide III, 330 F.3d at 846. If a dispute is even arguably
within the scope of an arbitration clause, the dispute is arbitrable. See United Paperworkers Int’l
Union, 484 U.S. at 38.
We have previously characterized the arbitration clause in this reinsurance contract as a
“broad” one. Nationwide I, 150 F.3d at 547. Home’s claim for FSAC costs falls squarely within
the scope of this broad clause. The issue of fronted share liability was initially raised before the
arbitration panel by Nationwide, not Home, when Nationwide argued to the panel that Home’s
administrative duty under the reinsurance contract extended to Nationwide’s fronted share. During
the second phase of arbitration, the panel concluded to the contrary and held that Home’s duty
extended only to Nationwide’s fixed pool share liability. Home continued to insure Nationwide’s
fronted liability under a reservation of rights while the issue was pending before the panel. During
the third phase of arbitration, the panel issued a “duty ruling,” incorporated in its final decision, in
which it held that Home owed Nationwide a duty of care, good faith and fair dealing only in
conjunction with the administration of the fixed pool share. The panel thereafter awarded Home the
FSAC costs it incurred in acting on Nationwide’s behalf when it was under no obligation to do so.13
This award was entirely consistent with the duty ruling and certainly was an arbitrable issue that
originated in Nationwide’s claim regarding fronted share costs. The arbitration panel therefore did
not exceed its authority in awarding such costs.
12
See Nationwide I, 150 F.3d at 546.
13
Home filed counterclaims seeking approximately $1,700,000 for costs incurred in administering Nationwide’s
fronted liability and $370,000 in interest on balances Home advanced on Nationwide’s behalf for payments Home made
to Nationwide’s cedents on contracts Nationwide fronted for the pool.
No. 04-4344 Nationwide Mutual v. Home Insurance Co. Page 10
Nationwide’s argument that vacatur is warranted as to the remaining costs and expenses
awarded to Home by the arbitration panel is similarly without basis in the record. Arbitrators are
not required to explain their decisions. Dawahare, 210 F.3d at 669. In this complex and prolonged
arbitration, we will not second-guess this aspect of the panel’s award absent any compelling
justification to do so.
VI.
For the foregoing reasons, we affirm the district court’s order denying Nationwide’s vacatur
application, granting Home’s cross-motion for confirmation of the arbitration award, and entering
final judgment in favor of defendant Home Insurance Company. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3124616/ | MEMORANDUM OPINION
No. 04-12-00267-CR
Vicente REYES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR6988
The Honorable Sharon MacRae, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: July 5, 2012
DISMISSED FOR LACK OF JURISDICTION
Appellant has filed a notice of appeal seeking to appeal the trial court’s order denying his
motion for a judgment nunc pro tunc. On June 12, 2012, we ordered appellant to show cause in
writing why this appeal should not be dismissed for want of jurisdiction. Our order noted that
the denial of a motion for a judgment nunc pro tunc is not an appealable order; instead, the
proper remedy to obtain review of the denial of a motion for judgment nunc pro tunc is by
petition for writ of mandamus. See Caceras v. State, No. 04-10-00132-CR, 2010 WL 726884, at
04-12-00267-CR
*1 (Tex. App.—San Antonio Mar. 3, 2010, no pet.) (not designated for publication); Castor v.
State, 205 S.W.3d 666, 667 (Tex. App.—Waco 2006, no pet.). Appellant did not respond to our
order. Because we do not have jurisdiction to consider an appeal of an order denying a motion
for a judgment nunc pro tunc, this appeal is dismissed for lack of jurisdiction.
PER CURIAM
DO NOT PUBLISH
-2- | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3053908/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENERAL ELECTRIC CAPITAL No. 07-55694
CORPORATION, D.C. No.
Petitioner-Appellant, BK-SV-06-10170-
v. GM
FUTURE MEDIA PRODUCTIONS INC., ORDER
Respondent-Appellee. AMENDING
OPINION AND
AMENDED
OPINION
Appeal from the United States Bankruptcy Court
for the Central District of California
Geraldine Mund, Bankruptcy Judge, Presiding
Argued and Submitted
June 9, 2008—Pasadena, California
Filed July 3, 2008
Amended August 7, 2008
Second Amendment October 24, 2008
Before: Stephen S. Trott, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Trott
14877
GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA 14879
COUNSEL
Michael K. Maly, Hannah L. Blumenstiel, Winston & Strawn
LLP, San Francisco, California, for the appellant.
Harry D. Hochman, Pachulski Stang Ziehl & Jones LLP, Los
Angeles, California, for the appellee.
14880 GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA
ORDER
The Amended Opinion filed on August 7, 2008, is hereby
amended as follows: on slip Opinion page 9982, add the fol-
lowing footnote at the end of the first full paragraph:
Section 158(d)(2) provides that we have discretion-
ary jurisdiction over appeals of non-final orders of
the bankruptcy court upon proper certification of that
court or all appellants and appellees. On May 10,
2007, a motions panel of this court granted permis-
sion to appeal. Section 158(d)(2) itself presents no
issues in this case.
No future petitions for rehearing will be entertained.
OPINION
TROTT, Circuit Judge:
General Electric Capital Corporation (“GECC”), an overse-
cured creditor, appeals the bankruptcy court’s order denying
it default interest and attorneys’ fees. GECC argues that the
bankruptcy court improperly applied a per se rule against
default interest to the facts of this case. We have jurisdiction
pursuant to 28 U.S.C. § 158(d)(2)(A), and we reverse and
remand to the bankruptcy court with instructions to apply the
rule adopted by the majority of federal courts and to then
determine if an award of attorneys’ fees is proper.1
1
Section 158(d)(2) provides that we have discretionary jurisdiction over
appeals of non-final orders of the bankruptcy court upon proper certifica-
tion of that court or all appellants and appellees. On May 10, 2007, a
motions panel of this court granted permission to appeal. Section
158(d)(2) itself presents no issues in this case.
GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA 14881
BACKGROUND
GECC and Future Media Productions, Inc. (“Debtor”) were
parties to a Loan and Security Agreement (“loan agreement”),
dated August 13, 2004. The loan agreement included a $10.5
million, 42-month term loan, as well as a $5 million revolving
line of credit. Interest under the loan agreement accrued prior
to default (“pre-default rate”) at the Index Rate plus 1.5% per
annum, with additional interest of 2% per annum after default
(“default rate”). The loan agreement, governed by New York
law, obligated Debtor to pay attorneys’ fees and costs
incurred by GECC in connection with any dispute relating to
the loan agreement. All advances under the loan agreement
were secured by a perfected, first priority security interest in
substantially all of Debtor’s assets.
On March 31, 2005, an event of default occurred, and the
loans began to bear interest at the default rate. Additional
events of default occurred thereafter. These difficulties, and
others, led Debtor to conclude that an orderly liquidation of
its assets would best serve its interests and those of its credi-
tors. On February 14, 2006, Debtor filed a petition for relief
under Chapter 11 of the Bankruptcy Code. After filing its
bankruptcy petition, Debtor had a need for cash to wind down
its operations and to prepare for the sale of its assets. GECC
agreed to Debtor’s use of GECC’s “cash collateral” subject to
the terms of a stipulation (“the stipulation”) executed by
GECC and Debtor on February 15, 2006. On February 16,
2006, Debtor filed a motion in the bankruptcy court request-
ing approval of the stipulation.
In the stipulation, Debtor represented that it had executed
an agency agreement to sell its assets in an auction, which
was guaranteed to produce at least $7,636,500 in net pro-
ceeds. Debtor conceded that it owed GECC about $5.4 mil-
lion dollars including principal and interest under the loan
agreement. Debtor conceded also that this obligation was pay-
able to GECC and that the obligation was not subject to, nor
14882 GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA
would Debtor assert, any defense of any kind to the obliga-
tion. The stipulation reserved the right of any other interested
party to object to GECC’s claim. Also, the stipulation permit-
ted Debtor to continue to maintain a “lockbox” account into
which it deposited its cash, including the proceeds of its asset
sales, and which GECC periodically “swept” for the purposes
of paying down Debtor’s obligation.
On February 21, 2006, the bankruptcy court provisionally
approved the stipulation and set a final hearing for March 3,
2006. On March 1, the Official Committee of Unsecured
Creditors (“the Committee”) was formed, and on March 2, the
Committee objected to the stipulation. At the March 3 hear-
ing, and a subsequent March 30 hearing, the bankruptcy court
continued the final hearing on the stipulation. During that
time, other issues arose between Debtor, the Committee, and
another creditor, preventing GECC and the Committee from
resolving their differences as to the stipulation.
On or about April 10, 2006, GECC and Debtor entered into
an amended stipulation (“the amended stipulation”). In
response, the Committee withdrew its original objection to the
payment of asset sale proceeds to GECC, subject to its request
for a ruling that GECC was not entitled to payment of interest
at the default rate, or alternatively that GECC’s right to inter-
est at the default rate as part of its allowed claim would be
determined by the court as if GECC had been paid in full
through a confirmed plan of reorganization.
On April 25, 2006, the bankruptcy court held a hearing on
approval of the amended stipulation. At that hearing, GECC’s
counsel proposed an interim solution to stop the accrual of
interest on GECC’s unpaid claim. The solution proposed that
GECC would be paid in full, including interest at the default
rate as specified in the loan agreement, and any dispute about
default interest would be resolved at a later time. The parties
agreed, and the court approved the proposal—allowing the
default rate issue to be litigated independently. The Final
GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA 14883
Cash Collateral Order was entered on May 4, 2006, and
GECC was paid $5,728,584.20, representing the amount
owed on its claims for unpaid principal and loan fees, interest
at the contract rate including default interest since the first
event of default occurred, plus all reimbursable expenses of
GECC, consisting of all remaining auditor fees and legal fees
through April 30, 2006.
On August 28, 2006, the Committee filed a motion in the
bankruptcy court requesting a determination of the interest
rate applicable to GECC’s secured claim. The Committee
asserted that the proper interest rate to be applied to GECC’s
oversecured claim was the pre-default rate rather than the
default rate, and that GECC should return the amount it had
collected over the pre-default rate (“the default rate differen-
tial”) in the amount of $164,995. GECC opposed this motion
and sought attorneys’ fees, costs, and expenses in connection
with this aspect of the controversy.
On November 15, 2006, the bankruptcy court entered an
order concluding that GECC was entitled to interest at the
pre-default rate and was not entitled to attorneys’ fees or
costs. The order required GECC to return the default rate dif-
ferential to Debtor pursuant to our holding in In re Entz-White
Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988).
Additionally, the court denied GECC’s request for attorneys’
fees and costs on the ground that GECC was not the prevail-
ing party. GECC appeals from the bankruptcy court’s order.
DISCUSSION
A. Standard of Review.
We review de novo a bankruptcy court’s conclusions of
law. In re Salazar, 430 F.3d 992, 994 (9th Cir. 2005).
B. Analysis.
[1] Bankruptcy Code § 506(b) provides that the claim of an
oversecured creditor “shall be allowed . . . interest . . . and any
14884 GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA
reasonable fees, costs, or charges provided for under the
agreement or State statute under which such claim arose.” 11
U.S.C. § 506(b). The parties do not dispute that GECC is an
oversecured creditor entitled to interest. However, the parties
do dispute the type of interest due to GECC. The Committee
argues that the bankruptcy court correctly determined that
GECC is entitled to collect interest only at the loan agree-
ment’s pre-default rate, whereas GECC argues that it is enti-
tled to a presumption in favor of the loan agreement’s default
rate (an additional 2% interest), subject only to reduction
based upon any equities involved.
That disagreement presents three issues for our consider-
ation: 1) whether Entz-White applies to the case at bar; 2) if
Entz-White does not apply, how the bankruptcy court should
evaluate the viability of the contractual default interest rate on
remand; and 3) whether GECC is entitled to attorneys’ fees
and costs under § 506(b).
1. The Applicability of Entz-White.
[2] In Entz-White, we announced the rule that an overse-
cured creditor was not entitled to interest at the default rate
where its claim was paid in full pursuant to the terms of a
Chapter 11 plan. Entz-White, 850 F.2d at 1342.2 In the case
at bar, the bankruptcy court extended Entz-White to a claim
that was paid in full as a result of a series of asset sales out-
side of a Chapter 11 plan. Because a Chapter 11 plan impli-
cates provisions of the Bankruptcy Code that an asset sale
outside of a plan does not, we respectfully conclude that the
bankruptcy court’s extension of Entz-White was error.
[3] Our analysis starts from a general premise recently
articulated by the Supreme Court: “[c]reditors’ entitlements in
2
Soon after, we again applied the same rule in a case involving a Chap-
ter 11 plan with substantially similar facts. See In re Southeast Co., 868
F.2d 335, 338 (9th Cir. 1989).
GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA 14885
bankruptcy arise in the first instance from the underlying sub-
stantive law creating the debtor’s obligation, subject to any
qualifying or contrary provisions of the Bankruptcy Code.”
Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co.,
127 S. Ct. 1199, 1204-05 (2007). We read Travelers to mean
the default rate should be enforced, subject only to the sub-
stantive law governing the loan agreement, unless a provision
of the Bankruptcy Code provides otherwise.
[4] In Entz-White we identified such a “qualifying or con-
trary provision” of the Bankruptcy Code. There, the debtor’s
proposed treatment of the oversecured creditor’s claim was
presented in a Chapter 11 plan. A creditor’s claim is consid-
ered “impaired” for purposes of voting on a Chapter 11 plan
unless the plan leaves the creditor’s legal, equitable, and con-
tractual rights unaltered, or the debtor “cures” any default that
occurred prior to or during the bankruptcy case. See 11 U.S.C.
§ 1124(1)-(2). We have explained that the provision allowing
“cures” under § 1124(2)(A) “authorizes a plan to nullify all
consequences of default, including avoidance of default pen-
alties such as higher interest.” Southeast Co., 868 F.2d at 338
(quoting Entz-White, 850 F.2d at 1342). Because the Code
allows the debtor to “cure” defaults under a Chapter 11 plan,
we permitted the debtor to nullify the interest owed at the
default rate. See id. In the case before us today, however,
there was never any question of whether the debtor needed to
cure a default to render it unimpaired for voting on a Chapter
11 plan. Instead, GECC’s oversecured claim was paid through
a sale of assets governed by § 363, outside the context of a
Chapter 11 plan. As a result, the facts of Entz-White are dis-
tinguishable, and thus our per se rule from that case is inappli-
cable.
The Committee asks us to consider two cases in which
other courts have applied Entz-White’s rule against default
interest in contexts outside of a Chapter 11 plan, In re 433
South Beverly Drive, 117 B.R. 563 (Bankr. C.D. Cal. 1990),
and In re Casa Blanca Project Lenders, L.P., 196 B.R. 140
14886 GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA
(B.A.P. 9th Cir. 1996). We have carefully reviewed these
cases, and find their analysis unpersuasive.
The bankruptcy court in South Beverly, and the Bankruptcy
Appellate Panel (“BAP”) in Casa Blanca, used our holding in
Entz-White as the basis for their analysis. Both courts noted
that “cure” as used in § 1124(2)(A) means a return to pre-
default status, which nullifies all consequences of default
including an obligation to pay default interest. South Beverly,
117 B.R. at 566; Casa Blanca, 196 B.R. at 143. Each court
noted also that the concept of a “cure” is not exclusive to
Chapter 11 plans; for example, trustees are permitted to cure
defaults in executory contracts under 11 U.S.C. § 365. South
Beverly, 117 B.R. at 566-67; Casa Blanca, 196 B.R. at 144.
The next step of both courts’ analyses, however, departed
from and improperly extended our holding in Entz-White.
Each court transposed the concept of “cure” from § 1124 and
§ 365 into 11 U.S.C. § 363. South Beverly, 117 B.R. at 566;
Casa Blanca, 196 B.R. at 144-45 (citing South Beverly, 117
B.R. at 566-67). The problem with that transposition is that
the text of § 363 does not mention “cure” and the procedures
set out in that section do not implicate the concept of “cure.”
See 11 U.S.C. § 363. In short, there is no “cure” of events of
default, de facto or otherwise, in the context of an asset sale.
Because the bankruptcy court in South Beverly and the BAP
in Casa Blanca improperly read “cure” into § 363, we do not
find those decisions compelling.
[5] Because the Bankruptcy Code does not provide a “qual-
ifying or contrary provision” to the underlying substantive
law here, the bankruptcy court’s extension of Entz-White to
the loan agreement’s default rate was error. Consistent with
the Supreme Court’s holding in Travelers, we hold that the
parties’ arms length bargain, governed by New York law,
controls.
GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA 14887
2. The Bankruptcy Court, on Remand, Should
Evaluate the Viability of the Default Rate Under the
Rule Adopted by the Majority of Federal Courts.
[6] Because we have decided that Entz-White does not con-
trol the analysis in this case, we remand to allow the bank-
ruptcy court to decide whether the default rate should apply
under the rule adopted by the majority of federal courts. That
rule simply stated is: The bankruptcy court should apply a
presumption of allowability for the contracted for default rate,
“provided that the rate is not unenforceable under applicable
nonbankruptcy law.” 4 Collier on Bankruptcy,
¶ 506.04[2][b][ii] (15th Ed. 1996) (“Most courts have
allowed, or at least recognized a presumption of allowability
for, default rates of interest, provided that the rate is not unen-
forceable under applicable nonbankruptcy law.”).
This rule has been applied in many bankruptcy courts and
in two of our sister circuits. See, e.g., In re Laymon, 958 F.2d
72, 75 (5th Cir. 1992) (holding “that when an oversecured
creditor’s claim arises from a contract, the contract provides
the rate of post-petition interest,” subject to examination of
“the equities involved in [the] bankruptcy proceeding”), cert.
den., 506 U.S. 917 (1992); In re Terry Ltd. P’ship, 27 F.3d
241, 243 (7th Cir. 1994) (noting the general rule that there is
a “presumption in favor of the contract rate subject to rebuttal
based on equitable considerations”).3
GECC argues that if we decide to apply the new rule we
need not remand because there is no evidence that the default
rate differential of 2% is unreasonable. We reject the creation
of a bright line rule that would accept 2% as an allowable
default rate differential. We reject also GECC’s assertion that
the Committee waived any argument as to the enforceability
3
The majority rule is consistent with the Supreme Court’s decision in
Travelers as well as with the plain language of 11 U.S.C. § 1123(d) as
promulgated in the 1994 amendments to the Bankruptcy Code.
14888 GENERAL ELECTRIC CAPITAL v. FUTURE MEDIA
of the default rate under New York law. Because the Commit-
tee initially prevailed in convincing the bankruptcy court to
reject the default rate in its entirety, there was no need for fur-
ther argument. As a result, we remand the case for proper
consideration as prescribed under the majority rule.
3. The Issue of Attorneys’ Fees Should be Considered
on Remand in Light of Remand on the Merits.
[7] The bankruptcy court concluded that GECC was not
entitled to attorneys’ fees, costs, and expenses incurred in the
litigation to determine the applicability of the default rate
because GECC did not prevail. Because we remand for a
proper determination of the applicable interest rate, and
because GECC may prevail on the merits, we remand also the
issue of attorneys’ fees, costs, and expenses allowable under
506(b).
CONCLUSION
Because the bankruptcy court improperly applied our rule
from Entz-White to the facts of this case, we reverse and
remand with instructions to the bankruptcy court to apply the
rule adopted by the majority of federal courts and to then
determine if an award of attorneys’ fees is proper.
REVERSED and REMANDED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2972860/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0794n.06
Filed: September 16, 2005
No. 05-1284
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CHRISTOPHER CHARLES WOOD, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant )
)
)
BEFORE: MERRITT, MOORE and SUTTON, Circuit Judges
MERRITT, Circuit Judge. This is a single issue appeal concerning defendant’s
sentence of 156 months after he pled guilty to armed bank robbery. At the sentencing hearing,
defendant’s counsel requested a sentence below the applicable Guideline range for a “career
offender” under the Federal Sentencing Guidelines, § 4B1.1 (requiring that defendant have “at least
two prior felony convictions of either a crime of violence or a controlled substance offense”). The
parties agree that this provision is applicable and provides a sentencing guideline range of between
151 and 188 months, although after United States v. Booker, 125 S. Ct. 738 (2005), the Guidelines
are advisory only. The government argued for a sentence within the Guideline range in response
to the defendant’s argument for a sentence below the Guideline range. The defendant asserts on
appeal that the government’s argument was a material breach of the plea agreement between the
No. 05-1284
United States v. Wood
parties because the plea agreement states that “the United States also agrees not to oppose any
argument offered by the defendant that his sentence should be the lowest permissible under the
applicable sentencing guideline range.” The plea agreement does not prohibit the government from
arguing against a sentence below the “applicable guideline” range. The agreement does not prohibit
the government, therefore, from arguing in opposition to the defendant’s argument for a sentence
below the applicable guideline range.
In view of the fact that the parties agreed with the pre-sentence report that the applicable
Guideline range was between 151 and 188 months, and in view of the fact that the government
complied with the agreement and did not oppose an argument for a sentence at the low end of the
applicable sentencing guideline range, we conclude that there is no basis for vacating or setting aside
the sentence imposed by the District Court. The defendant did not explicitly argue for a sentence
at the low end of the applicable Guideline range, but rather argued for a sentence below the
applicable Guideline range. Hence, we find no violation of the plea agreement.
Accordingly, the judgment of the District Court is AFFIRMED.
-2- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131744/ | 540 U.S. 847
PUYA-PACHECOv.IMMIGRATION AND NATURALIZATION SERVICE.
No. 02-10980.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3062665/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
TTF,LLC ) ASBCA Nos. 59511, 59513
)
Under Contract Nos. SPM4A7-08-C-0416 )
SPM4A7-08-M-4438 )
APPEARANCE FOR THE APPELLANT: Mr. David Storey
President
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Edward R. Murray, Esq.
Trial Attorney
DLA Aviation
Richmond, VA
ORDER OF DISMISSAL
The appeals have been withdrawn. Accordingly, they are dismissed from the
Board's docket with prejudice.
Dated: 30 September 2015
LYNDc(&.!:u4/vL-
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA Nos. 59511, 59513, Appeals of
TTF, LLC, rendered in conformance with the Board's Charter.
Dated:
·JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/998801/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2851
ELIZABETH FREEDMAN,
Plaintiff - Appellant,
versus
DONNA E. SHALALA, Secretary, Health & Human
Services,
Defendant - Appellee,
and
FOOD & DRUG ADMINISTRATION; DAVE PETAK, Direc-
tor, Division of Accounting, Office of Finan-
cial Management; DON R. PETERSON, Director,
Office of Financial Management,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
96-3935-PJM)
Submitted: May 25, 1999 Decided: May 28, 1999
Before ERVIN, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elizabeth Freedman, Appellant Pro Se. Perry F. Sekus, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Elizabeth Freedman appeals the district court’s order granting
summary judgment to the Defendant in her employment discrimination
action. We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we affirm on the
reasoning of the district court. See Freedman v. Shalala, No. CA-
96-3935-PJM (D. Md. Oct. 29, 1998).* We dispense with oral argu-
ment because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
*
Although the district court’s order is marked as “filed” on
October 27, 1998, the district court’s records show that it was
entered on the docket sheet on October 29, 1998. Pursuant to Rules
58 and 79(a) of the Federal Rules of Civil Procedure, it is the
date that the order was entered on the docket sheet that we take as
the effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3453234/ | Affirming.
On June 27, 1924, T.F. Gibson, Henry J. Gibson, and Edw. Pursifull, as principals, executed their note to appellant and plaintiff below, C.C. Coy, for the sum of $5,000, payable twelve months thereafter, with J.J. Pursifull and Wm. M. Gibson as their sureties. J.J. Pursifull died intestate in January, 1929, his wife having died, also intestate, in 1919. The couple never had but one child, the appellee, W.H. Pursifull, who was the sole heir of each of his parents. At the time of the execution of the note, J.J. Pursifull was thought to be in fairly good financial circumstances, and it was positively known that the other surety (W.M. Gibson) was quite a wealthy man, and is yet so. In 1930 two of the principals, T.F. and Henry J. Gibson, became bankrupt and were so adjudged in proceedings for that purpose, and their estates are not yet fully settled, but it is conceded that their creditors will receive no dividend. Edward Pursifull, the other principal, is a nonresident and insolvent. At the time the note was executed T.F. and Henry J. Gibson were universally thought to be among the wealthiest men in their community, and stood high in commercial and business circles. Every one thought them perfectly solvent and the owners of property of many thousands of dollars above their liabilities, and that impression prevailed until their bankruptcy proceedings which caused consternation and universal comment at the time it was developed. The makers of the note never renewed it, but plaintiff and appellant annually collected the interest on the original note up to July 27, 1929, and which was every time paid by one or the other of the two Gibsons, who were the supposedly substantial principals therein. A default, however, in interest was made at the due date in 1930 because of the bankruptcy proceeding.
On March 20, 1931, plaintiff filed this equity action in the Knox circuit court against appellee and defendant below, W.H. Pursifull, individually, and as administrator *Page 59
of his father, J.J. Pursifull, and in his petition he sought to realize the amount of his note upon two grounds: (1) That J.J. Pursifull in July, 1927, about eighteen months before his death, conveyed to defendant, his son, several described parcels of real estate, at least one of which was in Madison county and the others in Knox county, and which were executed either (a) fraudulently and with the design on the part of both vendor and vendee to defeat the creditors of J.J. Pursifull from collecting their debts in violation of the provisions of section 1906 of our present statutes, or (b), that the conveyances were purely voluntary and without consideration, and plaintiff's attack of them was authorized by the provision of section 1907. Ground (2), under which plaintiff sought to collect his debt, consisted in a charge made in the petition that J.J. Pursifull died the owner of a large amount of property which defendant as his sole heir inherited, and which amounted to more than plaintiff's debt, and he' sought to collect it under the provisions of section 2088 of our present statutes, charging an heir with liability for his ancestor's debts to the extent of assets received. Defendant's answer put in issue all of the material allegations of the petition, and affirmatively alleged that the conveyances to defendant by his father were for a valuable consideration, and which were made without any fraudulent intent on his part to defraud plaintiff or any other of his creditors; but that if he did entertain any such fraudulent intent defendant had no knowledge thereof. The issue made by ground 2 alleged in the petition was completed by defendant's denial thereof.
Upon submission, after extensive proof taken, the Hon. A.J. Bratcher, a former member of this court, sitting as special judge, dismissed plaintiff's petition and to reverse that judgment he prosecutes this appeal. Plaintiff took the deposition of defendant as upon cross-examination, and inquired of him concerning all of the issues made in the case. Defendant's counsel then examined him concerning the same matters and in some instances went into greater detail than did plaintiff's counsel in their examination, and it is argued on this appeal that the testimony so developed was incompetent under the provisions of subsection 2 of section 606 of our Civil Code of Practice. But we think the incompetency of the witness, conceding him to be so, was *Page 60
waived by plaintiff introducing him and first examining him upon the various issues involved, as well as upon collateral ones bearing upon them. Plaintiff thereby made him a competent witness, if in truth he was incompetent, and thereby licensed counsel for defendant to develop the facts inquired about relating to the transactions under investigation and for which reason alone we hold that this objection to plaintiff's testimony is without merit.
Plaintiff's counsel cites a long list of cases from this court dealing with the various phases of, and rules of practice concerning fraudulent conveyances, and the disposition that this court made of such cases under the particular facts of each one, and he seeks to bring this case under the doctrines announced in those cases, some of which are: Wyan v. Raisin Monumental Co., 243 Ky. 431, 48 S.W.2d 1050; Campbell v. First National Bank of Barbourville, 234 Ky. 697,27 S.W.2d 975; Stewart v. Wheeler, 220 Ky. 687, 295 S.W. 991; Shannon v. Duffield, 218 Ky. 770, 292 S.W. 322, 323; Griggs v. Crane's Trustee, 179 Ky. 48, 200 S.W. 317; Allen v. Ligon, 175 Ky. 767, 194 S.W. 1050; Magic City Coal Co. v. Lewis, 164 Ky. 454,175 S.W. 992; and Pence v. Shackelford, 142 Ky. 10,133 S.W. 956. Others will be found cited in those opinions, and still others may be found in the notes to the two sections of our statute, supra, and which it is plainly unnecessary for us to incorporate herein. Suffice it to say that the burden is on plaintiff in such actions to prove the fraud relied on by him, or to prove such facts as will shift the burden of proof to the defendant to show the fairness of the transaction. The latter occurs, according to our opinions and those of other courts, when certain facts and circumstances are shown by plaintiff to exist, such as a confidential relationship of the parties; badges of fraud of sufficient weight to cast a suspicion upon the transaction amounting to a presumption, and which badges of fraud are, inadequate consideration, misrepresentation of the consideration in the conveyance, and other conditions that will be found dealt with in our opinions, supra, and which are unnecessary for us to here mention.
The first attack (a), under ground 1, is bottomed, as we have seen, upon section 1906 of our statutes, and which renders the transaction fraudulent as to creditors, *Page 61
notwithstanding there may have been a valuable consideration, provided it was entered into with the fraudulent intent on the part of the vendor or transferor to defeat his creditors, and the vendee or transferee had knowledge thereof. If either of such necessary elements is absent, then plaintiff will fail in his attack. Section 1907 furnishing the grounds of attack in subdivision (b) of ground 1, relates solely to voluntary conveyances wholly without consideration, and which may be set aside on proper application, regardless of the intent of either party, and involves no element of notice. It is not seriously argued in this case, and indeed could not be, that the attacked conveyances were voluntary, since it is uncontradictedly proven that there was a consideration for each of them, and ground 2 will be dismissed without further discussion.
In disposing of attack (a) under ground 1, it is necessary to make a brief statement of the facts proven at the trial, including those testified to by defendant, he having been rendered a competent witness in the manner indicated. Regardless of the propriety of such practice, the parties in this case were allowed to prove without objection the reputations and standing of defendant and his father for honesty, uprightness, fair dealing, and other personal and individual characteristics tending to refute the possibility of either of them attempting to perpetrate a fraud of the nature and character alleged in the petition. Some of such characteristics as related to defendant's father, were, that while he was an industrious man as long as he was physically able, yet his natural kindness and inability to refuse requests led him to indiscriminately sign notes for his friends as their surety, and that he incurred heavy and burdensome responsibilities on that account, and which in the latter years of his life greatly depleted the amount of his estate. Without objection it was also established by the same character of proof that the two Gibsons, who were principals in the note, were regarded by every one who knew them up to the time of their bankruptcy as abundantly solvent, so much so as to render the contingent liability by any of their sureties for any reasonable amount of no practical concern. Such latter proof was introduced on the issue of intent on the part of J.J. Pursifull at the time he made the attacked conveyances, and also as bearing on the fact *Page 62
as to whether he at that time apprehended that he might eventually be called upon to pay plaintiff's debt, or whether he knew at that time that the debt had not been paid, since it had long since matured so as to entitle him to conclude at that time that it had actually been paid. There is not a scintilla of proof in this case that J.J. Pursifull knew at the time of the conveyances, or from thence until his death, that plaintiff's note had not been paid, nor is there any proof to show that defendant, his son, even knew of the existence of plaintiff's debt. With the proof in that condition, we will now briefly examine the testimony relating to the consideration for the attacked conveyances.
Some several years prior to the conveyances, defendant, his father, and a number of other individuals, acquired, and put into a sort of pool, a tract of land in Knox county containing 1,232 acres. They later leased a part of it to some two or more coal operators. After a time they negotiated a sale of that property together with the holdings of their lessees, to a man by the name of Ennis for the consideration of $130,000, but he paid only $90,000 of it and then failed. There was left in his hands 671 acres of that tract, which he conveyed to J.J. Pursifull as trustee for the several owners, and it was afterwards conveyed to a corporation organized by the owners, they taking stock in proportion to the amount of land each had contributed to the original larger tract. At the date of the attacked conveyances, the value of the stock in that company held by defendant's father did not exceed $1,000, although it was nominally much larger. The $90,000 paid by Ennis was distributed by J.J. Pursifull to the various persons entitled thereto, but he did not pay to defendant his share amounting to some $13,000. On the contrary, after paying some of his debts with his share, the father took his son's share and purchased some land in Madison county, taking the deed to himself. The son already owned another tract of land in that county and had joined the Burley Tobacco Pool, then at its height, and he consented for his father to take the deed to the other tract temporarily in his name, so that it would not be in the pool. In the meantime the father collected money due his son, the defendant, from the proceeds of the other Madison county farm, and when the son sold his farm in that county, known in this record as *Page 63
the "Dozier tract," the father collected a part of the consideration therefor from the purchaser, so that there was due from the father to the son from the transaction mentioned, something in the neighborhood of $18,000 or $20,000 at the time of the attacked conveyances.
Furthermore, the son had paid for his father a number of notes and some judgments, and agreed to and did later pay a number of others, all amounting to something near $7,000. Such facts are established by the uncontradicted testimony of the son and largely corroborated by checks, judgments, and other documentary evidence, together with the oral testimony of other witnesses, one of whom was the Hon. Thomas D. Tinsley, former commissioner of this court, who drafted the attacked deeds, and who testified without objection as to conversations he had, both at that time and on a prior occasion, with defendant's father, relating to some of the most relevant and material facts in this case, and which strongly supports appellee's defense. It was also established without contradiction that defendant obtained considerable property from a deceased aunt, a Mrs. Bingham, some of which was valuable real estate in Knox county, and, perhaps, a part of which was embraced in one of the attacked conveyances. Also, that he inherited from his mother the place upon which he now lives and upon which his father and mother resided before their deaths, and in which the father had a courtesy interest, and for which reason he conveyed that tract to his son, the defendant, and it is one of the attacked conveyances. We have not gone into the details of the evidence given by each witness, and followed the testimony through its various courses, but we have given the substances of it, and it may be said at the outset that plaintiff's proof was such as to cast the burden on defendant to show the bona fides of the attacked transactions. But the cases, supra, do not hold that, when that stage of the investigation is reached, plaintiff ipso facto becomes entitled to the relief he sought, since they also hold that, if defendant meets the burden so cast upon him in a way and manner to dispel the charges of fraud, then plaintiff's right to relief is destroyed.
Turning now to a consideration of attack (b) of ground 1, relied on in the petition, the testimony, consisting in part of that furnished by defendant, with the *Page 64
proven corroborating circumstances, shows 'that defendant's father at the time of his death possessed a very limited amount of property, amounting to some three or four hundred dollars and not even enough to defray the expenses of his burial, and physicians' bills, but all of which were paid by defendant to an amount exceeding $1,100.
It may be conceded that some portions of the testimony bearing upon both grounds 1 and 2 are not so clear and convincing as to be entirely free from doubt, but we have the judgment of the chancellor thereon, and the rule is, that if this court entertains no more than a doubt the judgment of the trial court should not be disturbed. It is only when we are convinced by the testimony in the record that the chancellor was in error in his findings of fact that we are authorized to overturn the judgment appealed from. This case, like all others, is to be determined by its peculiar facts, since it is rare that the facts in one case are an exact duplicate of those in another one. Different and additional circumstances are met with in each case, and are usually of such a nature as to be determinative in their effect. In this case (though perhaps proven by incompetent testimony, but without objection) J.J. Pursifull had every reason to believe that his liability on the note sued on was only nominal, and he likewise had reason to believe that it had long since been paid. Defendant, according to the proof, possessed no knowledge whatever of the existence of the note. The reputations and upright and honorable standing of father and son are overwhelmingly shown. Judgments and other writings, including checks and some bank dealings, corroborate the defendant in his testimony, and the trial court, as we have said, construed the proof as sufficient to overcome the burden cast upon defendant, and in no aspect of the case can it be said that the correctness of his judgment is anything more than doubtful, if indeed it is entitled to that criticism.
We, therefore, are constrained to the conclusion that the record furnishes no ground authorizing us to disturb it, and it is affirmed. *Page 65 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4268730/ | STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Pierce Woods PRD and } Docket No. 33-2-06 Vtec
Subdivision Application }
(Appeal of Schumacher) }
}
Decision on Pending Motions
This appeal concerns a combined application for two subdivisions. The first subdivision
involves 115 acres of land proposed to be divided into a 21-lot planned residential development
(PRD), with an additional 22nd lot to be reserved as common land. The second subdivision
proposes to divide the developer’s adjoining land into two lots.
The Ferrisburgh Planning Commission granted final plat approval to the proposed
subdivisions and PRD applications by its decision dated January 24, 2006. Abutting property
owners Robert and Bonnie Schumacher appealed that decision, thereby giving rise to this appeal.
They are represented by Carl H. Lisman, Esq. Ferrisburgh Realty Investors, LLC (“Developer”),
is represented in this appeal by John W. O’Donnell, Esq. John and Irene Pierce are the owners
of the subject property, but have not entered their appearance in this proceeding. The Town of
Ferrisburgh (Town) is represented here by James F. Carroll, Esq. Jeffrey J. Vigne has entered
his appearance as an Interested Person in this proceeding and represents himself.
Developer has filed two pre-trial motions. The first seeks to have the appeal dismissed
on the basis that Appellants and Mr. Vigne do not meet the statutory definition for standing in
this appeal. Developer’s second motion seeks summary judgment on the substantive issues
raised in Appellants’ Statement of Questions. Appellants and Mr. Vigne have both filed
oppositions to Developer’s summary judgment request.1 Mr. Vigne has also filed his own
motion for summary judgment, asserting that the applicable ordinance provisions prohibit the
development as proposed.
1 In their Memorandum in opposition to Developer’s summary judgment motion, Appellants request that the Court
deny Developer’s motion and request that “Appellants’ motion [be] granted.” We are confused by this reference, as
we are not aware of any motion having been filed by Appellants.
I. Procedural Background.2
1. Developer and the Pierces first submitted their applications on July 27, 2005.
2. The Planning Commission granted sketch approval to the proposed subdivision
and classified it as a major subdivision, as provided in § 220 of the Ferrisburgh Subdivision
Regulations (Regulations) by decision dated August 17, 2005.3 No evidence has been submitted
in this proceeding to show that an appeal was taken from this sketch plan determination.
3. On November 16, 2005, and following several hearings and a site visit, the
Planning Commission approved Developer’s preliminary plat application pursuant to
Regulations § 250, with conditions. No evidence has been submitted in this proceeding to show
that an appeal was taken from this preliminary plat determination.
4. On November 30, 2005, Developer submitted its final plat and PRD applications
for approval pursuant to Regulations § 260. A hearing was conducted on December 21, 2005.
The Planning Commission announced its approval of Developer’s final plat and PRD application
in its decision of January 24, 2006. This final plat and PRD approval is the subject of this
appeal.
II. Developer’s Motion to Dismiss.
Both Mr. Vigne and Mr. Schumacher oppose Developer’s motion to dismiss. Mrs.
Schumacher does not, as she admits that she did not “participate” in the proceedings below, as
required of one who wishes to appeal a decision from an appropriate municipal panel. See 24
V.S.A. § 4471(a). In light of this forthright admission, we must dismiss Bonnie Schumacher as
an appellant in this proceeding.
Both Messrs. Vigne and Schumacher have represented to the Court that they participated
in the proceedings on Developer’s application for final plat and PRD approval. Each has
provided specific recitations of how they participated, none of which Developer has refuted.
Section 4471(a) defines “participation” as “offering, through oral or written testimony,
evidence or a statement of concern related to the subject of the proceeding.” Id. Both gentlemen
2 All of the procedural facts recited here were gleaned from the Planning Commission decision of January 24, 2006.
They are referenced here solely for purposes of our review of the pending motions. Nothing contained in the
parties’ respective filings appears to contradict the procedural facts outlined here.
3 The Planning Commission decision noted that the application at this preliminary stage was deemed to be
“incomplete.”
2
provided unrefuted representations of their oral and written concerns that they communicated to
the Planning Commission in the course of its review of the most recent application.
Only Mr. Schumacher presents himself to this Court as an appellant; Mr. Vigne presents
himself as an interested person. As such, only Mr. Schumacher is allowed to frame the issues of
this appeal in a Statement of Questions. V.R.E.C.P. 5(f). Mr. Vigne may only comment upon
and offer evidence in regard to the issues properly raised by Mr. Schumacher in this appeal. Id.
But each party must first fit the statutory definition of “interested person” in order to have
standing in this proceeding. 24 V.S.A. § 4465(b). Participation in the proceeding below is not
enough to satisfy this statutory definition. However, since it is unrefuted that Messrs. Vigne and
Schumacher each own and occupy land adjacent to the parcels proposed to be subdivided and
have expressed concerns about impacts from the proposed development, we conclude that each
meets the statutory definition of “interested person.” 24 V.S.A. § 4465(b)(3). Developer’s
motion to dismiss Messrs. Vigne and Schumacher must therefore be denied, as both have
fulfilled their burden of evidencing that they have met the statutory definition for interested
person status.
III. Developer’s Motion for Summary Judgment.
Developer suggests in its motion that all the facts material to all the issues raised in
Appellant’s Statement of Questions are undisputed. Such is the first prerequisite to a court
granting a motion for summary judgment. V.R.C.P. 56(c)(3); see also Gettis v. Green Mountain
Economic Development Corp., 2005 Vt. 117 ¶ 19. Appellant and Mr. Vigne dispute this claim;
they have filed their own statements of material facts and have refuted some of the material facts
that Developer has represented as undisputed.
A review of the various representations of material facts leads us to the conclusion that
facts material to the resolution of the issues preserved in this appeal are in dispute, thus requiring
a court trial to resolve the disputed facts. The filings show that the disputes at issue include (but
may not be limited to) lot layouts, location within various zoning districts, density, street layouts,
and the components of the project that conform to the municipal plan, (a document that has not
yet been presented to the Court). We conclude that a court trial is the most appropriate vehicle
for determining what facts are material to the resolution of this appeal. Therefore, Developer’s
motion for summary judgment should not be granted at this time.
3
IV. Vigne’s Motion for Summary Judgment.
Mr. Vigne asserts that a separate legal issue requires us to enter judgment in a summary
fashion against Developer’s project. The substance of his motion is that § 5.21 of the
Ferrisburgh Zoning Bylaws (Bylaws), relating to the application for, review, and approval of
PRDs, specifically requires the following:
Each dwelling unit shall have a minimum two acre lot exclusively associated with
it and must comply with the specific standards set forth in [the Rural Residential
and Rural Agricultural Zoning Districts standards], excluding the lot depth
requirements.
Bylaws § 5.21(D)(4).
Developer opposes Mr. Vigne’s motion, citing several bases for the Court to consider the
motion as untimely or improper. Those bases are no longer applicable, now that the Court has
ruled that Mr. Vigne qualifies as an interested person under 24 V.S.A. § 4465(b)(3).
Due to the explicit language of Bylaws § 5.21(D)(4) (i.e.: the requirement that a “two
acre lot [be] exclusively associated with” each lot (emphasis added)), Developer’s proposal
could be barred, but we cannot so conclude from the record currently before us. No site map that
has been presented identifies the lot sizes. We also do not have before us the prior sketch plan
and preliminary plat approvals issued by the Planning Commission.
We note that if the lots were similarly designed at the sketch plan and preliminary plat
stages, and if the Planning Commission made specific determinations in those proceedings that
the design conformed with the Bylaws, we cannot determine from the record before us now
whether the failure of Mr. Vigne or others to appeal those prior decisions bars the raising of the
issue here. See 24 V.S.A. § 4472(d). We have previously held that while subdivision and PRD
review can complicate the application of the exclusivity of remedy rule of § 4472(d), it does
apply to preliminary determinations. In re Simpson Development Corporation, Docket No. 54-3-
05 Vtec at 3–4, 13–14 (Vt. Envtl. Ct., June 27, 2006). See also see In re Appeal of Gulli, 174 Vt.
580 (2002) (affirming the dismissal of an appeal from a final subdivision determination. The
Court noted that the failure of appellants to file a proper appeal from a prior DRB decision
approving a subdivision and PUD application “deprives the environmental court of jurisdiction”
to hear challenges to the subdivision and PUD approval in a later appeal of the final approval.)
Id. at 581, 583.
4
Accordingly, we conclude that Developer’s motion to dismiss as it relates to Bonnie
Schumacher is GRANTED, but is DENIED as to Robert Schumacher and Jeffrey J. Vigne.
Developer’s and Mr. Vigne’s motions for summary judgment are each DENIED for the reasons
more particularly stated above.
This matter will now be set for trial. The Court had previously discussed with the parties the
possibility of setting this matter for trial on July 20, 2006. Unless a party advises the Court by
July 17, 2006 of an unavoidable conflict for that trial date, the matter will be set for trial on July
20, 2006, beginning with a site visit at 8:30 AM.
Done at Berlin, Vermont this 11th day of July, 2006.
________________________________________
Thomas S. Durkin, Environmental Judge
5 | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2900097/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL KAHANE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-1885
[September 9, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin and St. Lucie Counties; Elizabeth A. Metzger, Judge; L.T. Case Nos.
432007CF000128A; 562000CF003100A-VOP, 562000CF003844A-VOP;
562000CF003850AVOP; 562000CF003864A-VOP; 562007CF001756A;
562007CF003667A; 562007CF003668A; and 562007CF003924A.
Michael Kahane, Chipley, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed. See Ibarra v. State, 45 So. 3d 911 (Fla. 4th DCA 2010).
GROSS, GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2289781/ | 369 F.Supp. 659 (1973)
Arthur Lee LEWIS, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 73 C 528(3).
United States District Court, E. D. Missouri, E. D.
December 17, 1973.
Robert T. Johnson, St. Louis, Mo., for petitioner.
Donald J. Stohr, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., for respondent.
MEMORANDUM AND ORDER
WANGELIN, District Judge.
Petitioner, Arthur Lee Lewis, Jr., pled guilty on April 11, 1972 to one count of possession of goods which had been stolen from interstate commerce. He was sentenced to seven years imprisonment. Petitioner was originally charged along with his common-law wife Maggie Lewis and George Ronald Dugan in a three-count indictment which alleged two violations of Section 659, Title 18, United States Code, and one count of conspiracy in violation of that section.
Petitioner filed a motion to vacate sentence pursuant to Section 2255, Title 28, United States Code, alleging first, that the Government knowingly used perjured testimony in order to secure the indictment, second that he was denied equal protection of the laws in that his co-defendant George Ronald Dugan received a lesser sentence than he, third, that his plea of guilty was neither knowledgeable nor voluntary but resulted from coercion, pressure, and a false promise by Petitioner's retained counsel, that a bargain had been reached with the United States Attorney concerning sentencing and fourth, that the Court lacked jurisdiction in this matter as the goods in question were not a part of interstate commerce when they were stolen.
The Court ordered an evidentiary hearing to enable Petitioner to bring forth evidence which would substantiate his allegations. The Court also appointed Mr. Robert T. Johnson to aid Petitioner in his preparation and presentation. The hearing was held on November 9, 1973.
Petitioner's first allegation that the Government knowingly used perjured testimony in order to secure an indictment is totally without merit. Petitioner alleges that for some unexplained reason, the Government introduced false *660 evidence before the Grand Jury that Petitioner and Maggie Lewis were husband and wife. From the evidence produced at the hearing in this matter (H. tr. 5)[*], as well as the copy of a marriage certificate provided by Petitioner, it is apparent that prior to April 22, 1972, Petitioner and Maggie Lewis had been living together without benefit of a marriage ceremony. However, whether or not the parties were in fact husband and wife had no bearing on the Grand Jury proceedings. A Grand Jury returns an indictment on the basis of facts tending to establish the elements of an offense. The relationship of the parties has no bearing on whether or not an indictment is returned. Furthermore, there has been no showing that the Government knew that Petitioner and Maggie Lewis were not legally married nor was there any showing as to why the Government would want to allege such a fact if they knew it was not true.
Petitioner next contends that he has been denied Equal Protection of the Laws in that he received a longer sentence than his co-defendant George Ronald Dugan. The mere fact that a co-defendant received a lesser sentence does not entitle Petitioner to relief under Section 2255. Humphries v. United States, 328 F.2d 886 (8th Cir. 1964); Egan v. United States, 268 F.2d 820 (8th Cir. 1959). Furthermore, the evidence produced at trial and at Petitioner's plea clearly shows that Petitioner had been entrusted with the goods in question and that he stole them. Co-defendant Dugan entered the scheme at a later date and aided Petitioner in the sale of goods while Petitioner ran the entire enterprise.
The main point in Petitioner's motion and the area where the greatest amount of attention was centered at the hearing concerned the voluntariness of Petitioner's plea. Petitioner alleges that his plea was involuntary and not knowledgeable and that the Court failed to establish a basis in fact for the plea. Petitioner's evidence at the hearing tended to show that Petitioner is a man of very limited education and that he can neither read nor write. Petitioner testified that his retained counsel Mr. Murray Stone failed to represent him but repeatedly urged him to plead guilty. Petitioner testified that he had been informed by his attorney that he would receive a much longer sentence if he went to trial. Petitioner further testified that his attorney met with the Government's counsel Mr. Charles Kitchin on several occasions, each time returning and relating that he had arranged a deal. Petitioner testified that his counsel assured him that if he pled guilty to one count of the indictment that the charges against his wife would be dropped and that he, Petitioner, would receive a sentence of three years or less and probably probation. Petitioner stated that he did not understand the nature of the charges against him and that prior to his plea of guilty, he was instructed by his counsel as to what to say when asked by the Court what he had done to commit the offense. Petitioner further alleged that he was instructed by his counsel that he would give Petitioner signals in the form of nods and winks as to how to respond to the Court's questions. Petitioner further testified that Mr. Stone told him to state that no promise or suggestion as to a sentence had been made in order to get him to plead guilty or the Judge would get mad. Petitioner stated that he did not understand the proceedings at the time of the guilty plea but looked to his attorney who gave him nods, winks and other indications as to how to answer the questions asked. No evidence was produced by Petitioner at the hearing which showed that the United States Attorney had made any bargain with Petitioner's counsel.
The Government's evidence was in direct conflict with that of Petitioner. Mr. Charles Kitchin, former Assistant United States Attorney, testified as to *661 the events that surrounded Petitioner's plea. Mr. Murray Stone testified that he had been retained by Petitioner and his wife. He stated that prior to trial he had filed several motions, hired a private investigator to look into the matter and had also inspected the coats in question. He testified that he had several meetings with his clients and that Petitioner was apprised of the possible sentence if he were to be found guilty on all three counts. Mr. Stone testified that he informed Petitioner about the strength of the Government's case and he did discuss with Mr. Kitchin the possibility of dismissing two counts for a plea of guilty to one count and that also he was successful in having the charges against Maggie Lewis dropped. Mr. Stone denied ever having guaranteed Petitioner a specific sentence and further denied ever having given Petitioner instructions as to how to answer the questions asked of him through nods, winks or other motions.
Fortunately, the issues in this case need not be decided on the credibility of the witnesses involved. The Court has a clear recollection of the circumstances attending Petitioner's guilty plea. There was no winking, blinking or nodding on the part of the defense attorney at the time of the plea as Petitioner alleged. Furthermore, the record shows that a factual basis was established at the time of the plea on which the plea was accepted. Petitioner admitted that he had been entrusted with the goods in question and that he failed to deliver them, but instead returned to the place where he had left them and later sold them. The record also refutes Petitioner's claim that he had been instructed what to say by his counsel in that after the plea had been accepted and after a discussion concerning the pre-sentence report was held, Petitioner requested (Tr. 57) that he be allowed to make a statement. Petitioner at that time reiterated that he had stolen the coats and further added that he had done so alone and that no one else was involved. This statement was also made without any prompting by defense counsel.
As to the Petitioner's allegation that he did not understand the charge to which he pled guilty, the Court takes notice of Petitioner's limited educational background. However, the evidence produced at the hearing shows that Petitioner understands the meaning of stealing and also the consequences of such actions. The record at the time of Petitioner's plea shows that Petitioner had the coats in his possession, and that he knew they were stolen in that he was the one who had stolen them. Petitioner was instructed by the Court as to his rights and he stated that he understood them. Petitioner was informed by the Court of the possible consequences of his plea. The Court again finds that Petitioner's plea was voluntary and knowledgeable and that there was a basis in fact for that plea.
Petitioner finally alleges that the goods in question were not in interstate commerce at the time they were stolen. The Court of Appeals' opinion in Petitioner's co-defendant's appeal, United States v. George Ronald Dugan, 477 F. 2d 140, 1973, is dispository of this issue. The Court noted:
"The evidence shows that the chattels (coats) in question were manufactured by the California Manufacturing Company, California, Missouri. The bills of lading, corresponding to the two stolen shipments involved here, bear customer names whose places of business are situated outside the State of Missouri. Defendant Arthur Lewis, Jr., was a driver for St. Louis-Kansas City Express, an intrastate carrier, and in that capacity, stole the two shipments of coats. The coats were enroute to St. Louis, Missouri, where they would have been transferred to an interstate carrier to continue their journey. The chattels never left the State of Missouri."
Furthermore as the Court noted in United States v. Yellow Cab Co., 332 U. *662 S. 218, 228-229, 67 S.Ct. 1560, 1566, 91 L.Ed. 2010, the fact that certain goods were at the moment stolen, being carried by an intrastate carrier makes them no less a part of interstate commerce. "That portion must be viewed in its relation to the entire journey rather than in isolation. So viewed, it is an integral step in the interstate movement." Id. at 229. Petitioner's allegation is therefore without merit.
In consequence;
It is hereby ordered that Petitioner's motion to vacate sentence be and is denied.
NOTES
[*] Hearing transcript. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3227062/ | This cause was tried and determined in the court below on count 1 of the complaint, to which defendant (appellant) pleaded the general issue in short by consent, and contributory negligence.
Appellee sued appellant to recover $150 as damages for negligently killing a mule, property of plaintiff. The jury returned a verdict in favor of plaintiff, and assessed damages at $125. Judgment was accordingly entered, from which this appeal was taken.
On the trial there was no dispute that the mule in question was killed in a collision with appellant's gasoline truck, etc. There is no reason why the evidence should be set out in detail. In some material aspects the evidence was in conflict, therefore presenting a jury question. The affirmative charge requested by appellant was properly refused.
On the material, in fact controlling, question, the alleged negligence of appellant's agent, the court properly stated the law governing the issue in this case. In this connection the court charged the jury, after defining negligence: "If they were reasonably satisfied that the death of the mule was the direct and proximate consequence of the negligent handling of this truck, that the defendant would be liable, but that if this was not the cause, then their verdict should be for the defendant."
Charge A was properly refused. Maddox v. Jones, 205 Ala. 598,89 So. 38; Smith v. Clemmons, 216 Ala. 52, 112 So. 442.
Other charges refused to defendant were either erroneous, misleading, or fairly and substantially covered by the oral charge of the court and by charges given at the request of defendant.
The motion for a new trial was properly overruled, and the action of the court, under governing rules, will not be disturbed.
Affirmed. *Page 117 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/138576/ | 543 U.S. 864
MORALESv.UNITED STATES.
No. 03-11024.
Supreme Court of United States.
October 4, 2004.
1
C. A. 5th Cir. Certiorari denied. Reported below: 86 Fed. Appx. 782. | 01-03-2023 | 04-28-2010 |
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