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10,513,642 | UNITED STATES of America, Appellee, v. Lorenzo PETTY, also known as Lorenzo Murphy, also known as Lorenzy Petty, Appellant | United States v. Petty | 1993-08-04 | No. 92-3358 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before BOWMAN and MAGILL, Circuit Judges, and HENDREN, District Judge."], "parties": ["UNITED STATES of America, Appellee, v. Lorenzo PETTY, also known as Lorenzo Murphy, also known as Lorenzy Petty, Appellant."], "opinions": [{"text": "BOWMAN, Circuit Judge.\nLorenzo Petty was arrested at a commercial firing range and was charged with being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g), 924(e) (1988 & Supp. Ill 1991). He was convicted after a jury trial and the District Court sentenced him to 212 months’ imprisonment and three years of supervised release. Petty appeals and we affirm.\nFor his first issue on appeal, Petty argues that his trial counsel was ineffective for not objecting when the prosecutor read into the record a joint stipulation of Petty’s prior felony convictions.\nWe decline to address Petty’s ineffective assistance of counsel claim, as' we conclude it is not properly before us. Petty, who was represented by retained counsel at sentencing, raised the issue pro se when the District Court asked if he had anything to say at the sentencing hearing. Petty did not raise the claim in a motion for a new trial, and no evidentiary hearing was held. Consequently, neither trial counsel (who had been replaced by other counsel by the time of the sentencing hearing) nor any other witness was called to establish the factual basis for the claim. Cf. United States v. Thomas, 992 F.2d 201, 204 (8th Cir.1993) (reviewing ineffective assistance claim on direct appeal where record was fully developed in hearing on motion for new trial). The issue of ineffective assistance of counsel at Petty’s trial was not properly raised at the sentencing hearing, because such a hearing is not an appropriate forum for the adjudication of ineffective assistance claims. As shown by Thomas, the issue might have been raised in a timely motion for a new trial. Because it was not, and thus an adequate record was not developed in the District Court, the issue is not ripe for appellate review. Petty’s claim of ineffective assistance is dismissed, without prejudice to his right to raise it in an 18 U.S.C. § 2255 (1988) motion for habeas corpus relief. See United States v. Williams, 994 F.2d 1287, 1290-91 (8th Cir.1993).\nFor his second issue on this direct appeal, Petty challenges the enhancement of his sentence based on his prior felony convictions.\nThe District Court determined that Petty’s sentence was subject to enhancement under 18 U.S.C. § 924(e), which provides that a person convicted under § 922(g) (felon in possession of a firearm) who has three previous convictions “for a violent felony or a serious drug offense” shall receive a mandatory minimum sentence of fifteen years. Accordingly, Petty was classified as an “armed career criminal” under the sentencing guidelines and was assigned an offense level of 33. United States Sentencing Commission, Guidelines Manual § 4B1.4(a), (b)(3)(B) (Nov.1991). Petty’s criminal history category for sentencing purposes was IV. See id. §§ 4A1.1, 4B1.4(c)(3). The guidelines sentencing range thus was 188 to 235 months’ imprisonment, and the court sentenced Petty to 212 months.\nPetty challenges the court’s reliance on three of the prior felonies used to enhance his sentence. The first is a 1964 adjudication of delinquency, when Petty was a juvenile, for committing homicide. Petty argues that this felony may not be used for enhancement because, at the time of the adjudication, the prosecution was not required to prove guilt beyond a reasonable doubt, as is constitutionally compelled since In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). For his challenge to the use of the other felony convictions, Petty contends that his civil rights were restored when he was released from prison upon commutation of his sentences on Missouri convictions of attempted first-degree robbery and manslaughter. According to 18 U.S.C. § 921(a)(20) (1988), offenses are outside the statutory definition of a conviction that may be used for enhancement if, under the laws of the state of conviction, the convict has had his civil rights restored.\nAlthough Petty raised the juvenile adjudication issue in his written objections to the presentence report, he did so only in the context of challenging the criminal history points assigned to him and did not raise it in his discussion of § 924(e) “countable” felony convictions. Defendant’s Objections to the Presentence Report at 6. In any event, at the sentencing hearing, Petty explicitly waived any objection to the use of his 1964 juvenile adjudication for homicide as a prior conviction for a violent felony for purposes of armed career criminal classification. Transcript of Sentencing at 14 (“We have challenged [as prior convictions for violent felonies or serious drug offenses] all of Mr. Petty’s prior juvenile adjudications, and all of his prior convictions, except for his 1964 juvenile adjudication of homicide.”). Petty did not raise the commutation issue at all, either in his written objections to the presentence report or at the sentencing hearing where Petty’s objections to the presentence report were addressed. There is no record on either contention, except for the few documents that Petty attempted to submit to supplement the record on appeal, and no decision on these issues by the District Court. “We will allow sentences to be attacked on grounds raised for the first time on appeal in only the most exceptional cases.” United States v. Redlin, 983 F.2d 893, 896 (8th Cir.1993), petition for cert. filed, 61 U.S.L.W. 3836 (U.S. May 3, 1993) (No. 92-1908). Having considered the arguments Petty sets forth in his briefs, and the government’s response, we see no plain error in the sentence as imposed by the District Court. See United States v. Glasener, 981 F.2d 973, 975 (8th Cir.1992). We cannot say that “a gross miscarriage of justice” will result if we do not reverse the District Court’s decision on the sentence. Redlin, 983 F.2d at 896. The sentence is affirmed.\nWe have taken with the ease Petty’s motions to supplement the record on appeal and now deny those motions.\nPetty’s ineffective assistance claim is dismissed and his sentence is affirmed.\n. The Honorable Clyde S. Cahill, then United States District Judge for the Eastern District of Missouri, now Senior United States District Judge for the Eastern District of Missouri.\n. If a defendant is seeking to withdraw a guilty plea, the issue of counsel’s effectiveness as it relates to the plea may be raised via a motion to withdraw the plea. United States v. Brown, 715 F.2d 387, 388 (8th Cir.1983).", "type": "majority", "author": "BOWMAN, Circuit Judge."}], "attorneys": ["Donald V. Morano, Chicago, IL, argued, for appellant.", "John J. Ware, Asst. U.S. Atty., St. Louis, MO, argued, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Lorenzo PETTY, also known as Lorenzo Murphy, also known as Lorenzy Petty, Appellant.\nNo. 92-3358.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted May 14, 1993.\nDecided Aug. 4, 1993.\nDonald V. Morano, Chicago, IL, argued, for appellant.\nJohn J. Ware, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.\nBefore BOWMAN and MAGILL, Circuit Judges, and HENDREN, District Judge.\nThe HONORABLE JIMM LARRY HENDREN, United States District Judge for the Western District of Arkansas, sitting by designation."} | BOWMAN | MAGILL | HENDREN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 695 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,674 | Ricky Lee ROGERS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee | Rogers v. United States | 1993-08-04 | No. 92-2590 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before BOWMAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges."], "parties": ["Ricky Lee ROGERS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee."], "opinions": [{"text": "PER CURIAM.\nRicky Lee Rogers, a federal prisoner in Missouri, appeals from the district court’s denial of his 28 U.S.C. § 2255 motion. We affirm.\nIn September, 1985, Rogers pleaded guilty to two separate kidnapping charges in violation of 18 U.S.C. § 1201(a)(1). During the plea hearing, the trial court made sure that Rogers understood the charges against him, that he understood the plea agreement, and that he understood the rights he would waive by pleading guilty. The actual sentence that the government would recommend was not discussed. At no point during the hearing did the court specifically tell Rogers that the court did not have to accept the prosecutor’s recommendation, and the court did not tell Rogers that if it rejected the recommended sentence he would not be permitted to withdraw his guilty plea. The court made an extensive inquiry into whether the plea had a factual basis and told Rogers, at least twice, the potential sentences he faced. In October, 1985, the court sentenced Rogers to two concurrent 75-year terms of imprisonment, with parole eligibility occurring after 24 years. Rogers did not raise a violation of Federal Rule of Criminal Procedure 11 on direct appeal. See United States v. Hamilton, 794 F.2d 1345 (8th Cir.1986).\nIn September, 1991, Rogers filed this section 2255 motion. He alleged, among other issues, that his guilty plea was unlawfully and involuntarily made because the trial court failed to comply with Rules 11(c), 11(d), 11(e), 11(f), and 11(g); that his guilty plea was involuntary because his trial counsel compelled him to plead; and that he received ineffective assistance of counsel because trial counsel failed to advise him of Rule 11, failed to assure that the trial court complied with Rule 11, and neglected to raise on appeal the court’s failure to comply with Rule 11.\nThe district court adopted the magistrate judge’s report, which concluded that the trial court “either complied with each section of Rule 11 ... or ... committed harmless error where it faded to follow Rule 11.” With regard to Rule 11(e)(2), the court adopted the magistrate judge’s conclusion that because Rogers “had no right to withdraw the plea, the failure to inform him of that fact worked no prejudice on [him].” The district court also adopted the magistrate judge’s conclusions, first, that Rogers was not denied effective assistance of counsel because Rogers could not prove that, but for counsel’s errors, the result of the proceeding would have been different, and, second, that there was sufficient evidence and a factual basis for Rogers’s guilty plea.\nRogers’s arguments that the district court should be reversed because it failed to hold an evidentiary hearing as to the trial court’s Rule 11 violations and failed to make a de novo review of the magistrate judge’s recommendations are without merit. All of the information that the court needed to make its decision with regard to these claims was included in the record. The court, therefore, was not required to hold an evidentiary hearing. See Rule Governing Section 2255 Proceedings 8(a); see also United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). In addition, there is no evidence that the district court failed to review de novo the magistrate judge’s recommendations, and in any event, Rogers failed to make such specific objections to the recommendations as would require the district court to conduct de novo review. See, e.g., Nabors v. United States, 929 F.2d 354, 355 (8th Cir.1990) (per curiam ).\nRogers concedes that he did not raise on direct appeal the trial court’s failure to comply with Rule 11, and he has made no attempt to assert cause and prejudice for this procedural default. Ordinarily, a section 2255 motion “ ‘may not do service for an appeal.’” Reid v. United States, 976 F.2d 446, 447 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993), quoting United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). Because the government did not raise procedural default and the district court considered the merits of the claims, however, we likewise reach the merits.\nViolations of Rule 11 are cognizable in section 2255 motions only if they create “(1) an error which is jurisdictional or constitutional; (2) a defect which results in a ‘miscarriage of justice’; (3) an omission inconsistent with the ‘rudimentary demands of fair procedure’; or (4) ‘ “ ‘extraordinary circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” ’ ” Harvey v. United States, 850 F.2d 388, 394 (8th Cir.1988), quoting United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979), itself quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939). (Timmreck, Hill, and Bowen actually say “exceptional circumstances” rather than “extraordinary circumstances.”) After carefully reviewing the record, we conclude that the trial court substantially complied with the requirements of Rules 11(c), 11(d), 11(f), and 11(g).\nWe also conclude that Rogers’s argument that he is entitled to relief because the trial court failed to inform him about the parole limitations provided in 18 U.S.C. § 4205(b)(1) is meritless. See, e.g., Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); but see Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.1990) (en banc), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990) (attorney’s failure'correctly to inform client about parole eligibility can amount to constitutional violation if it directly affects decision to plead guilty). Rogers did not allege in his motion or in other pleadings before the district court that he would not have pleaded guilty if the trial court or his attorney had correctly informed him regarding parole eligibility. See, e.g., United States v. C.W.E.H., 838 F.2d 993, 994 (8th Cir.1988) (per curiam). “Thus, ‘even if [Rule 11] was violated [by the court’s failure to advise him regarding parole eligibility], postconviction relief would not be appropriate, because the violation is not causally connected to [Rogers’s] plea and conviction.’ ” Id. at 994, quoting United States v. Runck, 817 F.2d 470, 471 (8th Cir.1987).\nWe agree with Rogers that the trial court failed to comply with the requirements of Rule 11(e)(2), which requires disclosure of the plea agreement in open court and provides that “[i]f the [plea] agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.” The plea agreement here is of the type specified in Rule 11(e)(1)(B), but the trial court’s failure to comply with Rule 11(e)(2) does not merit collateral relief unless the petitioner satisfies the requirements of Timmreck. See, e.g., Good Bird v. United States, 752 F.2d 349, 351 (8th Cir.1985). We conclude, however, that Rogers has not shown that the district court’s errors—failure to disclose the recommended sentence and to advise Rogers that he could not withdraw his plea—were jurisdictional or constitutional, caused a miscarriage of justice, violated the rudimentary demands of fair procedure, or were made in a case presenting exceptional circumstances that merit collateral relief. As a result, we conclude that the trial court’s failure to comply with Rule 11(e)(2) does not entitle Rogers to section 2255 relief.\nRogers also claims that appellate counsel rendered ineffective assistance by failing to raise the Rule 11 violation on direct appeal. “A criminal defendant is entitled to effective assistance of counsel on a first appeal as of right.” Estes v. United States, 883 F.2d 645, 648 (8th Cir.1989). To establish ineffective assistance of counsel, a defendant must show that counsel’s representation “ ‘fell below an objective standard of reasonableness,’ ... and that, but for this ineffective assistance, there is a reasonable probability that the outcome of the trial would have been different.” United States v. Long, 857 F.2d 436, 442 (8th Cir.1988), quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).\nIn United States v. Missouri Valley Construction Co., 704 F.2d 1026, 1030 (8th Cir.1983), we held that a petitioner was not required to show prejudice in order to obtain relief for the district court’s “failure to comply with the clear mandate of [R]ule 11(e).” After that case was decided, however, Rule 11 was amended by adding Rule 11(h), which provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” Our holding in Missouri Valley Construction Co., therefore, is no longer good law, because under this harmless-error standard prejudice resulting from the failure to adhere to Rule 11(e) must be shown. In this case, a strict compliance with Rule 11 would not have revealed to the defendant the aspect of his sentence with which he now expresses dissatisfaction, namely, the time that he must serve in order to be eligible for parole. The error was therefore harmless and thus counsel cannot have been ineffective for failure to raise it on appeal. See, e.g., Strickland, 466 U.S. at 691, 693-94, 697, 104 S.Ct. at 2066, 2067-68, 2069; Carsetti v. State of Maine, 932 F.2d 1007, 1014 (1st Cir.1991); United States v. Nino, 878 F.2d 101, 103-05 (3d Cir.1989); and McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.1986), cert. denied, 479 U.S. 965, 107 S.Ct. 466, 93 L.Ed.2d 411 (1986).\nWith regard to Rogers’s other claims of ineffective assistance, we conclude that Rogers has failed to allege that, but for counsel’s alleged errors, there is a reasonable probability that the results of the proceedings would have been different. See, e.g., Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.\nAccordingly, we affirm.\n. The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["Alan W. Cohen, St. Louis, MO, for plaintiff-appellant.", "Ricky Lee Rogers, pro se.", "Dorothy L. McMurtry, St. Louis, MO (Stephen B. Higgins and Dorothy L. McMurtry on brief), for defendant-appellee."], "corrections": "", "head_matter": "Ricky Lee ROGERS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.\nNo. 92-2590.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Feb. 10, 1993.\nDecided Aug. 4, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 10, 1993.\nAlan W. Cohen, St. Louis, MO, for plaintiff-appellant.\nRicky Lee Rogers, pro se.\nDorothy L. McMurtry, St. Louis, MO (Stephen B. Higgins and Dorothy L. McMurtry on brief), for defendant-appellee.\nBefore BOWMAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges."} | BOWMAN | MAGILL | MORRIS SHEPPARD ARNOLD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 697 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,718 | Sandra CROSSFIELD, Appellee, v. QUALITY CONTROL EQUIPMENT COMPANY, INC., Appellant | Crossfield v. Quality Control Equipment Co. | 1993-08-05 | No. 92-3794 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before BOWMAN and MAGILL, Circuit Judges, and HENDREN, District Judge."], "parties": ["Sandra CROSSFIELD, Appellee, v. QUALITY CONTROL EQUIPMENT COMPANY, INC., Appellant."], "opinions": [{"text": "MAGILL, Circuit Judge.\nThis is a products liability case with jurisdiction based on diversity of citizenship. A jury held Quality Control Equipment, Inc., (Quality) liable for injuries sustained by Sandra Crossfield while working on a chitterling cleaning machine. Crossfield was injured by the chain/sprocket mechanism of the machine. The jury awarded Crossfield the sum of $1,250,00o. Liability was grounded on theories of strict liability failure to warn and negligent failure to warn. On appeal, Quality argues that it is entitled to judgment as a matter of law because it had no duty to warn of a hazard arising in a larger, integrated machine system when it was merely the supplier of a non-defectively designed or manufactured component part to be incorporated into the machine system, which Quality played no role in manufacturing or designing. We agree that Quality had no duty to warn as a matter of law and we reverse the judgment below.\nI. BACKGROUND\nA. The Accident\nA chitterling cleaning machine is used in the pork processing business to clean out hog intestines. The dimensions of the entire machine are approximately 8 feet by 3 feet by 4 feet. The intestines are fed onto a pipe at the intake end of the machine. Directly above the pipe, running the length of the machine, is a conveyor chain running in an oval shape. There are sprockets at both ends of the machine to move the chain. The chain is equipped with $ inch metal protrusions spaced every 1% inches. The protrusions on the chain contact the chitterling material and convey it through the machine along the pipe. The chitterlings are first cut lengthwise along the underside of the pipe, then they are pulled over baffle plates where water sprayers clean out the intestine material.\nThe chitterlings are conveyed through the machine to the discharge end. At the discharge end, the chitterlings lose contact with the pipe and are sprayed with a final blast of water. The intestine material is then supposed to drop off the chain into a discharge tray before the chain reaches the rear sprocket. The rear sprocket then contacts the chain and propels it upwards, around, and back towards the front end of the machine where it will begin the process anew. The chain, therefore, runs in a clockwise direction throughout the length of the machine.\nIn 1988, Sandra Crossfield was employed by Swift Independent Packing Company, presently known as Monfort Pork, in its St. Joseph, Missouri, packing plant. Crossfield worked as a clipper at the discharge end of a chitterling cleaning machine in the plant. As the chitterlings come out the discharge end, they are deposited into a stainless steel tray. The clipper then cuts the chitterling material on a fixed blade mounted to the machine and throws it into another tray to be washed. The chitterling material, however, does not always simply drop off the chain after reaching the end of the pipe at the discharge end. Sometimes the material clings to the chain after losing contact with the pipe. When this happens, the clippers reach and remove the chitterlings from the chain with their hands.\nOn the day she was injured, June 2, 1988, Crossfield was wearing three pairs of gloves, which was standard practice. As the chain was moving at the discharge end of the machine, Crossfield noticed some chitterling material stuck to the chain before it reached the rear sprocket. Using her right hand, she reached for the material on the underside of the chain to loosen it. At that point, her glove became entangled in the chain and sprocket area. Her gloved hand was pulled by the chain around the sprocket and back towards the front of the machine. As she struggled to free her hand, Crossfield sustained serious injuries. Three of her fingers became detached from her hand. The fingers were ultimately reattached, but she has no feeling or functionality in them.\nB. Quality’s Connection to the Accident\nIn 1983, Quality paid Strickler-DeMoss Manufacturing, Inc., $10,000 for the patent rights to chitterling cleaning machines previously manufactured and sold by Strickler-DeMoss. Strickler-DeMoss had sold the machines to meat processing plants. In addition to the patent rights, Quality received a certain inventory of patterns, dies, and jigs. Quality, however, did not obtain a customer list from Strickler-DeMoss. Quality intended to.sell replacement parts to existing owners of Strickler-DeMoss machines and to manufacture additional machines for sale.\nBeginning in March 1984, Crossfield’s employer began ordering replacement parts from Quality for its chitterling cleaning machines. From March 1984 to June 1988, Quality provided twenty-four separate orders for replacement parts to the Monfort St. Joseph plant. Included in those shipments were five separate orders for replacement conveyor chains. The chains were not manufactured by Quality; Quality obtained the chains from the manufacturer and then resold them to Monfort and other customers. It is undisputed that Quality supplied Mon-fort with the chain which was on the machine the day of Crossfield’s injury. The chain was specifically manufactured to fit Strickler-De-Moss chitterling cleaning machines.\nPrior to June 2, 1988, no employee of Quality had ever seen the chitterling cleaning machine that injured Crossfield. In fact, no employee of Quality had ever even been to the Monfort facility in St. Joseph. Quality’s only knowledge of Monfort’s machines came from its correspondence regarding replacement parts. From the invoices and the parts ordered, Quality was aware that the Monfort plant used “old style” chitterling cleaning machines, presumably manufactured by Strickler-DeMoss. Quality also knew that the original design of the Strickler-DeMoss machine did not include any guards over the chains and sprockets.\nFrom 1983 to 1985, Quality continued to manufacture chitterling cleaning machines without guards or kill switches at the discharge end. In 1985 and 1986, Quality redesigned the chitterling cleaning machine. The “old style” machines were the ones produced before this redesign. The redesign provided additional safety features including guards over the chain at both the intake and discharge ends of the machine and kill switches that would automatically shut the machine down if the guards were lifted. These safety features were added because Quality was concerned that there might be a possibility of an entanglement hazard involving the chain and the sprocket at the discharge end.\nII. ANALYSIS\nMissouri substantive law controls this case. Crossfield sued Quality alleging strict liability failure to warn and negligent failure to warn, both valid theories under Missouri law. See Sperry v. Bauermeister, Inc., 804 F.Supp. 1134, 1140 (E.D.Mo.1992) (Sperry II), appeal docketed, No. 92-3626 (8th Cir. June 18, 1993); Spuhl v. Shiley, Inc., 795 S.W.2d 573, 577 (Mo.Ct.App.1990). Originally, Crossfield also sought to impose liability on Quality based on a theory of successorship due to Quality’s relationship with Strickler-DeMoss, but this theory was abandoned before submission to the jury.\nFor a plaintiff to prove either strict liability failure to warn or negligent failure to warn, she must show that the product is defective and unreasonably dangerous for its reasonably anticipated uses. See Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo.1986) (en banc); Sperry II, 804 F.Supp. at 1140. Plaintiffs theory is that the chain was unreasonably dangerous for its reasonably anticipated uses (and thus defective) because it lacked a warning stating that it could be hazardous when used in a chitter-ling cleaning machine. Crossfield seeks to hold the supplier of that component part, not the manufacturer of the component part and not the designer of the larger machine system, liable.\nThe Missouri courts have not yet addressed the situation of a supplier’s liability where a non-defectively designed or manufactured component part is alleged to become unreasonably dangerous only because of the supplier’s failure to warn of a hazard that might arise after the part is integrated into a larger machine system. We conclude, however, that the Missouri courts would not extend liability so far as to hold the component part supplier responsible.\nUnder either theory of recovery, strict liability failure to warn or negligent failure to warn, an essential element is product failure or malfunction. Sperry II, 804 F.Supp. at 1140; Spuhl, 795 S.W.2d at 580. There was no evidence presented in this case that the chain malfunctioned or failed to perform as intended. The chain did not break or snap due to a defective condition, thereby injuring the plaintiff. Rather, the chain operated as it was meant to in the greater machine system, and the plaintiff was injured while working with the system as designed. Crossfield’s expert admitted that the chain as it was originally shipped by Quality was not unreasonably dangerous. Tr. Vol. Ill at 195-96. He stated that it only becomes dangerous when integrated into the larger machine system. Therefore, the chain, standing alone, is not an inherently dangerous product.\nIn fact, much of the plaintiffs expert testimony focused on the dangerous nature of the machine as opposed to the chain specifically. For example, Crossfield’s expert stated: “It would be my professional opinion that the type of hazard and risk that was associated with this machine would not be readily recognized by the workers who would be expected to perform the process, or even on [sic] supervisory personnel.” Tr. Vol. Ill at 129 (emphasis added). Even while the expert was opining that the chain was unreasonably dangerous, his testimony centered on the operation of the larger machine system:\nQ. Mr. Sevart, based upon your review of the evidence in this case and your research on the subject of product design, do you have an opinion as to whether or not the chain, this particular chain, when used on a chitterling cleaning machine of the configuration that was there at the time of Sandra Crossfield’s injury on June 2, ’98 — 1988, was in an unreasonably dangerous condition when left unguarded?\nA. Yes, I have an opinion.\nQ. And what is your opinion?\nA. It’d be my professional opinion that it was.\nQ. Why is that your opinion?\nA. All right. First of all, this type of operation is highly repetitive. This machine is capable of processing 300 hogs an hour, which works out to be like 2400 a day. Each chitlin represents two or three pieces. The operator has to pick up many, many pieces; it’s a highly repetitive process. Such tasks that are highly repetitive are very difficult for an operator to execute safely 100 percent of the time.\nNow secondly, is that the cost of providing the guarding, it was very, very minimal compared to the benefit. And the guarding would not interfere with the use of the machine, so that there really was no benefit to be gained by operating the machine having it designed without guarding....\nTr. Vol. Ill at 135-36.\nFurthermore, when testifying about the steps that should have been taken to ensure a safer environment for the workers, the expert’s opinions again concentrated on the machine itself:\nQ. ... Do you have an opinion as to whether or not the chain that was supplied by the defendant, Quality Control Equipment Company, for use on the chitterling machine, which injured Sandra Crossfield, required a warning for safe operation?\nA. Yes, I do.\nQ. And what is that opinion?\nA. That there should’ve been a warning on the machine.\nTr. Vol. Ill at 149 (emphasis added). The expert testified that a warning decal should have been placed on the machine. Tr. Vol. III at 151. Finally, when describing the type of guard mechanism he recommended, the expert testified that it should be a hood attached to the machine. This hood would encase the hazardous components and would automatically shut the machine off if raised. Tr. Vol. III at 152. This was exactly the kind of additional safety feature that Quality introduced onto its machines manufactured after 1985-86.\nThis expert testimony relates to the design of the machine and the fact that no guards were in place on the machine. By the expert’s own opinions, the dangerousness in this system came from the design of the machine, not from the chain alone. Therefore, the primary duty was owed by the designer of the machine, not the supplier of only one component part, in itself a non-defective element.\nTo impose responsibility on the supplier of the chain in the context of the larger defectively designed machine system would simply extend liability too far. This would mean that suppliers would be required to hire machine design experts to scrutinize machine systems that the supplier had no role in developing. Suppliers would be forced to provide modifications and attach warnings on machines which they never designed nor manufactured. Mere suppliers cannot be expected to guarantee the safety of other manufacturers’ machinery.\nA pair of recent decisions from the Eastern District of Missouri, Sperry v. Bauer- meister, Inc., 786 F.Supp. 1512 (E.D.Mo.1992) {Sperry I), and Sperry II, 804 F.Supp. 1134, are very instructive in this case. Sperry involved an injury to a worker cleaning out a spice milling machine. The worker sued the alleged manufacturer of the machine, Bauermeister, under theories including strict liability and negligent failure to warn. Bauermeister in turn filed a third-party complaint against Micron, the supplier of a rotary airlock, a component part alleged to be defective by Bauermeister. In Sperry I, the district court held that under current Missouri products liability law, Micron could not be liable. The court wrote: “Although Missouri has not addressed this issue directly, it has embraced certain theories of product liability which leads this Court to opine that the Missouri courts would agree with the majority of jurisdictions that hold a non-defective component part manufacturer should not be held liable for the incorporation of the part into a defectively designed product.” Sperry I, 786 F.Supp. at 1516; see also Sperry II, 804 F.Supp. at 1140. The court cited cases from many other jurisdictions to support its conclusion. See, e.g., Childress v. Gresen Mfg. Co., 888 F.2d 45, 49 (6th Cir.1989); Koonce v. Quaker Safety Prods. & Mfg., 798 F.2d 700, 715 (5th Cir.1986); Cropper v. Rego Distrib. Ctr., Inc., 542 F.Supp. 1142, 1156 (D.Del.1982). The court noted further that a component part supplier should not be cast in the role of insurer for any accident that may arise after that component part leaves the supplier’s hands. Sperry I, 786 F.Supp. at 1517; Linegar v. Armour of Am., 909 F.2d 1150, 1155 (8th Cir.1990). Thus, the Sperry I decision supports the principle that manufacturers of component parts which are not defective standing alone cannot be liable for accidents taking place after the part has been integrated into a larger system which they played no part in building.\nIn Sperry II, the court elaborated on this general idea. Bauermeister, it turns out, was only a supplier of different component parts for the spice milling system which was ultimately solely designed, assembled, and installed by plaintiffs employer, Spieeeraft. Bauermeister offered to sell a complete, integrated system, but Spieeeraft rejected the offer. Bauermeister, therefore, played no role in the ultimate design of the spice milling system and only supplied • parts. In granting summary judgment in favor of Bauermeister, the district court held:\nPlaintiff Sperry cannot support his claims for negligent failure to warn or strict liability failure to warn because he has no evidence that the component parts supplied by defendant were in any way defective or that a lack of warning rendered any of the component parts supplied by defendant defective or unreasonably dangerous. Furthermore, plaintiff cannot establish liability of defendant because the lack of a warning rendered the overall mill system defective. Defendant had no connection with the design or installation of the electrical system which would have included an interlock safeguard and/or a warning light; consequently it had no duty to warn plaintiff of any dangerous condition of the electrical system or the overall design of the mill. Finally, plaintiff has no evidence that any of the component parts sold by defendant failed or malfunctioned causing plaintiffs injury.\nSperry II, 804 F.Supp. at 1140.\nThe Sperry cases are very close to the present case. In both situations, the defendants supplied component parts which were in and of themselves non-defective and which did not fail to perform as designed. An injury only occurred after the component parts were integrated into a greater machine system that contained a design defect. Furthermore, the integrated machine was designed and assembled by someone other than the component part supplier. The Sperry decisions lead us to conclude that the defendant in this case, Quality, had no duty to warn as a matter of law.\nWright v. Federal Mach. Co., 535 F.Supp. 645 (E.D.Pa.1982), presented a factual situation also very analogous to the present case. In Wright, the plaintiff sued the supplier of replacement rollers for a leather press.. The supplier, defendant Federal Machine Company, did not manufacture or design the rollers; it simply purchased parts and a mailing list from the original manufacturer when the manufacturer went out of business. No one from Federal had ever visited the site of the leather press, nor had Federal installed the rollers into the press. The Wright court wrote:\nPlaintiff does not allege a manufacturing defect in the rollers sold by Federal but claims that there is a design defect because Federal did not provide a guard or other safety device for the press and did not give a warning about the risk of not having a safety guard. The absence of safety devices or warnings may be design defects in the press but they are not design defects in the rollers.\nFederal did not manufacture or sell the complete press or an assembly where a safety guard would normally be attached. The two replacement rollers sold by Federal became dangerous only when they were installed ... in the press.\nWright, 535 F.Supp. at 649-50. Because the manufacturing defect was in the design of the integrated product and not in the' component part, the component part supplier was not liable. Wright, 535 F.Supp. at 650.\nAgain these same principles control our situation. The chain is not unreasonably dangerous in and of itself, but is only a constituent of a dangerously designed product. The Sixth Circuit has noted, “extending the duty to make a product safe to the manufacturer of a non-defective component part would be tantamount to charging a component part manufacturer with knowledge that is superior to that of the completed product manufacturer.” Childress, 888 F.2d at 49. We do not believe the Missouri courts would extend liability that far, and we will not do so in the absence of any indication that they would. We agree with the sentiments expressed by the Michigan Court of Appeals:\nThe obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not — at least yet — extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another.\nJordan v. Whiting Corp., 49 Mich.App. 481, 212 N.W.2d 324, 328 (1973), rev’d on other grounds, 396 Mich. 145, 240 N.W.2d 468 (1976). We believe that the Missouri courts would follow these well-reasoned decisions from other jurisdictions.\nIn addition, the chain supplied by Quality was manufactured and sold specifically to run in a Strickler-DeMoss chitterling cleaning machine. Quality had no part in designing or manufacturing the chain, just as it had no part in designing or manufacturing the machine into which the chain was placed. Many cases from other jurisdictions support the conclusion that a supplier, who did not design the finished product, cannot be held liable for providing a component part which is specially produced to the specifications of the larger machine system manufacturer. See, e.g., Taylor v. Paul O. Abbe, Inc., 516 F.2d 145, 148-49 (3d Cir.1975); Spangler v. Kranco, Inc., 481 F.2d 373, 375 (4th Cir.1973); Frazier v. Materials Transp. Co., 609 F.Supp. 933, 935-36 (W.D.Pa.1985); Orion Ins. Co. v. United Technologies Corp., 502 F.Supp. 173, 178 (E.D.Pa.1980); Searls v. Doe, 29 Ohio App.3d 309, 505 N.E.2d 287, 289-90 (1986).\nThis general principle underscores our holding in this case. Here the supplier, Quality, provided a particular component based solely on the specifications of a larger machine manufacturer. Quality does not have a duty to verify the safety of products, designed by others, for which it provides non-defective component parts uniquely made to the designer’s specifications. See Childress, 888 F.2d at 49.\nFinally, we note that any liability premised on the theory that Quality is the successor to the original chitterling cleaning machine manufacturer, Strickler-DeMoss, was abandoned at trial. The only theory under which Crossfield attempts to hold Quality liable is as a supplier of the component part, the chain. As we have shown, liability cannot attach based on that theory.\nIII. CONCLUSION\nWe reiterate that Quality is neither a manufacturer nor a designer of either the chain or the chitterling cleaning machine. By the plaintiffs expert’s own testimony, the chain was not dangerous in and of itself and only contributed to a hazard when integrated into the larger machine system. Furthermore, the chain was specifically created to fit the original specifications of the chitterling cleaning machine manufacturer. In this situation, we hold as a matter of law that Quality had no duty to warn of the potential hazard.\nAccordingly, we reverse.\n. The district court determined that Quality was responsible for only $915,000, after reducing the total award by $335,000 already paid to Cross-field in settlement by original co-defendant IMO Industries. IMO manufactured the chitterling cleaning machine’s chain. Quality purchased the chain from IMO and resold it to Crossfield's employer.\n. For ease of identification throughout this opinion, Crossfield’s employer will be referred to as Monfort.\n. Although it was never conclusively established at trial, both parties assume that Strickler-De-Moss manufactured the particular machine on which Crossfield was injured and it was installed when the plant was built in 1972.", "type": "majority", "author": "MAGILL, Circuit Judge."}], "attorneys": ["Wendell E. Koerner, Jr., St. Joseph, MO, for appellant.", "R. Edward Murphy, St. Joseph, MO, for appellee."], "corrections": "", "head_matter": "Sandra CROSSFIELD, Appellee, v. QUALITY CONTROL EQUIPMENT COMPANY, INC., Appellant.\nNo. 92-3794.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted May 13, 1993.\nDecided Aug. 5, 1993.\nRehearing and Suggestion for Rehearing En Banc Denied Sept. 13, 1993.\nWendell E. Koerner, Jr., St. Joseph, MO, for appellant.\nR. Edward Murphy, St. Joseph, MO, for appellee.\nBefore BOWMAN and MAGILL, Circuit Judges, and HENDREN, District Judge.\nTHE HONORABLE JIMM L. HENDREN, United States District Judge for the Western District of Arkansas, sitting by designation."} | BOWMAN | MAGILL | HENDREN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 701 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,765 | Stuart A. RAFOS, Appellant, v. OUTBOARD MARINE CORPORATION, Appellee | Rafos v. Outboard Marine Corp. | 1993-08-06 | No. 92-2928 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and MAGNUSON, District Judge."], "parties": ["Stuart A. RAFOS, Appellant, v. OUTBOARD MARINE CORPORATION, Appellee."], "opinions": [{"text": "BOWMAN, Circuit Judge.\nStuart A. Rafos appeals from'the-District Court’s grant of summary judgment in favor of Outboard Marine Corporation (OMC). For the reasons discussed below, we affirm the judgment of the District Court.\nIn 1988, Rafos accepted an offer to become a manager of OMC’s Turf Care Division and a vice president of OMC. He began working for OMC in March 1989. Rafos signed a severance agreement with OMC effective March 1, 1989, the interpretation of which presents the issue before this Court.\nShortly after hiring Rafos, OMC decided to sell its Turf Care Division. As part of OMC’s plan to sell this division, OMC formed a wholly owned subsidiary, Cushman, Inc., to hold and operate the Turf Care Division assets. Rafos was made President and CEO of the new subsidiary. In a separate agreement between Rafos and OMC, Rafos was to receive specific benefits from OMC if he stayed through the completion of the sale of Cushman; among the benefits was a graduated bonus dependent on the amount by which the actual sale price of Cushman exceeded OMC’s threshold price.\nIn August 1989, OMC entered into an agreement with Ransomes, PLC, for the sale of Cushman. The parties closed the transaction in September 1989, with Ransomes purchasing 100 percent of the Cushman stock. Rafos received a payment of $484,300 pursuant to his agreement with OMC concerning the sale of Cushman. Rafos was employed by Ransomes following the closing of this transaction, and he continued to work for Ransomes until he was discharged in October 1991.\nRafos filed a diversity action against OMC in June 1990 alleging breach of the severance agreement, and both parties moved for summary judgment. The District Court, finding the governing language of the severance agreement clear and unambiguous so that reference to extrinsic evidence was unnecessary, granted summary judgment in favor of OMC. Specifically, the court held that (1) Rafos was not entitled to benefits under the agreement absent a change in control of OMC, and (2) the agreement did not permit Rafos to accept employment with Ransomes and then later collect severance benefits from OMC. Rafos appeals, contending that the court erred in its interpretation of the severance agreement. We affirm, basing our decision on the District Court’s first ground and not reaching the second.\nWe review a grant of summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir. 1992). The standard we apply is the same as that applied by the District Court: whether the record shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).\nThe severance agreement contains a choice-of-law clause stipulating that Delaware law will govern the validity, interpretation, construction, and performance of the agreement. Agreement § 7, at 24. We review the interpretation of the agreement de novo in light of the controlling legal principles, which here, as the parties agree, are provided by Delaware law. We also review de novo the District Court’s determination of questions of state law. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).\nThe two clauses of the agreement which are central to this dispute read as follows:\n2. Change in Control of the Corporation.\n(i) No benefits shall be payable hereunder unless there shall have been a Change in Control of the Corporation [OMC], as set forth below....\n5. Successors; Binding Agreement.\n(a) The Corporation will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Corporation or of any division- or subsidiary thereof employing you to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform it if no such succession had taken place. Failure of the Corporation to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle you to compensation from the Corporation in the same amount and on the same terms as you would be entitled hereunder if you terminate your employment for Good Reason, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination.\nAgreement § 2(i), at 3, § 5(a), at 22-23.\nThe parties make a variety of arguments regarding the interpretation of this contractual language. Our decision, however, is based narrowly on a single issue: whether a change in control of OMC was a condition precedent to OMC’s duty to pay severance benefits to Rafos under the agreement. We agree with the District Court that OMC was not obligated to pay Rafos severance benefits absent a change in control of OMC.\nRafos does not dispute that a change in control of OMC did not occur. Rather, he argues that Section 5 of the agreement creates a separate and independent obligation and triggers the payment of benefits if the requirements of that section are not performed, regardless of whether there is a change in control of OMC. Therefore, Rafos contends, since OMC did not require Ran-somes to assume OMC’s obligations under the severance agreement, OMC breached the agreement and must pay Rafos the benefits set forth in the agreement. We disagree.\nAlthough we agree that the language of Section 5, if viewed in isolation from the rest of the agreement, is susceptible to the reading Rafos propounds, we must interpret the contract as a whole and read the section in the context of the whole agreement. Hudson v. D & V Mason Contractors, Inc., 252 A.2d 166, 169 (Del.Super.Ct.1969). The guiding principles have been stated as follows in a leading Delaware decision:\nThe basic rule of contract construction gives priority to the intention of the parties. In upholding the intentions of the parties, a court must construe the agreement as a whole, giving effect to all provisions therein. Moreover, the meaning which arises from a particular portion of an agreement cannot control the meaning of the entire agreement where such inference runs counter to the agreement’s overall scheme or plan.\nE.I. du Pont de Nemours & Co. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del.1985) (en banc) (citations omitted).\nViewing the severance agreement in its totality, we believe it is clear that the overall scheme or plan of the agreement was to protect Rafos in the event a change in control of OMC occurred. Although Section 5 does not specify that it applies only if there has been a change in control of OMC, the language and structure of the entire agreement, from which we derive the intent of the parties, convinces us that a change in control was necessary to invoke the benefits of the agreement, including those provided by Section 5.\nWe note first that the introductory paragraphs of the severance agreement contain three references to a change in control:\n[T]he Board of Directors of the Corporation (the “Board”) recognizes that ... the possibility of a change in control may exist and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Corporation and its stockholders.\nThe Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Corporation’s management, including yourself, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a change in control of the Corporation.\nIn order to induce you to remain in the employ of the Corporation and in consideration of your agreement set forth in paragraph (ii) of Section 2 hereof, the Corporation agrees that you shall receive the severance benefits set forth in this letter agreement (“Agreement”) in the event your employment with the Corporation is terminated subsequent to a “Change in Control of the Corporation” (as defined in Section 2 hereof) under the circumstances described below.\nAgreement at 1-2 (emphasis added). The language of these introductory paragraphs clearly contemplates that a change in control of OMC must take place before Rafos is entitled to the benefits of the agreement.\nThe substance of the key provisions of the agreement reinforces the intention expressed in the above-quoted introductory paragraphs. Section 1 sets the temporal limits of the agreement, and provides, inter alia, that “if a Change in Control of the Corporation shall have occurred during the original or extended term of this Agreement, this Agreement shall continue in effect for a period of thirty-six (36) months beyond the month in which such Change in Control of the Corporation occurred.” Agreement § 1, at 3 (emphasis added). Section 2, upon which OMC places considerable reliance, states unambiguously that “[n]o benefits shall be payable hereunder unless there shall have been a Change in Control of the Corporation, as set forth below.” Agreement § 2(1), at 3. This section then proceeds to lay out a detailed definition of the term “Change in Control of the Corporation,” and concludes by specifying that, “in the event of a potential Change in Control of the Corporation,” Rafos will remain in the employ of the corporation for six months unless he dies or becomes disabled, or unless there occurs “a Change in Control of the Corporation.” Agreement § 2, at 7.\nSimilarly, Section 3, which is headed “Termination Following a Change in Control of the Corporation,” specifies that, if “a Change in Control of the Corporation shall have occurred” and “upon the termination of [Ra-fos’s] employment during the term of this Agreement,” Rafos shall be entitled to the severance benefits provided by the agreement, unless such termination is by reason of his death or disability, by the Corporation for cause, or by Rafos other than for “Good Reason.” Agreement § 3, at 7-8. The term “Good Reason” is defined, in Subsection 3(c), as meaning the occurrence (without Rafos’s express written consent) “after a Change in Control of the Corporation” of any one of several enumerated events. Agreement § 3(c), at 9. Significantly, one of these enumerated events is “the failure of the Corporation to obtain a satisfactory agreement from any successor to the Corporation to assume and agree to perform this Agreement, as contemplated in Section 5 hereof.” Agreement § 3(c)(v), at 11. Finally, Section 4 of the agreement spells out in considerable detail the benefits to which Rafos shall be entitled if his employment is terminated or he becomes disabled “[fjollowing a Change in Control of the Corporation.” Agreement § 4, at 13.\nWe then come to Section 5. It is undisputed that no change in control of OMC occurred. Rafos contends, however, that the language of the rest of the agreement does not control the interpretation of Section 5, and that Section 5 must be interpreted separately and independently. We disagree. As stated above, “the meaning which arises from a particular portion of an agreement cannot control the meaning of the entire agreement where such inference runs counter to the agreement’s overall scheme or plan.” E.I. du Pont de Nemours & Co., 498 A.2d at 1113. Rafos offers no persuasive reason for reading Section 5 without reference to the rest of the agreement. Section 5 is part and parcel of a carefully drafted agreement, and the agreement contains nothing that suggests Section 5 is to be put on a different footing from the rest of the agreement. Absent any indication in the agreement that Section 5 was meant to be operative when the other obligation-creating provisions of the agreement would not be operative, we conclude that Section 5, like the rest of the agreement, is predicated upon a change in control of OMC.\nOur conclusion is especially clear when we consider the unmistakable import of Section 3, which, inter alia, specifies that it shall be a “Good Reason” for Rafos to terminate his employment (and still be entitled to benefits under the agreement) if, “after a Change in Control of the Corporation,” OMC fails “to obtain a satisfactory agreement from any successor to the Corporation to assume and agree to perform this Agreement, as contemplated in Section 5 hereof.” Agreement § 3(e)(v), at 9, 11 (emphasis added). This cross-reference to Section 5 makes manifest the intent of the parties that Section 5, like the rest of the agreement, was to become operative only upon a change in control of OMC.\nWe hold that Rafos is not entitled to receive benefits under Section 5 of the severance agreement absent a change in control of OMC. It is undisputed that a change in control of OMC did not occur. Accordingly, the judgment of the District Court in favor of OMC is affirmed.\n. The Honorable Warren K. Urbom, Senior United States District Judge for the District of Nebraska.\n. Rafos filed this action while still employed by Ransomes alleging that his continued employment by Ransomes was immaterial to his recovery under the severance agreement with OMC.\n. A \"change in control” of OMC, as defined in the agreement, differs from the sale of a subsidiary; thus the sale of Cushman to Ransomes does not constitute a change in control under the agreement.\n. The agreement is set out in full in Appellant’s Appendix pages A11-A35.\n. Section two of the agreement defines a change in control as occurring when specific changes take place related to stock ownership, voting rights, board membership, merger or consolidation, or liquidation of the corporate assets. Agreement § 2, at 3-6. All of these changes refer to OMC, not to a subsidiary of OMC such as Cushman, and it is undisputed that none of these events occurred.\n. OMC asserts that it complied with the terms of the severance agreement by causing both Cush-man and Ransomes to assume that agreement. Rafos disputes this question of fact, which was not addressed by the District Court. Because of our holding concerning the interpretation of the agreement, we need not address this issue.", "type": "majority", "author": "BOWMAN, Circuit Judge."}, {"text": "MORRIS SHEPPARD ARNOLD, Circuit Judge,\ndissenting.\nI respectfully disagree with the court’s interpretation of § 5 of the agreement. It deals, in pertinent part, not only with a change in control of the corporation (as that is defined in the agreement), but also with a sale of “all or substantially all of the ... assets of ... any ... subsidiary thereof ...,” and it requires the defendant to cause any purchaser of a subsidiary to assume the agreement of which § 5 is a part. This is a wholly distinct and separate undertaking on the part of the defendant and has nothing to do with a change of control of the corporation itself. Its purpose was to ensure that the agreement would continue in force in the event a sale like the one to Ransomes was consummated and that Ransomes would specifically agree to be liable on it. The court’s construction draws no strength from its invocation of § 3(e)(v) of the agreement. That provision simply makes it plain that plaintiff could resign and nevertheless be entitled to severance pay following a change of control if the corporation failed to secure an assumption of the agreement. There was no change of control here and plaintiff did not resign.\nNor do I agree with the district court’s conclusion that the agreement did not permit plaintiff to accept employment with Ran-somes and then receive severance benefits from OMC. The purpose of § 5 was to ensure that plaintiff enjoyed the same job security as he enjoyed before the succession and that the successor itself assume the obligation for that security. It therefore cannot have been a requirement that he not take up employment after the succession before the remedies provided in § 5 were available to him.\nWe are therefore left with the question of whether the corporation lived up to its obligation under § 5 to require Ransomes “to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform it if no such succession had taken place.” Following the sale of all the stock of Cushman, of course, Cushman remained liable on all its obligations. See Ruefenacht v. O’Halloran, 737 F.2d 320, 333 (3d Cir.1984), aff'd, 471 U.S. 701, 105 S.Ct. 2308, 85 L.Ed.2d 708 (1985), and Daily v. Morgan, 701 F.2d 496, 504 (5th Cir.1983). The Purchase Agreement entered into between defendant and Ransomes specifically mentions contracts that provide severance pay for employees, and does so in a way that makes it plain that Ransomes understood that Cushman was indeed obligated to plaintiff in the same manner as defendant had been. See § 2.13. But the fact that the severance obligations survived the transfer is of no particular relevance. The relevant question is whether Ransomes itself assumed those obligations. Under § 6.08 of the Purchase Agreement, Ransomes agreed to “cause ... the Cushman Companies ... to maintain ... severance arrangements for Employees of ... Cushman ... which are, in the aggregate, not less favorable to such individuals than those provided to them by Sellers or the Cushman Companies immediately prior to the Closing Date.” It is not clear that this adds anything whatever to Cushman’s legal obligations, and whatever it may add to Ransomes’ it is not an assumption of liability by them. It is not even a guarantee by Ransomes of Cushman’s performance.\nI would therefore reverse the district court and remand for further proceedings on defendant’s asserted affirmative defenses.", "type": "dissent", "author": "MORRIS SHEPPARD ARNOLD, Circuit Judge,"}], "attorneys": ["James M. Bausch, Lincoln, NE, argued (Susan Kubert Sapp, on the brief), for appellant.", "David E. Springer, Chicago, IL, argued (Andrew J. McGuinness, Martha J. Burns, on the brief), for appellee."], "corrections": "", "head_matter": "Stuart A. RAFOS, Appellant, v. OUTBOARD MARINE CORPORATION, Appellee.\nNo. 92-2928.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted March 15, 1993.\nDecided Aug. 6, 1993.\nRehearing Denied Sept. 8, 1993.\nJames M. Bausch, Lincoln, NE, argued (Susan Kubert Sapp, on the brief), for appellant.\nDavid E. Springer, Chicago, IL, argued (Andrew J. McGuinness, Martha J. Burns, on the brief), for appellee.\nBefore BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and MAGNUSON, District Judge.\nThe HONORABLE PAUL A. MAGNUSON, United States District Judge for the District of Minnesota, sitting by designation."} | BOWMAN | MORRIS SHEPPARD ARNOLD | MAGNUSON | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 707 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,816 | Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX; Defendant-Appellant, Iowa State Penitentiary, Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants; Tony WILLIAMS, Plaintiff-Appellant, v. Crispus C. NIX, Defendant-Appellee, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; Y.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellees; Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX, Defendant-Appellant, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants | Williams v. Nix | 1993-08-10 | Nos. 91-3187, 91-3238 and 92-1837 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ROSENBAUM, District Judge."], "parties": ["Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX; Defendant-Appellant, Iowa State Penitentiary, Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants. Tony WILLIAMS, Plaintiff-Appellant, v. Crispus C. NIX, Defendant-Appellee, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; Y.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellees. Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX, Defendant-Appellant, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants."], "opinions": [{"text": "ROSENBAUM, District Judge.\nRobert Anthony Williams, a prisoner, brought this suit against prison officials at Iowa State Penitentiary (ISP), claiming violations of his civil rights, pursuant to 42 U.S.C. § 1983. After trial, he was awarded money damages and injunctive relief arising from disciplinary reports he received while at the penitentiary and in connection with his transfer from ISP to the United States Bureau of Prisons (BOP).\nThe defendants appeal the district court’s finding that three of four disciplinary reports, and the prison’s handling of Williams’s legal papers, violated his due process rights. The defendants also appeal an award to Williams’s counsel of $35,000 in attorneys’ fees and costs. Williams cross-appeals, asserting that the district court erred in denying his due process claims concerning the fourth disciplinary report and his transfer to the BOP. The rulings of the district court are affirmed in part and reversed in part. The award of attorneys’ fees is vacated.\n1. BACKGROUND\nWilliams is serving a life term for first degree murder. Since his incarceration in May, 1969, he has developed a “practice” as a jailhouse lawyer. Between the years of 1984 and 1986, Williams received the four disciplinary reports which underlie his complaint.\nThe first such disciplinary report was issued in May, 1984, after prison officials intercepted a letter (the “10-green” letter) written by Williams to a fellow inmate. This letter reads in pertinent part:\nMy retainer fee is 10 green to be paid as you see fit — at the moment I can always use envelopes with stamps — legal pads— ink pens — pringles and/or soap (camay— Lux) eandy/bars — cookies—that kind of thing.... Again as you see fit — and as your finances permit....\nThe interception of this note led to a hearing at which the ISP disciplinary committee found that Williams violated prison “bartering rules” prohibiting the exchange or attempt to exchange items of value. The committee sentenced Williams to six months of administrative segregation and ordered that he cease engaging in jailhouse lawyering activities.\nIn June, 1984, while the sanction for the 10-green offense remained in effect, Williams received a second disciplinary report. He was found in possession of another inmate’s legal papers. This led to a charge of violating the disciplinary committee’s prior sanction barring him from practicing as a jailhouse lawyer. As punishment, he was sentenced to ninety days of administrative segregation.\nIn August, 1984, Williams received the third disciplinary report. This report arose when Williams threw a lit matchbook into a trash barrel on May 7, 1984. After a hearing, this report led to one year of administrative segregation.\nThe fourth disciplinary report was filed in May, 1986, after an ISP counselor discovered a pre-stamped envelope addressed to the Lee County District Court Clerk which Williams was attempting to send to a fellow inmate. This report charged Williams with violating prison rules prohibiting “disobeying a lawful order;” “bartering, selling good, etc.;” and “misuse of mail, telephone, and other communications.” The disciplinary committee initially sentenced Williams for this offense, but the punishment was suspended in light of the committee’s determination that the exchange of such envelopes was a common practice at the ISP.\nFinally, Williams was transferred, without notice, from the ISP to the Federal Medical Center at Springfield, Missouri, on August 20, 1987. During this transfer from ISP, Williams was separated from his legal papers. In August, 1988, those materials were either returned to the appropriate inmates at the ISP or, if the inmate was no longer at ISP, returned to Williams.\nOn June 7, 1984, Williams filed his pro se complaint alleging violations of his civil rights under 42 U.S.C. § 1983. This complaint was amended and supplemented to allege that the four disciplinary reports were issued in retaliation for his activities as a jailhouse lawyer, that the disciplinary rules as applied to jailhouse lawyers were unconstitutionally vague, and that the sanctions imposed upon him were excessive and violated his Eighth Amendment rights. Williams also asserts a denial of due process in the hearing regarding the 10-green letter.\nClaiming First and Fourteenth Amendment violations, Williams further challenged his transfer to the BOP. He claimed the defendants transferred him to impede his activity as a jailhouse lawyer. He also claims that ISP’s handling of the legal papers, at the time of his transfer, violated prison policies and a prior consent decree, resulting in a loss of his due process rights. Williams further sought relief on behalf of other prisoners whose papers had been retained by the defendants upon his transfer. Finally, Williams claimed that prison officials filed bogus disciplinary charges to retaliate against several prisoners who testified on his behalf at the district court’s preliminary injunction hearing. As a result of all these claimed injuries, Williams sought damages as well as declaratory and injunctive relief.\nOn January 4, 1985, following a hearing, the district court preliminarily enjoined defendants from preventing Williams’s jailhouse lawyer work. On August 16, 1991, the district court made its preliminary injunction permanent and filed its findings of fact and conclusions of law. On March 3, 1992, the district court filed its award of attorney’s fees. These appeals followed.\nII. DISCUSSION\nA. Prison Rules\nThe Iowa defendants appeal from the district court’s finding that the prison rules prohibiting bartering were unconstitutionally vague as applied to Williams. According to the district court, the 10-green letter was merely “aspirational” and not a request for payment. Since the disciplinary rules did not encompass “aspirational” statements, the court found that the rules, as applied to Williams, were void for vagueness. Defendants further contest the court’s finding that prison rules did not clearly prohibit the exchange of pre-stamped envelopes and that the June, 1984, report for possessing another inmate’s legal papers was flawed since “it was based on the invalid sanction of disbarment.” Williams appeals the court’s finding that no due process violations occurred in connection with the disciplinary proceedings for the matchbook incident.\nIt is axiomatic that due process requires fair notice of prohibited conduct before a sanction can be imposed. Coffman v. Trickey, 884 F.2d 1057, 1060 (8th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1523, 108 L.Ed.2d 763 (1990) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972)); Bouie v. City of Columbia, 378 U.S. 347, 350-51, 84 S.Ct. 1697, 1700-01, 12 L.Ed.2d 894 (1964). This principle applies within the prison setting. Id. (citing Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 659 (1986)).\nHere, the ISP rules prohibit “[gjiving money or anything of value to, or accepting money or anything of value from another person” or “attempting” or “making plans” to do so. This court finds that the rule is clear: inviting payment, in any form, is prohibited. Therefore, we find that whether Williams’s 10-green letter is “aspirational,” or an outright charge for services, the 10-green letter falls within the rules’ prohibitions.\nSimilarly, an attempt to deliver a prestamped envelope to a fellow inmate falls squarely within the prohibition against “giv[ingj ... things of value” to another inmate. Here, the record demonstrates that Williams had previously been told he was not to exchange pre-stamped envelopes. We hold, therefore, that the defendants did not violate Williams’s constitutional rights by sanctioning him for the 10-green letter or for sending the pre-stamped envelope.\nThis determination requires that we reverse the district court’s finding that Williams’s “disbarment” for possession of another inmate’s legal papers was invalid. As we have found the bartering rule to be valid, the punishment for its violation must be upheld.\nThe district court was concerned that the rule book did not explicitly list disbarment as a potential sanction. The ISP rules provide the committee with authority to impose a sanction of “loss of privileges, such as commissary, movies, television, radio, recreational activities, etc.” where authorities find a rule infraction. The list of privileges is clearly not all-inclusive. Our precedents dictate that “disbarment” of a jailhouse lawyer can be a constitutionally valid sanction. Performing lawyering functions on behalf of fellow inmates is a privilege, not a right. While it is well established that inmates’ access to the courts and counsel may not be abridged, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969); Gassier v. Rayl, 862 F.2d 706, 707 (8th Cir.1988), an individual inmate does not have a constitutional right to “practice” jailhouse law. As Gassier makes explicit, “an inmate simply does not have the right to provide his fellow inmates with legal assistance.” Gassier, 862 F.2d at 708; see also Flittie v. Solem, 827 F.2d 276, 280 (8th Cir.1987).\nAccordingly, we reverse the district court holding that the prison rules were void for vagueness.\nFinally, we find no clear error in the district court’s conclusion that no due process violations occurred in connection with those disciplinary proceedings relating to the matchbook incident, and affirm the district court in that regard.\nB. Transfer\nWe affirm the district court in its decision concerning Williams’s transfer. The court properly held that Williams’s transfer, whether or not motivated by his lawyering activities, did not violate his constitutional rights. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 244-45, 103 S.Ct. 1741, 1744-45, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Further, we find no clear error in the district court’s conclusion that Williams failed to carry his burden of proving that the exercise of his right of access to the courts motivated the transfer. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).\nC. Handling of Legal Papers\nThe district court held that the defendants violated Williams’s due process rights by handling his legal materials in a manner which violated prison policy and the Dee v. Brewer, Civil No. 77-102-1 (S.D.Iowa July 25, 1980), consent decree which established that policy. The court awarded Williams $1.00 in nominal damages for these violations. We reverse.\nProcedural due process extends only to rights encompassed by the Fourteenth Amendment’s protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). Such interests may be created by state laws and policies, including prison regulations. Id. at 573, 577, 92 S.Ct. at 2707, 2709; Patchette v. Nix, 952 F.2d 158, 160 (8th Cir.1991). It is clear, however, that, without more, the mere violation of a state law or rule does not constitute a federal due process violation. Meis v. Gunter, 906 F.2d 364, 369 (8th Cir.1990) (en banc), cert. denied, 498 U.S. 1028, 111 S.Ct. 682, 112 L.Ed.2d 673 (1991) (citing Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)).\nThe simple specification of a particular procedure does not create a Fourteenth Amendment liberty interest. See, e.g., Olim, 461 U.S. at 249-51, 103 S.Ct. at 1747-48. State laws and regulations create a protectable liberty interest only when they (1) “place substantive limitations on the exercise of official discretion;” and (2) contain “ ‘explicit mandatory language’ ” comprising “ ‘specific directives to the decision maker that if the regulations’ substantive predicate acts are present, a particular outcome must follow.’ ” Patchette v. Nix, 952 F.2d 158, 160 (8th Cir.1991) (quoting Kentucky Dept. of Correc tions v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989)).\nThis prison regulation fails both prongs of the Thompson test. First, the regulations place no substantive restrictions on the discretion of ISP officials. While the rules provide for written authorization before deviation from the policy, the decision as to when the prison officials can deviate from the policy is unfettered and unchecked. Second, while the policy contains “ ‘explicit mandatory language’ ” governing the procedures for handling a prisoner’s papers, it does not command a particular outcome or response when certain criteria are found to exist. In other words, these regulations are no more than simple procedural guidelines or straightforward commands. Accordingly, we do not find that the ISP policy creates a protectable liberty interest.\nWe also conclude that Williams is not entitled to relief on the basis that the defendants acted contrary to the Dee v. Brewer consent decree. Williams did not plead contempt, nor is there any indication that the district court invoked its inherent contempt powers. Cf. Welch v. Spangler, 939 F.2d 570 (8th Cir.1991); DeGidio v. Pung, 920 F.2d 525 (8th Cir.1990); Green v. McKaskle, 788 F.2d 1116 (5th Cir.1986).\nOn these bases, we reverse the district court’s finding in favor of the plaintiff on his due process claim.\nD. Attorney’s Fees\nNo issues in this case having been resolved in Williams’s favor, the district court’s award of attorney’s fees must be vacated. While it is small recompense, we recognize and commend Mr. Cleary’s efforts on behalf of his client and his service to this Court.\nIII. CONCLUSION\nThe rulings of the district court are affirmed in part and reversed in part. This matter is remanded to the district court for entry of judgment as directed herein.\n. The ISP defendants are Crispus Nix, Warden; Paul Hedgepeth, Administrative Assistant to the Warden; Ron Welder, Assistant to the Warden; Charles Harper, Hearing Officer; George Fenn, Counselor; V.J. Damico, Correctional Officer; Major Harry Grabowski, Internal Affairs head; Dennis Burns, Correctional Officer; Bruce' McDonald, Iowa Department of Justice; Harold Farrier, Iowa Department of Corrections; and Loretta Cooper, Iowa Department of Health.\n. The committee charged Williams with violating the following \"prohibited acts/rule violations\" set forth in the prison rules:\n40. Conduct which disrupts or interferes with the security, tranquility, or orderly running of the institution.\n59. Correspondence or conduct with any person in violation of posted rules.\n60. Giving, receiving and/or coercing or offering any person a bribe or anything of value including contraband or in an attempt to gain special favors or circumvent established procedure.\n61. Giving money or anything of value to, or accepting money or anything of value from another person.\n63. Attempting any of the above offenses, ... and making plans to commit any of the above offenses.\nRules, Regulations, and Disciplinary Procedures for the Government of the Iowa State Penitentiary Inmates (1979).\n. Williams was found to have violated prison rules 16 and 23 of the new rules, which became effective May 16, 1984. Rules 16 and 23 read as follows:\n16. Unauthorized Possession: An inmate commits an offense under this subsection if the inmate has in possession on the person, in this inmate’s cell, in the inmate’s immediate sleeping area, locker, or immediate place of owrk (sic) or other program assignment; or received from or gives to another inmate or fashions or manufactures or introduces or arranges to introduce into the institution any contraband delineated as contraband, including but not limited to:\ng. Property belonging to someone else or anything not authorized.\n23. Disobeying a Lawful Order: An inmate commits an offense under this subsection when the inmate refuses to obey an order, rule, regulation, or procedure, written or verbal, given by any staff of the Division of Corrections, or other person in authority, which is reasonable in nature, and which gives reasonable notice of the conduct expected.\nRules, Regulations, and Disciplinary Procedures for the Government of the Iowa State Penitentiary Inmates (1984).\n. Williams was found guilty of the following rule violations in connection with the matchbook incident:\n12. Setting or attempting to set a fire.\n13. Destroying, altering, or damaging state property or the property of another person.\n40. Conduct which disrupts or interferes with the security, tranquility, or orderly running of the institution.\n44. Failure to follow safety or sanitary regulations.\n63. Attempting to commit any of the above offenses.\nRules, Regulations, and Disciplinary Procedures for the Government of the Iowa State Penitentiary Inmates (1979) (the 1979 version of the rules applied since the incident took place prior to May 16, 1984).\n. The record reveals that, two months prior to this incident, a prison counselor had returned a pre-stamped envelope to Williams. The counsel- or advised Williams to cease sending pre-stamped envelopes to other prisoners.\n.The prison rules state, in pertinent part:\n23. See n. 3\n33. Bartering, Selling Goods, etc.: An inmate commits an offense under this subsection when the inmate:\na. Barters, loans, gives, accepts, sells, or buys things or services of value, including but not limited to, those items sold in the commissary, clothing, housing furnishings, art and craft items, or\nb. Transfer or attempts to transfer or accepts transfer of funds from the account of one inmate to that of another inmate.\n40. Misuse of Mail, Telephone, and Other Communications: Any inmate commits an offense under this subsection when the inmate fails to follow institutional procedures, regulations or instructions, written or verbal for the use of institutional communication facilities such as the mail or telephones, or uses such facilities without proper authorization.\nRules, Regulations, and Disciplinary Procedures for the Government of the Iowa State Penitentiary Inmates (1984).\n. The policy regarding transferring inmates to other institutions reads, in pertinent part:\n1. The cellhouse supervisor of the sending institution will ensure that an inventory sheet, indicating each piece of inmate personal property leaving the institution is completed ... Those papers designated as legal papers, will be searched in the presence of the inmate for contraband, not read, then sealed into a container with the rest of his personal property. The search of legal papers will take place immediately prior to departure. This container with legal papers shall be clearly marked on the outside \"Contains Legal Papers or Legal Material.” The inventory will note the number of containers with legal papers and the total number of containers for all the inmate’s property.\nc. The sealed containers of personal property will remain in the observation of the inmate throughout the actual transfer process.\ne. The only deviation from this policy as it relates to Dee vs. Brewer will be on direct written authorization from the inmate, the Warden, or when the health or safety of the inmate is in jeopardy. The highest ranking official on duty may make an exception. This exception is to be noted in the Blotter as well as the reasons for making this deviation.\n. The district court found that the plaintiff lacked standing to assert this claim on behalf of other inmates. For the reasons set forth, we need not consider the standing question.\n. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (when a statute creates a right to good time credits, which can be forfeited only for serious misbehavior, the state has created a liberty interest, and due process protections attach to insure that the interest is not arbitrarily abrogated). See also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (prison statutes and regulations created a liberty interest in remaining in the general prison population); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (state created liberty interest in parole).", "type": "majority", "author": "ROSENBAUM, District Judge."}], "attorneys": ["Layne M. Lindebak, Asst. Atty. Gen., Des Moines, IA, argued, defendant-appellant.", "James P. Cleary, Phoenix, AZ, argued, for plaintiff-appellee."], "corrections": "", "head_matter": "Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX; Defendant-Appellant, Iowa State Penitentiary, Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants. Tony WILLIAMS, Plaintiff-Appellant, v. Crispus C. NIX, Defendant-Appellee, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; Y.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellees. Tony WILLIAMS, Plaintiff-Appellee, v. Crispus C. NIX, Defendant-Appellant, Iowa State Penitentiary; Defendant, Paul Hedgepeth; Charles Harper; George Fenn; V.J. Damico, Lt.; Harry Grabowski, Major; Dennis Burns, C/O; Bruce McDonald; Defendants-Appellants.\nNos. 91-3187, 91-3238 and 92-1837.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Nov. 12, 1992.\nDecided Aug. 10, 1993.\nRehearing Denied Oct. 14, 1993.\nLayne M. Lindebak, Asst. Atty. Gen., Des Moines, IA, argued, defendant-appellant.\nJames P. Cleary, Phoenix, AZ, argued, for plaintiff-appellee.\nBefore RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ROSENBAUM, District Judge.\nThe HONORABLE JAMES M. ROSENBAUM, United States District Judge for the District of Minnesota, sitting by designation."} | RICHARD S. ARNOLD | FLOYD R. GIBSON | ROSENBAUM | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 712 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,919 | UNITED STATES of America, Appellee, v. Michael Bruce MAHOLY, Appellant | United States v. Maholy | 1993-08-11 | No. 92-3748 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before WOLLMAN, Circuit Judge, ROSS, Senior Circuit Judge, and KOPF, District Judge."], "parties": ["UNITED STATES of America, Appellee, v. Michael Bruce MAHOLY, Appellant."], "opinions": [{"text": "WOLLMAN, Circuit Judge.\nMichael Bruce Maholy moved to suppress evidence that police officers had seized during a nighttime search of his residence pursuant to a warrant. After a hearing, the district court denied his motion. Reserving his right to appeal the district court’s denial of his motion, Maholy conditionally pled guilty to one count of distributing marijuana, in violation of 21 U.S.C. § 841(a)(1); one count of possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); and one count of using a firearm during a drug-related offense, in violation of 18 U.S.C. § 924(c)(1). Maholy now appeals his convictions, and we affirm.\nI.\nAccording to the facts stipulated by the parties at the suppression hearing, Arkansas State Police officers and a confidential informant drove from Little Rock to Mountain Home, Arkansas, on the evening of November 19, 1991. They were intending to locate Maholy’s son so that they could purchase marijuana from him. When they could not locate the son, the officers had the informant call Maholy in order to ascertain the son’s whereabouts. Maholy told the informant that his son had gone to Springfield, Missouri, but that he, the father, could provide them with whatever they needed. In accordance with the officers’ directions, the informant made a deal with Maholy to buy ten pounds of marijuana for $2,600.\nThe officers and the informant returned to Little Rock at approximately 12:30 a.m. on November 20th, at which time the informant made a controlled buy from Maholy at Maholy’s residence. Arkansas State Police Investigator Allen Swint, who had accompanied the informant to Maholy’s residence, field-tested a portion of the green vegetable matter that the informant had obtained from Maholy and received a positive reaction for marijuana. The informant also told Swint that Maholy had additional quantities of marijuana at the residence.\nWhile other officers continued their surveillance of the Maholy residence, Swint left the scene to obtain a search warrant. He prepared an affidavit to support his application for the warrant. Swint included the following facts in the affidavit:\n1) that a reliable confidential informant, who had provided reliable information on two past occasions, had told Swint that Maholy was in possession of and was distributing marijuana from his residence;\n2) that the informant had executed a controlled buy from Maholy which had yielded seven clear plastic bags of green vegetable matter, determined by field-testing to be marijuana;\n3) that the Arkansas State Police had on file a report stating that Maholy was involved in narcotics trafficking in the Little Rock area;\n4) that the Arkansas State Police had on file a report stating that narcotics were being sold from 6000 East Roosevelt Road in Little Rock, which was Maholy’s address;\n5) that he, Swint, had personally been to the residence and would assist in the execution of the search warrant; and\n6) that “the residence is so situated that the approach of the officers serving the search and seizure warrant can be readily detected.”\nSwint took the affidavit to the home of a Little Rock municipal court judge, before whom Swint swore to and signed the affidavit. Finding probable cause to believe that marijuana was present at Maholy’s residence, the judge issued the search warrant at approximately 2:00 a.m. on November 20th. Further finding that the safety of the officers executing the warrant would be jeopardized because their approach would be readily apparent to persons in and around the residence, the judge authorized the police to execute the search warrant at any time of the day or night.\nThe officers executed the warrant at approximately 2:30 a.m. Between the time of the controlled buy at approximately 12:30 a.m. and the execution of the warrant two hours later, the residence had remained fully lit and no one had entered or left. In order to avoid early detection and the accompanying danger, the officers approached the residence on foot by walking across 100 yards of muddy field. The search of the residence revealed a large quantity of marijuana and six firearms. Maholy and his wife were arrested.\nCharges were originally brought in Arkansas state court, but they were subsequently dismissed. Maholy and his wife were then indicted by a federal grand jury. They moved the district court to suppress the fruits of the November 20th search on the ground that the affidavit for the warrant had failed to establish probable cause for the issuance of a nighttime warrant. After the district court denied the motion to suppress, Maholy entered a conditional guilty plea. The district court sentenced him to concurrent terms of 30 months’ imprisonment on the two substantive drug counts and a consecutive term of 60 months’ imprisonment on the firearms count.\nII.\nIn reviewing the grant or denial of a motion to suppress evidence on Fourth Amendment grounds, we are bound by the district court’s findings of fact regarding the circumstances of the search unless we believe on the basis of the record as a whole that the district court clearly erred. See United States v. McBride, 801 F.2d 1045, 1046 (8th Cir.1986), cert. denied, 479 U.S. 1100, 107 S.Ct. 1325, 94 L.Ed.2d 177 (1987); see also United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989). We may reverse the district court’s ultimate ruling on the suppression motion, however, if the ruling reflects an erroneous view of the applicable law. Id.\nMaholy initially argues that the district court erred by not applying the Arkansas Rules of Criminal Procedure to suppress the fruits of the November 20th search. He contends that the affidavit for the search warrant failed to set forth sufficient facts to justify the issuance of a nighttime search warrant under Arkansas Rule of Criminal Procedure 13.2(c). He notes that the search warrant was applied for, issued, and executed solely by state officers and that there was no involvement by federal officers until the federal prosecution was initiated by the return of a federal indictment. He acknowledges that from the time of the indictment forward, the case proceeded solely on the federal level.\nIn determining whether evidence obtained solely by state officers is admissible in federal court in the first instance, it is usually irrelevant whether a state rule of criminal procedure was violated. Cf. United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985) (federal court need not suppress evidence obtained by state officers in violation of a state statute); United States v. Montgomery, 708 F.2d 343, 344 (8th Cir.1983) (same). When evidence obtained by state law enforcement officers is offered in a federal prosecution, “the legality of [the] search and seizure is not determined by reference to a state statute, but rather is resolved by fourth amendment analysis.” United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987) (citing Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967)), cert. denied, 484 U.S. 1011, 108 S.Ct. 712, 98 L.Ed.2d 662 (1988); see also Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960); United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990), cert. denied, 498 U.S. 1102, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991). We have held that “the question ‘[w]hether evidence obtained by state officers and used against a defendant in a federal trial was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.’ ” Tate, 821 F.2d at 1330 (quoting United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983)); see also Montgomery, 708 F.2d at 344; accord, United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir.1987). Thus, Maholy’s claim that the November 20th nighttime search violated Arkansas Rule 13.2(c) is irrelevant to determining, at least in the first instance, whether the fruits of the search are admissible in federal court.\nTurning to the Fourth Amendment analysis, Maholy argues that the nighttime search of his residence violated the Fourth Amendment because Swint’s affidavit provided insufficient justification to support the issuance of a nighttime search warrant. We need not reach the question whether the nighttime authorization in the warrant was in fact reasonable under the Fourth Amendment because we find that even if the nighttime search violated the Fourth Amendment, the fruits of the search were admissible under United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984).\nIn Leon, the Supreme Court held that evidence obtained pursuant to an ultimately invalidated search warrant should not be excluded where the officers executed the warrant with an objectively reasonable good faith reliance on the issuing judicial officer’s determination of probable cause. 468 U.S. at 922, 104 S.Ct. at 3420; see also United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir.1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 997, 112 L.Ed.2d 1081 (1991); United States v. White, 890 F.2d 1413, 1419 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). The Court recognized four situations in which the executing officers could not reasonably rely on the warrant and suppression therefore remained an appropriate remedy: (1) where the issuing judicial officer was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing officer “wholly abandoned his judicial role;” (3) where the affidavit supporting the warrant contained so few indicia of probable cause “as to render official belief in its existence entirely unreasonable;” and (4) where the warrant itself is so facially deficient that no executing officer could reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3420 (citations omitted); see also Simpkins, 914 F.2d at 1057.\nWe recently addressed a similar issue in United States v. Moore, 956 F.2d 843 (8th Cir.1992). In Moore, we held that evidence seized by state officers pursuant to a warrant arguably issued without adequate cause to justify authorizing a no-knock entry need not be suppressed where the officers relied in good faith on the issuing judicial officer’s determination. Id. at 851. In assessing whether the state officers had acted in good faith, we looked to whether the officers had complied with state law and the Fourth Amendment or “had an objectively reasonable basis to believe they were complying with [state] law and the Fourth Amendment.” Id. at 848. Thus, although state law is irrelevant for determining in the first instance whether fruits of a search are admissible in federal court under the Fourth Amendment, state law is relevant when the analysis proceeds to the question of admitting unconstitutionally seized evidence under Leon’s good faith exception to the exclusionary rule.\nMaholy argues that the government may not rely on Leon because no Arkansas law enforcement official could have held an objectively reasonable belief that he was complying with Arkansas Rule of Criminal Procedure 13.2(c) as interpreted by the Arkansas Supreme Court. Although the question is a close one, we cannot say that the Arkansas municipal judge so clearly erred in applying Arkansas’s rules of criminal procedure that the executing officers’ reliance on his determination was entirely unreasonable.\nAt the time of the November 20th search, the Arkansas Supreme Court had decided three eases interpreting Rule 13.2(c), quoted above, to require that the applying officer’s affidavit include sufficient facts showing reasonable cause to believe that circumstances exist supporting one of the rule’s three justifications for a nighttime search. See State v. Martinez, 811 S.W.2d 319, 320 (Ark.1991); Hall v. State, 789 S.W.2d 456, 458 (Ark.1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721, 723 (1980). This line of authority stemmed from the court’s caution in Broadway that affidavits for nighttime search warrants “should speak in factual and not mere conclusory language.” 599 S.W.2d at 723.\nWhat constitutes a fact and what constitutes an opinion or conclusion is, of course, a matter often open to debate. We think that none of the three cited cases discussing the requirements for a nighttime search warrant clearly told Swint or the officers executing the search warrant that the affidavit was obviously inadequate.\nUnlike the nighttime warrant for Maholy’s residence, which was based on the safety of the executing officers, all three of the earlier cases dealt with affidavits attempting to show that potential evidence was in danger of imminent removal, the second of Rule 13.2(c)’s three justifications for issuing a nighttime search warrant. In Broadway, the affidavit recited merely that a controlled buy had occurred at the residence to be searched on the previous day and contained mistakenly inserted language commanding the affiant to search the property at any time of the day or night. 599 S.W.2d at 722-23. The Arkansas Supreme Court held that the conclusory commanding language did not show how any drugs allegedly present at the defendant’s residence were in danger of imminent removal. Id. at 723-24.\nIn Hall, the affidavit stated only that illegal drugs were present at the residence and that a confidential informant had purchased marijuana at the residence within the previous seventy-two hours. 789 S.W.2d at 458. Additional sworn oral testimony had been given to the issuing judicial officer at his residence, but because it had not been recorded, it could not add to the affidavit’s showing. Id. The Arkansas Supreme Court held that the affidavit’s averments failed to “give reasonable cause to believe the drugs would be disposed of, removed, or hidden before the next morning,” id. at 458, and therefore ordered that the fruits of the nighttime search be suppressed. Id. at 459.\nIn Martinez, the affidavit stated that it was believed that Martinez stored controlled substances at his residence and that arrangements had been made to purchase a controlled substance at the residence on that day. 811 S.W.2d at 320. Once again, the Arkansas Supreme Court held that it was error for the nighttime search warrant to have been issued because “[t]he affidavit [was] silent with respect to anything regarding reasonable cause to believe the marijuana would be destroyed or removed before the next morning.” Id. at 321.\nWe believe that Swint’s affidavit went beyond those involved in Broadway, Hall, and Martinez. Swint’s affidavit stated that he had participated in a controlled buy prior to the time of the application, that he had personally been to the premises, and that the residence was so situated that persons in or around the residence could easily notice anyone’s approach. We believe these statements are sufficiently factual in nature and sufficiently support a finding that the warrant could be safely executed only at nighttime so that the officers serving the warrant could rely in good faith on the issuing judge’s authorization of a nighttime search under Rule 13.2(c)(iii).\nMaholy argues, however, that the Arkansas Supreme Court has subsequently decided a case in which it found that the language used in the Swint affidavit (“the residence is so situated that the approach of the officers serving the search and seizure warrant can be readily detected”) was insufficient to support a finding of reasonable cause to justify a nighttime search. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273, 275 (1992). Had Coleman been decided prior to the search of Maholy’s residence, we might well have agreed with the argument that neither Swint nor the other officers executing the warrant could have held an objectively reasonable belief that the affidavit supported the issuance of a nighttime warrant under Rule 13.2(c). Coleman was decided after the search at issue here, however. Thus, it does not taint the good faith of the officers in this case.\nAccordingly, we find that the district court did not clearly err in finding that the officers held an objectively reasonable belief that they were complying with Arkansas law and the Fourth Amendment when they searched Maholy’s residence pursuant to the nighttime search warrant. Therefore, the judgment of the district court is affirmed.\n. The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas.\n. Maholy’s wife did not plead guilty, and the charges against her were subsequently dismissed.\n. Arkansas Rule of Criminal Procedure 13.2(c) provides in pertinent part:\nExcept as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m. Upon a finding by the issuing judicial officer of reasonable cause to believe that:\n(i) the place to be searched is difficult of speedy access; or\n(ii) the objects to be seized are in danger of imminent removal; or\n(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;\nthe issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night....\n. Maholy also argues that if we decline to hold that the search violated Ark.R.Crim.P. 13.2(c), we should hold that the search violated Federal Rule of Criminal Procedure 41(c)(1), which states that search warrants shall be served in the daytime, unless the issuing authority, for reasonable cause shown, authorizes its execution at nighttime. We decline to apply Fed.R.Crim.P. 41(c)(1), however, to a search conducted entirely by state officers. See United States v. McCain, 677 F.2d 657, 662 (8th Cir.1982) (declining to apply Rule 41 unless the defendant/appellant could show sufficient federal involvement in the search to justify invoking the \"participation doctrine”); cf. United States v. Moore, 956 F.2d 843, 847 (8th Cir.1992) (declining to apply the federal no-knock requirement of 18 U.S.C. § 3109 to a search conducted entirely by state officers).\n.Maholy does not contend that Swint’s affidavit lacked sufficient facts to support a finding of probable cause to believe that controlled substances were present at his residence. He challenges only the search warrant’s authorization for the search to be conducted at night.", "type": "majority", "author": "WOLLMAN, Circuit Judge."}], "attorneys": ["L. Gene Worsham, Little Rock, AR, argued, for appellant.", "Linda Lipe, Asst. U.S. Atty., Little Rock, AR, argued, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Michael Bruce MAHOLY, Appellant.\nNo. 92-3748.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted April 15, 1993.\nDecided Aug. 11, 1993.\nL. Gene Worsham, Little Rock, AR, argued, for appellant.\nLinda Lipe, Asst. U.S. Atty., Little Rock, AR, argued, for appellee.\nBefore WOLLMAN, Circuit Judge, ROSS, Senior Circuit Judge, and KOPF, District Judge.\nThe HONORABLE RICHARD G. KOPF, United States District Judge for the District of Nebraska, sitting by designation."} | WOLLMAN | ROSS | KOPF | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 718 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,937 | UNITED STATES of America, Appellee, v. Darryl LIVINGSTON, aka Curtis Edwards, Appellant | United States v. Livingston | 1993-08-13 | No. 92-3138 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before McMILLIAN, MAGILL and LOKEN, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Darryl LIVINGSTON, aka Curtis Edwards, Appellant."], "opinions": [{"text": "McMILLIAN, Circuit Judge.\nDarryl Livingston appeals the 120-month statutory minimum sentence imposed by the district court following his guilty plea to conspiring to distribute phencyclidine (PCP) and money-laundering. For reversal, Livingston argues that the district court erred in concluding it lacked authority to depart below the statutory minimum sentence without a government motion under 18 U.S.C. § 3553(e) specifically requesting such a departure. For the reasons set forth below, we affirm.\nA grand jury returned an indictment charging Livingston with conspiring to distribute PCP, using a firearm during and in relation to a drug trafficking offense, and money-laundering. Pursuant to a plea bargain, Livingston agreed to plead guilty to conspiring to distribute in excess of one kilogram of a mixture containing PCP and money-laundering, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and 18 U.S.C. § 1956(a)(1)(A), (2). Livingston also promised to “cooperate fully and completely with federal law enforcement authorities concerning his knowledge of and involvement in firearms and drug trafficking activities.” In exchange, the government agreed to dismiss the firearm charge and to file “a motion certifying that the defendant has rendered ‘substantial assistance’ as defined by Section 5K1.1 of the ... Guidelines.” The agreement further provided: “Defendant understands and agrees that even if the court grants the motion, the court cannot sentence defendant to less than ten years on Count One for a minimum sentence of ten (10) years.\"\nLivingston complied with the terms of the plea agreement and prior to sentencing, the government filed a motion under U.S.S.G. § 5K1.1, p.s. for departure below the sentencing range of 151 to 188 months. The government suggested the court impose the statutory minimum 120-month sentence. The court stated that, based on Livingston’s testimony and the risk to which he exposed himself by testifying, it would depart below the Guidelines range and below the statutory minimum. The government objected, arguing that the court lacked authority to depart below the statutory minimum without a government motion under 18 U.S.C. § 3553(e). The court overruled the objection and sentenced Livingston to seventy-five months.\nThe government then moved for reconsideration of the sentence based on this court’s decision in United States v. Rodriguez-Morales, 958 F.2d 1441, 1447 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992), which held that “a sentencing judge may not depart below the statutory mandatory minimum sentence under a government motion pursuant to section 5K1.1 ... for departure based on a defendant’s substantial assistance. Only a government motion based on section 3553(e) will allow the court to depart below the mandatory minimum.” The district court granted the motion and resentenced Livingston to 120 months. On appeal, Livingston argues that the district court erred by resentencing him, that Rodriguez-Morales was wrongly decided, and that section 5K1.1 implements and supersedes section 3553(e).\nWe need not address Livingston’s arguments because the plea agreement specifically provided that he would be sentenced to a minimum of ten years, even if the court granted the government’s section 5K1.1 motion. We have previously held that by consenting to a specific sentence in a plea agreement, the defendant waives the right to challenge that sentence on appeal. See United States v. Womack, 985 F.2d 395, 400 (8th Cir.1993); United States v. Durham, 963 F.2d 185, 187 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992); United States v. Fritsch, 891 F.2d 667, 668 (8th Cir.1989). We therefore conclude that Livingston has waived his right to challenge the statutory minimum sentence imposed by the district court at resentencing.\nAccordingly, we affirm.\n. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.", "type": "majority", "author": "McMILLIAN, Circuit Judge."}], "attorneys": ["Willis L. Toney, Kansas City, MO, for appellant.", "Kathryn M. Geller, Asst. U.S. Atty., Kansas City, MO, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Darryl LIVINGSTON, aka Curtis Edwards, Appellant.\nNo. 92-3138.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Feb. 18, 1993.\nDecided Aug. 13, 1993.\nWillis L. Toney, Kansas City, MO, for appellant.\nKathryn M. Geller, Asst. U.S. Atty., Kansas City, MO, for appellee.\nBefore McMILLIAN, MAGILL and LOKEN, Circuit Judges."} | McMILLIAN | MAGILL | LOKEN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 723 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,513,974 | Dixie Lee RILEY, Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, doing business as U.S. West Communications; Don Buxton; Judy Tinkham, Appellees | Riley v. Northwestern Bell Telephone Co. | 1993-08-13 | No. 92-2987 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge."], "parties": ["Dixie Lee RILEY, Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, doing business as U.S. West Communications; Don Buxton; Judy Tinkham, Appellees."], "opinions": [{"text": "ROSS, Senior Circuit Judge.\nAppellant Dixie Lee Riley filed suit against her former employer, Northwestern Bell Telephone Company (NWB), now known as U.S. West Communications, alleging she was terminated from employment on the basis of her sex. Riley was hired by NWB in May 1972 and received consistent promotions and positive performance appraisals throughout her tenure. Riley, however, was active in the National Organization for Women and other women’s rights groups and never hesitated to challenge what she considered to be discriminatory practices at work. From 1975 through 1982, she lodged a number of complaints of sex discrimination against NWB. On August 21, 1986, Riley was terminated ostensibly because of her “disruptive” management style and her failure to complete a resultant “development plan” designed to improve her performance.\nRiley filed suit on January 30, 1987. The EEOC dismissed her complaint on September 23, 1988, and dismissed it again after further review on May 31, 1989. This action in the federal court was filed on September 7, 1989. On February 26, 1992, the district court found in favor of NWB. Riley now appeals.\nFederal Rule of Appellate Procedure 4(a)(1) provides that an aggrieved party must appeal within thirty days after the date of the judgment. However, if a party files a motion for a new trial or amended findings of fact, the time to appeal is tolled until thirty days after the trial court issues its ruling on the motion. Fed.RApp.P. 4(a)(4).\nOn March 12,1992, Riley filed a document entitled “Notice of Plaintiffs Motion for Amended Findings of Fact, Conclusions of Law, and Order for Judgment, or in the Alternative for a New Trial,” which provided in relevant part:\nPLEASE TAKE NOTICE that on May 29, 1992, at 10:00 a.m., or as soon thereafter as counsel may be heard ... Plaintiff will move the Court, ... for an Order, pursuant to Federal Rule of Civil Procedure 52(d) [sic], amending its Findings of Fact, Conclusions of Law, and Order for Judgment entered on February 27, 1992. In the alternative, plaintiff will also move the Court for an order, pursuant to Federal Rule of Civil Procedure 59(a)(2), granting plaintiff a new trial of the above-entitled cause.\nOn July 28, 1992, the trial court denied Riley’s motion for amended findings. The court ruled that the post-trial document did not constitute a motion because the notice of motion did not “state with particularity the grounds therefor” as required by Fed. R.Civ.P. 7(b)(1). Although the court noted that Riley’s July 6, 1992 memorandum of law in support of the notice of motion met the specificity requirement of Rule 7(b)(1), the court nevertheless determined that because the memorandum was filed well outside the ten-day requirement of Rule 52(b) and Rule 59, the motion was untimely.\nRiley then filed a notice of appeal on August 28,1992, thirty days after the trial court ruled on her post-trial motion. If we conclude the motion was untimely, then the notice of appeal was untimely as well and this court is without jurisdiction to consider the appeal.\nIn Martinez v. Tminor, 556 F.2d 818 (7th Cir.1977), a party filed a skeletal document entitled “Motion to Amend, Alter or Vacate the Declaratory Judgment” within the ten-day time period. The Seventh Circuit held that the motion lacked reasonable specificity because it failed to cite even one ground for granting relief and ruled that it failed to toll the time to file an appeal. Id. at 820. Further, although acknowledging that a subsequently filed document that included specific grounds for relief satisfied the Rule 7(b) requirement, the court reasoned, “if a party could file a skeleton motion and later fill it in, the purpose of the time limitation would be defeated.” Id.\nEven if the notice of motion in the instant case were given a “broad construction” as Riley urges, this document would not satisfy the requirements of Rule 7(b). The notice of motion is obviously defective on its face for failure to comply with the requirement of Rule 7(b)(1). Such a defect might be more easily excused if the document even closely resembled a motion. However, overlooking the defect of this document would only serve to whittle away at the rules and ultimately render them meaningless and unenforceable. See Bartholomew v. Port, 309 F.Supp. 1340, 1344 (E.D.Wis.1970).\nWe also reject Riley’s argument that Rule 7.1 of the Local Rules of the United States District Court for the District of Minnesota controls the filing requirements of the post-trial motion in this case. Rule 7.1 requires a moving party to file copies of, among other things, a notice of motion, a motion, a proposed order and a memorandum of law in support of a nondispositive motion at least 14 days prior to the hearing. This local rule, however, is not inconsistent with the specificity requirement of Federal Rule 7(b)(1), but merely augments the filing requirement at the local level.\nThus, we conclude that the post-trial document does not satisfy the requirements of a motion under Rule 7(b)(1) and will not serve to toll the time in which Riley was required to file her appeal under Fed.R.App.P. 4(a)(1). Accordingly, Riley has failed to properly preserve her appeal and this court is now without jurisdiction to proceed.\n. Rule 7(b)(1) sets forth the required form of motions:\nAn application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.\nFed.R.Civ.P. 7(b)(1) (emphasis added).\n. Both Rules 52(b) and 59 require that the respective motions be served not later than 10 days after entry of the judgment. See Ped.R.Civ.P. 52(b), 59(b).", "type": "majority", "author": "ROSS, Senior Circuit Judge."}], "attorneys": ["Sonja R. Peterson, Minneapolis, MN, argued, for appellant.", "George A. Carroll, Minneapolis, MN, argued, for appellee."], "corrections": "", "head_matter": "Dixie Lee RILEY, Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, doing business as U.S. West Communications; Don Buxton; Judy Tinkham, Appellees.\nNo. 92-2987.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted June 17, 1993.\nDecided Aug. 13, 1993.\nSonja R. Peterson, Minneapolis, MN, argued, for appellant.\nGeorge A. Carroll, Minneapolis, MN, argued, for appellee.\nBefore JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge."} | JOHN R. GIBSON | ROSS | MORRIS SHEPPARD ARNOLD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 725 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,012 | UNITED STATES of America, Plaintiff-Appellee, v. Hobart Lee JOHNSON, Defendant-Appellant | United States v. Johnson | 1993-08-16 | No. 93-1119 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before JOHN R. GIBSON, Circuit Judge, LAY, Senior Circuit Judge, and FAGG, Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Hobart Lee JOHNSON, Defendant-Appellant."], "opinions": [{"text": "JOHN R. GIBSON, Circuit Judge.\nHobart Lee Johnson appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1988). He argues that the district court erred in excluding potentially exculpatory testimony as hearsay. We affirm.\nIn the early morning of February 10, 1992, narcotics officers had the Greyhound Bus Station in St. Paul, Minnesota under surveillance. The officers were acting on a tip from an informant, Tonya Smith. The officers observed Tonya Smith and Hobart Johnson get off of a bus arriving from Chicago together. Johnson was carrying a duffle bag. When a narcotics officer that Johnson recognized approached him, Johnson dropped the duffle bag and walked away. The officers stopped Johnson and asked him who owned the bag. Johnson responded, “What bag?” The officers then showed the bag to Johnson and repeated the question. Again, Johnson responded, “What bag?” The officers later found approximately 234 grams of powdered cocaine in the bag, which also contained women’s clothing and toiletries. Officers also found $2,000 in one hundred dollar bills hidden in the lining of Johnson’s coat. Johnson was charged with one count of possession with intent to distribute.\nAt trial, Johnson’s counsel argued that the cocaine actually belonged to Tonya Smith. Joanne Brush, Johnson’s sister, testified that Johnson and Tonya Smith were romantically involved, and that Smith’s husband, Jamal Karon, apparently became aware of the relationship. Brush began to testify about the contents of a telephone conversation between Smith and Jamal Karon that Brush overheard on another extension in January 1992. The government objected to the testimony as hearsay. Johnson’s counsel responded that the testimony was admissible as “impeaching Jamal and Tonya’s credibility,” and as an admission of a party opponent. See Fed. R.Evid. 801(d)(2), 806. The court ruled that the testimony was hearsay and inadmissible. Johnson’s counsel then made the following offer of proof to the court:\nMS. GEORGE: My offer of proof is as follows: That in January 1992, Joanne Brush received a phone call which was from Jamal. She got Tonya on the phone. She yelled downstairs, “Tonya, get on the phone.” Joanne then went upstairs, where she had answered the phone, and heard yelling going back and forth, and she heard Jamal say, “What are you doing over there? You are supposed to be with the children. You’re playing with me, Tonya.”\nIn response, Tonya said, “No, I’m not, Jamal.”\nJamal responded, “When are you coming home?”\nTonya responded, “I’m coming home now,” and Jamal responds “I’m going to set you up, I’m going to set up Hobart. I’m going to set you guys up. I’m going to get you good.”\nThat is where Joanne Brush hung up the telephone.\nJohnson relies on United States v. Partyka, 561 F.2d 118 (8th Cir.1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 773, 54 L.Ed.2d 785 (1978), and argues that the testimony should have been admitted under Fed.R.Evid. 803(3).\nWe will assume, without deciding, that the exclusion was error, because we are convinced that the exclusion of the testimony was harmless error.\nFirst, we recognize that the excluded testimony had little, if any, probative value. At most, it demonstrates Jamal Karon’s hostility towards Smith and Johnson, and his general intention to retaliate against them both in some way. The testimony contained no references to narcotics or to any criminal activity. There is no evidence as to what Jamal Karon meant by “I’m going to set you guys up.”\nSecond, the testimony would not have added any significant additional support to Johnson’s defense theory. In her closing argument, Johnson’s trial counsel asserted that Jamal Karon “had control over Tonya Smith” and, in retaliation for the affair between Smith and Johnson, “made” Smith “set [Johnson] up.” In considering this theory, the jury had before it testimony about the affair between Smith and Johnson, about Ka-ron’s knowledge of the affair, and about Ka-ron’s anger and jealousy. In addition, the government introduced evidence of two uncharged drug transactions involving Johnson, one in November 1991, and one in January 1992. On one of these occasions, Jamal Ka-ron had informed on Johnson. Thus, the jury already had before it evidence of Ka-ron’s motivation to inform on Johnson, and his willingness to actually do so. The excluded testimony is, under these circumstances, simply “cumulative to and corroborative of’ evidence already before the jury. See Partyka, 561 F.2d at 125.\nFinally, the testimony actually contradicted Johnson’s defense. The excluded testimony indicated that Karon was angry primarily at Smith, and that he intended to “set up” both Johnson and Smith. This is certainly inconsistent with Johnson’s theory that Smith and Karon “planned [the setup] together.”\nThe exclusion of this testimony did not prevent Johnson from presenting his defense, nor did it significantly affect the plausibility of that defense. The jury heard the evidence supporting the theory and chose not to believe that either Karon or Smith had set up Johnson. The court’s decision to exclude the testimony, if erroneous at all, was harmless error. See United States v. Roberts, 676 F.2d 1185, 1187-88 (8th Cir.), cert. denied, 459 U.S. 855, 103 S.Ct. 122, 74 L.Ed.2d 106 (1982).\nWe affirm Johnson’s conviction.\n. The Honorable David S. Doty, United States District Judge for the District of Minnesota.", "type": "majority", "author": "JOHN R. GIBSON, Circuit Judge."}], "attorneys": ["Virginia G. Villa, Minneapolis, MN, argued, for defendant-appellant.", "Nathan P. Patterson, Asst. U.S. Atty., Minneapolis, MN, argued, for plaintiff-appel-lee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Hobart Lee JOHNSON, Defendant-Appellant.\nNo. 93-1119.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted May 11, 1993.\nDecided Aug. 16, 1993.\nVirginia G. Villa, Minneapolis, MN, argued, for defendant-appellant.\nNathan P. Patterson, Asst. U.S. Atty., Minneapolis, MN, argued, for plaintiff-appel-lee.\nBefore JOHN R. GIBSON, Circuit Judge, LAY, Senior Circuit Judge, and FAGG, Circuit Judge."} | JOHN R. GIBSON | LAY | FAGG | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 727 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,032 | UNITED STATES of America, Appellee, v. Mason SCHAU, Appellant. UNITED STATES of America, Appellee, v. Monte SCHAU, Appellant | United States v. Schau | 1993-08-19 | Nos. 93-1951, 93-2024 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before FAGG, BOWMAN, and LOKEN, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Mason SCHAU, Appellant. UNITED STATES of America, Appellee, v. Monte SCHAU, Appellant."], "opinions": [{"text": "PER CURIAM.\nMason Schau and Monte Schau appeal their consecutive sentences for bank robbery by use of a dangerous weapon and possession of a firearm during the commission of a crime of violence. See 18 U.S.C. §§ 2, 924(c), 2113(d) (1988). We affirm.\nBoth defendants contend the district court should not have increased their base offense levels for physically restraining their victims because they did not actually bind, tie, or lock up the victims. See U.S.S.G. §§ 2B3.1(b)(4)(B), 1B1.1, comment (n.1(i)) (Nov.1992). We disagree. While carrying firearms, the defendants ordered the victims into the bank vault, attempted to lock the vault door, and wedged a chair against the vault door when it would not lock. Even though the vault door was not locked and the victims were able to free themselves easily, the victims were forced to comply. Thus, we conclude the district court properly increased the defendants’ base offense levels. See United States v. Kirtley, 986 F.2d 285, 286 (8th Cir.1993) (per curiam) (armed bank robber physically restrained tellers by ordering them to tie their own feet together even though tellers later easily freed themselves); United States v. Doubet, 969 F.2d 341, 346-47 (7th Cir.1992) (armed bank robber physically restrained tellers by ordering them into an isolated, unlocked room).\nBoth defendants also contend the increase in their base offense levels for physically restraining their victims while brandishing firearms constitutes impermissible double-counting with § 924(e). Because the defendants did not raise this issue below, we will not reverse unless there is plain error resulting in a miscarriage of justice. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir.1993). The sentencing guidelines state the specific offense characteristics under section 2B3.1(b)(2)(A)-(F) should not be applied when a sentence is imposed under § 924(c) in conjunction with another sentence for an underlying offense, see U.S.S.G. § 2K2.4, comment (n.2) (Nov.1992), but the guidelines do not mention the specific offense characteristics under section 2B3.1(b)(4)(B). Here, the district court increased the defendants’ base offense levels because they restrained the victims in the vault to facilitate their offense, not because the defendants possessed firearms during the robbery. Thus, we conclude the district court did not commit plain error.\nMonte Schau claims the district court should have given him a three-level rather than a two-level decrease in his sentence for acceptance of responsibility based on his confessions to the government. See U.S.S.G. § 3E1.1 (Nov.1992). We give great deference to a district court’s decision about acceptance of responsibility and will reverse the decision only for clear error. United States v. Aldridge, 985 F.2d 960, 962 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993). The record shows that the authorities had recovered the stolen money and the government had already prepared for trial before Monte Schau confessed and pleaded guilty. Because Monte Schau did not timely assist the “authorities in the investigation or prosecution of his own misconduct,” U.S.S.G. § 3El.l(b), we conclude the district court did not commit clear error in denying the additional one-level decrease.\nAccordingly, we affirm.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["Martha M. McMill, Sioux City, IA, argued, for Mason Schau.", "Robert L. Stenander, Sioux City, IA, argued, for Monte Schau.", "Michael M. Hobart, Sioux City, IA, argued, for U.S."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Mason SCHAU, Appellant. UNITED STATES of America, Appellee, v. Monte SCHAU, Appellant.\nNos. 93-1951, 93-2024.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Aug. 4, 1993.\nDecided Aug. 19, 1993.\nMartha M. McMill, Sioux City, IA, argued, for Mason Schau.\nRobert L. Stenander, Sioux City, IA, argued, for Monte Schau.\nMichael M. Hobart, Sioux City, IA, argued, for U.S.\nBefore FAGG, BOWMAN, and LOKEN, Circuit Judges."} | FAGG | BOWMAN | LOKEN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 729 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,061 | UNITED STATES of America, Appellee, v. Lawrence A. WAJDA, Appellant | United States v. Wajda | 1993-08-20 | No. 92-3752 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Lawrence A. WAJDA, Appellant."], "opinions": [{"text": "PER CURIAM.\nLawrence A. Wajda appeals the concurrent thirty-month sentences imposed on him by the district court following his guilty pleas to possessing cocaine with intent to distribute and to distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(e). He argues the district court erred in calculating his criminal history category. We affirm.\nIn calculating Wajda’s criminal history category, the PSR assessed seven criminal history points: one point for a 1982 fourth-degree-assault conviction in a county court in Minnesota; three points for 1986 drug convictions in federal district court in Minnesota; two points for committing the instant offenses while on parole, see U.S.S.G. § 4Al.l(d); and one point for committing the instant offenses less than two years following release from imprisonment, see U.S.S.G. § 4Al.l(e). With a total offense level of 15 and a criminal history category of IV, the Guidelines range was 30 to 37 months. The district court adopted the provisions of the PSR and sentenced Wajda to concurrent thirty-month prison terms and concurrent six-year supervised release terms.\nWajda argues on appeal that the district court erred in assessing one criminal history point for the 1982 assault charge without conducting an evidentiary hearing to determine whether such charge actually resulted in a conviction or was dismissed. Wajda also argues that the district court erred in assessing one criminal history point for committing the instant offense less than two years following his release from imprisonment. Waj-da asserts that he should have been released on parole on May 12, 1990 (more than two years prior to the commission of the instant offense on June 10, 1992), but because of the government’s illegal conduct, he was not released until November 1990, after the United States District Court ordered his release. He argues that the government should not now be allowed to enhance his punishment for a guideline factor that would not have existed but for the government’s unlawful conduct.\nThe district court did not err in assessing one criminal history point for the 1982 assault conviction without first conducting an evidentiary hearing to determine whether the charge actually resulted in a conviction. A district court is not required to make a factual finding of any matter contained in the PSR unless the defendant objects to such matter with “specificity and clarity.” United States v. Toirac, 917 F.2d 11, 13 (8th Cir.1990). Here, the attorney who represented Wajda in the district court originally raised the issue in a letter to the probation officer. He later told the same probation officer, however, that he would not be filing a “position paper” with the court because he had no objections to the PSR. At the sentencing hearing, Wajda’s attorney told the district court that he saw the microfilm of the document on which the probation officer had based the one-point assessment and he concluded that the probation officer was correct. Although Wajda’s attorney also told the district court that Wajda had papers in his possession showing that a parole board had found differently than the probation officer, he did not produce any documentation of the parole board’s action. Wajda’s objection to the one-point assessment (if one was made at all) was not clear and specific.\nBecause Wajda failed to object properly to the one-point assessment, we lack authority to consider the question unless “(1) the district court committed an error, i.e., deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the error affected [Wajda’s] substantial rights.” United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc). Wajda has failed to show that the district court committed an error. See United States v. Ragan, 952 F.2d 1049, 1049 (8th Cir.1992) (per curiam) (burden of proving plain error is on party asserting it). The PSR indicated that the assault charge resulted in a conviction: Wajda pleaded guilty and received a sentence that was stayed for one year. Waj-da’s attorney told the district court that he saw the document on which the probation officer based her report and that the probation officer was correct. Wajda has not produced any evidence (in the form of an affidavit from the attorney involved in the 1982 case, a parole board decision, or otherwise) showing that the document relied on by the probation officer was incorrect and that the assault charge was actually dismissed.\nBecause Wajda failed to object to the PSR’s assessment of one criminal history point for committing the instant offenses less than two years following his release on parole, he likewise must show that the district court’s assessment of that point was plain eiTor affecting his substantial rights. Wajda has failed to show plain error. First, Wajda provided no documentation showing, as he asserts in his brief, that a proper application of the Parole Guidelines would have resulted in his release more than two years prior to the date he committed the instant offense. Second, even if he had made such a showing, it would not amount to plain error. The Sentencing Commission’s purpose in promulgating section 4Al.l(e) was to punish more severely those who commit crimes after recent release from confinement for a prior offense. See U.S.S.G. § 4A1.1, comment, (backg’d); United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir.1990) (per curiam). Because the focus of section 4Al.l(e) is on the “recency” of the commission of the instant offenses, rather than on the length of confinement for the past offenses, Wajda’s claim that he should have been released on parole sooner than he was is not relevant. Wajda’s actual release date is the proper point from which the “recency” factor is calculated.\n. The Honorable Harry H. MacLaughlin, Senior United States District Judge for the District of Minnesota.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["Daniel M. Scott, Federal Public Defender, of Minneapolis, MN, argued, for appellant.", "Elizabeth L. De La Vega, Asst. U.S. Atty., Minneapolis, MN, argued (Francis X. Her-mann, U.S. Atty., on the brief), for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Lawrence A. WAJDA, Appellant.\nNo. 92-3752.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted July 21, 1993.\nDecided Aug. 20, 1993.\nRehearing Denied Sept. 23, 1993.\nDaniel M. Scott, Federal Public Defender, of Minneapolis, MN, argued, for appellant.\nElizabeth L. De La Vega, Asst. U.S. Atty., Minneapolis, MN, argued (Francis X. Her-mann, U.S. Atty., on the brief), for appellee.\nBefore McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges."} | McMILLIAN | HANSEN | MORRIS SHEPPARD ARNOLD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 731 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,100 | UNITED STATES of America, Appellee, v. Daniel Lee WATSON, Appellant | United States v. Watson | 1993-08-23 | No. 92-3844 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before FAGG, BOWMAN and LOKEN, Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Daniel Lee WATSON, Appellant."], "opinions": [{"text": "PER CURIAM.\nDaniel Lee Watson appeals his conviction on nineteen counts of aiding and assisting the preparation of false income tax returns. We affirm.\nA grand jury returned a twenty-count indictment against Watson, a certified public accountant, charging him with willfully aiding, assisting, and advising in the preparation of United States Individual Income Tax Returns, Forms 1040, and in the presentation of such forms to the Internal Revenue Service, knowing that the forms were false and fraudulent as to material matters, in violation of 26 U.S.C. § 7206(2) (1988).\nPrior to trial, the District Court dismissed count twenty of the indictment and the remainder of the charges were tried to a jury which found Watson guilty on all counts. The court sentenced Watson to 51 months in prison. On appeal, Watson argues the District Court erred by (1) denying his numerous motions to dismiss the indictment for lack of jurisdiction; (2) refusing to allow him to exercise his Sixth Amendment right to self-representation; and (3) placing him in custody for the purpose of a mental examination. Watson also contends that he was denied his due process right to an impartial judge because, during the criminal proceedings, he sued Judge Waters in state court.\nWatson’s challenge to the District Court’s jurisdiction is meritless. As the District Court correctly observed, the government charged Watson with violating 26 U.S.C. § 7206(2), a law of the United States, and 18 U.S.C. § 3231 (1988) provides district courts with original jurisdiction of all violations of federal law. See United States v. Drefke, 707 F.2d 978, 980-81 (8th Cir.) (per curiam), cert. denied, 464 U.S. 942, 104 S.Ct. 359, 78 L.Ed.2d 321 (1983). Watson also maintains that he is not a citizen of the United States because he has never lived or worked in the District of Columbia or the territories of the United States. Instead, Watson claims to be a free citizen of the State of Oklahoma. We recently rejected a similar argument in the civil context in United States v. Gerads, 999 F.2d 1255, 1256-57 (8th Cir.1993) (per curiam). See also United States v. Schmitt, 784 F.2d 880, 882 (8th Cir.1986).\nWatson’s Sixth Amendment claim is.equally meritless. Under Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975), a criminal defendant has a constitutional right to represent himself. “To forego the assistance of an attorney [and exercise the right to self-representation], the accused must make a voluntary, knowing, and intelligent waiver of his right to counsel.” Berry v. Lockhart, 873 F.2d 1168, 1170 (8th Cir.1989). Here, the District Court initially determined that Watson understood the nature of the charges against him and had validly waived his right to counsel. As the case progressed, however, the court became convinced by the numerous documents Watson filed that he did not understand the charges and could not represent himself competently. Having reached that conclusion, the District Court did not abuse its discretion in appointing counsel to represent Watson at government expense.\nWatson also contends that the District Court violated his rights by “incarcerating” him for a mental competency examination. This claim lacks merit as well. The District Court ordered the competency examination pursuant to defense counsel’s motion and 18 U.S.C. § 4241 (1988), which provides for such examinations, after Watson refused to assist counsel and failed to appear for trial. Finally, we reject Watson’s argument that, because Judge Waters continued to preside in this case after Watson sued him in state court, Watson was denied his due process right to an impartial judge. “A judge is not disqualified by a litigant’s suit or threatened suit against him.” United States v. Studley, 783 F.2d 934, 940 (9th Cir.1986); see Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir.) (per curiam), cert. denied, 419 U.S. 861, 95 S.Ct. 113, 42 L.Ed.2d 97 (1974).\nAccordingly, we affirm.\n. The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas.", "type": "majority", "author": "PER CURIAM."}], "attorneys": ["Daniel Lee Watson, pro se.", "Matthew W. Fleming, Asst. U.S. Atty., Fort Smith, AR, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Daniel Lee WATSON, Appellant.\nNo. 92-3844.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted Aug. 18, 1993.\nDecided Aug. 23, 1993.\nDaniel Lee Watson, pro se.\nMatthew W. Fleming, Asst. U.S. Atty., Fort Smith, AR, for appellee.\nBefore FAGG, BOWMAN and LOKEN, Circuit Judges."} | FAGG | BOWMAN | LOKEN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 733 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,152 | UNITED STATES of America, Appellee, v. Timothy A. GAYLES, also known as Timothy Moore, also known as Charles Lee Moore, Appellant | United States v. Gayles | 1993-08-25 | No. 92-3104 | United States Court of Appeals for the Eighth Circuit | {"judges": ["Before FAGG, Circuit Judge, and LAY and HEANEY, Senior Circuit Judges."], "parties": ["UNITED STATES of America, Appellee, v. Timothy A. GAYLES, also known as Timothy Moore, also known as Charles Lee Moore, Appellant."], "opinions": [{"text": "FAGG, Circuit Judge.\nTimothy A. Gayles appeals his conviction and sentence for kidnaping Maureen Shook in October 1991. See 18 U.S.C. § 1201 (1988). We affirm Gayles’s conviction, but remand for resentencing.\nThis case arises from the abusive relationship between Gayles and Shook. The couple met in 1984 and had two children together. During the course of their relationship, Gayles beat Shook and she obtained restraining orders. After Shook got help at a battered women’s shelter for the fourth time, she decided to break off her relationship with Gayles. Shook refused to take Gayles’s telephone calls and boarded up her apartment so he could not break in. Nevertheless, Gayles confronted Shook inside a grocery store while she was shopping with her roommate and younger son. Gayles talked with Shook then left the store. When Shook approached her car in the parking lot, however, Gayles ran up to her and grabbed her by her neck and hair. Shook threw her car keys to her roommate, but Gayles retrieved the keys and pushed Shook into her car. Their child was in the back seat. Gayles punched Shook several times, hitting her in the face, back of the head, lips, and nose. One blow knocked Shook’s glasses off her face and bent them. Gayles sped out of the parking lot. He told Shook he was going to hit her and put her into the hospital. Gayles also stated he was taking her to Chicago and he was going to kill himself. In an effort to intimidate Shook, Gayles told her a story about a man who had killed his child because he was angry with his wife. Gayles did not stop the car until they crossed the state line into Wisconsin. Gayles then stopped at a gas station and told Shook to clean the blood off her face. He later stopped at a grocery store and, leery of leaving Shook in the car alone, took her inside. Once Shook saw several male employees inside the store, she decided to try to escape. She ran down the aisles screaming for help, with Gayles in hot pursuit. According to store employees, she looked terrified. The employees tried to stop Gayles, but he eluded them and got away in Shook’s car.\nDuring the first two days of the trial, the jury heard the testimony of Shook and two government witnesses who saw the initial abduction. Between the second and third days of trial, the judge became ill. Another judge familiarized himself with the proceedings and stated his intent to proceed with the trial under Federal Rule of Criminal Procedure 25. Gayles moved for a one-day continuance to see if the original judge would recover and return. The new judge denied Gayles’s motion for a continuance because he was satisfied the original judge would not be able to return within a day. The new judge also denied Gayles’s motion for a mistrial. Two days later, testimony ended. A jury found Gayles guilty of kidnaping. Because Gayles was a career offender under the sentencing guidelines, the minimum guidelines sentence was thirty years’ imprisonment. The district court imposed the minimum sentence. A few days after sentencing, Gayles and Shook married. Gayles moved for a new trial based on Shook’s alleged recantation of her trial testimony. Finding the information contained in Shook’s affidavits probably would not result in an acquittal on a new trial, the original judge denied the motion and Gayles’s request for a hearing on the motion.\nGayles asserts the district court abused its discretion in denying his motion for a new trial, based on Shook’s “recantation of her testimony regarding the involuntariness of her association with [Gayles] on the day of the alleged kidnapping.” See United States v. McCabe, 812 F.2d 1060, 1061 (8th Cir.) (victim’s lack of consent is a fundamental element of kidnaping), cert. denied, 484 U.S. 832, 108 S.Ct. 108, 98 L.Ed.2d 67 (1987). A motion for a new trial based on recanted testimony should be granted if, among other things, the recantation would probably produce an acquittal on a new trial. United States v. Provost, 921 F.2d 163, 164 (8th Cir.1990) (per curiam), cert. denied, — U.S. -, 111 S.Ct. 1603, 113 L.Ed.2d 666 (1991); Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir.1991).\nGayles mischaracterizes the content of Shook’s affidavits. Shook does not state she willingly went with Gayles to Wisconsin and does not contradict her trial testimony about what happened. Instead, Shook states in her first affidavit that she does not believe the events she testified about at trial establish a kidnaping and that she thinks Gayles’s sentence is too long. Shook’s subjective beliefs about the appropriateness of the charge or sentence, however, are irrelevant. Shook states in a supplementary affidavit that after she told Gayles she wanted to go back to Minnesota, Gayles agreed to return. By this time, however, Gayles had already taken Shook into Wisconsin without her consent, and thus, the crime was already complete. Shook also states in the supplementary affidavit that Gayles never held her for ransom. Ransom, however, is not a requirement of the kidnaping statute, see 18 U.S.C. § 1201 (1988) (unlawfully seized person must be held “for ransom or reward or otherwise”), and Gayles was not charged with holding Shook for ransom. See McCabe, 812 F.2d at 1062-63 (Congress added “or otherwise” to extend the statute to persons held “for any other reason”). In short, the jury was properly instructed about the charge and nothing in the posttrial submissions casts doubt on the jury’s finding that Gayles took Shook against her will from Minnesota to Wisconsin for his own purposes. Thus, the information in Shook’s affidavits would probably not produce an acquittal on a new trial.\nEven if Shook had said she consented to go to Wisconsin with Gayles, disinterested witnesses testified about Shook’s abduction by Gayles from the grocery store in Minnesota, her terror in trying to escape in the Wisconsin store, and her bruised face. Thus, a statement by Shook that she voluntarily went to Wisconsin with Gayles would be inconsistent with the independent evidence in this case.\nWe disagree with Gayles’s assertion that the district court abused its discretion in denying him a hearing on his new trial motion. A new trial motion based on recanted testimony can usually be decided without a hearing. United States v. Provost, 969 F.2d 617, 619 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 986, 122 L.Ed.2d 139 (1993). The judge who decided Gayles’s new trial motion heard Shook testify at.trial, and thus, the judge did not abuse his discretion in declining to conduct a hearing. Id. at 619-20.\nGayles also contends the district court should have granted his motion for a mistrial because the original judge became ill during the trial and another judge was substituted. If a trial judge becomes sick and is unable to proceed after a criminal jury trial has started, another judge may proceed with and finish the trial if the judge certifies familiarity with the record. Fed.R.Crim.P. 26(a). In our view, the plain language of Rule 25 permits the substitution in this case. See United States v. Sisk, 629 F.2d 1174, 1179 (6th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981). The first trial judge became seriously ill and would not be able to return to the courtroom following a reasonable continuance. The new judge certified his familiarity with the record, and went out of his way to avoid potential problems that might arise because of the substitution. Even if the substitution were erroneous, it would be harmless because Gayles does not assert how the substitution prejudiced him. Gayles appeals no eviden-tiary decisions, and the original judge, who heard Shook’s testimony, ruled on Gayles’s motion for a new trial based on Shook’s alleged recantation.\nNext, Gayles asserts his right to be present at all stages of his trial was violated when the jury was selected in his absence from the courtroom during a lunch recess. See Fed.R.Crim.P. 43(a). We disagree. Gayles was present in the courtroom while the potential jurors were questioned. Although Gayles was absent later when his attorney made his strikes over the lunch hour, the cover of the jury voir dire transcript shows Gayles was present in the courtroom when the clerk gave the strikes effect by reading off the list of jurors who had not been stricken. Gayles does not present any affidavit to the contrary. Under controlling precedent, Gayles was sufficiently present at the jury’s impaneling to satisfy Rule 43 and the Constitution. United States v. Chrisco, 493 F.2d 232, 236-37 (8th Cir.), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974).\nGayles contends his right to a fair trial was prejudiced when a juror saw him in shackles in an area near the courtroom during jury deliberations and the district court held no ‘ hearing to determine the impact. Gayles forfeited this issue by explicitly rejecting the district court’s invitation to move for a mistrial or a hearing. We thus lack discretion to reverse on this ground unless the district court made an obvious mistake that prejudiced Gayles. United States v. Olano, — U.S. -, —-—, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993); Fed. R.Crim.P. 52(b). We do not believe the district court committed an obvious mistake. Further, when a juror’s view of a defendant in custody is brief, inadvertent, and outside the courtroom, prejudice to the defendant is slight. United States v. Fahnbidleh, 748 F.2d 473, 477 (8th Cir.1984), cert. denied, 471 U.S. 1139, 105 S.Ct. 2685, 86 L.Ed.2d 702 (1985). Even if we believed the district court made an obvious mistake that prejudiced Gayles, we would not exercise our remedial discretion to correct the error given Gayles’s affirmative decision not to move for a mistrial or hearing in the district court. See Olano, — U.S. at -, 113 S.Ct. at 1778-79; United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.1991).\nChallenging his sentence, Gayles asserts the district court abused its discretion in denying his motion for a downward departure from the applicable guidelines range. Specifically, Gayles contends the district court should have departed downward because his criminal history category exaggerates the gravity of his earlier criminal activities. See U.S.S.G. § 4A1.3. The district court assigned Gayles the criminal history category for career offenders, see id. § 4B1.1, relying on Gayles’s 1979 conviction for armed robbery and related crimes committed during the same criminal episode when he was 21 years old, and a recent state drug conviction for which he served less than six months in prison. Most of Gayles’s other skirmishes with the law were misdemeanor offenses.\nUnder U.S.S.G. § 4A1.3, the district court may depart downward from an otherwise applicable sentencing range when reliable information shows the defendant’s criminal history category significantly over-represents the seriousness of the defendant’s past criminal conduct. United States v. Brown, 903 F.2d 540, 544-45 (8th Cir.1990). A district court may depart downward under § 4A1.3 even if the defendant is a career offender under § 4B1.1. Id. at 545. In deciding whether a departure under § 4A1.3 is justified, a district court considers the historical facts of the defendant’s criminal career. United States v. Senior, 935 F.2d 149, 151 (8th Cir.1991); see United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991); U.S.S.G. § 4A1.3(a)-(e).\nAt Gayles’s sentencing hearing, the district court did not acknowledge its power to depart from the applicable guidelines range under U.S.S.G. § 4A1.3 or address Gayles’s argument for departure under this section. The district court’s oversight is entirely understandable because Gayles only raised the § 4A1.3 issue obliquely in a written “Position with Respect to Sentencing” filed with the court ten minutes before the sentencing hearing was scheduled to begin. Gayles argued at the sentencing hearing for a departure based on the unusual facts of the case, but did not argue for a departure based on § 4A1.3. Because the district court did not realize Gayles was seeking a departure under § 4A1.3, we believe we should remand this case to give the district court an opportunity to consider whether a downward departure under § 4A1.3 is appropriate. See Brown, 903 F.2d at 545.\nAfter the parties filed their briefs and addenda, the Government moved to strike part of Gayles’s addendum (containing a newspaper interview with Shook about the events underlying the case) and the parts of Gayles’s briefs referring to information contained in the interview. When reviewing the denial of a new trial motion, we do not consider affidavits outside the original district court record. United States v. Menard, 939 F.2d 599, 600 (8th Cir.1991) (per curiam). Here, the article was published after the district court denied Gayles’s new trial motion and thus is not part of the district court record. In addition, Shook did not swear to the information. Accordingly, we grant the Government’s motions to strike.\nWe affirm Gayles’s conviction, but vacate his sentence and remand for resentencing.", "type": "majority", "author": "FAGG, Circuit Judge."}, {"text": "LAY, Senior Circuit Judge,\nconcurring.\nI respectfully concur in the judgment of the majority. I write separately concerning the thirty-year sentence the defendant has received.\nThis is a state domestic abuse case that a federal prosecutor turned into a federal kidnapping charge because a distraught and abusive husband crossed state lines with his wife and mother of his two children. The evidence shows that after the couple crossed the border from Minnesota to Wisconsin, Gayles’s wife persuaded the defendant to voluntarily drive her back to Minnesota.\nGayles now faces thirty years in prison essentially for physically abusing his wife. His life is ruined, his wife and two children are directly affected by his imprisonment. The total cost to the public to pursue this interminable imprisonment will amount to approximately one million dollars.\nMuch of Gayles’s 30-year sentence is attributable to the trial judge’s decision to classify Gayles as a career offender. Without the career offender designation, the Guidelines recommend a sentence of between 100 and 125 months — -roughly a 20-year reduction in sentence. The Guidelines define a career offender as a defendant with at least two prior felony convictions involving either a crime of violence or a drug offense. U.S.S.G. § 4B1.1. Gayles concedes he had two such offenses: a 1979 burglary and unlawful restraint conviction for a crime committed when Gayles was 21 years old and a more recent state drug conviction for which he served less than one year in jail.\nAs the majority states, the trial court never considered Gayles’s arguments that the career criminal status overrepresents the seriousness of his criminal history. I write separately to emphasize our prior opinions that hold that trial judges may depart downward in career criminal cases because the “guidelines clearly allow for the possibility of departure where the defendant’s conduct is exaggerated by the criminal history score.” United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990).\nIn United States v. Senior, 935 F.2d 149 (8th Cir.1991), we approved a downward departure under section 4A1.3 based on circumstances that are remarkably similar to this case. See also United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991). In Senior, we observed that the then 27-year-old defendant was only 20 years old when he committed his first predicate offenses — a series of robberies. 935 F.2d at 150-51. Here, Gayles was 21 when he committed the burglary that became the first predicate offense in his criminal history designation. Gayles is now 35. In Senior, we also relied on the short sentence the defendant received for his second predicate offense — drug charges for which he served about eighteen months of a six-year sentence before being paroled. Id. We said this sentence revealed “the state’s assessment of the seriousness of Senior’s crimes as reflected by the state courts’ handling of sentencing and by the length of time Senior actually served.” Id. Gayles’s second predicate offense also was a drug offense. He served less than one year in jail on this charge. This too reflects the seriousness with which the State of Minnesota treated this offense. Although Gayles has had many other skirmishes with the law, most were misdemeanor offenses that do not qualify him as a career criminal. U.S.S.G. § 4B1.1; United States v. Hester, 917 F.2d 1083, 1084 (8th Cir.1990).\nOn the basis of the above discussion, I join in the remand to vacate the sentence for the trial court to reconsider defendant’s sentence under section 4A1.3 of the Federal Sentencing Guidelines.\n. The fundamental issue in a federal kidnapping case is whether the alleged victim consented to being transported across state lines. United States v. Toledo, 985 F.2d 1462, 1465-68 (10th Cir.1993), petition for cert. filed, (U.S. July 7, 1993) (No. 93-5151); United States v. Chancey, 715 F.2d 543, 546 (11th Cir.1983). The Supreme Court made clear in Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198 (1946), that \"the very essence of the crime of kidnapping\" is “the involuntariness of seizure and detention.” Id. at 464, 66 S.Ct. at 237. The Court stated:\nThe statute was drawn in 1932 against a background of organized violence. Kidnaping by that time had become an epidemic in the United States.... “Law enforcement authorities, lacking coordination, with no uniform system of intercommunication and restricted in authority to activities in their own jurisdiction, found themselves laughed at by criminals bound by no such inhibitions or restrictions ... The procedure was simple — a man would be kidnapped in one State and whisked into another, and still another, his captors knowing full well that the police in the jurisdiction where the crime was committed had no authority as far as the State of confinement and concealment was concerned.”\nIt was to assist the states in stamping out this growing and sinister menace of kidnaping that the Federal Kidnaping Act was designed. Its proponents recognized that where victims were transported across state lines only the federal government had the power to disregard such barriers in pursuing the captors.\nChatwin, 326 U.S. at 462-63, 66 S.Ct. at 236-37 (citations omitted).\n. Gayles’s physical abuse of his wife is not to be condoned. According to the Minnesota Sentencing Guidelines, if he were convicted of first degree sexual assault, kidnapping with great bodily harm, or first degree assault (his crime does not necessarily fit these offenses) he would have an offense severity level of VIII. His criminal history score would be 6 or more. On the Minnesota Sentencing Guidelines Grid these numbers would give him a presumptive sentence of between 153 and 163 months. His federal sentence is 360 months.\n. Section 4A1.3 is a policy statement relating to the Adequacy of Criminal History Category. It includes the following statement:\nThere may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure form the guidelines.\n. The Guidelines also state that the defendant must be at least 18 years of age at the time of the current offense; in addition, the current offense must be a felony conviction for a crime of violence or a drug offense. U.S.S.G. § 4B1.1.\n. Some of the confusion relating to the defendant’s objections to the overstatement of his criminal offender status arises because of the withdrawal of defendant’s first counsel, James Ostgard, and the appointment of replacement counsel, Peter Erlinder. Before Erlinder entered the case and well before the sentencing hearing, Ostgard objected to the proposed pretrial sentence report submitted by the Probation Office. In that objection counsel specifically addressed the overstatement and use of the career offender status. The probation officer recognized the objection relating to the overstatement of the defendant’s criminal history and responded:\nThe information contained in this section of the report assists the Court to evaluate the adequacy of the criminal history category in reflecting the seriousness of the offender's past criminal behavior and in determining whether a departure may he warranted.\n(Emphasis added). Gayles’s second attorney submitted a position paper 10 minutes before commencement of the sentencing hearing that further addressed the downward departure. The submission argued that the career criminal status “overstates the seriousness of Mr. Gayles’ criminal history” because ”[b]y any standard, Mr. Gayles' convictions over the past 10 years have not been of the nature that should result in Career Criminal status.”\nThe trial judge, however, treated the arguments on overstatement of criminal history as a challenge to the 30-year sentence under the Eighth Amendment to the U.S. Constitution. The two analyses are quite different. The Eighth Amendment analysis cited by the trial judge looks at the sentence in relation to the crime and permits, as the trial judge correctly observed, only a “narrow review to determine whether the sentence is grossly disproportionate to the crime.” Section 4A1.3 of the Guidelines looks only to the defendant's criminal history to determine if the score significantly underrepresents or overrepresents the defendant’s record and likelihood of recidivism; it does not involve a weighing of sentence and crime.", "type": "concurrence", "author": "LAY, Senior Circuit Judge,"}], "attorneys": ["C. Peter Erlinder, St. Paul, MN, argued for appellant.", "Joan Ericksen Lancaster, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Appellee, v. Timothy A. GAYLES, also known as Timothy Moore, also known as Charles Lee Moore, Appellant.\nNo. 92-3104.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted March 17, 1993.\nDecided Aug. 25, 1993.\nC. Peter Erlinder, St. Paul, MN, argued for appellant.\nJoan Ericksen Lancaster, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.\nBefore FAGG, Circuit Judge, and LAY and HEANEY, Senior Circuit Judges."} | FAGG | LAY | HEANEY | 1 | 2 | 1 | 0 | 1 | 0 | 1 F.3d 735 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,203 | UNITED STATES of America, Plaintiff-Appellee, v. John Edward SPENCER, Defendant-Appellant | United States v. Spencer | 1992-12-16 | No. 91-10051 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: POOLE, REINHARDT and FERNANDEZ, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. John Edward SPENCER, Defendant-Appellant."], "opinions": [{"text": "ORDER\nThe opinion filed December 16, 1992, slip op. 14547, and appearing at 981 F.2d 1083 (9th Cir.1992) is amended as follows:\n[Editor’s Note: Amendments have been incorporated into published opinion.]\nWith these amendments, the panel has voted unanimously to deny the petition for rehearing.\nThe full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.\nThe petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.\nOPINION\nPOOLE, Circuit Judge:\nJohn Edward Spencer appeals his conviction for being a convicted felon in possession of a firearm. Spencer argues that the district court (1) erroneously denied him the opportunity to present evidence that another individual who owned the vehicle at issue in this case was found with a gun under the driver seat of another vehicle several days after Spencer’s arrest; (2) should have suppressed evidence obtained when the police stopped the car in which Spencer was a passenger and frisked him; and (3) improperly commented on the evidence presented at trial. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm.\nFACTS\nOn April 6, 1990, at approximately 1:00 A.M., Phoenix police officer Willie Collins stopped a motor vehicle operating without functioning headlights. Defendant Spencer was a passenger in the front seat of the car. When Officer Collins asked the driver for her license, the driver informed Officer Collins that she did not have one and that the car did not belong to her. She informed Officer Collins that the car belonged to an acquaintance named Jim Miller.\nAt about the same time, Officer Fred Lozier, pulling alongside the stopped vehicle, observed the defendant bend forward in his seat. Upon Officer Collins’s request for identification, Spencer presented a Maricopa County jail identification card. After Officer Lozier informed Officer Collins of what he had seen, Officer Collins took Spencer’s identification card and retreated to her patrol car to run a computer check on the defendant and on the car’s license plate. The computer inquiry revealed that the defendant had previously been convicted of assault with a deadly weapon and that the license plate was not registered to the stopped vehicle. The computer did not reveal any outstanding warrants against Spencer.\nOfficer Sprouse then arrived on the scene and informed Officer Collins that he had seen the same vehicle the night before being driven by a different person and adorned with a different license plate. After a short discussion, the three officers approached the vehicle and asked the driver and Spencer to step outside. After Spencer exited the vehicle, Officer Lozier noticed that he was wearing a leather jacket and then patted Spencer down. The officer slid his hands underneath Spencer’s jacket and discovered an empty shoulder holster. Officer Lozier asked Spencer where the gun was and Spencer replied that he did not have one and was not permitted to carry one.\nOfficer Collins then searched the front passenger area of the car. She found underneath the passenger side seat a fully loaded .44 caliber Sturm Ruger revolver. After checking to see if the gun fit inside the holster worn by the defendant, the officers arrested Spencer on charges of carrying a concealed weapon. The police later determined that the car in fact belonged to Miller, who was arrested five days after Spencer on charges of automobile theft. At the time of his arrest the police found a handgun under the driver side seat of the car in which Miller had been traveling.\nAt trial, the district court refused to allow Spencer to introduce evidence of Miller’s arrest and of the gun found in the car Miller had been driving. The court did, however, allow the woman driver of the car in which Spencer had been a passenger to testify that Miller’s gun had been found by the police when they arrested him, and admitted evidence tending to show that the holster was not large enough to fit the Ruger found underneath Spencer’s car seat.\nDuring closing arguments, Spencer’s attorney asserted that Miller owned a gun similar to the one found in the car the night Spencer was arrested. The district court sustained the prosecutor’s objection on the ground that defense counsel was arguing facts not in evidence, but did not ask the jury to disregard the comment. The district judge stated: “I think that is correct. I don’t recall that testimony. But again the jury has heard the evidence. Let’s proceed.” Spencer’s attorney did not object to the judge’s response to the prosecutor’s objection. Spencer was convicted of violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit convicted felons from being in possession of a firearm, and was sentenced to twenty-one months in federal prison. Spencer filed a timely notice of appeal on January 15, 1991.\nDISCUSSION\nA. Suppression of evidence of Miller’s gun\nSpencer contends that the trial judge should have admitted police officers’ testimony and police reports detailing Miller’s arrest and the seizure of a gun from the car that Miller was driving. Fed.R.Evid. 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We review the district court’s evidentiary decision under Rule 403 for an abuse of discretion. United States v. Hooton, 662 F.2d 628, 636 (9th Cir.), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1981). We give the district courts “wide latitude” when they balance the prejudicial effect of proffered evidence against its probative value. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988). See also United States v. Layton, 855 F.2d 1388, 1402 (9th Cir.1988) (“considerable deference” given Rule 403 evidentiary decision), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989).\nSpencer disputes the district court’s reliance upon Rule 403 as a basis for excluding the arrest report made in Miller’s case, and the corroborating testimony of the police officers. Spencer’s argument is not persuasive. He cites several mistaken identity cases involving the exclusion of testimony describing the identity of a suspect in a crime. See United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980); United States v. Moore, 556 F.2d 479, 485 (10th Cir.1977); United States v. Robinson, 544 F.2d 110, 112-13 (2d Cir.1976) cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978); Holt v. United States, 342 F.2d 163, 164-65 (5th Cir.1965).\nWe do not find these cases dispositive. In Armstrong, the sole Ninth Circuit case cited by Spencer, we held that the defendant was prejudiced by the trial judge’s exclusion of testimony that a man other than the defendant had used “bait money” stolen during the bank robbery of which the defendant was accused. However, we also explained that this ruling cast no doubt on a district court’s freedom to “exclude cumulative evidence and to insure orderly presentation of a case.” 621 F.2d at 953.\nSpencer futilely contends that Fed.R.Evid. 404(b) and 405(b) dictate that the evidence of Miller’s arrest be admitted. Rule 405(b) allows introduction of specific prior instances of conduct when that conduct is probative of character or a trait of character and the defendant’s character, or a character trait, is an essential element of his defense. Here Spencer has not raised character as an element of his defense; he claims that he did not know that the gun was under the seat.\nRule 404(b), on the other hand, actually establishes an independent basis for the court’s exclusion of Spencer’s evidence. Spencer correctly argues that he, as well as the government, may invoke the provisions of Rule 404(b). See United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir.1991); United States v. McCourt, 925 F.2d 1229, 1230-36 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 121, 116 L.Ed.2d 89 (1991). Rule 404(b), however, is not an independent basis for admitting otherwise inadmissible evidence. Even evidence not barred under Rule 404(b) must still survive scrutiny under other Rules. E.g., Perkins, 937 F.2d at 1401 (evidence was excludable under Rule 403 whether or not it was admissible under Rule 404(b)).\nIn any event, Spencer’s evidence does not qualify for admission under Rule 404(b). Spencer argues that Miller’s “bad act” — hiding a gun under his car seat — established the identity of the person who hid the gun under Spencer’s seat: Miller. Spencer thus argues that the evidence qualified for admission under 404(b) on “identity” grounds. We have held, however, that “[i]f the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise.” Perkins, 937 F.2d at 1400 (internal quotation marks omitted). That is exactly the situation here. Hiding a gun under a car seat is not a distinctive crime, and cannot be used to satisfy the “identity” exception to Rule 404(b).\nWe find no abuse of discretion in declining to admit the evidence of the arrest reports. We have previously held that Fed.R.Evid. 403 supports an evidentiary decision quite similar to this one. See Hooton, 662 F.2d at 636 (affirming exclusion of testimony about the level of gun trading typically engaged in by hobbyist collectors where defendant charged with dealing in firearms without a license).\nB. The vehicle stop and the subsequent frisk and automobile search\nSpencer next argues that the police had no cause to stop the vehicle in which he was a passenger, unlawfully seized him by forcing him to remain while the officer took his identification card back to the police car for a computer check, and improperly subjected him to a “stop and frisk.” We review de novo the district court’s ruling on a motion to suppress evidence on these grounds. People of the Territory of Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir.1988). None of Spencer’s objections to the stop or to the subsequent warrant check and frisk are meritorious.\nThere is no doubt that a broken headlight gives an officer cause to stop a motorist. See Delaware v. Prowse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Baker, 850 F.2d 1365, 1368 (9th Cir.1988). The detention while running a warrant check also was reasonable. To be justified, such a detention must be supported by a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). “A valid stop can include the momentary restriction on a person’s freedom of movement in order to maintain the status quo while making an initial inquiry.” United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981).\nThese criteria were met in this case. The driver had no operator’s license and Spencer presented a jail identification when the officer asked him to identify himself. These facts could reasonably lead a police officer to suspect that the car did not belong to the driver and that the occupants might have been involved in criminal activities. See United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985) (inferences or deductions apparent to trained law enforcement officers may be considered under the totality of the circumstances). The police were also justified in believing that a firearm might be in the vehicle after they discovered the shoulder holster underneath Spencer’s jacket and Officer Lozier observed Spencer’s concealing movements in the automobile’s front seat after Officer Collins stopped the vehicle. Thus, the warrantless search of the stopped car was supported by probable cause. See, e.g., Baker, 850 F.2d at 1369 (police could search auto after finding ammunition on the defendant’s person).\nC. The district judge’s comment to the jury\nThe prosecutor objected that Spencer’s lawyer was outside the evidence during his closing argument. The district judge responded that he did not recall the evidence to which defense counsel had referred. Defense counsel did not object to the court’s statement; hence, we review it only for plain error. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). “Plain error exists only in exceptional circumstances when a substantial right of a defendant is affected.” Id. (citing United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)).\nJudicial comments on the evidence are permissible. Sanchez-Lopez, 879 F.2d at 553 (citing Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698-99, 77 L.Ed. 1321 (1933)). Here, the district judge’s comments were entirely neutral. He simply stated that he did not recall the testimony about Miller’s gun referred to by Spencer’s counsel. Such a statement does not support a finding of plain error. In any event, the district judge also instructed the jury to decide the case based on the evidence as each of them remembered it. This instruction, which indicated to the jurors that they are the sole judges of the facts, negated any adverse impact the mild comment may have had. See Sanchez-Lopez, 879 F.2d at 553.\nCONCLUSION\nWe AFFIRM Spencer’s conviction.\n. Nor would this evidence qualify under Fed. R.Evid. 406, involving “habit or routine practice,” since proof of those attributes were not the basis of the offers.\n. Our dissenting colleague accuses us of condoning the exclusion of relevant evidence and of tolerating a standard that allows prosecutors \"inordinate leeway” to introduce evidence harmful to the defendant while preventing defendants from presenting evidence tending to establish innocence. Judge Reinhardt confuses arguments with facts, for we do no such thing. The key issue in this case is whether Spencer knew that the Ruger was under the seat. The outcome of the case does not necessarily turn on the question who owned the Ruger. A jury would draw inferences about the presence of the Ruger in light of the police officers' observation of Spencer's furtive motions in the car. The district court simply concluded that the risk of confusing the issues and wasting time outweighed the likely value of any inferences that could conceivably be drawn from the subsequent discovery of a different gun under a different seat in a different car (albeit a car owned by the same person who owned the car in which Spencer was a passenger).\nAs to the dissent's objection that we have deprived Spencer of his constitutional right to present exculpatory evidence, we think it clear that Fed.R.Evid. 403 presents no constitutional problems. The balancing procedure it requires is ordinarily thought to meet the demands of due process. Judge Reinhardt’s assertion that Spencer’s constitutional rights were violated by its application reminds us of the defense lawyer's aphorism that \"due process is what my client was denied.”", "type": "majority", "author": "POOLE, Circuit Judge:"}, {"text": "REINHARDT, Circuit Judge,\ndissenting:\nI\nI strongly disagree with the majority’s holding that evidence critical to Spencer’s defense was properly excluded. To justify its decision the majority cites the district court’s statement that admitting the disputed evidence might have “wasted time” and “confused the jury”. See Opinion at 745 n. 1. Such conclusory statements are all-too-frequently a substitute for a failure to analyze the underlying facts or legal issues. That is without question the case here. The majority does not attempt to explain the basis for either of the conclusions it endorses; nor could it. At most, approximately one to two minutes would have been “wasted” by the introduction of the excluded police report— evidence that strongly supported Spencer’s defense and that was uniquely persuasive. The only “confusion” that could have been engendered by consideration of the police report would have been the juror’s justifiable uncertainty regarding Spencer’s guilt or innocence. True, the trial would have taken much less time — and jury deliberations would have been substantially simplified — if the trial judge had simply excluded any evidence that tended to support the conclusion that the defendant was innocent. However efficient such a system of justice might be, it is neither the system we presently have nor one that we should be anxious to establish. I cannot join the majority’s decision.\nII\nThe firearm that Spencer was charged with possessing was found under the passenger seat of a car that was owned by Jim Miller and driven by Miller’s girlfriend. Spencer, who had entered Miller’s car earlier that evening, was sitting in the passenger seat when the police stopped the vehicle. He contended that he did not know that a gun was under the seat and that Miller must have left it there sometime previously. Officer Sprouse stated that he had seen Miller’s car driven the previous evening and that the driver was someone other than Miller’s girlfriend or Spencer. Five days after Spencer’s arrest, the police found Miller with a gun similar to the one found when Spencer was arrested. The gun, like the gun in Spencer’s case, was located under the seat of one of Miller’s cars. The police had observed Miller at his house for several hours prior to the discovery of the gun: during that period, he did not carry a gun out to his car nor did he appear to put one under the seat. In short, according to the police report, Miller—the owner of the car in which Spencer was arrested'—kept at least one of his guns under the seat of his car.\nThe trial judge prevented Spencer from introducing the police report into evidence and thus excluded critical facts tending to show that the gun under the seat of Miller’s car was Miller’s not Spencer’s. He precluded Spencer from informing the jurors about the evidence showing that Miller kept guns under the seats of his ears during the general time period in which the charged offense occurred. True, the jurors were told by the woman with Spencer when the police stopped them that Miller owned the car in which Spencer was a passenger and that Miller owned a gun. See Opinion at .744. However, that information is infinitely less probative of Spencer’s innocence than the evidence excluded by the trial judge: evidence that demonstrated that Miller kept guns precisely ivhere the gun Spencer was charged with possessing was located; evidence that was contained in an official police report rather than in the testimony of a woman companion of the defendant; evidence that tended strongly to prove that the gun was Miller’s not Spencer’s. The fact that the jury knew that Miller owned both a gun and the car was virtually valueless to Spencer’s defense without the ability to inform the jurors of the critical fact that Miller kept guns underneath the seat of his cars; deprived of that information, the jury had little reason to believe that the gun that Spencer was charged with possessing was placed there by Miller and that Spencer did not know of its existence. The majority denigrates the probativeness of this evidence by saying that the issue was possession of the gun not ownership. Opin-ión at 745 n. 1. It hardly needs stating that whether a gun found under the seat of Miller’s car was'Miller’s or Spencer’s is highly relevant to whether Spencer was aware of its existence, let alone whether he was in possession of the gun, when he sat on the passenger seat beneath which it was hidden.\nIll\nFed.R.Evid. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The evidence excluded by the trial judge was unquestionably relevant. Indeed, that evidence was the key to Spencer’s defense. Fed. R.Evid. 402 states that “[a]U relevant evidence is admissible”: moreover, because that relevant evidence was crucial to Spencer’s defense, he not only has a statutory entitlement (under Rules 402 and 401) to introduce it, but a fundamental constitutional right to do so as well. See Washington v. State of Texas, 388 U.S. 14,19, 87 S.Ct. 1920,1923,18 L.Ed.2d 1019 (1967) (“The right to offer the testimony of witnesses .is in plain terms the right to present a defense, the right to present the defendant’s version of the facts.... Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”). In short, a heavy statutory and constitutional presumption favors the introduction of relevant evidence — like the evidence excluded here — that might support a claim of innocence in a criminal trial. See also Perry, 520 F.Supp. at 556 (“[T]he federal cases indicate that the discretion of the trial judge may not be exercised as broadly as in the California courts in excluding evidence that a third party committed the crime charged, and there appears to be a definite preference for the admission of such evidence.”).\nFed.R.Evid. 403 constitutes a limited exception to Rules 401 and 402: it permits the exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403 in no way supports the district court’s action here: none of the considerations identified by that Rule applies in the present case, much less “substantially outweigh[s] ” the probative value of the relevant evidence sought to be introduced.\nIV\nAs I have noted, my colleagues identify, without a single word of discussion or analysis, two concerns underlying the district court’s decision to exclude the police report: “confusing the issues and wasting time”. Opinion at 745, n. 1. Neither is by any stretch of the imagination even remotely applicable here; nor does the majority attempt to offer any explanation why they are. There is no indication whatsoever in the record that evidence relating to Miller and his habits would have prejudiced, confused, or misled the jury — unless we presume that Spencer is guilty and that he therefore should not be allowed to confuse the jury by introducing evidence tending to show that he did not commit the offense. Contrary to the majority’s assertion, the excluded evidence would have enhanced the jury’s ability to evaluate the credibility of Spencer’s claim. Moreover, the excluded evidence was hardly needlessly cumulative or a “waste of time”: it was powerful evidence of Spencer’s innocence — evidence of a type qualitatively different from the other evidence offered in support of his sole defense to the crime with which he was charged, and it would have consumed approximately two or three minutes of the district court’s time. The cases cited by the majority to support the inference that the excluded evidence was merely “cumulative” lend no support to its conclusion here. Compare Opinion at 744-45 (citing United States v. Armstrong, 621 F.2d 951 (9th Cir.1980) with Armstrong, 621 F.2d at 953 (reversing conviction due to exclusion of relevant evidence); Opinion at 745 (arguing that United States v. Hooton, 662 F.2d 628 (1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982), upheld “an evi-dentiary decision quite similar to this one”) with Hooton, 662 F.2d at 636 (“Hooton attempted to offer the ... testimony of gun collectors, of gun dealers who cater to hobbyists .... The trial court excluded the evidence .... However, defense counsel did elicit extensive testimony from approximately twenty prosecution and defense witnesses concerning the activities of gun collectors.”) (emphases added). Put simply, there is no basis whatsoever for the majority’s conclusion that Rule 403 authorizes the district court’s action here: none of the prerequisites to application of that Rule in any way exists in the present case.\nV\nSpencer is entitled to introduce evidence that supports his contention that someone else possessed the handgun at issue here just as the defendant in United States v. Robinson, 544 F.2d 110 (2nd Cir.1976), was entitled to introduce evidence to support his contention that someone else robbed the bank in that case. See id. at 112-13 (reversing a trial court’s exclusion of evidence under Rule 403 that an individual who looked like the defendant was suspected of two armed robberies in the same area within six days of the bank robbery for which the defendant was charged).\nFor purposes of the Federal Rules of Evidence and the Constitution, the “mistaken identity” cases cited by the majority, see Opinion at 744-45, are identical to the “mistaken ownership” or “mistaken possessor” situation presented here, and the majority offers no rationale for making a distinction between the two. “Fundamental Standards of Relevancy ... require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.” United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980) (citing numerous eases and reversing conviction for bank robbery because the district court excluded evidence that another person possessed bait bills from the bank).\nTo be precise, Spencer’s contention is that he did not have knowledge that the gun was hidden beneath the seat of the car in which he was a passenger, and he therefore did not have possession of the weapon. He tried to show that in fact the gun was in someone else’s possession — the owner of the vehicle who had placed the weapon where it was found. Sitting in someone else’s car in which, unbeknownst to one, the owner has hidden a gun or other contraband does not make a person guilty of possession. Under those circumstances, the owner, not the innocent occupant of the car, is the possessor. Thus, the majority’s argument that Spencer’s defense is not that someone else is guilty of being the possessor is simply wrong. Spencer is saying: “The state has accused the wrong person.”\nThe cases that the majority dismisses as “mistaken identity” cases are clearly applicable here. It makes no difference whether the third party “looks like” the defendant (“mistaken identity”) or not: if the defendant’s evidence supports the fact that another person — not he — was responsible for the crime or otherwise establishes the defendant’s innocence, that evidence is relevant and must be admitted in all but extreme situations. See also Chambers, 410 U.S. at 298-303, 93 S.Ct. at 1047 (holding that exclusion of hearsay evidence that a third party told others that he shot the victim was a violation of due process despite the fact that the third party was never “mistaken” for the defendant); Alexander v. United States, 138 U.S. 353, 356, 11 S.Ct. 350, 351, 34 L.Ed. 954 (1891) (noting that the exclusion of the defendant’s testimony that another person was armed and searching for the eventual murder victim might be “such error ... as to require reversal” if such evidence “might have a material bearing upon the identification of the murderer”). Spencer was accused of possessing a firearm: our precedent makes clear that he was entitled to present evidence that someone else — not he — possessed that weapon.\nThe evidence that Spencer wished to introduce was relevant and crucial to his sole defense to the crime with which he was charged. “[Wjhere the proffered evidence is of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.” Holt v. United States, 342 F.2d 163, 166 (5th Cir.1965). Here, as I have noted supra, the district court’s refusal to admit the evidence Spencer sought to introduce was not only improper under the Federal Rules, but also may well have deprived Spencer of his fundamental constitutional right to due process of law. Compare with Hooton, 662 F.2d at 636 (excluding evidence under Rule 403(b) in part because “the excluded evidence was marginally relevant” to Hooton’s defense).\nVI\nPerhaps unintentionally, my colleagues expand or hasten the creation of an increasingly common double-standard in criminal cases — a standard that allows prosecutors inordinate leeway with respect to the introduction of evidence harmful to the defendant while precluding defendants from introducing evidence that would tend to establish their innocence. I have little doubt that if Spencer had been found with a gun under the seat of another of his cars around the time he was arrested for the present offense, my colleagues would not hesitate to reverse a district court’s suppression of such evidence. See, e.g., United States v. Butcher, 926 F.2d 811, 815-16 (9th Cir.1991) (holding that, in the prosecution of a defendant for possessing a firearm located in his car, evidence that the defendant’s home contained two weapons and narcotics was admissible to prove offense); United States v. Brown, 770 F.2d 768, 770-71 (9th Cir.1985) (holding that evidence that a gun was found under the seat of the defendant’s ear was admissible to prove a conspiracy to import heroin); see also United States v. Covelli, 738 F.2d 847, 855-56 (7th Cir.1984) (permitting the introduction — over a Rule 403 objection — of the defendant’s past possession of two handguns in a murder prosecution despite that lack of any evidence that either of these guns was the murder weapon); United States v. Moore, 556 F.2d 479, 485 (10th Cir.1977) (permitting the introduction of evidence that explosive materials were found in the defendant’s residence both before and after a bomb was placed at a courthouse in a prosecution for that latter act). Despite the government’s ability to introduce “similar acts” to prove that the defendant (and not some other person) committed an offense, my colleagues today refuse to permit a defendant to introduce “similar acts” to prove that another person (and not the defendant) committed the act — here, possession of a handgun — with which the defendant is charged. Such a rule is, in my view, as well as that of several other circuits, clearly improper.\nConclusion\nDistrict judges have discretion to make rulings regarding the admissibility of evidence. However, it is the duty of appellate courts to ensure that those rulings do not deprive defendants of their right to a full and fair defense. Today, despite the clear commands of the Federal Rules of Evidence and the Constitution, we fail in that duty. Spencer’s conviction should be reversed and remanded. Accordingly, I dissent.\nEpilogue\nIn its amended opinion, the majority has abandoned much of the analysis on which it purportedly based its original decision. What it retains principally is its erroneous conclusion that the district court acted within its discretion in refusing to permit Spencer to introduce evidence uniquely probative of his innocence and highly material to his defense. That conclusion is announced as a holding despite the absence of any discussion or explanation as to why the evidence — the only independent and objective evidence favorable to Spencer on the central issue in the case — would have been confusing or have wasted time. That the majority’s conclusion is incorrect is bad enough. That it constitutes both an abdication of its authority to review a critical ruling of the district court and a wholly unreasoned endorsement of the lower court’s action is far worse. The district court’s ruling deprived the defendant of a fair trial. The majority’s decision, in both its original and amended form, simply rubber-stamps that wrongful action. Any defendant is entitled to more from the judicial system.\n. The majority has amended its opinion to include an offer of testimony of police officers instead of just their report. The testimony would undoubtedly have been simple and straightforward; it would increase my estimate of one to two minutes only slightly. Accordingly, the majority’s modification does not in any way affect my analysis or the result I reach. The fact remains that to characterize the disputed evidence as a waste of time is to ignore its vital importance to Spencer's defense.\n. Unlike my colleagues, see Opinion at 745 n. 1, I believe that the statement of the Supreme Court in Washington is hardly analogous to a view that \"due process is whatever a defendant] is denied”. Although I cannot vouch for the majority, I (along with the seven Justices who joined the Chief Justice’s opinion in Washington) consider the Supreme Court’s explanation of the requirements of the Due Process Clause to be far more persuasive than any aphorism. See also Chambers v. Mississippi, 410 U.S. 284, 298-303, 93 S.Ct. 1038, 1047-50, 35 L.Ed.2d 297 (1973) (reversing conviction because due process violated by the state’s refusal to admit evidence that a third party confessed to the crime); Perry v. Watts, 520 F.Supp. 550, 558-559 (N.D.Cal.1981), aff'd sub nom., 713 F.2d 1447 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (noting significant constitutional limitations on the exclusion of evidence that a third party committed the offense' for which the defendant was charged). In fact, if any aphorism is involved in this case it would be the majority’s apparent view that \"due process is whatever a district judge decides it is in the exercise of his unlimited and unreviewable discretion.”\n. In its amended opinion, the majority now acknowledges that Armstrong does not support the inference that the excluded evidence was merely cumulative. See Opinion at 744-45.\n. Agreeing with my original dissent, the majority no longer argues that the “mistaken identity” cases do not apply to the type of circumstances involved here. Instead, it now finds those cases \"not dispositive” on the implied ground that the district court was free to exclude cumulative evidence. Opinion at 744-45. As my dissent makes clear, the disputed evidence was far from cumulative, and it was crucial to Spencer’s defense. I adhere to my view that the \"mistaken identity” cases cited by Spencer, and rejected by the majority in its amended opinion as \"not dispositive,\" strongly support his argument that the district court erred in excluding the evidence.\n. Because I believe that the Constitution and Rules 401 and 402 require the admission of the evidence Spencer sought to introduce, I need not reach Spencer’s alternate argument that Fed. R.Evid. 404(b) mandates that same result. Cf. Opinion at 744-45 (rejecting that claim). The majority has now abandoned its original position that a defendant may not raise a \"reverse 404(b)” argument, implicitly acknowledging that the dissent is correct on this point. See United States v. Stevens, 935 F.2d 1380, 1400-06 (3rd Cir.1991) (reversing conviction on that basis and noting that numerous other state and federal circuits have adopted the “reverse 404(b)” theoty).\n. I believe that the majority's treatment of both the search and seizure issue and the comments regarding the evidence made by the district judge also may be erroneous; moreover, in the latter case, the court’s action serves to compound the error that constitutes the basis for this dissent. However, because I would reverse on the exclusion of evidence issue, I need not reach these alternative grounds.", "type": "dissent", "author": "REINHARDT, Circuit Judge,"}], "attorneys": ["Bram L. Jacobson, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.", "Ann E. Birmingham, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. John Edward SPENCER, Defendant-Appellant.\nNo. 91-10051.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Nov. 4, 1991.\nDecided Dec. 16, 1992.\nAs Amended on Denial of Rehearing and Rehearing En Banc July 7, 1993.\nBram L. Jacobson, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.\nAnn E. Birmingham, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.\nBefore: POOLE, REINHARDT and FERNANDEZ, Circuit Judges."} | POOLE | REINHARDT | FERNANDEZ | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 742 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,266 | UNITED STATES of America, Plaintiff-Appellee, v. Arturo LOPEZ-VASQUEZ, Defendant-Appellant | United States v. Lopez-Vasquez | 1993-02-08 | No. 92-50271 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, POOLE and NOONAN, Circuit Judges.", "with whom HALL, WIGGINS, KOZINSKI, TROTT, T.G. NELSON, and KLEINFELD, Circuit Judges join,"], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Arturo LOPEZ-VASQUEZ, Defendant-Appellant."], "opinions": [{"text": "ORDER\nThe opinion in United States v. Lopez-Vasquez, No. 92-50271, slip op. 1043 (9th Cir. Feb. 8, 1993) is amended as follows:\n[Editor’s Note: Amendments have been incorporated into published opinion.]\nWith these amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.\nThe full court was advised of the suggestion for en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en bane consideration. Fed.R.App.P. 35.\nThe petition for rehearing is denied and the suggestion for rehearing en banc is rejected.\nOPINION\nPER CURIAM:\nI.\nArturo Lopez-Vasquez was deported May 3, 1991. On August 28, 1991, he attempted to enter the United States from Mexico through a border patrol checkpoint. He told border patrol agents he was a United States citizen but had no identification because his wallet had been stolen. Lopez-Vasquez consented to a search of his bag and agents found a card with the name “Arturo Vasquez.” A computer search under that name revealed an extensive criminal history and prior deportations, including the deportation of May 3. Lopez-Vasquez was arrested and indicted for reentry after deportation in violation of 8 U.S.C. § 1326. In a pretrial motion, Lopez-Vasquez contended his May 3 deportation could not serve as the basis for a conviction under § 1326 because his waiver of his right to appeal the deportation order was not knowing and intelligent. The court denied the motion. Lopez-Vasquez entered a- conditional plea of guilty, preserving his right to appeal the denial of his motion.\nII.\nA claim that a defect in a prior deportation order precludes reliance on the deportation in a prosecution for violation of 8 U.S.C. § 1326 presents “mixed questions of law and fact requiring us to exercise judgment about legal principles. Accordingly, we review [Lopez-Vasquez’s] claims de novo.” United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir.1992) (en banc).\nA.\nLopez-Vasquez was deported from the United States on May 3, 1991 after a group hearing with at least eleven other aliens. Although the immigration judge spoke to Lopez-Vasquez through an interpreter, he did not ask him, or any other member of the group, personally whether he wished to appeal his deportation. Instead, he addressed them as a group:\nTHE COURT: Please answer together gentlemen, do you all understand the decision in your case?\nANSWER: Yeah!\nTHE COURT: [If] you accept the decision now, it is final and you will be deported to Mexico tonight. But you do not have to accept deportation. If you think it is wrong or unjust in your case for any reason, you can appeal the case to the higher court. Appeal is the legal way of saying to send the ease to the higher court for study and review. Now all of you should have in your possession the Spanish language form I-648A. Regardless of the [inaudible] If you do not have a form please stand now. Let the record show that no one is standing.\nGentlemen, this appeal [form] explains about appeal like I am doing. And [inaudible] to make an appeal that cost money, but forget about that if you have no money; you can file the appeal free of charge. I [will] give you help with the paper work. Even if you do not know at this time if you want to appeal, the law says that you can reserve your right to appeal for the next 10 days and think about it.\nGentlemen, if any of you do not understand about appeal, or if you have any questions about appeal, please stand now so that I can talk to you. Let the record show that no one is standing. If any of you want to appeal your case to the higher court, or if you want to reserve your right to appeal for 10 days and think about it, please stand so that I can talk to you about that. Again, let the record reflect that no one is standing.\n_ There’s no appeal and so the decision [inaudible] is final. I am going to give you and the immigration service attorney a copy of the decision. And I do wish all of you good luck for the future. The hearing for you is finished.\nB.\nDue process requires that, “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before an administrative order may be used to establish conclusively an element of a criminal offense.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772 (1987) (citations omitted) (emphasis in original); see also Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944). Although a deportee may waive his right to judicial review of his deportation order, that waiver must be “considered and intelligent.” Id. Otherwise, the deportee is deprived of judicial review in violation of due process. The government bears the burden of proving the waiver. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (“it [is] incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ”) (citation omitted). “Courts should ‘indulge every reasonable presumption against waiver,’ and they should ‘not presume acquiescence in the loss of fundamental rights.’ ” Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101 (1972) (citations omitted).\nAlthough we have held the government may conduct group deportation hearings if the proceedings comport with due process, United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir.1985), we have never held that due process is satisfied by a mass silent waiver of the right to appeal a deportation order.\nThe government argues that requiring a detained alien who wishes to assert his right to appeal to stand for questioning provides sufficient input to ensure the waiver was knowing and intelligent. We disagree. The immigration judge made no effort to determine whether Lopez-Vasquez individually wished to waive his right to appeal, and the mass waiver by silence made it impossible to determine whether he made a voluntary and intelligent decision to do so. Mass silent waiver creates a risk that individual detainees will feel coerced by the silence of their fellows. The immigration judge’s directive that to preserve the right to appeal a detainee must stand up “so that I can talk to you about that” did nothing to lessen this risk. Indeed, it tended to stigmatize detainees who wished to appeal and to convey a message that appeal was disfavored and contingent upon further discussion with the immigration judge.\nThe government also notes the immigration judge explained the right to appeal, and Lopez-Vasquez was provided with a form explaining his right to an appeal in Spanish. These facts might support an argument that Lopez-Vasquez knew what his right to an appeal was, but they fail to demonstrate that Lopez-Vasquez’s silent waiver of the right was itself “considered” and “intelligent.” United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 2156, 95 L.Ed.2d 772 (1987).\nWe conclude mass silent waiver impermis-sibly “presume[s] acquiescence” in the loss of the right to appeal and fails to overcome the “presumption against waiver.” See Barker, 407 U.S. at 525, 92 S.Ct. at 2189. We reach the same conclusion in United States v. Gonzalez-Mendoza, 985 F.2d 1014-1017 (9th Cir.1993).\nIII.\nIn reliance upon the panel opinion in United States v. Proar-Tovar, 945 F.2d 1450 (9th Cir.1991), superseded by 975 F.2d 592 (9th Cir.1992) (en banc), Lopez-Vasquez made no effort to show prejudice from the failure to appeal or to argue the issue of prejudice in the district court or on appeal. After the parties filed their opening briefs in this case, the en banc court superseded the panel opinion and held that “[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. § 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice.” Proar-Tovar, 975 F.2d at 595. We requested supplemental briefs on the impact of the en banc decision on this case.\nThe government argues Lopez-Vasquez “had no relief available to him from his inevitable deportation” because his prior criminal convictions make him ineligible for suspension of deportation, voluntary departure, or lawful admission for permanent residence. Lopez-Vasquez argues remand is necessary because he had no reason to present evidence of prejudice to the district court.\nBecause neither Lopez-Vasquez nor the district court considered the question of prejudice and the record is incomplete, we are unable to determine whether Lopez-Vasquez can provide “some concrete evidence indicating that the violation of [his right to appeal] actually had the potential for affecting the outcome of [the] deportation proceedings.” U.S. v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.1986). Accordingly, we remand to the district court for consideration of this issue.\nRemanded.\n. The total exchange between Lopez-Vasquez and the immigration judge follows:\nQ: Mr. Lopez, do you want to get the free lawyer?\nA: No.\nQ: Mr. Lopez, did you enter without inspection January 9 of this year?\n[no answer indicated]\nQ: Sir, you are charged with entering the country without inspection, do you understand this charge?\n[no answer indicated]\nQ: Is this charge true in your case?\n[no answer indicated]\nQ: The second charge of deportability is this drug charge. I want to ask you on October 2, 1989, were you convicted in Superior Court in Los Angeles for possession of heroin?\nA: Yes.\nQ: Well, they have a technical error on this drug charge of deportability. This is going to cause great trouble for me until the Immigration Service can become comfortable with it. But I'm going to sustain only the entry inspection charge in your case. Tell, sir, have you anything for your defense?\n[no answer indicated]\nQ: What was your first year here?\nA: 71\nQ: What family have you here?\nA: All of them.\nQ: Well, who?\nA: My mother, my wife and my kids.\nQ: Your mother and your wife, are they legal? Immigrants?\n[no answer indicated]\nQ: Why aren’t you an immigrant through them?\nA: I never arrange to file the papers [inaudible]\nQ: Well, did you apply for immigrant status in 1971?\n[no answer indicated]\nQ: What happened? You just filed the papers and forgot about them?\n[no answer indicated]\nThank you sir, sit down.\n. As the Supreme Court explained in Mendoza-Lopez,\nWe ... accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents’ rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1326. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents .... Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceedings.\nId., 481 U.S. at 840, 107 S.Ct. at 2156.\n. Other circuits that may appear to have placed the burden of proof on the defendant did not consider the allocation of burden of proof in Brewer. See United States v. Fares, 978 F.2d 52, 56-57 (2d Cir.1992); United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir.1992); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir.1989).\n. The government misinterprets the record in at least one respect by stating that \"appellant, along with the group, state[d] \"yeah” in response to the immigration judge's inquiry as to whether they understood the appellate process.” In fact, the group responded to the question whether each understood the decision in his case, and the record does not reveal whether Lopez-Vasquez joined in the response.\n. In its petition for rehearing, the government asserts some aliens stand when asked to do so if they wish to assert their right to appeal. The government's observation does not undermine our conclusion that this procedure makes it impossible to determine whether aliens who do not stand have made a voluntary and intelligent decision to waive their right to appeal.\n. The government also argues Lopez-Vasquez ought to have known of his right to appeal because he is of average intelligence and competence, he never demonstrated confusion during the hearing, and his criminal record and prior deportations demonstrate his familiarity with deportation proceedings and the right to appeal. These arguments miss the point. Lopez-Vasquez apparently knew what an appeal was, and was aware he had some right to an appeal. However, the immigration judge's comments and the requirement that detainees stand if they wished to preserve their rights may have conveyed the message that detainees should accept their deportation and not appeal.\n. The cases cited by the government from other circuits do not support its argument that a mass waiver by silence of the right to appeal comports with due process. In United States v. Holland, 876 F.2d 1533 (11th Cir.1989), the court ultimately did not decide whether waiver of the right to appeal was knowing and intelligent because it found no prejudice even if the waiver were invalid. In United States v. Zaleta—Sosa, 854 F.2d 48 (5th Cir.1988), the court upheld a waiver given during a personal one-on-one exchange between the detainee and the immigration judge. See also United States v. Chavez-Huerto, 972 F.2d 1087 (9th Cir.1992) (upholding waiver where defendant expressly waived appeal in one-on-one conversation with immigration judge); United States v. Villa-Fabela, 882 F.2d 434 (9th Cir.1989) (same).\nIn its petition for rehearing, the government contends our decision conflicts with United States v. Barraza-Leon, 575 F.2d 218 (9th Cir.1978), and United States v. Calles-Pineda, 627 F.2d 976 (9th Cir.1980). In Barraza-Leon, the court observed,\nIn response to the judge's questions, only a single, translated reply appears in the record, indicating the substance ... of each respondent's answer.... [A]ll of the respondent's waived their right to counsel, all admitted de-portability, and none wished to appeal. As a result, the answers to each question were translated as one answer for all of the respondents .... While it would be more helpful to have a record of the precise, individual statements of each respondent in multiple deportation hearings, due process does not require it.\nId. at 221. This passage cannot assist the government because it indicates the immigration judge asked each alien whether he wished to appeal and each responded that he did not wish to appeal.\nIn Calles-Pineda, 'appellant alleged his due process rights were violated because he was \"never personally addressed by the immigration judge.” The court observed Barraza-Leon upheld “substantial identical” procedures, but never passed on the substance of appellant's claim, although the court noted Calles-Pineda had not alleged he was \"prejudiced in fact by the procedures employed.” 627 F.2d at 977. Calles-Pineda did not hold mass silent waiver of the right to appeal a deportation order comports with due process because that issue was not raised. The citation to Barraza-Leon on the claim that appellant had a general right to be personally addressed by the immigration judge cannot transform the failure to rule on that issue into a holding on the issue presented in the instant case because the judge in Barraza-Leon asked each deportee whether he wished to appeal and each responded that he did not wish to appeal.\n. The government claims Lopez-Vasquez has been convicted six times since 1978 for theft of property, driving under the influence, burglary, and possession of a controlled substance. An alien is statutorily ineligible for suspension of deportation if he cannot show good moral character, and no person can make such a showing if he has been imprisoned for more than 180 days over the preceding seven years. Voluntary departure requires a showing of good moral character over the previous five years. Lawful admission for permanent residence is not available to aliens who have a committed crime of moral turpitude, which includes theft. Villa-Fabela, 882 F.2d at 440-41.\n. We note that if Lopez-Vasquez can make a prima facie showing of prejudice, \"the burden then shifts to the government to show that the violation could not have changed the outcome of the deportation proceedings.\" Id.", "type": "majority", "author": "PER CURIAM:"}, {"text": "DISSENT FROM THE ORDER OF DENIAL OF REHEARING EN BANC\nAug. 10, 1993.\nO’SCANNLAIN, Circuit Judge,\nwith whom HALL, WIGGINS, KOZINSKI, TROTT, T.G. NELSON, and KLEINFELD, Circuit Judges join,\ndissenting from the order of denial of rehearing en banc:\nWhen a panel of this court announces a new per se rule — indeed, one that misreads an en banc decision we rendered less than a year ago, that rests on an empirical foundation consisting entirely of unsubstantiated speculation, and that in any event adds nothing in the way of real protection for the right it is intended to safeguard — reasonably good cause exists to assemble the en banc court. When that new per se rule stands controlling Supreme Court precedent on its head, and introduces the altogether remarkable notion of a fundamental constitutional right to appeal, the case for en banc rehearing becomes overwhelming. Our court has decided otherwise, and from that decision I must respectfully dissent.\nI\nLet us begin where the panel should have, with an examination of the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), and that of our en banc court in United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en banc). For while the panel’s opinion indeed quotes the language of Mendozar-Lopez, it fails to follow its reasoning. In particular, the panel ignores the implications of the interpretation of Mendoza-Lopez upon which we settled in Proa-Tovar.\nMendozar-Lopez holds that “where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.” 481 U.S. at 838, 107 S.Ct. at 2155. For this reason, a defendant charged with the crime of re-entering this country after deportation under 8 U.S.C. § 1326 who “was effectively denied his right to direct review” must be permitted “to mount a collateral attack on the deportation proceeding when he [is] prosecuted under section 1326.” Proa-Tovar, 975 F.2d at 594. So much is clear from Mendozar-Lopez itself.\nTo succeed in his collateral attack, the section 1326 defendant must show that his prior deportation proceeding violated due process — that is, (1) that the proceeding was marked by “fundamental procedural defects,” Mendoza-Lopez, 481 U.S. at 841, 107 S.Ct. at 2157, and (2) that these defects resulted in prejudice to the alien. The prejudice requirement, obscure in Mendoza-Lopez, was made clear in Proa-Tovar. See Proa-Tovar, 975 F.2d at 595 (“the Court has not eliminated prejudice from the equation”).\nBut the panel here misses the point that underlies both Mendoza-Lopez and Proa-Tovar: the section 1326 defendant’s entitlement to mount a collateral attack on his prior deportation is one thing, the merits of that collateral attack something entirely different. Perhaps the panel errs because, in this case, whether Lopez-Vasquez validly waived his right to appeal plays a role in both these determinations. Nevertheless, two distinct questions are involved here. First is the question whether Lopez-Vasquez was deprived of his right to direct review, thus entitling him to mount his collateral attack in this proceeding. Second is the (wholly separate) question whether his deportation was in fact fundamentally unfair.\nThe panel would have done well to seek guidance from the other circuits that have been forced to “unravel the riddle” of Mendoza-Lopez. Proa-Tovar, 975 F.2d at 594. All of these courts have interpreted the Court’s decision precisely as outlined above. All agree, that is, that “Mendozar-Lopez presupposes a two-step process for determining when an alien can prevent his deportation from being used as a basis for conviction under 8 U.S.C. § 1326.” United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir.1992). “[T]he alien must show not only that he was [1] effectively deprived of his right to direct appeal, but also that [2] the administrative proceedings were fundamentally unfair in some respect that would have entitled him to relief on appeal.” United States v. Fares, 978 F.2d 52, 57 (2d Cir.1992). Accord United States v. Santos-Vanegas, 878 F.2d 247, 251-52 (8th Cir.1989); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir.1989) (“The defendant must show that he was deprived of judicial review of the proceeding and that the proceeding was fundamentally unfair.”) (emphasis supplied).\nII\nAgainst this backdrop, the shortcomings of the panel’s opinion emerge starkly.\nAlthough a deportee may waive his right to judicial review of his deportation order, that waiver must be “considered and intelligent.” [Mendoza-Lopez, 481 U.S. at 837-38, 107 S.Ct. at 2154-55] ... The government bears the burden of proving the waiver. See Brewer v. Williams, 430 U.S. 387, 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424] (1977) (“it is incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’”) (emphasis supplied, citation omitted).\nUnited States v. Lopez-Vasquez, 1 F.3d 751. With all due respect, this is not merely nonsense. It is nonsense on stilts.\nA\nFirst, the nonsense. The panel assigns the government the burden of proving that Lopez-Vasquez validly waived his right to appeal his deportation. As explained above, however, the validity of such a waiver goes to two different legal questions. Consequently, when the panel says that the government bears the burden of proving a valid waiver, it is really saying two different things. Neither can withstand scrutiny.\nOn the one hand, the panel is saying that the government bears the burden of proving that Lopez-Vasquez was not deprived of judicial review of his deportation proceeding, and is therefore not entitled to mount a collateral attack upon that proceeding. In effect, the panel creates a presumption that the defendant was improperly denied review and therefore is entitled to mount a collateral attack, in every section 1326 prosecution. This is simply irrational, and Mendoza-Lopez clearly does not envision any such thing. The Court did not mandate that collateral attacks be entertained as a matter of course, but said rather that they must be permitted in exceptional circumstances, that is, where judicial review is actually foreclosed because of defects in the deportation proceeding. See Mendoza-Lopez, 481 U.S. at 838-40, 107 S.Ct. at 2155-56.\nOn the other hand, by insisting that the government prove a valid waiver of appeal, the panel is effectively bifurcating the burden of proof as to the fundamental fairness of the underlying deportation proceeding. For Lopez-Vasquez holds that it is up to the government to prove that the defendant’s deportation proceeding was not marred by any fundamental procedural defect — here, a defect implicating the defendant’s right to appeal. Yet we held in Proar-Tovar that “[t]he defendant ... bears the burden of proving prejudice” from any such defect. 975 F.2d at 595. The result is simply irrational. Nothing can justify carving up the burden of proof on the single issue of fundamental fairness in this ad hoc manner. Because the panel has failed to consider the implications of its decision within the framework provided by Mendoza-Lopez and Proar-Tovar, it makes a hodge-podge of the assignment of burdens of proof.\nB\nNow the stilts. As authority for the proposition that the government bears the burden of proving waiver here, the panel cites Brewer v. Williams. The citation is obviously intended as more than merely illustrative; the panel clearly regards Brewer as controlling precedent. Thus we are told in a footnote that “[o]ther circuits that may appear to have placed the burden of proof on the defendant did not consider the allocation of burden of proof in Brewer.” Lopez-Vasquez, op. at 754 n. 3. (citing cases).\nBut Brewer controls nothing in this context. At issue in that famous case was a purported waiver of the Sixth Amendment right to counsel. The criminal defendant’s right to counsel, of course, is a fundamental constitutional right, “indispensable to the fair administration of our adversary system of criminal justice.” Brewer, 430 U.S. at 398, 97 S.Ct. at 1239 (emphasis supplied). Accordingly, the Brewer Court employed the “strict standard” of waiver set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), Brewer, 430 U.S. at 404, 97 S.Ct. at 1242, which is, indeed, “[t]he strictest test of waiver which might be applied.” Id. at 433, 97 S.Ct. at 1257 (White, J., dissenting). In this context, it is no surprise that the government “bears a heavy burden” of proof. Id. at 402, 97 S.Ct. at 1241 (citation omitted).\nAt issue in this case, however, is a waiver of the statutory right to judicial review of the result of a civil deportation proceeding. Such a right is in no sense indispensable to the fair administration of justice — it is not guaranteed as a matter of due process. Indeed, the right to an appeal is simply not protected by the Constitution, in this or any context. So well established is this principle that fully a century ago the Supreme Court could say that “[a] citation of authorities on the point is unnecessary.” McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 915, 38 L.Ed. 867 (1894).\nWhat, then, justifies the panel’s reliance on Brewer? Why must an alien’s alleged waiver of the statutory right to appeal a deportation order be tested according to “the strictest possible” standard of waiver, the standard applied by the Court to waivers of fundamental constitutional rights in a criminal context, a standard under which “it is incumbent upon the State” to prove waiver? The panel does not explain.\nC\nUnder the stilts, we may add a pair of skates:\n“Courts should ‘indulge every reasonable presumption against waiver,’ and they should ‘not presume acquiescence in the loss of fundamental rights.’ ” Barker v. Wingo, 407 U.S. 514, 525 [92 S.Ct. 2182, 2189, 33 L.Ed.2d 101] (1972) (citations omitted).\nLopez-Vasquez, op. at 754. The problem with this passage is that Barker v. Wingo has no application in this context. Like Brewer, Barker was a case involving a purported waiver of fundamental constitutional rights— here, the right to a speedy trial under the Sixth Amendment. The Supreme Court’s injunction to “indulge every reasonable presumption against waiver” was thus premised on fear of “acquiescence in the loss oí fundamental rights.” Indeed, if we look again to Johnson v. Zerbst, which is the source of the language quoted in Barker and relied upon by the panel here, this very point comes through loud and clear:\nIt has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.”\n304 U.S. at 464, 58 S.Ct. at 1023 (citations omitted, emphasis supplied).\nLet us repeat: the right to an appeal is not protected by the Constitution, even for criminal defendants. The right to an appeal is a statutory right ... period. What is it, then, that justifies “indulging every reasonable presumption against waiver” of the right to appeal, as we would waiver of the right to counsel, or the right to jury trial, or the right to confront one’s accusers? Again, the panel does not provide an answer.\nD\nThe panel has imported the strict standard applicable to the waiver of fundamental constitutional rights, and the presumption against waiver of such rights, into a context where the waiver of constitutional rights is not even remotely at issue. Under Mendoza-Lopez, Lopez-Vasquez enjoys three different due process rights: (1) his right as a section 1326 defendant to collateral review of a prior deportation where direct appeal was improperly denied him; (2) his right as a deportation proceeding respondent to a fundamentally fair deportation proceeding; (3) his right as a section 1326 defendant not to be subject to criminal penalties on the basis of a prior deportation that was not fundamentally fair. No one claims that Lopez-Vasquez waived any of these rights, whether validly or invalidly. All of these rights are alive and well in this proceeding, the very point of which is to vindicate those rights if they are indeed at risk. The only right Lopez-Vasquez is alleged to have waived is his unenumerated statutory right to an appeal.\nYet the panel proceeds as if Mendoza-Lopez made the right to appeal a deportation order a necessary aspect of due process, such that a waiver of the right to appeal such an order is a waiver of a due process right. If this were true, it would indeed follow, as the panel seems to think, that the burden of proving waiver should be placed on the government, and that the presumption against such waiver should apply. But it is not true. Mendoza-Lopez does not say that due process guarantees the right to appeal a deportation order; it says that due process guarantees the right to some kind of judicial review of the deportation proceeding before the order may be relied upon to establish an element of a criminal offense. Mendoza-Lopez does not say that an alien who is denied the right to appeal his deportation order is thereby denied due process; it says that an alien who is prejudiced by the denial of his right to appeal in such a way as to render his deportation proceeding fundamentally unfair is denied due process.\nMendoza-Lopez does not, in short, say that the right to an appeal is guaranteed as a matter of due process of law. The waiver of the right to an appeal is not the waiver of a constitutional right. Cases setting forth standards for reviewing waivers of fundamental constitutional rights are not controlling here — indeed, they are not even relevant. The reasoning of Lopez-Vasquez, then, is just plain wrong.\nE\nThis lengthy analysis is necessary because the panel’s holding is entirely dependent upon the presumption against waiver: “We conclude mass silent waiver impermissibly ‘presume[s] acquiescence’ in the loss of the right to appeal and fails to overcome the ‘presumption against waiver.’ See Barker, 407 U.S. at 525 [92 S.Ct. at 2189].” The presumption indulged in by the panel is the only basis for thinking that a per se rule can or should govern here. That rule is utterly compromised by its reliance on this nonexistent presumption, and it should not have been allowed to stand.\nIll\nThere’s more. The panel has entirely overlooked the significance of the fact that what is involved here is a collateral attack on the constitutionality of a prior adjudication. The government here introduced a facially valid deportation order in an effort to establish one element of the offense defined by section 1326. Lopez-Vasquez “sought to deprive [the order] of [its] normal force and effect in a proceeding that had an independent purpose other than to overturn the pri- or judgment[ ].” Parke v. Raley, — U.S. -, -, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992). “[B]y definition,” that is a collateral attack. Id.\nThis makes a world of difference, as Justice O’Connor recently explained in Parke v. Raley. At issue was a Kentucky sentence enhancement scheme which placed upon the defendant the burden of proving the invalidity of any prior convictions once the state produced a facially valid prior judgment. The Sixth Circuit had held that this scheme was unconstitutional when applied to a defendant who claimed his prior convictions were based on guilty pleas entered in violation of the rule in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).\nThe Sixth Circuit thought rejection of Kentucky’s burden-shifting scheme compelled by Boykin’s statement that the waiver of rights resulting from a guilty plea cannot be “presume[d] ... from a silent record.” [395 U.S.] at 243 [89 S.Ct. at 1712],\nWe see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and now he seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boy-kin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. Although we are perhaps most familiar with this principle in habeas corpus actions, it has long been applied equally to other forms of collateral attack.\nRaley, — U.S. at -, 113 S.Ct. at 523 (emphasis supplied, citations omitted).\nThese principles have been unvaryingly followed in our own cases. See, e.g., United States v. Pricepaul, 540 F.2d 417, 423 (9th Cir.1976) (defendant bears the burden of proving invalidity of guilty plea for purposes of defending against charge of being felon in possession of firearm); United States v. Carroll, 932 F.2d 823, 825 (9th Cir.1991) (defendant bears burden of proving constitutional invalidity of prior convictions used in sentencing under the Guidelines). The decisions of the other courts of appeals are to the same effect. See Raley, — U.S. at -, 113 S.Ct. at 525 (citing examples in different contexts).\nThe panel has simply ridden roughshod over the “presumption of regularity” that ought to attach to a final, facially valid deportation order. Once the government produced such an order, it was up to Lopez-Vasquez to rebut that presumption, and to prove the existence of fundamental unfairness in the underlying deportation proceeding. The panel, however, has gone in precisely the opposite direction: it has conjured up a presumption of irregularity. This presumption stands in turn upon the “presumption against waiver” of the “fundamental constitutional” right to appeal, which does not exist, and which, even if it did exist, would not justify shifting the entire burden of proof to the government: “even when a collateral attack on a final [adjudication] rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant.” Id. at -, 113 S.Ct. at 524 (citation omitted).\nNonsense on stilts on skates ... and on thin ice to boot.\nIV\nAnd there’s still more. The panel has crafted a per se rule to govern the question of waiver. Yet the Supreme Court has repeatedly stressed that “inflexible per se rule[s]” are all but entirely out of place in this context, because the question of waiver is inherently fact-specific:\nA waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.\nJohnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Over and over again, the Court has approved this approach, under which the validity of a purported waiver is to be determined “under the totality of the circumstances” bearing on that waiver. See, e.g., Solem v. Stumes, 465 U.S. 638, 647, 104 S.Ct. 1338, 1343, 79 L.Ed.2d 579 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983) (plurality opinion); Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979). This fact specific approach to waiver is the rule “[ejven when a right so fundamental as that to counsel at trial is involved.” Butler, 441 U.S. at 374, 99 S.Ct. at 1758. Indeed, it has been observed that there is but “a solitary exception to [the Court’s] waiver jurisprudence,” in which the case-by-case approach has been abandoned in favor of a per se rule. Minnick v. Mississippi, 498 U.S. 146, 160-62, 111 S.Ct. 486, 495, 112 L.Ed.2d 489 (1990) (Scalia, J., dissenting).\nIf the validity of an individual’s waiver even of fundamental constitutional rights is all but invariably to be determined according to “the totality of the circumstances,” what justifies a per se rule of invalidity here, where the statutory right to appeal is in question? The panel doesn’t say.\nIndeed, while the panel has gone out of its way to import Zerbst’s strict standard of waiver (by way of Brewer) and its indulgence of every presumption against waiver (by way of Barker), it has gone equally out of its way to ignore Zerbst’s injunction that the validity of a waiver “must depend, in each case, on the particular facts and circumstances surrounding that case.” Nonsense on stilts, skating on thin ice ... blindfolded.\nV\nTeetering awkwardly on such a precarious legal foundation, the panel’s per se rule is a bad rule, untenable as a matter of logic and undesirable as a matter of policy.\nThe panel holds that the procedure employed by the immigration judge, whereby the respondents were invited to stand up if they wished to appeal, always “makes it impossible to determine whether aliens who do not stand have made a voluntary and intelligent decision to waive their right to appeal.” Lopez-Vasquez, op. at 754 n. 5. But this is plainly false, as anyone with experience in these kinds of cases must understand. To be sure, the use of this procedure will sometimes prevent a reviewing court from determining that an individual made a considered and intelligent decision not to appeal. But this is by no means invariably the case. In some cases, the record will demonstrate that a particular individual’s waiver of appeal is fully informed and eminently rational, even though the transcript does not record him as saying, “I understand that I may appeal, but I do not wish to do so.” By the same token, one can easily imagine instances in which the record will contain just such a statement, yet a reviewing court will be firmly convinced that the words did not reflect a voluntary decision intelligently made. The point is simply that it is not always (or even usually) impossible for us to judge the character of a decision not to appeal just because that decision is expressed non-verbally. See United States v. Ortiz-Rivera, 1 F.3d 763 (9th Cir.1993) (per curiam).\nThis is a fact we have unambiguously acknowledged in cases treating a criminal defendant’s waiver of the right to appeal. Thus we have held that “a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; a finding that the waiver is knowing and voluntary is sufficient.” United States v. DeSantiago-Martinez, 980 F.2d 582, 583 (9th Cir.1992). The panel’s decision therefore gives rise to a staggering anomaly whereby, in this circuit, the appeal rights of the respondents in a deportation proceeding, being waivable only by express declaration in open court, are thus subject to greater procedural protections than are the analogous rights of the defendant in a criminal case. Cf. United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir.1985) (“Respondents in a civil deportation hearing ... are not entitled to the same ... rights afforded a criminal defendant.”).\nMoreover, the empirical basis on which the panel erects its rule is dubious at best. The panel assumes that eliciting waiver by inviting an alien to stand if he wishes to appeal “creates a risk that individual detainees will feel coerced by the silence of their fellows,” and “tend[s] to stigmatize detainees who wish[] to appeal and to convey a message that appeal was disfavored.” Lopez-Vasquez, slip op. at 6638. Where do these assumptions come from?\nGiven the facts of this case, and of the many similar cases we review, it is entirely plausible to indulge a quite different set of assumptions. Lopez-Vasquez surely knew at the time of his deportation hearing that he had “been convicted six times for theft of property, driving under the influence, burglary, and possession of a controlled substance.” Id. at 755 n. 8. In addition, “the immigration judge explained the right to appeal, and Lopez-Vasquez was provided with a form explaining his right to appeal in Spanish.” Id. at 754. Thus even the panel must admit that “Lopez-Vasquez apparently knew what an appeal was, and was aware he had some right to appeal.” Id. at 754 n. 6. It is not at all unreasonable to think that Lopez-Vasquez remained seated when asked if he wished to appeal his deportation because he knew full well that an appeal could not possibly help him, and did not wish to be confined in a detention center for as long as it might take to process such a fruitless effort. If we are to traffic in assumptions, then we might very well assume that an alien’s decision not to appeal generally rests on rational self-interest that counsels the hopelessness of an appeal rather than the “coercion” or “stigma” identified by the panel. See Ortiz-Rivera, supra.\nEven if the panel is right to be concerned about “coercion” and “stigma” in these circumstances, the per se rule it has crafted does precious little to address these concerns. Lopez-Vasquez was one of twelve respondents in the underlying deportation proceeding. The procedure mandated by the panel here would require an immigration judge to ask each respondent individually whether he wished to appeal. Suppose Lopez-Vasquez had been the twelfth respondent so questioned, and suppose (as is not unlikely) that each of his fellows had declined to appeal before him. Now suppose that the immigration judge turns his attention to Lopez-Vasquez: “And you, sir, do you wish to appeal my ruling?” Might this not be even more coercive than the procedure actually employed here, making it even harder for the respondent to assert his desire for review? The coercion and stigma the panel fears is inherent in any group deportation proceeding. Such proceedings, however, unquestionably do not offend due process. See, e.g., Nicholas-Armenta, 763 F.2d at 1091. By its oversolicitous concern for one aspect of these proceedings, the panel may have actually done more harm than good to the rights it means to protect.\nIn any event, if the panel believed that it could not find a valid waiver on these facts, as it evidently did, then it should have predicated its order of remand on these facts. The general assumptions advanced by the panel in no way support a per se rule that forces us to disregard the specific facts of particular cases. The rule itself, meanwhile, will inevitably foster results that are both silly and unjust. Indeed, it has already happened. See Ortiz-Rivera, supra.\nVI\nKersplat! Nonsense - on stilts, skating blindfolded on thin ice must topple in the end.\nThe law of this circuit now states that, in every section 1326 prosecution, the government must rebut the presumption that the defendant was deprived of his right to review of the underlying deportation order. The government must further rebut the presumption that the deportation proceeding was not marred by any fundamental procedural defect. The government’s failure to carry its burden as to either of these two presumptions has the absurd consequence of shifting the burden to the defendant, who then, mysteriously, must prove prejudice. The law of this circuit also now holds that a non-verbal waiver of the right to appeal is per se unknowing, unconsidered, and unintelligent, and that reviewing courts lack the means to discern a valid waiver from a record that does not contain some approximation of the verbal ritual, “I do not wish to appeal.” To arrive at this weird state of affairs, we have had to suffer one of our three-judge panels to cast aside, wittingly or not, the authority of the Supreme Court and of our own en banc court.\nOur law should be otherwise. Our sufferance should not extend so far. We have passed up the opportunity to set things right. I respectfully dissent.\n. In Proa-Tovar, the en banc court concluded that \"[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. § 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice.\" Proa-Tovar, 975 F.2d at 595. In the face of this unambiguous statement to the contrary, the panel maintains that the government bears the burden of proving the validity of Lopez-Vasquez's waiver of appeal. How can the panel take a position that is flatly inconsistent with an en banc decision on which the ink is scarcely dry without even attempting to explain itself?\n. Justice Scalia was referring to Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which held that a criminal suspect's invocation of his Miranda right to have counsel present gives rise to an \"irrebuttable presumption\" against voluntary waiver of that right in response to police-initiated interrogation. Min-nick itself, of course, is to the same effect.\n. Ortiz-Rivera provides as good an example as could be wished of just how misguided is the per se rule of Lopez-Vasquez, and just how foolish and wasteful are the results it forces upon us.\nThat case, like this one, was a section 1326 prosecution in which the defendant sought to mount a collateral attack upon his underlying deportation proceeding. The facts were not disputed: Ortiz-Rivera entered a conditional guilty plea in which he stipulated that he had suffered previous state convictions for armed robbery, the sale or transportation of cocaine, and the unlawful driving or taking of a vehicle, that he had been twice deported in the past, and that he had illegally entered the United States on three separate occasions. 1 F.3d at 752.\nIn the deportation hearing he challenged as fundamentally unfair, meanwhile, Ortiz-Rivera was one of seven respondents. All were twice advised by the immigration judge (\"IJ”) that they had a right to appeal his decision as to their deportability. Ortiz-Rivera, along with all other respondents, individually stated that he understood that he had such a right. Id. at 766.\nHe then engaged in an individual colloquy with the IJ, in English, which the IJ observed he spoke well. During that colloquy, Ortiz-Rivera declined the offer of a free lawyer, admitted that he had been convicted of the cocaine offense, and further admitted that he was deportable as charged. He was then informed that, having lived in this country for some time, he might be eligible for a waiver of deportation, and asked whether he had ever had any legal immigration papers. He answered in the negative, explaining that he \"was in trouble” — apparently a reference to his criminal record. Finally, he was asked whether there was \"any argument at all” that he had a legal right to be in this country. He said no. Id. at 766-68.\nAfter the IJ had questioned the other six respondents, all of whom conceded deportability, he informed them that he was going to sign an order for their deportations. He then re-advised the respondents that they had a right to appeal his decision, and invited anyone who wished to appeal to stand so that he could \"explain the appeal process in more detail and have someone help you fill out the appeal application.” None of the respondents stood up. Id. at 768.\nDespite such a record, Lopez-Vasquez compelled us to hold that Ortiz-Rivera's decision to remain seated when invited to exercise his right to appeal did not manifest a considered and intelligent decision to waive that right. That conclusion defies reality in a fashion too obvious to require further comment.\n. Again, Ortiz-Rivera exposes the flaws in the panel’s opinion here. There exists not even the remotest chance that, when invited to stand if he wished to appeal, Ortiz-Rivera failed to do so because he felt \"coerced by the silence of [his] fellows,” or feared being \"stigmatized” by his desire for justice. Ortiz-Rivera didn’t stand because he knew he had no legal right to be in this country in the first place, and knew as well that, given his criminal record, he had no hope of remaining. He made a \"considered\" and \"intelligent” decision — indeed, a downright sensible decision — to accept immediate deportation, and freedom in his native Mexico, rather than to remain in a detention center for who-knows-how-long while an obviously futile appeal wound its way through the system. And yet we were compelled by Lopez-Vasquez to hold that Ortiz-Rivera was improperly deprived of his right to judicial review, and to remand the case to the district court for further proceedings. District courts have many more important things to do.", "type": "dissent", "author": "O’SCANNLAIN, Circuit Judge,"}], "attorneys": ["John Lanahan, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.", "Sherri L. Walker and Jay Alvarez, Asst. U.S. Attys., San Diego, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Arturo LOPEZ-VASQUEZ, Defendant-Appellant.\nNo. 92-50271.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Jan. 8, 1993.\nDecided Feb. 8, 1993.\nAs Amended on Denial of Rehearing and Rehearing En Banc June 30, 1993.\nDissenting Opinion from Order of Denial of Rehearing En Banc of Circuit Judge O’Scannlain Aug. 10, 1993.\nJohn Lanahan, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.\nSherri L. Walker and Jay Alvarez, Asst. U.S. Attys., San Diego, CA, for plaintiff-appellee.\nBefore: BROWNING, POOLE and NOONAN, Circuit Judges."} | BROWNING | POOLE | NOONAN | 2 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 751 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,300 | UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTIZ-RIVERA, Defendant-Appellant | United States v. Ortiz-Rivera | 1993-07-26 | No. 92-50469 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: SCHROEDER, THOMPSON, and O’SCANNLAIN, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTIZ-RIVERA, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM:\nOrtiz-Rivera was charged with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. He moved to dismiss the indictment on the ground that his earlier deportation hearing did not comply with due process of law. After a hearing, the district court upheld the indictment. Ortiz-Rivera then entered a conditional guilty plea, and filed this appeal.\nI\nIn his guilty plea, Ortiz-Rivera stipulated to the following facts:\nDefendant Raul Ortiz-Rivera (“defendant”) was born on April 16, 1966, in Mexico. On November 4, 1987, and again on December 11, 1989, defendant was officially deported from the United States to Mexico at the Port of Entry located at Otay Mesa, California.\nOn June 12, 1984, defendant was convicted in the Superior Court of California for robbery with a weapon, in violation of Section 211 of the California Penal Code, and he was sentenced to four years incarceration. On April 25, 1989, defendant was convicted in the Superior Court of California of the sale or transportation of cocaine, in violation of Section 11351 of the California Health and Safety Code, and he was sentenced to two years incarceration. In addition, on January 23, 1991, defendant was convicted in the Superior Court of California for unlawful driving or taking of a vehicle in violation of Section 10851(a) of the California Penal Code, and he was sentenced to two years incarceration.\nOn or about June 20, 1991, defendant was interviewed by an agent of the Immigration and Naturalization Service (“INS”) at the Chino State Prison. During the interview, defendant admitted that he was born in Mexico, and had last entered the United' States at the Port of Entry at Calexico, California, by falsely claiming U.S. citizenship on an unknown date in 1990. Defendant never obtained permission from the Attorney General of the United States to reapply for admission into the United States following deportation.\nOn February 20, 1992, defendant was released from state custody and placed into the custody of the INS. On that date, defendant was interviewed again by an INS agent. After waiving his constitutional rights, defendant admitted (and signed a statement) that he had been deported on two prior occasions, and that he illegally re-entered the United States three times, most recently in 1990.\nII\nOrtiz-Rivera relies on our decision in United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en bane), to support his contention that his 1989 deportation cannot be made the basis of criminal penalties for reentering this country. In Proa-Tovar, we recognized that, under the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), “where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.” Proa-Tovar, 975 F.2d at 594 (quoting Mendoza-Lopez, 481 U.S. at 838, 107 S.Ct. at 2155). Accordingly, we must permit Ortiz-Rivera to mount a collateral attack on the constitutionality of his prior deportation proceeding in this appeal if it appears that he was improperly deprived of his right to direct review of that proceeding. Id. at 595.\nTo succeed in such an attack, Ortiz-Rivera must demonstrate that his deportation hearing was fundamentally unfair. In present context, this means that he “must ... demonstrate deprivation of the right to a direct appeal from [the deportation] order, ... [and must] also ... prov[ej prejudice” from that deprivation. Id.\nIll\nThe transcript of the 1989 deportation hearing challenged by Ortiz-Rivera, as designated in his excerpt of record on appeal, reads as follows:\nPROCEEDINGS BEGIN\n(Court is called to Order)\n(Interpreter is Present)\n(* Indicates response in English by respondent)\nTHE COURT: The record may reflect that this is John Williams presiding at a hearing in deportation proceedings on November 21, 1989, at the Richard J. Donovan Detention in a matter relating to the following named seven respondents.\nRaul Ortiz-Rivera [ A XXXXXXXX ], Martin Arguis-Assaunta [ AXXXXXXXX ], Jose Dimin-gos-Apata Robles [ A XXXXXXXX ], Jose Guzman-Gonzalez [ A XXXXXXXX ], Arnardo De Jesus Goma [ AXXXXXXXX ], Juan Corona-Lopez [ A XXXXXXXX ] and Rigo Burto Dominguez-Arita [ AXXXXXXXX ].\nThe hearing this is in English translated into Spanish by Ms. Robles, the staff person in charge of the calendar and the official interpreter. Michael Yee, Y-E-E, Esquire is representing the United States.\nGentleman [sic], the immigration service has filed a charge against each of you claiming that you are deportable as aliens who either entered the United States illegally without documents and without inspection or as aliens who have been convicted of a crime in the United States.\nDo you understand the immigration charge that is filed against you personally?\nTHE INTERPRETER: By all respondents, yes.\nTHE COURT: The purpose of the hearing is to decide if the accusation against you is true and to give you a full and a fair opportunity to present your defense. If the accusation against you is not true I will dismiss the immigration charge. Moreover, the Government has the burden of showing that it is true if you dispute the charge — if you challenge or dispute the charge. Do you understand?\nTHE INTERPRETER: By all respondents, yes.\nTHE COURT: Now you can plead innocent or guilty to being deportable as you are charged. But before you make any admissions against your interests let me explain the following to you. You have a right to be represented at every stage of this hearing by an attorney or by some other qualified person of your own choice.\nIn addition, if you want a lawyer but you don’t have money, I will postpone your hearing to a later date and I will work with you to see that you do get a lawyer to represent you.\nIf you believe that you have a legal right to be in the United States it would be best if you had a lawyer to represent you because the immigration laws are very technical and they are very hard to understand. Now’, do you understand that you do have a right to a lawyer at this hearing?\nTHE INTERPRETER: By all respondents, yes.\nTHE COURT: If you want a lawyer to represent you please stand and then I will make those arrangements for you.\nThe record may reflect that none of the respondents are standing.\nLet me quickly explain to you the other rights that you have at this hearing. You have the right to examine and object to evidence that is presented against you. If any witnesses should testify against you you can ask some questions and I shall help you. You also have a right at this hearing to present a defense to this charge.\nIf the accusation against you is not true I want you to tell me so. And then we will have the Government present evidence that the accusation is true. In addition, if you believe that you have a legal right to be in the United States I encourage you to explain the basis for your claim.\nAnd finally, if you are not satisfied with the decision that I make you can take an appeal to a higher court and the higher court would review the record and make its own decision.\nDo you understand these rights that I have tried to explain to you?\nTHE INTERPRETER: By all respondents, yes.\nTHE COURT: Gentleman [sic], I am going to mark the charges that are filed against you as Exhibits 1 through 7 in evidence.\n(Plaintiffs Exhibit 1 through 7 are Marked)\nTHE COURT: The charge is the paper that you received a copy of from the immigration agent. It explains on this paper why the immigration agent believes that you are subject to deportation. Because this is simply the officer’s accusation and it may not be entirely correct I would like to go over these items with each of you individually. I shall therefore call your names one at a time. When your name is called please come up and sit in the orange chair closest to the microphone.\nAfter you come up here I shall ask you again if you want a free lawyer to represent you. If you do I shall give you a new trial date and I shall work with you to see that you are represented by a lawyer.\nAnd if they want a lawyer to represent them I will give them a new trial date and work with them to see that they are represented.\nOn the other hand, if you tell me you don’t want a lawyer we will go on with your hearing. In this event I shall ask you if you understand this immigration charge. I shall then ask you to plead innocent or guilty to being deportable on that charge. I shall then give you an opportunity to present a defense, make a statement and to make a showing that you are not deport-able, if you wish to do so.\nDo you understand what I am going to do?\nTHE INTERPRETER: By all respondents, yes.\nTHE COURT: All right. Mr. Ortiz would you come up first please?\nDo you speak English, Mr. Ortiz?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: Would you speak to me in English?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: All right sir. And is your full name Raul Ortiz-Rivera?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: Do you want a free lawyer to represent you, Mr. Ortiz?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Do you understand that you are being charged with being deporta-ble as an alien who was convicted of a cocaine violation?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: How do you plead to that deportation charge?\nRESPONDENT ORTIZ-RIVERA:\n* Guilty.\nTHE COURT: Are you a United States Citizen?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Were you born in Mexico?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: Did you enter the United States without being inspected and without documents in May of 1988?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: Were you convicted during April of 1989 in Los Angeles for the cocaine offense?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: Now, you speak English well. Have you lived here for a long time?\nRESPONDENT ORTIZ-RIVERA:\n*Yes.\nTHE COURT: All your life?\nRESPONDENT ORTIZ-RIVERA:\n*Most of it.\nTHE COURT: Have you ever had any legal papers?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: You’ve never been immigrated with your mother and father and so forth?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Did they get visas? Did your mother and dad—\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Do you know why?\nRESPONDENT ORTIZ-RIVERA: *1 was in trouble.\nTHE COURT: I asked you the question because if you’ve lived here for many years and you are an immigrant than [sic] you have a right to make an application for a waiver. And you are sure you have never immigrated then? You’ve never had any legal immigration papers?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Do you believe that you have a legal right to be in this country?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: If you do make the argument, I may not agree with you but I would like to hear what you have to say. Is there any argument at all?\nRESPONDENT ORTIZ-RIVERA:\n*No.\nTHE COURT: Okay. Thank you very much Mr. Ortiz. Good luck sir.\n(Whereupon the Court Questions Other Respondents)\nTHE COURT: Gentleman [sic], based on what you’ve told me and your concession that you are deportable, I will now sign an order for your deportations. And this means that as soon as you complete your time here the immigration service will arrange for your transportation back to your country.\nI wanted to mention again to you that if you are not satisfied with the decision you have a right to take an appeal to a higher court. If you wish to appeal please stand and then I will explain the appeal process in more detail and have someone help you fill out the appeal application.\nThe record may reflect that none of the respondents is standing.\nMr. Yee?\nMR. YEE: The service waives appeal.\nTHE COURT: All right. Gentleman [sic], good luck. We hope everything works out well for you. The hearing is closed.\nPROCEEDINGS CONCLUDED\n* * * * * *\nIV\nOur recent decision in United States v. Lopez-Vasquez, 1 F.3d 751 (9th Cir.1993) (per curiam), compels the conclusion that Ortiz-Rivera was deprived of his right of direct appeal from his deportation proceeding, and must therefore be allowed to mount a collateral challenge against that proceeding here.\nLike this case, Lopez-Vasquez was an appeal from a conviction under 8 U.S.C. § 1326. Lopez-Vasquez argued that the record of his underlying group deportation hearing did not show a knowing and intelligent waiver of his right to appeal. The record revealed that Lopez^-Vasquez had not been individually questioned as to whether he wished to appeal the determination that he was deportable, and had not personally stated that he did not wish to appeal. Rather, the immigration judge had asked the respondents as a group whether they wanted to appeal, inviting anyone who did to stand up. The record showed that all of the respondents, including Lopez-Vasquez, had remained seated.\nIn Lopez-Vasquez, we characterized this procedure as “mass waiver by silence,” and held that such a procedure “made it impossible to determine whether [Lopez-Vasquez] made a voluntary and intelligent decision to” waive his right to appeal. Id. at 754. We are not at liberty to disregard this holding. Although the facts of this case are in some respects quite different from those in Lopez-Vasquez, our holding there makes all of these differences irrelevant. Under Lopez-Vasquez, it is impossible for us to say that Ortiz-Rivera knowingly and intelligently waived that right. We must therefore entertain his collateral challenge to the constitutionality of the deportation proceeding.\nV\nSince we have already concluded that Ortiz-Rivera was improperly deprived of his right to appeal, the only remaining question is whether he was prejudiced by that deprivation, such that the prior proceeding must be deemed fundamentally unfair. Again, Lopez-Vasquez controls our decision. That case, like this one, was litigated in the district court during the interregnum between the original panel decision in Proar-Tovar and our subsequent en banc decision in the same case. The panel decision had held that a section 1326 defendant need not show actual prejudice from a defective waiver of appeal in order to succeed in a collateral attack on the underlying deportation order. Relying on that decision, as he was entitled to do, Lopez-Vasquez made no effort to introduce any evidence of prejudice in the district court. By the time his case reached this court, of course, the law of this circuit had changed. Under our superseding en banc decision in Pmctr-Tovar, a showing of prejudice is required. Thus, recognizing that because our law had changed during the pendency of his appeal, “neither Lopez-Vasquez nor the district court considered the question of prejudice,” we held that he was entitled to a remand in order to make whatever showing he chose on the question of prejudice. Lopez-Vasquez, 1 F.Bd at 763.\nThe narrow circumstances that justified remand in Lopez-Vasquez mandate a similar result here. Accordingly, we remand to the district court in order to permit Ortiz-Rivera to introduce evidence of prejudice from the invalid waiver of his right to appeal his deportation order.\nREVERSED and REMANDED.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Humberto Diaz, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.", "Michael Terrell, Asst. U.S. Atty., Los An-geles, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTIZ-RIVERA, Defendant-Appellant.\nNo. 92-50469.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted March 4, 1993.\nSubmission Vacated April 12, 1993.\nResubmitted June 29, 1993.\nDecided July 26, 1993.\nHumberto Diaz, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.\nMichael Terrell, Asst. U.S. Atty., Los An-geles, CA, for plaintiff-appellee.\nBefore: SCHROEDER, THOMPSON, and O’SCANNLAIN, Circuit Judges."} | SCHROEDER | THOMPSON | O’SCANNLAIN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 763 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,339 | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY BAKERY, INC., Respondent | National Labor Relations Board v. Valley Bakery, Inc. | 1993-02-24 | No. 91-70352 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WALLACE, Chief Judge, and CHOY and POOLE, Circuit Judges."], "parties": ["NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY BAKERY, INC., Respondent."], "opinions": [{"text": "ORDER\nIn view of the petition for rehearing and/or suggestion for rehearing en banc filed by the National Labor Relations Board herein, the court makes the following amendment to its opinion filed on February 24, 1993:\nDelete the portion of the second paragraph on page 1375 from “Moreover, in NLRB v. Smith Industries.... ” to and including the first sentence on page 1376 ending with “influenced any votes.”.\nJudge Poole has revised his dissenting opinion filed herein to conform to the above mentioned deletion from the majority opinion. Judge Poole’s revised dissenting opinion is being sent herewith to the clerk for filing.\nThe panel majority has voted to deny appellant’s petition for rehearing and to reject the suggestion for rehearing en banc.\nThe full court has been advised of the suggestion for rehearing en bane and the amendments to the majority and dissenting opinion, and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.\nWith the court’s opinion, which was filed on February 24, 1993, and the dissenting opinion amended as above mentioned, the petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.\nOPINION\nCHOY, Circuit Judge:\nThe National Labor Relations Board (“NLRB” or “Board”) petitions for enforcement of its order that Valley Bakery, Inc. (“Valley” or “Company”) bargain with the Bakery, Confectionary & Tobacco Workers International Union, Local No. 85, AFL-CIO (“Union”). Because the Regional Director should have conducted an evidentiary hearing on the Company’s claims of election misconduct by the Union, we decline to enforce the Board’s order and remand for an eviden-tiary hearing.\nI. PROCEDURAL & FACTUAL BACKGROUND\nOn April 19, 1990 the Union filed a petition seeking a representation election at the Company. On June 6, 1990 the NLRB held an election at which employees cast twelve votes for and nine votes against Union representation.\nThe Company timely objected to the election alleging, inter alia, that the Union or its agents coerced employees to vote in its favor by telling employees that they would be fired if the Union lost the election. In support of these objections Valley submitted the declaration of Nancy Gallagher, its Personnel Director. According to Gallagher, after the election she asked a Valley employee, who characterized herself as a strong Union supporter, why the Company had lost the election. The employee agreed to discuss the election but only on the condition that she not put anything in writing, identify any individuals, or disclose specific activities which she had promised the Union she would keep confidential. The employee told Gallagher that employees were afraid to vote against the Union because they were told that those employees who previously had signed authorization cards would be discharged by Valley if the Union did not win the election. When asked who made the employees believe they would be fired, the employee declined to answer on the ground that to do so would reveal confidences. On the basis of this declaration, the Company requested an eviden-tiary hearing in order to compel sworn testimony of adverse witnesses.\nThe NLRB’s Acting Regional Director conducted an investigation and issued his Report and Recommendations on Objections on June 28,1990. He overruled all the Company’s objections, including objection three which stated: “The Union coerced employees to cause them to vote for the Union.” The Regional Director found that the Gallagher declaration established that threats were made, but that it did not establish that the Union was responsible for making them. Moreover, the Director found that, even assuming that the Union had made the threats, the employees reasonably could be expected to evaluate such remarks as being illogical and unenforceable and, therefore, noncoer-cive. The Director reached this conclusion because no evidence suggested that Valley favored the Union or was disposed to discharge employees if the Union lost the election. Moreover, the Company did not know who supported the Union before the election because employees signed the authorization cards in confidence.\nOn July 11, 1990 the Company filed timely exceptions to the Regional Director’s Report. In particular, Valley excepted to the Regional Director’s failure to find that Valley had presented substantial and material facts which, if true, established a nexus between the threats made and the Union or its agents. It also challenged the Director’s conclusions that Company employees necessarily would have rejected the threats and that these threats did not have an adverse effect on the election results. On September 18, 1990 the Board issued its decision adopting the Regional Director’s findings and recommendations and certifying the Union as the employees’ bargaining agent.\nThereafter, the Company refused to recognize or bargain collectively with the Union. On December 19, 1990 the Union filed a complaint alleging that, by refusing to bargain with the Union or to provide it with requested information that was necessary and relevant to its representation, Valley engaged in unfair labor practices in violation of section 8(a)(5) and (1) of the National Labor Relations Act (“NLRA” or “the Act”), 29 U.S.C. § 158(a)(5) and (1).\nIn its answer the Company admitted that it refused to bargain with the Union or to recognize it as the exclusive representative of Valley employees. The Company denied, however, both that the Board’s certification of the Union was lawful and effective and that Valley’s refusal to bargain with the Union was unlawful. The Company’s affirmative defense was that the Board’s certification of the Union was unlawful and unenforceable due to the Union’s alleged threats and coercive conduct.\nNLRB General Counsel moved for summary judgment and the ease was transferred to the Board. In its opposition to the motion, the Company reiterated the contentions contained in its answer. On March 15, 1991 the Board issued its Decision and Order ruling that Valley had engaged in unfair labor practices. The Board ordered the Company to bargain with the Union and to furnish it the information it requested. The Board petitioned this court to enforce its order and Valley seeks review of the certification proceeding underlying the Board’s order.\nII. DISCUSSION\nThe law governing the issue raised in this case is straightforward. To obtain an evidentiary hearing on an election objection, the objecting party must make a prima facie showing that substantial and material issues of fact exist that would warrant setting aside the election. 29 C.F.R. § 102.69(d); Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1344 (9th Cir.1987); Alson Mfg. Aerospace Div. of Alson Indus, v. NLRB, 523 F.2d 470, 472 (9th Cir.1975).\nTo establish a prima facie case, the objecting party must plead facts which, if true, would support a finding that (1) threats were made, and (2) an “employee was actually coerced or intimidated” by the threats. NLRB v. Belcor, Inc., 652 F.2d 856, 861 (9th Cir.1981); see also May Dep’t Stores v. NLRB, 707 F.2d 430, 432 (9th Cir.1983). When the Board refuses to hold an evidentiary hearing, the court “must construe the ‘well pleaded factual assertion of the objection most favorably to the excepting party’.... ” Bell Foundry Co., 827 F.2d at 1344 (quoting Belcor, Inc., 652 F.2d at 859).\nThe Board’s decision not to grant an evidentiary hearing on election objections is reviewed for an abuse of discretion. Bell Foundry Co., 827 F.2d at 1344. If the Board abused its discretion in failing to hold a hearing, the employer’s refusal to bargain with the Union is not an unfair labor practice. See NLRB v. West Coast Liquidators, Inc., 725 F.2d 532, 534 (9th Cir.1984); Advanced Systems, 681 F.2d at 572.\nValley argues that the Regional Director erred in concluding that Gallagher’s declaration concerning statements made by a Valley employee did not establish a substantial and material factual issue sufficient to warrant an evidentiary hearing. Valley contends that the employee’s refusal to identify those who made the allegedly threatening remarks, when coupled with her invocation of the pledge of confidentiality to the Union, is pri-ma facie evidence that the Union was responsible for the threats.\nBecause this court construes all factual assertions most favorably to the excepting party, Bell Foundry Co., 827 F.2d at 1344, we find that the Company has presented enough evidence to obtain an evidentiary hearing. It is true that to establish a prima facie case, “[t]he proffer [of evidence] may not be conclusory or vague; it must point to specific events and specific people.” Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir.1981). Notably, however, “an employer seeking evidence [to prove election misconduct] has access to very limited discovery; it must proceed in an exceedingly careful manner to avoid being accused of coercive interrogation of employees.” NLRB v. J-Wood/a Tappan Div., 720 F.2d 309, 316 (3d Cir.1983) (citation omitted). It is, therefore, “unreasonable to expect an employer to document its objections with the kind of evidence that realistically could be uncovered only by subpoena and an adversarial hearing.” Id. at 316.\nThe Gallagher declaration is circumstantial evidence that implied threats were made that employees would lose their jobs if they had signed authorization cards and the Union lost the election. The Regional Director found that no nexus existed between the Union and the threats, but the only reasonable inference to draw from the employee’s invocation of her pledge of confidentiality is that the Union or its agents made the statements. Cf. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989) (all reasonable inferences drawn in favor of non-moving party in summary judgment motion); Linn Gear Co. v. NLRB, 608 F.2d 791, 793 (9th Cir.1979) (same rule applicable in NLRB proceedings).\nThe remaining question is whether these statements constituted threats that could have coerced or intimidated employees to vote for the Union. Relying on Janler Plastic Mold Corp., 186 N.L.R.B. 540 (1970), the Regional Director found that a threat that the Company would fire employees if the Union lost the election was illogical and unreasonable, since that result was what the Company wanted. Although the Seventh Circuit denied enforcement of the Board’s order in that case, holding that union threats of job loss were more than mere campaign propaganda, NLRB v. Janler Plastic Mold Corp., 82 L.R.R.M. (BNA) 2174, 1972 WL 3086 (7th Cir.1972), the Board subsequently upheld the election, determining that the statements at issue were not coercive. Janler Plastic Mold Corp., 208 N.L.R.B. 167, 1974 WL 4600 (1974). Janler, however, is not on point. The threats alleged in that case were to the effect that “employees would lose their jobs if they did not vote for” the union. Janler, 186 N.L.R.B. 540. Such an assertion might indeed be labeled illogical, and Valley’s employees could be expected to conclude that the Company would not retaliate against those who aided its cause by voting against the Union. The only plausible interpretation of the threats alleged in this case, however, was that if the Union lost the election the Company would be free to retaliate against employees who had previously signed union authorization cards by firing them, and that it would in fact do so.\nThe Regional Director found that this threat, even if a true representation of the employer’s intentions, could not be carried out by the Company since employees signed the authorization cards in confidence. One cannot assume, however, that employees knew that the Company could not discover who had signed the cards. The Regional Director did not report any evidence uncovered in his investigation that would support the conclusion that employees could evaluate these statements. Cf. Janler Plastic Mold Corp., 82 LRRM (BNA) at 2174 (evidentiary hearing required where regional director did not advert to alleged threats and inadequate factfinding was conducted).\nThe Regional Director also overruled the Company’s objection because the Union had no power to carry out the threat. The Board cites several cases in its brief where courts have refused to set aside elections when the union had no power to carry out its threats, but those cases are different from this one. In one case, the union won the election by a wide margin and the company was unable to present any evidence that enough votes were influenced to have affected the outcome of the election. See NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924 (5th Cir.1976) (156-77 vote in favor of union), cert. denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977). The need for a hearing is particularly great when the election is close. NLRB v. Chicago Metallic Corp., 794 F.2d 527, 532 (9th Cir.1986); J-Wood, 720 F.2d at 317; NLRB v. Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir.1978). In this case, the Union only won by three votes; if two voters were influenced by the statements the election result would have been different.\nIn another case cited by the Board, there was affirmative evidence in the record demonstrating that the alleged threats did not influence any votes. NLRB v. Bostik Div., USM Corp., 517 F.2d 971, 973 (6th Cir.1975). Moreover, in NLRB v. A.G. Pollard Company, 393 F.2d 239, 241 (1st Cir.1968) the court held that “there were adequate grounds for the director’s finding that the assertions were capable of evaluation by the employees _” Finally, in Olson Rug Company v. NLRB, 260 F.2d 255 (7th Cir.1958), the statements were contained in campaign literature, enabling the court to review carefully the statements and conclude that they did not influence the election.\nIn this case there was no evidence or other adequate grounds to support a conclusion that the statements had no influence on the election. Moreover, since it is unclear exactly what the statements were, it is difficult for the court to evaluate the effect they may have had on any particular voter. None of the cases cited by the Board hold that union statements about an employer’s actions over which the union has no power to influence can never affect the free choice of employees’ votes. In this case, with the evidence the Company was able to present and the reasonable inferences to be drawn from that evidence, the statements may have influenced some employees’ votes and, therefore, the Regional Director should have conducted an evidentiary hearing.\nThe Board’s petition for enforcement is DENIED, and the case REMANDED for an evidentiary hearing.\n. This court cannot directly review an election certifying a union. If, however, the company refuses to bargain with the union, that certification may be reviewed in a petition from the ensuing unfair practice proceedings. NLRB v. Advanced Systems, Inc., 681 F.2d 570, 572 n. 1 (9th Cir. 1982) (citing NLRB v. Dick Seidler Enters., 666 F.2d 383, 385 n. 1 (9th Cir. 1982)). Such is the case here.\n. Where the threats are inherently coercive the employer need only show that they were made to be entitled to an evidentiary hearing. Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1019 (9th Cir.1981).\n. Similarly, in NLRB v. Nixon Gear, Inc., 649 F.2d 906, 913 (2d Cir.1981) (citation omitted) the Second Circuit concluded that: \"Firsthand testimony establishing that the Union intended the improper conduct could only come from [the employee who allegedly was induced by the Union] or Union officials. But it was impossible for the Company to obtain their testimony because without a hearing an employer must rely upon voluntary cooperation of witnesses to develop its case.”\n. At oral argument, the Board relied on its Midland rule to support this conclusion, but this was not argued in its brief and we consider it waived. In re Riverside-Linden Invest. Co., 945 F.2d 320, 324 (9th Cir.1991); Miller v. Fairchild Indus., 797 F.2d 727, 738 (9th Cir.1986).\n. The same applies to the statements at issue in Machinery Overhaul Company, 38 LRRM (BNA) 1169 (1956).\n. The Company points out that it attempted to interview employees to discover to whom the statements were made and determine precisely what was said. They were unable to uncover any evidence without the power to compel testimony that would accompany an evidentiary hearing.", "type": "majority", "author": "CHOY, Circuit Judge:"}, {"text": "POOLE, Circuit Judge,\ndissenting:\nBecause I would hold that the Board did not abuse its discretion by failing to hold an evidentiary hearing, I respectfully dissent.\nIn support of its claim that the Union coerced Valley employees to vote for it, Valley submitted only a declaration by a supervisor that an employee told her that “employees were told” that anyone who signed an authorization card would be fired if the Union lost the election. The employee refused to identify who made the statements.\nIn upholding the Union’s certification, and in denying Valley an evidentiary hearing, the Regional Director found that threats of retaliatory discharge had been made and that the supervisor’s declaration did not establish that the Union made the threats. The Regional Director further found that even if the Union made the threats, employees would evaluate the threat of firing as illogical because (1) there was no evidence that Valley would fire employees and (2) employees signed the authorization cards in confidence and there was no evidence that Valley knew who signed the cards.\nThe Regional Director did not abuse his discretion by failing to hold an evidentiary hearing on the ground that the employees would be able to evaluate the threat of firing as illogical. See Bell Foundry Co. v. NLRB, 827 F.2d 1840, 1344 (9th Cir.1987) (abuse of discretion standard). Threats of job loss that cannot be carried out do not provide a basis for invalidating the election. See NLRB v. Chicago Metallic Corp., 794 F.2d 527, 532 (9th Cir.1986) (“[cjoercive misconduct only warrants the setting aside of an election when it so influenced potential voters that a free choice [became] impossible”) (quotation omitted); NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924 (5th Cir.1976) (union’s threat that employees would be fired if the union lost was not objectionable because the threat was unenforceable), cert. denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977); NLRB v. Bostik Div., USM Corp., 517 F.2d 971, 973-74 (6th Cir.1973). The election arguably would be invalid, and an evidentiary hearing appropriate, only if the threat “could provoke reasonable concern among employees that they could lose their jobs.” See Van Leer Containers, Inc. v. NLRB, 841 F.2d 779, 780-81 (7th Cir.1988) (union represented employees of new plant who reasonably could think that employees at closed plant might replace them if the union lost the election); accord Chicago Metallic Corp., 794 F.2d at 532.\nThe majority nevertheless argues that an evidentiary hearing is appropriate because “there was no evidence or other adequate grounds to support a conclusion that the statements had no influence on the election.” The majority has it backwards: to obtain an evidentiary hearing, Valley had the burden of showing “substantial and material factual issues that would, if true, warrant setting aside the election.” Bell Foundry, 827 F.2d at 1344. Even assuming that the Union made the threats, Valley did not establish a substantial and material issue of fact that the threats were anything but idle or that the employees were incapable of evaluating them.\nIn sum, the Board has broad discretion in determining the propriety of the election process. See Chicago Metallic Corp., 794 F.2d at 532. I would uphold the Board’s discretionary determination not to hold an eviden-tiary hearing on the ground that Valley did not present a prima facie case for setting aside the election, and I would grant the Board’s petition for enforcement of its order that Valley bargain with the Union. Accordingly, I dissent.\n. I also reject the majority's assertion that Valley can obtain evidence only “by subpoena and an adversarial hearing” and thus is entitled to a fishing expedition to obtain evidence. See Natter Mfg. Corp. v. NLRB, 580 F.2d 948, 952 n. 4 (9th Cir. 1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1045, 59 L.Ed.2d 89 (1979).", "type": "dissent", "author": "POOLE, Circuit Judge,"}], "attorneys": ["John D. Burgoyne and Collis Suzanne Stocking, N.L.R.B., Washington, DC, for petitioner.", "Harry Finkle, Finkle, Davenport & Bart-samian, Fresno, CA, for respondent."], "corrections": "", "head_matter": "NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY BAKERY, INC., Respondent.\nNo. 91-70352.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted July 15, 1992.\nDecided Feb. 24, 1993.\nAs Amended on Denial of Rehearing and Rehearing En Banc Aug. 9, 1993.\nJohn D. Burgoyne and Collis Suzanne Stocking, N.L.R.B., Washington, DC, for petitioner.\nHarry Finkle, Finkle, Davenport & Bart-samian, Fresno, CA, for respondent.\nBefore: WALLACE, Chief Judge, and CHOY and POOLE, Circuit Judges."} | WALLACE | CHOY | POOLE | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 769 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,416 | Howard T. KREISNER, et al., Plaintiffs-Appellants, v. CITY OF SAN DIEGO, Defendant-Appellee | Kreisner v. City of San Diego | 1993-03-03 | No. 90-55354 | United States Court of Appeals for the Ninth Circuit | {"judges": "Before: BOOCHEVER, KOZINSKI, and O’SCANNLAIN, Circuit Judges.", "parties": ["Howard T. KREISNER, et al., Plaintiffs-Appellants, v. CITY OF SAN DIEGO, Defendant-Appellee."], "opinions": [{"text": "ORDER\nThe majority opinion filed on March 3, 1993 is amended as follows:\n[Editor’s Note: Amendments have been incorporated into published opinion.]\nA majority of the panel voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Boo-chever would grant the petition for rehearing and recommended acceptance of the suggestion for rehearing en banc.\nThe full court was advised of the en banc suggestion. An active judge of the court requested an en banc vote. The case failed to receive a majority of the votes of the non-recused active judges. Fed.R.App.P. 35. With the above amendments, the petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.\nOPINION\nO’SCANNLAIN, Circuit Judge:\nThis appeal squarely presents a conflict between two of our most deeply cherished liberties: freedom of speech and freedom of religion. The question we must decide is whether the City of San Diego may, consistent with the Establishment Clause of the United States Constitution, permit a private group to erect a religious display in a public park during the Christmas season. Because the park is a traditional public forum removed from the seat of government, we hold that the City may permit the display provided it does so in a non-discriminatory manner.\nI\nSan Diego’s Balboa Park is a 1200-acre public park containing recreational facilities ranging from theatres, museums, and a zoo to picnic areas and sporting fields. Every year during the Christmas holiday season, Balboa Park is the site of a holiday display. The City, in conjunction with a private nonprofit group known as the Community Christmas Center Committee (“the Committee” or “the Christmas Committee”), sponsors a secular holiday display, which includes a Santa Claus, reindeer, a Christmas tree, and numerous festive colored lights. That display is not challenged here.\nSome 250 feet away from the secular display, and partially separated from it by a wall and a road, is a small, open-air amphi-theatre known as the Organ Pavilion. Each year, the Christmas Committee is granted a permit to set up a display consisting of scenes from the New Testament in the Organ Pavilion. The Committee’s display, which remains in place for approximately six weeks from late November through early January, includes eight scenes, four of which are placed on each side of the Pavilion’s stage. Each scene is housed in a palm-covered booth ten feet high and fourteen feet wide. Each contains life-size statuary depicting a biblical scene from the life of Christ, a painted backdrop, and a descriptive sign. Seven of the eight scenes also include gospel passages in English and Spanish. As described by the signs, the eight scenes and their accompanying biblical passages are as follows:\nScene The Annunciation\n[no description; Mary and Joseph being turned away from the inn.] Angel appearing before the shepherds\nThe birth of Christ\nWise Men on their way to Bethlehem\nThe Flight into Egypt\nChrist in the Temple Suffer the little children to come unto me\nBiblical Quotation “Fear not Mary: for thou hast found favour with God; and behold, thou shalt bring forth a son, and shalt call his name Jesus.” Luke 1:30-31\n“there was no room for them at the Inn;” Luke 2:7\n“The shepherds said, let us now go ... and they came with haste and found both Mary and Joseph, and the babe lying in a manger.” Luke 2:15-16\n[text does not appear in record] “Behold, wise men from the east came to Jerusalem saying, Where is he that is born King of the Jews? ... for we are come to worship him.” Matt. 2:1-2\n“Arise and take the young child and his mother, and flee into Egypt, for Herod will seek the young child to destroy him, and Joseph took them by night.” Matt. 2:13-14\n[no text] “But Jesus said, Suffer the little children to come unto me, and forbid them . not; for to such belongeth the Kingdom of God.” Mark 10:14\nOne or more disclaimer signs, stating that the Biblical display is privately sponsored and not allied with the City, accompany the display. The record does not reveal the size, text, or location of these disclaimers.\nThe Committee pays no fee for its use of the Organ Pavilion. The City ordinarily charges organizations who wish to reserve the Pavilion for exclusive use a fee varying from $440 to $1,325 per day, depending upon the nature of the use and the user. City regulations allow waiver of these fees for nonprofit community services organizations, defined as “recognized group[s], club[s], agencies] or organization^] whose activities are of a service or character building nature, who give service to the community as a whole, and ... where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group.”\nThe City explains that it charges no fee for the Committee’s display because the Committee’s use of the Organ Pavilion is “nonexclusive.” Other groups and individuals can and do use the Pavilion while the display is in place. The City represents that, if another user so requests, it will require the Committee to cover the display while any overlapping exclusive use permit is in effect.\nThe Committee’s Biblical display has been an annual tradition in Balboa Park since 1953. The Committee has always owned the statuary and booths. Before 1988, the display was erected and removed each year by City employees, and stored on City property. In the wake of an opinion issued by the City Attorney to the effect that the City’s involvement was unconstitutional, the Committee now erects, removes, and maintains the display itself, and stores it on private property. The Committee reimburses the City $150 for the estimated cost of electricity used by the display. The City provides no other services in connection with the display.\nTo help defray the costs of the display, the Committee maintains donation barrels at the site. It also maintains a stock of small pamphlets, which contain a schedule of concerts and events to be held at the Pavilion during the Christmas season, a brief history of the Christmas Committee, and a plea for donations to support the Committee’s activities.\nActing pro se, appellant Howard Kreisner filed suit in the federal district court seeking to prevent the City from allowing the Committee to erect the display on public property. Kreisner alleged that the City’s decision to permit the display in Balboa Park violated the religion clauses of both the federal and state constitutions. His complaint requested declaratory and injunctive relief, as well as punitive and other damages.\nThe parties agreed that no material facts were in dispute, and submitted cross motions for summary judgment. On November 8, 1989, Judge Enright granted judgment for the City on the federal claim and dismissed the state claim. This timely appeal followed. This court appointed counsel to represent Kreisner on appeal.\nAfter the appeal was argued before this panel, it became obvious that the parties disagreed about the nature of the City’s permit policy in Balboa Park. They submitted competing declarations and affidavits describing the policy to us. To resolve the dispute, we remanded to the district court for entry of factual findings. The district court (Judge Huff, following Judge Enright’s recu-sal) held a hearing and determined that the City followed a first-come, first-served policy in Balboa Park. Judge Huff also reaffirmed Judge Enright’s conclusion of law that permitting the display on public property did not violate the Establishment Clause of the United States Constitution.\nWe solicited additional briefing from the parties, and postponed submission pending the decision of the Supreme Court in Lee v. Weisman, — U.S. -, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). We now affirm.\nII\nA\nThe First Amendment provides that “Congress shall make no law respecting an establishment of religion_” U.S. Const. amend. I. Although written as a limitation upon congressional power, this clause also operates, through the Fourteenth Amendment, to constrain the power of state governments. See Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 604, 507, 91 L.Ed. 711 (1947).\nLike most cherished social values, the principle of religious freedom that is embodied in the Establishment Clause is easy to proclaim but difficult to define: “Candor compels acknowledgment ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The Supreme Court has, however, generally articulated the boundaries of the Clause’s coverage. In a world of constant compromise and qualification, the Establishment Clause\nmeans at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.\nEverson, 330 U.S. at 15-16, 67 S.Ct. at 511-12 (quoting Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1879)). Or, more succinctly put:\nIn the course of adjudicating specific cases, [the Supreme Court] has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.\nCounty of Allegheny v. ACLU (“Allegheny County”), 492 U.S. 573, 590-91, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472 (1989).\nOn the other hand:\nThe First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.\nLee v. Weisman, — U.S. at -, 112 S.Ct. at 2661 (quoting Abington School District v. Schempp, 374 U.S. 203, 308, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring)). The Constitution “permits government some latitude in recognizing and accommodating the central role religion plays in our society.” Allegheny County, 492 U.S. at 657, 109 S.Ct. at 3135 (Kennedy, J., concurring and dissenting).\nApplying these general tenets in the context of a particular case “remains a delicate and fact-sensitive” task. Lee v. Weisman, — U.S. at -, 112 S.Ct. at 2661.\nIn each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause “was to state an objective, not to write a statute.”\nLynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 671, 90 S.Ct. 1409, 1413, 25 L.Ed.2d 697 (1970)).\nIn the context of religious holiday displays, the Court’s Establishment Clause jurisprudence has been particularly factbound. No clear general principles emerge from the two most recent cases considering the constitutionality of such displays. In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Court found no Establishment Clause violation in the City of Pawtucket’s ownership and annual display of holiday decorations including, among other things, a Santa Claus, a Christmas tree, and a Nativity scene. The display was located in a privately-owned park in the heart of the City’s shopping district. In Allegheny County, a deeply divided Court held unconstitutional the display of a privately-owned creche on the “Grand Staircase” of the County courthouse, but permitted a second privately-sponsored display consisting of a menorah, a Christmas tree, and a sign saluting liberty outside a government office building a block from the courthouse. Together, Lynch and Allegheny County call for a detailed contextual inquiry that has been aptly described as “requiring scrutiny more commonly associated with interior decorators than with the judiciary.” American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting).\nB\nAlthough the Court has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area,” Lynch, 465 U.S. at 679, 104 S.Ct. at 1362, it has generally applied the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether a challenged practice or statute comports with the Establishment Clause. Moreover, despite criticisms by current members of the Court, see Lee v. Weisman, — U.S. at -, 112 S.Ct. at 2685 (Scalia, J., dissenting) (cataloging such criticisms), the Supreme Court expressly declined to reconsider the Lemon test in Lee, id. at -, 112 S.Ct. at 2655 (opinion of the Court). We therefore see no justification for the dissent’s articulation of a new Establishment Clause test.\nEven were a new test warranted, the dissent’s proposed sliding scale test has what we see as a major flaw: It requires the court to judge the “intensity” of the religious message. This is problematic in a several significant ways. First, an inquiry into the intensity of a religious symbol essentially asks how “central” that symbol is to the faith it represents. For example, is a menorah more intense than a cross? The Supreme Court has disapproved this sort of inquiry in religion cases. See Employment Division v. Smith, 494 U.S. 872, 886-87, 110 S.Ct. 1695, 1604, 108 L.Ed.2d 876 (1990) (constructing free exercise test to avoid judicial inquiry into the “centrality” of a practice to a person’s faith); see also Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148, 104 L.Ed.2d 766 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith-”); United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (“It is not within the judicial function and judicial competence, however, to determine whether appellee or the Government has the proper interpretation of the Amish faith-”) (quotation omitted). Second, the dissent’s test raises a difficult question of perspective. The dancing Siva, Nataraja, has much religious import to a Hindu, but its significance would be lost on most Americans. From whose perspective do we determine intensity? The reasonable Judeo-Christian observer? There are no judicially manageable standards to apply in making these sensitive judgments. Finally, the likely consequence of the dissent’s test would be that only diluted religious messages would be allowed in public forums. Yet Lee v. Weisman cautioned against precisely this result:\nThe First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “[Ejxperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.”\nId. at -, 112 S.Ct. at 2656-57 (citations omitted). In the same way that government-crafted prayers threaten to water down religious messages, permitting only those Christmas displays that are of minimal “intensity” will detract from or destroy their religious significance. The Lemon test focuses our inquiry on the objective circumstances — such as its location and sponsorship — that measure the government’s involvement in the religious display. The test thus avoids the serious risks associated with judicial scrutiny of the content of the message conveyed.\nIn our application of the Lemon test, we take guidance from Allegheny County, 492 U.S. at 592, 109 S.Ct. at 3100; where the Court explained:\nUnder the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.\nThe challenged practice must survive all three prongs of the Lemon analysis in order to pass constitutional muster. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). Kreisner argues that the City’s grant of a permit allowing the Committee to erect its display in Balboa Park violates each facet of the Lemon test.\n1\nA government practice or statute fails the purpose prong of Lemon if its purpose is to endorse a religious custom or viewpoint. See Allegheny County, 492 U.S. at 592, 109 S.Ct. at 3100; Edwards, 482 U.S. at 593, 107 S.Ct. at 2582; Wallace v. Jaffree, 472 U.S. 38, 60, 105 S.Ct. 2479, 2491, 86 L.Ed.2d 29 (1985). “Government endorsement of religion has been found when the government conveys or attempts to convey a message that a particular religion is favored or preferred, or when it promotes one religion or religious theory against another or even against the militant opposite.” Cammack v. Waihee, 932 F.2d 765, 773 (9th Cir.1991), cert. denied, — U.S. ——, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992). As Justice O’Con-nor explained in her concurring opinion in Lynch: “The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion.” Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O’Connor, J., concurring).\nA practice will stumble on the purpose prong “only if it is motivated wholly by an impermissible purpose.” Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 2570, 101 L.Ed.2d 520 (1988); Cammack, 932 F.2d at 774. A reviewing court must be “reluctant to attribute unconstitutional motives” to government actors in the face of a plausible secular purpose. Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 3067, 77 L.Ed.2d 721 (1983).\nWe have no difficulty concluding that the City’s decision to permit the Committee to erect its holiday display in Balboa Park is supported by a legitimate, sincere secular purpose. The City cites two, such purposes: (1) the promotion of holiday spirit and (2) the promotion of free expression. We need not consider the City’s first avowed purpose because the second suffices. The Supreme Court has made it clear that a policy of permitting open access to a public forum, including non-discriminatory access for religious speech, is a valid secular purpose. Board of Education v. Mergens, 496 U.S. 226, 249, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990); Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70 L.Ed.2d 440 (1981).\nThe City’s past sponsorship of the display does not undercut our conclusion. It is undisputed that the City no longer acts as a sponsor. Further, the City has taken affirmative steps to disassociate itself from the Committee and the display. Under the circumstances, the City’s past conduct is not persuasive evidence of its current motives.\n2\nPurposes aside, Kreisner contends that the principal and primary effect of granting the Committee’s annual request for a permit is to advance one particular religion and its theological viewpoint. The test under this prong is whether “the challenged government action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.” School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985). The question, in other words, is whether the government’s action “actually conveys a message of endorsement” of religion in general or of a particular religion. Wallace, 472 U.S. at 69, 105 S.Ct. at 2496 (O’Connor, J., concurring in the judgment).\nWe assume that, were the Committee’s display sponsored by the government, its overwhelming message of glorification of the divinity of Jesus Christ would violate the Establishment Clause. Notwithstanding its strong religious content, however, we conclude that because the display is private speech in a traditional public forum removed from the seat of government it does not have the primary effect of advancing religion. We set forth below the reasoning by which we arrive at this conclusion.\na\nEssentially, the question presented here is whether placement of a private, overtly religious holiday display on public property represents government endorsement of religion. The Supreme Court has not yet squarely addressed this issue. Cf. Allegheny County, 492 U.S. at 600 n. 50, 109 S.Ct. at 3104 n. 50 (creche display on courthouse staircase does not raise public forum issue). This question was presented but not authoritatively resolved in Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985) (lower court decision holding that city could constitutionally allow private group to display creche in traditional public forum affirmed by an equally divided court). It has divided the circuits. See Doe v. Small, 964 F.2d 611 (7th Cir.1992) (en banc) (injunction forbidding display of religious paintings by private organization in public park held overbroad); Chabad-Lubavitch of Georgia v. Miller, 976 F.2d 1386 (11th Cir.1992) (per curiam) (private group properly prohibited from erecting menorah on plaza in front of, or in the rotunda of, state capitol building). Even within individual circuits, the answer has not always been consistent. Compare Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989) (holding that permitting private display of menorah in City Hall Park violated Establishment Clause), cert. denied, 496 U.S. 926, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990), with McCreary v. Stone, 739 F.2d 716 (2d Cir.1984) (holding that village’s grant of a permit allowing private group to display creche in public park did not violate Establishment Clause), aff'd by an equally divided court sub nom. Board of Trustees v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985). Indeed, as Judge Boggs, writing for the Sixth Circuit, noted in Americans United for Separation of Church and State v. City of Grand Rapids (“Grand Rapids I”), 922 F.2d 303 (6th Cir. 1990), virtually every panel to consider this issue has found itself divided.\nIn addressing ourselves to this difficult question, we start from the observation that Balboa Park, a public park which is held open for various expressive activities, is unquestionably a traditional public forum. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) (describing public parks as “quintessential public forums”); Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (parks have “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Religious speakers have the same right of access to public forums as others. Widmar, 454 U.S. at 269, 102 S.Ct. at 274; McDaniel v. Paty, 435 U.S. 618, 641, 98 S.Ct. 1322, 1335, 55 L.Ed.2d 593 (1978) (Brennan, J., concurring); O’Hair v. Andrus, 613 F.2d 931, 935 (D.C.Cir.1979) (“The government may not allocate access to a public place available for communication among citizens on the basis of the religious content of the messages.”); see also Lamb’s Chapel v. Center Moriches Union Free School Dist., — U.S. —, —-—, 113 S.Ct. 2141, 2147-48, 124 L.Ed.2d 352 (1993) (assuming arguendo that school premises constituted limited public forum, concluding that school district violated Free Speech Clause by denying church access to exhibit film solely because of religious subject matter).\nIt necessarily follows from the fact that Balboa Park, including the Organ Pavilion, is a traditional public forum, that the City may not enforce a content-based restriction on private speech there without a compelling interest, and that any such restriction must be narrowly tailored to achieve that interest. Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. at 954. This means that, absent some compelling state interest, the City cannot forbid the Committee from erecting its display in Balboa Park because of the religious content of the message. The Supreme Court has raised, but never resolved, the question whether avoiding an Establishment Clause violation provides a compelling state interest justifying a content-based restriction on speech in a public forum. See Widmar, 454 U.S. at 271, 102 S.Ct. at 275; see also Lamb’s Chapel, — U.S. at -, 113 S.Ct. at 2148. The Widmar analysis of such a case involves two steps: first, determining whether there is a violation of the Establishment Clause; then, deciding whether avoiding the violation is an interest sufficiently weighty to justify placing restraints on free speech.\nThus, in this case, we must first decide whether the City’s open forum policy, which accommodates the Committee’s religious display, violates the Establishment Clause. If it does not, the predicate is lacking for restricting speech in Balboa Park, and the policy will stand. If there is an Establishment Clause violation, we must turn to the (even more difficult) question of whether avoiding that violation provides a compelling state interest that justifies placing a content-based restriction on religious speech in a public forum — a restriction that would otherwise would be forbidden by the Free Speech Clause.\nb\nIn evaluating the effect of the City’s grant of a permit to the Committee, we apply the standard of a “reasonable observer.” Allegheny County, 492 U.S. at 620, 109 S.Ct. at 3115 (opinion of Blackmun, J.). This hypothetical observer is informed as well as reasonable; we assume that he or she is familiar with the history of the government practice at issue, as well as with the general contours of the Free Speech Clause and public forum doctrine. See Wallace, 472 U.S, at 76, 83, 105 S.Ct. at 2500, 2503 (O’Connor, J., concurring in the judgment). For purposes of this case, then, we assume that the reasonable observer is aware of Balboa Park’s public forum nature and the City’s first-come, first-served permit policy. Our observer realizes that the Park and the Organ Pavilion host an eclectic range of uses throughout the year.\nIn our view, such an observer could not fairly interpret the City’s tolerance of the Committee’s display as an endorsement of religion. To paraphrase Judge Boggs writing for the en banc court at a subsequent stage of the Grand Rapids litigation:\nBy allowing the display ... the city merely states that it neither favors nor disfavors religious speech. In fact, [the city] does not even go so far as to “acknowledge” religion by permitting the [biblical] display; it merely sends a message that religious groups will be treated no worse than others. Anyone familiar with [Balboa Park] soon realizes that many groups use it, and that none of these groups receives special treatment from [the city].\nAmericans United for Separation of Church and State v. City of Grand Rapids (“Grand Rapids IF), 980 F.2d 1538, 1545 (6th Cir.1992) (en banc). See also O’Hair, 613 F.2d at 935 (“When the National Mall is, as a matter of established policy, openly available on a non-discriminatory basis to the Pope, to the Reverend Moon, to Madalyn Murray O’Hair, and to all others (religionists and anti-religionists), there is no ‘establishment of religion,’ and there cannot be a meaningful perception of one.”). Because Balboa Park is a traditional public forum, we conclude that San Diego conveys no message of endorsement by allowing the Christmas Committee to display its biblical booths there.\nAgain, the City’s past sponsorship of the display does not mandate a different conclusion. We will not punish the Committee for the City’s past mistakes. “Neither official disfavor nor the rebound effect of official approbation can make a difference when the Constitution puts choice in private hands. A blunder by public officials cannot restrict the scope of private speech.” Doe v. Small, 964 F.2d at 629 (Easterbrook, J., concurring).\nWe reject Kreisner’s contention that public forum doctrine does not apply here because the Organ Pavilion is not a public forum for large unattended displays. This argument misperceives the nature of Balboa Park, which is a traditional public forum, not a public forum by designation. Designated public forums are areas opened and designated by the state for expressive activity. Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). Access to such designated public forums may be restricted “to the original recipients of the government’s permission and to entities similar in character.” Monterey County Democratic Central Comm. v. United States Postal Serv., 812 F.2d 1194, 1196 (9th Cir.1987). Thus, if Balboa Park were a designated public forum, the fact that the City permitted certain types of expressive activity there would not require it to permit other forms of speech, such as large unattended displays. Traditional public forums, such as parks and public streets, however, are open to all manner of speech, subject only to reasonable time, place, and manner restrictions. No affirmative government action is required to open a traditional public forum to a specific type of expressive activity.\nIn fact, we have grave doubts about the City’s ability, should it so choose, to withdraw the Organ Pavilion from its status as a traditional public forum. See United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983) (traditional public forum does not lose its historically protected character because of proximity to other property, or by governmental ipse dixit). In any event, the City has made no such effort to limit uses of the Organ Pavilion. The record before us provides no indication that the City has treated the Organ Pavilion as anything other than a traditional public forum. The Pavilion is open to use by a wide variety of persons for a wide variety of purposes throughout the year. In the absence of any evidence that the City has closed Balboa Park or the Organ Pavilion to large unattended displays, we assume it has not. Cf. Doe v. Small, 964 F.2d at 619 (plaintiff bears burden of proving that government denies access to public forum). Accordingly, we reject Kreisner’s argument that the Organ Pavilion is not a public forum for large unattended displays.\nKreisner relies on Kaplan, 891 F.2d at 1029, in which the Second Circuit held that allowing the private display of a menorah in City Hall Park would violate the Establishment Clause in part because “prior to the grant of the permits for the display of the menorah, [the City] had not created a forum in City Hall Park open to the unattended, solitary display of religious symbols.” We do not find Kaplan’s reasoning persuasive in the context of a traditional public forum such as Balboa Park. The mere fact that no other speaker in Balboa Park, so far as the record reveals, has chosen the medium of an unattended display cannot justify a rule of law that would force the City to forbid such displays based upon their religious content. Cf. Kaplan, 891 F.2d at 1032 (Meskill, J., dissenting) (“The park’s status as a public forum does not depend upon whether the City has in the past permitted a particular type of speech or form of expressive conduct.”). We refuse to place the burden on the City of showing that a traditional public forum is open to any particular form of speech. Rather, we think the burden must be on Kreisner to show that the City has dosed the forum to large displays other than the Committee’s. This burden has not been met.\nNor are we persuaded that under our interpretation the “public forum doctrine would swallow up the Establishment Clause.” Kaplan, 891 F.2d at 1029. Public forum or not, the Establishment Clause limits the ability of government to engage in or to support religious speech. The City may not sponsor the Committee’s display, or render preferential treatment to the Committee. See Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1166 (7th Cir.1993) (government “officials cannot retain discretion over content on the one hand and on the other pretend to be manacled by the dictates of content neutrality”). However, the Committee, like other citizens of diverse views, has the right to express its views publicly in areas traditionally held open for all manner of speech. Tolerance of religious speech in an open forum “does not confer any imprimatur of state approval on religious sects or practices.” Widmar, 454 U.S. at 274, 102 S.Ct. at 276. “Thus, ... truly private religious expression in a truly public forum cannot be seen as endorsement by a reasonable observer.” Grand Rapids II, 980 F.2d at 1553 (emphasis in original). Indeed, exclusion of religious groups from a forum otherwise open to all would demonstrate government hostility to religion rather than the neutrality contemplated by the Establishment Clause. Mergens, 496 U.S. at 228, 110 S.Ct. at 2360.\nThe dissent makes much of the fact that “the property on which the display rests is owned and maintained by San Diego’s taxpayers” and “the property is adorned with structural symbols of government,” Dissent at 1739, but we are at a loss to understand the significance of these assertions. By its nature, a public forum will be on land owned by the government. See Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972) (private shopping center not a public forum).\nIn part because Balboa Park houses some “structural symbols of government,” the dissent believes a reasonable observer would think the Christmas Committee display was endorsed by the government. To support this argument the dissent lists the following structural symbols: “the United Nations Building, the Hall of Nations, the House of Pacific Relations, the Museum of Man, the San Diego Museum of Art, the Space Theater and Science Center, and the Natural History Museum.” Dissent at 1739. We have found nothing in the record which discloses the relationship of any of these buildings to the City of San Diego; the complaint contains no allegations as to them. However, even if we assume they are owned or operated by the city, they appear to have nothing to do with functions associated with the seat of government. Rather, consistent with the nature of Balboa Park itself, they involve cultural and recreational activities unrelated to core governmental functions.\nIn any event, even the proximity of buildings of unmistakably governmental character is a patently imperfect proxy for attributing speech that goes on there to the government. The White House, perhaps the most visible structural symbol of our government, borders Lafayette Square in Washington, D.C., yet the square itself has consistently been upheld as a public forum. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Places that are near government buildings— where many people pass and have occasion to hear the speaker — are prime territory for the exercise of First Amendment rights. See United States v. Kokinda, 497 U.S. 720, 736, 110 S.Ct. 3115, 3125, 111 L.Ed.2d 571 (1990) (Kennedy, J., concurring) (“As society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place.”). It seems axiomatic to the public forum principle that we view messages expressed there as those of the actual speakers. The public forum doctrine would be rendered meaningless if only places in the middle of nowhere could be free speech areas, and if all speech that occurred near “structural symbols of government” had to be viewed as government speech. The dissent treats this as another creche-on-the-courthouse-steps or menorah-in-the-capitol-rotunda case, which it clearly is not.\nWe simply are not called upon to decide here whether a private religious display located in a public forum closely associated with the seat of government might be constitutionally infirm. Balboa Park, and in particular the Organ Pavilion where the Committee’s display is located, is neither physically surrounded by nor intimately associated with the trappings of government. While Balboa Park may be a well-known San Diego landmark, it is not the equivalent of City Hall or a city office building.\nc\nKreisner argues that, even if the City may issue a permit for the display on a non-preferential basis, as a matter of fact it grants the Committee an unconstitutional preference. We agree with the district court that Kreisner has failed to raise a material issue of fact in this regard. The City claims that its policy is first-come, first-served, regardless of the identity of the speaker or the content of the speech. Kreisner is unable to point to any facts undermining that claim.\nA first-come, first-served policy, such as that employed by San Diego, is a valid means for regulating the use of a public forum. Such a policy does not vest impermissible discretion in any official. See Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 649, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981).\nNor do we find it significant that the City’s first-come, first-served policy is not memorialized in the form of a written regulation.\nIn the absence of any allegation (much less actual proof) that [San Diego] has denied any person access to the Park, it is immaterial that [San Diego] does not have an officially stated policy of equal access, for the Constitution mandates that religious speakers may not be discriminated against in a public forum on the basis of their speech. The City of [San Diego] is required to comply with the constitutional mandate regardless of whether it has an officially stated policy of doing so, and [Kreisner] has failed to demonstrate noncompliance.\nDoe v. Small, 964 F.2d at 619.\nd\nKreisner further contends that, even if the City has not violated the Constitution by permitting the display in the Organ Pavilion, it has done so by: (1) allowing the Committee to solicit donations; and (2) failing to charge a fee for the Committee’s use of the Organ Pavilion.\ni\nDoes permitting the Christmas Community Center to solicit donations at the site — through its bins and pamphlets — have the impermissible effect of both endorsing and supporting a particular sectarian viewpoint? The regulations governing park use state that “[t]o solicit funds is prohibited by City Ordinance.” The definition of “solicitation” in the municipal code includes “[a]ny direct oral or written request for money, property or anything of value or any financial assistance of any kind,” as well as “[t]he distribution ... of letters, posters, handbills, cards, folders, pamphlets, books, or circulars for the purpose of soliciting funds.” San Diego Municipal Code section 57.01B(a), (b).\nThe Committee keeps a stock of pamphlets, which entreat visitors to “Help Us Keep the Community Christmas Center Going!,” at the display. The pamphlets request that cheeks be made out to the Committee, and explain that “[t]o insure the continuing operation of the Christmas Community Center, voluntary contributions are essential.” They also point out that gifts are tax deductible. Distribution of these circulars appears to fall within San Diego’s definition of “solicitation.”\nWe agree that enforcement of the non-solicitation rule against some groups, but not against others similarly situated, would im-permissibly favor some speakers. Nonetheless, on the record before us, we find no Establishment Clause violation. Although Kreisner has amply demonstrated that the Committee is permitted to solicit contributions in the park, he has not demonstrated that anyone else is prevented from engaging-in similar solicitation. The City claims that it does not regard the type of request for donations made by the Committee as within the scope of its ordinance.\nWe decline to assume, in the absence of any evidence, that the City ordinarily attempts to enforce its ordinance to bar this kind of solicitation of charitable contributions. The opposite interpretation might raise serious constitutional issues. Solicitation of charitable contributions is protected speech. International Soc’y for Krishna Consciousness v. Lee, — U.S. -, -, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992); Riley v. National Federation of Blind, 487 U.S. 781, 789, 108 S.Ct. 2667, 2673, 101 L.Ed.2d 669 (1988); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980). Consequently, restrictions on solicitation in traditional public forums must be narrowly drawn to serve a compelling government interest. It is not immediately apparent that exclusion of solicitation of the sort engaged in by the Committee would serve any compelling interest. Given the serious constitutional issues raised by the ordinance, we decline to require San Diego to apply it to the Committee’s fund-raising efforts in the absence of evidence that it is similarly enforced against other groups.\nii\nKreisner also contends that the City’s failure to charge the Committee a permit fee constitutes an impermissible public subsidy and endorsement of religion. We disagree.\nThe City’s written park regulations require non-profit organizations to pay $440 per day for exclusive use of the Organ Pavilion, provided members of the public are not charged admission. If the organization does charge admission, the City’s fee doubles to $885 per day. Profit-oriented, commercial users must pay $1,325 per day.\nThe City’s regulations contemplate waiver of these fees only in the case of a “nonprofit community service agency or organization.” San Diego Park & Recreation Dep’t Fee Policy and Fee Schedule, § 8.2.4 (Sept. 16, 1986). The regulations define such an organization as “[a] recognized group, club, agency, or organization whose activities are of a service or character building nature, who give service to the community as a whole, and a group where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group.” Id. (emphasis added). We doubt that the Committee qualifies for a waiver under the regulations, but we need not decide the issue because the City does not rely upon the waiver rules.\nThe City instead contends that its fee regulations do not apply to the Committee’s use of the Pavilion because that use is, in the City’s words, “non-exclusive.” The City claims that it assesses fees only for “exclusive” permits, which entitle the holder to restrict public access to the area for the duration of the permit. The Committee’s display does not occupy the stage, nor does it prevent others from gathering in the amphi-theatre. The record reveals that other groups have used the Pavilion while the display is in place. While certain other groups might be reluctant to share the Pavilion with the Committee’s indisputably religious display, the Committee in no way seeks exclusive physical control of the Pavilion during its display. Furthermore, the City represents that, should another party seeking an exclusive use permit so request, the Committee would be asked to cover its display temporarily.\nKreisner cites to no evidence that fees are ordinarily charged to non-exclusive users, nor does he provide any basis for challenging the City’s categorization of the Committee’s use as non-exclusive. Accordingly, we conclude that the City’s grant of a non-fee permit to the Committee is consistent with a content-neutral policy and does not violate the Establishment Clause.\n3\nThe third and final prong of the Lemon test requires invalidation of a government practice if it fosters an excessive government entanglement with religion. Lemon, 403 U.S. at 613, 91 S.Ct. at 2111. “In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.” Id. at 615, 91 S.Ct. at 2112.\nThere is no appreciable institutional entanglement in this case. The City of San Diego provides two forms of aid to the Committee. It grants the Committee’s annual request for use of the Organ Pavilion, and to the extent that the display might consume more than $150 worth of electricity, it subsidizes the excess. Both forms of aid are indirect and de minimis; neither demonstrates that the City has an active, deeply involved relationship with the Committee. See Lynch, 465 U.S. at 671, 684, 104 S.Ct. at 1358, 1365 (twenty-dollar cost incurred by the city in erecting and dismantling creche and nominal expenses for lighting did not constitute excessive support for religious activity). The City does not supervise or provide input on the content or design of the display. In fact, the danger of entanglement would be considerably greater if the City screened the religious motives of speakers before allowing them access to Balboa Park. Widmar, 454 U.S. at 272 n. 11, 102 S.Ct. at 275 n. 11.\nThe City’s past involvement in the display was more troublesome under the entanglement prong, but that involvement has been discontinued. Assuming that the City’s past practices (particularly the supervision of the Committee’s fund-raising efforts) amounted to excessive entanglement, we do not view them as relevant to the question of whether the display as currently conducted violates the Establishment Clause.\nIll\nFor the foregoing reasons, we hold that the City has not violated the Establishment Clause by allowing the Christmas Committee to erect a religious display in the Organ Pavilion. We therefore need not determine whether avoiding an Establishment Clause violation would justify excluding the Christmas Committee’s religious, speech from the public forum. The City remains free to impose reasonable time, place, and manner restrictions on speech in Balboa Park, including religious speech, provided those regulations are content-neutral. We will not, however, force the City to impose such restrictions based on the content of the Committee’s speech; to do so would violate the Free Speech Clause, turning the public forum doctrine on its head.\nWe emphasize that the City must treat the Committee as it would any other speaker in Balboa Park. On this record, we conclude that Kreisner has not raised a factual issue of preferential treatment.\nAFFIRMED.\n. Kreisner has standing to bring this action based on his allegation that the challenged display interferes with his right to use Balboa Park. See Hewitt v. Joyner, 940 F.2d 1561, 1564 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992); ACLU v. City of St. Charles, 794 F.2d 265, 268 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986); ACLU v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1107-08 (11th Cir.1983). Because this injury is sufficient to establish standing, we need not consider whether Kreisner would have standing as a municipal taxpayer. See Cammack v. Waihee, 932 F.2d 765, 770-72 (9th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992).\n. In his supplemental brief following our limited remand, Kreisner attempted to resurrect his state constitutional claim. Because he failed to challenge the district court's dismissal of that claim in his opening and reply briefs on appeal, we deem the issue waived and decline to address it. See In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir.1991). Nor can our remand order fairly be read to authorize the district court to consider issues not raised in the briefs. In any event, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) teaches us that a state's interest in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution is limited by the Free Exercise Clause and the Free Speech Clause as well. Widmar, 454 U.S. at 276, 102 S.Ct. at 277. Thus, even though the California Constitution's provision prohibiting governmental establishment or preference of religion may be broader than the United States Constitution, see Hewitt v. Joyner, 940 F.2d 1561, 1567 (9th Cir.1991), it, like the Establishment Clause of the Federal Constitution, must be limited by the Free Exercise Clause and the Free Speech Clause. Widmar, 454 U.S. at 276, 102 S.Ct. at 277.\n. The dissent states that because we are reviewing the district court’s grant of summary judgment we should view the evidence in the light most favorable to Kreisner, rather than adopt the findings of fact of the district court. The dissent relies on Swarner v. United States, 937 F.2d 1478 (9th Cir. 1991). But garden variety summary judgment cases, like Swarner, are far different from this one. Here, our remand order stated: Specifically, the district court shall determine what are the policies of the City of San Diego with respect to granting permits for the use of Balboa Park. On remand, the district court made findings of fact after holding an evidentiary hearing and taking testimony in open court. See Findings of Fact and Conclusions of Law 52 C.R. at 2-3. Although he objected to the nature of the district court’s findings, Kreisner did not object to our remand order or to the holding of an evidentiary hearing, nor is there any indication that he did not have sufficient notice to present his case. Considering the extent of the hearings below and our earlier order focusing the district court’s efforts, there is no reason to depart from the clearly erroneous standard of review that we apply to findings of fact following an evidentiary hearing. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986) (findings of fact made after evidentiary hearing reviewed under the clearly erroneous standard).\n. But see Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., — U.S. -,-, 112 S.Ct. 501, 512-15, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring) (disputing the precedential basis for a compelling state interest balancing test, and arguing for an approach in which all restrictions falling outside recognized categories, such as fighting words or obscenity, are automatically invalidated).\n. In concluding that San Diego has not endorsed the Committee’s religious views by allowing it to erect its display in the Organ Pavilion, we do not rely upon the details of the disclaimer sign, which do not appear in the record. We emphasize, however, that the presence of such a sign, while not dispositive, reinforces the reasonable observer’s perception of no government sponsorship.\n. Whether certain types of government property are public fora has sharply divided the Court, see, e.g., International Soc'y for Krishna Consciousness v. Lee, — U.S. --, 112 S.Ct. 2711, 120 L.Ed.2d 541 (1992); Cornelius v. NAACP Defense and Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), but thus far the Court has only reaffirmed the description of public fora that gave rise to the doctrine: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.\" Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (emphasis added).\n. See, e.g., Kaplan, 891 F.2d at 1025 (holding permit for private display of religious symbol in traditional public forum in front of seat of city government violative of Establishment Clause); Smith v. County of Albermarle, 895 F.2d 953, 955 (4th Cir.), cert. denied, 498 U.S. 823, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990) (nativity scene could not be placed in public forum on front lawn of county office building by private group; determinative factor that \"one could not readily view the creche without also viewing the trappings and identifying marks of the state”); but see Kaplan, 891 F.2d at 1033 (Meskill, J., dissenting) (park does not lose its status as a traditional public forum \"merely because City Hall is located on one side\" of it).\n. At oral argument, the City represented to this court that any person could get a permit to place an unattended display in any part of the park, regardless of the content of the display, on a first-come, first-served basis. The City further represented that no fee would be charged for such a display. Having made these representations, the City is now bound by them.\nWe hold here that Kreisner has failed to demonstrate that the City does not abide by its stated open-access policy. Should the City at any time fail to comply with that policy, a wrongfully excluded group may of course bring suit.\n. After oral argument in this court, amicus ACLU attempted to \"test” the City’s permit procedures. Amicus sent an employee to the City’s Parks and Recreation Department to request a permit for use of the Organ Pavilion in December 1991 for a display celebrating the bicentennial of the Bill of Rights. The ACLU had no intention of erecting such a display, and the employee was accordingly unable to supply the City with needed details concerning the size of the display. The City declined to issue the permit without such details, which were never provided. This little vignette in no way suggests that the City's claimed open-access policy is a sham.\nNor does it, as Kreisner now insists, cast doubt upon the district court’s grant of summary judgment. A litigant who has been unable to demonstrate material issues of fact prior to an adverse decision cannot thereafter create such issues by his own behavior. Moreover, Kreisner affirmatively declared below that the case was ripe for summary judgment. We will not allow him to withdraw that concession based on his dissatisfaction with the court's ruling.\n. We emphasize once again that our holding does not preclude future actions against the City should the City fail to adhere to its content-neutral policy. Should the City seek to charge rental fees to another group requesting a permit to place an unattended display in Balboa Park, that group could challenge the City’s action. Furthermore, evidence that fees are assessed against similar users but not against the Committee would tend to show a City preference for or endorsement of the Committee’s religious message.\n. Kreisner does not allege that political divisiveness engendered by the City's action violates Lemon's entanglement prong. While the Supreme Court has on occasion suggested that political divisiveness is relevant to the entanglement analysis, see Committee for Public Education v. Nyquist, 413 U.S. 756, 796, 93 S.Ct. 2955, 2977, 37 L.Ed.2d 948 (1973); Lemon, 403 U.S. at 623, 91 S.Ct. at 2116, it has emphasized that divisiveness alone does not render a practice unconstitutional. See Lynch, 465 U.S. at 684, 104 S.Ct. at 1365; id. at 669, 104 S.Ct. at 1357 (O’Connor, J., concurring).", "type": "majority", "author": "O’SCANNLAIN, Circuit Judge:"}, {"text": "KOZINSKI, Circuit Judge,\nconcurring:\nJoe Religious Speaker comes to the City of San Diego and asks for a permit to put on a display in Balboa Park exalting the power of Zon.\n“Sorry,” say the City Fathers and Mothers.\n“Why not?” he asks. “Isn’t Balboa Park sort of a Hyde Park West where anybody is free to say whatever he wants? In fact, didn’t I see a Ku Klux Klan poster, a Communist Manifesto display and an Atheists United banner there?”\n“Well, yes,” they respond. “Anybody can put up anything he wants there- — except religious things. We’re afraid people will think the City is sponsoring religion.”\nThis is a conversation that should never happen. Religious speech is speech, entitled to exactly the same protection from government restriction as any other kind of speech — no more and no less. See Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) (“[Rjeligious worship and discussion ... are forms of speech and association protected by the First Amendment.”). The government has many good reasons for restricting racist speech, advocacy of Communism, pornography and various other kinds of speech that some might see as harmful. But the Free Speech Clause stands in the way. See, e.g., R.A.V. v. City of St. Paul, — U.S. -, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Yates v. United States, 354 U.S. 298, 318-19, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356 (1957); American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978). I can’t see how the fear that someone might — mistakenly—think the government is endorsing religious speech is a better justification for censorship than those rejected in these cases and countless others.\nThe Establishment Clause, as the name suggests, forbids only the establishment of religion, not the mere appearance of doing so. Many government actions are consistent with religiously-inspired values and can appear to some as endorsing religion. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 605, 108 S.Ct. 2562, 2572, 101 L.Ed.2d 520 (1988) (challenging on establishment grounds governmental program promoting abstinence); Phelps v. Reagan, 812 F.2d 1293, 1294 (10th Cir.1987) (claim that appointment of an ambassador to the Vatican is establishment of religion). Appearances only support an Establishment Clause claim when the government is speaking — when, for instance the government puts up a créche or a Christmas tree. But no case, including the cases Judge Boochever mentions, see dissent at 804 n. 12, holds that appearances are relevant to private speech protected by the Free Speech Clause. The very case Judge Boochever relies on — County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) — makes this clear: “The Grand Staircase does not appear to be the kind of location in which all were free to place their displays.... In this respect, the créche here does not raise the kind of ‘public forum’ issue, cf. Widmar, presented by [a] private créche in [a] public park.” Id. at 600 n. 50, 109 S.Ct. at 3104 n. 50 (citations omitted).\nA distinction between government and private speech is surely necessary — the government has no right to keep a citizen from, for instance, draping himself in the flag or donning an Uncle Sam suit and carrying a placard proclaiming “America is a Christian Nation.” It would not matter whether Uncle Sam was carrying his message on a public street, in a park or on the sidewalk in front of City Hall. If a permit is required for such an activity, it must be freely offered to the religious speaker on exactly the same terms as any other speaker, even if there is a risk that onlookers will think his speech is endorsed by the government.\nThe Establishment Clause prevents the government from treating religious speech more favorably than nonreligious speech. But both the Establishment and Free Speech Clauses prevent the government from treating religious speech less favorably. Because the district court found that the City of San Diego treated the Christmas Committee display just like any other type of speech, I join Judge O’Scannlain’s excellent opinion affirming the judgment below.\n. When the government selectively adopts and promotes a private speaker's message, we treat the speech as the government's: \"We turn next to the county’s créche display.” County of Allegheny v. ACLU, 492 U.S. 573, 598, 109 S.Ct. 3086, 3103, 106 L.Ed.2d 472 (1989) (emphasis added). The district court's findings here refute any suggestion that San Diego gave the Christmas Committee's display a preference over anyone else's.", "type": "concurrence", "author": "KOZINSKI, Circuit Judge,"}, {"text": "BOOCHEVER, Circuit Judge,\ndissenting:\nSan Diego has permitted a six-week, unattended, life-size display of eight scenes from the life of Jesus Christ and seven quotations from the New Testament to stand in the prominent Organ Pavilion of its Balboa Park. The City has waived over $18,000 annually in user fees for the private group sponsoring the display. San Diego has exempted the donation barrels and written requests for donations accompanying the display from its anti-solicitation ordinance. The City, which co-sponsored the display for 35 of the last 39 years, continues to award a permit to the Christmas Committee according to an unwritten, unannounced policy.\nDespite the duration, size, history, and content of the display and the exemption of the Christmas Committee from the City’s fee and anti-solicitation ordinances, the majority does not believe that a reasonable observer is likely to perceive that the City of San Diego endorses the display’s Christian message. In what amounts to one paragraph of a lengthy opinion, the majority concludes that the Christmas Committee display does not have the primary effect of endorsing religion because Balboa Park is a traditional public forum removed from the seat of government. Dismissing the possibility of an Establishment Clause violation in this cursory manner erroneously implies that the Free Speech Clause trumps the Establishment Clause. Moreover, San Diego’s unwritten, unannounced policy for awarding park permits is itself a violation of the Free Speech Clause because it gives government officials unbridled discretion over speech. Finally, viewing the evidence in the light most favorable to Kreisner, as we must on an appeal from summary judgment for the City, San Diego has in fact preferred the Christmas Committee display over another, first-in-time park permit application in violation of both the Establishment and Free Speech Clauses. Accordingly, I dissent.\nI. Standard of Review for Summary Judgment.\nThe parties in this case submitted cross motions for summary judgment. We review the district court’s decision to grant the City’s motion for summary judgment de novo. High-Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 570 (9th Cir.1990). We also review de novo the decision to deny Kreisner’s motion for summary judgment. Mukherjee v. INS., 793 F.2d 1006, 1008 (9th Cir.1986). Our task is to “determine, viewing the evidence in the light most favorable to the opposing party, if there is any genuine issue of material fact and whether the law was correctly applied.” Palmer v. United States, 794 F.2d 534, 536 (9th Cir.1986) (emphasis added).\nSeveral facts surrounding San Diego’s park permit application process remain disputed. As detailed in Section II.B, infra, at issue is whether the City has a first-come, first-served policy for issuing park permits, what information the City requires before it issues a permit, and whether the City in fact preferred the Christmas Committee’s permit application over another, first-in-time application. The district court on remand arrived at conclusions to disputed questions after hearing contradictory testimony, but the majority now accepts those conclusions using the clearly erroneous standard of review. The majority’s decision to remand the case to the district court does not alter its obligation to view the disputed facts in favor of Kreisner when reviewing the grant of the City’s summary judgment motion. We have not had a full trial on the merits.\nThe majority justifies its departure from the long-standing rule of considering only undisputed facts in a review of summary judgment by declaring this an extraordinary case. The majority contends that because it remanded the case for an evidentiary hearing on particular issues, we must apply the clearly erroneous standard to the factual findings made in the evidentiary hearing. This argument misapprehends the nature and purpose of the remand order.\nThe majority’s remand order instructed the district court to make factual findings on San Diego’s policies for issuing permits for the use of Balboa Park and on any other developments which the parties regarded as “material to the issues in this appeal.” We amended the order to allow the district court to “amend its conclusions of law in light of any new factual findings.” The issue on this appeal, of course, is whether granting summary judgment to the City and denying summary judgment to Kreisner was proper. Had the majority chosen to remand the case for trial on the issue of whether San Diego had a first-come, first-served permit policy, it could have affirmed a partial summary judgment for the City on all but this issue. A full trial would have ensued on the issue of the City’s permit policy, and an appeal from the district court’s findings on the underlying disputed factual issues would then be reviewed for clear error as we would no longer have before us a case of summary judgment. We did not, however, follow this course. Instead, we chose to preserve the summary judgment question on this appeal. In opposing the City’s motion for summary judgment, therefore, Kreisner’s obligation on remand was to establish that a genuine dispute existed over San Diego’s permit policies. The district court on remand reiterated the conclusion of the original district court that the City was entitled to summary judgment.\nWe are therefore faced with reviewing the factual findings underlying a second district court’s order of summary judgment. “[The] limited purpose [of findings of fact in a district court’s order of summary judgment] is to pinpoint the undisputed facts supporting the summary judgment, not to weigh the evidence in the record.” Swarner v. United States, 937 F.2d 1478, 1481 (9th Cir.1991) (emphasis added). Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), which the majority cites in support of its position, is simply inapplicable. Carter states the rule that we review a magistrate’s findings of fact underlying the denial of a petition for writ of habeas corpus and a district court’s adoption of such findings for clear error. Id. at 1375. Carter was not a case of summary judgment. Indeed, no Ninth Circuit case has applied a clearly erroneous standard of review to a district court’s factual findings, on remand or otherwise, underlying an order of summary judgment. Accordingly, until the factual disputes in this case are resolved at trial, we must view them in the light most favorable to Kreisner for purposes of reviewing the grant of the City’s summary judgment motion.\nII. The Establishment Clause.\nCounty of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (“Allegheny County ”), instructs us to apply the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether a private religious display on public property violates the Estabhshment Clause. “Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” Id. 492 U.S. at 592, 109 S.Ct. at 3100. The majority’s conclusion that San Diego’s permitting the Christmas Committee display was not “motivated wholly by an impermissible purpose,” Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 2570, 101 L.Ed.2d 520 (1988), is arguable. It is also arguable that this case does not reflect the type of “enduring entanglement” present in Lemon, 403 U.S. at 615— 22, 91 S.Ct. at 2112-16. I disagree entirely with the majority, however, insofar as they fail to find at least a triable issue under the primary effect prong of the Lemon test.\nA. Kreisner’s Motion for Summary Judgment.\n1. Undisputed Facts.\nIn reviewing the district court’s denial of Kreisner’s motion for summary judgment, we examine the facts in the light most favorable to the City. No genuine issue of material fact is presented regarding the duration, size, or content of the Christmas Committee’s display or its prominent location in the City-owned Organ Pavilion. Also undisputed is San Diego’s historical co-sponsorship of the display, the fact that the display is unattended, and the exemption of the display from the City’s fee and anti-solicitation ordinances. We may consider these undisputed facts in determining whether the primary effect of the City’s granting a permit for the Christmas Committee display advances religion.\n2. Religious Displays Under the Establishment Clause.\n“[W]hen evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether ‘the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.’ ” Allegheny County, 492 U.S. at 597, 109 S.Ct. at 3103 (opinion of Blackmun, J.) (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985)). The scope of our inquiry encompasses not only the government’s current practice, but also the “ ‘history and ubiquity’ ” of that practice. Id. at 492 U.S. at 630, 109 S.Ct. at 3120 (O’Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 1369, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)). The analysis admittedly is fact-intensive since “ ‘[e]very government practice must be judged in its unique circumstances.’ ” Id. 492 U.S. at 595, 109 S.Ct. at 1232 (quoting Lynch, 465 U.S. at 694, 104 S.Ct. at 1370 (O’Connor, J., concurring)).\nBeyond these broad proclamations, the jurisprudence surrounding the constitutionality of private religious displays on public property is splintered. In this evolving area of the law, we continue to grope for a sensible and practical framework with which to analyze the myriad factual permutations that confront us. After examining the various decisions regarding the constitutionality of religious displays, I conclude that the analysis can be organized around two principal questions. Although the cases do not specifically so hold, I believe that whether a religious display on public property has the primary effect of advancing religion in violation of the Lemon test is a function of the interplay between (1) the intensity of the religious message and (2) the nature of the government’s association with that message. Essentially, this interplay involves a sliding-scale: the more intense the religious message, the less associated the government needs to be with that message to violate the Establishment Clause. Conversely, the less intense the religious message, the closer the government may be associated without crossing the divide between church and state. Approaching the caselaw using this analytical framework helps to tame the factors that courts have found significant in determining the constitutionality of religious displays.\na. Intensity of the Religious Message.\nThe intensity of the religious message is a function of (1) the religious potency of the display itself; (2) whether secular symbols accompany the display; (3) whether the display is sectarian or plural; and (4) the size and duration of the display. Regarding the religious potency of the display itself, a creche depicting the Christian nativity scene, for instance, would be considered more potent than the display of a Christmas tree. Compare Lynch, 465 U.S. at 711, 104 S.Ct. at 1379 (Brennan, J., dissenting) (“[A] nativity scene represents far more than a mere ‘traditional’ symbol of Christmas. The essence of the creche’s symbolic purpose and effect is to prompt the observer to experience a sense of simple awe and wonder appropriate to the contemplation of one of the central elements of Christian dogma — that God sent His Son into the world to be a Messiah.”) with Allegheny County, 492 U.S. at 616-17, 109 S.Ct. at 3113 (“The Christmas tree, unlike the menorah, is not itself a religious symbol.... Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs.... ”). Thus, the more religiously potent the display, the more intense is the religious message conveyed.\nA display unaccompanied by secular symbols also conveys a more intense religious message than does a religious display which is part of a larger secular presentation. In Lynch, for instance, the creche was surrounded by, “among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS.’ ” 465 U.S. at 671, 104 S.Ct. at 1358. Justice O’Connor’s concurrence concluded that the secular setting “ *change[d] what viewers may fairly understand to be the purpose of the display’ and ‘negate[d] any message of endorsement’ of ‘the Christian beliefs represented by the creche.’ ” Allegheny County, 492 U.S. at 596, 109 S.Ct. at 3102 (quoting Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O’Connor, J., concurring)). Compare Kaplan v. City of Burlington, 891 F.2d 1024, 1029 (2nd Cir.1989) (menorah “was displayed alone so that there was nothing to indicate that the thrust of its message was secular rather than religious”), cert. denied, 496 U.S. 926, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990).\nFurthermore, a display that represents the beliefs of a particular religious denomination conveys a more intense religious message than a display that “convey[s] a message of pluralism and freedom of belief during the holiday season.” Allegheny County, 492 U.S. at 635-36, 109 S.Ct. at 3123 (O’Connor, J., concurring) (although creche standing alone was unconstitutional, menorah standing next to Christmas tree was constitutional because “[a] reasonable observer would ... appreciate that the combined display is an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or non-belief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens”).\nFinally, a religious display that is large and long-standing more intensely communicates a religious message than a smaller, more temporary display. “[A] private religious group may so dominate a public forum that a formal policy of equal access degenerates into endorsement.... [Sjurely the City cannot allow a religious group to turn a public park into an enormous outdoor church.” Doe v. Small, 964 F.2d 611, 625 (7th Cir.1992) (en banc) (Cudahy, J., concurring); see also Allegheny County, 492 U.S. at 661, 109 S.Ct. at 3137 (Kennedy, J., concurring and dissenting) (“I doubt not ... that the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall.... [S]uch an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion.”). Considering a display in light of these factors conveys a sense of the intensity of the religious message conveyed.\nb. Nature of Government’s Association with the Religious Message.\nThe second principal inquiry, the nature of the government’s association with the religious message, depends upon (1) the ownership of the display; (2) the ownership of the display’s location; (3) the historical sponsorship of the display; (4) the extent to which the display is surrounded by government symbols; and (5) whether the display is unattended. Clearly, where the government owns the display itself, the government is closely associated with the content of the display. Where the display is privately owned but the government owns the property on which the display stands, the government still associates with the display’s message, although to a somewhat lesser degree. See Allegheny County, 492 U.S. at 600, 109 S.Ct. at 3104; Kaplan, 891 F.2d at 1028. This association, however, is strengthened when the government sponsored the display for many years. See Allegheny County, 492 U.S. at 630, 109 S.Ct. at 3120 (O’Connor, J., concurring).\nThe government’s association with a private religious display becomes more pronounced when the display’s location is not only government-owned, but also symbolic of government itself. Thus, a religious display on the grand staircase of the county courthouse, Allegheny County, 492 U.S. at 579-80, 109 S.Ct. at 3093, or within sight of city hall, Kaplan, 891 F.2d at 1029, or in front of a county building, Smith v. County of Albe-marle, 895 F.2d 953, 954 (4th Cir.), cert. denied, 498 U.S. 823, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990), symbolically is more closely associated with the government than a display located on unadorned government land.\nFinally, where the private religious display is unattended, the government is more closely associated with the content of the display than if the display were attended. The reasonable observer of a religious display might naturally question whether the government subscribes to the religious message. When a private party actively and personally participates in a display, the passerby can readily attribute the religious message to a private citizen and thereby disassociate the government. Thus, the evangelist who preaches in a public park is less likely to be associated with the government than would an unattended display conveying the same sermon. Although a sign disclosing the owner of the religious display may help diffuse the misconception of government sponsorship, such a sign, by itself, will not negate the perception of government support for the unattended display. See Allegheny County, 492 U.S. at 600-01, 109 S.Ct. at 3105; Smith, 895 F.2d at 958 (“It remains to be seen whether any disclaimer can eliminate the patent aura of government endorsement of religion.”).\nc. The Sliding Scale between Religious Intensity and Government Association.\nOnce we assess the intensity of the religious message and the nature of the government’s association with that message, the inquiry turns to the interplay between these two factors. I believe the caselaw may be construed to support the characterization of this interplay as a sliding scale.\nIn Allegheny County, for example, the Court drew a line between the creche depicting the Christian nativity scene, which was held unconstitutional, and the menorah/Christmas tree display, which was held constitutional. In both instances, the government association with the display remained relatively constant: both displays were privately-owned, unattended, and located at the county courthouse, a structure symbolizing government. 492 U.S. at 578-79, 109 S.Ct. at 3093. The constitutional difference between the displays lay in the intensity of their religious messages. The creche was a potently religious display with a distinctly denominational, Christian message. Its manger had at its crest an angel bearing a banner proclaiming “Gloria in Excelsis Deo!,” meaning “Glory to God in the Highest.” Id. at 580 & n. 10, 109 S.Ct. at 3095 & n. 10. No secular symbols accompanied the creche. Id. at 580, 109 S.Ct. at 3093. The display stood for over six weeks, from late November to early January. Id. The menorah, on the other hand, was erected next to a Christmas tree. Although the menorah was a potently religious symbol of the Jewish faith, the combined display was expressly non-denominational. Id. at 635, 109 S.Ct. at 3123 (O’Connor, J., concurring). Furthermore, the City’s sign accompanying the display stressed the secular theme of “liberty and pluralism.” Id. Finally, the menorah stood for just over three weeks, from late December to mid-January. Id. at 587, 109 S.Ct. at 3097. Clearly, given the holding of the case, the government’s association with the message of the menorah/Christmas tree display was tolerable, but the government was too closely associated with the more intense religious message of the creche.\nSimilarly, other cases suggest that where the intensity of the religious message is constant, the constitutionality of a private religious display will turn on the nature of the government’s association with the display. In Chabad-Lubavitch of Georgia v. Miller, 976 F.2d 1386 (11th Cir.1992), the Eleventh Circuit held that permitting a private group to erect a menorah in the rotunda of the state capítol would violate the Establishment Clause. The Sixth Circuit, on the other hand, denied a motion to enjoin a private religious group from erecting a menorah in a public square in Cincinnati because it determined that such a display would be constitutional. Congregation of Lubavitch v. City of Cincinnati, 923 F.2d 458 (6th Cir.1991). The comí distinguished the case from those situations in which the location of the display is close to symbols of government, holding that the Cincinnati square had “no connection with any government buildings or function.” Id. at 459-60. Thus, where religious displays of identical intensity are involved, the Establishment Clause may be violated where the government has a relatively close association with the display, and not violated where the association is more remote. Taken together with Allegheny County, I believe these cases, while not articulating such an approach, support my characterization of the interplay between the intensity of the religious message and the nature of the government’s association with that message as a sliding scale.\nThe majority advances three arguments against the sliding scale test. First, the majority asserts that inquiring into the intensity of a religious message is similar to evaluating the centrality of a particular belief or practice to a faith, which is prohibited in analyzing a case under the Free Exercise Clause. Second is the concern over whose perspective we use to determine intensity. Third, the majority contends that the consequence of the sliding scale analysis would be to dilute the religious messages allowed in public forums. These concerns are overstated.\nEvaluating to what degree a message is religious differs from determining whether a belief or practice is central to a faith. The former inquiry merely asks what is being communicated, a question that courts face daily in such contexts as defamation and contract. Indeed, if we were prohibited from asking whether a message is religious, then we could never ask whether the government endorsed a religious message. In such a world, we would have no Establishment Clause.\nMoreover, the Supreme Court has recognized that the intensity of a religious message is a necessary inquiry under the Establishment Clause. See discussion of Allegheny County, supra. It is the variation in the intensity of the religious message that explains why a Christmas tree display was permitted in this very courthouse during the month of December when a creche in the same location would have been impermissible. See Allegheny County, 492 U.S. at 579-80, 109 S.Ct. at 3093 (creche displayed on grand staircase of county courthouse violated the Establishment Clause).\nRegarding the question of perspective in judging the intensity of a religious display, I would not depart from the “reasonable observer” standard that we use in current Establishment Clause jurisprudence, and many other contexts for that matter. As the Court stated in Allegheny County, we must examine a display from the perspective of both adherents and nonadherents of the controlling denominations. Id. at 597, 109 S.Ct. at 3103 (opinion of Blackmun, J.). Although the majority criticizes the sliding scale approach because it allegedly lacks “manageable standards to apply in making these sensitive judgments,” Opinion at 781, I note that the same problem, if a problem at all, inheres in the current jurisprudence when evaluating whether government endorses a religious belief. From the perspective of the reasonable observer, courts have determined that a Santa Claus display is non-religious, but a menorah display is religious. Compare Lynch, 465 U.S. at 671, 104 S.Ct. at 1358 (Santa Claus display considered part of secular presentation) with Kaplan, 891 F.2d at 1029 (thrust of menorah display was religious message). Apparently, we have managed to overcome the difficulties associated with the question of perspective.\nFinally, the majority’s conclusion that the sliding scale test would result in only diluted religious messages being allowed in public forums is oversimplified. Only intensely religious displays that are closely associated with the indicia of government are disallowed. In fact, one could rephrase the majority’s concern as follows: the sliding scale test would allow government to appear to endorse only diluted or non-religious messages, but not intensely religious messages. I believe this is precisely the result the Establishment Clause was intended to achieve.\n3. The Christmas Committee Display.\nApplying these principles to the present case, I conclude that the Christmas Committee display is unconstitutional and that Kreis-ner is entitled to summary judgment under the Establishment Clause. The religious intensity of the display’s message is unprecedented. First, the display itself is potently religious and sectarian. The display’s eight booths are drawn from the New Testament’s account of the life of Christ. The first scene depicts “The Annunciation,” the sacred moment in Christian theology when, in the Gospel according to Luke, the Angel Gabriel informs the Virgin Mary that she will be the mother of God on earth. In the second scene, the expectant Mary and Joseph are being turned away at the Inn in a scriptural moment that represents mankind’s hostile reception of Christ. The third scene portrays the humble shepherds’ immediate acceptance of the divinity of Christ. The fourth scene depicts the actual birth of Christ, which, when taken in the context of the parable, is a patently religious, rather than historical, moment. The fifth scene, portraying the three wise men in their journey to Bethlehem, “reflects the early [Christian] church’s experience of the Gentiles’ readiness to accept the gospel and the disappointing slowness of all Israel to receive it.” Daniel J. Harrington, Collegeville Bible Commentary: The Gospel According to Matthew 17 (1983). The sixth scene depicts Mary, Joseph, and the newborn Christ fleeing from Herod, implicitly denoting “Jesus as the new Moses.” Hans Kung, On Being a Christian 451 (Edward Quinn trans., 1976) (emphasis omitted). The seventh scene shows “Christ in the Temple,” the moment when the religious mission of Jesus was first announced. See Ha't'per’s Bible Dictionary 1029 (Paul J. Achtemeier ed., 1985). The eighth and final scene portrays Christ as an adult teacher, with young children drawing near to hear Christ’s lesson.\nNot only does the display contain potent religious imagery, it also presents a series of passages from the New Testament. Thus the religious message becomes quite literal. Indeed, the seven scriptural quotations magnify the significance the Court attached to the single Latin phrase in Allegheny County. There, the Court explained that “[t]his praise to God in Christian terms is indisputably religious — indeed sectarian — just as it is when said in the Gospel or in a church service.” Allegheny County, 492 U.S. at 598, 109 S.Ct. at 3103.\nSecond, no secular symbols accompany the Christmas Committee display. The nearest secular symbols of the season reside in another area of the park separated by a wall, landscaping, and a road. The eight religious booths are indisputably their own display so that “[t]he presence of Santas or other Christmas decorations elsewhere ... fail[s] to negate the endorsement effect” of the display. Id. at 598-99 n. 48, 109 S.Ct. at 3104 n. 48. In fact, the Christmas Committee itself declares that the display is motivated by its “desire to present a non-commercial celebration of the true ‘Spirit of Christmas.’ ”\nThird, the display contains no symbols of other, non-Christian religions. Finally, the display is large and enduring. Each of the eight booths contains life-size figures, with the display occupying both sides of the stage in the Organ Pavilion. The City permits the display to remain there for six weeks.\nIn summary, no court has been presented with a display of such blatant, denominational, and conspicuous religious intensity — a display which the majority characterizes as conveying an “overwhelming message of glorification of the divinity of Jesus Christ.” Opinion at 782.\nConsidering the intensity of the religious message, virtually any government association with the Christmas Committee display would break with the principles announced in the Establishment Clause. Admittedly, the symbols of the government’s association with the display may not be as pervasive as in Allegheny County or other cases in which the displays were located in the “seat of government.” Nevertheless, the undisputed facts in this case reveal that San Diego’s association with the display is more than incidental.\nThe ownership of the display is private, but the property on which the display rests is owned and maintained by San Diego’s taxpayers. The City has an historical involvement with the display. Prior to 1988, City employees erected, removed, and stored the display each year. Moreover, the property is adorned with structural symbols of government. Surrounding the Organ Pavilion in Balboa Park are the United Nations Building, the Hall of Nations, the House of Pacific Relations, the Museum of Man, the San Diego Museum of Art, the Space Theater and Science Center, and the Natural History Museum. The Organ Pavilion itself is a massive, ornate, semi-enclosed structure. The pavilion’s columns, arches, and elevated stage provide the backdrop for the display. This is not merely a religious exhibit isolated from indicia of city sponsorship. With eight large booths flanking both sides of the Organ Pavilion’s center stage, the display appears to be an integral part of the City-owned structure. No reasonable observer could visit the Christmas Committee display without sensing the government’s presence. Furthermore, the display is unattended. None of the Christmas Committee’s members remains with the display to help diffuse the government’s association with the religious message. Accordingly, the reasonable observer could easily take the government’s presence to be the government’s endorsement of the display. In light of the unprecedented religious intensity of this display, the real and symbolic association between San Diego and the religious message conveyed violates the Establishment Clause.\nAny remaining doubts of an Establishment Clause violation are shattered when one considers the City’s exemption of the Christmas Committee display from its fee regulations and anti-solicitation ordinance. Ordinarily, the City’s park regulations require a nonprofit or charitable organization to pay $440 per day for use of the Organ Pavilion, provided that the organization does not charge admission to members of the public who attend the function. The City waives the fee only for “a nonprofit community service agency or organization.” Such an organization is defined as “[a] recognized group, club, agency, or organization whose activities are of a service or character building nature, who give service to the community as a whole, and a group where no portion of the net earnings are used for or inure to the benefit of any individual or member of the group” (emphasis added).\nThe City argues, and the majority asserts, that the regulations require payment of user fees only for “exclusive use” of the Organ Pavilion and that the Christmas Committee display is a “non-exclusive use.” Although San Diego has few written regulations governing its park permit application process, it does have a detailed, written policy governing park fees and fee waivers. Nowhere in that policy does the City ever mention exclusivity as a prerequisite for imposing fees or “non-exclusive” use as a criterion for a fee waiver. This is yet another example of the City’s ad hoc approach to administering park permits, discussed in Section II.B, infra. I cannot join the majority in reading an exclusivity requirement into the City’s user fee regulations or in sanctioning the City’s departure from its own written fee policy. Indeed, it is the opinion of the City Attorney’s office itself that the City’s fee waiver is unconstitutional.\nI agree with the City Attorney’s office that allowing the Christmas Committee to forego paying more than $18,000 in fees per year violates the Establishment Clause. It is questionable that the Christmas Committee is a “service or character building” organization, other than in the sense that any religious denomination considers itself to further such goals. It is unquestionable that the Christmas Committee’s intensely sectarian message does not serve “the community as a whole.” Indeed, the record shows that every other religious organization who used the Organ Pavilion between September 1987 and September 1989 paid a user fee. Standing alone, San Diego’s conferring this unusual annual economic benefit only upon the Christmas Committee constitutes an unconstitutional endorsement of religion. See Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 836, 28 L.Ed.2d 168 (1971) (“[T]he Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.... [T]he Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact.”).\nFinally, the City’s exempting the Christmas Committee from its anti-solicitation ordinance further manifests an endorsement of religion. A regulation and municipal ordinance both prohibit solicitation in San Diego’s public parks. Nevertheless, the City permits the Christmas Committee to place donation barrels and fliers soliciting contributions at the display.\nThe City maintains that these barrels and fliers do not meet its definition of “solicitation.” The relevant ordinance defines “solicitation” to “mean and include ... any direct oral or written request for money, property, or anything of value or any financial assistance of any kind.” San Diego’s claim is specious given this definition. The flier asks visitors to “Help Us Keep the Community Christmas Center Going!” and explains that “[t]o insure the continuing operation of the Community Christmas Center, voluntary contributions are essential.” The flier goes on to request that visitors make their checks payable to the Christmas Committee Center in pre-selected “membership categories” of $10, $25, $50, and $100. It concludes by instructing contributors to put the donations in the barrels or mail them to a given address. I find it difficult to imagine a more “direct ... written request for money.”\nWe should order that summary judgment be granted to Kreisner based upon the undisputed facts. “[T]he Establishment Clause prohibits precisely what occurred here: the government’s lending its support to the communication of a religious organization’s religious message.” Allegheny County, 492 U.S. at 601, 109 S.Ct. at 3105.\nB. The City’s Motion for Summary Judgment.\nFor the same reasons that Kreisner is entitled to summary judgment, we should reverse the summary judgment for San Diego under the Establishment Clause based on the undisputed facts. The disputed facts, however, present additional reasons for reversing the City’s summary judgment.\nThe parties agree on, or do not deny, the following facts pertaining to the City’s park permit application practice. At oral argument before this court, counsel for San Diego represented for the first time in this appeal that the City grants park permits for long-term, unattended displays on a first-come, first-served basis. Betty Wheeler, Legal Director of the ACLU in San Diego, attended the oral argument. Wheeler was surprised by the City Attorney’s representations. She had worked regularly with attorneys and others whom she thought would be familiar with the City’s alleged first-come, first-served policy, yet neither she nor any of the colleagues she contacted were aware of such a policy.\nWheeler decided to test the veracity of the City’s representations. The bicentennial celebration of the signing of the Bill of Rights would occur in December 1991, and Wheeler thought that a month-long, unattended display in the Organ Pavilion during December would both commemorate the event and test the City’s policy. Wheeler instructed Janet Bergo, an administrative assistant for the ACLU, to hand-deliver a letter to the City’s Park and Recreation Department and to obtain a permit for the display. The letter requested use of the area in the Organ Pavilion where the Christmas Committee display had traditionally been located. The letter also explained the time frame and content of the display, which would consist of “a series of panels illustrating the rights guaranteed to Americans by the Bill of Rights.” It noted that “[t]he panels would not block the view of the stage, or otherwise physically preclude other uses of the Organ Pavilion.” Wheeler attempted to draft the letter so that it clearly fell within the permit policy as the City Attorney had described it at oral argument. She even used the term “non-exclusive use permit” which had been used by the City Attorney.\nBergo delivered the letter to and met with Penny Scott, the City’s district manager for Balboa Park, on April 4, 1991. Bergo showed Scott a poster illustrating what the panels would look like. Scott was genuinely enthusiastic about the display until she realized that it might conflict with the Christmas Committee display. Scott said that she wanted to know “more details about how [the display] would look” and that she “needed to talk to her boss or the city attorney to work this out.” Bergo asked whether the ACLU would be able to have the location requested for the display. Scott responded that the Christmas Committee’s display was “always there.”\nBergo telephoned Scott later that same day. The parties disagree over the content of this telephone conversation. We must therefore accept Kreisner’s account of the conversation in reviewing the grant of the City’s summary judgment motion.\nAccording to Kreisner, Bergo clarified during her telephone conversation with Scott that the size of the display would be the same as that of the Christmas Committee display. Scott responded that both the ACLU’s requested display and the Christmas Committee display could not possibly be at the same location simultaneously. Bergo asked whether the requested location had already been reserved. Scott responded, “Oh, yes, the Nativity scenes have come back for 20 to 25 years. It’s already booked. They will be there every year until they decide not to do it again.” In fact, the Christmas Committee did not request the Organ Pavilion until September 1991, almost five months later. Bergo then asked how soon she would need to contact the City about reserving the location for the next year. Scott again replied that the Christmas Committee was “always there.”\nThe majority- accepts the district court’s conclusion that the ACLU’s permit application ultimately was rendered inactive because it lacked “specifies.” The only “specific” that was ever mentioned was the size of the display. However, after Bergo’s April 4 telephone conversation with Scott, it appears, accepting Kreisner’s account of the conversation, that Scott understood how large the ACLU display would be. When Bergo told Scott that the display would be the same size as the Christmas Committee’s display, Scott responded, “Oh, my god, those things are booths; they’re over your head; those are really big.” Indeed, Scott knew precisely that this meant each display would be 12 feet square. These were virtually the same dimensions that Wheeler provided to Scott in her October 2, 1991, follow-up letter. Oddly, this letter, mailed after the City had granted the permit to the Christmas Committee, satisfied Scott’s “need” for specifics, but the same information provided before the Christmas Committee received its permit would not suffice.\nThe remaining series of events surrounding the ACLU’s permit application are undisputed. Bergo again contacted Scott by telephone in July 1991 to ask whether the ACLU’s permit had been granted. Scott responded that she needed some information and had taken no action. Wheeler also wrote to Scott in October 1991 inquiring about the status of the permit application. Scott responded in writing that the ACLU’s permit application had been deemed inactive because it lacked the necessary specifics. She also stated that the Christmas Committee had been given the location that the ACLU had previously requested.\nConsidering these facts in the light most favorable to Kreisner, as we must, it becomes even clearer that the district court’s grant of summary judgment to the City was improper. Whether the City in fact had a first-come, first-served policy for long-term, unattended displays, whether the City embellished the policy with ad hoc requests for “specifics,” and whether the City favored the Christmas Committee’s application over the ACLU’s first-in-time application at minimum are triable issues of material fact. If we assume Kreisner’s version of the disputed facts, San Diego reserved the Organ Pavilion for the Christmas Committee display despite the ACLU’s first-in-time application, and used its request for “specifics” as a subterfuge to render the ACLU’s application inactive.\nAlthough there may be room to debate the meaning of the Establishment Clause at its fringes, the core of its protection remains indubitable: the government can “effect no favoritism among [religious] sects or between religion and nonreligion.” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); accord Allegheny County, 492 U.S. at 590, 109 S.Ct. at 3099 (“[T]his Court has come to understand the Establishment Clause to mean that government ... may not discriminate among persons on the basis of their religious beliefs and practices_”); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 27, 28, 109 S.Ct. 890, 906, 906, 103 L.Ed.2d 1 (1989) (Blackmun, J., concurring in judgment) (“government may not favor religious belief over disbelief’ or adopt a “preference for the dissemination of religious ideas”); Edwards v. Aguillard; 482 U.S. 578, 593, 107 S.Ct. 2573, 2582, 96 L.Ed.2d 510 (1987) (“preference” for particular religious belief constitutes an endorsement of religion); Wallace v. Jajfree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring) (Establishment Clause “preclude^] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred”). A finding that the City played favorites in reserving the Organ Pavilion for the Christmas Committee over the ACLU, therefore, would constitute an independent basis for concluding that San Diego has violated the Establishment Clause.\nIII. The Free Speech Clause.\nBesides forbidding the government from making laws respecting the establishment of religion, the First Amendment also prohibits the government from making laws “abridging the freedom of speech.” U.S. Const, amend. I. Two doctrines that emerge from this clause are relevant to the case at hand. First, the public forum doctrine allows content-based regulation of speech in a public forum only where the “regulation is necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.” Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981). The majority holds that this doctrine permits, and possibly requires, San Diego to allow the Christmas Committee display. Preventing San Diego from violating the Establishment Clause, however, is a compelling state interest, and an injunction in this case is necessary to achieve that end. Second, the prior restraint doctrine prohibits giving government officials unbridled discretion in licensing speech. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). I believe that the City’s informal policy of awarding park permits gives park officials unbridled discretion to discriminate against speech in violation of the Constitution.\nA. The Public Forum Doctrine.\nFor purposes of analyzing whether the Free Speech Clause is violated, the Supreme Court uses the categories of traditional public, designated public, and non-public forum to determine whether government may prohibit speech in a particular location. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). A traditional public forum is a place, such as a public street or park, which has “ ‘immemorially been held in trust for the use of the public and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Id. (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939)). Designated public forums are public properties “which the State has opened for use by the public as a place for expressive activity.” Id. A non-public forum is “[p]ublic property which is not by tradition or designation a forum for public communication.” Id. 460 U.S. at 46, 103 S.Ct. at 955. In both the traditional and designated public forums, a regulation excluding speech based on content must be narrowly drawn to achieve a compelling state interest. Id. at 45, 46,103 S.Ct. at 955, 956.\nThere is no question that the Christmas Committee display would be unconstitutional if it stood within a county courthouse or in front of City Hall. In both cases, the display would violate the Establishment Clause. See Allegheny County, 492 U.S. at 579, 109 S.Ct. at 3093; Kaplan, 891 F.2d at 1029. Although the majority avoids reaching the issue, preventing such a violation is a compelling state interest which justifies a content-based regulation forbidding such a display, thereby satisfying the standard announced in Perry. Widmar, 454 U.S. at 271, 102 S.Ct. at 275 (state University’s interest “in complying with its constitutional obligations may be characterized as compelling”). The question is whether placing the same display in the Organ Pavilion of San Diego’s Balboa Park alters the legal outcome.\nIn holding that “because the [Christmas Committee] display is private speech in a traditional public forum removed from the seat of government it does not have the primary effect of advancing religion,” Opinion at 782, the majority frames its Establishment Clause discussion in terms of public forum doctrine and thereby suggests that the resolution of an Establishment Clause challenge is dependent on the resolution of the public forum issue — in other words, that the Free Speech Clause trumps the Establishment Clause. The concurrence brings this point into sharp relief. According to the concurrence, “[r]eligious speech is speech, ... no more and no less.” Judge Kozinski, concurring, at 790. This statement ignores the Establishment Clause. As Justice Kennedy wrote for the majority in Lee v. Weisman, — U.S. -, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992):\nThe First Amendment protects speech and religion by quite different mechanisms. Speech is protected by insuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own.... In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all.... [T]he Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.\nId. at ---, 112 S.Ct. at 2657-58 (citations omitted) (emphasis added). Accordingly, although “[t]he government has many good reasons for restricting racist speech, advocacy of Communism, pornography and various other kinds of speech that some might see as harmful,” Judge Kozinski, concurring, at 790, the government does not have the reason that the Constitution expressly forbids the government from appearing to endorse those kinds of speech. The Constitution does, however, forbid the government from appearing to endorse religious speech. The principle, therefore, is clear: a violation of the Establishment Clause can never be saved by the Free Speech Clause. Otherwise, the Establishment Clause would be emasculated.\nI agree with the majority that the Organ Pavilion is a traditional public forum. The nature of a display’s forum, however, “is simply a factor to be taken into account in determining whether the context of the display suggests government endorsement.” Kaplan, 891 F.2d at 1029; accord Smith, 895 F.2d at 958 (“[WJhether the lawn is or is not a public forum is not dispositive. The critical gauge of any such content-related speech restriction is whether the overall context and nature of the restricted display conveys the impermissible message of governmental endorsement of religion.” (footnote omitted)).\nThus the critical question remains whether San Diego’s relationship with the Christmas Committee display violates the Establishment Clause. Having found an Establishment Clause violation, I conclude that a content-based injunction against the display does not offend the public forum doctrine. Holding the government to its obligations under the Establishment Clause constitutes a compelling state interest. Moreover, a prohibition limited to long-standing displays of solitary religious symbols on public property adjoining prominent city structures would be narrowly tailored to serve this interest. See Smith, 895 F.2d at 960; Kaplan, 891 F.2d at 1030. Accordingly, the Free Speech Clause is satisfied.\nB. The Prior Restraint Doctrine.\nSan Diego’s licensing scheme regulating the use of long-term, unattended displays in Balboa Park is a prior restraint of speech. “[I]t is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license.” Lakewood, 486 U.S. at 759, 108 S.Ct. at 2145. A prior restraint of speech is not unconstitutional per se. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). “Any system of prior restraint, however, ‘comes to this [cjourt bearing a heavy presumption against its constitutional validity.’ ” Id. (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)). Accordingly, San Diego’s “licensing requirement is sufficiently threatening to invite judicial concern.” Lakewood, 486 U.S. at 760, 108 S.Ct. at 2145.\nThe City’s scheme for regulating long-term, unattended displays is an unconstitutional prior restraint of speech if it “vests unbridled discretion in a government official over whether to permit or deny expressive activity.” Id. at 755, 108 S.Ct. at 2143; see Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (invalidating ordinance allowing city to deny parade permit if city believed its public welfare, safety, health, morals, or convenience required denial). In determining whether unbridled discretion is present, we must examine both the nature of San Diego’s permit policy and the articulation of that policy. The nature of the permit policy must be to provide “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U.S. at 151, 89 S.Ct. at 938. As to articulating the policy, “the limits the city claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Lakewood, 486 U.S. at 770, 108 S.Ct. at 2151. Viewing the facts in the light most favorable to the City, I find that Kreisner is entitled to summary judgment because San Diego’s permit policy is unconstitutional by nature. For the same reasons, I would reverse the City’s summary judgment. Regarding the City’s motion, I also find a triable issue of material fact as to whether San Diego has sufficiently articulated its permit policy.\n1. The Nature of San Diego’s Permit Policy.\nViewing the facts in the light most favorable to San Diego, the City’s permit policy does not confine discretion. The City purports to take a “first-come, first-served” approach to issuing park permits. Further examination of the City’s statements, however, reveals unwritten, unannounced embellishments to the policy: according to the district court’s findings, which coincide with the City’s assertions, the request to use the park must be “reasonable,” the applicant must furnish “specifics” regarding the desired display, and the applicant must comply with the Park and Recreation Department’s permit requirements. What is “reasonable”? What are the requisite specifics? What permit requirements must be satisfied?\nThat a permit request be “reasonable” is itself an unconstitutional invitation of unbridled discretion. See, e.g., Lakewood, 486 U.S. 750, 108 S.Ct. 2138 (upholding facial challenge to ordinance giving mayor discretion to deny newsrack permit applications and authority to condition a permit on any terms deemed “necessary and reasonable”). Moreover, although park official Penny Scott stated that she would like to know specifics such as the size and construction material of proposed displays for planning purposes, in the end she apparently had the authority to deny an application when she felt “uncomfortable” with the request. Freedom from unbridled discretion over speech “has a firmer foundation than the whims or personal opinions of a local governing body.” Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 328, 95 L.Ed. 267 (1951). Finally, the City’s permit requirements, which appear in the Rules and Regulations Governing Park Use Permits, contain nothing to restrain the official’s discretion in deciding whether to grant a park permit. Rather, the regulations merely restrict the park user in the event the permit is granted. Thus, viewing the facts in the light most favorable to the City, San Diego does not provide “narrow, objective, and definite standards to guide the licensing-authority.” Shuttlesworth, 394 U.S. at 151, 89 S.Ct. at 938.\nGiven the City’s intimate involvement with the display over the past several decades and the rebuttable presumption that systems of prior restraint are unconstitutional, it was incumbent upon the City to craft and articulate a narrow, objective, and definite park permit policy. San Diego has failed to do so.\n2. San Diego’s Failure to Articidate its Permit Policy.\nEven if San Diego’s purported first-come, first-served policy with its accompanying embellishments were constitutional by nature, the policy must be evident in a binding text, judicial or administrative opinion, or a well-established practice. The City’s permit policy for long-term, unattended displays is found in neither a binding text nor a judicial or administrative opinion. Although the City contends that its policy is a matter of well-established practice, this fact is disputed. Accordingly, a triable issue of material fact is presented, and we should reverse the summary judgment for the City.\nAs for binding texts, San Diego admits in its response to Kreisner’s interrogatories that there are no “documents which describe the official criteria and standards which are applied to applications for use of the [Balboa Park Organ Pavilion].” The district court on remand stated, and it is not disputed, that beyond the Park and Recreation Department’s fees and charges schedule, “the City has not presented any evidence of a written policy regarding the issuance of permits.” Findings at 4. The fees and charges schedule says nothing about the method or prerequisites for obtaining any kind of park permit. Moreover, neither the standard application form for obtaining a park permit nor the City’s Rules and Regulations Governing Park Permits contains anything regarding the City’s first-come, first-served policy or the specifics that applicants must furnish.\nFurthermore, it is undisputed that no judicial or administrative opinion prescribes the City’s permit policy. The majority takes comfort in the fact that future applicants can go to court if the City fails to follow its purported permit policy so that, in effect, future judicial opinions will circumscribe the City’s discretion. Opinion at 786, n. 7. The Supreme Court, however, has stated explicitly that “[e]ven if judicial review [of a denied permit] were relatively speedy, such review cannot substitute for concrete standards to guide the decisionmaker’s discretion.” Lakewood, 486 U.S. at 771, 108 S.Ct. at 2151. Indeed, it is the potential for government abuse of discretion, rather than the abuse itself, that is so pernicious: Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940).\nProof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.... It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.\nThe City relies upon the idea that its permit policy is articulated via a well-established practice. Assuming the facts as presented by Kreisner, however, neither the patrons of Balboa Park nor park officials themselves seem familiar with any such practice. Betty Wheeler of the ACLU decided to test the City’s purported policy precisely because neither she nor her colleagues who regularly worked with people participating in expressive activities in San Diego had ever heard of such a policy. Jack Krasovich, the Deputy Director of San Diego’s Park and Recreation Department, was unsure of what type of permit a long-term, unattended display could receive. He testified at various points that unattended displays are granted “park facility use” permits, “park use” permits, and “special use” permits. Penny Scott, the District Manager for Balboa Park, had never heard of a “non-exclusive use” permit, which was the term that the City Attorney used at oral argument to describe what permit category suited a long-term, unattended display.\nIn fact, the City’s well-established practice seems to negate its claim to a strict first-come, first-served permit policy. As noted earlier, according to the ACLU’s version of its experience with the City, Scott stated that the Christmas Committee display was a tradition and that it would be in the Organ Pavilion until the Committee decided not to erect the display again. Moreover, despite the City’s co-sponsorship and intimate involvement with the holiday display for 35 of the last 39 years, the City Council has not explicitly articulated its permit policy for long-term, unattended displays. This undermines its claim of having a well-established first-come, first-served policy.\nKreisner’s account of the City’s rejecting the ACLU’s permit application for the proposed Bill of Rights display demonstrates the dangers inherent in giving government officials unbridled discretion over speech. Among the risks that the prior restraint doctrine seeks to minimize are government censorship, self-censorship by speakers, and the unreviewability of constitutional challenges to licensing schemes. Lakewood, 486 U.S. at 757-59, 108 S.Ct. at 2144-45. All three risks are present here.\nFirst, the prohibition of unbridled discretion is designed to control government censorship of speech. Id. at 757, 108 S.Ct. at 2144; Southeastern Promotions, Ltd., 420 U.S. at 559, 95 S.Ct. at 1246. There is evidence that San Diego censored speech based on content when it gave priority to the Christmas Committee display over the ACLU’s proposed display. Scott’s references to the Christmas Committee display as “tradition,” her comment that the display was “already booked” when it was not, and her statement that the display “will be there every year until they [the Christmas Committee] decide not to do it again” all suggest the type of censorship that runs amuck over the First Amendment. That Scott offered the ACLU an alternative location for its proposed display does not absolve the City of constitutional liability. Southeasteyn Promotions, Ltd., 420 U.S. at 556, 95 S.Ct. at 1245 (“ ‘[0]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ”) (quoting Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146,151-52, 84 L.Ed. 155 (1939)).\nSecond, the City’s unwritten, unannounced permit policy raises the possibility that would-be sponsors of long-term, unattended displays in Organ Pavilion at Christmas time are censoring themselves. This is a constitutionally significant concern. “[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” Lakewood, 486 U.S. at 757, 108 S.Ct. at 2144. Many people may not be aware that they can apply for a permit to occupy the area of the Christmas display during December because written standards are absent. The reasonable San Diegan who has seen the Christmas display for decades is probably unaware that one can display something at that site upon submitting a permit application.\nFinally, San Diego’s invisible permit criteria make this case difficult to review. These circumstances have troubled the Supreme Court:\n[T]he absence of express standards makes it difficult to distinguish ... between a licensor’s legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the li-censor is discriminating against disfavored speech. Without these guideposts, post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression.\nId. at 758, 108 S.Ct. at 2144. An unwritten, unannounced permit policy with ad hoc embellishments does not provide the concrete standards necessary to ensure sound judicial review of claims alleging First Amendment violations.\nAt bottom,\n[i]n the instant case we are met with no ordinance or statute regulating ... the use of the park; all that is here is an amorphous ‘practice,’ whereby all authority to grant permits for the use of the park is in the Park Commissioner and the City Council. No standards appear anywhere; no narrowly drawn limitations; no circumscribing of this absolute power; no substantial interest of the community to be served. It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here.\nNiemotko, 340 U.S. at 271-72, 71 S.Ct. at 327; see also Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280 (1951) (ordinance requiring those who wished to hold public worship meetings on the streets to obtain permit from police commissioner gave “administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York ... [and therefore was] clearly invalid as a prior restraint on the exercise of First Amendment rights”).\nCONCLUSION\n“The lessons of the First Amendment are as urgent in the modern world as in the 18th Century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.” Lee, — U.S. at -, 112 S.Ct. at 2658. Given the undisputed facts, San Diego’s interrelationship with this religious display of literally biblical proportions violates the Establishment Clause. Moreover, its unwritten, unannounced policy for administering park permits offends the Free Speech Clause. Therefore, I would hold that Kreisner is entitled to summary judgment on these grounds and would reverse the summary judgment for the City.\nFurthermore, there is a triable issue under both the Establishment and Free Speech Clauses as to whether San Diego in fact favored the Christmas Committee over another, first-in-time permit applicant. Accordingly, I would reverse San Diego’s summary judgment for this additional reason.\n. Based upon the testimony of Penny Scott, the District Manager of San Diego's Park and Recreation Department, and Jack Krasovich, the Deputy Director of the Central Division for the City of San Diego, the district court concluded that the City granted park permits on a first-come, first-served basis. This testimony, however, contradicted that of Janet Bergo and Betty Wheeler of the ACLU. The alleged policy was not documented or advertised. The district court's conclusion, therefore, was expressly based upon its assessment of witness credibility. District Court’s Findings of Fact and Conclusions of Law 12/13/91 (\"Findings”) at 4-5, 9 (stating that district court found certain witnesses to be “credible” and reached its \"Findings of Fact” after \"considering all of the evidence and observing the demeanor of the witnesses”). Determinations of credibility are inappropriate for summary judgment. Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir.1992).\nThe district court also concluded from disputed evidence that the City \"reasonably requires specific information regarding the display, such as size and dimension before issuing a permit.” Findings at 5. The court reached this conclusion despite the absence of any requirement for such information in the City’s permit applications or its Park and Recreation Rules and Regulations. Once again, therefore, the district court based its conclusion on the credibility of the City’s witnesses.\n. The majority’s decision to remand the case to the district court for further factual findings itself suggests that the district court’s granting summary judgment in favor of the City was inappropriate. A genuine issue of material fact must have existed to warrant an additional factual inquiry.\n. We remanded this case to address the City’s assertion, raised for the first time at oral argument before this court, that it had a first-come, first-served policy for issuing park permits. The full text of the amended order remanding the case to the district court is as follows:\nSubmission is VACATED until further order of the court.\nThis appeal is REMANDED to the district court for sixty days from the date of this order for the limited purpose of making further factual findings. Specifically, the district court shall determine what are the policies of the City of San Diego with respect to granting permits for the use of Balboa Park. The court shall attach to its findings copies of any documents setting forth such policies. If it is contended that there are oral or partially oral policies, the court shall specify any evidence indicating the establishment of such policies and any evidence indicating that the public has been made aware of such policies. The court may make any further findings on factual developments which the parties regard as material to the issues in this appeal. The district court also may amend its conclusions of law in light of any new factual findings.\nUpon receipt of the order making further factual findings and (if applicable) amending the conclusions of law, the clerk shall immediately deliver copies of such order to this panel.\nJudge Boochever dissents from the order of remand and would decide the case on the present record before the panel.\nSUBMISSION VACATED and TEMPORARILY REMANDED.\n. Although the majority characterizes this approach as a new Establishment Clause test, I emphasize that I do not intend to replace the Lemon test but merely to refine the “effects” prong of Lemon in the limited context of judging the constitutionality of religious displays on government property. I believe my characterization of this approach finds support in the Establishment Clause jurisprudence as is evident in my citations throughout this discussion.\n. The sign read: \"During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.\" Id.\n. Photographs of the Organ Pavilion and two booths representative of the display are included in the Appendix to this dissent.\nI have found only one case, Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc), involving a display which can even remotely approximate the religious intensity of the display in this case. Doe involved the exhibition of a series of religious paintings in a public park. Unlike the case at issue here, however, Doe did not involve life-size sculptures or a prominent display of passages from Christian scripture. In addition, the public park in which the display in Doe was located was unadorned with government-owned buildings or structures. Id. at 613.\nDoe is also distinguishable because the court never addressed whether the religious display at issue violated the Establishment Clause. Id. at 617, 622 (parties did not appeal Establishment Clause issue). Indeed, the Doe court was \"not in agreement as to whether the City violated the Establishment Clause in its conduct.\" Id. at 617. Hence, to the extent that the religious paintings in Doe are similar to the religious display in this case, the result in Doe cannot be considered even as persuasive authority on the Establishment Clause question.\n. Although it is contended that the display contains a disclaimer sign attributing its sponsorship to the Christmas Committee, the content of the sign does not appear in the record. As noted earlier, however, such a sign cannot dissolve the perception of government support for the religious message of the display.\n. The only possible exception is a fee waiver given to St. Augustine High School for a concert on May 6, 1989. This fee waiver, however, was consistent with waivers given to the other high schools who held concerts throughout the two-year period.\n. The majority suggests that Kreisner and the ACLU inappropriately \"create[d]” issues of material fact after the district court’s grant of summary judgment. I disagree. That San Diego had a first-come, first-served policy for issuing park permits for long-term, unattended displays was first asserted by the City at oral argument before this court. Thus, if any party “created” the issue, the City did. Indeed, the majority instructed the district court on remand to \"make any further findings on factual developments which the parties regard as material to the issues in this appeal” (emphasis added). Accordingly, the district court appropriately heard testimony regarding the City’s purported first-come, first-served policy and the ACLU's experience suggesting that no such policy existed.\n. The majority’s statement that \"the ACLU had no intention of erecting such a display” conflicts with Ms. Wheeler's sworn statement that she obtained a commitment from her executive director to put on the display if the ACLU were awarded the permit. At minimum, Ms. Wheeler's testimony presents a triable issue of fact.\n. Although the factual issues underlying the pri- or restraint doctrine were addressed by the district court on remand and argued by the parties in the supplemental briefing to this court, Kreis-ner, who appeared pro se in the original proceedings, did not state his case in terms of the prior restraint doctrine until he, when represented by counsel, filed his supplemental reply brief.\nWhether the City had unbridled discretion to issue park use permits is integral to analyzing whether the City in fact favored the Christmas Committee display over that of the ACLU in violation of the Establishment Clause. Furthermore, the unbridled discretion inquiry coincides with whether the City provides equal access to speech under the Free Speech Clause. Therefore, whether the City exercised unbridled discretion over speech was implicitly at issue before the district court. Kreisner contended that the Cily had no articulated standards for issuing permits, and the parties had \"an opportunity to dispute the facts material to that claim.” Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754, 755, 93 L.Ed. 971 (1949). Moreover, the issue is inextricably intertwined with the City's and the majority's free speech justification.\nTo the extent that the prior restraint doctrine is considered an issue not presented to the district court, we have held that \"[ejxceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below.” Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir. 1961) (emphasis added). Justice and public policy require that we determine whether San Diego's permit application process is an unbridled prior restraint of speech:\nThe constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect policy and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.\nCohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971).\n. The concurrence challenges this sentence, arguing that the Establishment Clause \"forbids only the establishment of religion, not the mere appearance of doing so.” Judge Kozinski, concurring, at 790. The Supreme Court clearly supports my reading of the content of the Establishment Clause. Allegheny County, 492 U.S. at 574, 109 S.Ct. at 3090 (\"The [Establishment] Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief.... ”) (emphasis added); id. at 595, 109 S.Ct. at 3102 (\"[T]he question is ‘what viewers may fairly understand to be the purpose of the display. \") (quoting Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O'Connor, J., concurring)) (emphasis added); id. 492 U.S. at 597, 109 S.Ct. at 3103 (\"[W]e must ascertain whether ‘the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.' ”) (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985)) (emphasis added); Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 264, 110 S.Ct. 2356, 2379, 110 L.Ed.2d 191 (1990) (Marshall, J„ concurring) (\"If public schools are perceived as conferring the imprimatur of the State on religious doctrine or practice as a result of such a policy, the nominally 'neutral' character of the policy will not save it from running afoul of the Establishment Clause.”) (emphasis added); Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O’Connor, J., concurring) (\"It is only practices having [the effect of communicating endorsement or disapproval of religion], whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.”) (emphasis added); id. at 711, 104 S.Ct. at 1379 (Brennan, J., dissenting) (\"But when [government] officials participate in or appear to endorse the distinctively religious elements of this otherwise secular event [Christmas], they encroach upon First Amendment freedoms.”) (emphasis added); Widmar, 454 U.S. at 280-81, 102 S.Ct. at 280 (Stevens, J., concurring) (\"But since the record discloses no danger that the University will appear to sponsor any particular religion, ... the Court properly concludes that the University's fear [of an Establishment Clause violation] is groundless.”) (emphasis added).\nMoreover, although the concurrence asserts that the endorsement test applies only to situations where \"the government is speaking,” Judge Kozinski, concurring, at 790, Allegheny County rejects such a narrow interpretation of the Establishment Clause. 492 U.S. at 600, 109 S.Ct. at 3104 (\"[T]he Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations. Indeed, the very concept of ‘endorsement’ conveys the sense of promoting someone else’s message.\" (citation omitted)). Accordingly, even though the creche in Allegheny County was owned and displayed by the Holy Name Society, a private Roman Catholic group, id. at 573, 109 S.Ct. at 3086, the Court found an Establishment Clause violation because observers were sufficiently likely to perceive the display as government endorsement of a religious message. Id. at 597, 601, 109 S.Ct. at 3103, 3105.", "type": "dissent", "author": "BOOCHEVER, Circuit Judge,"}], "attorneys": ["Michael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisco, CA, for plaintiffs-appellants.", "Mary Kay Jackson, Deputy City Atty., San Diego, CA, for defendant-appellee."], "corrections": "", "head_matter": "Howard T. KREISNER, et al., Plaintiffs-Appellants, v. CITY OF SAN DIEGO, Defendant-Appellee.\nNo. 90-55354.\nUnited States Court of Appeals, Ninth Circuit.\nArgued April 3, 1991.\nSubmission Deferred April 3, 1991.\nSubmitted Feb. 19, 1993.\nDecided March 3, 1993.\nAs Amended on Denial of Rehearing and Rehearing En Banc Aug. 2, 1993.\nMichael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisco, CA, for plaintiffs-appellants.\nMary Kay Jackson, Deputy City Atty., San Diego, CA, for defendant-appellee.\nBefore: BOOCHEVER, KOZINSKI, and O’SCANNLAIN, Circuit Judges."} | BOOCHEVER | KOZINSKI | O’SCANNLAIN | 1 | 3 | 1 | 1 | 1 | 0 | 1 F.3d 775 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,452 | James Dean CLARK, Petitioner-Appellant, v. Samuel A. LEWIS, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison, Respondents-Appellees | Clark v. Lewis | 1993-07-01 | No. 93-99005 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FARRIS, BRUNETTI and THOMPSON, Circuit Judges."], "parties": ["James Dean CLARK, Petitioner-Appellant, v. Samuel A. LEWIS, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison, Respondents-Appellees."], "opinions": [{"text": "ORDER\nThe opinion filed April 13, 1993 is withdrawn. It is replaced with an order for publication filed contemporaneously herewith.\nORDER\nDAVID R. THOMPSON, Circuit Judge:\nThe district court dismissed James Dean Clark’s second federal habeas corpus petition challenging his state convictions on four counts of first-degree murder and sentence of death. The district court had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254. It refused to issue a certificate of probable cause to permit Clark to appeal to this court. See 28 U.S.C. § 2253; Fed.R.App.P. 22(b).\nWe have jurisdiction to determine whether to issue a certificate of probable cause, id., and to entertain Clark’s application for such a certificate on its merits. Burwell v. Teets, 350 U.S. 808, 809, 76 S.Ct. 98, 98, 100 L.Ed. 726 (1955); Rogers v. Teets, 350 U.S. 809, 76 S.Ct. 98, 100 L.Ed. 726 (1955). We also have authority to “lay down a procedure ... to follow for the entertainment of such applications on their merits.” In re Application of Burwell, 350 U.S. 521, 522, 76 S.Ct. 539, 540, 100 L.Ed. 666 (1956).\nWe have adopted rules for state habeas corpus death penalty cases. See generally 9th Cir.R. 22-1 et seq. Under these rules, if the panel to which the case has been assigned votes unanimously to deny an application for a certificate of probable cause, or if a majority of the panel votes to deny an accompanying motion for a stay of execution, “it shall enter an order setting forth the issues presented and the reasons” for doing so. 9th Cir.R. 22-4(d)(3) & (4) (June, 1993).\nThe panel to which this ease has been assigned has considered Clark’s application for a certificate of probable cause on the merits. For the reasons hereafter stated, the panel has voted unanimously to deny his application. Clark’s application for a stay of execution is denied and his appeal is dismissed.\nFACTS AND PROCEEDINGS\nJames Dean Clark was convicted of four counts of first-degree murder for murdering four’ persons on December 4, 1977. For a year prior to the murders Clark worked as a wrangler at the Cochise Lodge and Guest Ranch, a dude ranch owned by Charles and Mildred Thumm and located near Elfrida, a rural town in Cochise County, Arizona.\nOn December 3, 1977, Clark had dinner at the lodge with Mr. and Mrs. Rush Allen, guests at the lodge, and with George Martin and Gerry McFerron, wranglers at the ranch. After dinner, the Allens went to Tombstone with Martin. McFerron and Clark called Janie Hendrickson, who met them at the lodge. The three of them went to the Elfrida tavern and then to a disco lounge in Douglas. Hendrickson and Clark went into the disco lounge. McFerron had drunk too much. He vomited and stayed outside.\nThe three returned to the lodge between 1:00 and 1:30 a.m., and Hendrickson left in her car. Clark did not appear to be intoxicated. During the evening, McFerron told Hendrickson that Clark was dangerous when he was drunk. Clark overheard the statement, but he simply chuckled and made no comment. Clark had been playing with a .357 Magnum pistol at one point during the evening.\nAfter McFerron went to bed, Clark entered the wranglers’ quarters and stabbed to death Martin, an older wrangler who was passed out in his bed. Clark then fatally shot McFerron as the young wrangler slept in his sleeping bag. Clark picked up a .357 Magnum from McFerron’s room, walked from the wranglers’ quarters to the Thumms’ house and shot to death both Charles and Mildred Thumm.\nA pathologist testified that Martin died of seven stab wounds to the chest, which penetrated the heart and lungs. McFerron died of three gunshot wounds to the head, one in the temple, one in the ear, and one to the top of the head. Charles Thumm was shot three times, once in the chest, once in the left shoulder and once, from a distance of three to four inches, in the head. Mildred Thumm died of a gunshot wound near the left earlobe, fired from a distance of approximately two to six inches.\nClark slashed all the tires on the vehicles at the ranch and then fled the area in the Thumms’ station wagon. Clark took with him rings and credit cards belonging to the Thumms, guns, including those used in the murders, and a saddle. Clark drove to El Paso, Texas, where he sold Mildred Thumm’s engagement and dinner rings to a jeweler. Clark was apprehended a few days later in El Paso, Texas.\nClark volunteered the statement to the El Paso police that he had been given permission to use the car and some credit cards to pick up his girlfriend and take her back to Arizona to get married. A spent lead bullet, which appeared to have organic matter on it, was removed from the pocket of a jacket in Clark’s hotel room. When accused of killing the Thumms, Martin and McFerron, Clark stated that he might have killed them, but he did not remember.\nAt the preliminary hearing on December 15, 1977, John Doe, a confidential informant for the Drug Enforcement Agency (“DEA”), testified over the objection of the defense. John Doe wore a ski mask, but removed it briefly during the hearing so that Clark could observe his face. Before the trial, the defense was provided with Doe’s true name, date of birth, place of residence, and prior criminal record.\nPrior to John Doe’s testimony, a hearing was held in chambers. The trial court ordered that the record of these proceedings be sealed. John Doe stated his true name and his location in El Paso, Texas. John Doe testified that he felt his life was in danger, and had received threats because he was a paid informant for the DEA. He was therefore allowed to testify as John Doe.\nBefore the jury, John Doe testified that he had met Clark in the late night hours of December 4,1977, at a bar in El Paso, Texas and, the next day, at Clark’s request, he bought heroin for Clark and sold four guns Clax'k had in his possession, including a .357 Magnum. John Doe also testified that Clark said he had already killed three people in “Elvira,” Arizona. Clark told the primary investigating officer in January 1978 that John Doe committed the murders.\nAn Arizona jury convicted Clark of four counts of first-degree murder. Following his convictions, a separate non-jury sentencing hearing was held by the trial judge pursuant to Arizona Revised Statute § 13-902. The sentencing judge found three aggravating factors present in the case:\n1. Clark created a grave risk of death to a second victim, Mildred Thumm, in shooting Charles Thumm in the hallway of their home, Ariz.Rev.Stat. § 13-902(F)(3);\n2. Clark murdered Mildred and Charles Thumm with the expectation of receiving something of pecuniary value — such as the credit cards, jewelry and automobile, Ariz. Rev.Stat. § 13 — 902(F)(5); and\n3. Clark committed the offenses in an especially cruel and depraved manner, Ariz. Rev.Stat. § 13-902(F)(6).\nIn mitigation, Clark asserted that he was only twenty years old at the time of the crimes, had a poor home life during his formative years, lacked any adult criminal record, suffered emotional problems stemming from his antisocial personality, and had been cooperative with the police. The sentencing judge found the mitigating factors not sufficiently substantial to warrant leniency and sentenced Clark to death on each of the four counts.\nClark filed a direct appeal with the Arizona Supreme Court. That court found that the first aggravating circumstance was not present because Mildred Thumm was actually in another room at the time Charles Thumm was killed and therefore she was not within the zone of danger contemplated by section 13 — 902(F)(3). State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The court further determined that none of the murders had been committed in an especially cruel manner because there was no evidence that any of the victims had suffered any pain. Id. The court upheld the sentencing judge’s findings that the murders were committed for pecuniary gain and in a depraved manner. Id.\nAfter independently reviewing all the evidence, the court concluded that the aggravating circumstances had been established and that the mitigating circumstances were not sufficiently substantial to call for leniency. Id. 616 P.2d at 897. The court also determined that Clark’s Sixth Amendment right to confront witnesses had not been violated when the prosecution called the John Doe witness to testify against him. Id. at 891-93.\nIn August 1987, after pursuing his state court remedies, Clark filed his first petition for a writ of habeas corpus in the United States District Court for the District of Arizona, pursuant to 28 U.S.C. § 2254. His petition was denied by summary judgment and Clark appealed to this court. We issued an opinion in September 1989, holding that Clark was entitled to be resentenced because Arizona’s death penalty statute had been held unconstitutional in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). Clark v. Ricketts, 886 F.2d 1152 (9th Cir.1989). Thereafter, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court held Arizona’s death penalty statute to be constitutional. We granted rehearing in Clark v. Ricketts, withdrew the original opinion and issued a new one, upholding the denial of habeas relief in all respects, including the sentencing issues. Clark v. Ricketts, 958 F.2d 851 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992).\nIn September 1992, Clark filed his third state petition for post-conviction relief in Cochise County Superior Court, Arizona. In January 1993, the Arizona Supreme Court set Clark’s execution date for April 14, 1993. On February 9, 1993, the Cochise County Superior Court summarily dismissed Clark’s third petition for post-conviction relief. Clark filed a petition for rehearing, which that court denied on March 26, 1993.\nOn April 1, 1993, Clark mailed a petition for review to the state trial court, and on April 2,1993, he filed a motion in the Arizona Supreme Court to stay his execution.\nOn April 11,1993, Clark filed in the United States District Court for the District of Arizona a second federal habeas petition, an emei’gency application for stay of execution, a motion to vacate and reopen judgment pursuant to Federal Rule of Civil Procedure 60(b), a motion for an evidentiary hearing, and a motion for leave to conduct discovery.\nIn this second habeas petition, Clark raised ten claims of constitutional error. The district court held that upon review of the materials submitted by Clark, it could not discern any substantial ground upon which relief might be granted and denied Clark’s emergency application for stay of execution. The court also concluded that it could not reach the merits of Clark’s claims because the claims raised by Clark were either abusive or successive. The court, relying on Sawyer v. Whitley, — U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), and McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), determined that Clark failed to demonstrate cause and prejudice, which would excuse his failure to raise his claims earlier. Finally, the court concluded that the “ends of justice” did not require that Clark be given an opportunity to relitigate his previously litigated claims or litigate his new, but abusive claims.\nThe district court dismissed the second petition for writ of habeas corpus and denied Clark’s emergency application for a certificate of probable cause and stay of execution, his Rule 60(b) motion to vacate and reopen judgment, his motion for an evidentiary hearing, and his motion for leave to conduct discovery. Clark filed a notice of appeal and applied to this court for a certificate of probable cause and a stay of execution of his death sentence. While this application was pending, the Arizona Supreme Court denied his motion for a stay of execution.\nDISCUSSION\nThis court should grant an application for a certificate of probable cause to appeal only if the petitioner makes a substantial showing that he has been denied a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make this substantial showing, a petitioner must demonstrate that the issues are “debatable among jurists of reason,” that a court could resolve the issues differently, or that the issues are “adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4.\nThe Supreme Court, in Sawyer, restated under what circumstances a federal court could reach the merits of successive, abusive, or defaulted claims raised in a habeas corpus petition: Sawyer, — U.S. at -, 112 S.Ct. at 2518 (emphasis in original); see also Campbell v. Blodgett, 997 F.2d 512, 516-17 (9th Cir.1993) (reviewing third federal habeas corpus petition); 28 U.S.C. §§ 2244(b), Rule 9 of Rules Governing Section 2254 Cases (1988). An evidentiary hearing is not necessary to allow a petitioner to show cause and prejudice if the court determines as a matter of law that he cannot satisfy the standard. Campbell, 997 F.2d at 524.\nUnless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided oh the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); (b) new claims, not previously raised which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. [467], 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).... [E]ven if a state prisoner cannot meet the cause and prejudice standard a federal court may hear the merits of the successive claims if the failure to hear the claims would constitute a “miscarriage of justice.”\nClark argues the district court erred in rejecting his claims as successive and abusive. He contends the standards permitting denial without consideration of the merits were not met. Clark also argues the ends of justice exception requires a determination on the merits, and the “actual innocence” formulation announced in Sawyer should not be applied to his petition, or if it is that he is actually innocent of the death penalty. We conclude that the district court did not err by finding Clark’s claims successive and abusive and the fundamental miscarriage of justice exception inapplicable.\nFor each claim, if the state pleads abuse of the writ, Clark must show cause for failing to raise his claim in his first federal habeas corpus petition and actual prejudice resulting from the error of which he complains. See McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Cause requires a showing of “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim.” Id. (quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645). The Court in McCleskey emphasized:\nAbuse of the writ doctrine examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.... If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.\nId. 499 U.S. at -, 111 S.Ct. at 1472. We now address each of Clark’s claims.\n1. Failure of Arizona Supreme Court on Direct Appeal to Adequately Narrow a Facially Vague Aggravating Factor\nClark argues his federal constitutional rights under the Fifth, Eighth and Fourteenth Amendments were violated because a vague aggravating factor, without a proper narrowing definition, was used by the state courts in their weighing process to determine his sentence. Relying on Richmond v. Lewis, — U.S. -, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), Clark argues that the Arizona Supreme Court failed to cure the vagueness of the “especially heinous, cruel or depraved” aggravating factor relied on for Clark’s death sentence. See Ariz.Rev.Stat. § 13 — 703(F)(6) (reenacted Ariz.Rev.Stat. § 13-902, the provision under which Clark was sentenced).\nThe state maintains this claim is successive because Clark formally withdrew it before the district court in his first federal habeas petition and because we addressed it in our disposition of the first federal habeas corpus petition. We agree. Clark’s claim challenging the Arizona Supreme Court’s narrowing of the vague statutory (F)(6) “depraved” aggravating factor is a successive claim.\nTo be entitled to review of a successive claim, Clark must demonstrate cause and prejudice, or establish that a denial of review would result in a fundamental miscarriage of justice. Sawyer, — U.S. at -, 112 S.Ct. at 2518. In the context of a successive claim, we have construed “cause” to mean “cause for bringing a petition that fails to present a new ground for relief.” Camp bell, at 524. Here, Clark has made no showing of any cause for again presenting the same vagueness claim we previously rejected. See Clark, 958 F.2d at 860 (rejecting vagueness challenge to “depraved” factor). However, even though Clark has not shown any cause for again presenting this successive claim, we must nonetheless consider whether a fundamental miscarriage of justice would result if we did not reach its merits.\nThe “miscarriage of justice” exception, sometimes referred to as the “ends of justice” exception, permits us to reach the merits of a successive claim if the petitioner supplements his claim of constitutional error with a colorable claim of actual innocence. Sawyer, — U.S. -, 112 S.Ct. at 2519 (citing Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627). In a capital case, “actual innocence” can mean innocent of the death penalty. See id. — U.S. at -, 112 S.Ct. at 2520.\nFor Clark to show “actual innocence” of the death penalty, he must: (1) identify some constitutional error, and (2) show by clear and convincing evidence that but for the constitutional error no reasonable factfinder would have found him eligible for the death penalty under Arizona law. See Sawyer, — U.S. at —-—, 112 S.Ct. at 2519-20. These factors need not be considered in any particular order. Here it is plain that no constitutional error occurred, so we only address this factor.\nClark argues the Arizona Supreme Court committed constitutional error when it reviewed his sentence on direct appeal because in doing so it failed to adequately narrow the unconstitutionally vague “depraved” aggravating factor when weighing the aggravating factors against the mitigating circumstances. We reject this argument.\nIn applying the “depraved” aggravating factor to Clark’s case, the Arizona Supreme Court adequately narrowed the factor. The court made clear the term “depraved” referred to “the mental state and attitude of the perpetrator as reflected in his words and actions.” Clark, 616 P.2d at 896 (citing State v. Ceja, 126 Ariz. 35, 612 P.2d 491, 495 (1980); State v. Knapp, 114 Ariz. 531, 562 P.2d 704, 716 (1977); State v. Blazak, 114 Ariz. 199, 560 P.2d 54, 61 (1977)); see also Clark, 958 F.2d at 860.\nBecause the Arizona Supreme Court adequately narrowed the “depraved” factor, no constitutional error was committed. Clark’s claim of “actual innocence” fails. See Hen-era v. Collins, — U.S. —-—, 113 S.Ct. 853, 859-60, 122 L.Ed.2d 203 (1993).\n2. Failure of Arizona Supreme Court on Direct Appeal to Reweigh Factors\nClark argues his right to protection from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment were violated because the Arizona Supreme Court, in reviewing his sentence on direct appeal, failed to reweigh the aggravating and mitigating circumstances following its determination that two of the four aggravating factors found by the sentencing judge were invalid. This claim is abusive because it was not raised in Clark’s first federal habeas petition.\nClark attempts to establish the requisite cause to excuse his earlier failure to raise the alleged reweighing error by arguing that the “legal basis for [his] claim was not reasonably available” to his counsel handling his first federal habeas petition. See McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. In support of this argument, Clark relies on Richmond v. Lewis, — U.S. —, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), decided after Clark filed his first habeas petition. In Richmond, the Court held a state reviewing court in a “weighing” state (Arizona) did not cure a sentence issued by a state sentencing court that relied on an invalid aggravating factor, because a majority of the reviewing court did not reweigh the remaining valid aggravating and mitigating circumstances or conduct a harmless error analysis. Richmond, — U.S. at -, 113 S.Ct. at 537.\nClark’s reliance on Richmond to establish cause is misplaced. The principles of “close appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases,” which form the legal basis for .Clark’s reweighing claim, were reasonably available before his first federal habeas petition. Stringer v. Black, — U.S. -, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (holding that Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), which held a state reviewing court in a “weighing” state could cure an invalid sentence by reweighing the aggravating and mitigating circumstances or by conducting a harmless error analysis, did not announce a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); see Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982); Godfrey v. Georgia, 446 U.S. 420,100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978) (plurality opinion); Roberts v. Louisiana, 431 U.S. 633, 636-37, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 (1977).\nIf Richmond provided Clark with a new legal basis for his reweighing claim, a basis that was not reasonably available at the time of his first federal habeas petition in 1987, one would have to conclude that Richmond established a new rule not dictated by precedent existing when Clark’s state court convictions and sentence became final in 1980. See Stringer, — U.S. at -, 112 S.Ct. at 1135. In this circumstance, Clark would be barred by Teague from relying on Richmond as a predicate for federal habeas relief because neither Teague exception would be available to apply such a “new rule” to Clark’s ease. See Teague, 489 U.S. 288, 109 S.Ct. 1060.\nAlthough Clark has not made the requisite showing of cause for failing to raise his reweighing claim in his first federal habeas petition, this does not end our inquiry. We must also consider whether the ends of justice require that Clark’s death sentence be set aside. Sawyer, — U.S. at -, 112 S.Ct. at 2519.\nClark’s ends of justice argument is founded on the premise that the Arizona Supreme Court failed to conduct a new sentencing calculus in which it weighed only the valid aggravating factors against the mitigating circumstances. This premise is false. It is plain from the Arizona Supreme Court’s opinion that after it invalidated two of the aggravating factors, it adequately narrowed the “depraved” factor and weighed that factor, as well as the pecuniary gain factor, against all of the mitigating circumstances. See Clark, 616 P.2d at 897. There was no failure to conduct a new and proper sentencing calculus. No constitutional error occurred. Accordingly, Clark’s ends of justice argument fails. See Herrera, — U.S. at —-—, 113 S.Ct. at 859-60.\n3. Ineffective Assistance of Counsel Claims\nClark contends that he is facing death because of constitutionally ineffective assistance of his trial counsel, Arthur Atonna, concerning Atonna’s advice regarding a plea offer that Clark rejected and Atonna’s handling of Clark’s trial and sentencing.\nWe decline to revisit the merits of Clark’s ineffective assistance of counsel claims. All are successive. Clark raised ineffective assistance of counsel in his first federal habeas corpus petition. Although Clark modifies his ineffective assistance of trial counsel claim to include an allegation that he received faulty advice concerning a possible plea agreement, such an allegation merely represents “a different factual basis or argument asserted to support the same legal theory advanced previously” and does not constitute a new ground for relief. Campbell, at 516. The trial investigation, preparation, presentation and sentencing errors identified by Clark in his most recent petition are also recharacterizations of the ineffective assistance of counsel theory advanced in his first federal petition. Clark has not established the requisite cause to warrant reexamination of the same ineffective assistance of counsel claims he raised in his first federal habeas petition. See Campbell, at 524. And, no fundamental miscarriage of justice would result from our refusal to allow Clark to relitigate these issues.\nAt oral argument, Clark’s attorney suggested that his strongest ineffective assistance of counsel claim is the alleged faulty advice given Clark by his trial counsel concerning a possible plea agreement. Clark argues he was deprived of effective assistance of counsel, in violation of his Sixth and Fourteenth Amendment constitutional rights, because his trial counsel did not adequately advise him concerning the state’s plea offer, which he rejected, to plead guilty to two of the murders in exchange for the state agreeing not to seek the death penalty. Although we have held that this, as well as the other ineffective assistance of counsel claims, is successive, we nevertheless will briefly address the merits of this “strongest” claim Clark asserts for relief.\nClark argues that had he accepted the plea agreement, the death penalty could not have been imposed. While this is true, see State v. Brewer, 170 Ariz. 486, 499, 826 P.2d 783, 792, cert. denied, — U.S. —, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992); State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976), it does not establish ineffective assistance of counsel. Clark’s affidavit clearly shows that he was advised of the consequences of accepting or rejecting the offered plea agreement. Clark has failed to show that he was prejudiced by his trial counsel’s alleged failure to advise him of the possibility of a “no contest” or an “Alford\" plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Clark has not made the required showing of actual prejudice, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), because it is pure speculation whether such a plea would have been acceptable to both the state and the court under the same no-death penalty condition as the plea that was offered. The prosecutor, in fact, stated in his affidavit that a “no contest” plea would not have been acceptable: “I did not offer and would not have agreed to any arrangement, such as a ‘no contest’ plea, which would have permitted Clark to avoid taking responsibility for the murders he committed.” Affidavit of Joseph Fuller, State Record Item L, Ex. 6. Clark does nothing to refute the prosecutor’s statement by showing, for example, that the prosecutor regularly accepted no contest or Alford pleas in such situations and was likely to have done so again. Clark has not shown he was deprived of his constitutional right to effective assistance of counsel.\n4. Prosecutorial Misconduct\nClark argues newly discovered evidence about the prosecution’s handling of the John Doe witness shows his conviction was based, in part, upon perjured testimony and the state committed a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).\nTo the extent this claim is a renewed challenge to the district court allowing the John Doe witness to testify without revealing to the jury his true name and place of residence, the claim is successive. It was raised in Clark’s first habeas corpus petition and rejected on the merits by the district court and by this court. Clark, 958 F.2d at 854-55. Review of the merits of this successive claim is not justified because Clark has not shown cause for seeking review of the same claim for relief previously presented, nor has Clark shown a miscarriage of justice would result if we did not revisit this claim.\nTo the extent Clark seeks review of whether the newly discovered evidence consisting of unrevealed facts about Doe and the prosecution’s handling of Doe demonstrate that the prosecution withheld Brady material and suborned perjury from Doe, the claim is abusive. Clark’s “newly-discovered evidence” allegedly demonstrates there was no real threat to Doe to support his being allowed to testify without revealing his true identity, that Detective Hemenway gave Doe whiskey and Darvocets before his testimony at the preliminary hearing, that Doe was anonymously given a drug screening test before the preliminary hearing that revealed Darvocet use, that Doe received undisclosed compensation for his testimony in being allowed to run up large liquor bills while in Arizona waiting to testify at the trial, that Doe may have been paid $75 or $100 by the El Paso police after he testified at the trial, and that Doe’s full criminal history had not been revealed.\nClark cannot demonstrate adequate cause for failing to develop this claim earlier. “[Petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.” McCleskey, 499 U.S. at-, 111 S.Ct. at 1472. Clark, who prior to his first habeas petition had knowledge of Doe’s true name, date of birth, criminal record, place of residence, and information that Doe was a paid DEA informer, has not demonstrated cause to excuse his earlier failure to investigate the present claim and thereby obtain a sufficient basis to allege a Brady violation or a subornation of perjury claim.\nClark has also not established the requisite prejudice to excuse an abusive writ. Clark never asserts actual innocence. Clark only argues that with such information he could have impeached Doe more than he did. Even that contention is based primarily on recent hearsay, from someone who may or may not be John Doe, which the person refused to swear to, and which has been denied under oath by members of the prosecution team. The Supreme Court has noted that such “latter-day evidence brought forward to impeach a prosecution witness will seldom, if ever, make a clear and convincing showing that no reasonable juror would have believed the heart of [the witness’] account of petitioner’s actions.” Sawyer, — U.S. at -, 112 S.Ct. at 2524; Herrera, — U.S. at -, 113 S.Ct. at 869 (noting petitioner’s newly discovered evidence consisting of affidavits is particularly suspect, because with the exception of one affidavit, the affidavits consist of hearsay).\nThe newly discovered evidence allegedly withheld from Clark fails to show Clark is actually innocent of the death penalty. See Sawyer, — U.S. at -, 112 S.Ct. at 2524. The evidence primarily goes to the credibility of Doe. This is insufficient to establish a miscarriage of justice.\n5. Influence of Drugs\nClark asserts for the first time in this most recent habeas petition that while he was in jail awaiting trial, and during trial, he was given drugs by his jailers. He asserts that although he can remember being medicated, he did not discuss the medication with his counsel. The medication “made him feel drunk and indifferent to what was happening.” Petitioner’s Ex. 11. The drugs given to Clark were Tranxene, Darvocet and Drixo-ral. Clark alleges that because he was administered these drugs, he was unable to converse adequately with his trial attorney, and this medication prompted him to give an incriminating statement to Detective Hemen-way. He argues that as a result of being medicated by his jailors, his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution were violated.\nClark has made no showing of cause for not including these claims in his first habeas petition. He does not assert that any of the prescription medicines allegedly administered affected his memory of taking the medicine, so he cannot now complain a lack of memory or knowledge of ingesting the prescription medicine constitutes cause for not presenting the claim on his first federal petition. “[E]ven if the State intentionally concealed the [information that Clark was on prescriptive medicine while in jail], the concealment would not establish cause here because, in light of [Clark’s] knowledge of the information ... any initial concealment would not have prevented him from raising the claim in the first federal petition.” McCleskey, 499 U.S. at -, 111 S.Ct. at 1474. Furthermore, the issue does not tend to show Clark’s actual innocence of either the crimes or the death penalty.\n6. Newly Discovered Evidence\nClark alleges his confinement, convictions, and sentence violate his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because newly discovered evidence undermines the reliability of his conviction and sentence. The new evidence includes: (1) “possible involvement of an individual ... [who] had been overheard ... saying he was traveling to Cochise County to ‘raise some hell’ on the weekend of the murders;” (2) evidence Clark was beaten by his parents; (3) evidence Clark was regularly exposed to toxins as a child; (4) evidence tending to impeach the John Doe prosecution witness; and (5) evidence Clark may have suffered from post-traumatic stress disorder around the time of the crimes.\nThese claims are abusive because Clark did not raise them in his first federal habeas corpus petition. Clark has failed to demonstrate cause for such failure.\nClark has also failed to show prejudice. Neither the presentation of hearsay evidence of possible involvement of another in the crime, additional mitigating evidence, or the affidavit suggesting Clark suffered post-traumatic stress at the time of the crimes, establishes adequate prejudice. See Harris, 949 F.2d at 1515 (“[bjecause ‘psychiatrists disagree widely and frequently on what constitutes mental illness,’ ... a defendant could, if Harris’s argument [regarding newly discovered evidence of mental disabilities] were adopted, always provide a showing of factual innocence by hiring psychiatric experts who would reach a favorable conclusion.”).\nA fundamental miscarriage of justice will not result by declining to review the merits of this newly discovered evidence. The evidence does not point to Clark’s actual innocence of his crimes or of the Arizona death penalty.\n7. Denial of a Representative Jury Pool and Jury\nClark argues he was denied both his rights of equal protection and his right to a jury selected from a fair cross-section of the community, in violation of the Sixth and Fourteenth Amendments, because Hispanic persons and Hispanic surnamed persons from Cochise County were underrepresented in the jury venue and on his jury at the time of trial. This claim is abusive because it was not presented in Clark’s first habeas corpus petition.\nClark has not demonstrated sufficient cause and prejudice to excuse this abuse. The legal basis for constructing such claims existed before Clark filed his first federal habeas petition. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (fair cross-section); State v. Taylor, 109 Ariz. 267, 271-72, 508 P.2d 731, 735-36 (1973) (equal protection). The factual basis Clark now relies on to support this claim also existed at the time of his first federal petition. Because Clark has not carried his burden of disproving abuse of the writ, and because the jury pool composition does not bear on Clark’s actual innocence of the underlying crimes or the death penalty, we decline to reach the merits of this claim.\n8. Denial of Competent Mental Health Evaluation at Time of Trial\nClark asserts he was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution because the mental health examinations conducted by the court-appointed mental health experts, and the results of such examinations, were inadequate, incomplete, and unreliable. These claims are abusive because they were not presented in Clark’s first ha-beas corpus petition. Clark has not demonstrated cause and prejudice to excuse such abuse. We also find no fundamental miscarriage of justice would result if Clark were not allowed to relitigate the merits of this dispute. See Harris, 949 F.2d 1497.\n9. Motion to Vacate and Reopen Judgment\nContemporaneous with the filing of his second federal habeas petition, Clark filed a motion in the district court to vacate and reopen the judgment against him based on the intervening case of Richmond v. Lewis, — U.S. -, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). See Fed.R.Civ.P. 60(b)(6) (reopen final judgment for “any other reason justifying relief from the operation of the judgment”). The district court denied this motion.\nClark maintains a Rule 60(b) motion is permissible in a habeas proceeding. See Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir.1992) (en banc) (district court that reviewed federal habeas petition did not have jurisdiction to review Rule 60(b) motion once a notice of appeal was filed), cert. denied, — U.S. -, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993). Contrary authority suggests, however, that where a habeas petitioner tries to raise new facts or new claims not included in prior proceedings in a Rule 60(b) motion, such motion should be treated as the equivalent of a second petition for writ of habeas corpus. See Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir.) (Rule 60(b) motion treated as the equivalent of a second petition for writ of habeas corpus), reh’g en banc denied, (1992), cert. denied, — U.S. -, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993); but cf. May v. Collins, 961 F.2d 74, 75-76 (5th Cir.1992) (merits of Rule 60(b) motion assessed without invoking second habeas petition doctrines).\nEven if the McCleskey and Sawyer restrictions on successive and abusive writs do not apply to a habeas petitioner bringing a Rule 60(b) motion to vacate and reopen judgment, Clark’s Rule 60(b) motion was still properly denied because Richmond v. Lewis, — U.S. at —, 113 S.Ct. 528, does not undermine our decision on the merits in Clark’s first federal habeas petition. As we have stated, the Arizona Supreme Court reviewing Clark’s sentence on direct appeal adequately narrowed the “depraved” aggravating factor and reweighed the mitigating and remaining two aggravating circumstances after reversing the trial court’s findings on two other aggravating factors. Therefore, Clark’s Rule 60(b) motion was properly denied.\nCONCLUSION\nClark’s application for a certificate of probable cause and stay of execution is denied. This appeal is dismissed.\n. On April 13, 1993, we filed an opinion denying Clark’s application for a certificate of probable cause, denying his application for a stay of execution, and affirming the district court's dismissal of his petition for a writ of habeas corpus. Clark v. Lewis, No. 93-99005, slip op. 3947, 3968, 1993 WL 120344 (9th Cir. Apr. 13, 1993). A death penalty en banc court reviewed this decision and did not grant Clark a stay of execution. See 9th Cir.R. 22-4(e)(3). He was executed on April 14, 1993. This order replaces the opinion filed April 13, 1993.\n. In Harris v. Vasquez, 949 F.2d 1497, 1512 (9th Cir. 1991), reh’g en banc denied, 961 F.2d 1449 (9th Cir.1992), we determined that the abuse of the writ standard announced in McCleskey did not create a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and we applied McCleskey to Harris’s pending habeas corpus petition. Consistent with our analysis in Harris, and with the Supreme Court’s application of the Sawyer rule to Sawyer himself, we apply the \"actual innocence” standard announced in Sawyer to this case.\n. In view of our dismissal of Clark’s appeal, the questions whether the district court erred in denying Clark's requests for an evidentiary hearing and for leave to conduct discovery are moot.", "type": "majority", "author": "DAVID R. THOMPSON, Circuit Judge:"}], "attorneys": ["Timothy J. Foley, San Francisco, CA, for petitioner-appellant.", "Bruce Ferg, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellees."], "corrections": "", "head_matter": "James Dean CLARK, Petitioner-Appellant, v. Samuel A. LEWIS, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison, Respondents-Appellees.\nNo. 93-99005.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted April 13, 1993.\nOpinion Filed April 13, 1993.\nOpinion Withdrawn July 1, 1993.\nFiled July 1, 1993.\nAs Amended Oct. 8, 1993.\nTimothy J. Foley, San Francisco, CA, for petitioner-appellant.\nBruce Ferg, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellees.\nBefore: FARRIS, BRUNETTI and THOMPSON, Circuit Judges."} | FARRIS | BRUNETTI | THOMPSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 814 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,488 | Michael GATTO; Philip Gatto, Stephanie Gatto, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee | Gatto v. Commissioner | 1993-07-26 | No. 91-70613 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: HUG, FLETCHER, and BRUNETTI, Circuit Judges."], "parties": ["Michael GATTO; Philip Gatto, Stephanie Gatto, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee."], "opinions": [{"text": "HUG, Circuit Judge:\nMichael, Philip, and Stephanie Gatto appeal the Tax Court’s denial of two income tax deductions which they had claimed for the 1980, 1981 and 1982 tax years: (I) a deduction under 26 U.S.C. § 163 for interest on loans which had been granted to the Gattos by trusts of their own creation, and (II) a deduction under 26 U.S.C. § 174 for research expenditures incurred by certain research and development partnerships in which they were limited partners. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.\nI.\nTHE INTEREST DEDUCTIONS\nIn December, 1981, Michael Gatto created a trust with the assistance of attorney Dennis DiRicco and irrevocably transferred to the trust a sum of cash as trust corpus. The beneficiaries of the trust were Gatto’s niece and nephew. DiRicco served as trustee. The trust followed the pattern of what is commonly referred to as a “Clifford Trust.” See Martyr v. Commissioner, 60 T.C.M. (CCH) 1115, 1127 n. 10, 1990 WL 161006 (1990) (discussing Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940)). It provided for distributions of net income and capital gains at least once each year for the benefit of the beneficiaries until termination of the trust. It further provided that the trustee could postpone these distributions for any compelling reason until that reason no longer existed or the beneficiaries reached age eighteen. The trust was to terminate upon the earlier of the expiration of ten years and one month after its creation or the death of the beneficiaries. Upon termination, all corpus and accumulated and undistributed income was to be transferred back to Gatto or his estate.\nOnce created, Gatto made numerous transfers to the trust, ranging from $2,000 to $10,020. Soon after Gatto made each transfer, DiRicco would return the cash to Gatto in exchange for promissory notes bearing an interest rate of 20 percent. On December 16, 1982, Gatto paid $4,400 of interest due on one such note and deducted the amount on his 1982 income tax return. The Commissioner disallowed Gatto’s deduction, and the Tax Court affirmed. See Martyr, 60 T.C.M. (CCH) at 1127-29 (consolidated opinion). Michael Gatto now appeals.\nIt appears that Philip and Stephanie Gatto created the same kind of trust, borrowed money from the trust in the same manner, claimed the same kind of deduction, and had that deduction disallowed by the Commissioner. The specific facts regarding Philip and Stephanie Gatto, however, were not established by the Tax Court. Unlike Michael Gatto, Philip and Stephanie Gatto entered a stipulation binding themselves to the result on this issue in a related case. The stipulation of March 6, 1988, read in relevant part:\n12. With respect to the claimed interest deduction issue for 1980,1981 and 1982 set forth as adjustment (d) in the statutory note (Exhibit 4-D), the parties agree to be bound by the final decision made on the interest deduction issue in the case of Eddie S. and Janice Fink, Docket No. 21099-86 [95 T.C. 467, 1990 WL 160996],\nThe Tax Court ruled against the Finks and a number of other taxpayers, affirming the Commissioner’s disallowance of interest deductions on loans from trusts of their own creation. See Alexander v. Commissioner, 59 T.C.M. (CCH) 121, 138-41, 1990 WL 28030 (1990) (consolidated opinion). A notice of appeal was filed by the Finks, but the appeal, No. 91-70565, was dismissed by this court on January 31, 1992 because the notice was not timely filed. Philip and Stephanie Gatto now seek to appeal the disallowance of their interest deductions by the Commissioner.\nA.\nWe must first address the question of whether Stephanie and Philip Gatto may appeal a decision of the Tax Court to which they bound themselves by written stipulation. We conclude that they may not.\nIn Tapper v. Commissioner, 766 F.2d 401, 403 (9th Cir.1985), we stated that “[generally, a party cannot appeal a judgment entered with its consent.” We did recognize, however, “two exceptions to this rule: 1) where the party did not actually consent, or 2) where the court lacked subject matter jurisdiction to enter the judgment.” Id. The Gattos assert that their situation falls under the first of these exceptions, lack of consent. Then-position is that they agreed to be bound by “the facts and argument of Fink,\" but not surrender their right to appeal. They concede that they consented to the stipulation, but assert that they did so only because the Commissioner’s counsel agreed that they would be able to seek appellate review if the Tax Court ultimately ruled against the Finks.\nWe are not persuaded by these arguments. It follows from our decision in Tapper that a party implicitly surrenders its right to appeal a civil judgment, on other than jurisdictional grounds, by consenting to be bound by that judgment. An explicit waiver of appeal rights is not necessary. In this case, the stipulation is unambiguous. It binds the Gattos to the Tax Court’s decision in Fink. The Gattos do not dispute the fact that they consented to the stipulation, nor do they challenge the jurisdiction of the Tax Court to enter a judgment against them. We conclude, therefore, that they are bound by that judgment.\nAdditionally, we are unwilling to entertain the Gattos’ argument that their consent was conditioned upon the oral assurance of the Commissioner’s counsel that they would retain the right to appeal. Because this assertion is raised for the first time on appeal, there are no factual findings regarding its veracity. When the Gattos entered the stipulation, they were represented by counsel. Indeed, it was their lawyer who signed the document. If their consent was conditional, it was the responsibility of their attorney to insure that the written stipulation indicated that fact.\nB.\nMichael Gatto, in contrast, did not enter into such a stipulation. Consequently, we must decide whether he was entitled to an income deduction under 26 U.S.C. § 163 for interest paid on loans made by the trust that he had created. The Tax Court ruled the deductions improper after concluding that the interest was not incurred on genuine indebtedness, and we agree.\nSection 163(a) of the Internal Revenue Code provides a deduction for “all interest paid or accrued within the taxable year on indebtedness.” 26 U.S.C. § 163(a). “Courts have defined indebtedness to mean an unconditional and legally enforceable obligation .... ” Linder v. Commissioner, 68 T.C. 792, 796, 1977 WL 3613 (1977); see Howlett v. Commissioner, 56 T.C. 951, 960, 1971 WL 2506 (1971). We review for clear error the Tax Court’s determination that an interest deduction claimed under section 163 was not the result of genuine indebtedness. See Karme v. Commissioner, 673 F.2d 1062, 1065 (9th Cir.1982). The taxpayer, moreover, has the burden of establishing entitlement to the deduction. Id.\nA Tax Court case has considered the de-ductibility of interest under circumstances similar to those of this case. Wilken v. Commissioner, 53 T.C.M. (CCH) 965, 1987 WL 40331 (1987). In Wilken, taxpayers transferred money to a trust they had created, immediately borrowed the money back in return for written obligations, and claimed deductions for interest paid on those obligations. The court looked beyond the form of the transactions and found that the taxpayers had, in essence, given the trusts nothing more than promises to pay money, which were themselves unenforceable. The court concluded, therefore, that the interest deductions had not been incurred on genuine indebtedness and denied them.\nIn order to assess the enforceability of obiigations, courts refer to the law of the state in which the transaction occurred. Linder, 68 T.C. at 796. In California, the state in which these transactions occurred,\na gift of the donor’s own note is not enforceable by the donee against the donor or his estate, in the absence of an estoppel, for the reason that it only amounts to a promise to make a gift in the future, and is no more enforceable than any other promise to make a gift.\nCoon v. Shry, 209 Cal. 612, 289 P. 815, 816 (1930). See also Herbert v. Lankershim, 9 Cal.2d 409, 71 P.2d 220, 254 (1937); In re McConnell’s Estate, 6 Cal.2d 493, 58 P.2d 639, 640 (1936); Tracy v. Alvord, 118 Cal. 654, 50 P. 757, 757 (1897).\nThe Tax Court found that Michael Gatto’s transactions were similar to those at issue in Wilken. Viewing each donation of money to the trust and each subsequent “loan” of the money back to Gatto as an integrated transaction, the Tax Court reasoned that Gatto had in essence donated to the trust a promise to make a gift of money in the future. Because such a promise is unenforceable under California law, the Tax Court concluded that Gatto had not incurred genuine indebtedness and ruled his interest deduction improper.\nMichael Gatto does not dispute the Tax Court’s underlying factual conclusions, but instead urges us to look at the form of the transactions and treat them as independent events: (1) the irrevocable gift of money to a trust and (2) the loan of money in exchange for interest. In support of his position, Gatto cites a California ease which enunciates the requirements of a completed gift and argues that his contributions to the trust satisfied these requirements. See Connelly v. Bank of America, 138 Cal.App.2d 303, 291 P.2d 501 (1956). He also cites a California case standing for the proposition that the actual delivery of a check establishes a valid gift. See Turnbull v. Thomsen, 171 Cal.App.2d 779, 341 P.2d 69 (1959). Neither of these authorities, however, bears upon the Tax Court’s ability to look at the substance of Gatto’s transactions and characterize them for federal tax purposes as gratuitous promises to pay money. Accordingly, we find that the Tax Court’s conclusions were not clearly erroneous.\nII.\nTHE RESEARCH AND DEVELOPMENT DEDUCTIONS\nBetween 1980 and 1982, appellants invested in a number of limited partnerships whose stated purpose was the development and exploitation of various new technologies. Subsequent to their investments, appellants claimed income tax deductions under 26 U.S.C. § 174(a)(1) for a distributive share of the research and experimentation expenses incurred by each of the partnerships. The Commissioner disallowed the deductions, contending that the partnerships had not incurred their research expenditures in connection with an existing or prospective business of their own, as required by the statute. See 26 U.S.C. § 174(a)(1); Snow v. Commissioner, 416 U.S. 500, 94 S.Ct. 1876, 40 L.Ed.2d 336 (1974). Rather than developing or marketing the technologies themselves, each of the partnerships contracted a research firm to develop a specified technology and granted a marketing firm the right to obtain a nominally-priced option for an exclusive license to exploit the technology on behalf of the partnership. Based on these circumstances, the Tax Court affirmed the Commissioner’s action. This appeal followed.\nThe disposition of this issue is controlled by our recent decision in Kantor v. Commissioner, 998 F.2d 1514 (9th Cir.1993). In Kantor, we denied the section 174 deduction to investors in a limited partnership which similarly contracted an independent research firm to develop a new technology and granted that firm the effective right to obtain exclusive exploitation rights to the technology for a nominal price. Id. Under these circumstances, we held it reasonable for the Tax Court to conclude that the partnership had no realistic prospect of engaging in its own business, in connection with the fruits of the research. Id. We found that by entering these agreements the partnership had evinced the objective intent to remain, and rendered itself incapable of ever becoming, anything but a passive investor in a business conducted by the research firm. Id. Under virtually identical facts, the Tax Court came to the same conclusions in this case. Accordingly, we affirm.\nAppellants contend, as did the appellants in Kantor, that the involvement of the general partners in the development and marketing of the technologies was sufficiently regular and substantial to establish the partnerships as businesses and thereby satisfy section 174. The Tax Court properly rejected this argument. The Tax Court found that “[a]ny involvement by the general partners was either insignificant or was directed at investment management.” Martyr, 60 T.C.M. (CCH) at 1125. It based its conclusion upon the factual premise that “[njone of the general partners ... had any significant training or experience in the technological or marketing aspects of [the subject technologies].” Id. We are satisfied that the Tax Court’s factual premise was adequately supported by the record and that its conclusion was based on sound legal reasoning.\nAFFIRMED.\n. According to the Tax Court, Michael Gatto made the following deposits and withdrawals through January 3, 1984:\nDeposits Withdrawals\nDate Amount Date Amount\n12/12/81 $10,020 12/14/81 $10,000\n12/16/81 2,000 1/5/82 2,000\n11/15/82 10,000 11/16/82 (total) 10,000\n12/16/82 4,400 1/5/83 4,400\n12/18/83 3,960 1/3/84 3,960\nMartyr, 60 T.C.M. (CCH) at 1127 n. 11.", "type": "majority", "author": "HUG, Circuit Judge:"}], "attorneys": ["Steven J. Cannata, Cannata & Papale, San Francisco, CA, for petitioners-appellants.", "Teresa T. Milton, U.S. Dept, of Justice, Tax Div., Washington, DC, for respondent-appellee."], "corrections": "", "head_matter": "Michael GATTO; Philip Gatto, Stephanie Gatto, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\nNo. 91-70613.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Oct. 9, 1992.\nDecided July 26, 1993.\nSteven J. Cannata, Cannata & Papale, San Francisco, CA, for petitioners-appellants.\nTeresa T. Milton, U.S. Dept, of Justice, Tax Div., Washington, DC, for respondent-appellee.\nBefore: HUG, FLETCHER, and BRUNETTI, Circuit Judges."} | HUG | FLETCHER | BRUNETTI | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 826 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,524 | WELLS FARGO BANK, Trustee of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant; Occidental College, Charity Remainder-man of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Real-Party-In-Interest-Appellee | Wells Fargo Bank v. United States | 1993-07-27 | No. 91-55692 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FLETCHER, O’SCANNLAIN, and KLEINFELD, Circuit Judges."], "parties": ["WELLS FARGO BANK, Trustee of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant; Occidental College, Charity Remainder-man of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Real-Party-In-Interest-Appellee."], "opinions": [{"text": "KLEINFELD, Circuit Judge:\nThis case involves estate tax deductibility of a charitable remainder pursuant to 26 U.S.C. § 2055. The testatrix, Anita Wand, provided in her will for a life interest for her employee James Fuller, and a remainder for Occidental College. The trustee under the will, Wells Fargo, seeks a tax refund of approximately $1.4 million. The issues are whether Wand’s will was executed before 1979 despite a 1982 codicil, and whether Occidental College’s remainder was “presently ascertainable.” The district court determined that both conditions were met. We affirm.\nI. Facts\nThe case comes up on stipulated facts and summary judgment. On April 5, 1971, Anita Wand executed a will creating a trust for two beneficiaries, her long time employee James Fuller, and Occidental College, an educational institution qualifying for tax treatment as a charity. Mr. Fuller was to receive $250.00 per month for life, use of Mrs. Wand’s house, and medical expenses and payment from the Wand Estate of his personal income taxes.\nMrs. Wand executed codicils to her will in 1972, 1977, and 1982, each changing Mr. Fuller’s life interest. Mrs. Wand died September 4, 1985. Mr. Fuller, an 83 year old man with an independent annual income of $82,-920, frugal, healthy and with modest needs, began receiving his benefits under the will. The estate obtained a reformation of the will in state court on January 25, 1988, changing Mr. Fuller’s interest to a flat $122,000 per year and nothing else. This reformation eliminated payment of medical expenses, taxes and maintenance and improvements to the residence, in order to qualify for the estate tax charitable deduction under Internal Revenue Code § 2055. The estate then applied for a refund of the taxes paid on the remainder interest.\nThe IRS denied the claim because it determined that the remainder interest was not a “reformable interest” under the Tax Code, so the conversion of the interest to a remainder annuity trust by the state court reformation could not qualify the remainder for a charitable deduction. The district court concluded on summary judgment that the remainder interest was a reformable interest, that the will was executed prior to 1979, and that the charitable remainder’s interest was “presently ascertainable” at the time of Wand’s death.\nThe government argues, first, that the will was republished by a 1982 codicil, so it cannot be treated as executed before 1979. Execution has to have been before 1979 to qualify. Second, the government argues that the value of the remainder was not ascertainable at the time of Mrs. Wand’s death, so it cannot qualify for the charitable deduction. We review the summary judgment de novo. Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991). We review the district court’s interpretation of state law de novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).\nII. Date of Publication\nThe statute on charitable remainders, 26 U.S.C. § 2055, was amended in the 1969 Tax Reform Act, Pub.L. No. 91-172, § 201(d)(1), 83 Stat. 487. The amendments imposed more demanding requirements on the charitable remainder, to assure that the estate could not get the benefit of the deduction if the will did not provide a sufficiently certain interest for the charitable remainderman. The new requirements would of course thwart the purposes of some wills drafted according to the old standards. Since people often live for many years after making their wills, the 1969 revisions created potential problems for people who made their wills before the 1969 reform but died afterward. Congress ameliorated these problems by providing for reformation of a will, even after the testator’s death, to change a “reformable interest” into a “qualified interest.” 26 U.S.C. § 2055(e)(3). See H.R.Rep. No. 432, 98th Cong., 2nd Sess., 1516 (1984), reprinted in 1984 U.S.C.A.A.N. 697, 1156 (making permanent provisions that allow reformation of “split interest charitable contributions which do not meet the requirement ... of the Tax Reform Act of 1969”) The standards for a “reformable interest” are less stringent for wills executed before 1979:\n(iv) SPECIAL RULE FOR WILL EXECUTED BEFORE JANUARY 1, 1979, ETC. — In the case of any interest passing under a will executed before January 1, 1979, or under a trust created before such date, clause (ii) [requiring that beneficiary’s interest be fixed] shall not apply.\n26 U.S.C. § 2055(e)(3)(C)(iv). Mrs. Wand’s will was executed in 1971, but her third codicil was executed in 1982. Does the third codicil prevent the estate from relying on the special rule quoted above, thus depriving the will of reformability?\nThe 1982 codicil leaves the will substantially as it was before, and does not change the identity of the person holding the life interest, or of the charitable remainderman, so we need not reach the question of whether a more extensive 1982 change in the substance of the will would affect the deduction. All the 1982 codicil does is increase Mr. Fuller’s monthly cash amount by $250. The codicil recites that “I confirm and republish” the 1971 will and the earlier codicils.\nThe government argues that the republication of the will in 1982 amounts to execution in 1982. Under California law, republication of the will is “tantamount” to making and executing the will at the time of republieation, In re Challman’s Estate, 127 Cal.App.2d 736, 274 P.2d 439, 442 (1954), because “in substance, the will is re-executed as of that time.” Simon v. Grayson, 15 Cal.2d 531, 102 P.2d 1081, 1082 (1940). This general rule holds except where republication would “defeat [the] testator’s most probable intention.” In re McCauley’s Estate, 138 Cal. 432, 71 P. 512, 513-14 (1903).\nMrs. Wand republished her will in 1982. The codicil says “I confirm and republish my [1971] Will,” and is itself published before the two witnesses to the codicil. California law has long treated execution of a codicil as republication of the will. In re Matthews Estate, 176 Cal. 576, 169 P. 233 (1917).\nThe government’s argument fails at the next step however, treating publication as equivalent to execution for purposes of the quoted statutory language in the estate tax reformability provision. Publication has the effect of execution for some purposes, but Congress did not use the words “publication” and “execution” as synonyms.\nIn ordinary legal usage, the words mean different things. The word “execution” in connection with a document such as a will means signing it. Ballentine’s Law Dictionary 433 (3d ed. 1969). The word “publication” ordinarily means the act by the testatrix of telling her witnesses that the document is intended to be her will. Id. at 1019; see 79 AmJur 2d, Wills, § 256 (1975). Both acts are often performed at the same time in a single ceremony, and are referred to in a single statute on execution of wills. See Uniform Probate Code § 2-502. But they are physically and temporally distinguishable.\nThe government would read the federal statutory language, “under a will executed before January 1, 1979,” 26 U.S.C. § 2055(e)(3)(C)(iv) (emphasis added), as though it said “under a will executed before January 1, 1979 and not subsequently republished.” At one time, the statute did read something like this. As enacted in the Tax Reform Act of 1969, the special rule was limited to “property passing under the terms of a will executed on or before October 9, 1969 — (i) if the decedent dies before October 9, 1972 without having republished the will after October 9, 1969 by codicil or otherwise, .... ” Tax Reform Act of 1969, Pub.L. 91-172, § 201(g)(4)(B), 83 Stat. 487 (1969) (emphasis added), reprinted in 1969 U.S.C.A.A.N. 509, 604.\nCongress deleted the emphasized language in 1974. Pub.L. 93-483, 88 Stat. 1457 (1974), reprinted in 1974 U.S.C.A.A.N. 1671. The reference to publication as well as execution in the original version, and deletion of the publication provision in the revised version, suggests that Congress meant to distinguish execution from republication for tax purposes, and intended to delete the requirement of no post-1978 republication. Deletion of the republication by codicil language was part of a group of amendments intended to alleviate what Congress perceived as a problem of charities losing money to taxes. Congress perceived a need for a more extended period to conform wills and trusts to the complicated requirements of the 1969 Tax Reform Act. S.Rep. No. 1063, 93d Cong., 2d Sess. 3 (1974), reprinted in 1974 U.S.C.A.A.N. 5985, 5988. Given the problem the statute was intended to solve, we cannot read “execution” as though it included republieation by codicil, the very thing which Congress deleted.\nThe California statutes on execution of wills use the words in their ordinary legal significance. See Cal.Prob.Code § 6110— 6113. California law treats later republieation as equivalent to execution, but this is a legal fiction to accomplish the testatrix’s intent, not a physical fact. In re McCauley’s Estate, 138 Cal. 432, 71 P. 512, 514 (1903). The doctrine treating republication as equivalent to execution saves wills invalidly executed, and revives revoked wills; California has not applied it to thwart bequests made by the republication of wills. See Id.; In re McDole’s Estate, 215 Cal. 328, 10 P.2d 75, 76 (1932); In re Estate of Herbert, 131 Cal. App.2d 666, 281 P.2d 57, 58 (1955). The legal fiction treating republication as equivalent to execution therefore should not be employed if to do so would thwart rather than serve the testatrix’s intentions. Clearly, Mrs. Wand’s intention under her pre-1979 will to benefit Occidental College would be thwarted if $1.4 million were diverted from the college to the government because of her subsequent republication of her will.\nOur construction of the “will executed before January 1, 1979” language to refer only to execution, not to republieation, is in accord with the generally liberal approach of other circuits toward 26 U.S.C. § 2055. Oxford Orphanage v. United States, 775 F.2d 570, 575 (4th Cir.1985); Estate of Crafts v. Comm’r of Internal Revenue, 74 T.C. 1439, 1455, 1980 WL 4614 (1980); Flanagan v. United States, 810 F.2d 930, 932 n. 2 (10th Cir.1987) (§ 2055(e) evinces a congressional intent to provide liberal savings provisions for charitable interests). Taken literally, the words “execution” and “publication” relate to different acts. Considered in light of the congressional intent, the distinction carries out the legislative purpose. The terms have a practical distinction related to the legislative purpose as well. Some testators may have modified their wills after 1979 by codicils changing only details, in order to save the lawyers’ fees associated with comprehensive rewriting of the wills in their entirety. If so, the 1974 statutory revision, as we construe it, would avoid a trap for the unwary which would divert from the charitable remaindermen money which Congress meant for them to receive.\nIII. Ascertainability\nThe government’s other argument is that the value of Occidental College’s remainder was not “presently ascertainable” at the time of Mrs. Wand’s death. The regulations now codify the requirement that the value of the charitable beneficial interest under a testamentary trust may be taken “only insofar as that interest is presently ascertainable.” Treas.Regs. § 20.2055-2(a). The relevant part of the 1971 will provides:\n1.My said Trustee shall pay from the income or from the principal, if necessary, of said trust to my trusted employee, JAMES M. FULLER, the sum of Two Hundred Fifty Dollars ($250.00) per month for the term of his natural life, [amount later raised]\n2. I direct that my house located at 1144 Crestline Drive, Las Positas Estates, Santa Barbara, California, be held and maintained by my said Trustee during the lifetime of said JAMES M. FULLER. There shall be paid from my Trust all taxes, all expenses of maintenance, repairs or improvements on said house. The use of said house as so maintained shall be provided for my said employee, JAMES M. FULLER, for the term of his natural life.\n3. Further, I direct my said Trustee to pay from the income or, if necessary, from the principal of said Trust all unusual and exceptional expenses of said JAMES M. FULLER, such as hospital, medical, dental bills and to pay all income taxes due from said JAMES M. FULLER to the United States of America and to the State of California during the period of his life.\nThe primary purpose and intent in creating this Trust is to provide for said JAMES M. FULLER, and the rights and interests of remainderman are subordinate and incidental to that purpose. The provisions of this Trust shall be liberally construed in the interest and for the benefit of said JAMES M. FULLER, however, the Trustees shall consider JAMES M. FULLER’S independent income and other resources outside the Trust Estate in reaching such decisions covered by this paragraph.\n(Emphasis added). The government claims that the two emphasized provisions of this trust, those for improvements to the home and for payment of Mr. Fuller’s personal income taxes, fail the “or presently ascertainable” test.\nThree leading Supreme Court cases and one from our own circuit guide us in our determination of whether the charitable interest is “presently ascertainable.” These cases indicate that the test has not been construed to require mathematical certainty such that the dollar amount which the charitable remainderman would receive could be accurately calculated as of the time of the testatrix’s death.\nIn Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929), the Court held that a trust providing the testator’s widow with any sum “that may be necessary to suitably maintain her in as much comfort as she now enjoys” met the standard. Id. at 154, 49 S.Ct. at 291. Her present level of comfort, was “fixed in fact and capable of being stated in definite terms of money.” Id. Her interest was to be “settled as of the date of the testator’s death.” Id. at 155, 49 S.Ct. at 291.\n“Comfort” is ascertainable enough, but “happiness” is not. In Merchants Nat’l Bank of Boston v. Comm’r of Internal Revenue, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35 (1943), a power to invade principal as the trustee deemed “wise and proper for the comfort, support, maintenance, and/or happiness of the testator’s widow” failed the test, so the charitable deduction for the remainder was properly disallowed. The “taxpayer has the burden of establishing that the amounts which will either be spent by the private beneficiary or reach the charity are thus accurately calculable.” Id. at 261, 64 S.Ct. at 111. The widow’s happiness had involved the purchase of two fur coats, two automobiles, travel, sending a grand nephew through medical school, and financial assistance to a niece, noted by the court in the context of its determination that “the purposes for which the widow could, and might wish to have the funds spent, do not lend themselves to reliable prediction.” Id. at 262, 64 S.Ct. at 111.\n“Pleasure” is more like “happiness” than “comfort.” In Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259 (1949), the charitable deduction for the remainder was lost because the trustees were granted discretionary authority to expend “either income or principal, for the pleasure, comfort and welfare of my mother.” Id. at 596, 69 S.Ct. at 291. The testator’s mother was eighty-five, lived frugally for only three more years, and never requested the trustee to invade the principal. Id. at 597, 69 S.Ct. at 291. But the ascer-tainability test had to be applied as of the time the testator died, and the priority given to the testator’s mother’s pleasure and desire made the trustees’ duty to the charitable remaindermen “ineffective to guarantee preservation of any predictable fraction of the corpus.” Id. at 598, n. 3, 69 S.Ct. at 292, n. 3.\nThat the trust funds could be used to cover expenses from “accident, illness, or other unusual circumstances” did not undermine the ascertainability of the charitable remainder in Comm’r of Internal Revenue v. Bank of America Nat’l Trust and Sav. Ass’n., 133 F.2d 753, (9th Cir.1943). Although it was left to the trustee’s “judgment” to decide what expenses arising from such “unusual circumstances” were “reasonably necessary,” we nonetheless found the value of the charitable remainder to be sufficiently certain in that case. Id. at 753-54.\nIn Mrs. Wand’s will, the improvements clause is in the context of keeping up the house: “all expenses of maintenance, repairs or improvements on said house. The use of said house as so maintained.... ” (emphasis added). The government correctly distinguishes improvements from repairs, but the distinction is not enough to destroy ascertainability in the context of this particular will. The phrase “as so maintained” limits permissible improvements to those which would maintain the house in its condition as of the time the testatrix died. The meaning of “improvements” in this context is better amplified by the accompanying words, noscitur a sociis, than by the notion that Mr. Fuller might be empowered to order the trustees to improve the house however he might desire.\nA house may sometimes need improvements in order to remain in substantially the same condition of Usefulness, as when a drain must be installed to prevent flooding, yet such an expense is no less ascertainable than that which will be necessary to maintain the life tenant in “comfort,” cf. Ithaca, and is about the same as “upkeep.” Cf. Bowers v. South Carolina Nat’l Bank of Greenville, 228 F.2d 4 (4th Cir.1955). For example, Mr. Fuller needed a handrail to move about the house. The handrail was probably an improvement rather than maintenance, but it was no more than necessary to maintain the house for his use, and no less ascertainable than his comfort. Nothing about the phrase “improvement” suggests unlimited subjective power in Mr. Fuller to improve the house beyond what would be necessary to so maintain it. Cf Salisbury v. United States, 377 F.2d 700, 704-05 (2nd Cir.1967). The government argues that discretion to invade the corpus for “improvements” destroys ascer-tainability, under In re McCord’s Estate, 516 F.2d 832, 836 (6th Cir.1975), cert. denied sub. nom. U.S. Bratton v. United States, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975), but there the testatrix’s “primary objective” was the “betterment of the condition under which my daughter is living,” id. at 833, suggesting change, while here, the phrase “as so maintained” suggests stability.\nAs for the trustee’s power to invade principal to pay Mr. Fuller’s federal and state income taxes, this bequest is no more unascertainable in amount than invasion of principal for the beneficiary’s future “comfort,” or to cover those “reasonably necessary” expenses occasioned by accident or illness. The amount of Mr. Fuller’s income taxes would have nothing to do with such untrammeled standards as his “happiness,” “desire,” or “pleasure.” Cf. Ithaca, Comm’r of Internal Revenue, Merchants, Henslee. We agree with the Second Circuit that a power to invade principal for income taxes does not give the life beneficiary “significant volitional power” over the charitable remainderman, and, so does not lack the objectivity necessary of present ascertainability. Schildkraut’s Estate v. Comm’r of Internal Revenue, 368 F.2d 40, 47 (2nd Cir.1966), cert. denied, 386 U.S. 959, 87 S.Ct. 1028, 18 L.Ed.2d 107 (1967). The instrument at issue in the Revenue Ruling cited by the government, Rev.Rul. 71-221, unlike Mrs. Wand’s will, involved a power to invade for any kinds of taxes, and numerous and indeterminate life beneficiaries.\nAFFIRMED.\n. The government argument that the district court erred in failing to follow the implications of certain language in an unpublished district court decision affirmed by an unpublished opinion of ours based upon an earlier and materially different version of the statute, has no weight at all. In re Burns, 974 F.2d 1064, 1067-68 (9th Cir. 1992).", "type": "majority", "author": "KLEINFELD, Circuit Judge:"}, {"text": "FLETCHER, Circuit Judge,\ndissenting:\nI respectfully dissent.\nWe are faced with technical issues which require technical answers. The Tax Reform Act of 1969, Pub.L. No. 91-172, reprinted in 1969 U.S.C.C.A.N. 509, radically changed the rules and radically restricted charitable trust deductions. Ameliorative transition rules for instruments crafted under the old rules were adopted. But strict adherence to the exceptions contained in the transition rules is required.\nTo prevail in this case, Wells Fargo Bank (the taxpayer) must establish two things: (1) that the testatrix executed her will before January 1,1979; and (2) that the will met the requirements to qualify for a charitable deduction under pre-1969 tax law (the remainder had to be ascertainable at the time of death). Failing either of these two tests, the remainder interest was not “reformable” and would not qualify for a charitable deduction. The exercise is not simply post-death to make the remainder certain by amendment, reform, or disclaimer. The instrument must meet the threshold statutory criteria at the moment of death.\nThe majority’s argument that republication is not “execution” within the meaning of 26 U.S.C. § 2055(e)(3)(C)(iv), because the 1974 amendment deletes certain language regarding “republish[ingj,” is appealing, but not fully persuasive. I do not rest my dissent, however, on my unease over the majority’s holding on that issue. The lack of a “presently ascertainable” remainder interest is the more significant obstacle. A charitable deduction may be taken for the value of Occidental College’s interest only insofar as that interest is, at the time of Anita Wand’s death, “presently ascertainable, and hence severable” from the noncharitable interest of James Fuller. See Merchants Nat’l Bank v. C.I.R., 320 U.S. 256, 260, 64 S.Ct. 108, 111, 88 L.Ed. 35 (1943) (internal quotation marks omitted). Fuller’s piece of the pie “em-bracéis] factors which cannot be accounted for accurately by reliable statistical data and techniques.” See id. at 261, 64 S.Ct. at 111. Because “neither the amount which [Fuller] will use nor the present value of the gift [to Occidental College] can be computed, deduction is not permitted.” See id. (emphasis added).\nWand’s 1971 will provides that the trust’s principal be used to pay “all taxes, all expenses of maintenance, repairs or improvements on [the Santa Barbara] house” and that “[tjhe use of said house as so maintained shall be provided for ... JAMES M. FULLER, for the term of his natural life.” Maj. op. at 834. Contrary to the majority’s analysis, id. at 835, the phrase “as so maintained” is not limitational, in either a contextual or inherent sense. I suggest its most likely meaning is that any improvements made by Fuller also must be maintained at the expense of the trust. The vagaries of unspecified “improvements” is much closer to Merchants National Bank’s “happiness” provision than to Ithaca Trust Co. ’s more specific “comfort ... she now enjoys” clause. Compare Merchants Nat’l Bank, 320 U.S. at 258, 263, 64 S.Ct. at 110,112 (trust corpus may be invaded when trustee deems appropriate to provide for “the comfort, support, maintenance and/or happiness of my said wife”; charitable deduction disallowed) with Ithaca Trust Co. v. United States, 279 U.S. 151,154, 155, 49 S.Ct. 291, 291, 73 L.Ed. 647 (1929) (principal may be invaded as “may be necessary to suitably maintain [my wife] in as much comfort as she now enjoys”; charitable deduction permitted).\nThe will further provides that the trust’s principal may be used to pay Fuller’s “unusual and exceptional expenses,” including (but not limited to) “hospital, medical, dental bills and to pay all income taxes due from said JAMES M. FULLER.” Op. at 834. The indeterminate scope of any expense, regardless of its novelty or unexpectedness, and of the amount of all of the income taxes owed by the life-time beneficiary on income from sources outside as well as inside the trust, makes present ascertainment of the remainder interest impossible.\nIn short, Wand’s 1971 will did not bequeath a noncharitable interest either “capable of being stated in definite terms of money” or otherwise “fixed in fact.” See Ithaca Trust Co., 279 U.S. at 154, 49 S.Ct. at 153. The bequests to the life tenant “are uncertain and cannot be measured with any precision, and therefore they make the amount going to charity unascertainable.” See Estate of Marine v. C.I.R., 990 F.2d 136, 139 (4th Cir.1993).\nI would reverse the judgment. While I am not absolutely immune from the pull of a sympathetic case, I have no power under the tax laws to reform this ill-drafted will.", "type": "dissent", "author": "FLETCHER, Circuit Judge,"}], "attorneys": ["Arlen D. Woffinden and Dominic T. Hol-zhaus, Latham & Watkins, Los Angeles, CA, for plaintiff-appellee and for the real-party-in-interest-appellee.", "Ann Belanger Durney, U.S. Dept, of Justice, Washington, DC, for defendant-appellant."], "corrections": "", "head_matter": "WELLS FARGO BANK, Trustee of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant; Occidental College, Charity Remainder-man of that Certain Testamentary Trust Established Under the Will of Anita Johnson Wand, Now Deceased, Real-Party-In-Interest-Appellee.\nNo. 91-55692.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted July 8, 1992.\nDecided July 27, 1993.\nArlen D. Woffinden and Dominic T. Hol-zhaus, Latham & Watkins, Los Angeles, CA, for plaintiff-appellee and for the real-party-in-interest-appellee.\nAnn Belanger Durney, U.S. Dept, of Justice, Washington, DC, for defendant-appellant.\nBefore: FLETCHER, O’SCANNLAIN, and KLEINFELD, Circuit Judges."} | FLETCHER | O’SCANNLAIN | KLEINFELD | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 830 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,561 | UNITED STATES of America, Plaintiff-Appellee, v. Cesar Yap CHANGCO, Defendant-Appellant | United States v. Changco | 1993-07-27 | No. 91-50755 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: KOZINSKI, SUHRHEINRICH and T.G. NELSON, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Cesar Yap CHANGCO, Defendant-Appellant."], "opinions": [{"text": "KOZINSKI, Circuit Judge:\nWe consider how a defendant goes about establishing that a prosecutor’s race-neutral justifications for a peremptory strike are pre-textual.\nBackground\nChangco was convicted by a jury of robbing a Post Office, carrying a firearm during a crime of violence and kidnapping. See 18 U.S.C. §§ 924(c)(1), 1201(a)(5), 2114. Although neither the government nor the defendant challenged any member of the venire for cause, each side exercised peremptory challenges. At issue are two of the prosecution’s peremptory strikes — Maldia and Delacruz. Upon initial questioning by the court, Maldia stated that she performed data entry at a financing company, was married with children, had a high school education and regularly read Reader’s Digest. Delacruz was a full-time student at Cal-State University, Los Angeles, majoring in Spanish; she was a Vogue reader. The government exercised its first peremptory challenge to strike Delacruz, and its third to strike Maldia. At that point, defense counsel objected on the ground that the prosecution had struck “two minority women.” RT 9/3/91 at 73. After hearing the prosecutor’s explanations, the court upheld the strikes.\nChangco appeals this ruling. He also appeals the denial of his motion for a mistrial, which was based on events that took place during the jury’s deliberations.\nDiscussion\nA. The Peremptory Strikes\n1. It is now well settled that the discriminatory exercise of peremptory challenges by either prosecution or defense violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986); Georgia v. McCollum, — U.S. -, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). A party raising a Batson claim must first make a prima facie showing that peremptory challenges may have been exercised on the basis of an impermissible ground, such as race; if the district court accepts this showing, the burden shifts to the striking party to articulate a race-neutral justification. The district court then makes the ultimate determination whether purposeful discrimination has indeed been .shown. Hernandez v. Neiv York, — U.S. -, -, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).\nDuring voir dire, defense counsel objected to the striking of Delacruz on the ground that she was “the second minority female [against] which the government has ... used [its] peremptory challenge.” RT 9/3/91 at 73. At oral argument before us, defense counsel conceded that the basis of Changco’s challenge was the women’s ethnicity, rather than their gender or a hybrid of both. We therefore need not decide whether “minority women” make up an identifiable Batson class. See United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989) (Hispanics are cognizable group for Batson purposes); but see note 1 infra.\nWhether Changco made the requisite prima facie showing that the prosecutor exercised her peremptory challenges on the basis of race isn’t at issue. The district court apparently thought a prima facie ease had been made, and asked the prosecutor to articulate race-neutral explanations for striking Maldia and Delacruz. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez, — U.S. at -, 111 S.Ct. at 1866. We thus focus on the adequacy of the prosecutor’s explanations.\nThe prosecutor explained she had struck Maldia “based primarily on her language abilities.... [I]f she were in the jury room [it might] affect the deliberation in some manner because of that language difficulty.” RT 9/3/91 at 73-74. The prosecutor added that Maldia had been inattentive during the reading of the indictment and voir dire, and that her body language suggested timidity which would make her ineffective during deliberations. Id. As for Delacruz, the prosecutor offered her youth and inattentiveness as the reasons for striking her. Id. at 75-76. The court ruled that it could not “make the determination that there has been a deliberate attempt by the government to exclude minorities”; but it admonished the prosecutor that any further strikes of minority jurors would be carefully scrutinized. Id. at 76. Defense counsel did not comment on the prosecutor’s explanation or indicate disagreement with the district court’s ruling; he did not ask for any findings.\n2. Changco does not contest that the prosecutor may strike potential jurors for their passivity, inattentiveness or inability to relate to other jurors, nor could he: We have repeatedly upheld these reasons as valid, race-neutral explanations for excluding jurors. See, e.g., United States v. Daly, 974 F.2d 1215, 1219 (9th Cir.1992) (per curiam) (loner personality); United States v. Power, 881 F.2d 733, 740 (9th Cir.1989) (fidgeting and inattentiveness). But Changco argues that striking jurors because they aren’t proficient in English is tantamount to striking them because of their race or ethnicity.\nEnglish proficiency is a statutory requirement for serving on a federal jury. 28 U.S.C. §§ 1865(b)(2) — (3). If the prosecutor had doubts about the ability of Maldia or Delacruz to follow the events of the trial, comprehend the judge’s instructions or deliberate effectively with the other jurors, she had ample grounds for striking them. So long as the prosecutor (or the defendant, for that matter) can convince the district court that the potential juror who is being struck in fact has difficulty with English, the justification is race-neutral. Hernandez, — U.S. at -, 111 S.Ct. at 1873; see also United States v. Bishop, 959 F.2d 820, 826 (9th Cir.1992) (place of residence, while often correlated with race, is a valid justification so long as it “utilized as a link connecting a specific juror to the facts of the case”). It would be much different, of course, if the prosecutor were to strike a potential juror based on her last name alone, and then justified the strike by arguing that people with a particular last name often have trouble understanding English. The latter would be the type of sweeping generalization about the language abilities of racial groups that would make the explanation race non-neutral.\nIt may well be that many of those struck because of language difficulties will be minorities. But that fact does not make it illegitimate to exercise a peremptory challenge on that basis. Batson derives from the Equal Protection Clause; a successful claim therefore depends upon a showing of intentional discrimination. See Hernandez, — U.S. at -, 111 S.Ct. at 1866, 1868. Whether a particular reason for striking jurors has a disproportionate effect on minorities is relevant to figuring out whether intentional discrimination has occurred; but disparate impact does not, by itself, a Batson violation make. As the Third Circuit recently held, “the role of disparate impact in the Batson analysis is as circumstantial evidence of discriminatory intent ... and not as a controlling legal factor.” United States v. Uwaezhoke, 995 F.2d 388, 392-93 (3rd Cir. 1993).\n3. Changco also argues that, even if the prosecutor’s justifications were facially race-neutral, they were pretextual: The prosecutor really struck these jurors because they are Hispanic, not because of any inattentiveness or language difficulties. Changeo thus claims Maldia had no language difficulty at all and that she answered the court’s questions with aplomb. See Opening-Brief at 28. He argues the prosecutor’s failure to object earlier to Maldia’s facility with English proves that the reason advanced by the prosecutor was a ruse. Id. at 29. Changeo also contends that Maldia’s language capabilities should have been examined once they had been called into question by the prosecutor. Id. at 31. He makes similar attacks on the reasons offered for striking Delacruz, including the government’s failure to prove she was in fact young. Id. at 32.\nThese are all significant arguments but we’re unable to consider them because Changeo never raised them below nor developed a factual record to support them. This case presents the mirror image of United States v. Thompson, 827 F.2d 1254 (9th Cir.1987), where the district court conducted an in camera, ex parte examination of the prosecutor’s motives for striking all of the black jurors. We held that defense counsel should have been present to hear and, if necessary, object to the prosecutor’s explanations. Defense counsel could assist the district court by pointing out inconsistencies in the prosecutor’s overall striking pattern, especially when the prosecutor’s actions or explanations undermine the reason given in response to the defendant’s objections. Counsel could also build a record by pointing out physical characteristics of various members of the venire when this would impeach the prosecutor’s explanations. As we noted in Thompson, unless such facts are verbally articulated, they are lost to the record and appellate review becomes impossible. Id. at 1260-61.\nIn conformity with our holding in Thompson, defense counsel here was present when the prosecutor advanced her reasons for the strikes. But defense counsel raised none of the arguments Changeo now brings on appeal. After the prosecutor gave her explanations, defense counsel stood mute and the district court upheld the strikes. Under these circumstances, it becomes impossible for us to give Changco’s arguments meaningful consideration.\nThe transcript does not reveal, for example, whether Maldia or Delacruz actually had difficulty with English. Changeo asserts in his brief that Maldia “not only understood the court’s [voir dire] questions without any difficulty, she responded to those questions in such a way that everyone in the courtroom evidently understood her answers.” Opening Brief at 28. But the portion of the transcript to which Changeo cites — containing Maldia’s answers to the court’s questions — is of little assistance. We cannot tell whether Maldia stumbled or paused as she responded to the questions; nor can we tell whether there is any substance to the prosecutor’s assertions that Maldia was “not paying attention,” “fumbling through her purse and fishing to get something out” or “sit[ting] in her chair in a timid manner.” RT 9/3/91 at 74.\nA timely objection by Changeo would have also given the prosecutor an opportunity to elaborate on her reasons for striking Maldia and Delacruz. Changeo now seeks to cast doubt on the prosecutor’s concerns about Maldia’s and Delacruz’s ability to understand the proceedings by pointing out the prosecutor opposed striking for cause another juror with a hearing impediment. Opening Brief at 31. This argument would certainly have merited a response by the prosecutor. But the prosecutor’s explanation will never be known because Changeo failed to articulate the argument at a time and place where the prosecutor could offer a response. Timely objections by Changeo would also have shed further light on the prosecutor’s assertion that Delacruz was too young, as her exact age could have been determined; and they would have permitted the court or counsel to examine the jurors to determine whether they really did have difficulty with English.\nFinally, had the claim of pretext been raised below, we would now have the benefit of findings on all these matters from the district judge. Findings of fact would not only give us confidence that the district court focused on the right issue in making its ruling; it would also affect our standard of review. Compare Bishop, 959 F.2d at 821 n. 1 (whether justification is race-neutral reviewed de novo) with Chinchilla, 874 F.2d at 697-98 (determination of whether discrimination occurred in striking accorded great deference). It’s also entirely possible that the district court — who was obviously sensitive to the possibility of impermissible striking— might have given Changco the relief he sought, obviating the need for an appeal and the possibility of repeating the entire trial. As matters stand now, however, we have no basis for setting aside the district judge’s ruling.\nB. The Jury’s Deliberations\nChangco also argues the district court erred in denying his motions for a mistrial based on two incidents of alleged misconduct. On September 6, the foreman sent a note to the judge which said: “Can’t convince one person. Don’t know what to do. Set mind before case. She can’t hear well and is not looking at evidence.” RT 9/6/91 at 25. Defense counsel then moved for a mistrial on the ground that the jury had revealed its numerical division to the judge. Id. at 26. The court denied the motion, called the jury back and advised them to keep deliberating. Id. at 27, 30.\nThis case is just like United States v. Green, 962 F.2d 938 (9th Cir.1992). There, the jury passed the judge a note indicating that it was at an impasse; it also disclosed its numerical division. After noting the “great deference” we accord the decision whether to declare a mistrial because the jury is deadlocked, we affirmed: “Although the jury disclosed it was divided, it did not indicate that further deliberations would be fruitless, but rather asked for clarification of the judge’s prior instructions. Under these circumstances, a mistrial would have been premature.” Id. at 944 (citation omitted). The supplemental instruction the district court gave here was no more coercive than the one in Green: Each asked the jury not to disclose again its numerical division, urged the jury to continue deliberating and to try to reach a verdict and admonished individual jurors not to surrender their conscientiously-held beliefs. Compare id. at 943-44 with RT 9/6/91 at 30; see also United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir.1992) (revelation of numerical division not reversible error absent other indications of impermissible coercion).\nThe second incident arose on September 9, when an individual juror (the same juror, it turns out, who was the subject of the first note) passed a note to the judge, claiming she was being intimidated, harassed and physically threatened by other jurors. RT 9/9/91 pp. 4-5. The court summoned the juror into chambers, on the record and in the presence of counsel. After inquiring into the specifics of the juror’s grievances, the court assembled and addressed the jury. The court instructed the jurors to treat one another civilly and with respect, and asked if they could continue deliberating, to which the foreman replied they could. Id. at 19-22. The jury retired. One hour later, it reached its verdicts.\nChangco alleges two errors. First, he claims the in-chambers meeting with the juror was an “ex parte communication.” Opening Brief at 39. That’s not quite right. An ex parte hearing or communication only occurs when one party is not represented. Here Changco’s counsel was present in chambers during the interview of the juror. Thus, while Changco himself was absent, he was represented by his lawyer, and the interview was therefore not ex parte. The strongest claim Changco can make is that the interview was arguably a critical “stage of the trial,” one which required his personal presence. See Fed.R.Crim.P. 43. Because Changco failed to raise this objection below, however, he waived his right to be present during the interview. United States v. Gagnon, 470 U.S. 522, 528-29, 105 S.Ct. 1482, 1485-86, 84 L.Ed.2d 486 (1985) (per curiam).\nChangco also argues the court’s statement to the jury was coercive. Isolating particular phrases from the court’s lengthy comments, Changco claims the embattled juror may have believed the court was singling her out, trying to nudge her into acceding to the rest of the jury’s views. But the court merely instructed the jurors to behave like adults; it punctuated its comments with yet another admonition that no juror surrender a strongly-held belief. RT 9/9/91 at 22. Viewing the court’s comments as a whole, as we must, see, e.g., Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546, 550, 98 L.Ed.2d 568 (1988), we conclude they were not coercive. The motions for mistrial were properly denied.\nAFFIRMED.\n. While we have held previously that Hispanics are a cognizable class for purposes of Batson, see Chinchilla, 874 F.2d at 698, the only evidence in the record as to whether Maldia and Delacruz were Hispanic is that they had Hispanic-sounding names. See RT 9/3/91 at 75; RT 9/4/91 at 11-13. While racial identity can often be determined simply by looking at the prospective juror, ethnicity is much harder to ascertain without knowing more about the juror's family background. Even if one could identify with precision which surnames connote Hispanic ethnicity, the question remains whether the name was obtained through marriage or adoption rather than birth. Moreover, some Hispanic-sounding names — such as Cardozo and Perez — are common among Sephardic Jews. Ordinarily, therefore, surnames alone would not suffice for a Batson challenge. See United States v. Esparsen, 930 F.2d 1461, 1466 (10th Cir.1991). Nevertheless, since the district court and counsel proceeded on the assumption that Maldia and Delacruz were Hispanic, we will do the same.\n. Changeo has a different lawyer on appeal.\n. Changco faults the government for failing to request a court investigation or finding on these points. See Opening Brief at 31, 32. But it was Changco’s responsibility, not the government’s, to request such findings. In the absence of some indication by Changco that he believed the asserted reasons were pretextual, the district court and prosecutor were entitled to proceed on the assumption that Changco was acquiescing in the prosecutor's explanations.\n. The note read:\nDear Judge Reyas [sic],\nIn accordance with the instruction to jurors to report improper behavior, I wish to speak with you before going into deliberation again.\nOn Friday, September 6, I was subjected to shouts, insults and physical intimidation and harassment and slanderous remarks. This put me into a state of near shock. I cannot deliberate or reach any rational decisions under such circumstances.\nI will be glad to discuss this with you. Sincerely, J_ S_, Juror Number 6.", "type": "majority", "author": "KOZINSKI, Circuit Judge:"}], "attorneys": ["Michael J. Brennan, Manhattan Beach, CA, for defendant-appellant.", "Debra W. Yang, Nicola T. Hanna, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Cesar Yap CHANGCO, Defendant-Appellant.\nNo. 91-50755.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted May 5, 1993.\nDecided July 27, 1993.\nMichael J. Brennan, Manhattan Beach, CA, for defendant-appellant.\nDebra W. Yang, Nicola T. Hanna, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.\nBefore: KOZINSKI, SUHRHEINRICH and T.G. NELSON, Circuit Judges.\nThe Honorable Richard F. Suhrheinrich, United States Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation."} | KOZINSKI | SUHRHEINRICH | T.G. NELSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 837 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,587 | UNITED STATES of America, Plaintiff-Appellant, v. Michael H. HUNTER, Defendant-Appellee | United States v. Hunter | 1993-07-27 | No. 90-30252 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FARRIS, LEAVY and TROTT, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, v. Michael H. HUNTER, Defendant-Appellee."], "opinions": [{"text": "ORDER\nA review of subsequent events in this matter demonstrates that this ease finally has been disposed of and all appellate matters thereby rendered moot. Accordingly, our opinion filed February 3,1993, 985 F.2d 1003, and amended on March 3, 1993 (Slip op. No. 90-30252) is ordered vacated and withdrawn from publication. Any remaining aspects of this appeal are ordered dismissed.", "type": "majority", "author": null}], "attorneys": [], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, v. Michael H. HUNTER, Defendant-Appellee.\nNo. 90-30252.\nUnited States Court of Appeals, Ninth Circuit.\nJuly 27, 1993.\nBefore: FARRIS, LEAVY and TROTT, Circuit Judges."} | FARRIS | LEAVY | TROTT | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 843 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,620 | Renate CRETAN, Widow of John Cretan; Nicole Cretan, Daughter of John Cretan, Petitioners-Cross-Respondents, v. BETHLEHEM STEEL CORPORATION, Respondent-Cross-Petitioner, and Director, Office of Workers Compensation Programs, Respondent | Cretan v. Bethlehem Steel Corp. | 1993-07-28 | Nos. 90-70589, 90-70634 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, CHOY, and CANBY, Circuit Judges."], "parties": ["Renate CRETAN, Widow of John Cretan; Nicole Cretan, Daughter of John Cretan, Petitioners-Cross-Respondents, v. BETHLEHEM STEEL CORPORATION, Respondent-Cross-Petitioner, and Director, Office of Workers Compensation Programs, Respondent."], "opinions": [{"text": "CANBY, Circuit Judge.\nWe have before us a survivors’ petition and an employer’s cross-petition for review of a Benefits Review Board decision and order that resolved the survivors’ claim for disability compensation and death benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950. We have jurisdiction under 33 U.S.C. § 921(c). We affirm in part and reverse in part.\nBACKGROUND\nIn 1942 and 1943, Bethlehem Steel Corporation (Bethlehem) employed John Cretan as an electrician engaged in the repair and construction of ships. John was exposed to asbestos on the job. Bethlehem was John’s only maritime employer.\nIn January 1984, John learned he suffered from mesothelioma, a terminal asbestos-related disease. He died in February 1985. Before he died, John filed a timely claim for compensation and medical benefits under the Act. Bethlehem disputed liability. Two months after John’s death his wife Renate and daughter Nicole claimed disability compensation as his survivors and death benefits in their own right. Bethlehem disputed those claims too.\nPrior to his death, John had also brought a product liability action against a number of asbestos manufacturers. He settled his third-party claims in a series of agreements. Although neither Renate nor Nicole were parties to John’s action, each settled her potential claims for his wrongful death against the manufacturers at that time. Renate also settled, in the same series of agreements, an action which she had filed seeking recovery for loss of consortium. The net proceeds from the settlements were approximately $333,489. One asbestos manufacturer also bought a $50,000 annuity on behalf of the family.\nAn administrative law judge (ALJ) tried the Cretans’ LHWCA claims after John’s death. The ALJ awarded disability compensation and medical benefits to Renate as John’s widow. Renate and Nicole also received death benefit awards. The ALJ rejected Bethlehem’s argument that section 33(g) of the Act, 33 U.S.C. § 933(g), had terminated Bethlehem’s 'liability to the Cretans because the family had failed to secure Bethlehem’s written approval of the third-party settlements. The ALJ, however, permitted Bethlehem to offset a portion of the settlements against its statutory liability. Renate and Nicole had argued without success that the offset provision contained in section 33(f) of the Act, 33 U.S.C. § 933(f), was inapplicable to them.\nThe Cretans and Bethlehem each appealed to the Board. In addition to resolving other objections to the ALJ’s ruling, the Board agreed that section 33(g) was no bar to the LHWCA claims. The Board also agreed that Bethlehem was entitled to credit under section 33(f). The Board concluded, however, that Bethlehem was entitled to a credit in the amount of the family’s aggregate net tort recovery. We review the Board’s decision for “errors of law and adherence to the substantial evidence standard,” Port of Portland v. Director, Office of Workers’ Compensation Programs, 932 F.2d 836, 838 (9th Cir.1991), and we may affirm on any basis contained in the record. National Steel & Shipbuilding Co. v. United States Dep’t of Labor, Office of Workers’ Compensation Programs, 606 F.2d 875, 883 n. 4 (9th Cir.1979).\nDISCUSSION\nThe Cretans and Bethlehem each raise several challenges to the Board’s ruling. The dispositive questions, however, are whether Renate and Nicole were subject to sections 33(f) and (g). We conclude that they were, and that they consequently cannot recover under the LHWCA.\nSection 33 of the LHWCA establishes a claimant’s right to seek recovery from third parties without fear of being categorically denied compensation or benefits under the Act. This right, however, is qualified by subsections (f) and (g), which complement each other in important respects. Section 33(f) provides:\nIf the person entitled to compensation institutes proceedings ... the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against [a] third person.\n33 U.S.C. § 933(f) (1988) (emphasis added). The import of this provision as a guard against double recovery is clear enough: the employer is entitled to set off against its liability any recovery that the person entitled to compensation received from third parties.\nSubsection (g) provides in relevant part: If the person entitled to compensation ... enters into a settlement with a third person ... for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation ... only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed....\n33 U.S.C. § 933(g)(1). The purpose of this provision is to protect the employer against the employee’s entering an inordinately low settlement, which would deprive the employer of a proper set-off under section 33(f).\nAs a result of the interplay of sections 33(f) and 33(g), the Cretans will necessarily be precluded from any compensation recovery if they fall within the reach of both subsections. They do not dispute that they failed to obtain the written consent of Bethlehem to the settlement. As a result, if their third-party recovery was less than they are entitled to under LHWCA, section 33(g) precludes any LHWCA recovery from Bethlehem. On the other hand, if their third-party recovery exceeded their entitlement under LHWCA, Bethlehem would be entitled to a 100% set-off under section 33(f).\nThe Cretans contend, however, that they do not fall within the scope of either subsection because both expressly apply only to persons “entitled to compensation.” They argue that they were not persons “entitled to compensation” when they settled their tort claims because John had not yet died. Our resolution of this issue is complicated by the fact that in the past the Director has given the term “person entitled to compensation” different meanings in sections 33(f) and 33(g), and each meaning has changed over time.\nWith regard to section 33(f), the Cretans urge that the fact that they were not “entitled to compensation” at the time of the recovery precludes Bethlehem from taking any set-off. The ALJ and the Board each rejected that argument, and later we adopted the Board’s position in another appeal. See Force v. Director, Office of Workers’ Compensation Programs, 938 F.2d 981, 984-985 (9th Cir.1991). In Force, we deferred to the Director’s view at that time that a claimant’s status as a “person entitled to compensation” need not be fixed at any particular moment. Even though the entitlement to compensation arose after the settlement, it did eventually arise and the employer was entitled to its set-off. Id.\nThe Cretans argue, however, that Force is implicitly overruled by the Supreme Court’s recent decision in Estate of Cowart v. Nicklos Drilling Co., — U.S. -, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). We disagree.\nCowart arose under section 33(g). There the claimant had been informed that he was entitled to benefits under the LHWCA, but no order had been entered and no payments had been made by the employer. Id. at -, 112 S.Ct. at 2592. At that point, the claimant entered into a' settlement, lower than his potential LHWCA benefits, with a third party. See id. He did not obtain the prior written consent of his employer. Id. Before Ccmart reached the Supreme Court, it had been the Director’s position that a claimant who had not yet received a compensation order and had received no payments was not a “person entitled to compensation” for purposes of section 33(g). Id. at -, 112 S.Ct. at 2593-94. The Director reversed his position in the Supreme Court, id. at -, 112 S.Ct. at 2594, and the Court adopted the new position. The Court held that the term “person entitled to compensation” in section 33(g) was not limited to persons who had either obtained a compensation order or had received benefits. “Both in legal and general usage, the normal meaning of entitlement includes a right or benefit for which a person qualifies, and it does not depend upon whether the right has been acknowledged or adjudicated.” Id. at-, 112 S.Ct. at 2595. Accordingly, section 33(g) applied and the claimant was barred from recovering LHWCA benefits from his employer.\nIt is clear that the holding of Cowart does not dictate the outcome of our case. It does not rule on the question whether a claimant whose entitlement will mature upon a death that has not yet occurred is a “person entitled to compensation.” Cowart does, however, contain language that in isolation appears to support the Cretans. In rejecting the view that Cowart did not become “entitled” until he obtained an order or a payment, the Court stated: “He became a person entitled to compensation at the moment his right to recovery vested, not when his employer admitted liability, an event even yet to happen.” Id. at -, 112 S.Ct. at 2595. The Court also stated that the normal meaning of entitlement is that “the person satisfies the prerequisites attached to the right.” Id. The Cretans seize upon this language, and argue that their entitlement to compensation under the Act vested when John died. There is no reason, however, to assume that the Supreme Court had the present situation in mind when it uttered these dicta. The Court’s point was that an entitlement did not have to be reduced to order or payment to be an entitlement. The Cretans give the vesting language a reading which is separated from the facts to which it is addressed. We decline to give the Supreme Court’s statement a binding effect that there is no reason to believe the Court intended. See United States v. Ordonez, 737 F.2d 793, 803 n. 1 (9th Cir.1984) (discussing uses of dictum).\nThe Supreme Court’s interpretation of section 33(g) in Cowart served the purposes of that subsection to “ ‘protect[ ] the employer against his employee’s accepting too little for his cause of action against a third party.’ ” Cowart, — U.S. at -, 112 S.Ct. at 2598 (quoting Banks v. Chicago Grain Trimmers, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968)). The construction urged by the Cretans, if applied to section 33(g), would defeat that purpose. If applied to section 33(f), the same construction' would defeat the purpose of that subsection to protect the employer against double recovery. In light of the purposes of section 33(f), there is little sense in a distinction that turns on whether the death for which settlement is made has yet to occur. That consideration leads us to adhere to our ruling in Force that claimants who settle before the death that gives rise to LHWCA benefits are subject to the section 33(f) set-off; the entitlement does not have to have become vested at the time the settlement is made. “ ‘The only relevant question is whether the claimant is impermissibly recovering twice for the same injury, regardless of when such payments occur.’ ” Force, 938 F.2d at 984 (quoting Director’s brief).\nIt is true that in Force, we deferred to the Director’s interpretation of section 33(f), and that the Director now has changed positions and urges the same result as do the Cretans. For reasons already largely stated, we find the Director’s new interpretation unreasonable. See Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 861 F.2d 1124, 1136 (9th Cir.1988) (en banc) (substituting revised agency interpretation for an adverse precedent unnecessary if the substitution is unreasonable or inconsistent with the statute). If we were to adopt the Director’s new view, relatives of claimants who are certain to die could negotiate settlements before the claimant’s death and defeat the employer’s offset. Furthermore, if the new view is extended to section 33(g), third-party tortfeasors could benefit from offering to desperate families inordinately small settlements the deficiencies of which the employer would have to make up. Those results would contradict the policy of employer protection that is evident on the face of sections 33(f) and (g). See Cowart, — U.S. at -, 112 S.Ct. at 2598.\nOn one point, we do agree with the Cretans and the Director regarding the effect of Cowart. The term “person entitled to compensation” must receive the same construction in sections 33(f) and 33(g), in accord with “the basic canon of statutory construction that identical terms within an Act bear the same meaning.” Cowart, — U.S. at -, 112 S.Ct. at 2596. Indeed, one of the reasons that the Supreme Court rejected the narrow interpretation of “entitled” urged by Cowart was that it made no sense when applied equally to section 33(f). Id. Thus, in accordance with our ruling regarding section 33(f), we hold that the Cretans are persons “entitled to compensation” within the meaning of section 33(g). As we earlier explained, this holding, when combined with our ruling on section 33(f), defeats recovery for the Cretans under LHWCA: if their tort settlement was less than their statutory entitlement, they are barred by section 33(g); if the recovery exceeded their statutory entitlement, Bethlehem is entitled to set off its entire statutory liability under section 33(f).\nCONCLUSION\nBecause Renate and Nicole Cretan were persons “entitled to compensation,” they were subject to the provisions of sections 33(f) and (g) of the LHWCA when they settled their tort claims with third parties. Together, the two provisions act as a complete bar to recovery from Bethlehem. Accordingly, we need not consider the petitioners’ and cross-petitioner’s other arguments.\nThat portion of the Board’s decision that allows Bethlehem a total set-off of its liabilities pursuant to section 33(f) is affirmed. That part of the Board’s decision holding the Cretans not to be subject to section 33(g) is reversed. The matter is remanded to the Board.\nAFFIRMED IN PART; REVERSED IN PART; REMANDED. Costs in favor of Bethlehem.\n. The Cretans conceded this proposition at oral argument.", "type": "majority", "author": "CANBY, Circuit Judge."}], "attorneys": ["Victoria Edises, Kazan, McClain, Edises & Simon, Oakland, CA, for petitioners-eross-respondents.", "Joshua T. Gillelan, U.S. Dept, of Labor, Office of the Sol., Washington, DC, for the respondent; Bill Parrish, San Francisco, CA, Robert E. Babcock, Littler, Mendelson, Fas-tiff & Tichy, Portland, OR, for respondent-cross-petitioner."], "corrections": "", "head_matter": "Renate CRETAN, Widow of John Cretan; Nicole Cretan, Daughter of John Cretan, Petitioners-Cross-Respondents, v. BETHLEHEM STEEL CORPORATION, Respondent-Cross-Petitioner, and Director, Office of Workers Compensation Programs, Respondent.\nNos. 90-70589, 90-70634.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted May 14, 1993.\nDecided July 28, 1993.\nVictoria Edises, Kazan, McClain, Edises & Simon, Oakland, CA, for petitioners-eross-respondents.\nJoshua T. Gillelan, U.S. Dept, of Labor, Office of the Sol., Washington, DC, for the respondent; Bill Parrish, San Francisco, CA, Robert E. Babcock, Littler, Mendelson, Fas-tiff & Tichy, Portland, OR, for respondent-cross-petitioner.\nBefore: BROWNING, CHOY, and CANBY, Circuit Judges."} | BROWNING | CHOY | CANBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 843 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,661 | AMOCO EGYPT OIL COMPANY; Egyptian General Petroleum Corporation, Plaintiffs-Appellants, v. LEONIS NAVIGATION COMPANY, INC., Defendant-Appellee | Amoco Egypt Oil Co. v. Leonis Navigation Co. | 1993-07-28 | No. 91-35978 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BOOCHEVER, THOMPSON, and KLEINFELD, Circuit Judges."], "parties": ["AMOCO EGYPT OIL COMPANY; Egyptian General Petroleum Corporation, Plaintiffs-Appellants, v. LEONIS NAVIGATION COMPANY, INC., Defendant-Appellee."], "opinions": [{"text": "BOOCHEVER, Circuit Judge:\nThis is an appeal from the district court’s dismissal of an action against a foreign corporation for lack of personal jurisdiction. We affirm.\nBACKGROUND\nThe Panay Sampaguita, a ship sailing from Singapore to France, collided with an oil platform in Egyptian waters. The ship was owned by a Panamanian corporation and bareboat chartered by Leonis Navigation (“Leonis”), a Philippine corporation with its headquarters in Manila. The platform was jointly owned by Amoco Egypt Oil Company, a Delaware corporation with its principal offices in Egypt, and Egyptian General Petroleum Corporation (“EGPC”), an instrumentality of the Egyptian government charged with exploitation of its oil resources. Amoco Egypt and EGPC (together, “Amoco”) filed suit against Leonis for $250,000,000 in damages in the United States District Court for the Western District of Washington.\nLeonis’ contacts with Washington derive from its bareboat chartering of the Panay Sampaguita and three other vessels. Leonis subchartered all four vessels to Leo Maritime Co., Ltd., which further subchartered one of the vessels, the Luzon Sampaguita, to Navix Line, Ltd. (“Navix”). At the direction of time charterer Navix, the Luzon sailed exclusively between Tacoma and Japan carrying Washington logs, making seven round trips between the date of Leonis’ charter and the date the complaint was filed. The Panay and the two other vessels also called on Washington ports during the same period, but on a more random and infrequent basis.\nIncident to its boat chartering, Leonis had some additional contacts with Washington. The bills of lading to which Leonis was a party were executed by Washington businesses and provided that disputes would be decided under United States law. Leonis paid the Luzon’s crew with U.S. dollars that were purchased in Washington. An agent of Navix purchased supplies and services for Leonis crew members while the Luzon was in Washington. Leonis also obtained a certificate of financial responsibility for environmental claims from the United States Coast Guard in Washington, D.C., a requirement for any vessel entering United States waters.\nThe district court dismissed Amoco’s complaint, ruling that because Leonis was not licensed to do business, had no offices or property, based no employees, sold no products, did not advertise, and had no shareholders in the State of Washington, the court could not exercise general jurisdiction over Leonis. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 411, 418-19, 104 S.Ct. 1868, 1870-71, 1874, 80 L.Ed.2d 404 (1984). Amoco timely appealed, claiming that Leonis’ contacts were both purposeful and substantial enough to allow the district court to exercise jurisdiction over the claim.\nSTANDARD OF REVIEW\nBecause Amoco’s factual assertions are essentially uncontroverted, we review the district court’s ruling on personal jurisdiction de novo. Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir.1990), rev’d on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Where, as here, the district court bases its jurisdictional ruling on affidavits and discovery materials without holding an evidentiary hearing, dismissal is appropriate only if the plaintiff has failed to make a prima facie showing of personal jurisdiction. Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986); Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir.1977).\nDISCUSSION\nTo establish jurisdiction, Amoco must show that Washington’s jurisdictional statute confers jurisdiction over Leonis and that the exercise of jurisdiction accords with federal constitutional principles of due process. Shute, 897 F.2d at 380; Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986). Because Amoco’s claim against Leonis did not arise out of, and is unrelated to, Leonis’ contacts with Washington, Amoco concedes that the district court may only hear the claim if Washington can exercise “general jurisdiction” over Leonis. See Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9.\nA. Washington’s Jurisdictional Statute\nThe district court dismissed concerns with Washington law by stating that Washington’s long-arm statute, Wash.Rev.Code § 4.28.185, is coextensive with constitutional standards. See Shute, 897 F.2d at 380. Section 4.28.185, however, deals only with specific jurisdiction. General jurisdiction is authorized by § 4.28.080(10), which provides for service of summons on a foreign corporation “doing business” in Washington. Washington courts have interpreted this section as conferring general jurisdiction over nonresident defendants who conduct “substantial” and “continuous” business in the state “of such a character as to give rise to a legal obligation.” Crose v. Volkswagenwerk Aktiengesellschaft, 88 Wash.2d 50, 558 P.2d 764, 766-67 (1977) (en banc); see Hein v. Taco Bell, Inc., 60 WasLApp. 325, 803 P.2d 329, 331 (1991). Although the Washington Supreme Court has never explicitly so stated, courts of appeal have consistently held that the “doing business” and due process inquiries are the same. See MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wash.App. 414, 804 P.2d 627, 630-31 (1991); Hein, 803 P.2d at 332. Thus “ ‘the statutory and constitutional standards merge into a single due process test,’ ” Shute, 897 F.2d at 380 (quoting Pedersen Fisheries, Inc. v. Patti Indus., 563 F.Supp. 72, 74 (W.D.Wash.1983)), and we turn to the question of whether general jurisdiction over Leonis comports with due process requirements.\nB. Due Process\n“Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has ‘certain minimum contacts with [the forum] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). The Supreme Court has bifurcated this due process determination into two inquiries, requiring, first, that the defendant have the requisite contacts with the forum state to render it subject to the forum’s jurisdiction, and second, that the assertion of jurisdiction be reasonable. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (majority agreeing on dismissal because assertion of jurisdiction was unreasonable, but disagreeing on whether minimum contacts existed). Because we conclude that the exercise of personal jurisdiction over Leonis would be unreasonable, we need not address the issue of contacts. See FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987); Fields, 796 F.2d at 302.\nWe have listed the following factors to be balanced in determining reasonableness in a specific jurisdiction context:\nthe extent of purposeful interjection, the burden on the defendant to defend the suit in the chosen forum, the extent of conflict with the sovereignty of the defendant’s state, the forum state’s interest in the dispute; the most efficient forum for judicial resolution of the dispute; the importance of the chosen forum to the plaintiffs interest in convenient and effective relief; and the existence of an alternative forum.\nShiite, 897 F.2d at 386; see Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir.1981). We apply these same factors to the present general jurisdiction analysis. The burden is on the defendant to “ ‘present a compelling case’ that the exercise of jurisdiction would, in fact, be unreasonable.” Shute, 897 F.2d at 386 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985)).\n1. Extent of Purposeful Interjection\nThis factor parallels the question of minimum contacts, which we have declined to decide. Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir.1988). We similarly put it aside here because the remaining six factors present a compelling case for unreasonableness.\n2. Burden on Defendant\n“The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” Asahi, 480 U.S. at 114, 107 S.Ct. at 1033. The burden on Leonis of defending the suit in Washington is considerable. Leonis’ base of operations is in Manila. The company presently has no connections with Washington, nor does it have an agent or office anywhere else in the United States. See Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir.1991). Potential witnesses and evidence are not located in Washington. Although Amoco suggests that Egypt would be an equally burdensome forum for Leonis, the burden on the defendant is not a forum non conveniens question, but a function of due process requirements.\n3. Conflict with Sovereignty of Defendant’s State\nWhere, as here, the defendant is from a foreign nation rather than another state, the sovereignty barrier is high and undermines the reasonableness of personal jurisdiction. Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1330 (9th Cir. 1985). As the Supreme Court has noted, “ ‘[g]reat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.’ ” Asahi, 480 U.S. at 115, 107 S.Ct. at 1034 (quoting United States v. First Nat’l City Bank, 379 U.S. 378, 404, 85 S.Ct. 528, 542, 13 L.Ed.2d 365 (1965) (Harlan, J., dissenting)). The international context of this case militates in favor of Leonis.\n4. Forum State’s Interest\nAlthough the district court stated that “it cannot be said that Washington State with its extensive maritime trade does not have an interest in an allision between a shipping vessel and an oil platform,” this interest is no greater or more specific than that of any port city around the world. Asahi cautions against such an overly broad definition of a state’s interest. Asahi 480 U.S. at 114, 107 S.Ct. at 1033. Washington has no interest in this claim. The vessel involved in the accident was not sailing from Washington and carried no Washington cargo. Neither the accident nor the lawsuit’s outcome has any effect on Washington or its residents. Nor is there even an arguable basis for the application of Washington law to an accident in Egyptian waters involving a Philippine-owned ship bound from Singapore to France and an oil platform owned jointly by an Egyptian instrumentality and a Delaware corporation with its only base of operations in Egypt. See id. at 115, 107 S.Ct. at 1033-34. The absence of a forum state interest weighs heavily against the reasonableness of Washington’s assertion of jurisdiction.\n5. Most Efficient Resolution\nUnlike the burden on the defendant, this factor involves a comparison of alternative forums. See Shute, 897 F.2d at 387; Pacific Atl. Trading Co., 758 F.2d at 1331. The interest in obtaining the most efficient resolution of this controversy clearly points to Egypt and away from Washington. “The site where the injury occurred and where evidence is located usually will be the most efficient forum.” Pacific Atl. Trading Co., 758 F.2d at 1331. Moreover, assuming that Washington’s choice of law rules would require the application of Egyptian law, the efficiency of proceeding in Washington is further diminished. See id.; Insurance Co. of N. Am., 649 F.2d at 1273.\n6. Convenient and Effective Relief for Plaintiff\nSurprisingly, Amoco’s interest in this litigation also suggests the unreasonableness of Washington jurisdiction. Both plaintiffs have all of their operations in Egypt; the accident on which the claim is based occurred in Egypt; and the bulk of the relevant evidence and witnesses are presumably located in Egypt. Amoco has no involvement with Washington and has given no clear statement of its interest in having the claim litigated there.\n7. Existence of Alternative Forum\nAmoco has the burden of proving the unavailability of an alternative forum. Pacific Ml Trading Co., 758 F.2d at 1331. It has not met this burden. Proceedings involving Leonis’ liability for damages caused by the allision are already pending in Egypt. In accordance with the 1976 International Convention on Limitation of Liability for Maritime Claims, to which Egypt is a party, Leonis commenced a limitation action in Egypt to determine the extent of provable damages and limit its liability. That action was filed on January 30,1990, one day before Amoco filed the present claim. Both plaintiffs were named in the limitation action and notified of the proceedings. A limitation fund was established in Egypt, administered by the Egyptian court. Although Amoco has not filed any claims against the fund, an alternative forum for its claim against Leonis plainly exists.\nCONCLUSION\nOn balancing the above factors, we conclude that Leonis has presented a compelling case that the Washington district court’s exercise of personal jurisdiction would be unreasonable. We therefore affirm the district court’s judgment of dismissal.\nAFFIRMED.\n. Under a bareboat charter, the owner gives the charterer full possession and control of the vessel for a period of time. The charterer is responsible for directing the operations of the vessel and providing the master and crew. Admiralty law treats the bareboat charterer as the owner for many purposes. See Reed v. The Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 1351-52, 10 L.Ed.2d 448 (1963).\n. Although neither the Supreme Court nor this circuit has explicitly engaged in a separate reasonableness inquiry in a general jurisdiction case, Asahi’s interpretation of International Shoe as entailing separate contacts and reasonableness inquiries is not limited to the specific jurisdiction context but applies to all determinations of personal jurisdiction. See Asahi, 480 U.S. at 113, 107 S.Ct. at 1032-33.\n. Although the district court based its dismissal on a contacts analysis, we may affirm the district court's decision on any basis supported by the record. United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993). We note, however, that in view of Leonis’ lack of incorporation, license or authorization to do business, offices, property, employees, payment of taxes, advertising, solicitation, or sales in Washington, we doubt that Leonis’ contacts with Washington are sufficiently \"continuous and systematic” to support general jurisdiction. See Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1873. The Supreme Court has upheld general jurisdiction only once, in a case involving contacts significantly more comprehensive than those presented here. Perkins v. Benguel Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). We have stated that \"the Perkins holding that the cause of action need not arise out of the defendant’s activities in the forum is limited to its unusual facts,” Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242 (9th Cir.1984), and regularly have declined to find general jurisdiction even where the contacts were quite extensive. See, e.g., Shute, 897 F.2d at 381; Cabbage v. Merchent, 744 F.2d 665, 667-68 (9th Cir. 1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985).\n. It appears to us that the only possible reason for Amoco to seek Washington jurisdiction would be to attempt to avoid limitations on Leonis' liability under Egyptian law. Although limitation of liability might be a legitimate concern with regard to \"effective relief,” Amoco vigorously denies that this is its motive and fails to suggest another. We are thus left with absolutely no interest of Amoco in litigating in Washington.\n. Under Egyptian law, an owner or charterer of a ship is entitled to limit its liability for claims, including property damage, unless \"it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.” The court calculates the amount of the fund and distributes it to claimants as compensation for damages after determining their claims.", "type": "majority", "author": "BOOCHEVER, Circuit Judge:"}], "attorneys": ["Louis P. Sheinbaum, Waesche, Sheinbaum & O’Regan, New York City, for plaintiffs-appellants.", "Graydon S. Staring, Lillick & Charles, San Francisco, CA, for defendant-appellee."], "corrections": "", "head_matter": "AMOCO EGYPT OIL COMPANY; Egyptian General Petroleum Corporation, Plaintiffs-Appellants, v. LEONIS NAVIGATION COMPANY, INC., Defendant-Appellee.\nNo. 91-35978.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted April 5, 1993.\nDecided July 28, 1993.\nLouis P. Sheinbaum, Waesche, Sheinbaum & O’Regan, New York City, for plaintiffs-appellants.\nGraydon S. Staring, Lillick & Charles, San Francisco, CA, for defendant-appellee.\nBefore: BOOCHEVER, THOMPSON, and KLEINFELD, Circuit Judges."} | BOOCHEVER | THOMPSON | KLEINFELD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 848 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,676 | In re William HALL; Eleanor Hall, Debtors. James RIGBY, Plaintiff-Appellant, v. William HALL; Eleanor Hall, Defendants-Appellees | Rigby v. Hall | 1993-07-29 | No. 91-35934 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: SKOPIL, ALARCON and BEEZER, Circuit Judges."], "parties": ["In re William HALL; Eleanor Hall, Debtors. James RIGBY, Plaintiff-Appellant, v. William HALL; Eleanor Hall, Defendants-Appellees."], "opinions": [{"text": "BEEZER, Circuit Judge:\nTrustee James Rigby appeals the district court’s affirmance of the bankruptcy court’s decision that debtors William and Eleanor Hall exempted their residence from the estate. We have jurisdiction under 28 U.S.C. § 158(d), and we affirm.\nI\nOn December 26, 1985, the Halls petitioned for Chapter 11 bankruptcy and, under a federal statute, claimed a homestead exemption of “all” value in their residence. The residence had a value of $16,539 in excess of secured debt. Years later, the case was converted to Chapter 7, and the Halls amended the claim. They again claimed as exempt “all” value in the residence, but this time under a Washington statute. As of the conversion date, the residence had a value of approximately $98,000 in excess of secured debt. The trustee objected within 30 days after the Chapter 7 meeting of creditors, arguing the residence was valuable property of the estate. The bankruptcy court overruled the objection, stating the Halls had exempted the residence while in Chapter 11.\nWe independently review the bankruptcy court’s decision. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). We review findings of fact for clear error and conclusions of law de novo. Id.\nII\nThe trustee timely objected to the amended claim. Through the amendment, the Halls forfeited any federal exemption in the residence and claimed a Washington exemption subject to challenge in its entirety. 11 U.S.C. § 522(b); Bankruptcy Rule 4003(b). The trustee’s objection, made within 30 days after the Chapter 7 meeting of creditors, was timely under Rule 4003(b).\nIII\nThe trustee contends the Halls should be denied leave to amend the claim because the amendment was proposed in bad faith and was prejudicial to creditors. Absent a showing of either of these grounds, the Halls may amend the claim as a “matter of course” before the case is closed. Rule 1009(a); see In re Williamson, 804 F.2d 1355, 1358 (5th Cir.1986). In violation of Circuit Rule 28-2.5, the trustee fails to state where in the record he raised any issue of bad faith or prejudice. Instead, the trustee took the opposite position in the bankruptcy court by arguing the amendment was “of no effect” because Washington law allows the same $16,539 homestead exemption as federal law. The trustee waived any bad faith or prejudice issue, and the Halls properly amended the claim. In re Carean Group, 923 F.2d 710, 713 (9th Cir.1991).\nThe Halls exempted the residence through the amended claim. Resolving against the Halls the ambiguity created by specifying a Washington statute and claiming as exempt “all” value in the residence, the amended claim covers only the property available for exemption under Washington law. In re Hyman, 967 F.2d 1316, 1319 (9th Cir.1992). The property exempted, its value and the applicable Washington law are determined as of the Chapter 11 filing date. 11 U.S.C. §§ 348(a), 522(a)(2), (b)(2)(A); see Williamson, 804 F.2d at 1359-62. Because as of that date the value of the Halls’ interest, $16,539, was less than the exemption limit, $25,000, the Halls exempted the residence from any sale for the estate’s benefit. ROW 6.12.050, .090, .100, .140, .150, .230 (all recodified at RCW 6.13.010 — .240); In re Gitts, 116 B.R. 174, 178 (1990), aff'd. and adopted in full, 927 F.2d 1109 (1991). Appreciation in the residence’s value since the Chapter 11 filing benefits the Halls. Because the residence is no longer property of the estate, we do not need to consider the Halls’ arguments that equitable reasons es-top the trustee from selling the residence.\nAFFIRMED.", "type": "majority", "author": "BEEZER, Circuit Judge:"}], "attorneys": ["James Rigby, pro se.", "A. Stevens Quigley, Teresa C. McNally, and John Keckemet, Law Office of A. Stevens Quigley, Seattle, WA, for defendants-appellees.'"], "corrections": "", "head_matter": "In re William HALL; Eleanor Hall, Debtors. James RIGBY, Plaintiff-Appellant, v. William HALL; Eleanor Hall, Defendants-Appellees.\nNo. 91-35934.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted May 6, 1993.\nDecided July 29, 1993.\nJames Rigby, pro se.\nA. Stevens Quigley, Teresa C. McNally, and John Keckemet, Law Office of A. Stevens Quigley, Seattle, WA, for defendants-appellees.'\nBefore: SKOPIL, ALARCON and BEEZER, Circuit Judges."} | SKOPIL | ALARCON | BEEZER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 853 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,717 | UNITED STATES of America, Plaintiff-Appellee, v. Edward S. NIELSEN, Defendant-Appellant | United States v. Nielsen | 1993-07-29 | No. 92-10329 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FAIRCHILD, BEEZER and WIGGINS, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Edward S. NIELSEN, Defendant-Appellant."], "opinions": [{"text": "FAIRCHILD, Senior Circuit Judge:\nI. OVERVIEW\nEdward S. Nielsen and two others formed Mid-Pacific Airlines in 1979. Nielsen was vice-president and responsible for most financial matters, including accounting and paying transportation tax. Nielsen was convicted of willfully aiding, assisting in, procuring, counseling, and advising the presentation of Quarterly Federal Excise Returns for three quarters of 1985 that were false and fraudulent as to a material matter, in violation of 26 U.S.C. § 7206(2). In each casé, the return concerned transportation taxes, 26 U.S.C. § 4261, collected by Mid-Pacific from its customers, 26 U.S.C. § 4291: Nielsen was sentenced to consecutive terms of three years imprisonment on Count 1, three years imprisonment on Count 2, and three years probation on Count 3. On appeal, Nielsen contends that: (1) the court abused its discretion by denying his right to information in accordance with 26 U.S.C. § 6103(h)(5); (2) the district court abused its discretion during voir dire by failing to inquire properly about the weight jurors would give to IRS witnesses, and by failing to ask whether the jury knew any prospective witnesses; (3) there was insufficient evidence on which to convict him for the charged crimes; and (4) the district court abused its discretion in the manner it responded to juror questions. Facts relevant to this appeal are discussed within the context of the issues. We affirm.\nII. DISCUSSION\nA. Right To Juror Information Pursuant To 26 U.S.C. § 6103(h)(5)\nNielsen first contends that the court abused its discretion by denying his right to information in accordance with 26 U.S.C. § 6103(h)(5), which requires that in connection with certain judicial proceedings the Secretary shall respond to an inquiry of a party as to whether a prospective juror has or has not been the subject of any audit or tax investigation by the IRS. Section 6103(h)(5) further provides that the “Secretary shall limit such response to an affirmative or negative reply to such inquiry.”\nAbout five weeks before trial, Nielsen requested this information concerning the 100 names on the jury list. Twenty days before trial, the IRS district director supplied information showing that twelve of the individuals had been the subject of an audit or investigation. Just before trial the director wrote again, expanding the list to seventeen. He stated that the list was based on all available information, that the service was still searching, and that a final response could not be provided at that time.\nNielsen did not move for a continuance, but filed what he called a motion for disclosure. At the hearing, the government produced the local IRS district disclosure officer. The officer explained the difficulties in making a complete search in order to be able to say that an individual had never been the subject of an audit or investigation. He stated that 1965 “is as far back as our records could possibly go”, and that some service centers could not go back to 1965 due to the deletion of old files. Moreover, a change of name and the fact that a prospective juror may have filed joint returns, while the records reflect the other spouse’s social security number as primary, may present further difficulty. The officer explained that the non-listing of 83 names meant that the service had been unable to recover information that these persons were, in fact, examined.He summarized that “[i]t is not likely, but it is possible” that continued searching would produce more information.\nThe district judge found that the statutory requirement had been substantially met, but stated his intention to ask each prospective juror whether the juror had been audited. Twenty-six persons were examined before the jury was selected. The judge did ask 24 persons on the jury panel, individually, whether they had been subject to an audit by the IRS, • but failed to ' ask the other ■ two. Those two served on the jury and had not been on the IRS list of persons who had been previously , audited or investigated. The omission was clearly inadvertent, and Nielsen did not call it to the court’s attention. Four of the 26 were on the IRS list of persons audited, but were struck from the jury by either the government or the defendant. One person who was not on the IRS list answered that he had been audited on the mainland “back in the ’60s”. He was struck by the defendant.\nIf substantial compliance was sufficient to satisfy § 6103(h)(5), we would readily conclude that the district court’s finding of substantial compliance is not clearly erroneous. Nielsen argues, however, that the statute gives him a right to a definitive answer from the IRS as to every individual on the list of 100.\nWe have addressed compliance with § 6103(h)(5) before. In United States v. Hashimoto, 878 F.2d 1126 (9th Cir.1989), this court reversed a tax conviction, holding that the district court’s refusal to furnish the defendant with a list of prospective jurors in sufficient time to obtain a response was a violation of defendant’s § 6103(h)(5) rights. In United States v. Sinigaglio, 942 F.2d 581 (9th Cir.1991), defense counsel received a chart on the morning of trial which indicated the jurors who had been audited during a six year period. This court held that the six year limitation was arbitrary and failed to comply substantially with § 6103(h)(5). Although this court rejected a per se rule of reversal, it concluded that the voir dire in that case did not negate the risk of prejudice caused by the incomplete disclosures, and reversed. The district court made a timely request under § 6103(h)(5) in United States v. Hicks, 947 F.2d 1356 (9th Cir.1991), but limited the scope of the request to six years. This court found the limitation improper, but affirmed because Hicks could not demonstrate that he was prejudiced in any way. In United States v. Hardy, 941 F.2d 893 (9th Cir.1991), the district court inquired on voir dire as to whether any juror had been audited or investigated ,by the IRS. This court found that the judge’s questions on voir dire rendered harmless- the failure to supply the § 6103(h)(5) information in time for jury selection.\nIn the case before us, the district court did not refuse timely release of the jury list CHashimoto), and the § 6103(h)(5) disclosure was not arbitrarily limited in scope (Sinigag-lio and Hicks). The IRS made a substantial search, supplying 12, and later 17, names (out of 100) of those persons who had been the subject of an audit or investigation. The judge asked each prospective juror whether that juror had been audited, except for the two individuals that he had overlooked. However, Nielsen did not alert the judge to the oversight. Having failed to do so, defendant cannot, in our opinion, be entitled to claim that he was prejudiced by the omissions.\nThe facts are more than sufficient to support a finding of substantial compliance. Indeed we are satisfied that the IRS made every effort which could reasonably be expected of it. Nielsen’s over-strict reading of § 6103(h)(5) would require delay of every tax trial until the IRS is able to say with certainty whether each person on the jury list has or has not been audited or investigated. Some prosecutions might have to be abandoned. The IRS would have to pursue the search without regard to the resources it would need to expend. In our view Congress must not have intended so extreme a requirement. See United States v. Spine, 945 F.2d 143, 147-48 (6th Cir.1991).\nWe conclude that where, as here, there has been substantial disclosure by the IRS of persons audited and investigated, the trial court has supplemented the information by voir dire, and there is no palpable suggestion of either party being prejudiced, § 6103(h)(5) was not violated.\nB. Voir Dire\nNielsen argues that the district court abused its discretion during voir dire by failing to inquire properly about the weight jurors would give to testimony of IRS witnesses and whether jurors knew prospective witnesses. In conducting voir dire, the trial judge has wide latitude and any failure to ask specific questions is reversed only for an abuse of discretion. United States v. Dischner, 974 F.2d 1502, 1522 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993); United States v. Powell, 932 F.2d 1337, 1340 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 256, 116 L.Ed.2d 210 (1991); United States v. Click, 807 F.2d 847, 850 (9th Cir.1987).\nPrior to trial, the district court conducted voir dire on its own, as is within its discretion. United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986). The judge had in advance directed all potential jurors to inform him if they knew any witness. He instructed the jurors to listen to the names of the witnesses “because when I talk to each one of you during what we call the voir dire ... I want you to tell me whether or not you know any of these people, or whether the names that they’ve read off ring any bells with you[.]” Subsequently, the judge again asked the potential jurors to relate whether they knew any witnesses that were announced. He additionally asked, “would [you] ... give [a revenue] agent any more credibility or believability than any other person, or would you just judge him the same as any witness”.\nThe court did not abuse its discretion by not asking these questions individually of each juror, and Nielsen does not allege any facts suggesting that any member of the venire knew any witness or favored the testimony by the IRS. In any light, “[f]ailure to ask jury venire members if they would be unduly influenced by the testimony of law enforcement officers does not necessarily constitute reversible error.” United States v. Payne, 944 F.2d 1458, 1475 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1598, 118 L.Ed.2d 313 (1992) (citing Powell, 932 F.2d at 1340; United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir.1979)). Factors relevant to this inquiry include the importance of the government agent’s testimony to the government’s case as a whole, the extent to which the credibility of the government agent witness is put into issue, the extent to which the testimony of the agent is corroborated by non-agent witnesses, and the extent to which the question concerning the venire-person’s attitude toward government agents is covered in other voir dire questions. Powell, 932 F.2d at 1340; Payne, 944 F.2d at 1475.\nThe government asserts that this issue cannot be raised on appeal because Nielsen failed to object to the court’s questions at trial. Nielsen contends there was plain error. We disagree. Here, a substantial portion of the government’s case came from those witnesses not connected with law enforcement, and the only IRS witness testified generally about reporting requirements.\nC. Sufficiency Of The Evidence\n1. Proof That Excise Tax Returns Reported Amounts Substantially Lower Than the Actual Tax Liability\nNielsen made motions for judgment of acquittal, founded on insufficiency of the evidence, and he argues here that it was error to deny them. He contends that there was no evidence to establish the amounts of tax liability which should have been reported, and thus no proof that the return was false as to any material matter.\nFor the tax years at issue, the tax liability which the airline was required to report and pay over was eight percent of the amount paid for air transportation within the United States. 26 U.S.C. § 4261(a). The tax is paid by the person who pays for transportation, 26 U.S.C. § 4261(d), and the person receiving the payment for service is to “collect” the tax. 26 U.S.C. § 4291. Thus when the airline receives payment for the transportation, it also collects the tax and becomes liable to the government for this amount. Requirements for reporting liability, paying over to the government, and making deposits are found in 26 C.F.R. § 49.6011(a)-l(ff). Obviously there will be situations where refunds will be made in lieu of providing transportation, but then credit may be taken on subsequent returns. 26 U.S.C. § 6415.\nFor proof of Mid-Pacific’s liability for air transportation in 1985, the government relied on an account in the company’s own books. Richard Gustafson, manager of budgets and reports, testified that the account was part of the company’s business records, made and kept in the ordinary course of business, with entries made at or near the time of the transactions reflected by a person with knowledge of the transaction. As such, they were admissible pursuant to Federal Rule of Evidence 803(6).\nNielsen’s argument is not really directed at the accuracy of the account as representing eight percent of the payments received in each quarter for tickets, together with coupons redeemable for tickets. As a result of an earlier audit, Mid-Pacific had changed its bookkeeping so as to reflect all these payments as of the time of receipt. His contention appears to be based on his own theory of the law, developed in his defense testimony, that the company did not become liable for the tax, or need to report it, until the transportation was furnished. As we understand him, he contends that the amount which should have been reported in each quarter would be the amount of tax on the value of all transportation furnished during that quarter, and that the government’s proof was insufficient unless structured on that basis.\nWe are not persuaded. The statutes clearly contemplate that the company’s liability arises at the time it receives payment. Section 6415, providing for credits for refunds on subsequent returns, is consistent with that reading. The regulations contemplate the selling of coupon books in advance of travel, such as those sold by Mid-Pacific in this case. Section 49.4261-7 provides: “The tax applies to the amounts paid for script books. The tax shall be collected from the purchaser at the time the script book is sold, and not when and as the script is used for transportation.” 26 C.F.R. § 49.4261-7.\nWe conclude that there was sufficient evidence of the company’s liability in each of the quarters at issue. At trial, the government showed that the returns understated the liability by $260,000, $316,000 and $283,000, respectively. The government need not prove the exact amounts that should have been reported on the tax returns. United States v. Johnson, 319 U.S. 503, 517, 63 S.Ct. 1233, 1240, 87 L.Ed. 1546 (1943); United States v. Stone, 770 F.2d 842, 845 (9th Cir.1985) (“it is well settled that the government is not obliged to prove the exact amount of a deficiency so long as the taxpayer’s understatement of income is substantial”). Here, the return required a report of liability for tax, and the amount not reported was substantial.\n2. Proof That Nielsen Knew or Believed That the Reported Tax Liability Was False and Fraudulent\nNielsen also asserts that there was no evidence that he knew the reports of tax liability were false and fraudulent. To the contrary, there was ample evidence that Nielsen directed the concealment and underreporting of the company’s tax liability. Gustafson, who made out and signed the returns, testified that during the first, third, and fourth quarters of 1985, Nielsen told him to make the semi-monthly checks to the government at arbitrary amounts substantially lower than the company’s liability. When it was time to make the returns for those quarters, Nielsen told him to report as liability only the amounts which the company had paid. The total amount underpaid for the year was $750,352.90. Nielsen told Gustafson that the company simply could not afford full payments, and that the only way the government would ever find out is if it did an audit. In addition, Gustafson testified that he prepared a memo stating that Mid-Pacific had been underreporting the excise taxes, and that Nielsen directed him to take the memo out of the tax file and not to write any future memos on that subject. According to Gustafson, Nielsen further stated that if the memo was ever discovered by the IRS, it would show that the underpayment was not unintentional. Gustafson’s testimony on this point was corroborated by other witnesses.\nThere was additional evidence that the company was short of cash. Underpaying the government and concealing the shortfall by underreporting the liability allowed Nielsen to meet other obligations. Nielsen thought of the government as a creditor who could be misled by false reporting and believed that the underpayment could not be discovered unless the IRS performed an audit. Clearly, the government brought forth sufficient evidence of Nielsen’s knowledge and intent that the returns were false.\nNielsen testified in defense that he believed the tax law did not require the company to pay the tax until the transportation was furnished. Although he stated that he “carried the total amount on the books,” he paid the government what he thought was due, according to his theory, and told Gustafson to report the amounts paid. He gave no figures as to how he arrived at the amounts he paid, but stated that he worked with “estimates”. In substance, he was claiming that he did not believe the returns were false or fraudulent, based on his view of the law. The jury did not accept his explanation, but apparently believed Gustafson and corroborating witnesses.\nD. Whether Court Abused Its Discretion By Responding To Juror’s Questions\nDuring deliberations, the jury sent a note to the judge, reading: “We would like a copy of the law prevalent to this case — Air Transportation law. When is the tax due to the IRS? Exactly.” In reply to the jurors’ question, the court wrote that “[t]he ‘transportation’ tax is due when it is paid by the customer and must be reported and paid during the quarter, and reported quarterly on the Form 720 by the airline. If it is subsequently determined that an airline has overpaid the excise tax in a previous quarter, it can take a credit on a future Excise Tax Return (Form 720) or request a refund.” The court also reminded the jury, “it is for you to determine whether the returns were false and whether the defendant believed they were false and whether the defendant willfully aided, assisted, or advised in the preparation of the Excise Tax Returns.”\nThe answer correctly stated the substance of the statutes and regulations in material respects. True, the jury’s question was “When is the tax due to the IRS”, ie., when is the airline required to pay over the tax it had collected. The judge’s answer used the word “due” in a different context, i.e., when the airline collects the tax and becomes liable to the government for it. This distinction is irrelevant to this case. The issue before the jury was whether the liability for tax had been fraudulently reported. The defendant was not charged with causing insufficient payment when payment was due, although it was proved that he did so. We see no prejudice to Nielsen in any discrepancy between the jury’s and the judge’s use of the word “due”. We additionally find no merit in any of Nielsen’s arguments concerning the judge’s answers.\nE. Ineffective Assistance Of Counsel\nAnd finally, Nielsen attacks the effectiveness of his trial counsel. Nielsen identifies three alleged errors by counsel: (1) failure to object to the way that voir dire was conducted; (2) failing to object to the absence of (failing to request) an instruction explaining the duty of Mid-Pacific in collecting, reporting and paying transportation taxes; and (3) failing to address a 1982 memo of an accountant which would support defendant’s theory of that duty.\nAs to the first contention, there was no abuse of discretion in the conduct of the voir dire, and counsel’s failure to object was neither below the range of professional competence nor prejudicial. See Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir.1992). As to the second contention, Nielsen is correct in that there was no instruction explaining the duty of an airline with respect to these taxes. Neither the government nor the defense offered such an instruction. Perhaps the jury would not have asked its question during deliberations had such an instruction been given. Nonetheless, we cannot say that the failure of defense counsel to formulate and request an instruction in these circumstances was below the range of professional competence, nor prejudicial. We reach the same conclusion with respect to the November 26, 1982 memo. The memo discussed Mid-Pacific’s old method of reporting and paying its transportation tax liability “for the actual semi-monthly period in which it provided air transportation,” and concluded that the payments were timely under the regulations. Defense counsel placed the memo in evidence and examined defendant concerning its content. Nielsen now indicates that his counsel should have placed more emphasis on this memo. Counsel may well not have placed greater reliance on it because at about the same time as the memo, the IRS audited Mid-Pacific, and claimed that the method used at that time resulted in a deficiency of $80,000. Mid-Pacific paid the deficit and changed its method so as to pay the tax when collected.\nAccordingly, based on the foregoing discussion, the judgment of the district court is AFFIRMED.\n. Section 4261 imposes a tax upon the amount paid for taxable transportation (8% in 1985). 26 U.S.C. § 4261(a). Except as provided in section 4263(a), the taxes imposed by this section are to be paid by the person making the payment subject to the tax. 26 U.S.C. § 4261(d).\n. Section 4291 provides that \"[ejxcept as otherwise provided in section 4263(a), every person receiving, any payment for facilities or services on which a tax is imposed upon the payor thereof under this chapter shall collect the amount of the tax from the person making such payment.\" 26 U.S.C. § 4291. The filing of quarterly reports of liability for the tax is governed by 26 C.F.R. §§ 49.6011(a)-! and 49.6071(a)-!.", "type": "majority", "author": "FAIRCHILD, Senior Circuit Judge:"}], "attorneys": ["Edward S. Nielsen, pro se.", "Daniel Bent and Omer G. Poirier, Asst. U.S. Attys., Honolulu, HI, for the plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Edward S. NIELSEN, Defendant-Appellant.\nNo. 92-10329.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted June 14, 1993 .\nDecided July 29, 1993.\nEdward S. Nielsen, pro se.\nDaniel Bent and Omer G. Poirier, Asst. U.S. Attys., Honolulu, HI, for the plaintiff-appellee.\nBefore: FAIRCHILD, BEEZER and WIGGINS, Circuit Judges.\nThe panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4.\nHonorable Thomas E. Fairchild, Senior Circuit Judge, Seventh Circuit, sitting by designation."} | FAIRCHILD | BEEZER | WIGGINS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 855 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,744 | GENERAL MOTORS CORPORATION, a Delaware corporation, Plaintiff-Appellee, v. Gary D. DOUPNIK, Jr., Defendant-Appellant | General Motors Corp. v. Doupnik | 1993-07-29 | No. 92-15166 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: SCHROEDER, PREGERSON, and D.W. NELSON, Circuit Judges."], "parties": ["GENERAL MOTORS CORPORATION, a Delaware corporation, Plaintiff-Appellee, v. Gary D. DOUPNIK, Jr., Defendant-Appellant."], "opinions": [{"text": "PREGERSON, Circuit Judge:\nGary Doupnik appeals the district court’s grant of summary judgment in favor of General Motors in its diversity action for equitable indemnity under California law. The court ordered indemnity from Gary Doupnik for 80 percent of a $1.6 million loss of consortium judgment that was rendered in favor of Sally Doupnik, Gary’s spouse, in an underlying state action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.\nBACKGROUND\nOn January 8, 1983, Gary Doupnik and a friend were returning from a wedding reception when Doupnik lost control of the General Motors car he was driving. Doupnik’s ear left the road, went down an embankment, rolled over, and came to a stop upside down. The evidence indicated that Doupnik had been drinking prior to the accident. Defective welds in a pillar post of the car caused the body to collapse on the driver’s side. Doupnik was rendered a quadriplegic.\nGary Doupnik filed suit in state court against General Motors, alleging that the defective roof welds caused his injuries. The jury found that Doupnik had sustained injuries in the amount of $6,668,212. The jury also found that Doupnik was liable for 80 percent of his injuries and that General Motors was only liable for the remaining 20 percent. In addition, the jury determined that Doupnik’s wife, Sally Doupnik, had sustained loss of consortium damages in the amount of $1.6 million as a result of her husband’s injuries.\nThereafter, the trial court entered judgment against General Motors and awarded Gary Doupnik $1,333,642 (20 percent of $6,668,212). On motion by General Motors, the court reduced Sally Doupnik’s award to $1 million on the grounds that $1.6 million was excessive. The court refused, however, to reduce her award by 80 percent to reflect her husband’s proportionate share of fault. Rather, the court held that Sally Doupnik’s loss of consortium claim was separate and distinct from her spouse’s claim. Hence, her spouse’s share of fault would not reduce her award for her separate injury.\nBoth General Motors and the Doupniks appealed to the California Court of Appeal. The court affirmed Gary Doupnik’s judgment, reinstated Sally Doupnik’s judgment to its original $1.6 million, and affirmed the judgment as modified. The California Supreme Court denied review. Thereafter, General Motors paid 20 percent of Gary Doupnik’s damages and 100 percent of Sally Doupnik’s $1.6 million judgment, plus interest and costs.\nGeneral Motors then brought a diversity action in federal district court seeking equitable indemnity from Gary Doupnik for 80 percent of Sally Doupnik’s $1.6 million loss of consortium award. The California Supreme Court provides no precedent that specifically permits or prohibits equitable indemnity from a spouse of an injured party where the injury sustained is loss of consortium. Nonetheless, the district court construed California law to permit the action. Accordingly, the district court granted summary judgment in favor of General Motors. In so ruling, the court held that Gary Doupnik, as a joint tortfeasor who was 80 percent at fault for causing his quadriplegic condition, must indemnify General Motors for 80 percent of Sally Doupnik’s $1.6 million loss of consortium award. In addition, the court held that Gary Doupnik must also pay interest on such indemnity amount “from the date of entry of judgment against General Motors,” i.e., the date of the jury verdict.\nOn appeal, Gary Doupnik contends that: (1) the district court erred in granting General Motors’ motion for summary judgment because: (a) the state court held, as a matter of fact and law, that General Motors was responsible for 100 percent of Sally Doup-nik’s loss of consortium and therefore General Motors is collaterally estopped from “relit-igating” this issue through this indemnity action; and (b) the court premised such judgment on an erroneous interpretation of California law regarding equitable indemnity; and (2) if, arguendo, General Motors is entitled to indemnity from Gary Doupnik, then: (a) the district court erred in ordering indemnity for 80 percent of the $1.6 million judgment because General Motors waived any right to recover more than 80 percent of $1 million plus interest by appealing the state trial court’s judgment rather than making immediate payment; and (b) the district court erred in concluding that Gary Doupnik must pay interest on 80 percent of the $1.6 million judgment from the date of the jury’s verdict, rather than from the date the judgment was made certain by the issuance of a remittitur by the state appellate court.\nANALYSIS\nWe review de novo the district court’s grant of summary judgment and interpretation of California state law. State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1417, 1418 (9th Cir.1991). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.; Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).\nGary Doupnik concedes that there are no genuine issues of material fact in this case. Rather, he contends that summary judgment was improper because the court based its decision on an incorrect application of relevant California law. Hence, we must review the underlying state law regarding collateral estoppel and equitable indemnity.\nCalifornia law on collateral estoppel prohibits parties to an action from relitigating an issue in a later action when: “(1) the issue decided in the prior adjudication is identical to the issue presented in the second action; (2) there was a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication.” Hirst v. State of California, 770 F.2d 776, 778 (9th Cir.1985).\nHere, the jury determined that Gary Doupnik and General Motors were concurrent tortfeasors with respect to Gary’s quadriplegic condition. California law in effect at the time of Sally Doupnik’s injury provided that concurrent tortfeasors were jointly and severally liable for a plaintiffs injuries. American Motorcycle Ass’n v. Superior Court, 20 Cal.3d 578, 590, 146 Cal.Rptr. 182, 189, 578 P.2d 899, 906 (1978). Joint and several liability requires that a tortfeasor whose negligence was a proximate cause of an indivisible injury remain liable for the total amount of damages, regardless of comparative fault. Id., 20 Cal.3d at 590, 146 Cal.Rptr. at 189-90, 578 P.2d at 906-07.\nAlthough the state trial court reduced Gary Doupnik’s damage award to reflect his 80 percent comparative fault, the court declined to impute Gary’s negligence to his wife. Hence, the court did not similarly reduce Sally Doupnik’s loss of consortium award by 80 percent. Because General Motors was deemed to be a concurrent tortfea-sor, it remained liable for 100 percent of the loss of consortium award. At no time, however, did the court address the issue of potential indemnification from Gary Doupnik for 80 percent of Sally Doupnik’s damages. Hence, General Motors is not collaterally estopped from bringing the present equitable indemnity action against Gary Doupnik. See Hirst, 770 F.2d at 778.\nGary Doupnik next contends that California law prohibits General Motors’ action for equitable indemnity because he is not a concurrent tortfeasor with respect to his wife’s loss of consortium injury. The California Supreme Court does not provide specific guidance on the issue whether a third-party tortfeasor such as General Motors may seek indemnity from a spouse who was partially at fault in causing his own physical injuries that in turn caused his spouse’s loss of consortium injuries. Where the California Supreme Court provides no determinative case law on an issue, we must use our best judgment to ascertain how that Court would decide such issue.\nThe California courts adopted the equitable indemnity rule to ensure that “liability for an indivisible injury caused by concurrent tortfeasors [would] be borne by each individual tortfeasor ‘in direct proportion to [his] respective fault...'\" American Motorcycle, 20 Cal.3d at 598, 146 Cal.Rptr. at 195, 578 P.2d at 912 (citation omitted). The equitable indemnity rule enables a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis. Id., 20 Cal.3d at 599, 146 Cal.Rptr. at 195, 578 P.2d at 912.\nBut California law permits a concurrent tortfeasor to obtain equitable indemnity only from another concurrent tortfeasor. See, e.g., Munoz v. Davis, 141 Cal.App.3d 420, 425, 190 Cal.Rptr. 400, 403 (1983) (“[T]here can be no indemnity without liability.... [U]nless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity.”); GEM Developers v. Hallcraft Homes, 213 Cal.App.3d 419, 430, 261 Cal.Rptr. 626, 632 (1989). Indeed, a right to indemnify exists only if the injured party (Sally Doupnik) has a legal cause of action against both the indemnitor (General Motors) and the indemnitee (Gary Doupnik). See, e.g., New Hampshire Ins. Co. v. Sauer, 83 Cal.App.3d 454, 459, 147 Cal.Rptr. 879, 882 (1978) (the indemnity “doctrine presupposes that ‘each of two persons is made responsible by law to an injured party’ ” (citation omitted)).\nAs we have stated, General Motors seeks equitable indemnity from Gary Doupnik for 80 percent of Sally Doupnik’s loss of consortium damages. Accordingly, for General Motors to sustain its claim for equitable indemnity, Sally Doupnik must have a legal cause of action against both General Motors and Gary Doupnik. See Munoz, 141 Cal.App.3d at 425, 190 Cal.Rptr. at 403.\nAt trial in the underlying state action, the jury determined that Gary Doupnik was 80 percent at fault for causing his quadriplegic condition. Gary Doupnik’s quadriplegic condition, in turn, caused Sally Doup-nik’s loss of consortium injury. It does not follow, however, that Gary Doupnik is liable to Sally Doupnik for her loss of consortium injury. Rather, the California Supreme Court has recognized a loss of consortium cause of action only when brought against a third-party tortfeasor, not against the spouse who suffered the physical injuries that caused the loss of consortium injury. Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 782, 525 P.2d 669 (1974); Anderson v. Northrop Corp., 203 Cal. App.3d 772, 780, 250 Cal.Rptr. 189, 194 (1988); 6 Bernard E. Witkin, Summary of Cal. Law, § 1417 (9th ed. 1988). Indeed, a spouse does not have a legally cognizable duty of care to the other spouse regarding consortium. See id.\nAccordingly, Gary Doupnik did not owe his wife a duty of care with respect to the consortium that he provided to her. As a result, he is not a tortfeasor with respect to his wife’s loss of consortium despite his own negligence in contributing to his quadriplegic condition. Therefore, Sally Doupnik does not have a legal cause of action against him for her loss of consortium injury.\nHence, we conclude that, although collateral estoppel does not preclude General Motors’ claim, California law does not permit General Motors to obtain equitable indemnity from Gary Doupnik for 80 percent of Sally Doupnik’s loss of consortium award. Rather, the district court based its decision to grant summary judgment in favor of General Motors on an erroneous application of state law.\nBecause we find that General Motors cannot obtain equitable indemnity from Gary Doupnik for Sally Doupnik’s loss of consortium injury, we need not address the remaining issues raised by Gary Doupnik on this appeal. See supra.\nAccordingly, WE REVERSE.\n. In June 1986, California voters approved Proposition 51, an initiative measure that rendered moot the issue of spousal indemnity for loss of consortium damages for injuries sustained after that date. Specifically, Proposition 51 provides that a defendant in any action for personal injury shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault. California Civil Code § 1431.2(a) (West Supp.1993). Hence, Proposition 51 abolishes the need for equitable indemnity among multiple tortfeasors. The California Supreme Court has held, however, that Proposition 51 is not retroactive and therefore does not apply to causes of action accrued before the measure’s effective date. Evangelatos v. Superior Court, 44 Cal.3d 1188, 1193, 246 Cal.Rptr. 629, 631, 753 P.2d 585, 587-88 (1988). Hence, because Sally Doup-nik sustained her loss of consortium injury in 1983, we must apply the relevant substantive law in effect before passage of Proposition 51.\n. The appellant does not contend that the indemnification claim should have been raised in the state proceedings and is therefore barred by principlcs of res judicata or claim preclusion. We do not consider that question.\n. A loss of consortium injury is comprised of the \"physical, psychological and emotional pain and anguish” experienced by a spouse when the other spouse \"is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life.” Lands v. Condon, 95 Cal.App.3d 152, 157, 157 Cal.Rptr. 22, 24 (1979).\n. Lower state court decisions may provide guidance as to the direction of the State Supreme Court’s probable decisionmaking. C.I.R. v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). Accord Scandinavian Airlines Sys. v. United Aircraft Corp., 601 F.2d 425, 427 (9th Cir.1979). We are not bound, however, to follow such decisions. Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1782.\n. The district court based its decision to permit General Motors to obtain equitable indemnity from Gary Doupnik on two California Court of Appeal decisions, Ambriz v. Kress, 148 Cal.App.3d 963, 196 Cal.Rptr. 417 (1984), and Lan-tis, 95 Cal.App.3d 152, 157 Cal.Rptr. 22. Both Ambriz and Lantis held that a third-party tortfea-sor may obtain equitable indemnity from a spouse whose negligence caused personal injuries, which in turn caused the other spouse to suffer a loss of consortium. Ambriz, 148 Cal.App.3d at 971, 196 Cal.Rptr. at 422; Lantis, 95 Cal.App.3d at 159, 157 Cal.Rptr. at 26. Ambriz, in particular, involved facts very similar to the case at hand. Neither case, however, even addressed the lack of logical underpinnings in such a holding, i.e., the fact that spouses cannot be held liable to each other for causing a loss of consortium to each other because the California Supreme Court has only recognized a spouse’s right to bring a loss of consortium action against third-party tortfeasors. Id. Rather, the Courts of Appeal in the two cases simply assumed that the spouse from whom indemnity was sought could be considered a joint tortfeasor with respect to the other spouse’s loss of consortium injury. Id. As set forth above, such a holding contradicts settled principles of California law that permit equitable indemnity among joint tortfeasors. See American Motorcycle, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899; Evangelatos, 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585. Hence, we decline to adopt the Ambriz and Lands holdings permitting equitable indemnity from a spouse for the other spouse’s loss of consortium injury.", "type": "majority", "author": "PREGERSON, Circuit Judge:"}], "attorneys": ["David S. Worthington, Hardy, Erich, Brown & Wilson, Sacramento, CA, for appel-lee, General Motors Corp.", "Ignatius John Melito, Siff & Rosen, New York City (argued), Gerald Z. Marer and John F. Schuck, Marer, Marer & Sehuck, Palo Alto, CA, for appellant, Gary Doupnik, Jr."], "corrections": "", "head_matter": "GENERAL MOTORS CORPORATION, a Delaware corporation, Plaintiff-Appellee, v. Gary D. DOUPNIK, Jr., Defendant-Appellant.\nNo. 92-15166.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted April 14, 1993.\nDecided July 29, 1993.\nDavid S. Worthington, Hardy, Erich, Brown & Wilson, Sacramento, CA, for appel-lee, General Motors Corp.\nIgnatius John Melito, Siff & Rosen, New York City (argued), Gerald Z. Marer and John F. Schuck, Marer, Marer & Sehuck, Palo Alto, CA, for appellant, Gary Doupnik, Jr.\nBefore: SCHROEDER, PREGERSON, and D.W. NELSON, Circuit Judges."} | SCHROEDER | PREGERSON | D.W. NELSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 862 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,780 | UNITED STATES of America, Plaintiff-Appellee, v. Mary FLOYD, Defendant-Appellant | United States v. Floyd | 1993-07-29 | No. 92-50270 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Mary FLOYD, Defendant-Appellant."], "opinions": [{"text": "SNEED, Circuit Judge:\nAppellant Mary Floyd challenges the district court’s denial of her request for specific performance of her plea agreement which required the government to move for a downward departure if she complied with the agreement. We vacate her sentence and remand for further proceedings.\nI.\nFACTS AND PRIOR PROCEEDINGS\nIn December of 1989, undercover government agents met with Mary Floyd and her companion, Anthony Myers, to conduct negotiations for the sale of ephedrine, a precursor ingredient for methamphetamine. Floyd and Myers were acting as brokers for a customer that manufactured methamphetamine and were interested in purchasing ephedrine over a one or two year period. At this meeting, Floyd and Myers provided the agents with a twelve gram sample of methamphetamine produced by their customer. The agents reciprocally displayed a barrel of the ephedrine, which Myers taste-tested. The meeting ended with Floyd and Myers agreeing to contact the agents with information about the quantity and price desired by their customer.\nOn December 19, 1989, the undercover officers and their informant met with Floyd and Myers, as well as the customer and his aide, to consummate the sale. After the customer displayed $270,000 in cash, Myers, the customer, and an agent proceeded to an area where 825 pounds of ephedrine was stored. Floyd and the customer’s aide remained at the meeting place. The parties loaded the ephedrine onto a vehicle at the storage area, and then the government agents arrested all the defendants, including Floyd and the customer’s aide at the meeting place.\nOn January 3, 1990, the government filed an indictment charging Floyd and Myers with violating 21 U.S.C. §§ 846 and 841(a)(1), conspiracy to manufacture methamphetamine with intent to distribute, and 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, possession with intent to distribute approximately twelve grams of methamphetamine and aiding and abetting.\nIn October of 1990, Floyd and Myers pled guilty to the §§ 846 and 841(a)(1) count pursuant to a written plea agreement. The district court accepted the guilty pleas and the plea agreement after following the strictures of Rule 11 of the Federal Rules of Criminal Procedure. In the plea agreement, Floyd agreed to submit to interviews and testify fully and truthfully concerning her case and any knowledge she had of narcotics trafficking. She also agreed to commit no further crimes. If she complied with the agreement’s terms, the government agreed to move for a downward departure.\nAfter her release from custody, Floyd supplied the government with the names of approximately twenty potential drug trafficking suspects. None of these individuals were arrested. Floyd allegedly attempted to set up various undercover drug busts for the government as well. No arrests came from these activities either.\nOn April 15,1991, Floyd and Myers signed an acknowledgment which stated that no results had been achieved from the information they had provided and that it was their responsibility to use their best efforts to provide substantial assistance to the government.\nMyers’ bail was revoked after his brother told the government that Myers was planning to leave the country. Floyd asked that Myers be released to finish an undercover deal they were working on, and then she disappeared. She did not appear for her July 1, 1991 sentencing hearing, and a bench warrant was issued for her arrest. Floyd was not heard from again until her arrest on November 11, 1991.\nConcluding that she had not fulfilled her obligations, the government did not move for a downward departure. Floyd disagreed and asked the court for specific performance of the plea agreement. In construing the plea agreement, the court determined that it was not integrated and that Floyd had agreed to “cooperate” with the government. The court concluded that Floyd had not fulfilled her obligation to “cooperate” under the plea agreement, did not depart downward, and sentenced her to 235 months.\nII.\nJURISDICTION AND STANDARDS OF REVIEW\nThe district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. The district court’s interpretation of a plea agreement is a finding of fact and is reviewed for clear error, United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986), but its application of the legal principles is a question of law reviewed de novo, L.K. Comstock & Co. v. United Eng’r & Constructors Inc., 880 F.2d 219, 221 (9th Cir.1989).\nIII.\nDISCUSSION\nThis appeal concerns Mary Floyd’s obligations under the plea agreement she entered into with the government. Floyd claims she complied with the plea agreement and the government breached it by not moving for a downward departure. The government contends that Floyd did not comply with the agreement and was therefore sentenced properly.\nTo fix Floyd’s obligation, a court must determine what the parties reasonably understood to be the terms of the agreement. Read, 778 F.2d at 1441. A plea agreement is contractual in nature and is subject to contract law standards. United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979).\nThe district court found that Floyd had agreed to “cooperate” in exchange for the motion for downward departure and that she had failed to maintain her end of the bargain. The court arrived at this conclusion by finding that the agreement was not integrated. That is, the court found that the parties did not intend the agreement to be the sole source of its meaning. Restatement (Second) of Contracts § 209 (1979) (hereafter Restatement). Therefore, under the parol evidence rule, extrinsic evidence was admissible to show the parties’ true intent.\nThe district court erred in finding the original plea agreement not integrated. At the time it was signed, it clearly purported to be a complete and final embodiment of the agreement. See Restatement § 210. The first paragraph of the plea agreement clearly states that the agreement “sets forth the full and complete plea agreement between the parties.” The last paragraph says that no additional promises, agreements, representations, or conditions were entered into with respect to Floyd’s criminal liability. The court, to the extent it looked to prior or contemporaneous negotiations or agreements, violated the parol evidence rule when it incorporated “cooperation,” an inconsistent and additional term, into the completely integrated plea agreement. Restatement §§ 216, 216. The terms of the original plea agreement did not require Floyd to provide substantial assistance to the government.\nThe parol evidence rule does not preclude subsequent modifications of completely integrated agreements, however. See Shatto v. Evans, 728 F.2d 1224, 1227 n. 1 (9th Cir.1984). It appears that the district court looked to the acknowledgment’s “substantial assistance” language in arriving at its “cooperation” interpretation of Floyd’s obligation under the agreement. The court basically treated the acknowledgment as a modification of the original plea agreement.\nBut Federal Rule of Criminal Procedure 11 must be observed when dealing with plea agreements. A plea agreement, and therefore any modification of a plea agreement, must be accepted by the court before it is binding. United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1613, 123 L.Ed.2d 174 (1993). Rule 11 requires the district judge, in open court, to determine that the agreement is voluntary and not the result of threats or of promises apart from the plea agreement. Fed.R.Crim.P. 11(d). The judge can either accept, reject, or defer a decision concerning the plea in his or her discretion. Fed.R.Crim.P. 11(e)(2). “[S]ub-division (e) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards.” Fed.R.Crim.P. 11 adv. comm, notes (1974), reprinted in 18 U.S.C.App. (1988).\nAlthough the parties might have intended to modify the plea agreement with the acknowledgment and bind Floyd to “cooperation” or “substantial assistance,” the district judge never held a Rule 11 hearing to determine whether the acknowledgment was a proper modification of the plea agreement. Without such a hearing, Floyd was deprived of the safeguards Rule 11 was enacted to impose. We vacate Floyd’s sentence and instruct the district court to hold a Rule 11 hearing to determine whether the acknowledgment was a valid modification of the plea agreement. Once this determination is made, the court should make a factual determination whether each party has complied with the then settled terms of the plea agreement and sentence accordingly.\nVACATED AND REMANDED.\n. The plea agreement, in relevant parts, said:\nIT IS HEREBY STIPULATED and agreed, by and between the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, William Braniff, United States Attorney, and Amalia L. Meza, Assistant United States Attorney, and the defendant, Mary Floyd through her attorney Ron MacGregor, Esq. that this document, which contains the following terms and conditions, sets forth the full and complete plea agreement between the parties:\n1. The United States will accept a guilty plea from the defendant to count one of the Indictment charging defendant with violating Title 21, United States Code, Section 841(a)(1) and 846, namely, Conspiracy to Manufacture Methamphetamine With Intent to Distribute.\n8. The defendant agrees that, if compelled to do so, she will, in any proceeding, testify fully and truthfully regarding (a) her knowledge of and/or participation in the acts and events constituting the basis for the indictment in this case and; (b) her knowledge of an[d]/or participation in criminal activity involving the trafficking of narcotics. Further, the defendant will submit to interviews with agents of the United States and will truthfully disclose to them information regarding narcotics trafficking of which she knows.\n9. If defendant abides by the provisions of this agreement, the Government will recommend a downward departure from the sentencing guidelines and the mandatory minimum sentence.\n11. The United States will inform the sentencing judge and the probation department of: (1) this plea agreement; (2) the nature and extent of defendant's activities in this case; (3) the full nature and extent of defendant's cooperation with the government and the date when such cooperation commenced; and (4) all information in the possession of the government which is relevant to sentencing.\n14. The defendant must at all times give complete, truthful, and accurate information and testimony. A further condition of this agreement is that the defendant must not commit any further crimes. Should it be established that she has intentionally provided materially false, incomplete, or misleading testimony or information, or has otherwise violated any provision of this plea agreement, this plea agreement shall be null and void, and the defendant shall thereafter be subject to prosecution for any federal criminal violation of which the United States Government has knowledge, including but not limited to perjury and obstruction of justice. Any such prosecution may be premised upon information provided by defendant and such information may be used against her.\n15. No additional promises, agreement[s], representations, or conditions have been entered into with respect to defendant’s criminal liability other than those set forth in this plea agreement.\n. The full acknowledgment said:\nACKNOWLEDGMENT\nWe hereby reaffirm the plea agreement we entered into with the United States Government in October, 1990. We understand that our sentencing hearing will be continued one last time to enable us to provide substantial assistance to the Government.\nWe understand that \"substantial assistance\" means that we must provide substantial assistance in the investigation or prosecution of another person who has committed an offense.\nWe recognize that no results have yet been achieved despite the fact that our sentencing has previously been continued.\nWe understand that absent \"substantial assistance” by us, we will be remanded to custody to serve out our sentences pursuant to the Sentencing Guidelines.\nWe further understand that it is our responsibility to use our best efforts to provide \"substantial assistance\" to the Government.\n. For the relevant text of the plea agreement see note 1.", "type": "majority", "author": "SNEED, Circuit Judge:"}, {"text": "WALLACE, Chief Judge,\ndissenting:\nThe majority holds that Floyd’s sentence must be vacated so that the district court may conduct a hearing pursuant to Federal Rule of Criminal Procedure 11 on whether to accept the “acknowledgment” as an effective amendment of the original plea agreement. If under the provisions of the original plea agreement the government was not obligated to move for a downward departure because Floyd had failed to live up to her end of the bargain, the majority’s holding would be nothing but a superfluity. Because there must be a purpose for the required hearing, this holding implies that the majority has concluded that if only the terms of the original plea agreement apply, the government stands in breach of the agreement. That requires me to dissent.\nAt the conclusion of an evidentiary hearing, the district court stated:\nSo, overall the court would find that the agreement calls for her cooperation and her participation in trying to set up a deal where the government can catch the people, and I use the term red-handed, and her attempt to do that. And I find that she has never, never completed that. She finds excuses. I think we have three occasions, and each time there’s an excuse on her part why she wasn’t able to do it. So I find that she has not complied with the plea agreement.\n[Ilfs not in good spirit of the agreement if she absents herself and she’s not available, and there’s no evidence one way or the other whether she voluntarily did that or didn’t. And I have to assume that she has the power to come and be available, make herself available. There’s no evidence of phone calls. There’s no evidence of appearances. There’s no evidence of writing or anything to try and get in touch with the agent [responsible for her case]. So that’s certainly not within the spirit of the contract. And you have implied conditions and implied promises that, “I’ll be cooperative, and I’ll make myself available so I can talk. I’ll let people know where I am so I can be available.”\nThere are three findings embedded in the above-quoted language: (1) the plea agreement required that Floyd cooperate with the government beyond merely giving names; (2) Floyd never followed through, despite having promised to arrange three separate undercover operations; and (3) Floyd’s unaccounted-for absence constituted a breach of her promise to cooperate with the government. The majority presumably does not dispute either the second or the third finding, but instead focuses on the first, and concludes that the district court erroneously interpreted the plea agreement to require Floyd’s cooperation. This result is predicated upon three distinct errors.\nFirst, the majority fails to consider section 5K1.1 of the United States Sentencing Guidelines (Guidelines), which provides that in order for the government to move for a downward departure, it must certify that the defendant rendered substantial assistance. Assuming for a moment that the majority is correct that the fully integrated plea agreement does not, on its face, require Floyd’s cooperation (I also have a problem with this), should not the defendant, who was represented by counsel throughout these proceedings, be held responsible for knowing the law governing the “contract” she signed? Any doubts about this question are laid to rest by paragraph 5 of the plea agreement, which provides that “the sentence will be controlled by the ‘Sentencing Guidelines’ and [defendant] has discussed these Guidelines with his attorney.” Section 5K1.1 is the only provision in the Guidelines that provides authority for a district court to depart downward upon the government’s motion. The Guidelines require “substantial assistance” before the government may request a downward departure, and the plea agreement unambiguously incorporates the Guidelines. Surely the majority does not require an explicit reference to each specific section of the Guidelines that may become relevant to sentencing for it to become operative. But if not, then how can the absence of an explicit reference to substantial assistance in the text of the agreement itself obviate the requirement of section 5K1.1 that the defendant assist the government to qualify for a downward departure recommendation? I believe it cannot, and thus conclude that under the terms of the original plea agreement, Floyd was required to provide substantial assistance before the government would be obligated to move for a downward departure. I would affirm the district court on this basis alone.\nSecond, even if we disregard the applicable provision of the Sentencing Guidelines, the district court’s finding that Floyd had not lived up to her end of the bargain is supported by the terms of the original plea agreement. Paragraph 14 of the agreement requires that the information supplied by Floyd be complete as well as truthful. It is not unreasonable, and it certainly is not clearly erroneous, for the district court to have found that just giving names does not amount to complete, truthful, and accurate information regarding narcotics trafficking, as required by paragraphs 8 and 14.\nFurthermore, the provisions of the plea agreement support the district court’s finding, which the majority agrees is reviewed for clear error, that the agreement required Floyd to cooperate more extensively with the government. Paragraph 11 specifically refers to the government’s duty to inform the district court of the “nature and extent of defendant’s cooperation with the government” (emphasis added). Read together with paragraphs 8 and 14, this provision indicates that although cooperation is not explicitly mentioned in those paragraphs, it in fact is what the parties intended. The crucial point is that there is support within the four corners of the document for the district court’s interpretation of the arguably ambiguous contractual language to require Floyd’s cooperation. How then can this court declare that interpretation to be clearly erroneous?\nThird, the majority also is mistaken in its reliance on the parol evidence rule. The rule is irrelevant to this case. As set forth in the Restatement (Second) of Contracts (Restatement), the rule against parol evidence applies only to the use of “prior or contemporaneous agreements or negotiations” to “contradict a term of the writing.” Restatement, § 215. The district court, however, looked not to “prior or contemporaneous” statements, but to Floyd’s actions subsequent to the execution of the plea agreement. The Restatement expressly provides that such “course of performance” evidence is relevant to contractual interpretation. See Restatement, § 202(4) (“Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.”); see also id. at Comment g (“The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning.”); United States v. Haas & Haynie Corp., 577 F.2d 568, 574 (9th Cir.1978); Riess v. Murchison, 329 F.2d 635, 642 (9th Cir. 1964), cert. denied, 383 U.S. 946, 86 S.Ct. 1196, 16 L.Ed.2d 209 (1966); Idaho Code § 28-2-202 (integrated contract “may be explained or supplemented ... by course of performance”); Nev.Rev.Stat. § 104.2208 (same); Cal.Civ.Proc.Code § 1856(c) (same).\nThus, evidence of Floyd and the government’s ongoing interactions following the execution of the plea agreement is relevant to establishing the meaning of the plea agreement itself, inasmuch as such evidence sheds light on what the parties reasonably intended at the time that they entered into the agreement. In this case, as the district court found, there were at least three occasions after she signed the plea agreement when Floyd reneged on promised sting operations. She herself testified regarding the abortive undercover operations. Floyd surely had ample opportunity to express any objection she may have had to the government’s repeated attempts to get her to cooperate with its investigations. Yet the record is devoid of any suggestion that Floyd ever resisted participating in such activities, and her participation is strong evidence that she understood the plea agreement to require it.\nAs the majority concedes, the parol evidence rule does not bar consideration of subsequent statements such as those contained in the acknowledgment. By signing the acknowledgment, Floyd acquiesced in the government’s understanding that the plea agreement required cooperation beyond what she had provided up to that point. The acknowledgment therefore is surely relevant to the question of the parties’ reasonable understanding of the agreement. Cf. Restatement, § 202(4). But the majority insists that as a “modification” of the agreement, it first must be accepted by the court in a Rule 11 proceeding. The acknowledgment, however, is not properly construed as a modification of the original plea agreement, but, as part of the course of performance of the agreement, see Restatement, § 202(4); II E. Allan Farnsworth, Farnsworth on Contracts § 7.13, at 291-92 (1990), as evidence of the parties’ reasonable intentions with regard to its meaning: that Floyd provide substantial assistance to the government in exchange for a downward departure motion.\nIt is true that the district court erred as well in concluding that only if the plea agreement was not fully integrated could it consider the subsequent actions of Floyd and the government, but that error worked in Floyd’s favor to the extent it had any impact at all. I will not address the majority’s analysis of the integration issue, because regardless of whether or not the plea agreement was fully integrated, evidence of the parties’ course of performance is relevant to interpreting the plea agreement. The district court pointed to Floyd’s asking “to be given some meth so she could go out and make a deal” as evidence “that she thought cooperation was a part of the plea agreement.” This factual finding is not, on the record before us, clearly erroneous.\nTo sum up, along the way to rejecting the district court’s finding, ostensibly subject to clearly erroneous review, that the original plea agreement required Floyd to cooperate with the government beyond just giving names, the majority (1) ignores the relevant provisions of the Sentencing Guidelines despite their express incorporation by the plea agreement, (2) disregards language in the plea agreement itself that supports the district court’s interpretation, and (3) misconstrues the parol evidence rule to bar consideration of Floyd’s actions after signing the agreement. Because I conclude the majority’s analysis is in error, I dissent.", "type": "dissent", "author": "WALLACE, Chief Judge,"}], "attorneys": ["George W. Hunt, San Diego, CA, for defendant-appellant.", "Amalia Meza, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Mary FLOYD, Defendant-Appellant.\nNo. 92-50270.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Feb. 4, 1993.\nDecided July 29, 1993.\nGeorge W. Hunt, San Diego, CA, for defendant-appellant.\nAmalia Meza, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.\nBefore: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges."} | WALLACE | SNEED | HALL | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 867 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,810 | Jason McKinley WARD, Petitioner-Appellant, v. Jessie WALSH, Associate Warden of Programs, Respondent-Appellee | Ward v. Walsh | 1993-07-30 | No. 91-15427 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: CHOY, NOONAN, and O’SCANNLAIN, Circuit Judges."], "parties": ["Jason McKinley WARD, Petitioner-Appellant, v. Jessie WALSH, Associate Warden of Programs, Respondent-Appellee."], "opinions": [{"text": "O’SCANNLAIN, Circuit Judge:\nJason McKinley Ward is the only Orthodox Jewish prisoner at Ely State Prison in Ely, Nevada. He brought suit under 42 U.S.C. § 1983, arguing that the prison infringes upon his First Amendment right to exercise freely his religion by not providing him with a kosher diet, clothes made of a single fabric, or an Orthodox rabbi; by not allowing him to have candles in his cell; and by refusing to guarantee that he will not be transported on the Sabbath. He seeks injunctive relief only, and appeals pro se from the district court’s judgment in favor of the warden after a bench trial.\nI\nReligion is the first of our rights under the First Amendment and the Bill of Rights. The right to the free exercise of religion is a precious American invention, distinguishing our Constitution from all prior national constitutions. The right to the free exercise of religion is to be jealously guarded. It is the right of a human being to respond to what that person’s conscience says is the dictate of God. It is not a right to be readily trammeled by the state. A human being does not cease to be human because the human being is a prisoner of the state. “The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” O’Lone v. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), provides the test for balancing those interests: “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”\nTurner set forth four factors to be considered in determining when a regulation is reasonably related to legitimate penological interests. First, there must be a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. at 89, 107 S.Ct. at 2262. Second, whether there are “alternative means of exercising the right that remain open to prison inmates” must be assessed. Id. Third, “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally” must be determined. Id. Fourth, “the absence of ready alternatives” to the regulation must be explored. The “existence of obvious, easy alternatives may be evidence that the regulation is not reasonable.” Id.\nThe warden argues that free exercise claims of prisoners are no longer governed by Turner, but instead must be evaluated under the standard announced in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Id. at 879, 110 S.Ct. at 1600 (citation omitted). In reaching that conclusion, the Court noted that it had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 878-79, 110 S.Ct. at 1600.\nWe see no reason to depart from Turner. The Supreme Court has held that Turner applies to all constitutional claims arising in prison with the exception of Eighth Amendment claims. See Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990); see also Jordan v. Gardner) 986 F.2d 1521, 1530 (9th Cir.1993) (en banc). Moreover, the Smith case concerned a factual situation far different from the one presented here. Inmates must rely on the prison system to provide them with the necessities of life. Determining to what extent prison officials must accommodate a prisoner’s right to free exercise in fulfilling this obligation is wholly different from determining whether free citizens must obey criminal laws of general applicability.\nII\nWard argues that the prison is obliged to provide him with a strict kosher diet at the prison’s expense “that is certified or deemed religiously acceptable by an outside independent Orthodox Jewish Organization ... at the time the food is physically served to Orthodox Jewish inmates.” The diet requested by Wai’d would require the prison not only to provide kosher food, but to store and to prepare the food in a special manner. Moreover, Ward requests that the food be served in an “eating area [that is] kept kosher for all Jewish inmates.”\nWe have held that “[i]nmates ... have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987). However, we have never determined precisely how this right is to be balanced against budgetary and administrative concerns of the prison.\nThe warden provides a pork-free diet to inmates who request it, but does not provide a full kosher diet. Whether the culinary policy is reasonable requires a balancing of the degree of intrusiveness into the right of free exercise against the costs of accommodation, giving appropriate deference to prison officials’ assessment of the costs. The Turner factors help focus this determination. The first Turner factor requires us to consider whether there is a logical connection between the policy and the legitimate governmental interest that justifies it. The prison has a legitimate interest in running a simplified food service, rather than one that gives rise to many administrative difficulties. Ka-key, 836 F.2d at 950. Since the policy of not providing special diets is related to simplified food service, the first factor weighs in favor of the government.\nThe second Turner factor requires us to consider whether Ward has alternative means by which he can practice his religion. The relevant inquiry under this factor is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, we are to determine whether the inmates have been denied all means of religious expression. O’Lone, 482 U.S. at 351-52, 107 S.Ct. at 2406. In other cases, courts have found that although some aspects of religious practice were impinged upon, claimants retained the ability to participate in other significant rituals and ceremonies of their faith. For example, although the Muslim claimants in O’Lone were denied the opportunity to attend Jumu’ah, the Muslim weekly religious service, they had the virtually unlimited right to congregate for prayer and discussion outside of working hours. Moreover, the Muslim prisoners had free access to an imam, a Muslim prayer leader, whom the state provided. Muslim prisoners were given special meals, and special arrangements were made during the month-long observation of Ramadan, a period of fasting and prayer, to allow them to take their meals at the religiously prescribed times. Id.\nIn contrast, Ward’s ability to participate in religious observances has been significantly circumscribed within the prison. Because of the remoteness of the area, he does not have access to an Orthodox rabbi. Since he is the only Orthodox Jewish prisoner in the institution, he does not have access to religious services. Moreover, he cannot congregate with other practitioners of his faith for prayer and discussion. It is true that Ward is encouraged to practice other observances of his faith privately. The district court heard testimony from an Orthodox Jewish rabbi that private prayer is a significant aspect of the practice of the Jewish religion. However, we cannot conclude that the opportunity to engage in private prayer is enough to satisfy the second Turner factor as interpreted by O’Lone. If it were, the factor would have no meaning at all because an inmate would always be able to pray privately. See Sample v. Borg, 675 F.Supp. 574, 580 (E.D.Cal.1987), vacated as moot, 870 F.2d 563 (9th Cir.1989). In short, because Ward’s religious practice has been so dramatically curtailed in prison, the second Turner factor weighs in his favor. Cf. Kakey, 836 F.2d at 950-51 (second factor weighed in prison’s favor because there was no indication that Kahey had been deprived of the ability to practice her religion in any other way).\nAlso relevant to the evaluation of the second factor is a distinction O’Lone had no occasion to make: the distinction between a religious practice which is a positive expression of belief and a religious commandment which the believer may not violate at peril of his soul. It is one thing to curtail various ways of expressing belief, for which alternative ways of expressing belief may be found. It is another thing to require a believer to defile himself, according to the believer’s conscience, by doing something that is completely forbidden by the believer’s religion. In order to determine what alternatives are open to Ward, findings must be made as to what is or is not forbidden by his religion. The district court made no such findings; we must remand so that the court can do so.\nIn making these findings, it will be appropriate for the district court to consider Ward’s challenge to the orthodoxy of the rabbi who testified on behalf of the state. In religious matters, we take judicial notice of the fact that often the keenest disputes and the most lively intolerance exists among persons of the same general religious belief, who, however, are in disagreement as to what that faith requires in particular matters. See Thomas v. Review Bd., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981). In this case, Ward is entitled to argue, with appropriate authorities, that his religious belief is different from the interpretation provided by the witness for the state.\nThe third Turner factor requires us to consider the “impact accommodation ... will have on guards and other inmates, and on the allocation of prison resources generally.” Washington v. Harper, 494 U.S. 210, 225, 110 S.Ct. 1028, 1038, 108 L.Ed.2d 178 (1990). Although the district court made no findings regarding this factor, we accept the warden’s contention that if other prisoners are not similarly accommodated, they might well perceive Ward as being favored. Kahey, 836 F.2d at 951. “This perception [could] have an adverse impact on prison morale,” id., causing disruption throughout the prison. This effect, however, is present in every case that requires special accommodations for adherents to particular religious practices. While not irrelevant, it is not in itself dispositive.\nMore important are the administrative difficulties that could potentially arise in accommodating Ward’s request. Common sense tells us that there would be some disruption to the efficient operation of culinary services if the prison were required to provide a special meal for one prisoner. The district court, however, made no findings regarding how great the disruption would be. Indeed, the district court made no findings regarding whether the prison had explored the possibility of accommodating Ward. Although we must give deference to the prison official’s own assessment of the burden on prison operations, we cannot simply accept the warden’s assertion on appeal that the disruption would be significant. Likewise, the district court made no findings regarding the financial impact of accommodation. Again, it is clear that providing a kosher diet would give rise to some expense, not only from the cost of Ward’s meals but also from the cost of accommodating others with similar claims of entitlement to a religious diet. We cannot determine how heavily this factor weighs in the prison’s favor, however, because the magnitude of these costs is a factual question for which the district court made no findings.\nFinally, under the fourth factor, we must consider whether there are ready alternatives to the prison’s current policy that would accommodate Ward at de minimis cost to the prison. “[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation,” Harper, 494 U.S. at 225, 110 S.Ct. at 1038, while the existence of alternatives may be “evidence that the [policy] is not reasonable but is an ‘exaggerated response’ to prison concerns,” Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262. Here, the prison policy is to limit the accommodation of religious dietary laws to the provision of pork-free diets. On the record before us, we simply are unable to determine whether reasonable alternatives to this policy exist. Complying with every precept of the Kashruth, the Jewish dietary law, may involve significant expense; however, it may be possible to comply with the laws in substantial part at de minim-is cost. For example, it may be possible to provide Ward with non-defiled foodstuffs, even if the dining area is not kept kosher. The district court, however, made no findings regarding the feasibility of such alternatives; we cannot speculate about their existence or the impact they would have on culinary services.\nIn the absence of sufficient factual findings regarding the second, third, and fourth factors, it is impossible for us to determine whether the denial of a kosher diet is reasonably related to the prison’s legitimate interest in streamlined food service. In McElyea we established the principle that inmates have the right to be provided with food that satisfies the dietary laws of their religion. McElyea, 833 F.2d at 198. Abrogation of this important right cannot be justified by the rote recitation of the O’Lone standard. The failure to provide a kosher diet may require Ward to defile himself in a manner not contemplated by O’Lone. Moreover, unlike the claimants in O’Lone, Ward’s religious practice in general has been significantly curtailed by the fact of incarceration in the remote prison. In such circumstances, it is necessary to evaluate carefully the justifications proffered by the prison before determining whether the Constitution allows the intrusion into the free exercise right of tfie inmate. We remand this claim so that the district court can make specific factual findings and can engage in a careful balancing of all the Turner factors.\nIII\nWard argues that he must be allowed to have candles in his cell to observe certain rituals of his religion. The warden asserts that candles pose a significant fire hazard, and thus under no circumstances are prisoners allowed to have them in their cells. The Turner factors clearly weigh in favor of the prison officials on this claim. The serious safety and security concerns raised by allowing inmates to possess and use candles outweigh the curtailment of Ward’s religious practice. Thus, we conclude that the regulation is reasonably related to a legitimate penological purpose and thus is valid under Ttimer.\nIV\nWard argues that the warden violated his First Amendment rights when it transferred him to Ely on the Sabbath. He asks for an injunction to prevent the prison from transporting him on any Sabbath or Jewish holiday, comprising eighty-eight days in the year.\nAgain the application of the Turner factors leads to the conclusion that the prison’s policy is reasonably related to a legitimate governmental interest. First, the prison has a legitimate penological interest in having a standardized, efficient transportation system. Prisoners are transported for medical, security, and other reasons. According to the warden, the health, safety, and welfare of the prisoners is dependent upon the ability to move prisoners quickly and efficiently when necessary. The prison policy of not guaranteeing that inmates will be transported only on certain days is logically connected to the legitimate government interest in security and efficient transportation.\nSecond, Ward does not contend that the prison intends to transfer him on every Sabbath. Because he can observe most Sabbaths, we conclude that he has alternative means of exercising his religion as contemplated by O’Lone.\nThird, a hard and fast rule that Ward and other Jewish prisoners could never be transported on the Sabbath or holidays could have a significant impact on guards, other inmates, and prison resources. Such a policy could disrupt the efficient administration of the transportation system at the prison.\nFourth, Ward does not offer any alternatives that could fully accommodate his rights at de minimis costs to valid penological interest. The prison’s current transportation policy is to accommodate the religious beliefs of the inmates when at all possible. Given this policy, we conclude that Ward is not entitled to the injunction he seeks.\nV\nWard has requested that the prison provide him with an Orthodox rabbi. Since Ward is the only Orthodox Jewish prisoner in the institution, the prison does not have a rabbi on staff. It is not clear whether the prison made any effort to contact an Orthodox rabbi on Ward’s behalf; however, a prison official testified that there were no Orthodox Jewish rabbis within a one hundred mile radius of the prison. No rabbi has volunteered to come to the prison. The prison, however, in no way restricts Ward’s ability to contact a rabbi on his own to come into the prison, nor does it forbid rabbis from coming into the prison. Thus, the issue here is whether the prison has an affirmative obligation to provide a rabbi for Ward.\nWe have previously held that prison officials have no such obligation. In Allen v. Toombs, 827 F.2d 563, 569 (9th Cir.1987), we concluded that a “prison administration is not under an affirmative duty to provide each inmate with the spiritual counselor of his choice.” Accord Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 1081 n. 2, 31 L.Ed.2d 263 (1972) (dicta). Thus, the prison has not infringed upon Ward’s right to free exercise by not providing a rabbi.\nWard argues that he would have access to a rabbi if he were moved to a different prison. However, the prison officials point out that Ward is a maximum security prisoner, and that Ely is the only maximum security prison in the Nevada prison system. We cannot conclude that Ward’s placement at Ely is not reasonably related to a legitimate penological purpose, and therefore we must affirm the district court on this issue.\nVI\nWard argues that the prison has an affirmative obligation to provide him with clothing that is made with only one fiber. The prison has refused to do so, but has informed Ward that he may provide his own clothing as long as it conforms to the prison dress code. All prisoners are required to wear solid blue denim clothing.\nWard does not question the necessity of the prison’s policy requiring prisoners to dress uniformly. Rather, his argument focuses on whether the prison has an affirmative obligation to provide him with clothing that conforms to the dictates of his religion. We conclude that under the Turner standard, the prison does not have such an obligation. The third and fourth factors of Turner are determinative. Allowing one prisoner to receive preferential treatment with regard to clothing could potentially cause conflicts among inmates and providing each prisoner with the clothing or other implements necessary to the practice of their religion would impose a cost that would be more than de minimis. We conclude that the prison’s policy of allowing Ward to buy and to wear his own clothing satisfies the Turner standard.\nVII\nWard seeks an injunction ordering the prison to allow Jewish inmates to wear religious jewelry, yarmulkes, and talliths (prayer shawls). It appears, however, that inmates are already allowed to possess and to wear these items under existing prison policy. Since Ward can show no injury that can be redressed by the injunction he seeks, he has no standing to bring this claim. See, e.g., Valley Forge Christian College v. Americans United for a Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).\nVIII\nIn a letter of April 26, 1993, addressed to this court, Ward has raised a question of retaliation for bringing this suit. We are in no position to adjudicate this contention, but if Ward’s claims are true, there would have been serious interference with the jurisdiction of this court. On remand, we assume that the district court will have the opportunity to examine these contentions, which relate to Ward’s access to this court on appeal.\nEach party to bear its own costs.\nAFFIRMED in part, REVERSED in part and REMANDED.\n. Courts that have considered the question have reached varying results. Compare, e.g., Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975) (pre-Turner case holding that the Orthodox Jewish inmates are entitled to a kosher diet; difficulties in providing diet are surmountable) and Whitney v. Brown, 882 F.2d 1068 (6th Cir.1989) (prison policy which eliminated Jewish inmates’ right to participate in annual Passover seder was an impermissible infringement upon the inmates' free exercise rights) with Kahey v. Jones, 836 F.2d 948, 950-51 (5th Cir.1988) (prison not required to provide full kosher diet where doing so would be administratively unfeasible) and Martinelli v. Dugger, 817 F.2d 1499, 1507 n. 29 (11th Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988) (same).", "type": "majority", "author": "O’SCANNLAIN, Circuit Judge:"}], "attorneys": ["Jason McKinley Ward, in pro. per.", "Marc P. Cardinally Deputy Atty. Gen., Carson City, NV, for respondent-appellee."], "corrections": "", "head_matter": "Jason McKinley WARD, Petitioner-Appellant, v. Jessie WALSH, Associate Warden of Programs, Respondent-Appellee.\nNo. 91-15427.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted Nov. 6, 1992 .\nDecided July 30, 1993.\nJason McKinley Ward, in pro. per.\nMarc P. Cardinally Deputy Atty. Gen., Carson City, NV, for respondent-appellee.\nBefore: CHOY, NOONAN, and O’SCANNLAIN, Circuit Judges.\nThe panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4."} | CHOY | NOONAN | O’SCANNLAIN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 873 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,833 | Lora M. SAXTON, Plaintiff-Appellant, v. HOUSING AUTHORITY OF the CITY OF TACOMA; William Hunter, Executive Director of the Housing Authority of the City of Tacoma, Defendant-Appellee | Saxton v. Housing Authority | 1993-07-30 | No. 91-36262 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FARRIS, FERGUSON, and D.W. NELSON, Circuit Judges."], "parties": ["Lora M. SAXTON, Plaintiff-Appellant, v. HOUSING AUTHORITY OF the CITY OF TACOMA; William Hunter, Executive Director of the Housing Authority of the City of Tacoma, Defendant-Appellee."], "opinions": [{"text": "D.W. NELSON, Circuit Judge:\nIn this appeal, we consider whether a public housing tenant is entitled to a hearing before the denial of her request to add an additional family member to her lease. Appellant Lora Saxton (“Saxton”) brought suit against the Housing Authority of the City of Tacoma and its Executive Director (collectively, “THA”) after THA refused to restore her husband Ben Saxton (“Ben”) to the family’s lease. The district court granted summary judgment in favor of THA. Although we hold that Saxton was entitled to a hearing-under the United States Housing Act, 42 U.S.C. § 1437 et seq. (West Supp.1992) (“Housing Act”) and regulations, we affirm because we find that a hearing would not have made a difference in the outcome of this case.\nFACTUAL AND PROCEDURAL BACKGROUND\nSaxton has been a tenant of THA low-income housing since February of 1979, when she signed a lease for herself and her two children. In 1984, THA discovered that her husband Ben was also residing in the unit; in accordance with the THA policy in effect at that time, Ben was placed on the lease. Ben was removed from the lease in 1985, after his wife informed THA that he was in prison.\nOn March 1, 1990, Saxton informed THA that Ben had recently returned home and requested that his name be restored to the lease. Although it had once been THA’s policy to admit additional family members as tenants without any investigation, in 1987 THA began to require these additional family members to undergo “a screening process much the same as admitting a new family under the preexisting requirements.” Pursuant to this practice, THA met with the Saxtons and determined that Ben had spent the previous five years in prison for rape. THA made a preliminary decision not to readmit Ben, which was confirmed after an “informal hearing” with other THA managers on March 9.\nOn March 19, Saxton was informed by letter that her request had been denied because Ben had “a history of criminal activity involving a crime of physical violence to persons or property.” The letter also stated that she had a right to request a hearing within five days. Saxton requested such a hearing on March 21. However, THA responded only by clarifying its policy regarding criminal activity. No formal hearing was ever held. THA now acknowledges that its reference to a grievance hearing was erroneous; it was not and never had been THA’s policy to provide hearings in such circumstances.\nTHA personnel observed Ben once again living in Saxton’s unit in late May of 1990. Shortly thereafter, THA served Saxton with a “Notice to Comply With Lease or Quit.” THA then refused her tender of rent and told her to leave the premises; however, the eviction threat was later withdrawn. Saxton subsequently filed this suit challenging THA’s policies and practices and seeking declaratory and injunctive relief under 42 U.S.C. § 1983, the Housing Act, and regulations promulgated thereunder. On cross-motions for summary judgment, the district court concluded that there were no genuine issues of material fact and granted summary judgment in favor of THA. Saxton timely appealed. We have jurisdiction under 28 U.S.C. § 1291.\nSTANDARD OF REVIEW\nWe review a district court’s grant of summary judgment de novo. F.D.I.C. v. O’Melve-ny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992). “The evidence must be viewed in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact for trial, and whether the district court correctly applied the relevant substantive law.” Id.\nDISCUSSION\nI. Housing Act and Regulations\nThe United States Housing Act, 42 U.S.C. § 1437 et seq., illustrates Congress’ commitment to providing safe and affordable housing to low-income families.\nIt is the policy of the United States to promote the general welfare of the Nation by employing its funds and credit ... to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income....\n42 U.S.C. § 1437. Pursuant to this policy, the Housing Act provides that the Secretary of Housing and Urban Development (“HUD”) “shall by regulation require each public housing agency [ (“PHA”) ] receiving assistance under this chapter to establish and implement an administrative grievance procedure” which meets a variety of procedural requirements. 42 U.S.C. § 1437d(k).\nThe regulations require each PHA to establish a grievance procedure which applies “to all individual grievances ... between the tenant and the PHA.” 24 C.F.R. §§ 966.-51(l)(a)(l), 966.62(a) (1992). The regulations define a “grievance” as “any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant’s lease or PHA regulations which adversely affect the individual tenant’s rights, duties, welfare or status.\" 24 C.F.R. § 966.53(a) (1992) (emphasis added). At the time of Saxton’s request, THA had an existing grievance procedure which tracked the requirements contained in 24 C.F.R. §§ 966.-54-57 (1992).\nIn addition to the broad definition of “grievance” contained in the regulations, the history of the Housing Act and regulations suggest that Congress intended the grievance procedures to apply to a wide range of situations. We agree with the approach taken by the District of Columbia Circuit in Samuels v. District of Columbia, 770 F.2d 184 (D.C.Cir.1985), which held that public housing officials could be sued under 42 U.S.C. § 1983 for systematically failing to provide grievance hearings to public housing tenants. The Samuels court traced the history of the grievance regulations, noting that in 1982 HUD proposed a revision which would have made the procedures applicable only to disputes over tenant selection and rent calculation. Id. at 190; 47 Fed.Reg. 55,689, 55,692 (1982). “In response to this proposal, Congress specifically amended the Act to require PHAs to establish and maintain an administrative grievance procedure for the resolution of all tenant disputes concerning adverse PHA action.” Samuels, 770 F.2d at 190 (emphasis added); Housing and Urban-Rural Recovery Act of 1983, § 204, Pub.L. No. 98-181, 97 Stat. 1153, 1178, codified at 42 U.S.C. § 1437d(k). We agree.\nII. . Application to Saxton’s Case\nAt the heart of this dispute are the parties’ differing characterizations of the process of adding family members to a lease. Saxton characterizes THA’s decision not to readmit her husband as one affecting her rights as a tenant under the terms of her lease. In contrast, THA characterizes the dispute as involving Ben’s application for admission to the housing complex, which was denied pursuant to THA’s regular procedures. THA contends that the regulations do not apply because its behavior in the present case did not adversely affect Saxton’s “rights, duties, welfare or status” and did not constitute “action or failure to act” regarding her lease. Throughout this litigation, THA has steadfastly argued that the decision not to add Ben to the lease did not and could not affect any of Saxton’s rights.\nWe reject THA’s attempt to cast this dispute as affecting the rights, duties, welfare or status of Ben alone. Ben is not a party to this litigation, and we are not asked to consider whether THA’s practices violated any of his rights. Ben did not formally apply for readmission; the sole action which initiated this dispute was Saxton’s request that he be added to her lease. The Housing Act and grievance regulations address the welfare and status of public housing tenants, not applicants. It is precisely these tenant interests that Saxton asserts have been affected here.\nUnder a plain reading of the regulations, Saxton was entitled to a hearing because THA’s decision affected her “rights, duties, welfare or status.” As a member of the class of individuals whom the Housing Act is designed to benefit, Saxton has a constitutionally protected “property” interest in her THA housing. See Ressler v. Pierce, 692 F.2d 1212, 1215 (9th Cir.1982) (eligible applicants for Section 8 housing have sufficient property interests to entitle them to due process safeguards). As an existing tenant, Saxton has a stronger property interest than would a mere applicant for housing. Id. at 1217 (applicant has less weighty interest than someone “who is currently receiving benefits and is threatened with reduction or termination of those benefits”).\nMoreover, “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). Decisions concerning family living arrangements fall within this protected sphere. See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (striking down a housing ordinance which limited occupancy of dwelling units to members of a restrictively defined “single family”). Saxton’s request went to the heart of her family’s living arrangements. Admittedly, the precise level of constitutional protection due such arrangements remains unclear. Whether or not her interest rises to the level necessary to invalidate THA’s practices on constitutional grounds, however, it is clearly the type of tenant interest to which the grievance procedures apply.\nSaxton was also entitled to a hearing because the dispute concerned THA’s action or failure to act in accordance with her lease. See 24 C.F.R. § 966.52(a) (1992). We are not persuaded by THA’s argument that it took no “action or inaction” regarding the lease. While THA may not have initiated the requested lease change, it is undisputed that THA denied the request. Denying a request to add a family member to the lease is clearly an “action” regarding that lease. THA cites no regulation which limits the grievance procedures to actions initiated by the PHA alone. Such a distinction would be illogical, and we decline to read it into the regulations today.\nWe therefore hold that a public housing tenant whose request to add a returning family member to the lease is denied is entitled to a grievance hearing under the procedures specified in 24 C.F.R. § 966.50 et seq. (1992). We conclude, however, that such a hearing could not have altered the result in the present ease. Unbeknownst to THA, Ben had been convicted of rape in 1978; several years later, he pleaded guilty to four new counts of rape, including one which involved a knife. A history of criminal activity, particularly involving crimes of violence, is a legitimate consideration in decisions regarding public housing tenancy. See, e.g., 24 C.F.R. § 960.205(b)(3) (1992) (history of criminal activity is relevant information which may be considered in selection process).\nSaxton has offered us no description of the type of evidence that she would have presented on Ben’s behalf at the hearing. The record fails to reflect that any evidence would be sufficiently mitigating to warrant admitting for residence in his wife’s public housing unit a five-time convicted rapist, just released from prison. THA, on the other hand, has established that such admission would contradict its duty to safeguard the health, safety, and welfare of its tenants. See, e.g., 24 C.F.R. § 960.205(b) (1992) (tenant selection criteria). We therefore conclude that a hearing would have served no useful purpose and could not have affected the outcome.\nAFFIRMED.\n. Saxton also challenges THA's practice of requiring tenants to obtain prior consent for changes in family composition and asserts that THA’s policy for admitting returning family members lacks the requisite specific criteria and standards. In light of our holding that the grievance procedures apply to these PHA decisions, we need not reach these additional contentions.\n. THA claims that Ben acknowledged only two convictions during this discussion. THA later discovered that he had pleaded guilty to four counts of rape, including one which involved a knife, in addition to a 1978 conviction.\n. The HUD regulations reflect similarly broad objectives:\nThe purpose of this subpart is to set forth the requirements, standards and criteria for a grievance procedure to be established and implemented by [PHAs] to assure that a PHA tenant is afforded an opportunity for a hearing if the tenant disputes within a reasonable time any PHA action or failure to act involving the tenant's lease with the PHA or PHA regulations which adversely affect the individual tenant's rights, duties, welfare or status.\n24 C.F.R. § 966.50 (1992).\n. Expressly excluded from the grievance procedure are class actions and suits between tenants which do not involve the PHA. 24 C.F.R. § 966.-51(b) (1992). The regulations also permit a PHA in a jurisdiction which requires pre-eviction court hearings to exclude certain eviction proceedings from the grievance scheme. 24 C.F.R. § 966.51(a) (1992). THA does not argue that any of these exclusions apply to Saxton’s situation.\n. At oral argument, THA argued for the first time that the admission of an additional family member to a lease is a two-step process under which the family member must first apply and be deemed \"qualified’’ for tenancy. We disagree. THA points to no regulation which requires a new family member to make a formal application. The regulations require only that the tenant report changes in family composition to the PHA. 24 C.F.R. §§ 960.209(a), 966.4(c) (1992). Indeed, THA’s own policy requires only that a tenant obtain prior written permission to add a family member to the lease.\n. We need not, and explicitly do not, decide whether Saxton has a fundamental constitutional right to have her husband live with her, or whether the denial of a hearing violated her right to due process under Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976).\n. THA's behavior could also be characterized as \"inaction,” i.e., a failure to add Ben to the lease. We agree with the District of Columbia Circuit that the distinction is of little use. See Samuels, 770 F.2d at 199 (rejecting \"act/omission” distinction and holding that the procedures apply to \"any adverse PHA 'action or failure to act' involving a tenant’s lease or the PHA's regulations\").\n. But see Public Housing Occupancy Handbook: Admission § 4-l(b)(ll) (7465.1 Rev-2 1987) (\"A criminal record should not automatically exclude an applicant from consideration.”); 24 C.F.R. § 960.205(d) (1992) (if PHA receives unfavorable information about an applicant, it must also be willing to consider mitigating circumstances).", "type": "majority", "author": "D.W. NELSON, Circuit Judge:"}], "attorneys": ["John C. Purbaugh, Barbara Evans-Cordts, Alan Anderson, Puget Sound Legal Assistance Foundation, Tacoma, WA, for plaintiff-appellant.", "Everett Holum, McCarthy, Holum, Caus-seaux & Rourke, Tacoma, WA, for defendants-appellees."], "corrections": "", "head_matter": "Lora M. SAXTON, Plaintiff-Appellant, v. HOUSING AUTHORITY OF the CITY OF TACOMA; William Hunter, Executive Director of the Housing Authority of the City of Tacoma, Defendant-Appellee.\nNo. 91-36262.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted June 10, 1993.\nDecided July 30, 1993.\nJohn C. Purbaugh, Barbara Evans-Cordts, Alan Anderson, Puget Sound Legal Assistance Foundation, Tacoma, WA, for plaintiff-appellant.\nEverett Holum, McCarthy, Holum, Caus-seaux & Rourke, Tacoma, WA, for defendants-appellees.\nBefore: FARRIS, FERGUSON, and D.W. NELSON, Circuit Judges."} | FARRIS | FERGUSON | D.W. NELSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 881 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,863 | Michael JACKSON, Petitioner-Appellee, v. Daniel VASQUEZ, Warden of California State Prison at San Quentin, Respondent-Appellant | Jackson v. Vasquez | 1993-07-30 | No. 92-56430 | United States Court of Appeals for the Ninth Circuit | {"judges": ["' Before: CANBY, BEEZER, and RYMER, Circuit Judges."], "parties": ["Michael JACKSON, Petitioner-Appellee, v. Daniel VASQUEZ, Warden of California State Prison at San Quentin, Respondent-Appellant."], "opinions": [{"text": "CANBY, Circuit Judge:\nBACKGROUND\nMichael Jackson is a California condemned prisoner at San Quentin State Prison. After receiving from the federal district court a number of stays of execution to allow him time to prepare a habeas corpus petition, Jackson filed an ex parte request for an order compelling Daniel Vasquez, warden of the prison, to transport Jackson to the University of California at Irvine, College of Medicine, so that Jackson could undergo a brain scan.\nWithout giving the Warden notice of the request or an opportunity to respond, the district court issued the order and sealed Jackson’s pleadings. The order requires the Warden to transport Jackson to the medical facility at Irvine, to remain with Jackson while the brain scan is administered and to return Jackson to San Quentin. The order provides that the Warden will bear the costs of transporting, housing and guarding Jackson during the trip.\nThe Warden filed a motion to vacate the order, which the district court denied after a hearing on the matter. The Warden then filed a series of motions and objections seeking to vacate the order and to unseal Jackson’s pleadings, but the district court denied all such relief.\nAt the Warden’s request, we issued an emergency stay of the transportation order. While the Warden’s appeal of the order was pending, Jackson asked the district court to reissue the transportation order, setting a new date for compliance. The district court granted Jackson’s request and we subsequently stayed that order. The Warden challenges both the original and the reissued orders in this appeal.\nDISCUSSION\nThis appeal presents the question whether the district court has the authority to issue, upon a potential habeas corpus petitioner’s ex parte request, a coercive order against a warden requiring him to transport a prisoner for medical tests. Before reaching that question, however, we must determine whether we have jurisdiction to entertain this appeal.\nI. JURISDICTION\nSection 1291 of the Judicial Code gives the appeals courts jurisdiction over “all final decisions of the district courts.” 28 U.S.C. § 1291 (1966). Ordinarily, a decision is not considered final unless it “‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Gulf stream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). The district court’s transportation order does not end any litigation on the merits and therefore is not final in this sense.\nUnder the collateral order doctrine, however, orders that “ ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated’” are considered final, and therefore appealable under section 1291, even though they do not terminate an action or any part of it. Id. 108 S.Ct. at 276, 108 S.Ct. at 275 (discussing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)); see generally, 15A Charles Wright et al., Federal Practice & Procedure, § 3911 (1992).\nTo be appealable under the collateral order doctrine, the district court’s transportation order must satisfy three criteria. First, it must conclusively determine the disputed question. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Second, it must resolve an important issue that is completely separate from the merits of the action. Id. Third, it must be effectively unreviewable on appeal from a final judgment. Id. The district court’s order satisfies these criteria.\nAn order conclusively determines a matter in dispute if it is “ ‘made with the expectation that [it] will be the final word on the subject addressed.’ ” Gulf stream Aerospace, 485 U.S. at 276, 108 S.Ct. at 1137 (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 12 n. 14, 103 S.Ct. 927, 935 n. 14, 74 L.Ed.2d 765 (1983)). An order does not conclusively determine a disputed matter, on the other hand, if it is “inherently tentative,” id. (quoting Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458), that is, if “a district court ordinarily would expect to reassess and revise such an order in response to events occurring ‘in the ordinary course of litigation.’ ” Id. (quoting Moses H. Cone, 460 U.S. at 13 n. 14, 103 S.Ct. at 935). The transportation order conclusively determines the question whether Jackson is entitled to be transported by the Warden for a brain scan preparatory to Jackson’s filing a petition for habeas corpus. The district court could not revisit the question at some later stage in the habeas proceedings after the Warden had complied with the order.\nThe transportation order also resolves an important .issue that is completely separate from the merits of the underlying action. The decision that the Warden appeals here is the district court’s determination that it possessed the legal authority to issue the transportation order. The Warden’s claims present pure questions of law that can be reviewed without reference to the merits of Jackson’s habeas corpus petition. The transportation order is not a mere step toward final disposition of Jackson’s claims, but rather it “ ‘plainly presents an important issue separate from the merits’ ” of the habe-as petition. Gulfstream Aerospace, 485 U.S. at 277, 108 S.Ct. at 1137 (quoting Moses H. Cone, 460 U.S. at 12, 103 S.Ct. at 935); see also Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.\nFinally, the transportation order will evade effective review on appeal of the decision on Jackson’s petition for habeas corpus. Regardless of the district court’s disposition of the habeas petition, the Warden will not be able to show, on appeal from the final decision, that he was unfairly prejudiced in the habeas proceedings as a result of his compliance.\nThe transportation order satisfies the three elements of the collateral order doctrine. Accordingly, we conclude that we have jurisdiction over the Warden’s appeal.\nII. THE DISTRICT COURT’S AUTHORITY TO ISSUE THE ORDER\nJackson maintains that 21 U.S.C. § 848(q) empowers the district court to compel the Warden to transport Jackson, at state expense, for medical tests. We disagree.\nSection 848(q) is a funding statute. It provides for the appointment of attorneys and the furnishing of investigative services for defendants or habeas corpus petitioners seeking to vacate or set aside a death sentence. 21 U.S.C. § 848(q)(9) (Supp.1993). It permits district courts to disburse federal funds on an ex parte showing that the funds are reasonably necessary for adequate representation. Ex parte proceedings to determine whether funds should be disbursed are appropriate, because the reasonableness of a request for funds is likely to depend on the strategy of the defense, which must be revealed to the court but not the prosecution.\nWe do not believe, however, that section 848(q) authorizes the district court to issue, upon a petitioner’s ex parte request, a coercive order against a state official. The statute directs the court to authorize the defendant’s attorneys to obtain investigative, expert or other services on behalf of the defendant; it does not empower the district court to compel action from a state official. Nor is it appropriate to issue a coercive final order without notice or hearing, upon an ex parte application with a sealed record. The transportation order falls beyond the pale of section 848(q).\nWe also reject Jackson’s suggestion that the transportation order is warranted by the All Writs Act, 28 U.S.C. § 1651(a) (1966). “The All Writs Act is not a grant of plenary power to the federal courts. Rather, it is designed to aid the courts in the exercise of their jurisdiction.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). An order is not authorized under the Act unless it is designed to preserve jurisdiction that the court has acquired from some other independent source in law.\nJackson has failed to demonstrate any independent source of jurisdiction in aid of which the transportation order issued. We will not permit Jackson to use the All Writs Act to enlarge the power of the district court. See Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 361, 88 L.Ed.2d 189 (1985).\nWe need not decide whether, upon proper notice and motion at a proper stage in the habeas corpus proceedings, the district court is empowered to issue an order requiring a state official to transport a prisoner for medical examinations that are necessary to the petitioner’s case. See Fed.R.Civ.P. 35; Rule 6, Rules Governing § 2254 cases, 28 U.S.C. Foil. § 2254 (1977). We simply conclude that the ex parte fund disbursement procedures of section 848(q) do not support the district court’s transportation order against the Warden.\nThe district court’s orders directing Warden Vasquez to transport Jackson to the medical facility at the University of California at Irvine are VACATED.\n. Because we deem the order reviewable under the collateral order doctrine, we decline to address the Warden’s contention that we should issue a writ of mandamus directing the district court to vacate the transportation order.\n. 21 U.S.C. § 848(q) provides, in relevant part: (9) Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant’s attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore, under paragraph (10). Upon a finding that timely procurement of such services could not practicably await prior authorization, the court may authorize the provision of and payment for such services nunc pro tunc.\n(10) Notwithstanding the rates and maximum limits generally applicable to criminal cases and any other provision of law to the contrary, the court shall fix the compensation to be paid to attorneys appointed under this subsection and the fees and expenses to be paid for investigative, expert, and other reasonably necessary services authorized under paragraph (9), at such rates or amounts as the court determines to be reasonably necessary to carry out the requirements of paragraphs (4) through (9).\n. The All Writs Act provides: \"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).\n. We do not accept Jackson's suggestion that our decision in Wiggins v. County of Alameda, 717 F.2d 466 (9th Cir.1983), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984), is dispositive of the present case. Wiggins concerned the allocation of the costs of transporting a state prisoner to testify at the trial of his federal civil rights suit against prison officials. The federal magistrate had issued a writ of habeas corpus ad testificandum ordering the state to bear the expenses incurred in bringing the prisoner-plaintiff to trial and the state appealed the order. We ruled that allocation of costs to the state was valid because federal statutes authorized the magistrate to issue the writ and no federal statute provided reimbursement for the costs of complying with the writ. The court's authority to issue the writ necessarily encompassed the authority to allocate costs incurred in complying with the writ.\nHere, in contrast, the court has no independent source of authority to issue the transportation order.\n.Because we hold that the district court lacked authority to issue the transportation order, we decline to address the Warden's claims that the order violated his right to due process and the Eleventh Amendment.", "type": "majority", "author": "CANBY, Circuit Judge:"}], "attorneys": ["Paul D. Gifford, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant.", "Allyn 0. Kreps, Lewis, D’Amato, Brisbois & Bisgaard, Los Angeles, CA, for petitioner-appellee."], "corrections": "", "head_matter": "Michael JACKSON, Petitioner-Appellee, v. Daniel VASQUEZ, Warden of California State Prison at San Quentin, Respondent-Appellant.\nNo. 92-56430.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted June 15, 1993.\nDecided July 30, 1993.\nPaul D. Gifford, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant.\nAllyn 0. Kreps, Lewis, D’Amato, Brisbois & Bisgaard, Los Angeles, CA, for petitioner-appellee.\n' Before: CANBY, BEEZER, and RYMER, Circuit Judges."} | CANBY | BEEZER | RYMER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 885 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,888 | UNITED STATES of America, Plaintiff-Appellee, v. Robert William WEINERT, Defendant-Appellant | United States v. Weinert | 1993-07-30 | No. 93-50061 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, TANG, and NORRIS, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Robert William WEINERT, Defendant-Appellant."], "opinions": [{"text": "PER CURIAM:\nRobert William Weinert appeals his 151-month sentence imposed following his conviction by guilty plea to three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). W^einert contends that the district court erred by sentencing him as a career offender under U.S.S.G. § 4B1.1 because his prior California state conviction for shooting at an inhabited building does not qualify as a crime of violence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.\nWe review de novo the district court’s determination that Weinert was a career offender. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991); United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990).\nA defendant qualifies a career offender under the United States Sentencing Guidelines if among other requirements, he has “at least two prior felony convictions of ... a crime of violence.” U.S.S.G. § 4B1.1; accord United States v. Young, 990 F.2d 469, 470 (9th Cir.1993). A “crime of violence” is defined, in part, in Guidelines section 4B1.2 as a state or federal offense punishable by more than one year in prison that either “has as an element the use, attempted use or threatened use of physical force against the person of another, or ... otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(1). “To determine whether a prior conviction is a ‘crime of violence’, we look to ‘the elements of the crime charged or whether the actual charged conduct of the defendant presented a serious risk of physical injury to another.’ ” Young, 990 F.2d at 470 (quoting United States v. Sahakian, 965 F.2d 740, 742 (9th Cir.1992)).\nAt the time of Weinert’s 1984 conviction for shooting at an inhabited building, Cal.Penal Code § 246 provided that: “[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling ... is guilty of a felony.... As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”\nWeinert contends that the California statute cannot be categorically defined as involving a crime of violence because it does not require as an element the use, attempted use, or threatened use of physical force against another person. Thus, he asserts that a conviction under this statute can only qualify as a crime of violence when it is clear that the dwelling shot at was actually occupied.\nWe disagree. The risk of physical injuiy exists in the very nature of shooting at an inhabited dwelling regardless of whether the residence was occupied at the time of the shooting. The act itself presents a risk to neighboring residents, bystanders and law enforcement authorities who may respond. Cf. Taylor v. United States, 495 U.S. 575, 585, 110 S.Ct. 2143, 2151, 109 L.Ed.2d 607 (1990) (recognizing that typical residential and even “professional commercial” burglaries present very serious dangers to those “who might be inadvertently found on the premises”) (citations omitted). Thus, it is the risk inherent in the act of shooting at an inhabited building, as opposed to the presence of a victim, that makes this particular offense a crime of violence. Cf. United States v. Huffhines, 967 F.2d 314, 321 (9th Cir.1992) (possession of a firearm silencer constitutes a crime of violence because such possession necessarily carnes a risk of serious injuiy).\nWeinert additionally contends that his conviction does not involve a crime of violence because Weinert knew that the apartment in question was not occupied at the time of the shooting. This court “takes a categorical approach” and looks only to the statutory definition of the crime, not to the specific conduct that occasions a prior conviction. Becker, 919 F.2d at 570. Weinert’s contention that his particular conviction was not a crime of violence because the apartment he shot at was not occupied lacks merit. Accordingly, the district court did not err by classifying Weinert as a career offender and sentencing him as required by section 4B1.1.\nAFFIRMED.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Humberto Diaz, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.", "Robert L. Brosio and Ronald L. Cheng, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Robert William WEINERT, Defendant-Appellant.\nNo. 93-50061.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted July 21, 1993 .\nDecided July 30, 1993.\nHumberto Diaz, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.\nRobert L. Brosio and Ronald L. Cheng, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.\nBefore: BROWNING, TANG, and NORRIS, Circuit Judges.\nThe panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4."} | BROWNING | TANG | NORRIS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 889 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,947 | Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees | Blazak v. Ricketts | 1993-08-02 | Nos. 91-16549, 91-16562 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: TANG, BEEZER and BRUNETTI, Circuit Judges."], "parties": ["Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees."], "opinions": [{"text": "TANG, Circuit Judge.\nThis is an appeal by officials of the State of Arizona (hereinafter, “the State”) from the grant of habeas corpus to Mitchell Thomas Blazak pursuant to 28 U.S.C. § 2254. The district court granted relief on Blazak’s claim that his due process rights were violated by the state trial court’s failure to determine his competency to stand trial. Blazak cross-appeals the denial of relief as to the remaining challenges to his convictions. These include claims that (1) there was insufficient evidence to sustain his conviction, (2) the accomplice testimony was not corroborated, (3) certain evidence introduced at trial had no probative value, (4) new evidence had been discovered which would likely lead to an acquittal, (5) the State failed to disclose that its key witness (the accomplice) had been released from custody during jury deliberations, (6) Blazak was denied effective assistance of counsel at trial, and (7) Blazak was absent during critical pretrial proceedings.\nBecause we are evenly divided on whether Blazak’s due process rights were violated by the failure to determine his competency to stand trial, the judgment of the district court will stand affirmed. See United States v. Zolin, 491 U.S. 554, 561, 109 S.Ct. 2619, 2625, 105 L.Ed.2d 469 (1989).\nBACKGROUND\nOn December 15, 1973, two men entered the Brown Fox Tavern in Tucson, Arizona. When the bartender refused to hand over any money, one of the men, wearing a ski mask, shot the bartender four times, killing him. The assailant also shot two bar patrons, killing one and seriously injuring the other. The two men fled by automobile.\nBlazak was convicted on November 20, 1974, of two counts of first degree murder, one count of assault with intent to commit murder and one count of attempted armed robbery. He was sentenced to death on the two counts of murder, to incarceration for a period of not less than eighty years nor more than life on the count of assault with intent to commit murder, and to incarceration for a period of not less than twenty years nor more than thirty years on the attempted armed robbery count.\nBlazak appealed his convictions and sentence, which were affirmed. State v. Blazak, 114 Ariz. 199, 560 P.2d 54, 61 (1977). The Arizona Supreme Court subsequently ordered resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (the death penalty statute is unconstitutional insofar as it limits the right of defendants to show all mitigating circumstances), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), and Blazak was resentenced to death on September 11, 1980. State v. Blazak, 131 Ariz. 598, 643 P.2d 694, 695, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Blazak’s convictions and sentence were again affirmed, and he unsuccessfully sought post-conviction relief in the Arizona courts. Id., 643 P.2d at 701.\nBlazak then filed a petition for writ of habeas corpus in federal district court, and was twice allowed to amend his petition. Blazak’s second amended petition contained 37 claims for relief, eleven of which challenged his convictions, and the remaining challenging his death sentence. The district court granted relief as to the convictions and therefore did not consider Blazak’s challenges to his sentence. We considered sua sponte whether this court had jurisdiction over the appeal. We found that the grant of habeas corpus was a final judgment ripe for immediate review. Blazak v. Ricketts, 971 F.2d 1408, 1409, 1412 (9th Cir.1992). Judge Beezer dissented, arguing that a final judgment did not exist, id. at 1418 (Beezer, J., dissenting), and accordingly expresses no view on the merits here.\nAs to the merits of the appeal, a district court’s decision on a petition for writ of habeas corpus is reviewed de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir.1987).\nDISCUSSION\nI.\nWhen Blazak was tried in 1974, it was a violation of due process to prosecute a defendant who was incompetent to stand trial, or to fail to conduct an evidentiary hearing where evidence before the trial court raised a “bona fide doubt” about the defendant’s competency to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 385, 86 S.Ct. 836, 838, 842, 15 L.Ed.2d 815 (1966); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972). This basic doctrine has not changed since 1974. See Medina v. California, — U.S. -, -, -, 112 S.Ct. 2572, 2574, 2581, 120 L.Ed.2d 353 (1992).\nThe State of Arizona, in accord with due process requirements, prohibits the prosecution of a defendant who is not competent to stand trial. See Ariz.R.Crim.P. 11.1 (1992) (“A person shall not be tried, convicted, sentenced or punished for a public offense while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense.”); Ariz. R.Crim.P. 11.3(a) (1992) (“If the court determines that reasonable grounds for an examination exist, it shall appoint at least two mental health experts ... to examine the defendant_”); Ariz.R.Crim.P. 11.5 (1992) (hearing required to determine competency after examinations completed).\nA defendant is competent if “he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). See also Godinez v. Moran, — U.S. -, -, 113 S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993).\nThe district court concluded after an evi-dentiary hearing that Blazak’s right to due process was violated by the state court’s failure to address Blazak’s competency prior to trial. The district court found:\nAt the time of his trial, Petitioner had a history of mental illness and had been found to be incompetent to stand trial in a[n] unrelated case several years earlier. At the [district court] evidentiary hearing, Psychologist Joseph Geffen testified that Petitioner should have been given a competency hearing before the trial. See Transcript of July 31, 1991 Hearing, p. 21. Howard Kashman, Petitioner’s attorney at the trial, testified that, had he known of Petitioner’s history of mental illness, he would have requested a competency hearing. See id. at 90. Medical records indicate that Petitioner had been hospitalized for mental illness several years before the trial, and that he had been diagnosed with several mental illnesses. All of this evidence indicates to this Court that there were reasonable grounds to question Petitioner’s competency at the time of trial.\nThe State argues that none of this evidence was before the state trial court at the time of trial and thus cannot support the district court’s finding that there was reasonable doubt regarding Blazak’s competency. Blazak argues that the evidence, in addition to that cited by the district court, supports the conclusion that a competency hearing was required.\nII.\nPrior to the 1974 convictions challenged in these proceedings, Blazak had a documented history of mental illness. In a previous prosecution Blazak had been found incompetent in Pima County Superior Court, on three separate occasions, although he was eventually declared competent to stand trial. See State v. Blazak, 105 Ariz. 216, 462 P.2d 84, 84-85 (1969); State v. Blazak, 110 Ariz. 202, 516 P.2d 575, 576 (1973).\nBlazak had been charged in April of 1967 with robbery and assault with intent to commit murder. After a nine day hunger strike by Blazak in jail, Blazak’s attorney requested the court to conduct a competency hearing. On June 14, 1967, the first competency hearing was held. The court found that Blazak was not competent to stand trial and committed him to the Arizona State Hospital. The State Hospital discharged him on July 19, 1967. In a second competency hearing held on August 22, 1967, the court again held Blazak incompetent to stand trial and committed him to the State Hospital; Blazak was then again later discharged. The third competency hearing was held on October 16, 1967, and the court again held Blazak incompetent. Blazak was again committed to the State Hospital and released again shortly thereafter. Blazak, 462 P.2d at 84-85.\nThe commitments by the court and the subsequent discharges from the State Hospital seem to have been primarily a result of different diagnoses between Dr. Harrison Baker at the Arizona State Hospital and Dr. Willard Shankel of Pima County General Hospital. Dr. Shankel was of the opinion that Blazak was psychotic and suffered from “schizophrenic reaction, paranoid type.” Dr. Shankel concluded that Blazak was unable to fully understand the charges against him and was unable to cooperate in his defense. Dr. Baker of the State Hospital, on the other hand, concluded that Blazak was a sociopathic personality with a possible symptomatic drug reaction from LSD, but that there was no evidence that Blazak was psychotic. Dr. Baker opined that Blazak was deliberately feigning mental illness, and that he was competent to stand trial. Drs. Pierce and Willis, also of the State Hospital, agreed with Dr. Baker’s diagnosis and concluded that Blazak was competent to stand trial.\nOn April 24, 1968, after Blazak’s third discharge from the State Hospital, Blazak waived any further competency hearing. He then pleaded guilty to both crimes and proceeded to trial on an insanity defense before a judge without a jury; the judge found him sane. The Arizona Supreme Court reversed the convictions, holding that the trial court erroneously placed the burden of proving insanity on the defendant and that Blazak’s waiver of a fourth competency hearing should not have been accepted. Blazak, 462 P.2d at 85-87.\nOn remand from the Arizona Supreme Court, a fourth competency hearing was held before Judge Richard Roylston. Dr. Baker again reported that Blazak was competent to stand trial. Dr. Shankel was still of the opinion that Blazak suffered from paranoid schizophrenia, and stated that eight other psychiatrists had examined Blazak and agreed with this diagnosis. Dr. Shankel now felt, however, that the schizophrenia was in remission, and that Blazak was thus competent to stand trial. A third doctor, Dr. Bennett, testified before Judge Roylston that Blazak understood the charges against him, but that his paranoid illness would “make it difficult for him, if not impossible, to understand the advice and cooperate with ... his attorney.” On March 30, 1970, based on the preceding, the court ruled that Blazak had been competent on April 24, 1968 and thus could not withdraw his guilty plea, and that Blazak was now competent to stand trial on his insanity defense. Blazak then went to trial before a jury on his insanity defense, and was again unsuccessful. The Arizona Supreme Court affirmed the convictions. Blazak, 516 P.2d at 578.\nFour years later, Blazak was tried for the Brown Fox Tavern murders before Judge Richard Roylston, the same judge who had conducted the final competency hearing regarding the previous charges. Blazak was represented by Howard Kashman, who was not aware of Blazak’s history of mental illness or the previous commitments to the State Hospital. Kashman did not request a competency hearing prior to trial.\nThe December' 15, 1974 Presentence Report concluded that Blazak exhibited behavior “characteristic of many psychopaths.” The Presentenee Report also contained synopses of the mental evaluations from 1967 and 1968 as follows:\nIn connection with the defendant’s previous sentencings in 1967 and 1968 he received six mental and personality evaluations:\nOn June 2, 1967[,J William L. Shankel, psychiatrist, concluded, “There is no question in my mind as to this man’s mental illness. In addition, I see him as highly dangerous and it is a wonder that he has not killed someone previously. He will need a long period of mental hospitalization on a maximum security ward, and we can perhaps arrange this through a Rule 250 Hearing.” []\nOn September 12, 1967[,] K.K. Pierce, Phd., psychologist observed, “He exhibits no anxiety and is co-operative at all times.” Pierce wrote [sic] test findings were, “This patient possesses weak integrative and analytic abilities. His thinking is primitive. His control over his aggressive impulses is poor. Some anxiety is present. No signs of psychosis are evident.” The diagnostic impression was, “sociopathie personality disturbance, anti-social reaction.”\nOn November 20, 1967, Pierce added to his report, “The patient is obviously capable of assisting his attorney in his own defense and obviously understands the nature of the charges against him.”\nOn September 18, 1967[,] Harrison M. Baker, psychologist, diagnosed the defendant as, “sociopathie personality, anti-social type.” Continuing, he added[,] “This man represents a sociopathie personality who is deliberately manipulating and feigning mental illness in an attempt to avoid legal consequences.... he does not have a mental illness.... this man is considered competent and able to stand trial.”\nOn November 3, 1967[,] Harper F. Willis, Jr., psychiatrist, gave the following diagnostic impression, “sociopathie personality, anti-social type. Secondary diagnosis L.S.D. psychosis.... I feel this man is considered competent and able to stand trial.”\nOn December 6, 1967[,] Kent E. Durfee, psychologist felt that he could not rule on the defendant’s sanity but reported, “I feel that Mr. Blazak is an extremely dangerous person who should not be free in society until some major psychological changes take place.”\nOn February 5,1968, Dr. Baker, Arizona State Hospital, saw the defendant again and concluded that the prognosis for the defendant’s modification for changes in social behavior was poor. Baker considered the defendant “highly dangerous in an unstructured setting.”\nThe 1974 Presentence Report also attached presentence reports from his prior convictions. The December 8, 1971 Presen-tence Report stated, “Dr. Russell of the Southern Arizona Mental Health Walk-in Clinic was consulted concerning the defen-dant_ Dr. Russell said that based on all the previous psychiatric reports the defendant is a psychopath.”\nThe July 29, 1968 Presentence Report states,\n[Blazak] had three separate Rule 250 Hearings. The respective state hospital commitments [which] resulted from these hearings lasted from June 14, 1967 to July 25; from August 25, 1967, to September 18, 1967; and, from October 16, to February 5,1968. Attached are four state hospital reports covering these three sojourns at the Arizona State Hospital, two of them being for the last period.\nDr. Shankel, in the attached report dated June 2, 1967, opined that Blazak is “highly dangerous.” In a report dated February 5, 1968, Dr. Harrison Baker of the State Hospital staff concurred with Dr. Shankel when he said prognosis is, “Poor for modification of social behavior ... regarded as highly dangerous in an unstructured situation.”\n... during the interim there may be an important breakthrough in the treatment of mental illness, which might be to his advantage.\nMost significantly, Dr. Shankel’s June 2, 1967 report (attached to the 1968 Presen-tence Report) was given to the trial court for the 1974 sentencing. That report states:\nThe diagnostic impression is in this case one of a chronic, undifferentiated schizophrenic reaction, with many paranoid elements. In my opinion, this man is at this time psychotic, and I feel that he was psychotic at the time of the alleged crime. My belief is that his mental illness is of such nature and severity that he was at the time of the alleged crime unable to understand the nature and consequences of his acts, unable to know right from wrong, and unable to adhere to the right. In addition, I believe that he is at this time, because of his mental illness, unable to understand fadly the nature of the charges against him, and unable to cooperate intelligently in his own defense.\n(Emphasis added).\nThe Presentence Report and its attachments brought Blazak’s history of mental illness and the previous competency adjudications directly before the state trial court. Evidence of past incompetency is relevant in determining present competency to stand trial. See United States v. Coplan, 633 F.2d 534, 539 (9th Cir.1980).\nThe evidence before the state trial court was similar to evidence which we have previously found creates a “bona fide doubt” of competency to stand trial. In Moore, we held that the defendant’s due process rights had been violated by a court’s failure to hold a competency hearing, where records before the court indicated an extensive history of mental illness, even though a current psychiatric report concluded that the defendant was competent. Moore, 464 F.2d at 665-66. Similarly, here, the state trial court had records explaining Blazak’s history of mental illness and previous competency adjudications. Moreover, unlike Moore, there was no finding of competency at the time of Blazak’s trial.\nIn Morris v. United States, 414 F.2d 258, 259 (9th Cir.1969), we held that “sufficient doubt” of competency was raised by the pre-sentence report which disclosed a history of mental illness and' a prior finding of insanity, although the defendant had apparently since recovered his sanity. In Rhay v. White, 385 F.2d 883, 884 (9th Cir.1967), we found that testimony at trial regarding the defendant’s “history of chronic mental disturbances, paranoid traits, violent behavioral explosions and previous institutional diagnoses” should have compelled a competency hearing. In that case, defendant’s counsel had informed the trial judge that the defendant “was very close to a psychotic break.” Id. at 885.\nIn contrast, we held in Steinsvik v. Vin-zant, 640 F.2d 949, 952 (9th Cir.1981), that a defendant’s statement that he was a “little confused” prior to the entry of his plea was not sufficient to raise a bona fide doubt. In de Kaplany v. Enomoto, 540 F.2d 975, 977 (9th Cir.) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977), the defendant asserted an insanity defense and was examined prior to trial by three psychiatrists, all of whom were of the opinion that the defendant was sane at the time of the crime and presently sane and able to cooperate with his counsel. During the sanity phase of that trial, psychiatrists testifying for the defense testified that the defendant was suffering from paranoid schizophrenia. We there held that the state trial court did not err by failing to hold a competency hearing:\n[T]he state court at no time was confronted with evidence of a long and extensive history of irrational behavior and mental illness as in Pate, Drope, and Moore. Nor was he, as in Tillery \\v. Eyman, 492 F.2d 1056 (9th Cir.1974], confronted with a psychiatric report which threw doubt on the defendant’s competency to stand trial....\n... [T]he psychiatric testimony favorable to the petitioner presented during the sanity phase was directed toward his responsibility under the criminal law for the crime and not to his competency to stand trial.\nId. at 983. In Blazak’s case, however, the psychiatric evaluations from the previous prosecution were directed toward his competency to stand trial.\nAlthough the significance of the prior findings of Blazak’s incompetency and his history of mental illness may diminish over time, we have held that “mechanical application of a rule that considers only the most recent report ... could lead to the exclusion of highly probative evidence of present incompetence that may be contained in a past report.” Copian, 633 F.2d at 539. Thus, past psychological reports are not to be disregarded as evidence relevant to the competency determination. Further, although Blazak was eventually declared competent, that decision was based,, at least in part, on Dr. Shankel’s report that his paranoid schizophrenia was “in remission.” Thus, the past psychological reports may give support for continuing concern about the reoccurrence of schizophrenia. Further, “once there is ... evidence [which raises a reasonable doubt about the defendant’s competency to stand trial] from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence.” Moore, 464 F.2d at 666.\nFinally, the State argues that the evidence must be presented to the trial court prior to trial and that “what the trial court might have learned after trial is irrelevant to that issue.” We have held otherwise. In Morris, 414 F.2d at 259, we held that where a pre-sentence report discussed the defendant’s history of mental illness, “reasonable cause” required a competency hearing. We stated that “[u]ntil the receipt of the presentence report in this ease there did not appear the ‘reasonable cause’ to trigger the proceedings under 18 U.S.C. § 4244.” Id.\nFurther, in Moore, we held that the failure to conduct a competency hearing deprived the defendant of his right to a fair trial, “unless we can say that there was before the trial court no substantial evidence casting doubt upon his competency at any time before he was sentenced. ” Moore, 464 F.2d at 666 (emphasis added). Clearly, the information presented in the presentence report was before the trial court prior to Blazak’s sentencing. See also Drope, 420 U.S. at 174, 95 S.Ct. at 905 (“In the present case there is no dispute as to the evidence possibly relevant to petitioner’s mental condition that was before the trial court prior to trial and thereafter.”) (emphasis added); Steinsvik, 640 F.2d at 953 (the presentence report indicated that the defendant had significant emotional problems, but did not indicate that he was not competent to stand trial). Although we held in Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991), that a psychological report filed after the trial had begun “could not have contributed to any pre-trial determination of doubt,” that report did not address the defendant’s competence to stand trial and the denial of the writ was not based on the ground that the report was filed after trial.\nThe district court was therefore correct that evidence of Blazak’s history of mental illness and the previous findings of incompetency was before the state trial court. This evidence, alone, is sufficient to conclude that the trial court should have experienced a “bona fide doubt” regarding Blazak’s competency to stand trial in 1974. Further, this evidence must be viewed in concert with Blazak’s pretrial conduct. Chavez v. United States, 656 F.2d 512, 518 (9th Cir.1981) (each piece of evidence regarding a defendant’s competence is not to be viewed in isolation; rather, “the trial judge must evaluate all the evidence and evaluate the probative value of each piece of evidence in light of the -others.”).\nIII.\nBlazak argues that he engaged in bizarre conduct in pretrial hearings. On,September 10, 1974, the State attempted to enforce an order requiring Blazak to provide handwriting exemplars. Blazak stated: “Your honor, I do not refuse the court order. I do refuse to let a lie be created and made into the evidence.” When Judge Roylston stated that he did not make sense, Blazak responded, “Your honor, I can’t comply with a lie and therever [sic] have it made into evidence. That does make quite a bit of sense.”\nThe State argues that under the circumstances this exchange did not exhibit bizarre behavior. Blazak was concurrently being prosecuted for the murder of Ray Sergeant (for which he was acquitted), and a different judge had ordered that exemplars be taken in that case. The State argues that Judge Roylston was “justifiably confused” when Blazak referred to the other case, and that it is significant that neither counsel attempted to clarify Blazak’s statements. However, the transcript reveals that the prosecutor informed Judge Roylston that he was seeking enforcement of an order relating to the other prosecution. Blazak’s comments may reveal paranoid thinking, although alone are not enough to support a conclusion that the judge should have suspected Blazak was incompetent to stand trial.\nFurther, at a hearing on September 25, 1974, Blazak made various allegations, including that the police had secretly searched his apartment and trailer and had seized hypodermic syringes and a typewriter ribbon which they would use as evidence against him, that police had attempted to get him to take part in a gunfight with a third person, that Deputy County Attorney Howard had attempted to dissuade a defense witness from testifying, that Detective Barkman pressured a witness, that mail addressed to his wife and in-laws had been opened, and that his attorney had refused to allow him to interview witnesses at the jail.\nThe State again argues that this did not demonstrate strange or irrational behavior. When taken separately and individually, a rational basis can be found for each of Bla-zak’s complaints, but viewéd as a whole they support an interpretation of paranoid thinking.\nDr. Geffen testified at the district court evidentiary hearing that interactions in the record between Blazak and the court and his attorney indicated that Blazak had difficulty responding in a relevant manner and in focusing on the immediate issues. While this pretrial behavior, without more, might not have been sufficient to alert the trial judge to the need for a competency hearing, when viewed in light of the information brought before the state trial court via the presen-tence report, reasonable doubt most certainly existed as to Blazak’s competency to stand trial.\nIV.\nThe district court cited the testimony of Dr. Joseph Geffen and Howard Kashman to suppoi't its conclusion that the trial court should have held a competency hearing. The State is correct that this testimony was not before the state trial court, and thus cannot be utilized to determine whether there existed a “bona fide doubt” regarding Blazak’s competency.\nV.\nWhen all of the evidence before the state trial court is viewed together, a “bona fide doubt” exists as to whether Blazak was competent to stand trial. The evidence of Bla-zak’s history of mental illness and competency adjudications was brought directly to the attention of the state trial court. The pre-sentence report fully discussed the previous findings of incompetence and the resulting commitments to the State Hospital, included synopses of the various diagnoses of Blazak’s mental problems, and, most significantly, appended a report by Dr. Shankel diagnosing Blazak as a paranoid schizophrenic who was not competent to stand trial. Finally, Blazak engaged in behavior prior to trial which may have indicated paranoid or irrational thinking. The district court’s grant of the writ of habeas corpus is affirmed.\nThis cause is remanded to the district court with instructions to issue the writ within 90 days unless the State elects to retry him within 90 days, following a determination that Blazak is competent to stand trial.\nAFFIRMED.\n. A “bona fide doubt” has also been expressed as \"sufficient doubt,” \"good faith doubt,” \"genuine doubt,” \"reasonable doubt,” and \"substantial question”; these all describe the same constitutional standard. Chavez v. United States, 656 F.2d 512, 516 n. 1 (9th Cir.1981) (collecting cases).\n. These rules have remained unchanged since 1973.\n. Blazak also claims that he was actually incompetent to stand trial. The district court concluded that since over seventeen years had expired since the trial, it would be impossible to determine Blazak's actual competency retrospectively. This was supported by Dr. Geffen’s testimony at the evidentiary hearing that it was not possible to determine retrospectively whether Blazak was actually competent in 1974.\nWhen a petitioner establishes that the evidence before the state trial court raised a bona fide doubt as to his competency, a further inquiry into his actual competency is not necessary due to the difficulties in making retrospective competency determinations. Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975).\n. The State argues that Judge Robert Roylston (Judge Richard Roylston’s twin) conducted the final competency hearing. However, the minute entry from the hearing carries Judge Richard Roylston’s signature.\n. Ariz.R.Crim.P. 250(A), provided, in relevant part:\nIf before or during the trial the court has reasonable ground to believe that the defendant, against whom an indictment has been found or information filed, is insane or mentally defective, to the extent that he is unable to understand the proceedings against him or to assist in his defense, the court shall immediately set a time for a hearing to determine the defendant's mental condition.\nThis rule was superseded by Rule 11, Ariz. R.Crim.P., in 1973.\n. The State argues that this latter finding of competency is a state court finding of fact which should be presumed correct absent one of the statutory factors listed in 28 U.S.C. § 2254(d). However, we are not reviewing the 1970 finding of competency; rather; we are reviewing the district court's conclusion that sufficient evidence existed before the state trial court to cast doubt on petitioner's competency to stand trial.\n. The State argues that Monis does not apply to this case, because Morris dealt with the federal statute mandating a competency evaluation, and \"[t]his is a different standard from Pate’s constitutional due process standard of reasonable doubt.\" The State cites no authority for this proposition, and we have explicitly applied the Pate standard in the 18 U.S.C. § 4244 context. See Moore, 464 F.2d at 666.\n.Contrary to the State's contention, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), is not implicated in this appeal. Because the State argues that there was no evidence before the state trial court that would indicate that a competency hearing was necessary, the State contends that the district court’s finding of a due process violation must be based on a conclusion that a competency hearing is necessary regardless of the evidence before the state trial court and is thus a \"new rule”. However, the district court based its conclusion, at least in part, on evidence before the state trial court and on then-existing law. The only issue on appeal is thus whether the district court was correct that there was sufficient evidence before the state trial court to raise a \"bona fide doubt” as to Blazak’s competency.\n. The district court did not rely on this factor in reaching its conclusion.\n. The State contends that Blazak had heard of the illegal search of the trailer through a secondhand account of a radio broadcast, and it was therefore not the product of hallucination or imagination. Further, Blazak's allegation that Detective Barkman had pressured witnesses was not irrational in view of one witness changing her testimony after interrogation by Barkman. Next, Blazak did not fantasize that the police were setting up a gunfight, because he heard about the plan from a third person. The State argues that his allegations of intimidation of witnesses by the prosecutor was not irrational, but a rational, serious concern. Moreover, the State argues that it was probably true that Blazak’s mail was being opened by jail authorities for censorship.\n. Dr. Geffen opined that there was a reasonable basis in 1974 to conclude that an examination should have been conducted to determine Bla-zak's competency, based on the prior findings of incompetency, the previous medical records, and interactions between Blazak and the court and his attorney.\n. Howard Kashman testified that he was unaware of Blazak's history of mental illness, and that he would have raised the competency issue prior to trial had he known (if only to protect himself from a claim of inadequacy). While he had believed at the time of trial that his client was competent and understood the charges against him, he testified that his opinion might have been different had he known of the mental illness. ’ ■\nKashman also testified that he had some problems communicating with his client prior to trial. When asked if Blazak was able to assist him in his defense, Kashman stated, \"I have trouble with the term 'assist'. He certainly furnished information to me, some of which was helpful and some of which led me on a wild goose chase”. Kashman testified that the \"overwhelming number” of the 20-30 witness .names provided by Blazak turned out not to know anything. When Kashman told Blazak that he would not call these witnesses, Blazak responded, in substance, \"They are lying now. Call them. I want them subpoenaed. Put them on the stand and they’ll tell the truth....” Kashman testified that these communication problems were \"unusual” and that he could not recall \"anything quite like that with other clients....”", "type": "majority", "author": "TANG, Circuit Judge."}, {"text": "BEEZER, Circuit Judge,\ndissenting:\nFor the reasons and upon the authorities contained in my dissenting opinion previously reported, I conclude that we lack jurisdiction to consider the merits of this appeal. Blazak v. Ricketts, 971 F.2d 1408, 1415 (9th Cir.1992).\nI express no views with respect to the merits absent the entry of a final judgment in the district court. I accept and follow the teaching of Justice Scalia in Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) and of Chief Justice Rehnquist in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).\nTheir position, best summarized, is that, when a judge believes that no jurisdiction exists, the judge should express no view on the merits. See Honig, 484 U.S. at 332, 108 S.Ct. at 609 (Scalia, J., dissenting) (“Without expressing any views on the merits of this case, I respectfully dissent because in my opinion we have no authority to decide it”); Orr, 440 U.S. at 300, 99 S.Ct. at 1122 (Rehnquist, J., dissenting) (“I do not think the Court, in deciding the merits of appellant’s constitutional claim, has exercised the self-restraint that Art. Ill requires in this case. I would therefore dismiss Mr. Orr’s appeal”).\nI am also aware of a modified position taken in a concurring opinion filed by Justice Stevens in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). In that case, Justice Stevens, after arguing that the Court lacked jurisdiction, proceeded to vote on the merits. See Johnson, 460 U.S. at 89-90, 103 S.Ct. at 978-79 (Stevens, J., concurring in judgment) (Because no jurisdiction exists, “I therefore would simply dismiss the writ of certiorari. Because a fifth vote is necessary ..., I join the disposition which will allow the judgment of the Connecticut Supreme Court to stand.”). Justice Stevens did not, however, express any views on the merits of the case other than through his vote.\nAs the members of the panel who agree that this court has jurisdiction are divided on the merits, the prevailing opinion cannot be cited as precedent in future cases. Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 378, 34 L.Ed.2d 401 (1972).", "type": "dissent", "author": "BEEZER, Circuit Judge,"}, {"text": "BRUNETTI, Circuit Judge,\ndissenting:\nThis case presents the question of whether the trial court had sufficient evidence before it to call sua sponte for a competency hearing. Because I believe that the evidence was insufficient, I dissent.\nI\nI will first summarize the situation facing the trial court prior to Blazak’s sentencing in November 1974. The strongest evidence of Blazak’s incompetence was the presentence report, which contained summaries of seven psychiatric reports prepared for Blazak’s 1968 trial. Not one of these reports explicitly found Blazak incompetent to stand trial. Two — Dr. Shankel’s and Dr. Durfee’s — declared him to be highly dangerous, and requiring mental hospitalization, but neither declared him incompetent. However, the other three psychiatrists — Drs. Baker, Pierce, and Willis — explicitly found him competent to stand trial.\nThe 1974 presentenee report also contained the presentence report prepared for Blazak’s 1968 sentencing. The 1968 presen-tence report noted that Blazak had thrice before been declared incompetent to stand trial and committed to the state mental hospital. The 1968 presentence report also included Dr. Shankel’s June 2, 1967 psychiatric report, which found Blazak incompetent to stand trial. Counterbalancing this evidence of incompetence was the trial court’s subsequent determination in 1970 that Blazak was competent to stand trial.\nThe majority opinion asserts that Blazak also exhibited behavior in pretrial hearings which, viewed with Blazak’s history of mental illness contained in the presentence report, should have shown Blazak’s attorneys and the court that there was reasonable doubt as to his competency to stand trial. However, despite this allegedly “bizarre” behavior — his refusal to provide handwriting exemplars and his allegations at the September 26, 1974 hearing — Blazak’s attorney Kashman never requested a competency hearing, and apparently neither the trial court nor the prosecutor saw a need for one either.\nII\nTo summarize, the evidence of Blazak’s incompetence in November 1974 consisted of (a) the allegedly “bizarre” pretrial behavior and (b) the three 1967 determinations of incompetence, based primarily if not exclusively on the diagnosis of one psychiatrist— Dr. Shankel. Counterbalancing this evidence were (a) attorney Kashman’s apparent belief in his client’s competence, (b) the trial court’s 1970 determination that Blazak was competent to stand trial, and (c) the three 1967-68 psychiatric reports, from three different doctors, finding Blazak competent. When contrasted with the situations presented in our prior decisions, I find the totality of this evidence to be insufficient as a matter of law to raise sufficient doubt of Blazak’s incompetence for a hearing to have been constitutionally required.\nThe cases that most strongly support Bla-zak’s position are Moore v. United States, 464 F.2d 663 (9th Cir.1972), and Morris v. United States, 414 F.2d 258 (9th Cir.1969), both of which are cited by the majority opinion to support its holding. However, Moore is distinguishable from the present situation on the ground that the court there had recent reports from a psychiatrist and the Bureau of Prisons describing the defendant’s extensive mental problems. In fact, the reason the psychiatrist had prepared the report was that the defendant’s attorney had moved for a psychiatric examination under 18 U.S.C. § 4244. Moore, 464 F.2d at 665. In Blazak’s case, however, all the court had were conflicting six- and seven-year old psychiatric reports, along with a defendant who was basically rational and his attorney who had never moved for a psychiatric exam, let alone a competency hearing. As we explained in Chavez v. United States, 656 F.2d 512 (9th Cir.1981),\na current psychiatric report might amount to substantial evidence of incompetence and thus raise a good faith doubt that cannot be dispelled by resort to conflicting evidence of competence without a hearing. On the other hand, an old psychiatric report indicating incompetence in the past may lose its probative value by the pas sage of time and subsequent facts that all point to present competence.\nId. at 518 (citation omitted) (emphasis added). In Blazak’s case, any “substantial doubt” of incompetence created by the 1967— 68 psychiatric reports was outweighed by the 1970 finding of competence and the lack of any significant indication in 1974 that Blazak was incompetent to stand trial.\nMoms provides stronger support for Bla-zak’s position. As in Blazak, no competency hearing was requested by either party or the court. In a very short opinion, we held that:\nUntil the receipt of the pre-sentence report in this case there did not appear the “reasonable cause” to trigger the proceedings under 18 U.S.C. § 4244. But the history of mental illness and treatment, the finding that at a prior period appellant had at that time been insane, although apparently found thereafter to have recovered his sanity and the prior findings at various times of a psychotic condition, all contained in the pre-sentence report, provided the “reasonable cause to believe” [that defendant might be incompetent].\nMorris, 414 F.2d at 259. At a general level, this holding provides support for Blazak’s position. However, it is impossible to tell from the Morris opinion how old the prior findings of insanity and psychosis were, and whether any intervening events had reduced their validity.\nBy contrast, our more recent decisions in United States v. Caplan, 633 F.2d 534 (9th Cir.1980) and Steinsvik v. Vinzant, 640 F.2d 949 (9th Cir.1981) provide stronger support for the State’s position than Moore and Morris do for Blazak’s. In Caplan, the district court had before it in March 1979 an October 1978 finding by an Arizona state court that the defendant was incompetent to stand trial, followed by a February 1979 psychiatric report concluding that the defendant was competent to stand trial. The district court declined to hold a competency hearing. Id. at 537.\nWe affirmed the district court’s decision. Id. at 540. We noted that the 1978 finding of incompetence was based on psychiatric reports addressing defendant’s mental state at the time, and not at any future date. Id. at 541-42. We further noted that the defendant had been hospitalized after the finding of incompetence, and that following treatment had been found competent by a psychiatrist. “[The earlier reports] were not substantial evidence of appellant’s present incompetency.” Id. at 541 (emphasis added). Similarly, in Blazak’s case, the 1967-68 psychiatric reports and 1967 finding of incompetence were not “substantial evidence” of Blazak’s incompetence in 1974, especially given the 1970 finding of competence.\nFurthermore, unlike the attorney in Ca-plan, attorney Kashman here never moved for a competency hearing. We have previously held that a defense attorney’s failure to request a competency hearing indicates an “apparent belief’ in the client’s competence to stand trial and is a factor weighing against the need for a competency hearing. De Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). See also Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) (“We deem significant the fact that the trial judge, government counsel, and Hernandez’s own attorney did not perceive a reasonable cause to believe Hernandez was incompetent.”).\nIn Steinsvik, the trial court had before it a presentence report which disclosed that only 18 months previously, the defendant had been hospitalized for mental health problems and had been diagnosed as a borderline chronic paranoid schizophrenic. Id. at 953. We adopted the finding of the magistrate that although\n[t]he presentence report obviously indicated that Steinsvik had significant emotional problems ... there is absolutely nothing in it to have indicated to the trial judge that Steinsvik was not competent either at the time of plea or when he was sentenced.\nId. Similarly, although Blazak’s presentence report indicated that Blazak had significant emotional problems, there was nothing in it to indicate that he was not competent to stand trial in November 1974.\nSteinsvik supports the State’s position in another respect as well. Like Blazak, Stein-svik had exhibited bizarre behavior during the proceedings against him; at the time of the entry of his guilty plea, he expressed some confusion regarding the sentencing procedures and the entry of the guilty plea. However, this court found that his behavior did not indicate a lack of competence to plead guilty. Id. at 952. Similarly, Blazak’s behavior (and particularly his refusal to submit a handwriting exemplar) should not be viewed as indicating a lack of competence to stand trial. See De Kaplany, 540 F.2d at 978 (single courtroom outburst by defendant not sufficient evidence of incompetence to require a competency hearing).\nOverall, Caplan and Steinsvik provide strong support for the State’s position that the evidence before the Arizona trial court was not sufficient to raise a reasonable doubt regarding Blazak’s competence to stand trial and thereby trigger the need for a competency hearing. The trial court here could reasonably have concluded, like the trial courts in Caplan and Steinsvik, that the older psychiatric reports and findings of incompetence were outweighed by the later finding of competence, the lack of any behavior on Blazak’s part that would indicate incompetence, and the lack of any request from Blazak’s attorney for a competency hearing. I dissent and would remand to the district court for consideration of the remaining twenty-six challenges to his death sentence which were not previously addressed by the district court.\n. The majority contends that Blazak's behavior ”support[s] an interpretation of paranoid thinking.” However, there appears to be little justification for this assertion. The objection to the handwriting exemplar could just as easily be explained by a confusion over which case was at issue or over evidence law, and the allegations did have some basis in fact. See n. 10 of majority opinion. If Blazak had been truly incompetent to stand trial, he would have given far more drastic evidence of mental infirmities than these two small incidents.", "type": "dissent", "author": "BRUNETTI, Circuit Judge,"}], "attorneys": ["Robert Bartels, Arizona State University College of Law, Tempe, AZ, for petitioner-appellee-cross-appellant.", "Natman Schaye, Tucson, AZ, for petitioner-appellee-cross-appellant.", "R. Wayne Ford, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellants-eross-appel-lees."], "corrections": "", "head_matter": "Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees.\nNos. 91-16549, 91-16562.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Oct. 16, 1992.\nDecided Aug. 2, 1993.\nRobert Bartels, Arizona State University College of Law, Tempe, AZ, for petitioner-appellee-cross-appellant.\nNatman Schaye, Tucson, AZ, for petitioner-appellee-cross-appellant.\nR. Wayne Ford, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellants-eross-appel-lees.\nBefore: TANG, BEEZER and BRUNETTI, Circuit Judges."} | TANG | BEEZER | BRUNETTI | 1 | 3 | 1 | 2 | 0 | 0 | 1 F.3d 891 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,514,981 | INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellant, v. G.I. TRUCKING COMPANY, et al., Defendant-Appellee | Insurance Co. of North America v. G.I. Trucking Co. | 1993-08-02 | No. 92-15234 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FAIRCHILD , BEEZER, and WIGGINS, Circuit Judges."], "parties": ["INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellant, v. G.I. TRUCKING COMPANY, et al., Defendant-Appellee."], "opinions": [{"text": "WIGGINS, Circuit Judge:\nFACTS\nOn April 19, 1988, G.I. Trucking Company (“G.I.”) transported a shipment of intraocular lenses from Los Angeles to Calexico, California, for Eye Technology, Inc. (“Eye Tech”). The shipment was damaged, and Eye Tech sought and received compensation for its damages from its insurer, Insurance Company of North America (“INA”). Having paid Eye Tech’s claim, INA became the subrogee of Eye Tech’s rights against G.I.\nOn December 2, 1988, Recovery Services, International (“RSI”), INA’s subrogation unit, sent a letter to G.I. stating:\nWe are the Subrogation Dept. for the Insurance Co. of North America: The Insurer of Eye Technology, Inc. This letter is our preliminary notice of loss/damage to the shipment of lenses in the amount of $100,000 (Estimate). Please note that we have not yet paid this claim to our insured; as soon as we will make payment to them we will send the final claim bill to you. We are enclosing herewith supporting documents pertaining to above file for your record.\nOn March 3, 1989, INA paid Eye Tech $97,500, and on March 27, 1989, RSI forwarded a “Standard Form for Presentation of Loss” to G.I., claiming entitlement to $100,000.00. On April 4, 1989, G.I. denied responsibility and refused to pay the claim. The parties corresponded over the course of several months, but G.I. continued to deny any liability on INA’s claim.\nOn April 4, 1991, INA filed suit against G.I. in California State court. INA asserted two causes of action, one for carrier liability and one for negligence. G.I. denied the allegations and removed the action to federal district court. G.I. then filed a motion for summary judgment, alleging that INA and Eye Tech had failed to file a claim for losses within the nine month period as per the bill of lading, the Carmack amendment, and regulations promulgated thereunder.\nThe district court, 783 F.Supp. 1251, granted G.I.’s motion for summary judgment stating that “[cjlearly ... the plaintiffs December 2nd claim was for an ‘uncertain amount’ and did not constitute a legally sufficient claim within the requirements of the ICC regulations.” INA appeals.\nSTANDARD OF REVIEW\nWe review a grant of summary judgment de novo. F.D.I.C. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992); Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there is a genuine issue of material fact and whether the district court applied the relevant substantive law correctly. F.D.I.C., 969 F.2d at 747; Jones, 968 F.2d at 940.\nDISCUSSION\nG.I. Trucking and Eye Tech entered into a carrier contract that incorporated by reference the Uniform Bill of Lading (“UBL”) as part of the contract. Section 2.(b) of the UBL indicates that a written claim must be filed within nine months for a party to recover from a carrier for damage, loss, or delay. Courts have long recognized the reasonableness and validity of such provisions in bills of lading and have routinely enforced them. See, e.g., Northern Pac. Ry. v. Mackie, 195 F.2d 641, 642 (9th Cir.1952). Parties, however, are forever litigating whether a particular communication constitutes a sufficient written notice of claim. Indeed, that is the issue before us.\nG.I. contends that INA cannot recover for its losses because of its failure timely to file a written notice of claim. INA, on the other hand, maintains that its December 2nd letter satisfies the claim requirement. We agree with INA.\nThe Interstate Commerce Commission (“ICC”) has promulgated regulations that outline the minimum requirements of a written notice of claim under the UBL. The regulations provide that a notice must be in writing and contain (1) “facts sufficient to identify the baggage or shipment ... of property, (2) [an assertion] of liability for alleged loss, damage, injury, or delay, and (3) a claim for the payment of a specified or determinable amount of money[J” 49 C.F.R. § 1005.2(b) (1992).\nParagraph (d) of § 1005.2 deals specifically with claims for uncertain amounts. 49 C.F.R. § 1005.2(d) (1992). It states that when such a claim is filed, the carrier against whom it is filed shall determine the condition of the baggage or shipment involved at the time of delivery and shall ascertain as nearly as possible the extent, if any, of the loss or damage for which the carrier may be responsible. Id. Paragraph (d) proscribes voluntary payment of the claim until a formal claim in writing is filed in accordance with the provisions of paragraph (b). Id.\nInitially, it appears that these regulations govern resolution of this case. However, the circuits are split on the issue of whether the regulations apply to contested claims. Thus, the first issue we must resolve is whether the ICC regulations outlined above apply here.\nSection 1005.1 of the ICC regulations, entitled “Applicability of regulations,” provides that the regulations “shall govern the processing of claims for loss, damage, injury, or delay to property transported ... in interstate or foreign commerce.... ” Id. § 1005.1. The First and Second Circuits have concluded that this language indicates that the regulations are meant to apply to all claims against carriers, contested or uncontested. See Nedlloyd Lines v. Harris Transport, 922 F.2d 905, 907 (1st Cir.1991); Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 904 (2nd Cir.1980) (stating that “the regulations provide the appropriate standard for assessing the sufficiency of all claims irrespective of the way they may subsequently be resolved or adjudicated”), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981). The Seventh Circuit, however, has ruled that the regulations apply only to uncontested claims. See Wisconsin Packing Co. v. Indiana Refrigerator Lines, Inc., 618 F.2d 441, 445 (7th Cir.) (en banc), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980).\nWhile this court has decided two “written claims” cases since promulgation of the regulations, neither of the decisions directly address whether the regulations apply to contested claims. See Culver v. Boat Transit, Inc., 782 F.2d 1467 (9th Cir.1986); Taisho Marine & Fire Ins. Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir.1985). However, the Culver court implies that the regulations apply to contested claims. See Culver, 782 F.2d at 1468-69 & n. 1 (addressing certain provisions of 49 C.F.R. § 1005 and indicating that they are consistent with the court’s decision). Moreover, we find the rationale of Nedlloyd persuasive on this issue. In holding that the regulations applied to contested as well as uncontested claims, the Nedlloyd court stated:\nIf the ICC regulations were held to apply only to uncontested claims, a carrier could control its own obligations under the regulations by deciding whether or not to contest a claim. In other words, once it received an adequate notice of claim, a carrier could choose to settle the claim voluntarily, in which case it would be required to follow the ICC regulations concerning processing and payment. Alternatively, by denying liability, the shipper could avoid the ICC procedure for responding to an adequate claim and force the shipper to file suit. Thus, limiting the applicability of the regulations to voluntarily-settled claims would permit precisely the type of discrimination among claimants that the regulations were intended to address.\nNedlloyd, 922 F.2d at 908 (citation omitted). Based on the implied application of the regulations to a contested claim in Culver and the rationale of Nedlloyd, we hold that the ICC regulations apply to contested claims.\nHowever, our determination that the regulations apply to contested claims does not completely resolve this case. We must also determine whether a written claim must specify a dollar amount to be legally sufficient under the regulations. While this court has never addressed this question directly, We have held that a claim, which did not specify an amount, was legally sufficient following promulgation of the regulations. Culver, 782 F.2d at 1467-69. Other circuits, however, have held that a claim must specify an amount of damages to be considered legally sufficient under the regulations. See Nedlloyd, 922 F.2d at 908-09; Pathway Bellows, 630 F.2d at 900-03 (court ruled that a letter was not sufficient notice because it did not affirmatively assert liability against the carrier and failed to claim a specified or ascertainable amount of damages). We expressly reject this conclusion.\nCases decided by this court after promulgation of the ICC regulations have held that written claims are to be construed liberally and that the standard for determining sufficiency is one of substantial performance. Taisho, 762 F.2d at 1368; see also Culver, 782 F.2d at 1469. Citing Wisconsin Packing, the Taisho court stated that “[t]he form of the written notice is less important than its adequacy in apprising the carrier of the basis for the claim and of the fact that reimbursement will be sought.” Taisho, 762 F.2d at 1368. The Culver court limited Taisho, noting that “Taisho simply relaxed the need for a formal claim in limited situations.” Culver, 782 F.2d at 1469. The Culver court also indicated that after Taisho a shipper cannot recover damages if a written claim is required under the bill of lading, and one is not filed within the period provided by the bill. Id. Moreover, the Culver court concluded that “[1] a written notice of damage, coupled with [2] a clearly communicated intent to hold the carrier liable, plus [3] the carrier’s investigation, suffices as a written claim.” Id. Notably, the court did not indicate that an amount had to be specified in order to satisfy the written claim requirement.\nHere, there was a written notice of damage and a clearly communicated intent to hold G.I. liable. Moreover, the record indicates that G.I. performed some investigation of the claim. Under Taisho and Ctilver, nothing more is required to satisfy the written claim requirement. Indeed, the purpose of the written claim requirement is not to permit the carrier to escape liability, but to insure that the carrier may make a prompt and thorough investigation of the claim. See Quiver, 782 F.2d at 1469; Pathway Bellows, 630 F.2d at 903 n. 5. The December 2nd letter accomplished this purpose.\nIn addition, we are not convinced that the December 2nd letter does not satisfy the regulations even if strictly applied. INA sent a written communication that clearly identified the shipment and asserted liability. Moreover, while the letter did not specify an amount of damages, that amount was arguably determinable from the other information given in the letter or already available to the carrier. While some would debate whether the claim complied with the regulations in every respect, a liberal construction of the letter leads to the conclusion that the letter substantially complied with the regulations.\nFinally, it seems that the notice in this case served its purpose. It identified the shipment, contained a clear intention to hold the carrier liable, and gave what proved to be a reasonable estimate of the claim amount. No more is needed to permit the carrier to make a prompt and thorough investigation, which is the purpose of the notice requirement. See Culver, 782 F.2d at 1469. Accordingly, we conclude that the Dec. 2nd letter was a legally sufficient written notice of claim, and we REVERSE the district court’s grant of summary judgment in favor of G.I.\n. The district court indicated that the plaintiff in Culver had noted the amount of damage on the bill of lading. Thus, the district court concluded that Culver supported G.I.’s position because the notation on the bill of lading provided the parties in that case with the exact information that the parties here lacked, i.e., the amount of damages. However, the district court misapprehended the character of the notation on the bill of lading in Culver. The notation on the bill of lading stated: \"Damage to boat due to accident 1/18/82. Damage and repair pending.” Culver, 782 F.2d at 1468. No dollar amount was attached to the damages until later.\n. It is unclear from the record to what extent G.I. investigated this claim. At the hearing on the motion for summary judgment, the parties appeared to agree that the reason an amount had not been specified by INA within the nine month period was because INA was looking into the possibility of salvaging the lenses. Both parties apparently thought that the lenses could be re-sterilized and sold on the market. G.I. maintains that it did not perform the kind of investigation it normally would have in the case of a $100,000 claim because it believed that the goods would be salvaged. G.I. contends that this belief was based on representations made by Eye Tech and INA.\nWere we to rule in G.I.’s favor on the basis that a full investigation was not undertaken, we would create a rule that would permit a carrier to avoid liability by failing to investigate a claim even when provided with the information necessary to undertake the investigation. Thus, we conclude that a carrier’s failure to investigate a claim or failure thoroughly to investigate a claim when provided with the necessary information, including facts necessary to identify the goods and put the carrier on notice as to the potential liability, will not prevent recovery for the damaged goods.\n. As indicated previously, we must construe a written claim liberally under a standard of substantial performance. See Taisho, 762 F.2d at 1368.\n. G.I. also argues that paragraph (d) of 49 C.F.R. § 1005.2, entitled \"Claims for uncertain amounts,\" precludes INA’s action for damages. However, we read the paragraph differently. Paragraph (d) proscribes voluntary payment of a claim that does not meet the requirements of paragraph (b), but it does not necessarily preclude the presentation of such a claim in a court of law. The First Circuit has indicated that the regulations must be read to bar a subsequent suit if a sum certain of damages is not claimed within the nine month period. Nedlloyd, 922 F.2d at 908. Otherwise, the court contends the regulatory purpose of encouraging voluntary settlement would be frustrated because a shipper could bring an action against a carrier without first providing the carrier the opportunity voluntarily to pay a properly notified claim. Id. We find this argument unpersuasive. We fail to see why shippers will be eager to circumvent the notice requirements, avoid voluntary settlement, and embark upon expensive, time-consuming litigation to recover their damages. Moreover, we believe that there are circumstances, such as those presented by the facts of this case, in which a claim should be considered sufficient even though it docs not specify the amount of damages. See also Nedlloyd, 922 F.2d at 909 (excusing the failure to specify an amount of damages in certain situations).", "type": "majority", "author": "WIGGINS, Circuit Judge:"}], "attorneys": ["Glen R. Olson, Long & Levit, San Francisco, CA, for plaintiff-appellant.", "James Attridge, Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, CA, for defendant-appellee.", "Kenneth E. Siegel and Patricia J. McCabe, Alexandria, VA, and William D. Bierman, Westwood, NJ, for amicus curiae Nat. Freight Claims and Sec. Counsel.", "William J. Augello, Augello, Pezold & Hirschmann, Huntington, NY, for amicus curiae Transp. Claims and Prevention Counsel."], "corrections": "", "head_matter": "INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellant, v. G.I. TRUCKING COMPANY, et al., Defendant-Appellee.\nNo. 92-15234.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted June 18, 1993.\nDecided Aug. 2, 1993.\nGlen R. Olson, Long & Levit, San Francisco, CA, for plaintiff-appellant.\nJames Attridge, Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, CA, for defendant-appellee.\nKenneth E. Siegel and Patricia J. McCabe, Alexandria, VA, and William D. Bierman, Westwood, NJ, for amicus curiae Nat. Freight Claims and Sec. Counsel.\nWilliam J. Augello, Augello, Pezold & Hirschmann, Huntington, NY, for amicus curiae Transp. Claims and Prevention Counsel.\nBefore: FAIRCHILD , BEEZER, and WIGGINS, Circuit Judges.\nHon. Thomas E. Fairchild, Senior United States Circuit Judge for the 7th Circuit Court of Appeals, sitting by designation."} | FAIRCHILD | BEEZER | WIGGINS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 903 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,001 | John A. BREDA, Plaintiff-Appellant, v. Alan M. SCOTT; Galton, Popick & Scott, Defendants-Appellees | Breda v. Scott | 1993-08-03 | No. 91-36300 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: FARRIS and THOMPSON, Circuit Judges, and HARDY, District Judge."], "parties": ["John A. BREDA, Plaintiff-Appellant, v. Alan M. SCOTT; Galton, Popick & Scott, Defendants-Appellees."], "opinions": [{"text": "FARRIS, Circuit Judge:\nJohn A. Breda brought suit against Alan M. Scott and Scott’s former law firm, Galton, Popick & Scott, for legal malpractice. The district court granted summary judgment for Scott, holding that the attorneys were immune from liability under 29 U.S.C. § 185(b), Section 301(b) of the Labor Management Relations Act. Breda appeals.\nWe affirm.\nWe review a grant of summary judgment de novo. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). Breda claims that Scott mishandled his union grievance over his discharge from the Oregon Symphony Association. Scott represented the Union at the arbitration of the grievance as he had in some 150 arbitrations over the previous eighteen years. The arbitrator upheld Breda’s discharge. Breda brought an unsuccessful action against the Symphony and the Union. He then filed this action for legal malpractice against Scott and his law firm.\nSection 301(b) provides that “[a]ny money judgment against a labor organization ... shall not be enforceable against any individual member or his assets.” 29 U.S.C. § 185(b). “When Congress passed § 301, it declared its view that only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy.” Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247, 82 S.Ct. 1318, 1324, 8 L.Ed.2d 462 (1962). Section 301(b) immunity extends to union agents. Id. at 247-48, 82 5.Ct. at 1324-25. We explained in Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), that “attorneys who perform services for and on behalf of a union may not be held hable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process.”\nThe grievance hearing was part of the collective bargaining process. Breda argues that Scott is liable. He contends that Peterson only applies to in-house union counsel and that public policy requires that outside counsel be held liable for negligent services. We reject the argument. “[W]hether it be house counsel or outside union counsel, where the union is providing the services, the attorney is hired and paid by the union to act for it in the collective bargaining process.” Id. at 1258.\nThe policy reasons for extending section 301(b) immunity to retained counsel are straightforward. Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir.1989). “[Pjermitting malpractice suits whenever a union’s legal strategies fail” would slow the processing and determination of labor disputes. Id. at 6. State statutes of limitations for legal malpractice are generally far longer than the six-month deadline for bringing unfair labor practice charges. Peterson, 771 F.2d at 1259 & n. 10.\nFurthermore, while “[njegligence is the essence of a malpractice action,” the standard for proving that the union breached its duty of fair representation is much higher. Id. at 1259. The union’s conduct must be arbitrary, discriminatory, or in bad faith. Id. Permitting suits against retained attorneys would make it easier for an employee to recover from a union’s agent than from the union itself. The attorney might be held liable for essentially political and strategic decisions of the union. As a result, the cost of legal services to the union would rise. Id. at 1260.\nBreda relies upon public policy for his argument that lawyers are accountable for negligently rendered legal services. In Building Materials & Dump Truck Drivers, Local No. 420 v. Traweek, 867 F.2d 500, 508 (9th Cir.1989), we held that the Union could not sue one of its members under section 301. Breda argues that if the LMRA precludes him from suing Scott for malpractice, it likewise precludes the Union from suing Scott. He concludes that if outside counsel is immune from suit by both the Union and the employee, union counsel can commit malpractice with impunity.\nWe make no distinction between in-house and outside union counsel. Peterson holds that employees cannot sue inside union counsel for malpractice for services rendered as part of the collective bargaining process. Peterson, 771 F.2d at 1259. In-house counsel immunity creates the same public policy concern as outside counsel immunity. We find no reason to treat the two differently.\nAragon v. Federated Dept. Stores, Inc., 750 F.2d 1447 (9th Cir.1985) is not to the contrary. In Aragon, we held that federal law did not preempt a malpractice claim against a law firm for its mishandling of a labor grievance. Id. at 1457. As we did not have jurisdiction over the state law malpractice claim, we did not reach the issue of whether the LMRA afforded union counsel immunity from suit for services rendered as part of the collective bargaining process. Diversity jurisdiction permits us to reach the question here. We hold that counsel is immune.\nAll of Scott’s services were performed for the union as part of the collective bargaining process. Scott and his firm are immune from liability.\nAffirmed.\n. Of course, Breda's reading of Traweek may be incorrect. The union may be able to bring a malpractice action against an attorney who acts as its agent. See Peterson, 771 F.2d at 1259. That question is not presented.", "type": "majority", "author": "FARRIS, Circuit Judge:"}], "attorneys": ["John A. Breda, pro per.", "Thomas W. Brown, Cosgrave, Vergeer & Kester, Portland, OR, for defendants-appel-lees."], "corrections": "", "head_matter": "John A. BREDA, Plaintiff-Appellant, v. Alan M. SCOTT; Galton, Popick & Scott, Defendants-Appellees.\nNo. 91-36300.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted July 16, 1993.\nDecided Aug. 3, 1993.\nJohn A. Breda, pro per.\nThomas W. Brown, Cosgrave, Vergeer & Kester, Portland, OR, for defendants-appel-lees.\nBefore: FARRIS and THOMPSON, Circuit Judges, and HARDY, District Judge.\nPursuant to Ninth Circuit Rule 34-4, the panel unanimously finds this case suitable for disposition without oral argument.\nHonorable Charles L. Hardy, Senior United States District Court Judge for the District of Arizona, sitting by designation."} | FARRIS | THOMPSON | HARDY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 908 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,031 | UNITED STATES of America, Plaintiff-Appellee, v. Russell Grozier BISHOP, Defendant-Appellant | United States v. Bishop | 1993-08-03 | No. 92-10413 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: GOODWIN, NORRIS, and RYMER, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Russell Grozier BISHOP, Defendant-Appellant."], "opinions": [{"text": "WILLIAM A. NORRIS, Circuit Judge:\nRussell Bishop appeals his convictions for bank robbery and for conspiracy to commit bank robbery. He also challenges his classification as a career offender for purposes of sentencing. We affirm his convictions, but vacate his sentence and remand for resen-tencing.\nI\nBishop argues that the district court abused its discretion in admitting evidence that he committed an earlier, unrelated bank robbery. He argues (1) that this evidence was inadmissible under Rule 404(b) because it was offered merely to prove his criminal disposition; and (2) that the district court admitted this evidence without making explicit findings concerning the balance of factors under Rule 403. Although both of these arguments would deserve scrutiny in an appropriate case, we need not reach them in this case. If the admission of this evidence was error, it was harmless error.\nThe case against Bishop was overwhelming. He was identified at trial by the bank teller and by a bank patron who pursued the robber out the front door. In addition, Bishop’s mother and brother both identified him from a bank surveillance photograph taken during the robbery. Finally, an FBI agent testified that Bishop had confessed to committing the robbery. Defense counsel was unable to shake any of this testimony on cross-examination. We are confident that the verdict would have been the same in the absence of the prior bank robbery evidence.\nII\nBishop next argues that the district court erred in denying his motion for a judgment of acquittal on the conspiracy count. He contends that the prosecution failed to produce sufficient evidence that he entered into a conspiracy to rob the bank. We reject this argument.\nTo prove a conspiracy, the government must prove that defendant entered into “an agreement to accomplish an illegal objective.” United States v. Rubio-Villareal, 927 F.2d 1495, 1499 (9th Cir.1991). The government does not have to prove the existence of a formal agreement. United States v. Caplan, 633 F.2d 534, 542 (9th Cir.1980). Rather, it can prove the existence of a conspiracy through circumstantial evidence that defendants acted together in pursuit of a common illegal goal. United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).\nHere, in addition to evidence that Bishop robbed the bank, there was evidence: (1) that Bishop ran out of the bank and got into the passenger side of a small brownish foreign car after the driver of the car kicked open the door for him; (2) that the getaway car belonged to the wife of Bishop’s co-defendant, Steven Boyes; (3) that Steven Boyes pled guilty to the conspiracy in the same indictment for which defendant was on trial; (4) that Bishop’s mother had met a friend of the defendant’s named Steve two or three days prior to the day of the bank robbery; and (5) that Bishop’s mother gave an accurate physical description of Steve and testified that she had seen Steve standing near a small dark-colored car.\nThis was enough to permit the jury to infer that Steven Boyes was the driver of the small, dark getaway car, and that Bishop and Boyes had at least an informal agreement to cooperate in committing the robbery.\nIll\nBishop argues that he was improperly classified as a career offender because the district court should have counted his three prior residential burglary convictions as one offense, rather than three. We agree.\nUnder U.S.S.G. § 4A1.2(a)(2), “[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of’ the criminal history calculation. U.S.S.G. § 4A1.2(a)(2) (emphasis added). At the time of Bishop’s present offense, the commentary to § 4A1.2(a)(2) stated that “[clases are considered related if they ... were consolidated for trial or sentencing.” U.S.S.G. § 4A1.2, Application Note 3 (1990). Bishop’s three prior residential burglary convictions were consolidated at sentencing. Under this definition, therefore, his convictions should have been counted as a single offense.\nThe government argues, however, that Bishop’s prior convictions are not “related cases” for purposes of § 4A1.2(a)(2), and must be counted separately, because the convictions were for offenses separated by an intervening arrest. This argument is based on an amendment to the Guidelines commentary that took effect after Bishop committed the current offense. In late 1991, the commentary to § 4A1.2(a)(2) was amended to say that “[p]rior sentences are not considered related if they were for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2, Application Note 3 (1991). The government contends that this 1991 amendment was not a substantive change, but a clarifying amendment that should be given substantial weight in construing the 1990 version of § 4A1.2(a)(2). We disagree.\nBecause the 1991 amendment does not plainly serve to clarify pre-existing law, rather than to alter it, the amendment carries no weight in construing the 1990 version of § 4A1.2(a)(2). See United States v. Martinez, 946 F.2d 100, 102 (9th Cir.1991) (“[W]here the circumstances surrounding the relevant guideline and its amendment fail to make clear that the amendment’s purpose was merely to clarify rather than to alter pre-existing law, we will confer no weight on the subsequent amendment.”).\nBishop’s three prior convictions should have been counted as a single offense under the 1990 edition of the Guidelines, thus making him ineligible for career offender status.\nThe convictions are AFFIRMED, the sentence is VACATED, and the case is REMANDED for resentencing.\n. A district court’s interpretations of the Guidelines are reviewed de novo. United States v. Marco, 868 F.2d 1121, 1123 (9th Cir.1989).\n. Finally, the government argues that even if Bishop was improperly classified as a career offender, his sentence is nevertheless justified as an upward departure from his proper Guideline sentence. We reject this argument. The decision whether to depart upward from a Guideline sentence is committed to the discretion of the district court. It is not our role to exercise that discretion in the first instance.", "type": "majority", "author": "WILLIAM A. NORRIS, Circuit Judge:"}, {"text": "GOODWIN, Circuit Judge,\nconcurring:\nThe reversal of this sentence in this case illustrates the folly of the Sentencing Guideline scheme. Any layman would recognize instantly that this defendant is a career criminal. He was convicted of discrete crimes, and he picks up a windfall because two separate crimes were combined for processing in the state courts. I concur only because the result is compelled by Martinez.", "type": "concurrence", "author": "GOODWIN, Circuit Judge,"}], "attorneys": ["John G. Bogart, Tucson, AZ, for defendant-appellant.", "Claire K. Lefkowitz, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Russell Grozier BISHOP, Defendant-Appellant.\nNo. 92-10413.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted June 14, 1993.\nDecided Aug. 3, 1993.\nJohn G. Bogart, Tucson, AZ, for defendant-appellant.\nClaire K. Lefkowitz, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.\nBefore: GOODWIN, NORRIS, and RYMER, Circuit Judges."} | GOODWIN | NORRIS | RYMER | 1 | 2 | 1 | 0 | 1 | 0 | 1 F.3d 910 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,061 | Ralph S. SLOTTOW; Fidelity Federal Bank, Plaintiffs-counterdefendants-Appellees, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellant; Ralph S. SLOTTOW, Plaintiff-counterdefendant, and Fidelity Federal Bank, Plaintiff-counterdefendant-Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellee | Slottow v. American Casualty Co. | 1993-08-04 | Nos. 91-55698, 91-55804 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, HUG, and KOZINSKI, Circuit Judges."], "parties": ["Ralph S. SLOTTOW; Fidelity Federal Bank, Plaintiffs-counterdefendants-Appellees, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellant. Ralph S. SLOTTOW, Plaintiff-counterdefendant, and Fidelity Federal Bank, Plaintiff-counterdefendant-Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellee."], "opinions": [{"text": "KOZINSKI, Circuit Judge:\nThis coverage dispute between a bank and an insurance company involves a directors and officers’ liability policy. The appeal raises various issues, the most significant among them being, under which circumstances is it appropriate to award punitive damages against an insurance company for choosing to contest coverage?\nBackground\nFidelity National Trust is a subsidiary of Fidelity Federal Bank. In the 1980s, FNT served as trustee for investors in loan pools underwritten by Commercial Acceptance Corporation. Ralph S. Slottow, President of FNT (who was also an officer and director of the bank), signed and supervised the trust agreements for the investments. Disgruntled CAC investors sued CAC in state court for fraud, claiming the entire venture had been a Ponzi scheme. The investors alleged Slottow, FNT and the bank were to blame, too, for lax enforcement of the trust agreements; they sued them for breach of contract, negligence and breach of fiduciary duty.\nThe Superior Court granted summary judgment for Slottow on the contract claim, but denied it on the negligence and breach of fiduciary duty claims. In the shadow of liability for the remaining claims, Slottow and FNT settled the CAC suit for $4.75 million. The bank in turn indemnified Slottow for the amount of the settlement, along with his fees and expenses; the bank also picked up FNT’s part of the tab. In approving the settlement payments, the bank’s Board of Directors allocated them as follows: $0 to the bank itself; $170,000 (4%) to FNT; and $4.58 million (96%) to Slottow. See Exh. 337.\nThe Association to which the bank (and also FNT) belong held a D & O policy with American; the bank sought reimbursement under the policy for the amount paid on Slottow’s behalf. American refused, maintaining that Slottow’s actions as President of FNT weren’t covered by the policy, that the bank had failed to exhaust the policy’s retention (deductible) and that too much of the settlement was allocated to Slottow. In response, Slottow and the bank sued American in the Central District of California for declaratory relief, breach of contract and breach of the implied covenant of good faith and fair dealing for its refusal to reimburse the bank. American counterclaimed, seeking declaratory relief as to the policy’s retention provision and the allocation of the settlement.\nThe district court ruled prior to trial that the retention was $10,000, not $500,000 as American had urged. It also ruled that Slot-tow’s actions at FNT were indeed covered by the policy, but it deferred ruling until trial on whether American’s failure to pay amounted to bad faith. After a bench trial, the court essentially approved the settlement allocation, although it did increase FNT’s share slightly, to $350,000; the remaining $4.4 million was left to Slottow. The court also found American had acted in bad faith in several respects. The total judgment was $10,358,586, of which $5,000,000 was punitive damages. Finally, the court denied the bank’s request for costs and fees. Both sides appeal.\nI\nAmerican argues the district court erred in holding the D & O policy obligated it to reimburse the bank for Slottow’s actions. Because the bank prevailed on summary judgment as to this issue, we review de novo. E.g., T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987).\nClause (b) of the policy requires American to reimburse the bank for “all Loss for which the Association is required to indemnify or for which the Association has, to the extent permitted by law, indemnified the Directors or Officers.” Exh. 303 at 2. The governing regulation, 12 C.F.R. § 545.121(f), states that “an association which has a bylaw in effect relating to indemnification of its personnel shall be governed solely by that bylaw.” We therefore look to the bank’s bylaws to determine whether the bank was required or permitted to indemnify Slottow; if it was, then American was obligated to reimburse the bank.\nArticle III, section 14 of the bylaws states the “Association shall indemnify any person against whom an action is brought or threatened because that person is or was a director, officer, or employee of the Association.” ER 152 at 23. The policy defines “Association” to include “any Subsidiary as defined in Clause 1(f),” exh. 303 at 2; “the term ‘Subsidiary’ as defined in Clause 1(f) of the Policy ... include[s] ... Fidelity National Trust Company,” id. at 23. The import of these provisions, taken together, is clear: The bank must indemnify any director or officer of the Association (which includes FNT) for any actions brought against him in his official capacity. Slottow was sued because he allegedly was negligent in managing FNT’s operations, causing financial harm to the CAC investors. Liability for Slottow’s actions is therefore covered by the policy.\nAmerican asserts that permitting the bank to indemnify Slottow for his activities on behalf of FNT violates 12 C.F.R. § 545.121. It argues that a bank may only indemnify persons for liability incurred “in their capacity as directors, officers, or employees” of the indemnifying association, 12 C.F.R. § 545.-121(d); thus the bank cannot indemnify Slot-tow in his capacity as an FNT officer, since FNT is a separate corporate entity from the bank. But the policyholder is the Association, of which both the bank and FNT are members. Furthermore, as we shall see, American argues with some force that the bank is the alter ego of FNT. See p. 917 infra. Because Slottow’s duties at FNT were performed at the bank’s behest, it was perfectly appropriate for the bank to indemnify him for liability incurred in discharging those duties, even though he served a subsidiary corporation as well.\nAmerican also argues that, because the Association and Slottow entered into an indemnity agreement apart from the general indemnity provision of Article III of the bylaws, the reimbursement to him was made pursuant to this agreement, not pursuant to the bylaws. This is sophistry. As the bank was obligated by the bylaws to reimburse Slottow, the fact that it was also required to do so by virtue of an agreement doesn’t change the fact that it had an obligation under the bylaws. Whatever other effect it may have had, the bank’s reimbursement of Slottow satisfied its obligation under the bylaws.\nAccordingly, the district court correctly determined that American had to reimburse the bank under the D & O policy for Slot-tow’s share of settlement.\nII\nAmerican appeals from the district court’s ruling that the allocation of the settlement between Slottow, the bank, FNT and the investors in the underlying action was a good faith settlement. A “settlement ... made in good faith” prevents later claims of indemnity from other joint tortfeasors. Cal.Civ.Proc. Code § 877.6(c). In approving the settlement, the bank’s board of directors allocated 96% to Slottow, 4% to FNT and 0% to the bank. Although the district court adjusted the allocation slightly — diminishing Slottow’s share to 93% and raising FNT’s to 7% — it found that the “allocation arrived at by the Fidelity Federal board bore a reasonable relationship to the relative exposure of the parties to the underlying litigation.” ER 184 at 10. We treat the district court’s ruling as to a good faith settlement as a finding of fact, which we reverse “only upon a showing that it was clearly erroneous because of lack of evidentiary support or erroneous application of law.” Owen v. United States, 713 F.2d 1461, 1466 (9th Cir.1983) (California law). But we review de novo the legal conclusions undergirding the court’s factual findings. E.g., Power v. Union Pacific R.R. Co., 655 F.2d 1380, 1382-83 (9th Cir.1981).\nA. A settlement was not entered in good faith if it doesn’t reasonably reflect the parties’ relative liabilities. Owen, 713 F.2d at 1466. We therefore reject the bank’s initial argument that we should consider the parties’ allocation of the settlement to be conclusive. “We find ... no justification for giving presumptive effect to an allocation that is not the product of adverse negotiation. A presumption that the parties have reasonably allocated a settlement amount ... should be reserved for a settlement by parties with truly adverse interests in the allocation. Where the parties have purported to settle an imaginary dispute over allocation, that allocation should be given no special treatment in an indemnity action.” Peter Culley & Assoc, v. Superior Court, 10 Cal. App. 4th 1484, 1497-98, 13 Cal.Rptr.2d 624 (1992) (citation omitted).\nThis is exactly our case. Slottow and the bank didn’t have adverse interests; on the contrary, each had a strong incentive to structure the settlement precisely as it did. The bank faced liability as the alter ego of FNT; it knew it could avoid costly liability and public ignominy by allocating 0% of the liability to itself and 96% to Slottow. And the bank knew it could indemnify Slottow— who also sat on the bank’s Board — while being fully reimbursed by American under the terms of the policy. Slottow and the bank thus crafted a win-win solution for themselves, with the insurance company footing the bill.\nFar from deferring to allocations such as these, we view them with considerable suspicion because of the risk that liability may have been allocated for strategic reasons, as almost certainly happened here. We can’t blame the bank or Slottow for trying to structure the settlement in a manner that best served their interests; but we can’t let their allocation bind American. See Pacific Estates, Inc. v. Superior Court, 13 Cal.App. 4th 1561, 1573-74, 17 Cal.Rptr.2d 434, 442-43 (1993).\nB. Under California law, the district court was required to determine the allocation of defendants’ respective shares of the total settlement award reasonably reflected their “proportional share of comparative liability for the plaintiffs injuries.” Tech-Bilt, Inc. v. Woodward-Clyde & Assoc., 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159 (1985). Under this standard we must look to whether the “settlement ... reflected] a good-faith estimate of the relative liabilities of the parties at the time of settlement.” Owen, 713 F.2d at 1466; see also Xebec Dev. Partners, Ltd. v. National Union Fire Ins. Co., 12 Cal.App. 4th 501, 549, 15 Cal.Rptr.2d 726 (1993).\nThe district court rested its determination that Slottow was responsible for 93% of the settlement on a variety of factors: the opinion of the investors’ counsel that their claims against Slottow were strong; statements by Slottow’s lawyer that his client faced substantial liability; and the action of the bank’s Board of Directors in allocating the lion’s share of the settlement to Slottow. Yet the contract claim against Slottow had been dismissed on summary judgment before settlement, leaving only the negligence and breach of fiduciary duty claims. Although Slottow may have faced liability to the bank for his mistakes, “a corporation’s employees owe no independent fiduciary duty to a third party with whom they deal on behalf of their employer.” Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149, 1154 (9th Cir.1990) (California law); accord United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 595, 83 Cal.Rptr. 418, 463 P.2d 770 (1970). The mere fact that Slottow signed the agreements in the ordinary course of his duties as President of FNT does not convert his actions into the type of personal direction or participation in the tort that would expose him to substantial risk of personal liability. See Self-Insurers’ Security Fund v. ESIS, Inc., 204 Cal.App.3d 1148, 1162-63, 251 Cal.Rptr. 693 (1988). By assigning 93% of the liability to Slottow, the district court significantly overestimated Slottow’s personal exposure in the underlying litigation.\nAt the same time, the district court probably underestimated FNT’s potential liability and certainly underestimated the bank’s. Without a doubt, the one party that faced the greatest exposure in the state court lawsuit was FNT: If anyone had a direct duty of care to the investors, FNT was it; moreover, it was the only party to the trust agreements, and undoubtedly faced substantial liability for its actions. Yet the settlement only allocated $170,000 of a $4.75 million dollar settlement to FNT' — a scant 4%. ER 184 at 10 (findings below). Although the district court doubled this amount to $350,000 (the amount of FNT’s net worth), this was still only about 7% of the total settlement — far too low in light of the fact that (deep pockets aside) FNT was the principal defendant in the state court action.\nIn equating FNT’s liability with its net worth, the district court apparently assumed FNT’s exposure could not exceed the value of its assets. But the ability to collect a judgment directly from FNT is only one factor to be taken into account in evaluating the reasonableness of the allocation of the settlement to FNT. See Woodward-Clyde & Assoc., 38 Cal.3d at 499, 213 Cal.Rptr. 256, 698 P.2d 159. While the plaintiffs could have collected no more than the value of FNT’s assets from FNT itself, there was a strong likelihood they would have collected much more than that from the bank on an alter ego theory. Thus, the district court should have increased the amount of FNT’s liability in proportion to the likelihood the plaintiffs would be able to recover some of the judgment against FNT from the bank.\nAnd, in fact, the plaintiffs in the underlying action had an excellent argument under an alter ego theory for piercing the corporate veil. To begin with, FNT’s initial capitalization of $500,000 was woefully inadequate for a corporation that handled trust agreements of the magnitude involved here. The investors claimed damages in the range of $10,000,000; the case settled for nearly half that. Under California law, inadequate capitalization of a subsidiary may alone be a basis for holding the parent corporation liable for acts of the subsidiary. See, e.g., Nilsson, Robbins, Dalgam, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1544 (9th Cir.1988) (citing Minton v. Cavaney, 56 Cal.2d 576, 15 Cal.Rptr. 641, 364 P.2d 473 (1961)).\nCalifornia law also allows the corporate form to be disregarded when there is unity of interest and ownership between the two corporations, and an inequitable result would follow if the corporations were treated as separate entities. Mesler v. Bragg Management Co., 39 Cal.3d 290, 300, 216 Cal.Rptr. 443, 702 P.2d 601 (1985). The bank owned 100% of Citadel Service, which in turn owned 98% of FNT. All of FNT’s officers— most especially Slottow himself — were officers of the bank. Other relevant factors are the use of the same business location, the same lawyers, the failure to maintain arms’ length transactions between the entities, representations that the parent’s assets will cover the subsidiary’s debts — all of which were present here. See United Community Church v. Garcin, 231 Cal.App.3d 327, 343, 282 Cal.Rptr. 368 (1991) (Spencer, P.J., concurring).\nIt is not entirely clear what the bank’s exposure was in light of these factors, but it certainly was much more than zero. Indeed, had plaintiffs managed to pierce the corporate veil, the bank would have been on the hook for the entire judgment. Thus the bank’s exposure was precisely that of FNT, discounted by the possibility the bank could have preserved r the corporate form.\nIll\nWe next address American’s argument that the district court erred in ruling the appropriate retention (deductible) for the policy was $10,000. American argues the retention was $500,000. The dispute turns on the following language:\nIt is understood and agreed that item 4 of the Declarations is hereby amended to read as follows:\n[$]10,000 each Director of Officer each Loss, but in no event exceeding\n$100,000 in the aggregate each Loss all Directors and Officers Liability under Insuring Clause (a)\n$500,000 in the aggregate each Loss under Company Reimbursement Insuring Clause (b).\nExh. 303 at 30. According to American, the $10,000 per officer or director per loss retention applies only to Clause (a); Clause (b) has a flat $500,000 retention. The bank, on the other hand, argues the $10,000 retention applies to claims under either Clause (a) or (b). According to the bank, it’s responsible for a $10,000 retention for each loss it suffers as a result of its D & O claims under Clause (b), but no more; the $500,000 is not a deductible but a ceiling the individual $10,000 retentions may not exceed. The difference in this case between the two interpretations is $490,000.\nThe problem is, the retention provision lacks the punctuation necessary for us to ascertain its meaning. A colon after “exceeding” would have made it apply equally to both clauses; a semicolon after “Insuring Clause (a)” would have limited the $10,000 cap to Clause (a). As written, the policy provides no clue on this question, so we resolve the dispute based on the canon of construction that ambiguities in a written instrument are resolved against the drafter. E.g., Consolidated Am. Ins. Co. v. Mike Soper Marine Servs., 951 F.2d 186, 188-89 (9th Cir.1991) (California law). American could have written the policy so as to eliminate the ambiguity by inserting what is obviously missing from this provision — punctuation. We see no reason to give it the benefit of the doubt created by its own careless drafting. We therefore affirm the district court’s interpretation of the retention provision.\nIV\nThe district court also held American breached the implied covenant of good faith and fair dealing. Specifically, it found American acted in bad faith in opposing the bank’s settlement allocation; it also found that American failed to investigate its obligations, offer arbitration or pay Slottow’s attorney’s fees in the underlying litigation. The court also faulted American for maintaining Slot-tow wasn’t covered by the policy, and for its interpretation of the split retention agreement. ER 184 at 12-14. The court imposed $5,000,000 in punitive damages. Id. at 16-17. Only the award of punitive damages and the denial of attorney’s fees are being appealed. We review a district court’s findings of bad faith for clear error, In re Wolverton Assoc., 909 F.2d 1286, 1292 (9th Cir.1990), and the underlying legal rulings de novo, Power v. Union Pac. R.R. Co., 655 F.2d at 1382-83.\nA. Punitive damages aren’t available in California for simple breaches of contract, no matter how willful. Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375 (9th Cir.1985). Rather, the breach must have been tortious, and the breaching party must have “been guilty of oppression, fraud, or malice,” Cal.Civ.Code § 3294; see also Silberg v. California Life Ins. Co., 11 Cal.3d 452, 462-63, 113 Cal.Rptr. 711, 521 P.2d 1103 (1974); Mock v. Michigan Millers Mutual Ins. Co., 4 Cal.App. 4th 306, 327, 5 Cal.Rptr.2d 594 (1992); Patrick v. Maryland Casualty Co., 217 Cal.App.3d 1566, 1575, 267 Cal.Rptr. 24 (1990). Put another way, punitive damages are recoverable only where the defendant “act[ed] with the intent to vex, injure, or annoy.” Neal v. Farmers Ins. Exck, 21 Cal.3d 910, 922, 148 Cal.Rptr. 389, 582 P.2d 980 (1978) (citation omitted).\nWe apply this standard in light of the relative economic power, sophistication and legal expertise of the parties. What might be acceptable behavior between two large corporations butting heads in the marketplace looks quite different when there is a substantial difference in economic power or sophistication between the parties. Indeed, California cases upholding punitive damages typically do so in cases involving small plaintiffs, usually ones that are in distress of one form or another. In Neal, for example, puni-tives were proper where the insurance company deliberately capitalized on the “lamentable circumstances in which Mrs. Neal and her family found themselves, and the exigent financial situation resulting from it.” 21 Cal.3d at 923, 148 Cal.Rptr. 389, 582 P.2d 980. Likewise Betts v. Allstate Ins. Co., 154 Cal.App.3d 688, 201 Cal.Rptr. 528 (1984), imposed punitive damages on Allstate where it had “wilfully manipulated its own client through ... coaching, encouraging a patently unreasonable belief in 17-year-old Betts that she had not run the red light.” Id. at 709, 201 Cal.Rptr. 528; see also Nolin v. National Convenience Stores, Inc., 95 Cal.App.3d 279, 288, 157 Cal.Rptr. 32 (1979).\nWhat we have here is a much different situation. Fidelity Federal Bank is a federally chartered savings bank and owns several financial institutions, including FNT. It has ready access to legal advice and controls substantial assets, placing it on relatively equal footing with American. Neither the bank nor American faced a threat to its existence or financial stability because of this dispute; each simply went about its business while the controversy percolated. Such rough equality of economic power and sophistication precludes a finding of oppression; American’s refusal to pay the claim simply could not have oppressed the bank.\nNor does the record support a finding that the insurance company acted fraudulently. American had a different interpretation of the contract than the bank, and was perfectly up front about it. Nor was there a showing that American acted with malice; this was a contract dispute, where each side advanced its position aggressively, nothing more. We therefore cannot find evidence supporting an implicit finding that American acted with intent to “vex, injure or annoy.” It is possible, of course, that the filing of a lawsuit itself is done to vex, injure or annoy another party, but seldom do commercial disputes rise to this level. Disagreement over insurance coverage—so long as the issues disputed are bona fide—is an ordinary cost of doing business. Nothing in California law suggests a refusal to provide coverage as requested by an insured, when the refusal is supported by a reasonable, good faith argument, can form the basis for punitive damages.\nHere American won on some of its claims and it lost on others. All its arguments were plausible; none was laughable. There was no showing American tried to take advantage of the bank’s vulnerability, or that it denied any of the claims hoping it could get the bank to settle for less than American knew it was entitled to. Under these circumstances, the award of punitive damages cannot be sustained.\nB. The district court imposed punitive, but not compensatory, damages for American’s breach of the covenant of good faith and fair dealing. Because we reverse the award of punitive damages, that leaves only the bank’s appeal from the denial of the award of attorney’s fees as damages: Oddly, the bank did not appeal the denial of ordinary compensatory damages. Attorney’s fees, while recoverable when an insurer has acted tortiously, are limited to the amount due under the policy; fees expended on obtaining amounts in excess of the policy, such as consequential damages, aren’t recoverable. Brandt v. Superior Court, 37 Cal.3d 813, 817-19, 210 Cal.Rptr. 211, 693 P.2d 796 (1985). Because the bank made no effort to segregate its litigation expenses as required by Brandt, we affirm the district court’s decision not to award fees.\nFinally, the bank asks us to remand (rather than affirm) on the issue of fees so it may prove up its damages, i.e., do the necessary segregation of fees which Brandt requires. But Brandt’s rule is not new; the bank has no excuse for failing to comply with it the first time around. We therefore decline the bank’s invitation to remand, and affirm the denial of fees.\nAFFIRMED IN PART, REVERSED IN PART and REMANDED\nThe bank's reliance on the Office of Comptroller of the Currency’s approval of FNT's initial capitalization is unavailing because that approval was dependent on FNT’s affiliation with the bank — and its deep pocket. See ER 104 at 96. This makes it more likely the bank would have been required to shoulder some of FNT's liability.", "type": "majority", "author": "KOZINSKI, Circuit Judge:"}], "attorneys": ["Radcliff & West, Los Angeles, CA, and Barry R. Levy, Christina J. Imre, Stephen E. Norris, George P. Schiavelli, Horvitz & Levy, Encino, CA, for American Cas. Co. of Reading, PA.", "Dennis M. Perluss, Margot A. Metzner, Hufstedler, Kaus & Ettinger, Ralph B. Perry III, Lawrence S. Graven, Howard B. Brody, Graven Perry Block Brody & Qualls, Los Angeles, CA, for Fidelity Federal Bank."], "corrections": "", "head_matter": "Ralph S. SLOTTOW; Fidelity Federal Bank, Plaintiffs-counterdefendants-Appellees, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellant. Ralph S. SLOTTOW, Plaintiff-counterdefendant, and Fidelity Federal Bank, Plaintiff-counterdefendant-Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-counterclaimant-Appellee.\nNos. 91-55698, 91-55804.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted March 3, 1993.\nDecided Aug. 4, 1993.\nRadcliff & West, Los Angeles, CA, and Barry R. Levy, Christina J. Imre, Stephen E. Norris, George P. Schiavelli, Horvitz & Levy, Encino, CA, for American Cas. Co. of Reading, PA.\nDennis M. Perluss, Margot A. Metzner, Hufstedler, Kaus & Ettinger, Ralph B. Perry III, Lawrence S. Graven, Howard B. Brody, Graven Perry Block Brody & Qualls, Los Angeles, CA, for Fidelity Federal Bank.\nBefore: BROWNING, HUG, and KOZINSKI, Circuit Judges."} | BROWNING | HUG | KOZINSKI | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 912 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,085 | UNITED STATES of America, Plaintiff-Appellee, v. Javier Rodriguez SOTO, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco VALENCIA, Defendant-Appellant | United States v. Soto | 1993-08-04 | Nos. 92-50230, 92-50254 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: KOZINSKI, SUHRHEINRICH and T.G. NELSON, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Javier Rodriguez SOTO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco VALENCIA, Defendant-Appellant."], "opinions": [{"text": "SUHRHEINRICH, Circuit Judge:\nJavier Rodriguez-Soto (Soto) and Jose Francisco-Valencia (Valencia) appeal their convictions for conspiracy to distribute and to possess with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. Valencia also appeals his conviction for possession with intent to distribute fifty-four kilograms of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). Both defendants claim an impermissible variance in the indictment. Valencia also alleges prosecutorial misconduct, a speedy trial violation, and improper exclusion of expert testimony. Finding each of these contentions to be without merit, we AFFIRM.\nI.\nOn August 29,1991, following an undercover narcotics investigation, members of the Los Angeles Police Department seized fifty-four kilogram packages from co-defendant Guilberto Silva De La Torre’s residence. The same day, the Los Angeles County Attorney’s Office charged Valencia, Soto, De La Torre, and several others in the Los Angeles Superior Court with violations of the state narcotics laws. The state attorney’s office dismissed its charges against defendants, however, after the present federal charges were brought.\nOn September 13, 1991, the United States Attorney’s Office for the Central District of California filed a criminal complaint against the same defendants, and on October 1, 1991, a federal grand jury returned a three-count indictment against Valencia, Soto, De La Torre, Jesus Ramirez and Maria Del Rocio Valencia Shirley. Count one charged all defendants with conspiring to distribute and to possess with intent to distribute excess of five kilograms of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 846. Count two charged defendants Valencia, De La Torre and Shirley with possessing with intent to distribute approximately fifty-four kilograms of a mixture or substance containing a detectable amount cocaine, in violation of 21 U.S.C. § 841(a)(1). Count three charged all defendants with possessing with intent to distribute approximately fifteen kilograms of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1).\nAt trial the government established through the stipulated testimony of LAPD Forensic Chemist Joseph Hourigan, that the contents of each of the packages consisted of “a mixture or substance containing a detectable amount of cocaine hydrochloride.” The jury found Valencia guilty of counts one and two. Soto was convicted of count one and acquitted on count three. These appeals followed.\nII.\nA.\nBoth defendants contend that the district court erred in denying their motion for judgment of acquittal on the grounds that the proof at trial varied from the charges of which they were convicted. As noted, the indictment charged defendants with conspiring to “possess with intent to distribute five (5) kilograms or more of a mixture or substance containing a detectable amount of cocaine .... ” Defendants claim that the charged offenses related to “cocaine” or “cocaine base,” but that the proof offered at trial related to “cocaine hydrochloride.” Defendants contend that as a matter of scientific fact, the compound “cocaine” is identical to the compound “cocaine base” and that both are distinct from the compound “cocaine hydrochloride.”\nA variance in proof occurs when the charging terms of the indictment are not challenged, but the evidence offered at trial proves facts materially different from those alleged in the indictment. United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir.1992) (per curiam) (citations omitted), cert. denied, — U.S. -, 113 S.Ct. 1427, 122 L.Ed.2d 795 (1993). Reversal is not required however unless the defendant shows prejudice thereby. Id. (citations omitted).\nDefendants’ argument overlooks the fact that the legal definitions of cocaine, cocaine base and cocaine hydrochloride differ from their chemical definitions. First of all, cocaine and cocaine base are not synonymous terms under the penalty provisions of 21 U.S.C. § 841(a). See 21 U.S.C.A. §§ 841(b)(l)(A)(ii)(II) (West Supp.1993) (designating penalty for violation of “5 kilograms or more of a mixture or substance containing a detectable amount of cocaine....”) and (b)(l)(A)(iii) (describing penalty for offense involving “50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base ... ”). Thus, the question becomes whether “cocaine hydrochloride” falls under the rubric “cocaine,” “cocaine base,” or some other subsection of 841(b). This court has noted that the term “cocaine base” excludes some forms of cocaine, namely cocaine salts, such as cocaine hydrochloride. United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990) (dicta) (holding that 21 U.S.C. § 841(b) was not unconstitutionally vague because expert testimony in case indicated that term “cocaine base” excludes “cocaine hydrochloride,” which is a cocaine salt). As a “salt” of cocaine, cocaine hydrochloride is thus encompassed in the legal definition of cocaine under § 841(b)(1)(A)(ii)(II), which proscribes the penalty for violations of § 841(a) involving “5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, its salts, optical and geometric isomers, and salts of isomers ...” (emphasis added). Thus, under § 841(b) cocaine hydrochloride is defined as cocaine. Therefore, no variance occurred.\nThe Sentencing Guidelines lend further support. See United States v. Shaw, 936 F.2d 412, 415 (9th Cir.1991) (presumption that Sentencing Commission intended Guidelines terms to have same meaning as terms Congress used in correlating statutes). The Guidelines do not differentiate between cocaine and cocaine salts; but draw distinctions only between cocaine and cocaine base. See U.S.S.G. § 2Dl.l(c) (Nov. 1991). The application notes provide that “[a]ny reference to a particular controlled substance in these guidelines includes all salts, isomers, and all salts of isomers.” Id. § 2D1.1, comment, (n. 5) (emphasis added). Thus, there was no factual variance between the indictment and the proof at trial.\nAssuming there had been a variance, defendants have not established prejudice. In fact, had they been charged and sentenced for possession of cocaine base, they would have received a greater sentence because the penalty for cocaine base is more severe than that for cocaine. Cf., 21 U.S.C. §§ 841(b)(1)(A)(ii)(II) and (b)(1)(A)(iii) (providing same penalties for five kilograms of cocaine and fifty grams of cocaine base). See also U.S.S.G. § 2D1.1(c)(2) (giving base offense level of 40 to offenses involving five kilograms of cocaine base) and (c)(6) (base offense level of 32 appropriate for crime involving five kilograms of cocaine).\nB.\nValencia claims that the district court erred in refusing to dismiss the indictment for prosecutorial misconduct. Specifically, he contends that the government and the State of California deprived him of due process by conspiring to dismiss the state charges in favor of the federal ones. Absent any allegation that the prosecutor’s charging decision was based on an unconstitutional motive such as gender or race, we lack the authority to review his claim. Wade v. United States, — U.S. -, -, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992); United States v. Sitton, 968 F.2d 947, 953 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993). Had we reviewed the merits, we would have rejected the challenge anyway because “there are no grounds for finding a due process violation, even when the motive for federal prosecution is that harsher sentences are possible.” United States v. Nance, 962 F.2d 860, 865 (9th Cir.1992).\nC.\nValencia also argues that he was deprived of his right to a speedy trial under the Speedy Trial Act because his state arrest occurred on August 29, 1991, and the federal indictment was not handed down until October 1,1991. Defendant therefore claims that he was deprived of his right to be charged by indictment within thirty days of arrest. See 18 U.S.C. 3161(b). This court has held however, that the date of the defendant’s state arrest does not initiate the federal prosecution for the purpose of his speedy trial right. United States v. Romero, 585 F.2d 391, 398 (9th Cir.1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 492 (1979). “[T]he speedy trial right under the Sixth Amendment is not activated until the date of federal accusation.” Id. (internal quotations and brackets omitted) (emphasis in original). Thus, because Valencia’s speedy trial rights did not arise until the date of the federal indictment, there was no violation of the Speedy Trial Act. Finally, notwithstanding his claim, Valencia’s trial was commenced within seventy days from the filing of the federal indictment. This contention is without merit.\nD.\nLastly, Valencia asserts that the district court erred when it excluded testimony from an expert witness in organic chemistry. The district court has wide latitude to exclude expert testimony, and we will reverse its decision only for manifest error. United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir.1991). We agree with the district court that the proffered testimony would not have materially assisted the jury since it was offered in support of defendants’ theory that cocaine, as charged in the indictment, is not cocaine hydrochloride, which we have just rejected.\nIII.\nFor all the foregoing reasons, defendants’ convictions are AFFIRMED.\n. The government dismissed the entire indictment, as to defendant Valencia Shirley, and count three of the indictment, as to defendant Valencia prior to trial. Defendants Ramirez and Silva De La Torre pleaded guilty prior to trial. The jury convicted defendant Rodriguez of count one of the indictment.", "type": "majority", "author": "SUHRHEINRICH, Circuit Judge:"}], "attorneys": ["Loretta S. Shartsis, Sherman Oaks, CA, for defendant-appellant Javier Rodriguez Soto.", "Roger S. Hanson, Santa Ana, CA, for defendant-appellant Jose Francisco Valencia.", "Robert L. Brosio and Walter F. Brown, Jr., Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee U.S."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Javier Rodriguez SOTO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Francisco VALENCIA, Defendant-Appellant.\nNos. 92-50230, 92-50254.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted May 6, 1993.\nDecided Aug. 4, 1993.\nAs Amended Sept. 20, 1993.\nLoretta S. Shartsis, Sherman Oaks, CA, for defendant-appellant Javier Rodriguez Soto.\nRoger S. Hanson, Santa Ana, CA, for defendant-appellant Jose Francisco Valencia.\nRobert L. Brosio and Walter F. Brown, Jr., Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee U.S.\nBefore: KOZINSKI, SUHRHEINRICH and T.G. NELSON, Circuit Judges.\nThe Honorable Richard F. Suhrheinrich, Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation."} | KOZINSKI | SUHRHEINRICH | T.G. NELSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 920 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,128 | Barbara E. FRALEY, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, et al., Respondents-Appellees | Fraley v. United States Bureau of Prisons | 1993-08-04 | No. 93-35066 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, TANG, and NORRIS, Circuit Judges."], "parties": ["Barbara E. FRALEY, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, et al., Respondents-Appellees."], "opinions": [{"text": "PER CURIAM:\nFederal prisoner Barbara Fraley appeals the district court’s dismissal of her 28 U.S.C. § 2241 petition for writ of habeas corpus. Fraley was convicted of passing counterfeit currency in violation of 18 U.S.C. § 472 and sentenced to ten months’ imprisonment followed by two years of supervised release. She seeks credit against her sentence for the seven months she spent under house arrest prior to trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.\nI\nWhile this appeal was pending, Fraley completed her term of imprisonment and was released. However, because our decision could affect her two-year term of supervised release, this ease is not moot. United States v. Smith, 991 F.2d 1468, 1470 (9th Cir.1993).\nII\nBefore petitioning the federal courts for credit for her house arrest, Fraley must first exhaust her administrative remedies through the Bureau of Prisons. United States v. Checchini 967 F.2d 348, 350 (9th Cir.1992) (citing United States v. Wilson, — U.S. -, -, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992)). Exhaustion is not required if pursuing those remedies would be futile. Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir.1991). The district court found that while Fraley has not exhausted her administrative remedies, any further application for an administrative remedy would be futile.\nWe agree with the district court. Before filing her habeas corpus petition, Fraley filed a “Request for Administrative Remedy” with the Federal Bureau of Prisons. The Community Correctional Office in Spokane, Washington denied her request, citing the official Bureau of Prisons policy that “time spent on home confinement prior to sentencing [does not qualify] as official detention.” See Federal Bureau of Prisons Program Statement 5880.28, Sentence Computation Manual at 1-15 (1992). The Spokane office informed Fraley that if she wished to continue her appeal, she could do so by writing to the Western Regional Office of the Bureau of Prisons. Fraley never did so, and therefore never exhausted her administrative remedies. See 28 C.F.R. § 542.15 (inmates must appeal Warden’s decision to the Regional Director and then to the General Counsel). However, because the Regional Director would almost certainly have denied her request as well, citing the same official Bureau of Prisons policy, we agree with the district court’s conclusion that any further application for administrative remedies would be futile.\nIll\n“A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... as a result of the offense for which the sentence was imposed.” 18 U.S.C. § 3585(b) (1988) (emphasis added). “[W]hen conditions of release approach those of incarceration, a person is in ‘official detention’ for purposes of section 3585.” Mills v. Taylor, 967 F.2d 1397, 1400 (9th Cir.1992). Most of the conditions imposed on Fraley were comparable to those imposed on a person on probation, and time on probation does not qualify for credit. Lahey v. Floyd, 992 F.2d 234, 235 (9th Cir.1993). In Lahey, we held that a defendant subject to home confinement conditions similar to those imposed on Fraley was not entitled to credit. Id. at 235. Fraley’s confinement was more restrictive in one respect: she was not permitted to leave her house without prior authorization from the probation office, and was required to participate in an electronic monitoring program to ensure that she did not. However, Fraley’s confinement was also less restrictive in another respect: Fraley was permitted to live in her own home, while Lahey was required to reside in his brother’s residence. Because the overall restrictiveness of these conditions is relatively similar, we follow La-hey and hold that the conditions governing Fraley’s release did not “approach those of incarceration.” Fraley is therefore not entitled to credit for the time she spent under pre-trial house arrest.\nrv\nFraley finally contends that denying credit for her house arrest would deny her equal protection of the laws, because people with minimum sentences of not more than six months may serve their term of imprisonment in home confinement. She argues that if they “receive credit” for one day of sentence by serving one day of house arrest, then so should she.\nWe must first determine whether Fraley is “similarly situated” to post-sentence prisoners. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). We agree with the Tenth Circuit that she is not, because of her different legal status:\nPost-sentence residents have been adjudicated guilty and are serving their sentence at [the halfway house] pursuant to the Attorney General’s discretion to determine the conditions of punishment. In contrast, pi'e-sentence residents are not being punished; they are conditionally released to [the halfway house] to protect the community and assure their presence at trial and sentencing.\nUnited States v. Woods, 888 F.2d 653, 656 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990). See also United States v. Edwards, 960 F.2d 278, 284 (2d Cir.1992) (same). A post-sentence prisoner subject to home confinement does not receive “credit” for his house arrest time within the meaning of section 3585(b); his time in home confinement counts toward service of his sentence simply because the Attorney General decided to place him there. Fraley is therefore not “similarly situated” to post-sentence prisoners, and denying her credit for her seven-month house arrest does not violate equal protection.\nAFFIRMED.\n. We note that every circuit that has directly addressed the question of whether home confinement combined with electronic monitoring constitutes \"official detention\" under section 3585(b) has held that it does not. See United States v. Edwards, 960 F.2d 278, 283 (2d Cir.1992); United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991); United States v. Wickman, 955 F.2d 592, 593 (8th Cir.1992) (en banc). At least one other circuit has indirectly reached the same result. See United States v. Zackular, 945 F.2d 423, 425 n. 2 (1st Cir.1991) (finding \"wrongly decided” a district court opinion holding that time spent under house arrest monitored by an electronic bracelet constituted official detention).", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Barbara E. Fraley, Spokane, WA, for petitioner-appellant.", "James B. Crum, Asst. U.S. Atty., Spokane, WA, for respondents-appellees."], "corrections": "", "head_matter": "Barbara E. FRALEY, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, et al., Respondents-Appellees.\nNo. 93-35066.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted July 21, 1993 .\nDecided Aug. 4, 1993.\nBarbara E. Fraley, Spokane, WA, for petitioner-appellant.\nJames B. Crum, Asst. U.S. Atty., Spokane, WA, for respondents-appellees.\nBefore: BROWNING, TANG, and NORRIS, Circuit Judges.\nThe panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4."} | BROWNING | TANG | NORRIS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 924 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,169 | Clark SULLIVAN, Petitioner-Appellant, v. R.G. BORG, Warden, Respondent-Appellee | Sullivan v. Borg | 1993-08-05 | No. 91-16825 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: POOLE, BOOCHEVER, and FERNANDEZ, Circuit Judges."], "parties": ["Clark SULLIVAN, Petitioner-Appellant, v. R.G. BORG, Warden, Respondent-Appellee."], "opinions": [{"text": "BOOCHEVER, Circuit Judge:\nClark Sullivan was prosecuted in a California court for first-degree murder based on theories of both premeditated murder and felony murder. The trial judge instructed the jury that it could find Sullivan guilty of first-degree murder without jury unanimity as to which theory had been proved. Sullivan was convicted of first-degree murder and ten other counts, and sentenced to 49 years to life imprisonment.\nAfter exhausting his state remedies, Sullivan petitioned for a writ of habeas corpus, alleging that the instruction allowing the jury to convict him of first-degree murder without unanimity as to whether he had committed felony murder or premeditated murder violated his rights to due process and equal protection under the United States Constitution. The district court denied Sullivan’s petition, finding that his argument was precluded by Schad v. Arizona, — U.S. -, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). This timely appeal followed. We review de novo the district court’s denial of a petition for habeas corpus. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). We agree that Schad is dispositive of Sullivan’s claim and therefore affirm the district court.\nA\nIn Schad, the Supreme Court held that it was constitutional for the State of Arizona to require only a general verdict for first-degree murder based on either premeditation or felony murder without jury unanimity as to which theory applied. Id. — U.S. at -, 111 S.Ct. at 2504. A plurality of the Court reasoned that, under Arizona law, neither premeditation nor the commission of a felony is an independent element of first-degree murder; rather, they are merely alternative means of satisfying the mens rea element of that offense. Id. — U.S. at -, 111 S.Ct. at 2501. While recognizing that the Due Process Clause places some limits on a legislature’s ability to prescribe alternative means of committing a single crime, id. — U.S. at ---, 111 S.Ct. at 2497-98, the plurality regarded the alternative theories of first-degree murder as “an immaterial difference as to mere means” rather than “a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings,” id. - U.S. at -, 111 S.Ct. at 2498. In support of its holding, the plurality cited the historical and current prevalence of the general first-degree murder verdict, noting that such verdicts had long been accepted in, among other states, California. Id. — U.S. at -, 111 S.Ct. at 2501-02 (citing People v. Milan, 9 Cal.3d 185, 107 Cal.Rptr. 68, 507 P.2d 956 (1973)).\nB\nSullivan first tries to distinguish Schad by pointing out that, unlike Arizona’s statutory scheme, California codifies premeditated and felony murder in separate statutes. See Cal.Penal Code §§ 187, 189 (West 1988). He therefore argues that in California there must be jury unanimity as to which theory underlies a first-degree murder conviction. We find this distinction unpersuasive. While Cal.Penal Code § 187 defines murder as “the unlawful killing of a human being ... with malice aforethought,” section 189 is almost identical to Arizona’s statute in encompassing felony murder and premeditated murder as alternative grounds for establishing first-degree murder. Moreover, both states’ statutes include malice as an element of premeditated murder. The Supreme Court in Schad held that a general first-degree murder verdict under these circumstances is permissible.\nContrary to Sullivan’s assertion, People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 (1983) (en banc), does not change this result. In Dillon, the California Supreme Court held that Cal.Penal Code § 189 is not merely a degree-fixing statute but a legislative codification of the common-law felony-murder rule, and that the rule is therefore not subject to judicial abrogation. Id. 194 Cal.Rptr. at 401-09, 668 P.2d at 708-15. The court further rejected the claim that the felony-murder rule violates due process by imposing a presumption of malice, reasoning that this “presumption” is not a burden-shifting device but rather a substantive rule that malice is not an element of felony murder. Id. 194 Cal.Rptr. at 408-11, 668 P.2d at 715-18. The California Supreme Court’s handling of the discrete questions presented in Dillon does not affect the applicability of Schad.\nIt is true that the Dillon court noted that in California premeditated murder and felony murder “are not the ‘same’ crimes.” Id. 194 Cal.Rptr. at 411 n. 23, 668 P.2d at 718 n. 23. Sullivan’s argument that this language precludes the use of a general first-degree murder verdict, however, contradicts California’s interpretation of its own statutory scheme. General first-degree murder verdicts were an accepted part of California criminal law long before Dillon and continue to be upheld by that state’s courts today. See People v. Guerra, 40 Cal.3d 377, 220 Cal.Rptr. 374, 378-79, 708 P.2d 1252, 1257 (1985); People v. Chavez, 37 Cal.2d 656, 234 P.2d 632, 641-42 (1951) (en banc). In Guerra, decided two years after Dillon, the court reiterated that “ ‘in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute’ ” (quoting People v. Milan, 9 Cal.3d 185, 107 Cal.Rptr. 68, 74, 507 P.2d 956, 962 (1973)). Although Sullivan argues that Guerra is not controlling because it did not consider the analysis of Dillon, the same Justice authored both opinions and we must presume that the court was aware of Dillon when it decided Guerra. Thus California continues to characterize first-degree murder as “a single crime as to which a verdict need not be limited to any one statutory alternative.” Schad, — U.S. at -, 111 S.Ct. at 2496.\n[Wje are not free to substitute our own •interpretations of state statutes for those of a State’s courts. If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.... [B]y determining that a general verdict as to first-degree murder is permissible under [California] law, the [California] Supreme Court has effectively decided that, under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element.\nId. — U.S. at —-—, 111 S.Ct. at 2499-500.\nC\nSullivan points out another alleged distinction between the Arizona and California general first-degree murder verdicts. Under California law, he argues, convictions of both felony murder and the underlying felony result in a mandatory stay of the sentence on one of the offenses under Cal.Penal Code § 654. See People v. Conrad, 31 Cal.App.3d 308, 107 Cal.Rptr. 421, 439 (1973); People v. Magee, 217 Cal.App.2d 443, 31 Cal.Rptr. 658, 675-77 (1963), cert. denied, 376 U.S. 925, 84 S.Ct. 688, 11 L.Ed.2d 620 (1964). In this case, Sullivan received consecutive sentences for first-degree murder and robbery, the only felony potentially underlying a conviction for felony murder. He alleges that the general verdict improperly allowed the trial court to impose a consecutive sentence for the underlying felony although he was not convicted of premeditated murder.\nWe question whether California law carries disparate sentencing implications for the two theories of first-degree murder. Penal Code § 654 applies not only to felony murder, but to all cases involving “multiple punishments for a single act or indivisible course of conduct.” People v. Miller, 18 Cal.3d 873, 135 Cal.Rptr. 654, 662, 558 P.2d 552, 560 (1977). Thus, if Sullivan’s sentence would have been illegal had he been convicted of felony murder, it apparently would also have been illegal had he been convicted of premeditated murder. See People v. Mulqueen, 9 Cal.App.3d 532, 88 Cal.Rptr. 235, 245 (1970) (where defendant’s general first-degree murder conviction was supported under theories of both felony murder and premeditated murder, concurrent sentences for first-degree murder and underlying felony violated § 654).\nWe need not resolve this question of California law, however, because Sullivan did not raise this argument as a challenge to the constitutionality of the general first-degree murder verdict in his petition for habeas corpus. See United States v. Childs, 944 F.2d 491, 495 (9th Cir.1991) (issue not presented to trial court will not be considered on appeal). Insofar as Sullivan’s brief may be read as challenging the legality of the sentence itself, we also decline to address this argument because it was not raised prior to this appeal.\nAFFIRMED.\n. The jury instruction stated:\nYou have been instructed on two theories of murder in the first degree; willful, deliberate and premeditated murder and, second, murder committed during the perpetration of an inherently dangerous felony. It is not necessary that all twelve jurors agree on which theory of murder of the first degree was committed.\nIn other words, in order to convict the defendant of murder in the first degree all twelve jurors must agree that one of the two theories of murder in the first degree occurred, but you need not agree unanimously on which of the two theories occurred.\n. The Arizona statute at issue in Schad provided:\nA murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree.\nAriz.Rev.Stat.Ann. § 13-452 (Supp.1973). At the time of Sullivan’s offense, the California statute provided in relevant part:\nAll murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree.\nCal.Penal Code § 189 (West 1988).\n. Although Cal.Penal Code § 654 has a similar counterpart in Ariz.Rev.Stat.Ann. § 13-116, which bars consecutive sentences for multiple offenses based on the same act or omission. Arizona courts have held that consecutive sentences may be imposed for felony murder and the underlying felony. See State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800, 806 (1982) (en banc).", "type": "majority", "author": "BOOCHEVER, Circuit Judge:"}], "attorneys": ["Louis Marinus Wijsen, Deputy State Public Defender, San Francisco, CA, for petitioner-appellant.", "No appearance for the respondent-appel-lee."], "corrections": "", "head_matter": "Clark SULLIVAN, Petitioner-Appellant, v. R.G. BORG, Warden, Respondent-Appellee.\nNo. 91-16825.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted May 10, 1993 .\nDecided Aug. 5, 1993.\nLouis Marinus Wijsen, Deputy State Public Defender, San Francisco, CA, for petitioner-appellant.\nNo appearance for the respondent-appel-lee.\nBefore: POOLE, BOOCHEVER, and FERNANDEZ, Circuit Judges.\nThe panel unanimously finds this case suitable for submission without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4."} | POOLE | BOOCHEVER | FERNANDEZ | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 926 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,205 | Berniece AWMILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee | Awmiller v. United States | 1993-08-05 | No. 91-35913 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before FARRIS, FERGUSON and D.W. NELSON, Circuit Judges."], "parties": ["Berniece AWMILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee."], "opinions": [{"text": "FARRIS, Circuit Judge:\nBerniece Awmiller appeals from the district court’s denial of her request for attorney’s fees under 26 U.S.C. § 7430. We have jurisdiction over the timely appeal pursuant to 26 U.S.C. § 7430(e) and'28 U.S.C. § 1291. We affirm.\nThe sole issue is whether the position of the United States in Awmiller’s tax refund suit was “substantially justified.” 26 U.S.C. § 7430(c)(4)(A)(i). The phrase “substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988); Huffman v. Commissioner, 978 F.2d 1139, 1147 (9th Cir.1992). We review the district court’s determination of whether the government’s position was “substantially justified” for an abuse of discretion. Bertolino v. Commissioner, 930 F.2d 759, 761 (1991).\nAwmiller argues that the government was not substantially justified in pursuing this litigation because it could not show that she was a person responsible for the payment of withheld payroll taxes under Title 26, United States Code, Section 6672. We reject the argument.\nAlthough Awmiller ultimately prevailed at trial, a reasonable person could have found that Awmiller was responsible for the payment of withheld federal payroll taxes. She was Comptroller of the corporation, had cosignatory authority over the corporate checking accounts, and signed a $100,000 promissory note on behalf of the corporation. The government’s primary witness, a former president of the corporation, testified that Awmiller had complete control over the payment of creditors.\nThe district court found that paperwork accessible to the Government and the witnesses accessible to the Government, as well as the mode of operations of the business, made it reasonable to believe that Awmiller had the power to determine whether government withholding taxes would be paid or not. Until the witnesses testified, and one appeared more credible than the other, one could have reasonably predicted that either side would prevail. The court remarked: “I thought that had Ms. Awmiller been less credible and [the Government’s star witness] been more credible, the ease could have gone the other way, and would have gone the other way.... One never knows until one watches it happen in front of the jury just how bad one’s star witness is going to be.”\nThe district court did not abuse its discretion in finding that the government’s position was substantially justified.\nAFFIRMED.", "type": "majority", "author": "FARRIS, Circuit Judge:"}, {"text": "FERGUSON, Circuit Judge,\ndissenting:\nBerniece Awmiller, a widow and grandmother with a high school education, was hired as a bookkeeper by Diamond E Enterprises, a salmon fishing and canning business. She had no independent authority to direct tax payments or any other payments for the company. As bookkeeper, her principal duty was to monitor the inventory of the fish catch. She was later given the title of “comptroller,” but was not given any additional responsibilities or any increase in salary. See Fitzgerald v. United States, 789 F.Supp. 177, 179 (E.D.Pa.1992) (IRS acted unreasonably in relying on a change of title that did not actually alter responsibility or salary). She did not prepare payroll checks and was not involved in payroll accounting. All checks she signed in payment of Diamond E’s bills were at the direction of her boss, who had already signed the check.\nThe Internal Revenue Service made an assessment against Awmiller for $363,740.95 based on its belief that she was a responsible person, under 26 U.S.C. § 6672, for Diamond E’s failure to pay federal withholding taxes. The IRS seized all of Awmiller’s assets and placed a lien on her house. After Awmiller’s retirement in 1987, she lived on her social security benefits alone.\nThe government’s case turned exclusively on a few pieces of equivocal documentary evidence and on the testimony of Alf Nelson, a former president of Diamond E. I believe that the documentary evidence was enough for the IRS to have a reasonable basis in fact and law to begin an investigation of whether Awmiller was a responsible person.\nThe government’s responsibility does not end there, however. It must conduct reasonable further investigation before trial. See, e.g., Rutana v. Commissioner, 88 T.C. 1329, 1335, 1987 WL 49330 (1987). After reasonable investigation, the government should have realized it could not, or at least would not, present a credible case against Awmiller. The documentary evidence alone was insufficient to form a reasonable basis for the government’s case; the government’s case rested almost entirely upon Nelson’s testimony.\nThe district court found that Nelson, “[t]he Government’s star witness, ... was a terrible witness.” The government has an obligation before forcing a trial to investigate its star witness. It is unrealistic to contend that the government was acting reasonably when it claimed that it didn’t know what the impact of Nelson’s testimony on a jury would be.\nThe district court, although “not very happy with [the] result,” found that the government was substantially justified in continuing its case against Awmiller. The government had acted reasonably, the district court found, because it could not have predicted that Nelson’s testimony would turn out to be so incredible. I disagree.\nThis case does not involve a witness who happened to be unconvincing at trial. Not only was Nelson’s testimony and demeanor predictably unconvincing at trial, it was obvious before trial that he would appear to the jury to be an extremely biased witness. The government was unreasonable in proceeding despite this fundamental weakness in the linch-pin of its case. Nelson’s bias arose from an outstanding default judgment of $142,000 that was based on his failure to pay the same withholding taxes allegedly owed by Awmiller. Recovery against Awmiller would have directly lessened Nelson’s own liability. Moreover, the IRS had apparently not undertaken any collection action against Nelson in the nearly three years since entry of the default judgment against him. This would have led any reasonable person to be skeptical of Nelson’s impartiality in testifying on behalf of the IRS. Cf. United States v. Estridge, 797 F.2d 1454 (8th Cir.1986) (per curiam) (upholding district court’s “thoughtful” and “well-reasoned opinion” finding the government not substantially justified — and therefore awarding the plaintiff attorney’s fees — in large part because the government “gave unwarranted credence to obviously biased witnesses.”).\nAny reasonable person would have realized that the government’s case against Awmiller was fatally flawed. It is obvious that she was a victim who suffered at the hands of her employer assisted by agents of the Internal Revenue Service. I find the district court abused its discretion in denying Awmiller reasonable attorney’s fees. I therefore respectfully dissent.", "type": "dissent", "author": "FERGUSON, Circuit Judge,"}], "attorneys": ["Thomas F. Kelly, Kirkland, WA, for plaintiff-appellant.", "Bridget M. Rowan, Tax Div., U.S. Dept, of Justice, Washington, DC, for defendant-ap-pellee."], "corrections": "", "head_matter": "Berniece AWMILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.\nNo. 91-35913.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted June 11, 1993.\nDecided August 5, 1993.\nThomas F. Kelly, Kirkland, WA, for plaintiff-appellant.\nBridget M. Rowan, Tax Div., U.S. Dept, of Justice, Washington, DC, for defendant-ap-pellee.\nBefore FARRIS, FERGUSON and D.W. NELSON, Circuit Judges.\nThe panel finds this case appropriate for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4."} | FARRIS | FERGUSON | D.W. NELSON | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 930 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,248 | Joseph F. PURCELL, Plaintiff-Counter-Claim-Defendant-Appellant, v. UNITED STATES of America, Defendant-Counter-Claimant-Appellee | Purcell v. United States | 1993-08-05 | No. 91-55487 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: HUG, FERGUSON, and O’SCANNLAIN, Circuit Judges."], "parties": ["Joseph F. PURCELL, Plaintiff-Counter-Claim-Defendant-Appellant, v. UNITED STATES of America, Defendant-Counter-Claimant-Appellee."], "opinions": [{"text": "O’SCANNLAIN, Circuit Judge:\nWe must decide whether a corporate president may be held personally liable for his corporation’s failure to pay over federal withholding taxes to the Internal Revenue Service when he had delegated responsibility for all financial matters to his chief financial officer.\nI\nJoseph Purcell (“Purcell”) was president and sole shareholder of Purcell Temporaries, Incorporated (the “Company”). From the time he founded the Company in 1978 until February 1980, Purcell also served as its chief financial officer (“CFO”). At that point, however,- Purcell decided to devote more of his energies to sales and promotional activities, and so hired one Lester Hatchard (“Hatchard”) as CFO. This was not a good decision. Hatchard embezzled over $450,000 from the Company during his tenure, using a signature stamp bearing Purcell’s signature to issue Company checks payable to himself. Eventually, Purcell learned that Hatchard had a prior criminal record; confronted with this discovery, Hatchard resigned his position in July 1981.\nAfter Hatchard left the Company, Purcell reassumed control over its financial affairs. He quickly discovered that, contrary to what he had been led to believe, the Company was in terrible financial shape,, with a negative net worth, and a substantial net bank overdraft. He also learned that Hatchard had failed to file federal employment tax returns for the first two quarters of 1981 (the “Hatchard Period”), and that the withheld taxes had not been paid over to the Internal Revenue Service (“IRS”).\nThere followed a number of meetings between Purcell and the IRS regarding the Company’s tax situation. Precisely what transpired in these meetings is unclear. Purcell alleges that he was led to believe that if he were to continue to operate the Company, paying its current tax liabilities and beginning the process of paying off the Hateh-ard Period liabilities, the IRS would not seek to hold him personally liable for the delinquent taxes. In any event, returns were filed and withholding taxes duly paid over by the Company in each of the last two quarters of 1981 and the first quarter of 1982. During the second and third quarters of 1982 (the “post-Hatchard Period”), returns were properly filed, but not all the withheld taxes were paid over. In 1983, the Company filed for bankruptcy protection.\nOn March 27, 1985, the IRS assessed Purcell in the amount of the unpaid withholding taxes for 1981 and 1982. Purcell eventually brought this suit in federal district court, seeking refund of certain amounts transferred to the IRS in partial satisfaction of those liabilities, as well as other relief. The United States filed a counterclaim seeking judgment for the balance of the assessment.\nIn January 1991, a three-day jury trial was held. At the close of the evidence both sides made motions for directed verdicts. A series of hearings was held over several days, after which the government’s motion was granted, and Purcell’s denied. Purcell appeals.\nII\nThe Internal Revenue Code requires that certain employers withhold federal income and social security taxes from the wages of their employees. 26 U.S.C. §§ 3102(a), 3402(a). Withholding occurs each pay period, and payment is made to the government on a quarterly basis. Prior to the time they are paid over, the withheld taxes constitute a special fund held by the employer in trust for the government. 26 U.S.C. § 7501(a).\nSection 6672 represents one of the means available to the government to ensure that these withheld taxes are collected and paid over. In relevant part it provides that “[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax ... shall ... be liable to a penalty equal to the total amount of the tax ... not collected, or not accounted for and paid over.” Thus “[t]he recovery of a penalty under section 6672 entails showing that the individual both was a ‘responsible person’ and acted willfully in failing to collect or pay over the withheld taxes.” Davis v. United States, 961 F.2d 867, 869-70 (9th Cir.1992) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 969, 122 L.Ed.2d 124 (1993).\nPurcell defends himself on both of the grounds suggested above: first, he argues that he was not a responsible person during the Hatchard Period; second, he argues that he did not willfully fail to pay over taxes withheld during that period.\nA\nIt is undisputed that Purcell delegated full authority for handling the Company’s finances to Hatchard, and that for so long as Hatchard remained with the Company Purcell took no active part in financial matters. Purcell argues that he was therefore not a “responsible person” during Hatchard’s tenure as CFO and thus cannot be liable under section 6672 for the employment taxes that went unpaid during that period.\nThis circuit has consistently held that the “persons” who are “responsible” for the payment of withholding taxes are those who “had the final word as to what bills should or should not be paid, and when.” Wilson v. United States, 250 F.2d 312, 316 (9th Cir. 1958). We acknowledge, however, that this provides no clear answer to the questions raised by Purcell. We must decide, then, whether Purcell can fairly be said to have “had the final word” as to the payment of creditors during the period in which he delegated his authority to Hatchard and exercised no control over the Company’s day-today financial decision making.\nWe note that in recent years other courts have uniformly and repeatedly rejected the delegation theory pressed upon us by Purcell. All courts agree, as we ourselves have said, that “responsibility is a matter of status, duty, and authority.” Davis, 961 F.2d at 873 (citations omitted). Authority turns on the scope and nature of an individual’s power to determine how the corporation conducts its financial affairs; the duty to ensure that withheld employment taxes are paid over flows from the authority that enables one to do so. See Raba v. United States, 977 F.2d 941, 943 (6th Cir.1992) (“The crucial examination is whether a person had the ‘effective power to pay taxes.’ ”) (citation omitted); Bowlen v. United States, 956 F.2d 723, 728 (7th Cir.1992) (“the key to liability under section 6672 is the power to control the decision-making process by which the employer corporation allocates funds”); O’Connor v. United States, 956 F.2d 48, 51 (4th Cir.1992) (whether person is responsible “is considered in light of the person’s authority over an enterprise’s finances or general decision making”).\nThat an individual’s day-to-day function in a given enterprise is unconnected to financial decision making or tax matters is irrelevant where that individual has the authority to pay or to order the payment of delinquent taxes. See Denbo v. United States, 988 F.2d 1029, 1033 (10th Cir.1993) (although “it was Allred ... who controlled the day-to-day operations of the corporation and made decisions concerning the payment of creditors and disbursement of funds,” Denbo remained responsible because “[hjis financial involvement in the corporation, along with his check-signing authority, gave him the effective power to see to it that the taxes were paid”); Bowlen, 956 F.2d at 728 (even after “Briggs took over the day-to-day operations of’ the corporation, “[t]he Bow-lens remained responsible persons” because “they held sufficient control ... to ensure that other creditors were not preferred while the back taxes remained unpaid”); McDermitt v. United States, 954 F.2d 1245, 1251 (6th Cir.1992) (“[although not an officer of the corporation, plaintiff was” responsible because “[h]e had the power and the authority to direct the payment and non-payment of the corporation’s liabilities”).\nIt follows that “delegation will not relieve one of responsibility; liability attaches to all those under the duty set forth in the statute.” Thomsen v. United States, 887 F.2d 12, 17 (1st Cir.1989). See Bowlen, 956 F.2d at 728 (“delegation of the duty to turn over the taxes does not relieve a responsible person from liability”); see also Brounstein v. United States, 979 F.2d 952, 955 (3d Cir.1992) (“Instructions from a superior not to pay taxes do not ... take a person otherwise responsible under section 6672(a) out of that category.”); Thibodeau v. United States, 828 F.2d 1499, 1504 (11th Cir.1987) (“an otherwise responsible person cannot be relieved of [his] obligation when directed by another person not to pay the taxes”).\nGuided by our sister circuits, we conclude that an individual may be said to have “had the final word as to what bills should or should not be paid” if such individual had the authority required to exercise significant control over the corporation’s financial affairs, regardless of whether he exercised such control in fact. The authority that permits control carries with it a nondelegable duty to ensure that withholding taxes are duly collected and paid over to the government.\nThere can be no question that Purcell qualified as a “responsible person” under this standard. Even while Hatchard acted as the Company’s CFO, Purcell remained as its president, its sole shareholder, and the only authorized signatory on its checking account. Indeed, Purcell does not argue that he lacked “authority” as we have defined it. The district court was therefore correct in ruling that the government was entitled to a directed verdict on the issue of Purcell’s responsibility during the Hatchard Period.\nB\n1\nPurcell next argues that he did not willfully fail to pay the employment taxes here at issue. This contention, however, runs headlong into our recent decision in Davis v. United States, supra. In Davis, we noted that a long line of decisions in this circuit has defined willfulness “as a voluntary, conscious and intentional act to prefer other creditors over the United States.” 961 F.2d at 871 (citations and internal punctuation omitted). We then observed that “Davis’s deliberate decision to use corporate revenues received after July 1982 (when Davis first became aware of the delinquency) to pay commercial creditors rather than to diminish [the corporation’s] tax debt falls within the literal terms of this Circuit’s definition of willfulness.” Id.\nPrecisely the same thing must be said of Purcell. It is undisputed that after he reas-sumed control of the Company’s finances, and knowing that the Company had not remitted to the government the taxes withheld during the Hatchard Period, he paid out corporate funds to numerous other creditors. Every such payment “was a voluntary, conscious and intentional act to prefer other creditors over the United States.” Davis controls our decision here, establishing Purcell’s willfulness with respect to the Hatchard Period as a matter of law.\n2\nDavis is also conclusive as to Purcell’s argument that he is entitled to invoke the exception to section 6672 liability recognized by the Supreme Court in Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978). “The Supreme Court held in Slodov that, if new management of a corporation assumes control when a delinquency for trust fund taxes already exists and the withheld taxes have already been dissipated by prior management, the new management’s use of after-acquired revenues to satisfy creditors other than the United States does not make it personally liable for a section 6672 penalty.” Davis, 961 F.2d at 871-72 (citing Slodov, 436 U.S. at 259-60, 98 S.Ct. at 1791). In Davis, after an exhaustive analysis of the question, we expressly declined to “extend Slodov to hold that the use of after-acquired funds to pay commercial debts by the same persons who were responsible for the failure to collect and pay the withholding taxes in the first instance (as opposed to new management) does not give rise to liability under section 6672.” Id. 961 F.2d at 872. Rather, we noted: “In the case of individuals who are responsible persons both before and after withholding tax liability accrues ... there is a duty to use unencumbered funds acquired after the withholding obligation becomes payable to satisfy that obligation; failure to do so when there is knowledge of the liability ... constitutes willfulness.” Id. at 876 (quoting Mazo v. United States, 591 F.2d 1151, 1157 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979)).\nPurcell admits he was a responsible person during the post-Hatchard Period. Our holding that he was similarly responsible during the Hatchard Period renders his attempts to distinguish Davis unavailing. Accordingly, we may not apply the Slodov exception to relieve Purcell of liability here.\n3\nPurcell also maintains that he cannot be said willfully to have failed to pay over the withheld taxes because the Company had no unencumbered funds available for that purpose. It is undisputed that Security Pacific Bank (the “Bank”) had, at all relevant times, a perfected security interest in all the Company’s assets. Pursuant to its financing agreement with the Bank, the Company’s gross receipts were deposited under a lock-box arrangement, and new funds were advanced to the Company by the Bank from time to time. Purcell asserts that these funds were encumbered because “[t]he advances made by the Bank were for operating expenses and could not be used to satisfy the Hatchard Period taxes.”\nThis circuit has not yet spoken on the question of what suffices to “encumber” the liquid assets of a business such that their use for a purpose other than paying delinquent withholding taxes will not be considered a “willful” failure to pay those taxes under section 6672. Some courts have been willing to recognize as an “encumbrance” only a “legal obligation” of the taxpayer to use funds to pay creditors other than the government. See Honey v. United States, 963 F.2d 1083, 1090 (8th Cir.), cert. denied, — U.S. -, 413 S:Ct. 676, 121 L.Ed.2d 598 (1992). Others have defined the term more broadly to encompass not only legal obligations per se, but also “restrictions imposed by a creditor” — restrictions that, while perhaps not legally enforceable, may be practically irresistible because they arise out of the disparity of bargaining power as between the taxpayer and its source of financing. See id. (quoting In re Premo, 116 B.R. 515, 535 (Bankr.E.D.Mich.1990)).\nWe need not, and so we do not, choose between these two competing standards in this litigation. Instead, we will assume, as Purcell contends, that the In re Premo standard applies, for we believe that, even under that relatively relaxed definition of “encumbered funds,” Purcell has failed to carry his burden of proof on the issue. See Honey, 963 F.2d at 1087 (person against whom § 6672 liability is assessed has burden of proving that all potentially available funds were encumbered).\nFirst, there was no testimony, either from Purcell or any officer of the Bank, identifying particular restrictions placed on the Company’s use of funds. Second, although Purcell testified that the Bank “would not have allowed” the Company to use the funds advanced other than for current operating expenses, he explained that this was “[bjecause there wouldn’t have been the availability to do it,” suggesting that the Company’s lack of credit rather than the Bank’s instructions as to what debts could be paid explains the Company’s decisions. Finally, and perhaps most importantly, there is evidence in the record showing that the Company did make partial payment during 1982 on account of the 1981 Hatehard Period liabilities. Purcell confirmed this fact on cross-examination, and also stated his belief that these payments did not violate the Company’s financing agreement with the Bank.\nUnder these circumstances, we hold that the district court properly directed a verdict in favor of the government on the encumbered funds issue.\nIll\nPurcell next argues that the district court erred in failing to permit the jury to decide whether the United States should be estopped from collecting the section 6672 penalty assessed against him.\nIn general, estoppel may be invoked only where a misrepresentation by one party is reasonably relied upon by a second party, who suffers detriment as a result. However, “the Government may not be es-topped on the same terms as any other litigant.” United States v. Hatcher, 922 F.2d 1402, 1410 (9th Cir.1991) (quoting Heckler v. Community Health Servs., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984)). Before the government may be estopped, the aggrieved party must demonstrate “affirmative conduct going beyond mere negligence,” and must also show “that the government’s act will cause a serious injustice and the imposition of estoppel will not unduly harm the public interest.” S & M Investment Co. v. Tahoe Regional Planning Agency, 911 F.2d 324, 329 (9th Cir.1990) (citing Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.1989) (en banc), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990)), cert. denied, 498 U.S. 1087, 111 S.Ct. 963, 112 L.Ed.2d 1050 (1991). We apply this “two-prong test ... as a threshold matter' before deciding whether the ‘traditional elements’ of estoppel are present.” Hatcher, 922 F.2d at 1410 (citing Watkins).\nPurcell bases his estoppel claim on the assertion that Revenue Officer Robb, the IRS agent with whom he discussed the Company’s tax situation in the wake of Hatch-ard’s departure, “concealed” the fact that if Purcell continued to operate the business he might make himself personally liable for its unpaid withholding taxes under section 6672, ostensibly because the government had no realistic hope of collecting the delinquent taxes otherwise. Purcell argues that Robb was thus guilty of affirmative misconduct sufficient to support an estoppel against the government. Purcell further maintains that if he had been properly advised of his potential section 6672 liability by Revenue Officer Robb he would not have continued to operate the business, and that to permit the government to impose section 6672 penalties against him under the circumstances would be a “serious injustice.”\nWe are sympathetic to Purcell’s plight. Even so, it is clear to us that the district court acted properly in directing a verdict against him on this issue. It is true that the government’s own expert -witness, Revenue Officer Samuels, testified that internal IRS procedures require that individuals in Purcell’s position be told “that if the entity cannot make the payment of taxes, we can look to the responsible individuals” under section 6672. But there is no evidence that those procedures required Revenue Officer Robb to explain to Purcell precisely which individuals are considered “responsible” under section 6672, or to advise him regarding whether and under what circumstances he would be considered so responsible.\nMoreover, the record simply does not support Purcell’s suggestion that Revenue Officer Robb intentionally disregarded his duties, and knowingly concealed information from Purcell, while attempting affirmatively to mislead him as to his legal situation. Purcell testified only that Robb “encouraged” him to keep the business going, and behaved in a manner that led him to believe that the IRS would not seek to hold him personally responsible for the Hatchard Period taxes. This testimony at best established a mere omission or negligent failure on Robb’s part.\nOur cases make clear that lapses of this sort do not rise to the level of affirmative misconduct sufficient to estop the government. Thus we have said that “a single oral misstatement by a government employee will ordinarily not constitute affirmative misconduct.” S & M Investment, 911 F.2d at 329 (citing Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); Mukherjee v. INS, 793 F.2d 1006, 1009 (9th Cir.1986)). Affirmative misconduct involves “ ‘ongoing active misrepresentations’ or a ‘pervasive pattern of false promises’ ” as opposed to “an isolated act of providing misinformation.” Id. (quoting Watkins, 875 F.2d at 708). Purcell’s evidence, even if accepted by the jury, would have fallen short of the mark.\nThe district court did not err in directing a verdict in favor of the government on Purcell’s estoppel claim.\nIV\nPurcell argues that there was substantial evidence that the IRS made an assessment only for the third quarter of 1982, and that his liability was accordingly limited to the unpaid taxes accruing in that quarter. The evidence to which Purcell adverts consists entirely of the fact that the IRS Certificate of Assessments and Payments initially introduced into evidence by the government listed the date “9-30-82” in the box reserved for “taxable periods.” An IRS official testified, however, that for administrative convenience, an aggregate assessment covering several taxable periods is typically identified by reference to the last date of the last period involved in the assessment. The government also introduced a more detailed Certificate, which the official testified was an accurate reflection of IRS records, and which indicated each taxable period covered by the assessment. Moreover, it is undisputed that the amount of the assessment accurately reflects the total amount of the taxes withheld that the Company failed to pay over in the four quarters here at issue.\nThe district court did not err in granting the government’s motion for a directed verdict on this issue.\nV\nFinally, Purcell alleges that proper notice and demand was never made under section 6303. He argues that the government’s failure in this regard (1) precludes liability under section 6672, (2) renders the government’s counterclaim untimely under the applicable statute of limitations, and (3) precludes the accrual of statutory interest on the amounts assessed.\nA\nThe district court concluded that any failure on the part of the government to make proper notice and demand was irrelevant with respect to Purcell’s liability under section 6672. The court relied on United States v. Chila, 871 F.2d 1015 (11th Cir.), cert. denied, 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501 (1989), which is squarely on point. The Eleventh Circuit in Chila reasoned that the notice provision of section 6303 is “for the protection of the taxpayer only in case the IRS use[s] the summary administrative remedies to collect the tax that are available to it.... [S]uch notice is not required as a prerequisite to filing a civil action, because the filing of the action allows sufficient time for the taxpayer to consider and pay any tax that is due before any judgment or lien can be made against his property.” Id. at 1018. The weight of circuit authority is to the same effect. See United States v. McCallum, 970 F.2d 66, 69-70 (5th Cir.1992); Security Indus. Ins. Co. v. United States, 830 F.2d 581, 587 (5th Cir.\n1987) (dictum); United States v. Berman, 825 F.2d 1053, 1060 (6th Cir.1987); Marvel v. United States, 719 F.2d 1507, 1513-14 (10th Cir.1983). We agree with these decisions.\nThe district court therefore correctly held that any failure to make notice and demand would not affect Purcell’s liability, and properly directed a verdict for the government in that respect.\nB\nNext, Purcell argues that a failure to make proper notice and demand deprives the government of the right to rely on the six-year limitations period for commencing a civil action contained in section 6502, relegating it to the three-year period provided in section 6501. As a consequence, he says, the government’s counterclaim was untimely.\nSection 6501 states that “the amount of any tax imposed by this title shall be assessed within three years after the return was filed ... and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.” Section 6502, however, states that a six-year limitations period applies “[w]here the assessment of any tax imposed by this title has been made within the period of limitation properly applicable thereto.... ” Purcell contends, without analysis or citation to authority, that when an assessment is made but proper notice and demand is not sent, the assessment should not be considered valid for purposes of section 6502, and should not trigger its longer limitations period.\nWe have already held that a failure to send notice does not invalidate an underlying assessment such that the government is precluded from bringing a civil suit to collect assessed tax liabilities. We see no reason why such a failure should be held to invalidate the assessment such that the government is precluded from relying on the longer limitations period in section 6502. See Unit ed States v. Hunter Engineers & Constructors, Inc., 789 F.2d 1436, 1440-41 (9th Cir.1986), cert. denied, 479 U.S. 1063, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987) (“[A]ssessment is more than just an administrative step in the enforcement of liens and levies. Assessment also serves to extend the statute of limitations.”).\nPurcell’s argument regarding the applicable limitations period was properly rejected by the trial court.\nC\nOn appeal, as he did at trial, Purcell contends that the government did not prove that it gave notice of the assessment against him and demanded payment as required under section 6303. We have explained that this contention is irrelevant with respect to Purcell’s liability under section 6672. However, section 6601(e)(2)(A) provides that interest on an “assessable penalty” like the one established by section 6672 is payable only “for the period from the date of the notice and demand to the date of payment.” Thus, the date upon which the government made notice and demand — and whether it did so at all — is critical with respect to the government’s entitlement to interest.\nAs noted above, both sides moved for directed verdicts on all issues at the close of trial. The evidence of record relevant to notice and demand at that point consisted of: (1) Exhibit 52A a Certificate of Assessment prepared by the IRS, which did not indicate that notice had been sent; (2) Exhibit 54, a second Certificate of Assessment, which did indicate that notice had been sent; (3) Exhibit 66, a computer printout showing the various coded entries which served as the raw data for the preparation of the two Certificates, and which did not indicate that notice had been sent; and (4) testimony of an IRS expert witness, Revenue Officer Kell, who said that, notwithstanding what the exhibits did or did not display, notice and demand would as a matter of course have been sent on the same day as the assessment was made. Purcell argued that this evidence was insufficient as a matter of law to establish that notice and demand had been sent. The government disputed the point, but suggested that if the court should find otherwise, it should reopen the evidence for the purpose of allowing the government to introduce another computer printout and the further declaration of Revenue Officer Kell, which would prove the fact conclusively.\nIn response, Purcell argued that whether notice and demand had been made was a question of fact for the jury, that the evidence in the case had already been closed, and that there was therefore no basis for reopening the case at that stage. The court rejected these arguments, holding that the government’s right to interest “is a matter [for] the court.” The court then admitted the additional evidence proffered by the IRS, and ruled that a proper notice and demand had been established as of the day of the assessment. On appeal, Purcell insists that the district court erred.\nAthough the court did not explain why it took the notice and demand issue from the jury, we may speculate that it did so because, in general, “[t]he award of prejudgment interest in a case under federal law is a matter left to the sound discretion of the trial court. Awards of pre-judgment interest are governed by considerations of fairness and are awarded when it is necessary to make the wronged party whole.” United States v. California State Board of Equalization, 650 F.2d 1127, 1132 (9th Cir.1981), aff'd mem., 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 157 (1982). It is clear, however, that this general rule may be trumped by the command of a federal statute. See Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1310 (9th Cir.) (“our standard of review is- not limited to deciding whether the district court abused its discretion in limiting the interest award because the issue before us here is whether mandatory post-judgment interest ... is dictated by the application of 28 U.S.C. § 1961 to the facts of this case”), cert. denied, 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982).\nHere, the trial court was plainly divested of discretion with respect to the government’s entitlement to interest by section 6601(e)(2)(A) of the Tax Code. This section provides in part that “[i]nterest shall be imposed ... in respect of any assessable penalty ... only if such assessable penalty ... is not paid within 10 days from the date of notice and demand therefor, and only ... for the period from the date of the notice and demand to the date of payment.” See Johnson v. United States, 602 F.2d 734, 738-39 (6th Cir.1979) (district court’s invocation of equity to alter and to reduce statutorily defined period for accruing of prejudgment interest on penalty under § 6672 was “beyond the court’s equitable powers” given “the mandatory language” of section 6601). The district court thus was faced with a binding statutory directive to allow interest to the government as of the time notice and demand was made upon Purcell. The court was not required — indeed, was not permitted — to exercise its discretion regarding the award of interest. Ail that was required was to establish the date of notice and demand.\nThe date on which a given event occurs is clearly a matter of fact. Factual questions are ordinarily determined by the trier of fact, in this case the jury. The rule is no different in tax collection and refund suits. See United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.1978). We thus conclude that the district court erred in treating the question of notice and demand as a matter to be decided by the court.\nEven so, we decline to vacate the district court’s award of interest to the government. Purcell has effectively conceded that the computer printout and declaration submitted by the government upon the granting of its motion to reopen establish beyond question that notice and demand was mailed on the day assessment was made against Purcell. It is true that the district court erred in considering this evidence. But the consequence of our correcting this error would be a remand for a new trial on the single issue of notice and demand, a trial whose outcome is clearly foreordained. The government cannot be expected to botch matters a second time; it will simply trot out the evidence that it submitted only belatedly the first time around, and that will be that. No purpose would be served by putting the parties and the district court to the trouble and expense of relitigating this matter.\nVI\nThe result in this ease is a harsh one for Mr. Purcell. As the district court rightly observed, Purcell is more the victim than the culprit here, his motives and actions hardly fitting him for the severe consequences he must be made to endure. Yet Congress has extended liability for the corporation’s unpaid withholding taxes to its “responsible” officers and we must take the law as we find it. The judgment of the district court is therefore\nAFFIRMED.\n. Hatchard later pled guilty to charges of embezzlement and served a prison term. In the same litigation which is the subject of this appeal, a default judgment was entered against Hatchard as a responsible person under § 6672 with respect to the Company's unpaid withholding taxes for the first two quarters of 1981.\n. All references are to the Internal Revenue Code, Title 26, United States Code.\n. On appeal, Purcell concedes that he comes within the terms of § 6672 with respect to the post-Hatchard Period taxes. He argues, however, that he cannot be held liable for penalties on account of those taxes. See infra Part IV.\n. We note that under our analysis in Part II.B., Purcell could not have been deemed to have \"willfully” failed to pay the Hatchard Period taxes — and so could not have been held liable for § 6672 penalties on account of those unpaid taxes — if he had not continued to operate the Company after Hatchard had gone.\n. Purcell testified that Robb “[t]old me to keep current payments on our current payroll tax liabilities and to pay down the delinquent portion;” that Robb was aware he was continuing to operate the Company; that Robb never advised him he could not pay current operating expenses to keep the Company going; that he undertook to do everything the IRS told him he was required to do; that although Robb never told him he would not be held liable for the Hatchard Period taxes, he \"encouraged me to continue operating and to pay the delinquent amounts on an amortized basis, [which] led me to believe there wasn’t any [personal] liability;” that he was not aware in 1982 that if he continued to operate the Company the IRS would seek to hold him liable for the Hatchard Period taxes; that if he had been aware of this, he would not have continued to operate the Company; that he intended \"to pay full liability on an amortized basis” and that Robb \"agreed with that and actually sanctioned that,” but that he could not produce a writing evidencing such an agreement. At trial, the parties stipulated that, if called as a witness, Robb would have testified that he had no recollection of what was said in his conversations with Purcell.\n. But see United States v. Associates Commercial Corp., 721 F.2d 1094, 1100 (7th Cir.1983) (failure to make proper notice and demand barred subsequent civil action: \"Section 6303(a) itself does not indicate that the right to notice is dependent on which tax collection option the government uses.”). The viability of this holding has been said to be highly questionable in light of the Supreme Court's subsequent decision in United States v. Jersey Shore State Bank, 479 U.S. 442, 107 S.Ct. 782, 93 L.Ed.2d 800 (1987). See McCallum, 970 F.2d at 69-70.\n. Purcell also contends that there was a factual dispute as to whether the IRS sent the required notice and demand to his \"last known address.” See 26 U.S.C. § 6303. The Service “is bound to exercise reasonable diligence in ascertaining the taxpayer’s correct address.” Wallin v. Commissioner of Internal Revenue, 744 F.2d 674, 676 (9th Cir.1984). Undisputed evidence in the record establishes that the revenue officer who investigated the case was aware only of the address of Purcell's attorney; that the officer made inquiries with the Postal Service, the Department of Motor Vehicles, and the Secretary of State in an effort to obtain information about Purcell; that Purcell's attorney declined to provide Purcell’s home address or social security number to the IRS when requested to do so; that without the social security number, the IRS could not retrieve Purcell's home address from its own records; and that Purcell had previously received IRS correspondence mailed to the same address to which notice was sent, which was that of his attorney. Indeed, Purcell does not contend that he did not in fact receive the notice and demand sent by the government. Under the circumstances, we believe the IRS exercised \"reasonable diligence,\" and that the district court acted properly in directing a verdict in favor of the government on the last known address issue.\n. We might nonetheless affirm if we could say that the government was in any event entitled to a directed verdict on the basis of the evidence submitted prior to the district court's decision to reopen. We are unable to do so. The state of the evidence prior to reopening can only be characterized as conflicting, presenting a jury issue as to whether notice and demand were sent.", "type": "majority", "author": "O’SCANNLAIN, Circuit Judge:"}], "attorneys": ["Steven Toscher, Hochman, Saltón and DeRoy, Beverly Hills, CA, for plaintiff-counter-cl aim-defendant-appellant.", "Kenneth W. Rosenberg, U.S. Dept, of Justice, Washington, DC, for defendant-counter-claimant-appellee."], "corrections": "", "head_matter": "Joseph F. PURCELL, Plaintiff-Counter-Claim-Defendant-Appellant, v. UNITED STATES of America, Defendant-Counter-Claimant-Appellee.\nNo. 91-55487.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Feb. 2, 1993.\nDecided Aug. 5, 1993.\nSteven Toscher, Hochman, Saltón and DeRoy, Beverly Hills, CA, for plaintiff-counter-cl aim-defendant-appellant.\nKenneth W. Rosenberg, U.S. Dept, of Justice, Washington, DC, for defendant-counter-claimant-appellee.\nBefore: HUG, FERGUSON, and O’SCANNLAIN, Circuit Judges."} | HUG | FERGUSON | O’SCANNLAIN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 932 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,282 | UNITED STATES of America, Plaintiff-Appellant, v. The PARSONS CORP., Defendant-Appellee; UNITED STATES of America, Plaintiff-Appellee, v. The PARSONS CORP., Defendant-Appellant | United States v. Parsons Corp. | 1993-08-06 | Nos. 90-56328, 90-56329 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WIGGINS, KOZINSKI and KLEINFELD, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, v. The PARSONS CORP., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. The PARSONS CORP., Defendant-Appellant."], "opinions": [{"text": "KOZINSKI, Circuit Judge:\nThe Department of Energy (DOE) loaned $99.6 million to two subsidiaries of the Parsons Corporation so they could develop a geothermal power plant. See The Geothermal Loan Guaranty Program, 10 C.F.R. pt. 790 (1990). In return, Parsons guaranteed it would pay DOE up to $3 million if its subsidiaries defaulted. A year later that’s what happened: The project collapsed, the borrowers defaulted and the government came looking for its money. At trial, Parsons managed to convince a jury that an escape clause in its guarantee agreement let it off the hook for the $3 million. The government appeals, claiming the district court asked the jury the wrong questions and the jury gave wrong answers to the questions it was asked. Parsons also appeals, claiming it’s entitled to collect its attorney’s fees from the government.\nDiscussion\n1. The United States challenges the special verdict form and jury instructions. It claims that even though it failed to object at trial as required by Fed.R.Civ.P. 51, it should nonetheless be able to appeal because the district court was fully aware of its position. The government says a formal objection would have been redundant. United States ex rel. Reed v. Callahan, 884 F.2d 1180,1184 (9th Cir.1989). See also Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1371, 1373 (9th Cir.1979).\nDid the government object here in all but name? The trial judge read paragraph 2(b)(v) (the escape clause in the guarantee agreement) as posing three issues for the jury to address. The government would have preferred that the verdict form consist of five questions, but acknowledged that the court had just collapsed the five issues into three. RT 6/07/90 at 118. DOE appeared to accede to the three-part verdict form:\n[COUNSEL FOR DOE]: ... So if there’s a no to any one of these three [special verdict questions], we win?\nTHE COURT: Well, if there’s a no to any one of those three, [Parsons doesn’t] come under 2(b)(v).\n[DOE]: Yeah.\nTHE COURT: Whether you win depends on some other things. But still you don’t come under 2(b)(v).\n[DOE]: Okay.\nRT 6/07/90 at 108. DOE counsel’s most vehement protest was a doe-like, “I’m thinking that it’s just easier to go through my five-point checklist, Your Honor.” RT 6/07/90 at 121. While the government made clear that it would have liked a different instruction than that formed by the district court, government counsel did not tell the court that it would be committing an error of law or an abuse of discretion if it did not adopt the government’s approach. Thus, while the court was aware of DOE’s preferences, it’s hardly the case that DOE objected in all but form. See Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1431 (9th Cir.1986).\nThe United States says an objection would only have told the judge what he already knew — that the government thought the court should use a five-point checklist. But it’s one thing to tell the district judge your preferences, and quite another to object when he disregards them. District judges do a thousand things that call for the exercise of discretion, the wording of jury instructions being only one among them. One of the lawyer’s functions is persuading the court to exercise its discretion in a way favorable to the client. Another quite different function is keeping the judge from straying outside the ambit of his discretion by pointing out errors of law. District judges are more likely to correct errors if they are aware the lawyer is raising legal objections, not just quibbling about matters within the court’s discretion. So, in order to comply with Rule 51, it’s not enough for an attorney to make a suggestion that the Court turns down. He must also make it clear that he believes the judge has erred as a matter of law. This the DOE attorney did not do.\n2. Next, the government asks us to set aside the jury’s verdict as unsupported by substantial evidence. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir.1985). The overriding issue at trial was which side caused the project’s collapse and the ensuing default. Parsons took the position that DOE was to blame because it unreasonably delayed approval of Parsons’ work on the second phase of the project and thus delayed funding. According to Parsons, DOE knew the delays would doom the project by (among other things) choking off its cash flow and killing a crucial energy purchase contract. Parsons’ story was amply supported by expert testimony. ER 365-367.\nAs for the particulars of the special verdict, a jury could reasonably have inferred that DOE didn’t approve Parsons’ work because it didn’t think the project was economically feasible. A jury could also reasonably conclude that no amount of due diligence by Parsons could have prevented DOE’s stalling. Parsons had put DOE on notice of its precarious economic condition, and nothing in DOE’s agreement with Parsons let the government impose such delays on the project as DOE did here. The record supports the jury’s finding that the project collapsed, because of government inaction not permitted by the loan documents, and that paragraph 2(b)(v) thus released Parsons from its guarantee.\n3. The government also claims the district court misread the project’s requirements. Each “milestone” in the project consisted of specific “tasks” (like drilling a well) and more general “objectives” (like confirming “that a suitable remote injection site exists”). ER 529. DOE thinks Parsons should have had to complete both the tasks and the objectives; the court said that Parsons just had to do the tasks. DOE argues that the court’s reading of the contract leaves no work for the “objectives” to do, and that we should prefer its reading, which makes sense of every part of the contract.\nWe do not agree, however, that the district court’s reading makes the objectives superfluous. The objectives were for DOE to use in deciding whether to keep funding the project. DOE was entitled to pull the plug any time Parsons failed to achieve the objectives attached to a milestone. But only if Parsons failed to complete the tasks could the government collect on the $3 million guarantee. The court told the jury it could consider the objectives when interpreting what the tasks meant. This reading of the contract is supported by the evidence and is correct as a matter of law.\n4. Finally, having lost on the merits, is the government obliged to pay Parsons’ attorney’s fees? The guarantee agreement says:\nIf DOE ... is required to pursue any remedy against [Parsons], [Parsons] shall pay upon demand, all fees and expenses of their counsel and all other related costs incurred by them in connection therewith.\nER 541. At first this looks like a one-way street going the wrong way for Parsons. But the obligations become reciprocal if they’re read in light of California Civil Code section 1717, which “converts a one-way attorneys’ fees clause into a two-way avenue of opportunity.” Callahan, 884 F.2d at 1185. So the tough question is, does California law apply?\nThe contract has a choice of law provision: This Guarantee shall be governed by and construed in accordance with the laws of the State of California, except to the extent that ... DOE would be entitled to greater rights under federal law.\nER 543. The meaning of “federal law” here is a bit of a puzzle; there’s no federal statute akin to section 1717. Parsons argues that, when faced with federal silence, we should listen to state law; “greater rights under federal law” have to take the form of affirmative federal legislation. The government argues that, while California doesn’t let parties shift fees in one direction only, nothing in federal law stops them from doing so: The government is better off under federal law than under California law, so Parsons must pay its own way.\nThe government has the better of this argument. To begin with, federal law is not totally silent on the subject of fee awards against the government:\nThe United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.\n28 U.S.C. § 2412(b). Parsons contends that “any statute” is an arrow pointing back to section 1717 of the California Code. But “any statute” refers only to federal statutes. Olson v. Norman, 830 F.2d 811, 822 (8th Cir.1987); Joe v. United States, 772 F.2d 1535, 1537 (11th Cir.1985). The question left open under section 2412 is what the common law would require.\nFederally recognized common law uses the American rule (each side pays its own costs) as a background presumption. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269-71, 96 S.Ct. 1612, 1627-29, 44 L.Ed.2d 141 (1974); Perry v. O’Donnell, 759 F.2d 702, 704 (9th Cir.1985). There are some common law exceptions to the American rule (in cases of bad faith, for instance), see Perry, 759 F.2d at 704; none of them was argued here and none apply. Federal courts also have been known to recognize different fee arrangements when parties draft them. See United States ex rel. C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1546 (10th Cir.1987). But again, there remains no federal counterpart to California Civil Code section 1717. If we read the contract through the lens of federal law rather than California law, we enforce it the way it’s written: as a one-way street.\nBecause the government is better off under federal law than under California law, federal law it is. Since Parsons wins on the principal appeal but the government wins on the cross-appeal, each side shall bear its own costs.\nAFFIRMED.\n. Paragraph 2(b)(v) is a mouthful. It releases Parsons from liability for its subsidiaries’ default if the default “arises out of or results from action or inaction by any federal governmental agency or authority (except for federal action or inaction which by the exercise of due diligence by [Parsons' subsidiaries] could have been avoided or ... overcome and except for action or inaction permitted to DOE or the Servicing Agent by the Loan Documents) which ... causes or results in prolonged delays sufficient to render the Project, in the opinion of both DOE and [Parsons], no longer either technically or economically viable.\" ER 538.", "type": "majority", "author": "KOZINSKI, Circuit Judge:"}], "attorneys": ["Stan Blumenfeld, Asst. U.S. Atty., Los An-geles, CA, for U.S.", "Scott A. Edelman and Kevin S. Rosen, Gibson, Dunn & Crutcher, Los Angeles, CA, for Parsons."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, v. The PARSONS CORP., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. The PARSONS CORP., Defendant-Appellant.\nNos. 90-56328, 90-56329.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Sept. 17, 1992.\nDecided Aug. 6, 1993.\nStan Blumenfeld, Asst. U.S. Atty., Los An-geles, CA, for U.S.\nScott A. Edelman and Kevin S. Rosen, Gibson, Dunn & Crutcher, Los Angeles, CA, for Parsons.\nBefore: WIGGINS, KOZINSKI and KLEINFELD, Circuit Judges."} | WIGGINS | KOZINSKI | KLEINFELD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 944 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,308 | CERAMIC CORPORATION OF AMERICA; Caffco Import Inc.; Caffco International Inc.; C.C.C. Associates Inc., et al., Plaintiffs-Appellants, v. INKA MARITIME CORPORATION INC.; NSB Niederelbe Schiffahrtsgesellchaft mbH & Co. KG; Deutsche Seereederei Rostock GmbH & Co.; Senator Linie GmbH & Co. KG; Cho Yang Shipping Co., Ltd.; The Vessel M/V BREMEN SENATOR, Defendants-Appellees | Ceramic Corp. of America v. Inka Maritime Corp. | 1993-08-06 | No. 92-55052 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before WALLACE, Chief Judge, O’SCANNLAIN and FERNANDEZ, Circuit Judges."], "parties": ["CERAMIC CORPORATION OF AMERICA; Caffco Import Inc.; Caffco International Inc.; C.C.C. Associates Inc., et al., Plaintiffs-Appellants, v. INKA MARITIME CORPORATION INC.; NSB Niederelbe Schiffahrtsgesellchaft mbH & Co. KG; Deutsche Seereederei Rostock GmbH & Co.; Senator Linie GmbH & Co. KG; Cho Yang Shipping Co., Ltd.; The Vessel M/V BREMEN SENATOR, Defendants-Appellees."], "opinions": [{"text": "WALLACE, Chief Judge:\nCeramic Corporation of America and 22 other American owners and insurers of cargo carried aboard the M/V-Bremen Senator (collectively Ceramic) appeal from the district court’s dismissal of their admiralty action on the grounds of forum non conveniens. Ceramic contends that the district court erred in concluding that Japan is a more convenient forum for its claims. The district court had jurisdiction pursuant to 28 U.S.C. § 1333. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand.\nI\nAbout May 15 or 16, 1991, the M/V Bremen Senator (vessel) collided with a pier owned by the Nisshin Tanker Company (Nisshin) located on Matsure Island in Japanese territorial waters, thus interrupting the vessel’s trip to the United States. The owner of the vessel, Inka Maritime Corporation (Inka), a Liberian corporation with its principal place of business in Germany, declared general average in Japan and appointed an average adjuster located in Hamburg, Germany. General average is an equitable doctrine in maritime law applicable when the vessel incurs extraordinary expense “to avert a peril that threatens the entire voyage.” In such circumstances, “the party suffering the loss has a right ... to claim contribution from all who participate in the venture,” including the cargo interests. Thomas J. Schoenbaum, Admiralty and Mantime Law § 16-1, at 522-23 (1987).\nOn June 16, 1991, Ceramic filed this action in admiralty against the vessel in rem; Inka; NSB Niederelbe Schiffahrtsgesellschaft mbH & Co. KG, a German corporation acting as vessel manager; and Deutsche Seereederei Rostock GmbH & Co. and Senator Linie GmbH & Co. KG, two German corporations that chartered the vessel and issued the bills of lading involved (collectively, the vessel interests). Ceramic sought money damages and a declaratory judgment that the vessel interests have no right to recover general average contributions from cargo on board the vessel or contributions to any salvage award. It alleged that it has been damaged because it has “and will have to provide security to the vessel interests for the claim of general average and to [the] salvors in order to obtain possession of [its] cargo and have and will incur expenses in defending against such general average and salvage claims.”\nSeveral days later, Nisshin commenced an action against the same vessel interests. The two actions were designated as related cases and were assigned to the same judge. On November 18, 1991, the district court granted the vessel interests’ motions to dismiss, holding that Japan was a more convenient forum to hear the two cases. Nisshin did not appeal the district court’s decision.\nII\nWe review the district court’s dismissal on the grounds of forum non conve-mens for abuse of discretion. Lockman Found, v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir.1991) (Lockman).\nThe forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.\nPiper Aircraft Co. v. Regno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981) (Piper Aircraft).\nA party moving in the trial court to dismiss on grounds of forum non conveniens has the burden of showing: “(1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal.” Lockman, 930 F.2d at 767. “This showing must overcome the ‘great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.’” Id., quoting Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir.1990) (Contact Lumber).\nOur first task is to determine whether Japan provides an adequate alternative forum for the resolution of this dispute. Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. This requirement is ordinarily satisfied when the defendant is amenable to process in the other jurisdiction. Id. Here, the district court granted the motion to dismiss on the express condition that the vessel interests agree to submit to the jurisdiction of the Japanese courts and waive the defense of statute of limitations as to any action arising from the same casualty that is refiled in Japan within one year. This conditional dismissal satisfies the threshold test. Lockman, 930 F.2d at 768; Contact Lumber, 918 F.2d at 1450.\nEven where the defendant is amenable to process in the alternative forum, however, there may be “rare circumstances” in which the “remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254 & n. 22, 102 S.Ct. at 265 & n. 22. Dismissal, for example, would not be appropriate “where the alternative forum does not permit litigation of the subject matter of the dispute.” Id. at n. 22, 102 S.Ct. at 265 n. 22.\nThe bills of lading covering the cargo at issue here contained forum selection clauses requiring that any suit must be brought in Germany, with the application of German law. In its opposition to the vessel interests’ motions to dismiss, Ceramic submitted an affidavit from one of its Japanese attorneys stating that a “Japanese Court on its own, even without a request from the vessel interests,” would enforce the forum selection clauses in the bills of lading and “dismiss the suit and/or transfer the case to Germany.” Although they introduced evidence demonstrating that Japan has a sophisticated, well-developed legal system capable of resolving maritime disputes, the vessel interests did not contest the validity of this statement.\nCeramic asserts that Japan cannot be an adequate alternative forum because a Japanese court would not hear its claims, but would automatically give effect to the forum selection clauses contained in the bills of lading. The district court decided to “leave the issue of enforceability of the forum selection clauses to the Japanese courts.”\nA court may dismiss on forum non conveniens grounds even though the foreign forum does not provide the same range of remedies as are available in the home forum. See Lockman, 930 F.2d at 768-69. However, the alternative forum must provide some potential avenue for redress. Cf. id. (even assuming RICO and Lanham Act claims unavailable in Japan, plaintiff had failed to show possible recovery on other tort and contract claims would be inadequate). In this case, it is uncontroverted that a Japanese court would dismiss Ceramic’s action on its own motion. As a result, Ceramic will not be able to pursue any of its claims in Japan or obtain any relief in that forum. Because Japan will “not permit litigation of the subject matter of the dispute,” we are confronted with one of those rare instances where the remedy 'provided by the alternative forum is “clearly unsatisfactory.” Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. Japan is thus an inadequate alternative forum and the district court abused its discretion in dismissing Ceramic’s action on the grounds of forum non conveniens.\nThe vessel interests contend that, even assuming that the Japanese courts would enforce the forum selection clauses, dismissal was appropriate. First, they contend that Germany is an adequate and available alternative forum for the resolution of this dispute. Second, they argue that a United States court would enforce the forum selection clauses, effectively forcing Ceramic to litigate its claims in Germany. Neither of these arguments, however, addresses the question before us: whether Japan is an adequate alternative forum. The district court may consider these arguments on remand.\nREVERSED AND REMANDED.", "type": "majority", "author": "WALLACE, Chief Judge:"}], "attorneys": ["George R. Daly, Bigham, Englar, Jones & Houston, New York City, and Paul Gary Sterling, Meadows, Smith, Lenker, Sterling & Davis, Long Beach, CA, for plaintiffs-appellants.", "John D. Giffin, Keesal, Young & Logan, San Francisco, CA and Michael J. Ryan, Hill, Betts & Nash, Long Beach, CA, for defendants-appellees."], "corrections": "", "head_matter": "CERAMIC CORPORATION OF AMERICA; Caffco Import Inc.; Caffco International Inc.; C.C.C. Associates Inc., et al., Plaintiffs-Appellants, v. INKA MARITIME CORPORATION INC.; NSB Niederelbe Schiffahrtsgesellchaft mbH & Co. KG; Deutsche Seereederei Rostock GmbH & Co.; Senator Linie GmbH & Co. KG; Cho Yang Shipping Co., Ltd.; The Vessel M/V BREMEN SENATOR, Defendants-Appellees.\nNo. 92-55052.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted April 7, 1993.\nDecided Aug. 6, 1993.\nGeorge R. Daly, Bigham, Englar, Jones & Houston, New York City, and Paul Gary Sterling, Meadows, Smith, Lenker, Sterling & Davis, Long Beach, CA, for plaintiffs-appellants.\nJohn D. Giffin, Keesal, Young & Logan, San Francisco, CA and Michael J. Ryan, Hill, Betts & Nash, Long Beach, CA, for defendants-appellees.\nBefore WALLACE, Chief Judge, O’SCANNLAIN and FERNANDEZ, Circuit Judges."} | WALLACE | O’SCANNLAIN | FERNANDEZ | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 947 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,342 | UNITED STATES of America, Plaintiff-Appellee, v. Evadelia SUSTAITA, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Joel Lopez ROCHA, Defendant-Appellant | United States v. Sustaita | 1993-08-10 | Nos. 91-10495, 91-10582 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: GOODWIN, NORRIS, and RYMER, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Evadelia SUSTAITA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joel Lopez ROCHA, Defendant-Appellant."], "opinions": [{"text": "GOODWIN, Circuit Judge:\nAppellants Rocha and Sustaita were sentenced to 136 months and 169 months in prison, respectively, for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841 and 21 U.S.C. § 846 and for distribution and aiding and abetting the distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm the sentence of Rocha. We reverse the sentence of Sustaita and remand for resentencing.\nRocha\nOn seven different occasions, Rocha sold heroin to undercover narcotics detectives. In total, he personally distributed 200 grams of heroin. Immediately before trial, Rocha pleaded guilty to one count of conspiracy and to seven counts of distribution of a controlled substance.\nPrior to his sentencing hearing, Rocha filed two memoranda of disputed sentencing facts. He challenged the government’s calculation of the amount of drugs involved in the conspiracy and whether such amount was reasonably foreseeable to him. He also claimed that the prosecution impermissibly refused to offer him a favorable plea bargain. The sentencing judge rejected Rocha’s arguments. Rocha’s base offense level was set at 34 based upon a finding that, prior to his withdrawal from the conspiracy, the conspiracy involved 3.75 kilograms of heroin. The offense level was then reduced by 2 levels based on Rocha’s acceptance of responsibility. Rocha was sentenced to 136 months imprisonment, five years of supervised release following his release from custody, and a special assessment of $400.\nI. Failure to Offer Plea Bargain\nRocha claims that the prosecutor’s plea bargaining decisions, which were motivated by tactical considerations, violated his right to due process.\nIn United States v. Moody, 778 F.2d 1380, 1385 (9th Cir.1985), we held: “There is no constitutional right to a plea bargain, and the decision whether to offer a plea bargain is a matter of prosecutorial discretion.” Id. at 1385-86. To sustain a claim of impermissibly selective prosecution, Rocha must demonstrate that he was selected for prosecution on the basis of an impermissible ground such as race, religion, or exercise of constitutional rights. United States v. Kidder, 869 F.2d 1328, 1335 (9th Cir.1989). The record does not support such a claim.\nRocha insists, nonetheless, that his right to due process was violated by the prosecutor’s arbitrary exercise of his discretion. Putting aside the factual question whether Rocha was arbitrarily selected for prosecution, there is no legal basis for his claim. “Inquiry into prosecutorial affairs is allowed to pursue claims of selective prosecution based on suspect characteristics, but not those based on arbitrariness, because in the former case the inquiry is likely to be less intrusive and the violation more offensive.” United States v. Redondo-Lemos, 955 F.2d 1296, 1301 (9th Cir.1992) (emphasis in original).\nII. Calculation of Base Offense Level\nRocha challenges the validity of the court’s calculation of his base offense level. The district court’s factual findings are reviewed for clear error. United States v. Notrangelo, 909 F.2d 363, 364 (9th Cir.1990).\nThe presentence report noted case agents’ testimony regarding three factors: (1) throughout the investigation, the co-conspirators spoke of monthly shipments of heroin from Mexico, (2) statements by Feliciano Rocha, a co-conspirator, that the shipments varied between two to three kilograms and that there was a shipment of 2.5 kilograms in March 1990, and (3) a statement by Mario Cardenas Barragan, a co-conspirator, that Sergio Barragan Cazares, another co-conspirator, periodically went to Mexico and brought back 1.25 kilograms of heroin. In addition, the presentence report stated that, although the conspiracy lasted from August 1989 through August 1990, Rocha’s participation ended in May 1990 as a result of his arrest on state charges.\nThe presentence report recommended basing the offense level on quarterly shipments of the smallest quantity of heroin mentioned by a co-conspirator, 1.25 kilograms. Because Rocha was a member of the conspiracy only until May, his base offense level was based on 3.75 kilograms of heroin.\nThe district court adopted the presentence report’s findings. Because the evidence contained in the presentence report supported the court’s findings, they were not “clearly erroneous.” Id.\nIII.Admissibility of Hearsay at Sentencing\nRocha maintains that the sentencing judge’s reliance upon hearsay testimony violated the Sixth Amendment right of confrontation and the right to due process.\nA sentencing judge “may consider a wide variety of information which would not be considered admissible at trial.” United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir.1989). The spectrum of information which a sentencing judge may consider includes hearsay testimony. United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988). Indeed, we have rejected sentencing challenges to the use of hearsay testimony that were based on violation of the Confrontation Clause. United States v. Petty, 982 F.2d 1365, 1367-68 (9th Cir.1993).\nFurthermore, the use of hearsay testimony did not violate Rocha’s right to due process. Notrangelo, 909 F.2d at 365-66. “The procedural safeguards and evidentiary limitations afforded defendants in criminal trials are not required at sentencings.” Id. at 366. The use of hearsay evidence at sentencing violates due process only if the sentencing judge relied upon information which is materially false or unreliable. Kerr, 876 F.2d at 1445. Federal Rule of Criminal Procedure 32(c)(3)(D) safeguards a defendant from this hazard: “If the defendant chai-lenges the information contained in the pre-sentence investigation report, the judge must make findings of fact concerning any disputed matter upon which it proposes to rely in sentencing.” Id. The record demonstrates that the judge followed the procedures of Rule 32(c)(3)(D).\nIV. Standard of Proof at Sentencing\nFinally, Rocha argues that the “preponderance of the evidence” standard of proof for United States Sentencing Guideline factors does not satisfy due process. As Rocha concedes, however, we have held “that due process does not require a higher standard of proof than preponderance of the evidence to protect a convicted defendant’s liberty interest in the accurate application of the Guidelines.” United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (en bane), cert. denied, — U.S. -, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992).\nSustaita\nSustaita’s involvement in the conspiracy was observed by law enforcement officers on two of the seven occasions on which Rocha distributed heroin. The prosecution offered co-conspirator statements and circumstantial evidence, including an extremely high volume of phone calls from Sustaita’s residence, implicating Sustaita in the heroin trafficking conspiracy. She was found guilty of one count of conspiracy and two counts of distribution of a controlled substance.\nPrior to her sentencing hearing, Sustaita’s counsel filed a memorandum arguing that Sustaita’s participation in the conspiracy remained a disputed fact. Counsel also argued that Sustaita’s base offense level could only be based upon the quantity of heroin involved in the counts of drug distribution of which she had been convicted. Counsel made a general challenge that the presen-tence report’s method of calculation violated due process. The sentencing judge correctly rejected these arguments.\nSustaita’s base offense level of 34 was based upon a finding that the conspiracy involved five kilograms of heroin. The judge sentenced Sustaita to 169 months imprisonment, five years of supervised release following her release from custody, and a special assessment of $150.\nBecause the record does not show that the sentencing judge determined whether Sustai-ta had read the report or discussed it with her counsel as required by Federal Rule of Criminal Procedure 32(a)(1)(A), and because we reject the government’s argument that such failure was harmless error, we remand for resentencing.\nThe government asserts that, because of statements by Sustaita’s counsel, the district judge reasonably concluded that Sustaita had read the report or discussed it with counsel. In United States v. Lewis, 880 F.2d 243 (9th Cir.1989), we held that “the requirements of 32(a)(1)(A) were fulfilled when [appellant’s! attorney told the sentencing judge that appellant had read the presentence report and [when appellant] failed to dispute this assertion.” Id. at 245-46.\nWe find, however, that the present case fails to meet the Lewis standard. The government bases its argument on the following statement by Sustaita’s counsel:\nThe objection that we have filed, the objection that we feel is appropriate in light of the recommendation submitted by the probation office is that the calculations upon which they base their quantity to me strikes at the very fundamental judicial system that we have in our country.\nThe fact that Sustaita’s counsel used the word “we” twice is an insufficient basis to find that Sustaita read the presentence report. In that same sentence, her counsel also used the word “me” and, in any event, this argument infuses greater meaning than we can extract from a common stylistic device used by lawyers.\nThe government argues, in the alternative, that even if the judge did violate Rule 32, no remand for resentencing is necessary absent a showing of prejudice to Sustaita. While we have found no Ninth Circuit authority on point, the Seventh Circuit has discussed this issue in United States v. Rodriguez-Luna, 937 F.2d 1208 (7th Cir.1991).\nIn Rodñguez-Luna, remand was unnecessary because of two factors. Id. at 1213. First, the defendant failed to allege that he had not read or discussed the report. Second, the “only meaningful dispute at ... sentencing involved the proper quantity of cocaine to consider,” and the defendant’s attorney filed an objection to the presentence report’s factual finding on this matter. Id. The defendant failed to identify any fact that he was prevented from disputing as a result of the judge’s failure to determine whether he read or discussed the presentence report. The court concluded: “In the absence of any allegation that [the defendant] did not review the PSI and any identification of the facts that [he] would have disputed had he been given the opportunity, we decline to order [the defendant] to be resentenced.” Id.\nWe agree with the Seventh Circuit that harmless error analysis may be appropriate where the sentencing judge fails to observe the requirements of Rule 32(a)(1)(A), if it is clear that no prejudice resulted. We also agree that the error is deplorable and easily avoided. And, in this case, we are not prepared to hold that there was no prejudice.\nIn Rodriguez-Luna, the court found the district judge’s error to be harmless on the ground that the key fact in dispute at sentencing — the quantity of cocaine involved in the crime — had nevertheless been raised by defense counsel and because there were no factual inaccuracies that the defendant could have challenged had he been given an opportunity to read or discuss the report.\nIn the present case, by contrast, Sustaita’s counsel made no specific objection to any fact in the presentence report. If Sustaita had been given an opportunity to read or discuss the presentence report, she could have tried to contradict the report’s factual finding that the conspiracy involved five kilograms of heroin. Although her counsel raised a legal objection to the report’s method of calculation, the record does not show that Sustaita was given an opportunity to raise factual objections to the report’s findings. We therefore cannot excuse the court’s failure to determine whether Sustaita read the presen-tence report or discussed it with her counsel.\nRocha’s sentence is AFFIRMED. Sustai-ta’s sentence is VACATED and the cause is REMANDED for resentencing.\n. We need not, therefore, reach other asserted sentencing errors briefed and argued by Sustaita.\n. The government’s citation to United States v. Popoola, 881 F.2d 811, 813 (9th Cir.1989), in which the court examined the lack of prejudice to the defendant, is irrelevant to the present case. In Popoola, the defendant was claiming ineffec-tivc assistance of counsel, and prejudice is one of the two elements that must be proven to obtain relief under this claim. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984).", "type": "majority", "author": "GOODWIN, Circuit Judge:"}], "attorneys": ["Kendall D. Simsarian, George Nunez Law Corp., Fresno, CA, for defendant-appellant Sustaita; Stevan Noxon, Fresno, CA, for defendant-appellant Rocha.", "Kevin P. Rooney, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Evadelia SUSTAITA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joel Lopez ROCHA, Defendant-Appellant.\nNos. 91-10495, 91-10582.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted June 15, 1993 as to Appellant Sustaita.\nSubmitted June 15, 1993 as to Appellant Rocha.\nDecided Aug. 10, 1993.\nKendall D. Simsarian, George Nunez Law Corp., Fresno, CA, for defendant-appellant Sustaita; Stevan Noxon, Fresno, CA, for defendant-appellant Rocha.\nKevin P. Rooney, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee.\nBefore: GOODWIN, NORRIS, and RYMER, Circuit Judges.\nThe court unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4."} | GOODWIN | NORRIS | RYMER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 950 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,369 | Dennis W. SCHILLINGER; Monica L. Schillinger, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee | Schillinger v. Commissioner | 1993-08-12 | No. 91-70386 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WRIGHT, BEEZER and HALL, Circuit Judges."], "parties": ["Dennis W. SCHILLINGER; Monica L. Schillinger, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee."], "opinions": [{"text": "ORDER\nFor the reasons given by the tax court in its opinion, Tax Court Memorandum No. 1990-640, 60 T.C.M. (CCH) 1470, 1990 WL 209178 (1990), we affirm.\nAFFIRMED.", "type": "majority", "author": null}], "attorneys": ["Arthur H. Boelter, Boelter & Gale, Seattle, WA, for petitioners-appellants.", "Frank P. Cihlar, Tax Division, U.S. Dept, of Justice, Washington, DC, for respondent-appellee."], "corrections": "", "head_matter": "Dennis W. SCHILLINGER; Monica L. Schillinger, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\nNo. 91-70386.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Aug. 3, 1993.\nDecided Aug. 12, 1993.\nArthur H. Boelter, Boelter & Gale, Seattle, WA, for petitioners-appellants.\nFrank P. Cihlar, Tax Division, U.S. Dept, of Justice, Washington, DC, for respondent-appellee.\nBefore: WRIGHT, BEEZER and HALL, Circuit Judges."} | WRIGHT | BEEZER | HALL | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 954 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,409 | Alfred M. ADAMS, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent | Adams v. Federal Aviation Administration | 1993-08-12 | No. 92-70089 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before CHOY, HUG and LEAVY, Circuit Judges."], "parties": ["Alfred M. ADAMS, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent."], "opinions": [{"text": "PER CURIAM:\nAppellant Alfred Adams seeks direct review of Federal Aviation Administration (“FAA”) Flight Standards Service Director Thomas Accardi’s decision not to renew his Pilot Examiner Designation. We conclude that we lack jurisdiction to review the FAA administrator’s decision. Accordingly, Adams’ petition is dismissed.\nAdams was designated as a Pilot Examiner, pursuant to the Federal Aviation (“FA”) Act. See 49 U.S.C.App. § 1355(a) (1988). The FA Act also authorizes the rescission of any such designation. The FA Act provides, in pertinent part:\nIn exercising the powers and duties vested in him by this chapter, the Secretary of Transportation may, subject to such regulations, supervision, and review as he may prescribe, delegate to any properly qualified private person, or to any employee or employees under the supervision of such person, any work, business, or function respecting (1) the examination, inspection, and testing necessary to the issuance of certificates under subehapter VI of this chapter, and (2) the issuance of such certificates in accordance with standards established by him. The Secretary of Transportation may establish the maximum fees which such private persons may charge for their services and may rescind any delegation made by him pursuant to this subsection at any time and for any reason which he deems appropriate.\n49 U.S.C.App. § 1355(a) (1988) (emphasis added).\nAlthough the FA Act grants this court jurisdiction to review orders issued by the Board or Secretary of Transportation, we also must consider the restrictions placed on the court’s authority to review such orders articulated in the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The APA confers a general cause of action upon any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702 (1988), but withdraws that cause of action to the extent the relevant statute “precluded] judicial review” or “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1) and (2) (1988). Appellee asserts that both of the exceptions to judicial review in section 701(a) apply to this case.\nWe conclude that the FA Act commits the FAA administrator’s decision to agency discretion by law. Agency action is unreviewable when “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985); County of Esmeralda v. Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir.1991); see also Keating v. Federal Aviation Admin., 610 F.2d 611, 612 (9th Cir.1979). “Such a determination is statute spe-cifie and relates to the language of the statute and whether the general purposes of the statute would be endangered by judicial review.” Esmeralda, 925 F.2d at 1218 (citing Webster v. Doe, 486 U.S. 592, 600-01, 108 S.Ct. 2047, 2052, 100 L.Ed.2d 632 (1988)).\nAppellee correctly points out that the FA Act does not set out specific factors for an FAA administrator to consider in determining whether to rescind a delegation of power made under 49 U.S.C.App. § 1355(a). It states simply that “[t]he Secretary ... may rescind any delegation made by him pursuant to this subsection at any time and for any reason which he deems appropriate.” The statement in the legislative history of the Civil Aeronautics Act that “permit[s] the Secretary and the Administrator to terminate [a delegatee’s] authority whenever they deem it advisable,” H.R.Rep. No. 3047, 81st Cong., 2nd Sess. (1950), lends support to appellee’s position. See Esmeralda, 925 F.2d at 1218—19 (citing Webster, 486 U.S. at 600, 108 S.Ct. at 2052).\nAlthough the chapter of the Act relevant to this case provides for judicial review of any order issued by the Board or Secretary of Transportation, see 49 U.S.C.App. § 1486(a) (1988), there is no judicially-manageable standard by which we may review the FAA administrator’s decision not to renew Adams’ designation as a Pilot Examiner. Compare Webster, 486 U.S. at 600-01, 108 S.Ct. at 2052 (judicial review precluded) and Chaney, 470 U.S. at 830, 835, 105 S.Ct. at 1655, 1657 (same) with Esmeralda, 925 F.2d at 1219 (judicial review not precluded). Both the FA Act and the applicable FAA administrative regulation commit the decision to terminate a Pilot Examiner Designation entirely to the FAA administrator’s discretion. See 49 U.S.CApp. § 1355(a) (1988); 14 C.F.R. § 183.15 (1993).\nTherefore, we hold that we lack jurisdiction to review the FAA administrator’s decision not to renew Adams’ Pilot Examiner Designation.\nAdams’ petition is DISMISSED.\n. The Act provides in relevant part:\nAny order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter, ..., shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within sixty days after entry of such order, by any person disclosing a substantial interest in such order.\n49 U.S.C.App. § 1486(a) (1988).\n. The regulation provides in relevant part:\n(d) A designation made under this subpart terminates—\n(1) Upon the written request of the representative;\n(2) Upon the written request of the employer in any case in which the recommendation of the employer is required for the designation;\n(3) Upon the representative being separated from the employment of the employer who recommended him for certification;\n(4) Upon a finding by the Administrator that the representative has not properly performed his duties under the designation;\n(5) Upon the assistance of the representative being no longer needed by the Administrator; or\n(6) For any reason the Administrator considers appropriate.\n14 C.F.R. § 183.15(d) (1993) (emphasis added).", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Thomas L. Toone, Beer, Toone & Ryan, Phoenix, AZ, for petitioner.", "Jerome P. Jones, Jr., F.A.A., Washington, DC, for respondent."], "corrections": "", "head_matter": "Alfred M. ADAMS, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.\nNo. 92-70089.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted July 12, 1993.\nDecided Aug. 12, 1993.\nThomas L. Toone, Beer, Toone & Ryan, Phoenix, AZ, for petitioner.\nJerome P. Jones, Jr., F.A.A., Washington, DC, for respondent.\nBefore CHOY, HUG and LEAVY, Circuit Judges."} | CHOY | HUG | LEAVY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 955 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,464 | UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Alvin BARKER, Defendant-Appellee, Cross-Appellant | United States v. Barker | 1993-08-13 | Nos. 93-30121, 93-30128 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WRIGHT, BEEZER, and HALL, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Alvin BARKER, Defendant-Appellee, Cross-Appellant."], "opinions": [{"text": "BEEZER, Circuit Judge:\nA grand jury in the District of Oregon indicted Alvin Barker for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Through a motion in li-mine, Barker requested bifurcation of his trial. Specifically, he moved to bifurcate the “possession” element of the crime from the “felon” element of the crime. The district court granted Barker’s motion to bifurcate; the United States appeals the district court’s order pursuant to 18 U.S.C. § 3731, or in the alternative, through a petition for mandamus, 28 U.S.C. § 1651(a). We grant the petition for mandamus, reverse the bifurcation order, and remand for further proceedings.\nI\nImmediately prior to his trial for being a felon in possession of a firearm, Barker filed an “In Limine Motion to Bar the Government From Proving Defendant’s Prior Felony Conviction and to Strike the Reference to the Felony Conviction from the Indictment.” Barker argued that he would be prejudiced by the evidence of his prior conviction. The government agreed to stipulate to Barker’s felony status but argued that the jury should be instructed on all elements of the crime.\nThe district court granted Barker’s motion. As trial procedure, the district court decided to instruct the jury that “the parties have agreed that mere possession [of the firearm] is criminal in this ease and it is not for [the jury] to decide the wisdom of such a law.” If the jury convicted Barker absent the felony element, Barker would then stipulate to the prior felony conviction. Under this scheme, the indictment would not (and indeed could not) be read to the jury.\nAfter ruling on the motion, the district court began jury selection. Before the jury had been sworn, the government informed the court that it wished to appeal the bifurcation order. At the government’s request, the district court granted a stay of trial pending-appeal. We granted Barker’s motion to expedite the appeal.\nII\n18 U.S.C. § 3731 provides in pertinent part:\nAn appeal by the United States shall lie to a court of appeals from a decision or order of a district courts (sic) suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.\nThe provisions of this section shall be liberally construed to effectuate its purposes.\nThe government contends that district court’s order “suppresses] or exclude[s] evidence” of Barker’s prior felony conviction and that all other requirements for § 3731 jurisdiction have been met. See United States v. Adrian, 978 F.2d 486, 491 (9th Cir.1992) (requirements for § 3731 jurisdiction).\nBarker counters that the government will be allowed to present the prior conviction evidence if the jury finds against him on the possession charge. Barker argues that § 3731 does not apply to bifurcation orders. We find this argument convincing.\nA bifurcation order does not quite fit into the § 3731 format. The issue is not truly one of exclusion of evidence; it is the bifurcation of the trial that raises concerns. However, the problem raised by the bifurcation order is one that demands review. We agree with the analysis of the First Circuit on this issue: “It is unusual, to say the least, to split the elements of crime into two parts for purposes of trial. Because there may be a question as to our appellate jurisdiction under 18 U.S.C. § 3731 and because of the importance of deciding now the propriety of the bifurcation order, we have decided to proceed under our mandamus powers.” United States v. Collamore, 868 F.2d 24, 27 (1st Cir.1989) (emphasis in original).\nWe consider mandamus petitions under 28 U.S.C. § 1651(a), which provides:\nThe Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.\n“We have jurisdiction to issue a writ of mandamus in any case for which we would have the power to entertain appeals at some stage of the proceedings.” Rosenfeld v. United States, 859 F.2d 717, 722-23 (9th Cir.1988). Mandamus is an extraordinary remedy used “to confine an inferior court to a lawful exercise of its prescribed jurisdiction.” Id. at 723. The party seeking mandamus must show a clear and indisputable right to issuance of the writ. Five guidelines inform our decision to issue a writ of mandamus.\n(1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he or she desires.\n(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.)\n(3) The district court’s order is clearly erroneous as a matter of law.\n(4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.\n(5) The district court’s order raises new and important problems, or issues of law of first impression.\nId. All five factors need not be met for the writ to issue. Mandamus is not available when § 3731 provides appellate jurisdiction. United States v. Dominguez-Villa, 954 F.2d 562, 564 (9th Cir.1992).\nWe grant the government’s petition for mandamus.\nIll\nSection 922(g)(1) requires the government to prove beyond a reasonable doubt that Barker has been convicted of a prior felony. United States v. Lloyd, 981 F.2d 1071, 1072 (9th Cir.1992). The district court’s order changes the very nature of the charged offense; we review such a legal decision de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).\nWe hold that the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings. We join several other circuits in reaching this result. See United States v. Gilliam, 994 F.2d 97, 101-02 (2d Cir.1993); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2984, 125 L.Ed.2d 680 (1993); Collamore, 868 F.2d at 28; United States v. Aleman, 609 F.2d 298, 310 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978).\nAny other holding would have at least three impermissible results. First, if the jury did not return a guilty verdict on the possession portion of the crime, the government would be precluded from proving an essential element of the charged offense. United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985) (the government is “entitled to prove the[ ] elements of the charged offenses by introduction of probative evidence”). Second, a bifurcated proceeding would withhold from the jury all knowledge of the prior felony element of the crime. See United States v. James, 987 F.2d 648 (9th Cir.1993) (conviction reversed for failure to read stipulation to jury that bank was federally insured). Third, the bifurcation order would require omitting an element of the charged offense from the jury instructions. A district court may not eliminate an element of a crime and change the nature of the crime charged. United States v. Combs, 762 F.2d 1343, 1346 (9th Cir.1985).\nAdditionally, the district court’s order creates an unfair danger of jury confusion. As the First Circuit stated in Collamore:\nwhen a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime.... Possession of a firearm by most people is not a crime. A juror who owns or who has friends and relatives who own firearms may wonder why [the defendant’s] possession was illegal. Doubt as to the criminality of [the defendant’s] conduct may influence the jury when it considers the possession element.\n868 F.2d at 28. Limiting the jury’s consideration of required elements of an indicted offense is contrary to the presumption against special verdicts in criminal cases. United States v. Aguilar, 883 F.2d 662, 690 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991). The bifurcation order removes an element of the crime from the jury’s consideration, prevents the government from having its case decided by the jury, and changes the very nature of the charged crime. See Gilliam, 994 F.2d at 102 (“There is a significant difference, however, between a rule formulated to limit the admissibility of potentially prejudicial evidence and a rule that eliminates an element of a crime legislated by Congress.”). We find the district court’s bifurcation order improper.\nIV\nWe GRANT the government’s petition for mandamus. We ORDER the writ to issue REVERSING the district court’s bifurcation order. We REMAND the case to the district court for further proceedings.\n. Prior to the filing of the government's notice of appeal, Barker moved to dismiss the indictment. The district court denied this motion; Barker appealed. However, Barker has formally abandoned his cross-appeal (Case No. 93-30128).\n. Barker raises questions about the procedural propriety of the government’s appeal under § 3731. Because we find jurisdiction through mandamus, we do not address these concerns.\n. Barker misunderstands the fundamental nature of \"prejudicial evidence.” Evidence is prejudicial only when it has an additional adverse effect on a defendant beyond tending to prove the fact or issue that justified its admission. A prior conviction is not prejudicial when it is an element of the charged crime. Proof of the felony conviction is essential to the proof of the offense — be it proof through stipulation or contested evidence. The underlying facts of the prior conviction are completely irrelevant under § 922(g)(1); the existence of the conviction itself is not.", "type": "majority", "author": "BEEZER, Circuit Judge:"}], "attorneys": ["Joseph Douglas Wilson, U.S. Dept, of Justice, Washington, DC, Jack C. Wong, Asst. U.S. Atty., Portland, OR, for plaintiff-appellant-cross-appellee.", "Colleen B. Scissors, Asst. Federal Public Defender, Portland, OR, for defendant-appel-lee-cross-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Alvin BARKER, Defendant-Appellee, Cross-Appellant.\nNos. 93-30121, 93-30128.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Aug. 4, 1993.\nDecided Aug. 13, 1993.\nJoseph Douglas Wilson, U.S. Dept, of Justice, Washington, DC, Jack C. Wong, Asst. U.S. Atty., Portland, OR, for plaintiff-appellant-cross-appellee.\nColleen B. Scissors, Asst. Federal Public Defender, Portland, OR, for defendant-appel-lee-cross-appellant.\nBefore: WRIGHT, BEEZER, and HALL, Circuit Judges."} | WRIGHT | BEEZER | HALL | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 957 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,534 | Diana C. FERREIRA, Plaintiff-Appellant, v. Rosalia Mafnas BORJA; Isidora Mafnas Salas; Feliza M. Babauta; Carmen M. Guerrero; William M. Borja; Jose M. Borja; Juan M. Borja; Luna M. Borja; Patricia B. Robert, Defendants-Appellees | Ferreira v. Borja | 1993-08-19 | No. 92-15523 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: NORRIS, BEEZER, and KLEINFELD, Circuit Judges."], "parties": ["Diana C. FERREIRA, Plaintiff-Appellant, v. Rosalia Mafnas BORJA; Isidora Mafnas Salas; Feliza M. Babauta; Carmen M. Guerrero; William M. Borja; Jose M. Borja; Juan M. Borja; Luna M. Borja; Patricia B. Robert, Defendants-Appellees."], "opinions": [{"text": "WILLIAM A. NORRIS, Circuit Judge:\nDiana Ferreira sued to quiet title in three parcels of land in the Commonwealth of the Northern Mariana Islands (“CNMI”) which she had purchased from the Borja family. Ferreira is a person of Northern Marianas descent who obtained financing for the land from persons not of Northern Marianas descent. In return for the financing, she entered into a partnership agreement with these persons in which she agreed to lease the land to the partnership for 40 years.\nArticle XII of the CNMI Constitution restricts ownership of Commonwealth land to persons of Northern Marianas descent. At the time Ferreira entered into the agreement, Article XII permitted persons not of Northern Marianas descent to hold leases of up to 40 years. It has since been amended to allow leases of up to 55 years. CNMI Const, art. XII, § 3.\nThe Borjas contested her claim to title, arguing that their sale of the land to her was void because it violated Article XII by giving a permanent interest in CNMI land to persons not of Northern Marianas descent.\nThe CNMI Superior Court granted summary judgment in favor of the Borjas, holding that the land sale violated Article XII because Ferreira had bought the land as an agent for persons not of Northern Marianas descent.\nOn appeal, the CNMI Supreme Court affirmed, but on different grounds. Applying the common law “resulting trust” doctrine, the CNMI Supreme Court ruled that Fer-reira held the land in trust for her non-Northern Marianas partners, who the Court said were the true owners. Because Article XII of the CNMI Constitution prohibits ownership of CNMI land by persons not of CNMI descent, the Court voided the sale and gave the land back to its original owners, the Borjas.\nFerreira contends that the CNMI Supreme Court’s decision stripping her of title to the land violated both the equal protection and due process clauses of the Fourteenth Amendment. She argues that the Court’s action discriminated against her on the impermissible ground that she received financing from persons not of Northern Marianas descent, and that the decision effected a taking of her property without due process of law. The Borjas respond that the Court’s action did not discriminate against her or deny her due process, but only carried out the mandate of Article XII of the CNMI Constitution by prohibiting the acquisition of permanent interests in CNMI land by persons not of CNMI descent. Ferreira counters that the transaction fully complied with Article XII, but was transformed into one that did not by a gross misapplication of the resulting trust doctrine by the CNMI Supreme Court. In other words, she claims that the Court engaged in a legal sleight-of-hand to take the land away from her and return it to the Borjas.\nThe Borjas claim that we cannot review the CNMI Supreme Court’s application of the common law resulting trust doctrine because even “if the Court’s analysis is incorrect in any way, it is solely and completely a matter of Commonwealth law.” Appellees’ Br. at 34. The Borjas are, of course, correct that the CNMI Supreme Court is the “ultimate expositor” of local Northern Marianas law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied 493 U.S. 942, 110 S.Ct. 344, 107 L.Ed.2d 332 (1989). However, we may examine the CNMI court’s interpretation of CNMI law if that interpretation is “‘untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.’ ” Taylor v. Kincheloe, 920 F.2d 599, 609 (9th Cir.1990) (quoting Oxborrow, 877 F.2d at 1399); see also Brodheim v. Rowland, 993 F.2d 716, 717 (9th Cir.1993).\nIn a cogent dissent, Special Judge Edward King agreed with Ferreira that the resulting trust doctrine had no applicability here. Judge King said that the majority had “ignore[d] or modif[ied] key aspects of the doctrine,” “transmogrif[ying]” the doctrine into something wholly unfamiliar. Ferreira v. Borja, No. 90-047, 1992 WL 62894, at *8 (CNMI Sup.Ct. Feb. 18, 1992) (King, S.J., dissenting). Instead of the “resulting trust” approach, Judge King argued that the proper test for whether a particular land sale violates Article XII is whether it gives an excessively long-term interest in the land to a non-Northern Marianas person. Judge King said that courts should “scrutinize carefully any transaction entered into by a non-[Northern Marianas] person to determine whether the transaction would result in acquisition of a long term interest by a non-[Northern Marianas] person, or in having the land pass out of the hands of the people of the [CNMI].” Id. at * 13.\nWe agree with Judge King that the CNMI Supreme Court’s application of the resulting trust theory was untenable. A resulting trust is a “[t]rust implied in law from intentions of parties to a given transaction.” Black’s Law Dictionary 1315 (6th ed. 1990). The purpose of the resulting trust doctrine is to protect persons who are the rightful owners of land even though they do not have legal title. Courts have refused to find a resulting trust in favor of a person who purchased land under another’s name if that person did so “in order to accomplish an illegal purpose.” 2 Restatement (Second) of Trusts § 444 (1959); George G. Bogert & George T. Bogert, Law of Trusts 268 (5th ed. 1973). Here, even if Ferreira and her partners did intend to create a resulting trust in favor of partners not of CNMI descent (a questionable proposition in its own right), their actions would not have created a resulting trust because the transaction would have had an illegal purpose — avoidance of the land alienation restrictions of Article XII.\nIt would be incongruous to use a court’s equitable powers to create a resulting trust in favor of someone and then use the existence of the resulting trust as a basis for finding that that person has violated the law. Yet this is exactly what the CNMI Supreme Court has done. It held that a resulting trust was created in favor of the persons not of Northern Marianas descent who provided the financing for Ferreira’s purchase of the property, and then used that judicially-created resulting trust as a basis for voiding the sale and giving the land back to the Borjas.\nThe Commonwealth cannot constitutionally deprive a person of a property interest through the expedient of an untenable judicial interpretation of local law that denies that a property interest ever existed. See Cherry v. Steiner, 716 F.2d 687, 692 (9th Cir.1983), cert. denied 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 190 (1984) (“[A] state cannot validly effect a taking of property by the simple expedient of holding that the property right never existed.”). We thus vacate the judgment of the CNMI Supreme Court. We will refrain from deciding the merits of Fer-reira’s Fourteenth Amendment claims until the CNMI Supreme Court has had an opportunity to reconsider its interpretation of resulting trust law in light of this opinion. VACATED and REMANDED for further proceedings consistent with this opinion.\n. In the partnership agreement, she also agreed to (1) convey the land to the partnership if the law was changed to permit her to do so; (2) purchase any improvements on the land at the end of the lease; and (3) convey the land to a person of Northern Marianas descent if she withdrew from the partnership.\n. Article XII provides:\nThe acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent.\nCNMI Const, art. XII, § 1.\n. Judge King disagreed with the majority not only on the application of the resulting trust doctrine, but also on the appropriate remedy for an Article XII violation. Instead of voiding the entire land deal and handing the land back to a seller as the majority did, Judge King would have invalidated that portion of the deal which gave persons not of Northern Marianas descent a long term interest in the land. Under Judge King’s approach, Ferreira's claim to the land would thus be quieted, but any interests of non-Northern Marianas persons beyond the maximum 55-year lease would be voided.\n. A leading treatise observes:\nWhere the purchase is made for the purpose of defrauding the government, it has been held that a resulting trust will not be enforced. Thus it is held that where A, who is not entitled to acquire government land, pays the purchase price and takes title in the name of B, who is entitled to acquire such land, the transaction is a fraud on the government.... [A’sJ illegal conduct precludes him from enforcing a resulting trust.\nAustin Wakeman Scott & William Franklin Fratcher, V The Law of Trusts § 444 at 201 (4th ed. 1989) (footnotes omitted).\n. The Restatement provides one exception to its rule that courts will not find a resulting trust in favor of someone who purchased land under another's name in order to accomplish an illegal purpose. The Restatement says that the general rule does not apply in cases where it would be more unjust to leave the land in the hands of the person who did not pay for it, than to award it (via a resulting trust) to the person who paid for it, but sought to accomplish an illegal purpose. The Restatement of the Law of Trusts sets forth the following rule:\nWhere a transfer of property is made to one person and another pays the purchase price in order to accomplish an illegal purpose, a resulting trust does not arise if the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.\nRestatement (Second) of Trusts § 444 (1959). That exception does not apply here. The CNMI Supreme Court did not decide that the equities of the case justified awarding the land to Ferreira's financiers rather than to Ferreira herself. This is clear because the Court awarded the land to neither Ferreira nor her financiers, but, rather, to the land’s original owners, the Borjas.\n. The CNMI Supreme Court attempts to evade the illegal purpose restriction to the creation of resulting trusts by saying that \"a violation of Article XII does not occur until and unless a court declares a transaction to be violative of Article XII.\" Ferreira, No. 90-047, 1992 WL 62894, at ' 7. Thus, the resulting trust did not have an illegal purpose at the time of its creation. We agree with Judge King that this is a \"legal fiction[].\" Id. at * 10 (King, S.J., dissenting).", "type": "majority", "author": "WILLIAM A. NORRIS, Circuit Judge:"}], "attorneys": ["Donn Dimichele, Carlsmith Ball Wiehman Murray Case Mukai & Ichiki, Los Angeles, CA, for plaintiff-appellant.", "Theodore Mitchell, Saipan, CM, for defendants-appellees."], "corrections": "", "head_matter": "Diana C. FERREIRA, Plaintiff-Appellant, v. Rosalia Mafnas BORJA; Isidora Mafnas Salas; Feliza M. Babauta; Carmen M. Guerrero; William M. Borja; Jose M. Borja; Juan M. Borja; Luna M. Borja; Patricia B. Robert, Defendants-Appellees.\nNo. 92-15523.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted Dec. 15, 1992.\nDecided Aug. 19, 1993.\nDonn Dimichele, Carlsmith Ball Wiehman Murray Case Mukai & Ichiki, Los Angeles, CA, for plaintiff-appellant.\nTheodore Mitchell, Saipan, CM, for defendants-appellees.\nBefore: NORRIS, BEEZER, and KLEINFELD, Circuit Judges."} | NORRIS | BEEZER | KLEINFELD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 960 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,552 | PACIFICARE INC., dba Pacificare of California, Plaintiff-Appellee, v. Vernon D. MARTIN; Sherrie Sue Martin, Defendants, and Scott Douglas Martin, a minor, Defendant-Appellant | Pacificare Inc. v. Martin | 1993-08-20 | No. 92-55476 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: NORRIS, WIGGINS, and O’SCANNLAIN, Circuit Judges."], "parties": ["PACIFICARE INC., dba Pacificare of California, Plaintiff-Appellee, v. Vernon D. MARTIN; Sherrie Sue Martin, Defendants, and Scott Douglas Martin, a minor, Defendant-Appellant."], "opinions": [{"text": "ORDER\nSubmission of this case is deferred and the case is temporarily remanded.\nMartin appealed from an order that left the amount of damages undetermined. Counsel for the parties stipulated before this court at oral argument that the amount of damages is an undisputed sum certain and that there are no remaining issues regarding damages. Specifically, the parties stipulated that Pacificare is entitled to full reimbursement plus prejudgment interest from an agreed time and at an agreed rate. We remand so that the district court can complete the ministerial task of entering an order assessing these damages. Cf. Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir. 1985) (where all that remains before the district court is the completion of a ministerial task, the order appealed from is a final judgment under 28 U.S.C. § 1291).\nWe retain jurisdiction over this appeal during the pendency of the limited remand. The district court shall forward a copy of its supplemental order within thirty days from the date of this order.", "type": "majority", "author": null}], "attorneys": [], "corrections": "", "head_matter": "PACIFICARE INC., dba Pacificare of California, Plaintiff-Appellee, v. Vernon D. MARTIN; Sherrie Sue Martin, Defendants, and Scott Douglas Martin, a minor, Defendant-Appellant.\nNo. 92-55476.\nUnited States Court of Appeals, Ninth Circuit.\nAug. 20, 1993.\nBefore: NORRIS, WIGGINS, and O’SCANNLAIN, Circuit Judges."} | NORRIS | WIGGINS | O’SCANNLAIN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 963 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,583 | David Edwin MASON, By and Through Charles C. MARSON, Petitioner-Appellant, v. Daniel E. VASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee; David Edwin MASON, Petitioner, and Randy Alana, Patrick Tafoya and Lee Terry Farmer, as next friends of David E. Mason, Applicants in intervention/Appellants, v. Daniel B. YASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee | Mason ex rel. Marson v. Vasquez | 1993-08-23 | Nos. 93-99008, 93-99009 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: WALLACE, Chief Judge, and TANG, SCHROEDER, PREGERSON, POOLE, BEEZER, KOZINSKI, NOONAN, THOMPSON, TROTT and FERNANDEZ, Circuit Judges."], "parties": ["David Edwin MASON, By and Through Charles C. MARSON, Petitioner-Appellant, v. Daniel E. VASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee. David Edwin MASON, Petitioner, and Randy Alana, Patrick Tafoya and Lee Terry Farmer, as next friends of David E. Mason, Applicants in intervention/Appellants, v. Daniel B. YASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee."], "opinions": [{"text": "ORDER\nA majority of the special death penalty en banc court has voted to affirm the order of the special death penalty panel vacating the stay entered by the district court. All stays in the circuit and district courts are hereby vacated.\nSee also 5 F.3d 1220.\nMandate recalled 5 F.3d 1226.", "type": "majority", "author": null}], "attorneys": [], "corrections": "", "head_matter": "David Edwin MASON, By and Through Charles C. MARSON, Petitioner-Appellant, v. Daniel E. VASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee. David Edwin MASON, Petitioner, and Randy Alana, Patrick Tafoya and Lee Terry Farmer, as next friends of David E. Mason, Applicants in intervention/Appellants, v. Daniel B. YASQUEZ, Warden of the California State Prison at San Quentin, Respondent-Appellee.\nNos. 93-99008, 93-99009.\nUnited States Court of Appeals, Ninth Circuit.\nAug. 23, 1993.\nBefore: WALLACE, Chief Judge, and TANG, SCHROEDER, PREGERSON, POOLE, BEEZER, KOZINSKI, NOONAN, THOMPSON, TROTT and FERNANDEZ, Circuit Judges."} | WALLACE | TANG | SCHROEDER | 2 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 964 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,647 | Michael J. MULDOON, Plaintiff-Appellant, v. TROPITONE FURNITURE COMPANY; Marriott Corporation, Defendants-Appellees | Muldoon v. Tropitone Furniture Co. | 1993-08-26 | No. 92-55295 | United States Court of Appeals for the Ninth Circuit | {"judges": ["Before: BROWNING, FARRIS and PAUL J. KELLY, Jr., Circuit Judges."], "parties": ["Michael J. MULDOON, Plaintiff-Appellant, v. TROPITONE FURNITURE COMPANY; Marriott Corporation, Defendants-Appellees."], "opinions": [{"text": "FARRIS, Circuit Judge:\nMichael J. Muldoon appeals the dismissal of his personal injury action against Tropi-tone Furniture Company and The Marriott Corporation. The district court dismissed the action as time barred. We vacate and remand.\nI.\nMuldoon allegedly suffered an injury on September 12,1989, during a stay at the San Diego Marriott Hotel, when he adjusted a lounge chair manufactured by Tropitone Furniture Company. On October 10, 1990, Mul-doon filed a personal injury action against Marriott and Tropitone in California state court. That action was dismissed without prejudice for failure to comply with California’s one-year statute of limitations, Cal.Civ. Proe.Code § 340(3) (West 1982).\nOn September 12, 1991, Muldoon commenced this diversity action against Marriott and Tropitone in the United States District Court for the Northern District of Illinois. On its own motion, the district court in Illinois transferred the action to the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 1404(a). The district court in California then dismissed the action as time barred under the California statute of limitations.\nII.\nSection 1404(a) of Title 28 states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a) (1988). In Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the Supreme Court held that where such a transfer is granted at the behest of a defendant, the transferee court must follow the choice-of-law rules of the transferor court. In Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed,2d 443 (1990), the Court extended the Van Dusen rule to transfers initiated by plaintiffs. The language and reasoning in Ferens leave no doubt that the rule equally is applicable where a district court transfers an action sua sponte. The district court in California therefore was required to apply the choice-of-law rules that the district court in Illinois would have applied.\nIII.\nAs a federal court exercising its diversity jurisdiction, the Illinois district court would have applied the substantive law of Illinois, including Illinois’ choice-of-law rules and its statutes of limitation. Anabaldi v. Sunbeam Corp., 651 F.Supp. 1343, 1344 (N.D.Ill.1987) (citing Goldberg v. Medtronic, Inc., 686 F.2d 1219, 1225 (7th Cir.1982) and Guaranty Trust Co. v. York, 326 U.S. 99, 110-11, 65 S.Ct. 1464, 1470-71, 89 L.Ed. 2079 (1945)); Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir.) (“State law barring an action because of a statute of limitations is sufficiently “substantive,” in the Erie [Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ] sense, that a federal court in that state exercising diversity jurisdiction must respect it.”), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977).\nIV.\nIllinois has adopted a “most significant relationship” test for determining the substantive law applicable in tort cases. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Anabaldi, 651 F.Supp. at 1344. The district court in California purportedly applied this test in selecting the one-year California statute of limitations over Illinois’ two-year statute. The court erred in so doing.\nAlthough Illinois uses the Ingersoll approach in determining the applicable tort law, and although statutes of limitation are “substantive” for Erie purposes, see Kalmich, 553 F.2d at 552, Illinois considers statutes of limitation “procedural” for choice-of-law purposes. See Cox v. Kaufman, 212 Ill.App.3d 1056, 156 Ill.Dec. 1031, 1035, 571 N.E.2d 1011,1015 (“Statutes of limitation are procedural, affecting only the remedy available and not the substantive rights of the parties, and are governed by the law of the forum.”), appeal denied, 141 Ill.2d 537, 162 Ill.Dec. 484, 580 N.E.2d 110 (1991); Kalmich, 553 F.2d at 553 (same); Anabaldi, 651 F.Supp. at 1345 (“As a general rule Illinois courts apply Illinois statutes of limitation to common law causes of action arising in other states, even when those causes of action are governed by foreign law.”).\nBecause an Illinois state court would have applied the Illinois statute of limitations, a federal district court in Illinois would have been bound to do likewise. Kalmich, 553 F.2d at 552; See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As transferee court, the district court in California, in turn, should have applied the statute that the Illinois district court, the transferor court, would have been required to apply. See Ferens, 494 U.S. at 519, 110 S.Ct. at 1277. Thus, Illinois’ two-year statute of limitations is applicable to this action, subject to the caveat discussed in part VI, infra.\nV.\nBoth Marriott and Tropitone argue that application of the longer limitations period would be unfair, because it would reward Muldoon for forum shopping. A similar argument expressly was rejected in Ferens: “Our rule may seem too generous because it allows the Ferenses to have both their choice of law and their choice of forum, or even to reward the Ferenses for conduct that seems manipulative. We nonetheless see no alternative rule that would produce a more acceptable result.” 494 U.S. at 531, 110 S.Ct. at 1284. Muldoon’s “forum shopping” was less “manipulative” than that condoned by the Court in Ferens: Muldoon undoubtedly filed in Illinois so as to obtain the benefit of Illinois’ limitations period, but he did not seek to have the action transferred to California. The Supreme Court rejected the “fairness” arguments in Ferens. We are compelled to follow.\nVI.\nThe foregoing assumes that this action properly was transferred from Illinois to California under 28 U.S.C. § 1404(a) for the convenience of the parties and in the interest of justice. We distinguish between cases so transferred and those transferred under §§ 1404(a) or 1406(a) to cure a lack of personal jurisdiction in the transferor district. Nelson v. International Paint Co., 716 F.2d 640, 643 (9th Cir.1983). As to the latter, the law of the transferee district, including its choice-of-law rules, is applicable. See id.; Manley v. Engram, 755 F.2d 1463,1467 & n. 10 (11th Cir.1985).\nAlthough the district court in Illinois purported to transfer the case under § 1404(a) for the convenience of the parties, its characterization of the transfer is not controlling. If the transfer had the effect of curing a defect in personal jurisdiction, and if Tropi-tone and Marriott have not waived any objection to the transferor court’s in personam jurisdiction, then the choice-of-law rules of the transferee jurisdiction should be applied. See Davis v. Louisiana State Univ., 876 F.2d 412, 414 (5th Cir.1989) (per curiam).\nOn this record, we cannot ascertain whether Tropitone and Marriott, or either of them, were amenable to suit in the Northern District of Illinois. If they were, the transfer properly was effected for the convenience of the parties, and the district court in California was required to apply the choice-of-law rules of Illinois. Those rules mandate application of Illinois’ statute of limitations. If, however, Tropitone and Marriott were not amenable to suit in Illinois, then California’s choice-of-law rules should have been applied, provided that Tropitone and Marriott did not and have not waived the issue by failing to raise it in the district court in Illinois, in the district court in California, or on appeal.\nThe issue of waiver is complex. It does not appear, on the record before us, that either Tropitone or Marriott entered an appearance in the Illinois district court. Both, however, filed Rule 12(b)(6) motions with the district court in California without raising the issue of personal jurisdiction. Ordinarily, the defense of lack of personal jurisdiction is waived if it is not interposed in a party’s first Rule 12(b)(6) motion. See Fed.R.Civ.P. 12(g), (h). It is not clear, however, whether in the peculiar circumstances of this case personal jurisdiction is a “defense of lack of jurisdiction” for purposes of Rule 12(h)(1).\nWe need not decide the question at this time. Instead, we remand to the district court so that it may determine whether Tro-pitone and Marriott were amenable to suit in the Northern District of Illinois. If they were, the Illinois statute of limitations applies to Muldoon’s action. If they were not, the district court may consider whether Tro-pitone and Marriott waived any argument for the application of California law that is premised upon the jurisdictional defect. See Nelson, 716 F.2d at 643; Davis, 876 F.2d at 414.\nVACATED and REMANDED.", "type": "majority", "author": "FARRIS, Circuit Judge:"}], "attorneys": ["Mary A. Lehman, Gray, Cary, Ames & Frye, San Diego, CA, for plaintiff-appellant.", "Charles A. Viviano, Daniel A. Martorella, Viviano & Bradley, San Diego, Teresa Dwyer-Beck, Lincoln & Gustafson, San Diego, CA, for defendants-appellees."], "corrections": "", "head_matter": "Michael J. MULDOON, Plaintiff-Appellant, v. TROPITONE FURNITURE COMPANY; Marriott Corporation, Defendants-Appellees.\nNo. 92-55295.\nUnited States Court of Appeals, Ninth Circuit.\nSubmitted August 6, 1993 .\nDecided Aug. 26, 1993.\nMary A. Lehman, Gray, Cary, Ames & Frye, San Diego, CA, for plaintiff-appellant.\nCharles A. Viviano, Daniel A. Martorella, Viviano & Bradley, San Diego, Teresa Dwyer-Beck, Lincoln & Gustafson, San Diego, CA, for defendants-appellees.\nBefore: BROWNING, FARRIS and PAUL J. KELLY, Jr., Circuit Judges.\nThe panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Cir.R. 34-4.\nHonorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by designation."} | BROWNING | FARRIS | PAUL J. KELLY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 964 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,677 | NORTH STAR ALASKA, Plaintiff-Appellant, North Star Borough, Intervenor-Appellee, v. UNITED STATES of America, Defendant-Appellee | North Star Alaska v. United States | 1993-09-02 | No. 92-35082 | United States Court of Appeals for the Ninth Circuit | {"judges": [], "parties": ["NORTH STAR ALASKA, Plaintiff-Appellant, North Star Borough, Intervenor-Appellee, v. UNITED STATES of America, Defendant-Appellee."], "opinions": [{"text": "ORDER\nWALLACE, Chief Judge.\nUpon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3.", "type": "majority", "author": "WALLACE, Chief Judge."}], "attorneys": [], "corrections": "", "head_matter": "NORTH STAR ALASKA, Plaintiff-Appellant, North Star Borough, Intervenor-Appellee, v. UNITED STATES of America, Defendant-Appellee.\nNo. 92-35082.\nUnited States Court of Appeals, Ninth Circuit.\nSept. 2, 1993."} | 0 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 967 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
10,515,770 | Megan KHADER, Plaintiff-Appellant, v. Les ASPIN, Secretary of Defense, Defendant-Appellee | Khader v. Aspin | 1993-08-17 | No. 93-1008 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges."], "parties": ["Megan KHADER, Plaintiff-Appellant, v. Les ASPIN, Secretary of Defense, Defendant-Appellee."], "opinions": [{"text": "STEPHEN H. ANDERSON, Circuit Judge.\nMegan Khader appeals pro se the district court’s order granting judgment in favor of Secretary of Defense Les Aspin in her employment discrimination action under Title VII, 42 U.S.C. § 2000e-16, and dismissing her action for lack of subject matter jurisdiction. Khader claims that the district court erred by concluding that she had failed to exhaust her administrative remedies. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.\nFACTS\nIn December, 1986, Khader was hired as an “intermittent regular schedule category cashier” for the Army and Air Force Exchange Service (AAFES). Her original work assignment was at the base exchange at Lowry AFB in Denver. In July 1987, she was promoted to the position of “exchange detective.” Six weeks later, apparently as a result of Khader’s “having some personal problems with another employee,” AAFES transferred her to another cashier’s position at Fitzsimmons Medical Center in Aurora, Colorado. R. Vol. I, Tab 19, Exhibit 29.\nKhader suffers from a chronic back problem, hypoglycemia, foot tendonitis, and edema of the lower extremities. In her complaint, she claims that in September 1987, she began providing her employer with medical documentation of her need for “rest and work adjustments for her disabilities.” R. Vol. I, Tab 2 at ¶ 9. She claims that her employer refused to make the necessary adjustments for her disability, including failure to accommodate her dietary requirements. Additionally, she alleges that she was denied fair employment practices from October 1987 until her termination in August 1988. Specifically, Khader alleges that she applied for various positions but was not hired due to AAFES’ discrimination against her on the basis of her disabilities. Id. at ¶ 10.\nKhader claims that beginning in January 1988, she made repeated unavailing attempts to resolve her complaints with the Equal Employment Opportunity (EEO) personnel at AAFES. She then wrote to Senator Armstrong and Congresswoman Sehroeder asking for their assistance. Both Armstrong and Sehroeder made inquiries and received detailed responses from deputy chiefs of the Departments of the Army and the Air Force. R. Vol; I, Tab 19, Exhibits 34, 36, 43, 44. These responses indicate that Khader’s complaints had been reviewed and acted upon by AAFES and EEO personnel at Fitzsimmons. Id. at Exhibits 36, 44.\nOn August 9, 1988, Khader met with EEO counselor Clementine Carter who drafted a memorandum of counseling and forwarded it to the Ohio Valley Exchange Region. Declaration of Clementine Carter, R. Vol. I, Tab 10. On August 19,1988, Khader was notified that she would be terminated from her position at Fitzsimmons Medical Center effective August 26, 1988. R. Vol. I, Tab 19, Exhibit 51.\nKhader filed a formal complaint with the EEOC on October 28, 1988. By correspondence dated November 25, 1988, David Frame, the deputy director of the AAFES EEO program, acknowledged receipt of her complaint and outlined her procedural rights and duties. He then wrote to Khader again in December 1988 indicating that he needed further information in order to evaluate her complaint. In six numbered paragraphs, Frame summarized what he understood her allegations to be, and asked her to supply him with the dates, places, persons and acts associated with those allegations. In March 1989, Frame wrote again to Khader to let her know he had not received a response to his December 1988 request for clarifying information. In response, Khader sent Frame a copy of a certified mail receipt showing that correspondence of some nature was delivered to AAFES on December 21, 1988. Along with the copy of the mail receipt was the following note:\nMr. Frame:\nYou’re a lying son of a bitch (per your 21 Mar. 89 letter) and I can prove if!\nI have had it. How dare you try to continue to humiliate and torture me — a poor, disabled woman who has had to contend with welfare, etc. because of AAFES.\nScrew you. See you in court.\nWith Total Sincerity—\n/s/ Megan Khader\n28 March 89\nR. Vol. I, Tab 3, Exhibit E. Frame responded to this letter on May 22, 1989 by indicating that the December correspondence from Khader had apparently been misplaced. He •then stated:\nWhile I appreciate that resubmitting your reply may be an inconvenience, it is necessary if you wish to continue processing on your complaint. Your vulgar invectives and contumacious refusal to provide the information requested demonstrates a lack of good faith to prosecute your complaint. You are therefore advised that it is intended to cancel your complaint for failure to prosecute if I have not received a definitive reply from you WITHIN 15 CALENDAR DAYS AFTER YOUR RECEIPT OF THIS LETTER.\n/s/ David E. Frame\nId. at Exhibit F. Khader did not supply the requested information and on June 6, 1989, instituted this action in district court. Defendant filed a Motion to Dismiss on August. 14, 1989, and the U.S. Magistrate Judge held a hearing on that motion on October 3, 1989. During that hearing, in light of the defendant’s exhibits and the nature of the plaintiffs argument, the Magistrate converted the proceedings to a hearing on defendant’s motion for summary judgment. Due to a defect in a portion of the tape recording of the October 3 hearing, a second hearing was held on April 27, 1990.\nIn June 1990, the Magistrate Judge recommended that summary judgment be granted to defendants because Khader had failed to exhaust her administrative remedies and, therefore, the court lacked subject matter jurisdiction. The district court adopted the Magistrate’s recommendation, considered further filings by Khader in the district court, and entered judgment on December 7, 1992, dismissing Khader’s complaint for lack of subject matter jurisdiction.\nDISCUSSION\nThe controlling question here is whether, under Title VII, a claimant may begin an administrative procedure and, before it is completed, abandon it for a suit in federal court. As we have stated before, “exhaustion of administrative remedies is a jurisdictional prerequisite” to instituting a Title VII action in federal court. Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir.1984). The existence of proper subject matter jurisdiction is a question of law which we review de novo. Kiehn v. United States, 984 F.2d 1100, 1102 (10th Cir.1993); Bank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166, 1168-69 (10th Cir.1992).\nSection 717(a) of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e-16(a), prohibits discrimination in federal employee personnel actions on the basis of race, religion, sex or national origin. The authority to enforce § 2000e-16(a) is vested in the Equal Employment Opportunity Commission. See id. at § 2000e-16(b). Although § 2000e-16(e) permits an employee to file suit in federal court alleging a violation of § 2000e-16(a), it is well-settled that administrative remedies must first be fully exhausted. See Brown v. General Services Administration, 425 U.S. 820, 828-29, 96 S.Ct. 1961, 1965-66, 48 L.Ed.2d 402 (1976); Sampson v. Civiletti 632 F.2d 860, 862 (10th Cir.1980).\nThe requirement that a Title VII claimant exhaust administrative remedies serves the purpose of “giv[ing] the agency the information it needs to investigate and resolve the dispute between the employee and the employer. Good faith effort by the employee to cooperate with the agency and the EEOC and to provide all relevant, available information is all that exhaustion requires.” Wade v. Secretary of Army, 796 F.2d 1369, 1377 (11th Cir.1986). Conversely, when a complainant refuses or fails to provide the agency information sufficient to evaluate the merits of the claim, he or she “cannot be deemed to have exhausted administrative remedies.” Id. at 1376; see also Pack v. Marsh, 986 F.2d 1155, 1157 (7th Cir.1993); Edwards v. Department of the Army, 708 F.2d 1344, 1347 (8th Cir.1983). This is also true of a complainant who abandons his or her claim before the agency has reached a determination. See Rivera v. U.S. Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987) (“To withdraw is to abandon one’s claim, to fail to exhaust one’s remedies.”), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988).\nConstruing Khader’s pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), it appears that her argument on appeal is that she did her best to exhaust her administrative remedies, but that her efforts were consistently stymied by the AAFES EEO Program’s “calculated, continuous, and malicious actions.” Appellant’s Opening Brief at 6. She asserts that she “did not have the money or health to copy and submit” again the materials she claims to have originally sent to Mr. Frame. Id.\nWhile we appreciate Khader’s frustration upon learning that her materials had been misplaced by the AAFES EEO program personnel, “[i]mpatience with the agency does not justify immediate resort to the courts.” Rivera, 830 F.2d at 1039. Moreover, we do not perceive the inadvertent loss of Khader’s December 1988 mailing as calculated malice on the part of EEOC, nor do we view Khader’s angry refusal to resubmit the requested materials as indicative of a good faith effort on her part to comply with administrative procedures.\nThe district court found, and we ágree, that “Magistrate Harvey correctly set forth the facts concerning Ms. Khader’s communications with the agency and correctly concluded that she failed to comply with reasonable requests for additional information.” R. Vol. I, Tab 20 at 2. Accordingly, we AFFIRM the district court’s holding that it lacked subject matter jurisdiction because Khader failed to exhaust her administrative remedies.\n. Les Aspin succeeded Richard Cheney as Secretary of Defense on January 20, 1993. Pursuant to Rule 43(c)(1) of the Federal Rules of Appellate Procedure, Les Aspin is substituted, therefore, for Richard Cheney as the defendant in this suit.\n. Section 2000e-16 does not mention handicap discrimination. However, 29 U.S.C. § 794a(a)(l) extends the remedies available under § 2000e-16 to federal employees who, like Khader, allege discrimination based on handicap.\n. When Congress enacted § 794a(a)(l) to redress handicap discrimination by federal agency employers, \" 'it is evident that [it] intended to invoke ... the requirement that a claimant exhaust administrative remedies before filing suit in federal court.’ \" Johnson, 747 F.2d at 1357 (quoting Smith v. United States Postal Service, 742 F.2d 257, 261 (6th Cir.1984)). .", "type": "majority", "author": "STEPHEN H. ANDERSON, Circuit Judge."}], "attorneys": ["SUBMITTED ON THE BRIEFS:", "Megan Khader, pro se.", "Michael J. Norton, U.S. Atty., and Kathleen L. Torres, Asst. U.S. Atty., Denver, CO, for defendant-appellee."], "corrections": "", "head_matter": "Megan KHADER, Plaintiff-Appellant, v. Les ASPIN, Secretary of Defense, Defendant-Appellee.\nNo. 93-1008.\nUnited States Court of Appeals, Tenth Circuit.\nNunc Pro Tunc June 29, 1993.\nReissued as Corrected Aug. 17, 1993.\nSUBMITTED ON THE BRIEFS:\nMegan Khader, pro se.\nMichael J. Norton, U.S. Atty., and Kathleen L. Torres, Asst. U.S. Atty., Denver, CO, for defendant-appellee.\nBefore SEYMOUR, ANDERSON, and EBEL, Circuit Judges.\nAfter examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument."} | SEYMOUR | ANDERSON | EBEL | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 968 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,811 | UNITED STATES of America, Plaintiff-Appellee, v. Men Van NGUYEN, Defendant-Appellant | United States v. Van Nguyen | 1993-04-13 | No. 92-8032 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before McKAY, Chief Judge, McWILLIAMS, Circuit Judge, and SAFFELS, District Judge ."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Men Van NGUYEN, Defendant-Appellant."], "opinions": [{"text": "SAFFELS, Senior District Judge.\nDefendant-appellant Men Van Nguyen appeals his sentence imposed after pleading guilty to two counts of distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The defendant was sentenced to concurrent terms of 78 months on each count. Three other counts were dismissed at the time of sentencing. We exercise jurisdiction under 18 U.S.C. § 3742 and affirm.\nIn May 1991 in Cheyenne, Wyoming, a confidential informant gave information to a law enforcement agent with the Wyoming Division of Criminal Investigation that defendant Men Van Nguyen was selling cocaine. Throughout the month of June 1991, the agent made five controlled buys of cocaine and crack cocaine totalling over 20 grams. Early in July 1991, the confidential informant told the agent that the defendant knew he was being set up. The Grand Jury then indicted the defendant on July 12, 1991, and on July 29,1991, the defendant was arrested. Prior to his arrest, the defendant’s Cheyenne apartment was searched pursuant to a search warrant and a .357 Magnum revolver was seized. No drugs were recovered from the apartment.\nFindings of fact underlying the defendant’s sentence are reviewed for clear error. United States v. Mays, 902 F.2d 1501, 1503 (10th Cir.1990). The district court’s interpretation of the sentencing guidelines is reviewed de novo. United States v. PinedoMontoya, 966 F.2d 591, 595 (10th Cir.1992).\nMr. Nguyen first contends the district court erred in imposing a two level enhancement for possession of a handgun. Pursuant to United States Sentencing Commission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1992), the defendant’s sentence may be increased by two levels if he possessed a dangerous weapon, including a firearm. Application Note 3 to the commentary of U.S.S.G. § 2Dl.l(b)(l) states, “The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” The commission gave the example of an unloaded hunting rifle in a closet as a situation where it would be clearly improbable that the weapon was connected with the offense.\nIn United States v. Goddard, 929 F.2d 546, 549 (10th Cir.1991), we considered the application of this section and found that the Guidelines only require proof by a preponderance of the evidence to support a finding that it was not “clearly improbable” that the firearm was connected with the drug trafficking offense.\nMr. Nguyen argues that because the .357 magnum revolver was found wrapped in a towel, inside a guitar case, inside the closet of the apartment where he lived, it was not readily accessible and there could be no connection between the gun and the offense. On the facts of this case, however, there was an abundance of evidence from which the district court could find that Mr. Nguyen possessed the firearm in connection with the drug trafficking offenses.\nAs conceded by Mr. Nguyen, the revolver is a type of weapon often associated with drug activity. Several of the drug transactions took place directly outside the door of the defendant’s apartment, and one transaction was conducted inside the apartment. The drugs which were sold to the agent were retrieved by Mr. Nguyen from his apartment. It is not inconceivable that the gun could be retrieved at the same time the defendant was getting the drugs from the apartment. Mr. Nguyen bragged to the government’s confidential informant that he had pulled a gun on his dealer to avoid getting “ripped off,” although he later told the agent it was his friend who brandished the gun. Finally, Mr. Nguyen told the informant he had purchased a .357 magnum, the description of which matched the revolver found in the defendant’s apartment. Based upon this evidence, there was sufficient factual support to apply the two level enhancement for possession of a firearm.\nThe defendant next contends the court had discretionary authority to depart downward from the sentencing guidelines on the basis that the multiple drug buys, which greatly inflated the quantity of the drug for sentencing purposes, was “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b). The defendant further contends the court did not recognize that it had the authority to depart for this reason, making this issue reviewable as an incorrect application of the guidelines. See 18 U.S.C. § 3742(a)(2).\nAs the defendant recognized, a district court’s decision not to depart downward from the recommended sentencing range is not reviewable, provided the court recognized it had the authority to depart. United States v. Westmoreland, 911 F.2d 398 (10th Cir.1990); United States v. Davis, 900 F.2d 1524, 1528-30 (10th Cir.), cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990).\nWe have examined the sentencing transcript and are satisfied the district court was aware of its discretion to depart downward from the guidelines, but chose not to depart. The court made the following statement:\nI am of the belief that the officers who continued their drug buys had just cause to do so, as there was good reason to believe that you were connected to an oriental criminal element in the Denver area.\nI have already observed that in the opinion of the court the sentencing guidelines are harsh and unfair. They provide for a minimum of 78 months and a maximum of 97 months for your offense level.\nI have already pointed out to you that you have, in effect, gotten the benefit of four offense levels off by being given two levels off for acceptance of responsibility and not being increased by two levels for obstruction of justice.\nEven though I feel that you have been dishonest with the court by concealment of your ability to speak English, by the manner in which you have continually tried to wiggle around for your own advantage, rather than facing your punishment like a man, I still feel that it is just under these circumstances to give you the low end of the guidelines.\nFrankly, if this were a pre-guideline case I feel that the court would light on a sentence of 48 to 60 months rather than 78 months; however, I have no alternative. You asked me to forgive you and ignore your guilt; I can’t do that.\nThe district court made specific findings that the multiple buys were made with just cause and the defendant was fortunate the court did not enhance the sentence for obstruction of justice. Implicit in those findings was a decision not to depart downward. The court further found it was just to sentence at the low end of the guidelines. While the district court expressed its opinion that the guidelines are unfair and a lighter sentence might have been imposed in a pre-guideline case, the court acknowledged it could not ignore the defendant’s guilt. Nothing in the court’s statement indicates ignorance of its discretion to depart downward. To the contrary, the court’s comments indicated concern about the defendant’s dishonest conduct, but a conscious decision to sentence at the low end of the 78 to 97 month guideline range. Earlier in its statement, the court noted it had been generous in its rulings regarding the defendant. We find no incorrect application of the sentencing guidelines.\nFinally, the defendant alleges the district court erred in including the weight of sodium bicarbonate powder, in which there were small pieces of crack cocaine, in determining drug quantity for sentencing. The district court found that the weight of the cocaine was 20.2 grams, which raised by two levels the base offense level. The court seemingly understood that to be pure cocaine.\nFor the purpose of this appeal, the parties entered in to the following stipulation regarding the cocaine:\nThe 12.9 gram cocaine sale of June 12, 1992, set forth in Count 3 of the indictment, consisted of: (1) 15 rocks of cocaine base weighing 2.6 grams; and (2) a 10.3 gram “eight-ball” comprised of small pieces of yellowish cocaine base mixed with white sodium bicarbonate powder.\nThe parties do not dispute that the total amount of cocaine' in whatever mixture is over 20 grams.\nWhether a substance constitutes a mixture containing a detectable amount of a controlled substance for’the purpose of the sentencing guidelines is reviewable de novo as an interpretation of the guidelines. United States v. Robins, 967 F.2d 1387, 1389 (9th Cir.1992).\nThe defendant argues that crack cocaine is not typically combined with sodium bicarbonate powder and its inclusion in the sentencing calculation grossly exaggerates the nature of the offense, contrary to the intent of the guidelines.\nIn Chapman v. United States, — U.S. -, -, 111 S.Ct. 1919, 1924, 114 L.Ed.2d 524 (1991), the Court discussed the intent of Congress to establish a “market-oriented” approach for sentencing, in which the entire weight of the distributed mixture determines the sentence rather than the amount of the pure drug. Thus, the form of the drug would not matter and retailers who help keep the street market functioning would be punished as severely as top-level dealers. Id. We have held this to be a reasonable sentencing scheme, United States v. Mendes, 912 F.2d 434 (10th Cir.1990). Further, the Court gave “mixture” its common ordinary meaning.\nA “mixture” is defined to include “a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.” Webster’s Third New International Dictionary 1449 (1986). A “mixture” may also consist of two substances blended together so that the particles of one are diffused among the particles of the other. 9 Oxford English Dictionary 921 (2d ed. 1989). Chapman, — U.S. -, 111 S.Ct. at 1926.\nBased upon the principle involved in the sentencing guidelines and the ordinary definition of the term mixture, the substance in question contained a detectable amount of the'controlled substance, crack cocaine, and the calculation was proper. This is hot an absurd case, but one in which the sodium bicarbonate could have remained after the distillation into the final cocaine base form. In addition, the defendant purchased the drug \"in this form and sold it in this form. By including the total weight of the mixture, the intent of Congress to punish the retailer who distributed the drug in whatever form is furthered.\nFinally, although the district court was under the impression that the drug was pure, under the correct application of the sentencing guidelines the sentence would be the same. Therefore, any error by the district court was harmless. See United States v. Moore, 919 F.2d 1471, 1478 (10th Cir.1990).\nAFFIRMED.\n. The defendant contends that even if the court believed the agent was justified in making the multiple drug buys, this still does not prevent the court from departing downward. While the defendant's position may be correct, it is clear to us that the district court was declining to depart.", "type": "majority", "author": "SAFFELS, Senior District Judge."}], "attorneys": ["William U. Hill, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., D. of Wyo., Cheyenne, WY, with him on the brief), for plaintiff-appellee.", "Maynard Grant, (Tim Newcomb with him on the brief), Cheyenne, WY, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Men Van NGUYEN, Defendant-Appellant.\nNo. 92-8032.\nUnited States Court of Appeals, Tenth Circuit.\nApril 13, 1993.\nWilliam U. Hill, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., D. of Wyo., Cheyenne, WY, with him on the brief), for plaintiff-appellee.\nMaynard Grant, (Tim Newcomb with him on the brief), Cheyenne, WY, for defendant-appellant.\nBefore McKAY, Chief Judge, McWILLIAMS, Circuit Judge, and SAFFELS, District Judge .\nThe Honorable Dale E. Saffels, United States Senior District Judge for the District of Kansas, sitting by designation."} | McKAY | McWILLIAMS | SAFFELS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 972 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,851 | Rilda I. BINGAMAN, Individually and as Administratrix of the Estate of William L. Bingaman, Deceased, Plaintiff-Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, a Missouri Corporation; and Kansas Gas and Electric Company, a West Virginia Corporation, Defendants-Appellees. Kansas Department of Wildlife And Parks, Amicus Curiae | Bingaman v. Kansas City Power & Light Co. | 1993-07-08 | No. 92-3139 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR, RONEY, and MOORE, Circuit Judges."], "parties": ["Rilda I. BINGAMAN, Individually and as Administratrix of the Estate of William L. Bingaman, Deceased, Plaintiff-Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, a Missouri Corporation; and Kansas Gas and Electric Company, a West Virginia Corporation, Defendants-Appellees. Kansas Department of Wildlife And Parks, Amicus Curiae."], "opinions": [{"text": "JOHN P. MOORE, Circuit Judge.\nPlaintiff Rilda Bingaman appeals the district court’s summary judgment dismissal of her diversity-based wrongful death action. Bingaman v. Kansas City Power & Light Co., No. CIV. A. 88-2349-V, 1992 WL 81981 (D.Kan. Mar. 18, 1992). She contends the court erroneously concluded defendants were immune from liability under the Kansas Recreational Use Statute (KRUS), Kan.Stat. Ann. §§ 58-3201 to -3207 (1983 & Supp. 1992), which provides limited immunity to landowners who make their land available for public recreational use. We affirm in part and reverse in part.\nI.\nDefendants Kansas City Power & Light Company and Kansas Gas and Electric Company jointly own and operate the La Cygne Generating Station, a multi-unit electric generating facility in Kansas. They also own La Cygne Lake, the reservoir on which the power plant is situated, and the place where plaintiffs husband drowned.\nAt approximately 6:00 a.m. on July 2, 1986, Mr. Bingaman left his home to go to La Cygne Lake, where he often fished. Around noon, his capsized boat was found floating at the base of a weir located near the end of a discharge canal which runs parallel to the eastern shore of the lake. Although Mr. Bingamaris body was found the next day floating in the lake northwest of the weir, it appears he drowned in the weir.\nPlaintiff subsequently brought this action, seeking compensatory and punitive damages for defendants’ alleged “negligence, or in the alternative, their malicious, wilful, wanton or recklessly indifferent conduct” in failing “to remove, correct, guard or warn against the unreasonably dangerous condition at the warm water discharge weir” which caused Mr. Bingaman’s death. In their joint answer brief, defendants raised the KRUS as a complete defense to plaintiffs suit, claiming they were immune from liability as private landowners who had allowed the public to use their land for recreational purposes. The district court granted defendants’ motion for summary judgment, and plaintiff appealed.\nThe central issue before us is whether the area in which Mr. Bingaman drowned was public recreational land within the meaning of the KRUS. Before resolving this issue, however, we must first review the broader context in which the drowning occurred, particularly as it relates to ownership of and control over the lake.\nIn 1968, after purchasing several tracts of land in Linn and Miami Counties, Kansas, defendants built a dam across North Sugar Creek, thereby creating La Cygne Lake. Defendants’ power plant is located northeast of the dam, which forms the southern shore of the lake. Along the eastern shore of the lake, defendants built a warm water discharge canal and canal dike running from the power plant to a point approximately two and a half miles north of the plant. The discharge canal carries cooling water which has circulated through the power plant’s condensers to the northern part of the lake.\nApproximately 150 feet south of where the discharge canal empties into the lake, defendants constructed a weir to keep a water seal on the cooling water discharged from the plant’s condenser and to prevent the mass migration of fish upstream and into the condenser. Just over a mile north of the power plant, between the plant and the weir, a canal pond approximately three quarters of a mile long juts out from the east side of the canal. The warm water discharge canal and weir are integral components of defendants’ power plant.\nIn the late 1960s, defendants and the Kansas Fish and Game Commission began discussing whether the lake and surrounding land could be opened for public recreational use. During negotiations, the Commission sought to gain public access to the entire lake, particularly the warm water discharge canal and canal pond. However, in November 1976, defendants informed the Commission that they “wanted no trespassing from the west end of the dam around the lake east and north to a point just beyond the weir on the east side.”\nOn June 23, 1978, defendants and the Commission entered into an Easement Grant and Agreement (Easement Agreement) according the Commission a thirty-year public use/wildlife management easement over portions of La Cygne Lake. As described in Schedule D of the Easement Agreement, Easement Area II encompassed the discharge canal and weir.\nHowever, portions of the lake designated as Easement Area II were subject to special terms and conditions. Specifically, Paragraph 4(a) of the Easement Agreement provided:\n(a) The dam and dike structures shall remain the fall responsibility of the [defendants] and they shall not be limited in any way in the maintenance or reconstruction of said facilities. With respect to the use of both sides of the discharge canal dike and the canal pond waters that are North of the center line of Sections 28 and 27, the Commission may permit access to same only if the Commission installs and maintains devices to clearly mark and prevent public entry into the canals and other areas deemed hazardous.\n(emphasis added).\nThus, under that provision of the Easement Agreement, defendants retained full responsibility for the discharge canal and weir. More generally, defendants exercised a substantial degree of control over the entire land mass affected by the Easement Agreement, as compared to the Commission’s “very limited” authority. However, the Commission did enforce state boating laws, including barring boaters from restricted areas.\nSometime before the lake was opened to the public, defendants installed three sets of “exclusion warning buoys” along the eastern side of the lake. First, at the end of the discharge canal north of the weir, they installed a wire rope and warning buoys marked with a “restricted area” symbol and the words “Keep Out.” They also installed buoys north of the canal pond and south of the weir, and again south of the canal pond and north of the power plant.\nAfter the lake was opened to the public, the Commission built a footbridge across the discharge canal south of the weir and north of the second set of rope-buoys to prevent boaters in the canal pond from floating down the canal and over the top of the weir. However, the footbridge fell into disrepair and was removed by the Commission before Mr. Bingaman drowned.\nWhen Mr. Bingaman’s death occurred, fishing and boating were allowed in the canal pond and canal waters between the second and third sets of rope-buoys. However, boating was not permitted in the discharge canal between the first and second sets of rope-buoys, including the weir area. A few years after Mr. Bingaman’s drowning, defendants installed a chain link fence running north from the top of the weir down to the water’s edge. They also erected orange construction fencing and posted signs warning of a “severe undertow” both upstream and downstream of the weir. These actions effectively “boxed off’ the weir area from all public access.\nII.\nA.\nThe KRUS was enacted “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Kan.Stat.Ann. § 58-3201. Accordingly, a landowner who falls within the statute’s ambit normally “owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” Kan.Stat.Ann. § 58-3203. Similarly,\nan owner of nonagricultural land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose.\n(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.\n(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.\nKan.Stat.Ann. § 58-3204 (emphasis added).\nThere are, however, two exceptions to limited immunity provided by the KRUS. First, the statute does not “limit[] in any way any liability which otherwise exists ... [f|or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” Kan.Stat.Ann. § 58-3206(a). Second, landowners who charge a fee for public use of nonagricultural land are not immune from liability. Kan.Stat.Ann. § 58-3206(b). Although plaintiff has invoked the “willful or malicious” exception as an alternate ground for recovery, it is undisputed that the public used defendants’ land free of charge.\nApplying the KRUS to plaintiffs wrongful death action, the district court ultimately concluded defendants were entitled to immunity from liability because of its findings that the weir area was open for public recreational use and that plaintiff failed to establish defendants’ conduct toward Mr. Bingaman was willful or malicious. In so holding, the court first resolved that the weir area “constitute[d] a part of Easement Area II, as defined in Schedule D of the Easement Agreement, which pursuant to the terms of the Easement Agreement was intended to be open to the public for recreational use.” Bingaman, 1992 WL 81981, at *4. Consequently, although “the public was ultimately excluded from fishing and boating in the weir area because of safety reasons,” this fact alone did not deprive defendants of immunity under the statute because “[tjhere [was] no evidence ... that the public was discouraged from using the weir area for viewing and scenic enjoyment.” Id. Moreover, the court found “it would run counter to the purpose of the statute to discourage landowners from attempting to protect the public from hazardous activities by refusing to provide immunity to a landowner who attempts to restrict the potential uses of certain lands.” Id. Thus, in light of the stated purpose of the KRUS, the court ruled as a matter of law that defendants’ actions in restricting certain recreational pursuits in the weir area did “not constitute a ‘closing’ of that area such that the Kansas RUS would not apply.” Id.\nHaving concluded the weir area was public recreational land within the meaning of the KRUS, the court then considered plaintiffs contention that defendants nonetheless were not entitled to immunity because they willfully or maliciously failed “to guard or warn against a dangerous condition, use, structure, or activity.” Kan.Stat.Ann. § 58-3206(a). Relying on Klepper v. City of Milford, 825 F.2d 1440 (10th Cir.1987), the court determined “willful,” as used in the KRUS, meant “intentionally causing an injury or doing wrong rather than intentionally acting or failing to act in a' way that merely allows a wrong to occur.” Bingaman, 1992 WL 81981, at *5 (quoting Klepper, 825 F.2d at 1446). Thus, although defendants knew about the weir’s undertow and were aware of at least one weir-related accident prior to Mr. Bingaman’s drowning, the court concluded their knowledge alone was “insufficient to create liability under the Kansas RUS.” Id. Finding plaintiff “presented no evidence that defendants intended to harm Mr. Bingaman,” the court granted summary judgment for defendants on plaintiffs alternate claim. Id.\nOn appeal, plaintiff contends defendants’ conduct both before and after executing the Easement Agreement “demonstrates that they exercised defacto control” over the weir and discharge canal. Indeed, she maintains defendants took “affirmative steps to bar public entry” to the weir area: regularly patrolling the area, removing the public, and installing a wire rope and “Keep Out” buoys just north of the weir. She also asserts that once the footbridge fell into disrepair, defendants controlled access to the canal dike through a locked gate, thereby preventing public access to the dike. Thus, according to plaintiff, “[n]o matter how defendants seek to characterize the installation of the wire rope and buoy[s], the totality of their actions clearly indicate [sic] that the public was neither invited or permitted to use the weir area in any manner.” It follows, she maintains, that defendants are not entitled to immunity under the KRUS.\n“This court conducts a de novo review of a district court’s ruling on summary judgment.” United Bank & Trust Co. v. Kansas Bankers Sur. Co., 901 F.2d 1520, 1522 (10th Cir.1990) (citation omitted). We apply the same legal standard employed by the district court under Rule 56(c) of the Federal Rules of Civil Procedure, viewing the record in a light most favorable to the party opposing summary judgment. Hicks v. City ofWatonga, 942 F.2d 737, 743 (10th Cir.1991).\nB.\nIn determining the appropriateness of summary judgment, the relevant inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Consequently, “[s]ummary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). However, “summary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.\nHaving carefully reviewed the record before us on appeal, we believe the district court erroneously concluded as a matter of law that the KRUS applies to this case. Under the statute,- a landowner must “directly or indirectly-invite[ ] or permit[ ]” the public to use its property for recreational purposes to be immune from liability. Kan.Stat. Ann. § 58-3204. Here, although the weir area technically may have been part of the Easement Agreement, the deposition testimony of the Linn County Sheriff and two security guards employed by defendants suggests that fishermen and boaters alike were routinely removed from the area. Relatedly, defendants concede they took additional steps to keep the public out of the area, first installing exclusionary buoys and later fencing off the entire weir area. Defendants’ actions, when viewed as a whole, indicate they exercised a degree of control over the weir area inconsistent with their contention that the area was managed by the Commission pursuant to'the Easement Agreement. Those actions also suggest that defendants intended to keep the public out of the weir area. When those actions are weighed against defendants’ unsubstantiated claim that the area was used for viewing and scenic enjoyment, it is clear that the central factual issue in this ease remains unresolved. Because plaintiff has raised a factual question whether the public was invited to use the weir area for any recreational purposes, the case must be remanded for further consideration.\nC.\nIn dismissing plaintiffs complaint, the district court relied upon two cases which are distinguishable. See Klepper, 825 F.2d 1440; Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 508 A.2d 58 (1986). In those cases, because the property on which the injury occurred was indisputably open to the public, the primary issues before the court were whether the defendants waived then-immunity by posting warning signs on land otherwise protected by a state recreational use statute and, relatedly, whether the defendants failed to adequately warn against dangerously low water levels. The court in both instances ruled in favor of the defendants, concluding the applicable state recreational use statute did not prohibit landowners from restricting certain recreational activities on their land. See Klepper, 825 F.2d at 1450 (determining “sound public policy would encourage safety inspections and warnings by owners of recreational areas”); Genco, 508 A.2d at 61 (signs posted by defendants restricting use in certain locations on lake did not raise material factual issue where entire lake was considered major state recreational area).\nHere, in contrast, the issue of public access to the weir area is far from resolved because the • record contains evidence to support plaintiffs contention that the weir was closed to the public. Thus, the district court essentially resolved a disputed material fact contrary to Fed.R.Civ.P. 56(c) and concluded the weir area was open for certain recreational uses, thereby allowing Klepper and Genco to dictate a particular legal conclusion which does not necessarily follow from the highly controverted facts of this case.\nThe district court also failed to consider the legal effect of the special conditions imposed under the Easement Agreement for public access to the discharge canal north of the canal pond. Paragraph 4(a) of the Easement Agreement specifically allowed public “use of both sides of the discharge canal dike and the canal pond waters that are North of the center line of Sections 28 and 27” only if the Commission “installed] and maintained] devices to clearly mark and prevent public entry into the canals and other areas deemed hazardous.” Arguably, the footbridge served as the “condition precedent” for allowing such public access. Under the plain language of the Easement Agreement, one reasonably could conclude that when the footbridge was removed by the Commission, which occurred several years before Mr. Bin-gaman’s death, the canal waters north of the canal pond ceased to be part of the easement. Thus, contrary to the district court’s finding, it is debatable whether the weir area was included in the easement when Mr. Binga-man drowned.\nA landowner who bars public access to its property has not directly or indirectly invited or permitted the public to use that property for recreational activities and thus is not entitled to immunity under the KRUS. Because we believe plaintiff has presented sufficient evidence to raise a genuine factual issue regarding public use of the weir area, we reverse the district court’s order granting summary judgment and remand the case for further proceedings. In so doing, we note that if a jury ultimately concludes defendants did permit certain public recreational activities in the weir area, then this case would be governed by Klepper, and defendants would riot be liable under the KRUS. However, should a jury find defendants denied public access to the area, the jury must then determine whether Mr. Bingaman was a trespasser under Kansas law.\nDefendants contend “the legal result [is] the same” whether they permitted or prohibited public use of the weir area because they would owe no legal duty to an invited guest or trespasser other than to refrain from intentionally or recklessly injuring him. However, defendants have failed to consider a third, equally plausible scenario.. If, as plaintiff argues, Mr. Bingaman had been fishing outside the weir area and defendants suddenly released more water into the discharge canal, thereby sucking Mr. Bingaman’s boat into the weir, then Mr. Bingaman would be neither a trespasser nor an invitee.\nIII.\nPlaintiff has invoked the “willful or malicious” exception to the KRUS as an alternate ground for recovery. She contends that even if the weir area falls within the KRUS, defendants cannot escape liability because they willfully or maliciously failed to warn against the severe undertow associated with the weir. See Kan.Stat.Ann. § 58-3206(a). To support her position, she recites a number of uncontroverted facts. First, she notes that before Mr. Bingaman drowned, defendants knew the weir created a dangerous undertow, experienced swimmers in good condition had been trapped in the weir, life jackets could not overcome the force of the circulating water, and the public perceived the weir area as a desirable fishing spot. She observes, moreover, that although defendants were aware of at least one drowning before Mr. Bingaman’s death, they “gave no warning to the public that a deadly undertow could draw a boat into the weir, capsize it, and hold the occupant underwater.” Therefore, she maintains defendants’ failure to prevent Mr. Bingaman’s drowning constitutes willful or malicious conduct under the KRUS.\nPlaintiff also takes issue with the definition of “willful” articulated in Klepper. Claiming “the Supreme Court of Kansas would not interpret and apply Kansas law in a manner which would require proof that the instant defendants intended to harm Mr. Bingaman,” she urges this court to both “modify Klepper to the extent it is inconsistent with decisions of the Kansas Supreme Court” and to remand this case for a jury determination whether defendants’ conduct was willful or malicious.\nIn Klepper, we first considered the meaning of the term “willful” as employed by the KRUS. There, we determined that because “Kansas tort law overwhelmingly favors a definition of willfulness as intentionally causing an injury or doing wrong rather than intentionally acting or failing to act in a way that merely allows a wrong to occur,” the defendants’ conduct was not “willful” unless they “intended to injure the plaintiff or otherwise had a designed purpose or intent to do ivrong. ” 825 F.2d at 1446-47 (emphasis added). Thus, although plaintiff urges a less rigorous definition of “willful,” Klepper is the controlling authority.\nApplying Klepper to the facts of this case, we conclude plaintiff has failed to establish that defendants intended to injure Mr. Bin-gaman or to do wrong. To the contrary, defendants installed' exclusionary buoys to keep the public out of the weir area even before the lake was opened to the public. Moreover, although defendants knew of a dangerous condition which had caused relatively few accidents, their knowledge alone is insufficient to create an inference that they intended to injure Mr. Bingaman. Because the KRUS “provides for no liability for simple negligence,” we affirm the district court’s summary judgment dismissal of plaintiffs alternate claim. Id. at 1450.\nFor the foregoing reasons, the district court’s order granting summary judgment is AFFIRMED in part and REVERSED in part.\n.In light of our decision to remand the case for further proceedings, plaintiff’s motions for certification to the Kansas Supreme Court and for leave to separately transmit a videotaped exhibit are denied.\n. Defendants contend there is no evidence linking Mr. Bingaman’s death to the weir. However, emergency personnel and others involved in the rescue operation, including one of defendants’ own officials, uniformly reported that Mr. Binga-man drowned there, and defendants have presented no evidence or explanation to the contrary.\n. See map attached.\n. Defendants concede their weir is the type of low-head dam that creates one of the most dangerous water hazards in moving waterways. The rising water at its base creates a \"boil” on the water's surface. Water then flows upstream towards the weir, creating a treacherous “backwash.\" It is further conceded that the extremely hazardous conditions associated with the weir are not known or understood by the public-at-large, including experienced fishermen, boaters, and swimmers, because the weir does not look dangerous.\n. The Commission is now known as the Kansas Department of Wildlife and Parks.\n. Viewing the facts in a light most favorable to plaintiff, the district court concluded fishing also was not allowed in the weir area. Bingaman v. Kansas City Power & Light Co., No. CIV. A. 88-2349-V, 1992 WL 81981, at *3 (D.Kan. Mar. 18, 1992).\n. As defined in the statute, \"land” refers to \"land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty,\" including \"agricultural and nonagricultural land.” Kan.Stat.Ann. § 58-3202(a). Correspondingly, the term “recreational purposes” includes, but is not limited to, \"[h]unting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.” Kan.Stat.Ann. § 58-3202(c).\n.Sections 58-3203 and 58-3204 of the KRUS also apply to \"the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.” See Kan. Stat.Ann. § 58-3205. Therefore, the disputed land in this case falls within the statute’s purview.\n. Plaintiff also suggests that because defendants would not be immune from liability if Mr. Binga-man had been killed inside the power plant, \"[t]he result should not be any different solely because the locus of injury is outside the plant, in a man-made appurtenance necessary for operation of the plant.” In light of our decision to remand the case, however, we need not consider the merits of plaintiff's \"industrial complex” argument at this time.\n. Defendants' attempts to discredit this testimony are unpersuasive because they have presented no evidence to support their contention that the public was allowed to use the weir area for \"viewing and scenic enjoyment.” Moreover, their opposing deposition testimony to the effect that fishing was allowed in the weir area at most raises a factual question whether certain recreational uses were indeed permitted.\n. To date, only eight persons are known to have been trapped in the weir — two near-drownings and one drowning before July 1986 and four near-drownings after that date.", "type": "majority", "author": "JOHN P. MOORE, Circuit Judge."}, {"text": "PAUL H. RONEY, Senior Circuit Judge,\nconcurring in part and dissenting in part:\nI concur in the judgment of the court that the defendant was entitled to summary judgment insofar as plaintiff based her claim on allegations of willful and malicious misconduct.\nI respectfully dissent from the decision that the alleged public restrictions in the weir area deprived the defendants of the protection provided by the Kansas Recreational Use Statute (KRUS), Kan.Stat.Aun. §§ 58-3201 to 58-3207 (1983 & Supp.1992), for the reasons set forth in the Memorandum and Order of the district court as follows:\nIt is uncontroverted that pursuant to the Easement Agreement, La Cygne Lake was opened to the public for recreational use in 1978. Moreover, the discharge canal/weir area in which Mr. Bingaman’s boat was found constitutes a part of Easement Area II, as defined in Schedule D of the Easement Agreement, which pursuant to the terms of the Easement Agreement was intended to be open to the public for recreational use. Easement Agreement paragraph 1. The fact that, when viewing the facts in the light most favorable to the plaintiff, the public was ultimately excluded from fishing and boating in the weir area because of safety reasons does not deprive defendants of the protection from liability provided by the Kansas RUS. See Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 508 A.2d 58, 61 (1986) (holding that the fact that defendant posted signs restricting the use of the lake in dangerous areas did not controvert the fact that the lake was open to the public).\nIn view of the stated purpose of the Kansas RUS to encourage landowners to make their lands available to the public for recreational uses, the court finds that restricting certain uses of an area does not constitute a “closing” of that area such that the Kansas RUS would not apply. There is no evidence in this case that the public was discouraged from using the weir area for viewing and scenic enjoyment, only that they were excluded from potentially hazardous activities such as boating and fishing. While the Kansas RUS states that landowners have no duty to warn of a dangerous condition, it would run counter to the purpose of the statute to discourage landowners from attempting to protect the public from hazardous activities by refusing to provide immunity to a landowner who attempts to restrict the potential uses of certain areas. Similarly, in Klepper v. City of Milford, Kansas, 825 F.2d 1440 (10th Cir.1987), the Tenth Circuit held that the defendant did not waive its immunity under the Kansas RUS because it made quarterly inspections of the park area and took steps to safeguard park users.\nIn the present case, the district court noted that sound public policy would encourage safety inspections and warnings by owners of recreational areas and that liability under the RUS for negligent undertakings could well have the effect of discouraging warnings and inspections altogether.\nId. at 1450. The court therefore concludes that the Kansas RUS applies to this case.\nBingaman v. Kansas City Power & Light Co., No. 88-2349-V, Op. at 9-10, 1992 WL 81981 (D.Kan. March 13, 1993).", "type": "concurring-in-part-and-dissenting-in-part", "author": "PAUL H. RONEY, Senior Circuit Judge,"}], "attorneys": ["David A. Hoffman (Donald W. Vasos and Stephen G. Dickerson with him on the briefs), Vasos, Kugler & Dickerson, Kansas City, KS, for plaintiff-appellant.", "J. Michael Grier (James M. Warden and Diana D. Moore with him on the brief), Blackwell Sanders Matheny Weary & Lombardi, Overland Park, KS, for defendants-appellees."], "corrections": "", "head_matter": "Rilda I. BINGAMAN, Individually and as Administratrix of the Estate of William L. Bingaman, Deceased, Plaintiff-Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, a Missouri Corporation; and Kansas Gas and Electric Company, a West Virginia Corporation, Defendants-Appellees. Kansas Department of Wildlife And Parks, Amicus Curiae.\nNo. 92-3139.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 8, 1993.\nDavid A. Hoffman (Donald W. Vasos and Stephen G. Dickerson with him on the briefs), Vasos, Kugler & Dickerson, Kansas City, KS, for plaintiff-appellant.\nJ. Michael Grier (James M. Warden and Diana D. Moore with him on the brief), Blackwell Sanders Matheny Weary & Lombardi, Overland Park, KS, for defendants-appellees.\nBefore SEYMOUR, RONEY, and MOORE, Circuit Judges.\nHonorable Paul H. Roney, Senior Circuit Judge for the United States Court of Appeals for the Eleventh Circuit, sitting by designation."} | SEYMOUR | RONEY | MOORE | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 976 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,887 | UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOLEY; Ronald L. Taylor; Gary P. Leber; Merri W. Turner, also known as Merrie Foutz; and Charles W. Matson, Defendants-Appellants | United States v. Cooley | 1993-07-19 | Nos. 92-3076, 92-3081 and 92-3084 to 92-3086 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before ANDERSON, BALDOCK, and KELLY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOLEY; Ronald L. Taylor; Gary P. Leber; Merri W. Turner, also known as Merrie Foutz; and Charles W. Matson, Defendants-Appellants."], "opinions": [{"text": "STEPHEN H. ANDERSON, Circuit Judge.\nThe defendants-appellants in these eases are abortion protesters who were arrested after they climbed a fence and sought to block access to a Wichita, Kansas, medical clinic. They were charged and subsequently convicted by a jury of violating 18 U.S.C. § 1509, which makes it a misdemeanor for any person, by threat or force, willfully to prevent, obstruct, impede, or interfere with, or willfully attempt to prevent, obstruct, impede, or interfere with, the performance of duties under any order, judgment, or decree of the United States. Among the issues raised in these appeals, the defendants contend that (1) the evidence was insufficient to support a conviction; (2) the jury instructions improperly permitted the jury to impute individual guilt from the cumulative actions of others; (3) the indictment was improperly obtained; and (4) the district judge should have disqualified himself, pursuant to 28 U.S.C. § 144 or § 455(b)(1), due to personal bias against the parties, or, pursuant to 28 U.S.C. § 455(a), because his impartiality could reasonably be questioned. We find no merit in any of these claims except that related to disqualification. As to that issue, we conclude that the district judge should have disqualified himself under 28 U.S.C. § 455(a) because his impartiality might reasonably have been questioned as a result, among other things, of his appearance on the nationally televised evening program “Night-line.” Accordingly, we vacate the conviction and sentence of each defendant, and we remand these cases to the district court for reassignment to another judge, and a new trial.\nI.\nBACKGROUND\nIn the summer of 1991, national anti-abortion leaders chose Wichita, Kansas, as the site of a “summer of mercy” protest, directed at certain medical clinics which performed abortions (legal under Kansas law). Hundreds, perhaps thousands, of protesters participated at one time or another. Their general tactics included attempts physically to block entrances to the climes so as to “rescue” fetuses by denying entrance to anyone seeking an abortion. On application by the clinic owners, the federal district court issued a temporary restraining order, followed by a preliminary injunction on August 5, 1991, enjoining Operation Rescue leaders by name, and all acting in concert with them, from, inter alia, blocking access to and egress from specified medical facilities. The Tiller medical clinic, where the events underlying this case took place, was one of the facilities protected by the injunction. The court ordered United States Marshals to enforce the injunction. Intense local and national publicity and debate followed.\nMany arrests occurred during the summer, some by local police officers, and some by the Marshals. The district judge who issued the injunction heard various matters involving certain of the protesters and their leaders. The judge was subjected throughout this time to death threats and other threats and intimidations. Cooley R.Supp. Vol. V at 613. The judge learned at the outset that the protesters intended willfully to violate his orders. Taylor R.Supp. Vol. I at 26. He gained more information about actual and anticipated violations of his order through matters coming before him in connection with the actions of the protesters. As a result, he became “adamant and vocal” in stating that his order was going to be obeyed. Cooley R.Supp. Vol. V at 614.\nOn August 20, 1991, the protesters, by prearrangement, attempted a new tactic. The events on that day were considerably different than they had been on prior days. United States Marshal Kent Pekarek testified that the Marshals and police officers were usually given advance notice of how many protesters they could expect and what techniques the protesters intended to use. However, the “[njight before [August 20] we received no information at all [about] what clinic they were going to try to block, as to their techniques, as to how many. We received nothing at all, and we contacted our sources and no one was talking.” Cooley R.Supp. Vol. Ill at 212. Moreover, the atmosphere on the morning of August 20 was unusually quiet:\n[Generally witnesses in the crowd who are curious onlookers will hear discussions in the crowd and tell — the information will get to us as to what may be happening, and that didn’t happen that morning either. They usually ... block the clinics like at 8:00 or 9:00 o’clock in the morning. Nothing was happening that morning [of August 20].\nId.\nShortly after noon on August 20, about forty protesters, including the defendants, sealed the fences and walls surrounding the Tiller clinic and rushed the gates from the interior, thereby blocking access to the clinic from the inside. Some of the protesters pushed and shoved on the gates, and at least one carried a locking device designed to be placed on the clinic gates. Id. at 216, 311. Both Marshal Pekarek and Deputy Amico testified that this event was entirely new, unanticipated and different from other attempts to block access to the clinic. Id. at 216-17, 310-12. They further testified that the moblike atmosphere hampered their ability to perform their duties, and caused them fear of immediate personal harm and danger to their own well being. Id. at 217-21; 327-29.\nThe evidence offered' at trial demonstrates that each defendant in this case intentionally participated in the activities of August 20, that each scaled the fence or entered the grounds through an entrance shortly after noon, and that each sought to block access to the clinic from inside the grounds.\nGary Leber\nLeber came to Wichita on August 19 “to become part of what was going on.” Cooley R.Supp. Vol. IV at 425. He testified that he was “among the group [that] went over the fence,” and that he “ran around toward the gate area on the inside and sat down, and then laid down.” Id. at 428-29. His purpose was to “place [his] body in the driveway so that the gate could not be opened so people could not enter or leave the premises.” Id. at 436. He further testified that he knew that the U.S. Marshals were there “to maintain access or order,” id. at 437, and had heard a “rumor of certain ... heavy federal charges.” Id. at 438.\nCharles Wesley Matson\nMatson arrived in Wichita on August 18. He testified that he “felt led to come to Wichita” after watching television news reports in which Judge Kelly and others had made comments. Id. at 442. On August 20, while picketing outside the clinic, he heard that “some people were going to block the gate ... from the inside” and that “someone was going to give some kind of signal.” Id. at 441. When he saw people begin to run up and jump over the fence, he “laid down [his] sign and ... followed those people over.” Id. at 442. After he went over the concrete fence on the north side of the clinic, Matson was approached by a U.S. Marshal who told him to sit down, which he did. Id. at 442-43.\nRobert Cooley\nCooley arrived in Wichita on the morning of August 19. He attended an informational meeting with Operation Rescue on the evening of the August 19. Id. at 459. At that time, he decided to participate in the plan to enter the inside of the clinic grounds. Id. at 459-60. He was told at the meeting that “there was an order in place.” Id. at 456. On August 20, he hopped over the fence, ran through the parking lot on the interior of the clinic property, and headed toward the gate. Id. at 452. He testified that “from the very early moments of that thing, I think it was fairly plain ... what our objectives were, and that was to get to the back side of the gate.” Id. at 453. He acknowledged that he took the Marshals by surprise, and had stated before that “the Marshals were caught flatfooted by his action.” Id. at 460.\nRonald Taylor\nTaylor arrived in Wichita on August 19 and, like Cooley, attended the Operation Rescue meeting that evening and volunteered to participate in a rescue on August 20. Id. at 462. On the morning of August 20, he “re-ceiv[ed] instructions about not letting the marshal touch you.... ” Id. at 460. He testified that he chose to walk through the gates of the clinic rather than scale the fence, but acknowledged that he did enter the compound and place himself near the gate on the inside. Id. at 463. He stated that he and the other protesters “were there to close the gate.” Id. at 468.\nMerri Warren Turner\nTurner came to Wichita on August 18 and attended the Operation Rescue meeting on the evening of August 19. Id. at 471. She testified that she “had heard about [Judge Kelly’s order]” and that she was “not too sure there are many people that haven’t.” Id. at 474. She testified that sometime after noon on August 20, she “moved across the street with a group of people who were going down the right-hand side of the fence ... and [she] crossed over the fence with some of the men and women who were ... doing that as an attempt to keep the women from coming in.” Id. at 475. Once inside the clinic grounds, she “went down the side line of the grass and sat [at] ... the left-hand edge of gate.” Id. at 476.\nAs a result of their actions the defendants were arrested and subsequently charged with, by force or threat, willfully preventing, interfering with, impeding or obstructing the United States Marshals on the scene in the performance of their duties in enforcing the district court’s injunction, or attempting to do so. The defendants’ cases were consolidated for jury trial before the district judge who issued the injunction. The trial began on November 19, 1991, and concluded with a guilty verdict on November 26, 1992.\nEight weeks prior to trial, defendant Ronald L. Taylor moved that the district judge recuse himself under 28 U.S.C. § 455(a) or (b)(1), on the ground of bias, or that the judge’s impartiality might reasonably be questioned. The written motion was accompanied by Taylor’s affidavit which alleged, in substance, that:\n1. The district judge had appeared on national television with Barbara Walters to talk about the abortion protests in Wichita, and had stated in part that “these people are breaking the law.”\n2. The district judge had “been quoted in national media saying if anyone plans to come to Wichita, ‘they had better bring a toothbrush!’”\n3. World magazine, August 24, 1991 edition, stated that the district judge “has frightened off a few activists with threats of lengthy prison terms.”\n4. The district judge stated that “he was ‘disgusted’ with the Justice Department for weighing in on the side of the rescuers by questioning his jurisdiction in the matter.”\n5. The district judge sentenced one protester to jail, stating in court that the sentence was because of the protester’s “blatant defiance” of the injunction issued by the judge prohibiting interference with ingress or egress from the clinics in question.\n6. According to Life Advocate magazine, the district judge’s cousin and daughter held leadership positions in the National Organization for Women.\n7. The judge has received “national attention for his remarks of judicial matters pending before him with regard to civil disobedience in Wichita.”\nTaylor R.Vol. I, tab 18.\nOn October 1, 1991, defendant Robert E. Cooley filed a similar motion and affidavit. The only factual assertions of substance which differed from those alleged by Taylor are as follows:\n1. The judge was “widely quoted threatening lengthy jail stays for involved parties, including the Standing Governor of Kansas and the local Catholic Bishop.”\n2. The judge “appeared on the television news program, Nightline, where he made numerous prejudicial remarks including, ‘these people are breaking the law.’ ”\n3. On “several occasions” the judge displayed “open hostility and emotions over which he was not fully in control. Even his admirers in the media characterized him with such adjectives as ‘firey,’ ‘feisty,’ ‘impassioned.’ ”\n4. On August 5, 1991, the judge said in open court “ ‘next, those of these protesters, rescuers, my view, law violators, who have already been arrested more than once — we have all names on computer. ..\nCooley R. Vol. I, tab 18.\nThe district court held a hearing on October 21, 1991, to address various pending motions, including the Taylor and Cooley motions to recuse. At the hearing, defendants Gary P. Leber and Charles W. Matson verbally joined those motions. Defendant Merri W. Turner filed a written joinder on November 21, 1991. Turner R. Vol. I, tab 29.\nAt the October 21, 1991, hearing, the government expressly declined to take a position on the recusal motions. Taylor R.Supp. Vol. I at 18. The defendants essentially reiterated and argued the allegations raised in their motions and affidavits, as described above, with the following additions. Defendant Taylor described remarks that the judge’s cousin allegedly made at the 1991 conference of the National Organization for Women. In those remarks, the judge’s cousin supposedly referred to the necessity of influencing people who are in a position to “get Operation Rescue out of your town.” Id. at 21. Taylor also referred to an article in the August 21, 1991, issue of the Wichita Eagle in which the reporter stated: “saying through his clinched [sic] teeth that it is over, U.S. District Judge Patrick Kelly on Tuesday ordered the arrest of several Operation Rescue leaders because they failed to post a hundred thousand dollar bond as he had ordered on August 6. ‘I’m telling you, sir, I’m through,’ a seething Kelly told Operation Rescue spokesman Pat Maho-ney as he stood handcuffed before Kelly in federal court at 3:55 p.m. on' Tuesday.” Id. at 22. In addition, Taylor referred to other printed articles appearing in the August 22, 1991, edition of the Wichita Eagle, quoting the district judge as saying “Days of protests are over.” Id. at 23. Finally, defendant Taylor referred the judge to comments he had made to Senator Dole at the judge’s confirmation hearing many years previously. In those remarks the judge stated that “No one will ever have reason to accuse me of leaning one way or the other.” Id. at 24.\nAfter hearing all of the arguments offered by the parties in support of their recusal motions, the court denied the motions, stating that his actions constituted nothing more than a discharge of his duty to carry out and uphold the law, including informing others that lawful orders of the courts must be obeyed. Id. at 25-26. The court stated further: (1) that he was in no way biased against the defendants or any other litigants involved in the abortion protests, and that he had treated and would continue to treat all litigants fairly, evenly, and impartially; (2) that he was not privy to any of the factual evidence that pertained to any of the defendants; (3) that the propriety of the injunction which had been issued and statements by leaders of Operation Rescue and statements of the court with respect to those leaders were utterly irrelevant to the specific charges pending against the defendants; (4) that whatever steps the court had previously taken, formally or informally, from the bench or otherwise, to insure compliance with the court’s injunction were also irrelevant since there is “nothing about any actions or statements which remotely relate to any of the defendants’ guilt or innocence, and I will not be driven from the exercise of my responsibility here because I have somehow displeased some in the exercise of that role and which was done to assure compliance with my directive as I have dealt with Operation Rescue’s leaders or its followers.” Id. at 27-29.\nAll of the defendants renewed their motions for recusal as part of their motions for a judgment of acquittal at the close of the government’s case, Taylor R.Vol. IV at 385, 411, 413, and as part of their respective post-trial motions for judgments of acquittal or, in the alternative, for a new trial. The respective motions were all denied.\nIn their trial and post-trial motions, the defendants did not in any material way expand the reasons they had previously given in support of their motion for recusal. However, in their post-trial motions, defendants Turner, Matson, and Leber concentrated on two arguments. First they suggested that the court would be inclined to accept the testimony of United States Marshals who were on the premises of the clinic because the court ordered them to be there. In that connection, the defendants suggested that the judge should have been sensitive to the fact that he might be called as a witness regarding the issuance of the order which placed the Marshals on the premises, and which underlay the charge in question. Next, the defendants argued that the judge might have become biased because he had received threats, including information that the Pope had been asked to excommunicate him. The defendants also alluded to prior adverse rulings and statements with respect to other anti-abortion activists.\nThe court rejected all of those arguments in a written opinion issued on February 18, 1992, 787 F.Supp. 977. In that opinion the court again denied any bias whatsoever with respect to the defendants, including the actual conduct of their trial. To the contrary, the court stated that it had “exercised considerable effort to guarantee the rights of the accused.” Taylor R.Vol. I, tab 91 at 15. The court also rejected the propositions that threats or previous orders in the same or related actions constituted grounds for recu-sal. Finally, the court rejected the defendants’ arguments that the possibility ever existed that the judge might be called to testify in the case with respect to his injunction, or that the injunction itself or the presence of the Marshals pursuant to the injunction were in any way relevant to the charges against the defendants. That is, no contention had been raised by any of the defendants that the injunction was not a valid order of the court, or that the order had not been breached in some way, or that the United States Marshals were not properly on the premises of the clinic pursuant to the order. Accordingly, none of those subjects constituted grounds for recusal.\nIn their briefs on appeal, the defendants essentially repeat the arguments which they raised below.\nII.\nDISCUSSION\nA. Disqualification.\nTitle 28 U.S.C. § 455(a) provides:\nAny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.\nThis subsection is part of a 1974 amendment to the statute, enacted for the purpose of clarifying and broadening the grounds for judicial disqualification. “The general language of subsection (a) was designed to promote public confidence in the integrity of the judicial process by replacing the subjective [‘in the opinion of the judge’] standard with an objective test.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2202, n. 7, 100 L.Ed.2d 855 (1988). See S.Rep. No. 93-419 at 1 (1973); H.R.Rep. No. 93-1453 at 1-2 (1974), U.S. Code Cong. & Admin. News 1974, p. 6351. The subsection “applies to the varied and unpredictable situations not subject to reasonable legislative definition in which judges must act to protect the very appearance of impartiality.” United States v. Gipson, 835 F.2d 1323, 1325 (10th Cir.1988). Under it a judge has a continuing duty to recuse before, during, or, in some circumstances, after a proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge’s impartiality. Liljeberg, 486 U.S. at 861, 108 S.Ct. at 2203; see also Frates v. Weinshienk, 882 F.2d 1502, 1505-07 (10th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1297, 108 L.Ed.2d 474 (1990); United States v. Kelly, 888 F.2d 732, 744 (11th Cir.1989). However, this court has held that “[a] motion to recuse under section 455(a) must be timely filed.” Willner v. University of Kansas, 848 F.2d 1023, 1028 (10th Cir.), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1988).\nIn applying § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue. See, e.g., Hall v. Small Business Admin., 695 F.2d 175, 179 (5th Cir.1983); Susan B. Hoekema, Comment, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 155(a), 60 Temp.L.Q. 697, 727 (1987). The test in this circuit is “ ‘whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.’ ” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992) (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987)), cert. denied, — U.S. -, 113 S.Ct. 1854, 123 L.Ed.2d 477 (1993); see also Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir.1988); United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979). The standard is purely objective. The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom. In applying the test, the initial inquiry is whether a reasonable factual basis exists for calling the judge’s impartiality into question. Gipson, 835 F.2d at 1325; Willner v. University of Kansas, 848 F.2d 1023, 1026-27 (10th Cir.1988); United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982); In re Allied Signal, Inc., 891 F.2d 967, 970 (1st Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990).\nJudicial gloss on the statute by way of various limitations stems from a necessary emphasis on the term “reasonably” in section 455(a). We have stressed that “section 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.” Franks v. Nimmo, 796 F.2d 1230, 1234 (10th Cir.1986) (quoting United States v. Hines, 696 F.2d at 729). The statute is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice. See, e.g., In re United States, 666 F.2d 690, 694 (1st Cir.1981); United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986).\nCongress expressed concern over abusive invocation of the statute by parties as a means of judge shopping, stating;\nNothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.\nH.Rep. No. 1453, 93d Cong., 2d Sess. 1 (1974), reprinted in 1974 U.S.Code Cong. & Admin. News 6351, 6355.\nThus, in addition to other factors, this and other courts have identified various matters arising in cases involving §§ 144, 455(a), or 455(b)(1), which will not ordinarily satisfy the requirements for disqualification under § 455(a): (1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters, United States v. Burger, 964 F.2d at 1069; Glass v. Pfeffer, 849 F.2d at 1267; Willner v. University of Kansas, 848 F.2d at 1027; Hinman v. Rogers, 831 F.2d at 939-40; United States v. Hines, 696 F.2d at 719; (2) the mere fact that a judge has previously expressed an opinion on a point of law, Leaman v. Ohio Dep’t of Mental Retardation, 825 F.2d 946, 949 n. 1 (6th Cir.1987); United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976), or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of the law upon those found guilty of a particular offense, United States v. Gigax, 605 F.2d at 514; United States v. Haldeman, 559 F.2d 31, 134 n. 302 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); (3) prior rulings in the proceeding, or another proceeding, solely because they were adverse, see Glass v. Pfeffer, 849 F.2d 1261, 1268 (1988); Green v. Dorrell, 969 F.2d 915, 919 (10th Cir.1992); Willner v. University of Kansas, 848 F.2d at 1028; (4) mere familiarity with the defendant(s), or the type of charge, or kind of defense presented, see Frates v. Weinshienk, 882 F.2d at 1506; (5) baseless personal attacks on or suits against the judge by a party, United States v. Bray, 546 F.2d at 858; (6) reporters’ personal opinions or characterizations appearing in the media, media notoriety, and reports in the media purporting to be factual, such as quotes attributed to the judge or others, but which are in fact false or materially inaccurate or misleading; and (7) threats or other attempts to intimidate the judge. See United States v. Studley, 783 F.2d 934, 940 (9th Cir.1985); United States v. Grismore, 564 F.2d 929, 934 (10th Cir.1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Finally, we have emphasized that “[tjhere is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is.” Hinman, 831 F.2d at 939.\nWe review the denial of a motion to recuse under § 455(a) for abuse of discretion. United States v. Smith, 997 F.2d 674, 681 (10th Cir.1993); United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992); Weatherhead v. Globe, 832 F.2d 1226, 1227 (10th Cir.1987). Applying the factors outlined above, we have no difficulty concluding in this case that the district judge did not abuse his discretion by denying the defendants’ motions to recuse based on every ground except one: the judge’s appearance and statements on the network news program “Nightline.” Because of insufficient facts in the record we do not address the effect of other interviews which the judge may have granted the “media” regarding the abortion protests and his order.\nExcept for the one television appearance, the defendants’ general allegations of impropriety either state no reasonable basis for recusal, or are so lacking in particularity and substantiation as to fall short of establishing the necessary factual predicate for any meaningful review. The judge’s appearance on Nightline is another matter, however. The program and interviewer, Barbara Walters, were identified and the subject was repeatedly brought to the court’s attention. The court not only did not deny either the television appearance or its subject matter — the abortion protests taking place at Wichita clinics, including the Tiller clinic — it tacitly acknowledged the point. Memorandum Order filed Oct. 22, 1991, Cooley R.Vol. I, Tab 27 at 4; Motions Hearing, Oct. 21, 1991, Taylor R.Supp. Vol. I, Tab 72 at 26, 29. In its comments at one point, the court acknowledged seeing to it, both in and out of court, that “these people whose purpose it is to close these clinics by illegal means ... understood fairly so, firmly so, that this order [the court’s injunction prohibiting obstruction of access to the clinics] would be honored.” Id. at 26. See also Hearing on Motions for New Trial, Cooley R.Supp.Vol. V, Tab 76 at 613-14.\nThe court made no analysis under § 455(a) of its television appearance except to state that the only relevant consideration was the specific charge against these defendants, and that the court knew nothing about the facts of their cases, and had no predisposition as to their guilt or innocence of the charges. But § 455(a) asks a broader question which, on these facts, makes it impossible to take these cases out of context. The protests and tactics of the protesters at the Wichita clinics, and the court’s order forbidding obstruction of ingress and egress, are subjects and events with which these cases are inextricably intertwined.\nTwo messages were conveyed by the judge’s appearance on national television in the midst of these events. One message consisted of the words actually spoken regarding the protesters’ apparent plan to bar access to the clinics, and the judge’s resolve to see his order prohibiting such actions enforced. The other was the judge’s expressive conduct in deliberately making the choice to appear in such a forum at a sensitive time to deliver strong views on matters which were likely to be ongoing before him. Together, these messages unmistakenly conveyed an uncommon interest and degree of personal involvement in the subject matter. It was an unusual thing for a judge to do, and it unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator.\nWe conclude that at least after the judge’s volunteer appearance on national television to state his views regarding the ongoing protests, the protesters, and his determination that his injunction was going to be obeyed, a reasonable person would harbor a justified doubt as to his impartiality in the case involving these defendants. Accordingly, we hold that the district judge abused his discretion when he denied the defendants’ motions under § 455(a) to disqualify himself from sitting on these cases.\nBecause of this holding it is unnecessary for us to address the allegations under § 144 or § 455(b)(1) of actual bias against the defendants. We do note, however, that the record of the proceedings below, including the sentences imposed, discloses no bias. To the contrary, it appears that the district judge was courteous to the defendants and sedulously protected their rights.\nB. Sufficiency of the Evidence/Jury Instructions.\nPursuant to this court’s decisions in United States v. Perez, 959 F.2d 164, 168 (10th Cir.1992); United States v. Haddock, 961 F.2d 933, 934 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992) (and cases cited therein); United States v. Jelsma, 630 F.2d 778 (10th Cir.1980); and United States v. Morris, 612 F.2d 483, 491-92 (10th Cir.1979), we must also address the defendants’ contentions that the evidence was insufficient to support their respective convictions. There is no dispute that under a charge of violating 18 U.S.C. § 1509, the government was required to prove beyond a reasonable doubt that each defendant: (1) by threat or force, (2) willfully, (3) did or attempted to prevent, obstruct, impede, or interfere with the performance of duties of the United States Marshals, (4) acting under court order. The standard we employ is whether a rational trier of fact could have found these elements beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. United States v. Tranakos, 911 F.2d 1422, 1430 (10th Cir.1990); United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986).\nThe evidence in this case, outlined at the beginning of this opinion, overwhelmingly establishes the guilt of each of these defendants with respect to the crime charged. Each defendant acknowledged willfully entering onto the grounds of the Tiller clinic for the express purpose of blocking or interfering with access to the clinics from inside the entrances, or attempting to do so. The evidence also showed that each defendant acted in furtherance of that purpose. A rational trier of fact could have found beyond a reasonable doubt that in doing so, they intentionally prevented, interfered with, impeded or obstructed, or attempted to prevent, interfere, impede or obstruct the Marshals in the performance of their duties under court order with respect to maintaining free ingress and egress through those entrances. The evidence also abundantly established that each of these defendants in fact did or attempted to accomplish such prevention, obstruction, interference or impeding through force or threat. The Marshals so testified, and the jury could reasonably arrive at a verdict on the point beyond a reasonable doubt.\nThe defendants contend that the abundant evidence establishing the necessary elements still could not be sufficient because the court permitted the jury to apply the evidence to an erroneous legal theory. Specifically, the defendants argue that the court permitted “imputation of personal guilt from the [actions of the] group,” Brief for the Appellants Leber, et al., at 12, and gave what amounted to an “incomplete supplemental ‘aiding and abetting’ instruction,” id. at 16, when the court answered “yes” to the following question submitted by the jury during its deliberations:\nMay the jurors consider the cumulative effect of 40 individuals performing an action in determining the guilt or innocence of each defendant who acted as one of the defendants?\nLeber R.Supp. Vol. IV at 564 (emphasis added).\nOn review of a challenge to jury instructions, we consider the instructions as a whole, and presume that the jurors will follow those instructions. See Hall v. Western Prod. Co., 988 F.2d 1050, 1058 (10th Cir.1993); United States v. Toledo, 985 F.2d 1462, 1465 (10th Cir.1993).\nWe agree with the district court’s analysis of the defendants’ contention, set forth in the court’s post trial “Memorandum and Order,” dated February 18, 1992. Taylor R.Vol. I, Tab 91 at 11-14. As the district court stated, the jury was fully instructed that the guilt of each defendant must be determined individually. Instruction No. 8 provided:\nAlthough there are multiple defendants in this action, it does not follow from that fact alone that if one is liable, all are liable. Each defendant is entitled to a fair consideration of his own defense and is not to be prejudiced by the fact, if it should become a fact, that you find against the other. Unless otherwise stated, all instructions given you govern the case as to each defendant.\nThis requirement that guilt or innocence be determined individually was repeated throughout the instructions. Thus, Instruction No. 10, setting forth the basic elements of the crime, required that the jury must find each element beyond a reasonable doubt “as to each defendant.” And, in Instruction No. 16, the jury was told:\n[Y]ou are here to determine the guilt or innocence of the accused from the evidence in this case. Defendant is not on trial for any act or conduct not alleged in this case. Neither are you called upon to.return a verdict as to the guilt or innocence of any other person or persons not on trial as a defendant in this ease.\nSee id. at 13.\nThe defendants’ arguments misconceive the nature of the legal principles involved. The jury’s question and the court’s affirmative answer went only to the familiar principle of concurrent causation: “causes acting contemporaneously and together causing injury, which would not have resulted in absence of either.” Black’s Law Dictionary 263 (5th ed.1979). That is, the individual acts, taken together, are a “but for” cause, but each actor is liable for his or her own intentional conduct. See Model Penal Code § 2.03 (Official Draft and Revised Comments 1985); see, e.g., Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law § 35, at 246-50 (1972); Rollin M. Perkins and Ronald N. Boyce, Criminal Law 782-85 (3d ed.1982).\nThe concept of contributory causes is separate from forms of imputed culpability. It does not implicate imputed criminal responsibility; it addresses causation. It describes an amalgam of individual acts where each individual acts with the required culpable mental state but not necessarily to aid another. The acbas reus is the physical act of the individual, not a third person. Where the result is a prohibited end under law and other contributory causes combine to bring about the prohibited result, it is sufficient to impose culpability on the actor without the need for any concept of conspiracy or aiding and abetting.\nAiding and abetting is another, but nonexclusive, tool for allocating culpability in appropriate circumstances. In theory it is a special form of conduct different from a primary actor who must also be involved. The aider must have the mens rea to bring about the result committed by the other principals.\nThe government is entitled to pursue its own theory of criminal responsibility, of course, and is not required to use or be subjected to standards under another theory even though available. When the jury in this case asked whether they could consider the effect, or result, of the combined individual acts of the participants when evaluating the criminal liability of each defendant, the court properly answered “yes.” The critical question is whether the jury found individual guilt on the basis of individual conduct. The instructions were clear on that point, and the jury’s question did not reflect any misunderstanding.\nWe have carefully reviewed the instructions to the jury, the jury’s questions, and the court’s response, and we are satisfied that no reversible error occurred. The jury was not misled or improperly instructed, and there was ample evidence to support the jury’s guilty verdict as to each defendant.\nC. Other Issues.\nThe defendants also raise issues with respect to the propriety of the indictment, the failure to give a requested jury instruction, and an alleged violation of Fed.R.Crim.P. 30 when the court responded to the jury’s inquiry regarding the actions of the other protesters who climbed the fence. We find no merit in any of those issues. The defendants’ final issue, relating to the propriety of their sentencing, need not be addressed due to our disposition of this case.\nIII.\nREMEDY\nThe task of fashioning a remedy for a violation of § 455(a) has been delegated by Congress to the judiciary. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 862, 108 S.Ct. at 2203-04. As the Supreme Court stated in Liljeberg, “[w]e must continuously bear in mind that ‘to perform its high function in the best way’ “justice must satisfy the appearance of justice.” ’ ” Liljeberg, 486 U.S. at 864, 108 S.Ct. at 2205 (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citation omitted)). To best serve that goal, we are satisfied that the remedy in this case is to vacate the conviction and sentence of each of the defendants in these cases, and remand the cases to the district court for a new trial before a different judge. See O’Rourke v. City of Noman, 875 F.2d 1465, 1475 (10th Cir.1989).\nIV.\nCONCLUSION\nFor the reasons stated above, the convictions in these cases are VACATED, and the cases are REMANDED to the district court for reassignment and a new trial.\n. The statute under which the defendants were charged, 18 U.S.C. § 1509, provides:\nWhoever, by threats or force, willfully prevents, obstructs, impedes, or interferes with, or willfully attempts to prevent, obstruct, impede, or interfere with, the due exercise of rights or the performance of duties under any order, judgment, or decree of the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both. No injunction or other civil relief against the conduct made criminal by this section shall be denied on the ground that such conduct is a crime.\n. In his response the district judge referred to \"28 U.S.C. § 455 and ... other provisions that address reasons for recusal.” Taylor R.Supp. Vol. I at 18. However, in renewals of the motions to recuse at the end of the government’s case and following the jury’s verdict, the defendants and the court all referred both to §§ 144 and 455 as if § 144 had been invoked from the outset, as the filing of affidavits (a requirement under § 144) had indicated.\n. The post-trial argument that the judge might have been called as a witness is patently makeweight in view of the fact that no such argument was made by the defendants in their motions to recuse made before and during trial. It is just this sort of tactical creativity rather than genuine substance that justifies a careful evaluation of motions to recuse.\n. Judges take, an oath to uphold the law; they are expected to disfavor its violation. Thus, generally stated views, even when expressed strongly, against a wide variety of conduct, such as murder, invidious discrimination, rape, drug trafficking, and mayhem, to illustrate the obvious, or in favor of the First Amendment, for example, are not unreasonable for a judge, and would not, absent more, disqualify a judge from sitting on a case involving the same subject matter. United States v. Johnson, 537 F.2d 1170, 1175 (4th Cir.1976) (judge’s announced belief that heroin distribution deserved severe punishment did not disqualify him from conducting retrial); Baskin v. Brown, 174 F.2d 391, 394 (4th Cir.1949) (\"A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence.\"); Phillips v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir.1991) (recusal not required where district court judge voiced strong feelings about Title VII litigation generally), cert. denied, — U.S. -, 113 S.Ct. 81, 121 L.Ed.2d 45 (1992); United States v. Bray, 546 F.2d at 857 (\"The mere fact that a judge has previously expressed himself on a particular point of law is not sufficient to show personal bias or prejudice.\"). See also Susan B. Hoekema, Comment, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 455(a), 60 Temp.L.Q. 697, 703 n. 50 (1987).\n. Although Bray involved a § 144 recusal issue, the reasoning there is equally applicable to § 455(a). There we quoted United States v. Garrison, 340 F.Supp. 952, 957 (E.D.La.1972), stating: \" ‘The mere fact that a defendant has made derogatory remarks about a judge is insufficient to convince a sane and reasonable mind that the attacked judge is biased or prejudiced....'” Bray, 546 F.2d at 858. The same is true regarding an objective person, knowing all the facts, assessing whether the judge’s impartiality may reasonably be questioned. Any other conclusion would allow defendants to cause the recusal of judges simply by making scurrilous and disparaging remarks or charges about them. Permitting parties to manipulate the system with falsehoods or insults in such a manner would be a bizarre application of § 455(a) or (b)(1), as well as § 144.\n. \"Although public confidence may be as much shaken by publicized inferences of bias that are false as by those that are true, a judge considering whether to disqualify himself must ignore rumors, innuendoes, and erroneous information published as fact in the newspapers ... To find otherwise would allow an irresponsible, vindictive or self-interested press informant and/or an irresponsible, misinformed or careless reporter to control the choice of judge.\"\nUnited States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986) (quoting In re United States, 666 F.2d 690, 695 (1st Cir.1981)).\n\"[T]o the extent the doubts [concerning the judge] were created by representatives of the press shown to be not grounded in fact, they cannot require disqualification.\" The mere fact that the issue of disqualification of Judge Clemon has drawn the attention of the media, resulting in extensive coverage is not, in itself, a good reason to reassign this case.\nId. at 1558-59 (quoting United States v. State of Alabama, 582 F.Supp. 1197, 1208 (N.D.Ala.1984)).\n.In identifying this non-exclusive list of factors which may inform courts in their application of the test under § 455(a), we intentionally omit any reference to the extra-judicial knowledge rule. The problem we focus on in this case is an extra-judicial appearance. The United States Supreme Court has granted review in United States v. Liteky, 973 F.2d 910 (11th Cir.1992), cert. granted, - U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 636 (1993) (No. 92-6921), in which the question presented is whether, under § 455(a), the cause of apparent bias must stem from an extra-judicial source. The cases in this circuit are arguably inconsistent, sometimes applying such a rule to § 455(b)(1), and sometimes to § 455(a). See, e.g., Franks v. Nimmo, 796 F.2d at 1234 (rule applies to § 455(b)(1), but unspecific as to § 455(a)); United States v. Hines, 696 F.2d at 728 (same); United States v. Page, 828 F.2d 1476, 1481 (10th Cir.) (rule applies to § 455(a) and (b)(1)), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987); United States v. Bray, 546 F.2d at 859 (rule applied to § 144).\n. Canon 3A.(6) of the Code of Conduct for United States Judges provides that \"[a] judge should abstain from public comment about a pending or impending proceeding in any court....\" We express no opinion as to whether this Canon was breached by the district judge’s remarks on television or to the press. But the goal sought to be served by the Canon informs our analysis.\n. Although § 455(a) is waivable and, therefore, not jurisdictional in nature, Gipson, 835 F.2d at 1324-25, we hold that the statute does involve substantial rights of the parties, as well as the public at large; therefore, a district judge’s refusal to disqualify under § 455(a) may be challenged on direct appeal following conviction as well as by use of mandamus. See In re School Asbestos Litig., 977 F.2d 764, 777-78 (3d Cir.1992) (allowing post-judgment as well as mandamus challenges to judge’s refusal to disqualify himself). Compare Durban v. Neapolitan, 875 F.2d 91, 96-96 (7th Cir.1989) and United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.1985) (holding that refusals to disqualify under § 455(a) must be challenged on mandamus and may not be raised post-trial), cert. denied, 475 U.S. 1095, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986) with In re City of Detroit, 828 F.2d 1160, 1165-67 (6th Cir.1987) (requiring that challenges to a district judge's refusal to disqualify under § 455(a) be brought up on direct appeal following final judgment, and may not be brought up by way of a petition for writ of mandamus).", "type": "majority", "author": "STEPHEN H. ANDERSON, Circuit Judge."}], "attorneys": ["Lee Thompson, U.S. Atty., Wichita, KS, for plaintiff-appellee.", "Craig Shultz of Shultz, Webb & Lonker, Wichita, KS, for defendants-appellants, Cooley and Taylor.", "Steven K. Gradert, Asst. Federal Public Defender, Wichita, KS (Charles D. Anderson, Federal Public Defender, Wichita, KS, and Gregory E. Skinner, Asst. Federal Public Defender, Topeka, KS, with him on the briefs) for defendants-appellants, Leber, Matson, and Turner."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOLEY; Ronald L. Taylor; Gary P. Leber; Merri W. Turner, also known as Merrie Foutz; and Charles W. Matson, Defendants-Appellants.\nNos. 92-3076, 92-3081 and 92-3084 to 92-3086.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 19, 1993.\nRehearing Denied Aug. 16, 1993.\nLee Thompson, U.S. Atty., Wichita, KS, for plaintiff-appellee.\nCraig Shultz of Shultz, Webb & Lonker, Wichita, KS, for defendants-appellants, Cooley and Taylor.\nSteven K. Gradert, Asst. Federal Public Defender, Wichita, KS (Charles D. Anderson, Federal Public Defender, Wichita, KS, and Gregory E. Skinner, Asst. Federal Public Defender, Topeka, KS, with him on the briefs) for defendants-appellants, Leber, Matson, and Turner.\nBefore ANDERSON, BALDOCK, and KELLY, Circuit Judges."} | ANDERSON | BALDOCK | KELLY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 985 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,928 | UNITED STATES of America, Plaintiff-Appellee, v. Mohammad HANIF, also known as Mohammad Noor, Defendant-Appellant | United States v. Hanif | 1993-07-20 | No. 92-1285 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before MOORE, BALDOCK and BRORBY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Mohammad HANIF, also known as Mohammad Noor, Defendant-Appellant."], "opinions": [{"text": "BALDOCK, Circuit Judge.\nDefendant Mohammad Hanif was convicted of importation of and possession with intent to distribute heroin, 21 U.S.C. §§ 952, 960, 841(a)(1), and two counts of conspiracy, 21 U.S.C. §§ 963, 846. Defendant appeals, claiming as follows: (1) the district court abused its discretion in failing to listen to tape recordings in camera; (2) insufficiency of the evidence; (3) inconsistent jury verdicts; and (4) the district court improperly increased Defendant’s offense level by two levels for his role as organizer, leader, manager or supervisor. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.\nI.\nConstruing the facts in a light most favorable to the government, United States v. Rackley, 986 F.2d 1357, 1360'(10th Cir.1993), the record reveals the following. In the winter of 1989, Abdul Latif met Defendant through Mohammad Zahir, an acquaintance of Latifs for whom Latif had previously delivered hashish. Latif initially contacted Za-hir to obtain assistance in getting his sisters from India into the United States. At Za-hir’s house, Zahir introduced Latif to Defendant, calling Defendant his partner, friend and working associate. Defendant told Latif that he could get his sisters to the United States for a fee, or alternatively, Latif could smuggle heroin into the United States for Defendant. Latif had many more meetings at Zahir’s house over the next few days, often with Zahir and another Zahir associate, Mohammad Sharif. At times, Defendant attended these meetings. At one of the meetings attended by Defendant, Latif agreed to serve as heroin courier and learned the details regarding his courier responsibilities.\nSometime later, Latif met Defendant at his house in Katmandu, Nepal. Latif and Defendant discussed Latifs employment as drug courier. Latif then flew to the United States, but did not carry any contraband at this time. In February 1990, Latif returned to Katmandu and stayed for ten days in Defendant’s house awaiting instructions from Defendant regarding when and how the heroin transportation was to take place. During this time, Latif witnessed Defendant make telephone calls all over the world, Latif heard Sharif refer to Defendant as “the one in charge,” and Latif received assurances that he would be paid sufficiently for his efforts.\nDefendant then instructed Latif to go to Bombay. Defendant purchased Latifs plane ticket, gave Latif cash for his stay in Bombay, and provided a taxi, which was under Defendant’s permanent hire, to take Latif to the airport. Latif arrived in Bombay and was joined several days later by Defendant and Sharif.\nDefendant, Sharif and Latif stayed in Bombay for the next ten days. During this time, Latif began to get anxious and asked Defendant to give him the heroin so he could make the delivery. In response to this request, Defendant told Latif that he was busy and would tell Latif when it was time to depart. When Latif asked a second time about his departure date, he was again told that Defendant and Sharif were busy doing business with others, and they would let him know when it was time to depart. While still in Bombay, Latif told Defendant that he was afraid of getting arrested, to which Defendant responded that Latif was obligated to deliver because he had promised and there was a plan to prevent his arrest.\nSometime in May 1990, Defendant and Sharif took Latif to a public telephone, where Latif spoke to Basir Aziz, Latif s brother-in-law who lived in California. Aziz was in London and had been recruited by Sharif to participate in the heroin transportation from London to the United States.\nAziz never met Defendant but spoke to him by telephone on occasion. Prior to leaving California for London, Aziz had received twenty to thirty telephone calls about the trip, some of them from Defendant. At one point, when Aziz had second thoughts about participating in. the smuggling operation, Sharif threatened his family, a threat which Defendant later told Aziz to disregard.\nMeanwhile, back in Bombay, Latif was told that he would transport the heroin from Bombay to London, where Aziz would take over and transport it to the United States with Latif accompanying him. On May 7, 1990, Latif was told that he would leave the next day. Defendant purchased Latifs ticket to London, and Sharif accompanied Latif by taxi to the Bombay airport. Although Sharif had no suitcase with him in the taxi, Latif noticed a suitcase when Defendant joined them at the airport. While waiting in the airport, Latif observed Defendant and Sharif holding the suitcase at different times. While Latif checked his own bag, he saw Defendant talking to customs officers, presumably about the other bag. Defendant had previously told Latif that he knew the Indian customs officials well, they all took bribes, and he would pay them to pass the bag through customs without searching it. Defendant later told Latif that he had in fact paid the customs officials.\nLatif flew to London and met Aziz, who had picked up the suitcase. Latif changed planes and flew to New York with Aziz. On the plane, Aziz told Latif that he had a telephone number to call in the United States to find out where to deliver the heroin and also told Latif to call Defendant and Sharif when they arrived in New York.\nAziz was arrested at customs. Because Latif and Aziz were separated at the New York airport before reaching customs, Latif did not know of the arrest. Latif then flew home to California, where his wife, who is Aziz’s sister, told him Aziz had been arrested. Aziz pleaded guilty to importation and decided to cooperate with the government.\nAfter considerable pressure by phone from Sharif and Defendant regarding the location of the heroin and after considerable pressure from his family to help his brother-in-law, Latif went to New York City to cooperate with the government on Aziz’s behalf. Latif provided the government with the telephone number which was to be called to arrange delivery of the heroin. The number was registered to a residence in Broomfield, Colorado under the name Suliman Aslamy. The government set up a delivery by Latif to Aslamy, but Aslamy detected the surveillance and failed to pick up the heroin.\nIn May, 1991, Defendant was arrested in Nepal on a weapons charge. The United States Drug Enforcement Agency learned of Defendant’s arrest and made arrangements to bring Defendant to the United States for prosecution on drug trafficking charges. The grand jury indicted Defendant on ten counts. Counts 1 through 4 alleged a separate 1989 drug importation scheme, counts 5 through 8 related to the 1990 drug importation scheme described in the facts above, and counts 9 and 10 alleged obstruction of justice and witness tampering. Defendant was convicted of counts 5 through 8: (1) conspiracy to import heroin, 21 U.S.C. § 963 (count 5); (2) importation and aiding and abetting the importation of heroin, 21 U.S.C. §§ 952, 960, 18 U.S.C. § 2 (count 6); (3) conspiracy to possess with intent to distribute and to distribute heroin, 21 U.S.C. § 846 (count 7); and (4) possession with intent to distribute and aiding and abetting the possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), (b)(1)(A), 18 U.S.C. § 2 (count 8). He was acquitted of all other counts. Defendant’s initial offense level was 32 but was adjusted upward to 34 for his leadership role in the offense. With a criminal history category of I, Defendant’s guideline range was 151 to 188 months. The district court sentenced him to 170 months with credit for time already spent in official detention.\nII.\nDefendant first alleges that the district court abused its discretion in failing to listen to tape recordings in camera and specifically alleges that one tape was erroneously admitted. The record before us does not include the tapes, but there were apparently more than twenty tapes, which contained telephone conversations from the United States to India and Nepal. These conversations occurred after Latif began cooperating with the government, and the tapes reflect arrangements made for delivering the heroin in the United States. The conversations were usually between Latif and either Defendant or Sharif and were admitted into evidence through Latif with Latif often clarifying certain references made by the tapes’ speakers. The tapes were in a foreign language, and their written translations were admitted into evidence along with the tapes. The district judge did not listen to the tapes in camera but found them admissible after reading their English translations and listening to them in the presence of the jury.\nWe construe Defendant’s argument to be that the district court violated Federal Rule of Evidence 103(c), which provides that “[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means.” The district court has broad discretion in controlling the conduct of a trial, which includes broad discretion in determining under Rule 103(c) whether it is practicable to view evidence for admissibility outside the presence of the jury. See United States v. Wellington, 754 F.2d 1457, 1469 (9th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 573 (1985). Defendant must allege prejudice — • ie., that the district court admitted inadmissible evidence' — to allege a Rule 103(c) violation. International Merger & Acquisition Consultants, Inc. v. Annac Enterprises, Inc., 531 F.2d 821, 824 (7th Cir.1976) (Rule 103(c) is not applicable where evidence is not inadmissible).\nThe admissibility of tape recordings that are partially inaudible is also within the sound discretion of the trial court. United States v. McIntyre, 836 F.2d 467, 469 (10th Cir.1987). Recordings are admissible “unless the inaudible portions are so substantial as to render untrustworthy the recording as a whole.” Id. at 469-70; United States v. Davis, 780 F.2d 838, 846 (10th Cir.1985). “Admission is especially appropriate where a witness who heard the statements also testifies and the recording gives independent support to his testimony.” Davis, 780 F.2d at 846.\nWe hold that the district court did not abuse its discretion in failing to hold an in camera inspection, especially considering that this was a ten-day trial with numerous witnesses and dozens of tape recorded conversations, all of which, as far as we can tell from the record, were in a language foreign to the court, and considering that the court found all the recordings admissible after hearing them. Furthermore, Defendant’s only allegation of prejudice is that one of the tapes,, which contained a thirty-second inaudible portion, was improperly admitted. Because Defendant has failed to provide us with a copy of this tape and has also failed to provide us with the English translation of the tape, we are unable to review whether the district court abused its discretion in determining that the tape remained trustworthy despite its inaudible portion. Accordingly, we reject Defendant’s argument that the district court violated Rule 103(c)'.\nIII.\nDefendant next contests his conspiracy to import and his possession with intent to distribute convictions, alleging there was insufficient evidence to show that he constructively possessed the heroin. Defendant’s allegation that possession is a necessary element in a conspiracy to import case has no merit in light of our decision in United States v. Rios, 611 F.2d 1335, 1338, 1345-46 (10th Cir.1979) (possession is not an essential element of conspiracy to import), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981).\nAlthough possession is not an element of conspiracy to import, it is an element that the government must prove in a possession with intent to distribute case. United States v. Hager, 969 F.2d 883, 888 (10th Cir.), cert. denied, — U.S.-, 113 S.Ct. 437, 121 L.Ed.2d 357. (1992). To prove possession, the government must show that Defendant had either actual or constructive possession of the heroin. Hager, 969 F.2d at 888. The evidence offered by the government to show possession is considered insufficient if no reasonable jury could have found Defendant guilty beyond a reasonable doubt. United States v. Ratchford, 942 F.2d 702, 703 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1185, 117 L.Ed.2d 427 (1992).\nThere was ample evidence in the record from which a reasonable jury could have found that Defendant had actual possession of the heroin. Latif testified that Defendant himself handled the suitcase containing the heroin destined for the United States at the airport in Bombay. To be convicted of possession with intent to distribute, it is not necessary that the possession occur within the United States or its territories. Under 21 U.S.C. § 841(a)(1), the United States “may exercise jurisdiction over acts done outside its geographical jurisdiction which are intended to produce detrimental effects within it.” United States v. Arra, 630 F.2d 836, 840 (1st Cir.1980); see also United States v. Larsen, 952 F.2d 1099, 1100-01 (9th Cir.1991); United States v. Wright-Barker, 784 F.2d 161, 167-68 (3d Cir.1986); United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 83 L.Ed.2d 92 (1984); United States v. Baker, 609 F.2d 134, 137-39 (5th Cir.1980).\nFurthermore, there was ample evidence that Defendant constructively possessed the heroin in thé United States. Constructive possession means that Defendant has “some appreciable ability to guide the destiny of the drug.” United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982) (cita: tion omitted). To constructively possess drugs, Defendant must have knowingly held the power to exercise dominion and control over the drugs in the United States. United States v. Culpepper, 834 F.2d 879, 881-82 (10th Cir.1987); Massey, 687 F.2d at 1354. Constructive possession may be joint among several individuals. Culpepper, 834 F.2d at 881-82; Massey, 687 F.2d at 1354. While constructive possession may be established by circumstantial evidence, the government must establish that there was a sufficient nexus between the drug and the accused. Culpepper, 834 F.2d at 882.\nApplying these settled principles to this case, there was evidence that Defendant was guiding the destiny of the drug in the United States and therefore, constructively possessed the heroin. Although Latif received most of his instructions, once he reached the United States, from Sharif and not Defendant, there was ample evidence that Defendant was either Sharif s partner or his boss, and therefore, anything Sharif said had been decided jointly with Defendant or was said pursuant to Defendant’s instruction. Thus, a reasonable jury could have convicted Defendant of possession with intent to distribute under 21 U.S.C. § 841(a)(1) using either an actual or constructive possession theory.\nIV.\nDefendant’s third challenge to his conviction is an allegation that the jury verdicts were inconsistent. Defendant argues that the jury believed his alibi defense for counts 1 through 4, relating to a 1989 importation scheme, but did not believe his alibi defense for counts 5 through 8, relating to the 1990 importation scheme. Given that the evidence supporting the 1989 scheme was different than the evidence supporting the 1990 scheme, we see no inconsistency in the jury’s rejection of one alibi defense and acceptance of another. More importantly, even if we did find the jury’s verdict to be inconsistent, it would not be a basis to reverse Defendant’s conviction. United States v. Powell, 469 U.S. 57, 68-69, 105 S.Ct. 471, 478-479, 83 L.Ed.2d 461 (1984); United States v. Hill, 971 F.2d 1461, 1468-69 (10th Cir.1992) (en banc).\nV.\nFinally, Defendant challenges his sentence, alleging that the district court improperly increased his offense level for being an organizer, leader, manager or supervisor in the drug importation scheme. U.S.S.G. § 3Bl.l(c). The district court applies the preponderance of the evidence standard to determine adjustments under the Guidelines. United States v. Guadalupe, 979 F.2d 790, 795 (10th Cir.1992). We review the district court’s determination under the clearly erroneous standard. United States v. Brown, 995 F.2d 1493, 1500 (10th Cir.1993) (citing United States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, 498 U.S. 870, 111 S.Ct. 190, 112 L.Ed.2d 152 (1991)).\nIn order to be a supervisor in the criminal activity, “one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity.” Backas, 901 F.2d at 1530. Among the factors which a court may consider are the defendant’s exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity and the degree of control and authority exercised over others. Brown, 995 F.2d at 1500 (citing § 3B1.1 Application Note 3).\nClearly, the government presented ample evidence to sustain its burden. Defendant exercised considerable decision-making authority, and he recruited accomplices. Furthermore, Defendant gave direction to Latif, Aziz, and possibly Sharif, and Defendant arranged for the bribery of customs, officials and extensive travel and travel plans. Therefore, the district court’s finding that Defendant was an organizer, leader, manager or supervisor in the importation scheme was not clearly erroneous, and the two-point offense level increase was proper.\nAFFIRMED.\n. We do not discuss these facts because the jury acquitted Defendant of these charges.\n. \"Copies of key trial exhibits should be included if the appeal requires an analysis of those exhibits.” General Order, 10th Cir., October 25, 1990, p. 7. Although defense counsel in his designation of record on appeal requested inclusion of \"all trial exhibits,\" trial exhibits may only be designated if they are \"retained by the district court.\" See id. at 2-3. In this case, it appears that defense counsel has possession of all trial exhibits, and therefore the necessary exhibits should have been \"submitted in an addendum to [Defendant’s] brief if referred to therein.” Id. at 2. \"[T]he court is under no obligation to remedy any failure of counsel to fulfill [his or her] responsibility” to see that the record excerpts are \"sufficient for consideration and determination of the issues on appeal.” Id. at 5.\n. Although not argued by the government, there was also ample evidence to show that Defendant aided and abetted Latif's possession of the heroin by providing the heroin and paying off Indian customs officials. Because possession is not an element to a charge of aiding and abetting another's possession with intent to distribute, United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993), neither actual nor constructive possession need have been proven by the government to convict Defendant under this prong of indictment count 8. However, count 8 charged that Defendant did \"unlawfully, knowingly, and intentionally possess with intent to distribute, and aid and abet and cause the possession with intent to distribute.” (emphasis added) Therefore, the use of the conjunction, \"and,” may have precluded the government from relying solely on an aiding and abetting theory.", "type": "majority", "author": "BALDOCK, Circuit Judge."}], "attorneys": ["David C. Japha, Denver, CO, for defendant-appellant.", "John M. Hutchins, Asst. U.S. Atty. (James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr., Asst. U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Mohammad HANIF, also known as Mohammad Noor, Defendant-Appellant.\nNo. 92-1285.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 20, 1993.\nDavid C. Japha, Denver, CO, for defendant-appellant.\nJohn M. Hutchins, Asst. U.S. Atty. (James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr., Asst. U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee.\nBefore MOORE, BALDOCK and BRORBY, Circuit Judges."} | MOORE | BALDOCK | BRORBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 998 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,960 | GREEN CONSTRUCTION COMPANY, an Iowa corporation, Plaintiff-Appellant and Cross-Appellee, v. The KANSAS POWER & LIGHT COMPANY, Defendant-Counterclaimant-Appellee and Cross-Appellant, v. SEABOARD SURETY COMPANY and Green Holdings, Inc., Counterclaim-Defendants-Appellees | Green Construction Co. v. Kansas Power & Light Co. | 1993-07-21 | Nos. 91-3150, 91-3151 | United States Court of Appeals for the Tenth Circuit | {"judges": "Before KELLY and SETH, Circuit Judges, and KANE, District Judge.", "parties": ["GREEN CONSTRUCTION COMPANY, an Iowa corporation, Plaintiff-Appellant and Cross-Appellee, v. The KANSAS POWER & LIGHT COMPANY, Defendant-Counterclaimant-Appellee and Cross-Appellant, v. SEABOARD SURETY COMPANY and Green Holdings, Inc., Counterclaim-Defendants-Appellees."], "opinions": [{"text": "PAUL KELLY, Jr., Circuit Judge.\nThis appeal arises out of a contract dispute over the construction of a dam by Plaintiff-appellant Green Construction for Defendant-appellee Kansas Power and Light (KPL). Green Construction appeals the district court’s order limiting its recovery to contract damages and disallowing additional expenses and prejudgment interest. KPL cross-appeals the district court’s orders denying KPL’s motions for realignment of the parties, bifurcation of the trial, post-trial juror interviews and judgment notwithstanding the verdict or a new trial. KPL also appeals the admission of evidence of insurance and the testimony of multiple expert witnesses. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.\nBackground\nThe best laid plans ...\nIn 1984, KPL solicited bids for the construction of an earthen dam to create a reservoir at a power plant in Kansas. The dam was to be built out of the clay soil found at the project site. KPL provided bidders with a Geotechnical Data Report on the subsurface conditions at the site, but instructed the bidders to make their own investigation as there would be no future adjustment in price for unforeseen conditions. Green was the lowest bidder, but did not conduct an investigation.\nThe contract required Green to construct the dam with a soil moisture content that would yield the greatest strength. The soil moisture range was to be +3% to -2% from “optimum.” The soil in the borrow area (located behind the dam site) contained more moisture than indicated in the Geotechnical Report, however. Green began construction in the spring of 1985 and finished in June 1986. Within a few weeks, the dam developed cracks which Green attempted, unsuccessfully, to fix. KPL refused to accept the dam and eventually replaced the dam at its own cost. KPL withheld $420,000, or 5% of the contract price, which would have been due to Green upon acceptance.\nGreen initiated litigation to collect the 5% retainage as well as extra costs incurred during construction, based on theories of implied warranty, constructive change and misrepresentation. Green argued that the dam failed due to KPL’s design. KPL counterclaimed alleging defective construction and breach of contract. The district court granted summary judgment for KPL on Green’s claims for additional compensation, with the exception of the compensation based on misrepresentation, which it ruled would be available only as a set-off against any damages awarded to KPL. A jury trial resulted in a verdict for Green on its retainage claim and denying recovery to KPL. Both sides appeal, raising numerous issues.\nDiscussion\nI. Green’s Claim for Additional Compensation\nGreen Construction appeals the district court’s partial summary judgment on its claim for expenses in excess of the contract price. The district court eliminated Green’s theories of implied warranty and constructive change, and limited any recovery based on misrepresentation to a set-off against damages that might be awarded to KPL.\nWe review summary judgment de novo and apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c). Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). Kansas law governs in this diversity action, and in the absence of state cases on point we will look to other state courts as well as federal decisions. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988). We review de novo the district court’s application of Kansas law. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).\nA. Implied Warranty\nGreen contends that the information provided to bidders regarding subsurface conditions created an implied warranty of these conditions. The district court found no implied warranty as a matter of law because the construction contract expressly instructed bidders to conduct their own investigation of the site, placed the risk of excessively moist soil on the contractor, and stated that the “[ljogs of test borings may not be indicative of all subsurface conditions that may be encountered.”\nGreen argues that: (1) the project owner impliedly warrants the accuracy and suitability of its plans and specifications; (2) additional compensation was waived only as to local conditions, as addressed in Section A.7 of the contract, and not as to subsurface conditions, addressed in Section A.8; (3) boilerplate disclaimers do not abrogate an implied warranty; and (4) KPL cannot disclaim the accuracy of the tests where the data constitutes a positive misrepresentation.\nGenerally, absent fraud, the party who agrees to complete construction for a fixed cost must absorb any losses resulting from unforeseen conditions. Reece Const. Co. v. State Highway Com’n, 6 Kan.App.2d 188, 627 P.2d 361, 364 (1981). When a contract contains a site inspection clause, it places a duty on the contractor to exercise professional skill in inspecting the site and estimating the cost of work. Pinkerton and Laivs Co. v. Roadway Express, Inc., 650 F.Supp. 1138, 1146 (N.D.Ga.1986). Thus, Green is not entitled to additional compensation merely because the project was more expensive due to unexpected soil moisture. See United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918). Green may still recover, though, if KPL impliedly warranted the plans and specifications, and then breached that warranty. Id. at 136, 39 S.Ct. at 61; Trustees of Indiana Univ. v. Aetna Cas. & Sur. Co., 920 F.2d 429, 436 (7th Cir.1990). An implied warranty will only be found where the owner made unequivocal affirmative statements which were false or misleading. Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933 (1915). Such a warranty is not avoided by standard clauses disclaiming responsibility for the accuracy of data. Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898 (1914).\nHowever, where a contractor has a duty to make an independent inspection, reliance on the owner’s specifications may very well be unreasonable. Brant Constr. Co. v. Metropolitan Water Reclam. Dist., 967 F.2d 244, 248 (7th Cir.1992). An owner does not create an implied warranty by providing some soil information but instructing the contractor that the information may not be complete and that an independent site and soil investigation is required. See McDevitt & Street Co. v. Marriott Corp., 713 F.Supp. 906, 914 (E.D.Va.1989), aff'd in relevant part, 911 F.2d 723 (4th Cir.1990); Pinkerton, 650 F.Supp. at 1146; Anderson v. Golden, 569 F.Supp. 122, 142-43 (S.D.Ga.1982). This contract, like those in McDevitt, Pinkerton and Anderson, squarely placed the risk of uncertainty as to site and soil conditions on the contractor. There was no implied warranty.\nB. Constructive Change\nGreen’s next theory is that the extra work caused by the wet soil amounted to a material change in the scope of the project, entitling Green to additional compensation. Again, we disagree.\nWhen Green encountered wet soil in the designated borrow area, Green opted to obtain soil from another location rather than process (dry out) the soil from the borrow area. KPL consented to the change. Green relies on the “changes” clause, section D.27 of the contract, and on KPL’s assent to the change, in support of this theory of recovery. Section D.27 provides in part:\nThe COMPANY, without invalidating the Contract, may order any extra work or make any changes by altering, adding to or reducing the work, provided the Contract price be adjusted as provided herein and evidenced by written agreement....\nAplt.App. at 58. The district court found that section D.27 applies only to changes in the scope of work caused by amendments to the project design, and not to difficulties in performance due to unforeseen conditions.\nGenerally, a contractor may recover for additional work necessitated, by a material change in specifications. 13 Am.Jur.2d Building and Construction Contracts § 19 (1964 & Supp.1993). However, there can be no recovery for extra work if the work is covered by the terms of the contract. Id. “The extra'work doctrine” allows additional compensation only “for work that was not within the scope of the contract, such that the parties could not have established a contract price of their own.” Brant Constr., 967 F.2d at 248. Here, Green is not entitled to additional compensation merely because the work it had contracted for was made more expensive by wet soil. See Pinkerton, 650 F.Supp. at 1146 (citing Spearin, 248 U.S. 132, 39 S.Ct. 59). The fact that KPL assented to the change in the source of soil does not amount to a change in the scope of the project.\nC. Misrepresentation\nEven where no implied warranty exists, an owner may be liable for unknowingly (or “innocently”) misrepresenting material facts about site conditions. The district court ruled that an innocent misrepresentation claim may be maintained only for equitable relief or as a defense to breach of contract. The court therefore limited Green’s use of the claim to that of a defense in the event of an award to KPL. Green argues that money damages are available for innocent misrepresentation and that the jury should have been so instructed.\nThe Restatement (Second) of Contracts § 164 (1981) provides that where one party makes a material misrepresentation, which the recipient justifiably relies upon, the contract is voidable by the recipient. Innocent misrepresentation claims are usually limited to equitable relief. See id. ; 17 C.J.S. Contracts §§ 147,' 152. Kansas law recognizes the equitable theory of innocent misrepresentation as grounds for rescission of a contract. Topinka v. American Eagle Fire Ins. Co., 167 Kan. 181, 205 P.2d 991, 993-94 (1949). Green relies on Nichols v. Nold, 174 Kan. 613, 258 P.2d 317 (1953) for the proposition that money damages are available for innocent misrepresentation. However, Nichols was a product liability action concerning the theory of implied warranty, not innocent misrepresentation. We agree with the district court that innocent misrepresentation in Kansas is limited to equitable relief, and the court did not err in refusing to instruct the jury on an affirmative claim for damages.\nII. Green’s Claim for Prejudgment Interest\nFinally, Green contends that the court erred in denying its Rule 59(e) motion for prejudgment interest on the damage award. We review the district court’s order for an abuse of discretion. Oklahoma Radio Assocs. v. F.D.I.C., 987 F.2d 685, 697 (10th Cir.1993); U.S. Indus. Inc. v. Touche Ross & Co., 854 F.2d 1223, 1255 (10th Cir.1988).\nIn Kansas, prejudgment interest is allowed on liquidated claims. Kan.Stat. Ann. § 16-201 (1980); Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984); Royal College Shop, Inc. v. Northern Ins. Co., 895 F.2d 670, 673 (10th Cir.1990). “A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation.” Plains Resources, 682 P.2d at 657. It is irrelevant that the underlying liability is disputed, so long as the amount of damages is certain. Royal College, 895 F.2d at 674 (citing Smart v. Hardware Dealers Mut. Fire Ins. Co., 181 F.Supp. 575 (D.Kan.1960)). The district court ruled that damages were not, liquidated because the amount was disputed throughout trial and required a jury determination, so it could not be simply ascertained by a mathematical computation. Green prayed for $422,010.56 on its retainage claim at trial. KPL counterclaimed for breach of contract, demanding $12.9 million. KPL alternatively argued that any award to Green for retainage should be reduced pursuant to a “change order.” The jury awarded $222,312.56 to Green. This is not a ease where the parties stipulated to the damages or even generally agreed on the damages. See Royal College Shop, 895 F.2d at 674; Crawford v. Prudential Ins. Co., 245 Kan. 724, 783 P.2d 900, 909 (1989). The district court did not abuse its discretion in denying prejudgment interest.\nIII. KPL’s Motions\nKPL appeals numerous unfavorable rulings on its motions, some of which merit our attention while others border on frivolous. Some of KPL’s arguments remind us that “[t]oo often, attorneys forget that the potential for success on appeal begins at the pretrial preparation stage [and] continues during the trial...'. [M]ore often than one would expect, eases are lost on appeal due to a failure of counsel at the trial level to make a proper record, or to raise arguments or objections....” The Honorable Lawrence W. Pierce, Appellate Advocacy: Some Reflections from the Bench, 61 Fordham L.Rev. 829, 834 (1993). This admonition should be heeded by all who would litigate.\nA.Motion for Realignment of the Parties\nKPL moved for a realignment of the parties sixteen months prior to trial, arguing before the magistrate that KPL was the “real” plaintiff and that Green had simply won the race to the courthouse. KPL relies on the disparity in the size of the damage claims; it sought $12.9 million, while Green was asking for a mere $422,000. KPL also contends that it was prejudiced by its defendant status at trial. This argument is merit-less. First, KPL fails to direct us to any authority supporting this position. Second, we have previously held that the denial of a request for realignment, where the request is made in order to proceed first and last at trial, is not reversible error. Commercial Iron & Metal Co. v. Bache Halsey Stuart, Inc., 581 F.2d 246, 250 (10th Cir.1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (197,9). Finally, KPL failed to object to the magistrate’s ruling within 10 days as required by Fed.R.Civ.P. 72(a). A party may not wait to see whether the verdict is favorable before deciding to object; failure to raise the issue below results in a waiver. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991); Poison v. Davis, 895 F.2d 705, 711 (10th Cir.1990).\nB.Motion for Bifurcation and Objection to Jury Trial\nKPL moved to strike Green Construction’s request for a jury trial as untimely, arguing that the right was waived under Fed.R.Civ.P. 38(b) & (d) and that the nature of the case was too technical for a jury. Alternatively, KPL moved to bifurcate the claims against Green Holdings in order to simplify the trial. Both motions were denied. We review the district court’s denial for abuse of discretion. Eastridge Dev. Co. v. Halpert Assocs., 853 F.2d 772, 781 (10th Cir.1988); Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.1980). Green requested a jury trial, but not within the ten days as provided by Rule 38(b). The district court granted Green’s request. See Fed.R.Civ.P. 39(b); Jolivet v. Deland, 966 F.2d 573, 577 (10th Cir.1992). We have previously held that a jury trial should be granted in the absence of “ ‘strong and compelling reasons to the contrary.’ ” AMF Turboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir.1965) (quoting Swofford v. B &W, Inc., 336 F.2d 406, 409 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965)). KPL’s reasoning for striking the jury trial was that the subject matter would be too confusing for a jury. However, juries are commonly called upon to decide complex cases. We fail to see how the complexity of the subject was particularly prejudicial to KPL and we find no abuse of discretion.\nIn the absence of a bench trial, KPL moved to bifurcate its alter ego claims against Green Holdings, in order to simplify the trial for the jury. KPL proposed trying the liability case with Green Construction first and, if KPL prevailed, holding a second trial against Green Holdings as the alter ego of Green Construction. The district courts have “ ‘broad discretion in deciding whether to sever issues for trial and the exercise of that discretion will be set aside only if clearly abused.’ ” Eastridge Dev. Co., 853 F.2d at 781 (quoting Easton v. City of Boulder, 776 F.2d 1441, 1447 (10th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986)). KPL fails to show that it suffered prejudice from this ruling and we find no abuse of discretion.\nC.Motion for Post-trial Juror Interviews\nKPL moved for an order allowing post-trial communication with the jury in order to determine whether the jurors were influenced by outside factors. KPL’s basis for the motion was that the husband of the jury foreperson was present during the entire trial and spoke to attorneys for both KPL and Green, but most often to those representing Green. He also chatted with corporate representatives of both parties who were observing the trial, and he regularly lunched with the jurors. KPL does not know the subject of the discussions involving Green, but claims that the juror’s husband attempted to discuss specifics of the trial with KPL’s attorneys on two occasions. Aplee. Supp.App. at 635-37. KPL’s attorneys claim that they advised Green’s attorneys that these communications appeared improper. KPL’s attorneys neither expressed that concern to the judge nor formally objected. KPL now asserts that it was not fully aware of the extent of the relationship until the juror’s husband sat at Green’s counsel’s table while awaiting the jury’s deliberations. Green’s attorneys submitted affidavits indicating that neither the trial nor the deliberations were discussed with the juror’s husband. Aplee.Supp.App. at 660-66.\nDistrict of Kansas Local Rule 123 allows juror interviews if granted by court order, for good cause. District courts have “wide discretion” to restrict attorney-juror contact in order to shield jurors from post-trial “fishing expeditions” by losing attorneys. Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986). The district court must balance the losing party’s right to an impartial jury against the risks of juror harassment and jury tampering. See Tanner v. United States, 483 U.S. 107, 126-27, 107 S.Ct. 2739, 2750-51, 97 L.Ed.2d 90 (1987); Delvaux v. Ford Motor Co., 764 F.2d 469, 471-72 (7th Cir.1985). We will uphold the denial of a motion where the allegation of misconduct is unsubstantiated. Journal Publishing, 801 F.2d at 1236; see also Tanner, 483 U.S. at 126-27, 107 S.Ct. at 2750-51. As KPL admitted, it is unaware of the content of the conversations between Green’s attorneys and the juror’s husband. The jury was admonished daily not to discuss the case with others and we will assume, absent more than speculation by the losing party, that the jury followed these instructions. See United States v. Armendariz, 922 F.2d 602, 606 (10th Cir.1990), cert. denied, — U.S. —, 112 S.Ct. 87, 116 L.Ed.2d 59 (1991). We find no abuse of discretion.\nFurthermore, KPL failed to object to the perceived impropriety during the trial. We reiterate that “ ‘a party may not sit idly by, watching error be committed, and then raise the claimed error on appeal without having accorded the trial court the opportunity’ ” to respond. Chevron, U.S.A., Inc. v. Hand, 763 F.2d 1184, 1186 (10th Cir.1985) (quoting Gundy v. United States, 728 F.2d 484, 488 (10th Cir.1984)).\nD. Motions for Directed Verdict, J.N.O.V. or New Trial\nWe first note that it is difficult to address KPL’s arguments here because KPL, as cross-appellant, failed to include in its appendix all of the district court’s orders from which it appeals and also makes inaccurate references to its own appendix (e.g., Aplee. Reply Brief at 8). See 10th Cir.R. 28.2(c), 30.1.1, 30.1.2, 30.2; Fed.R.App.P. 30(a).\nKPL’s problems do not end there. KPL also failed to move for directed verdicts on several issues: Green’s claim for retain-age, KPL’s breach of contract claim against Green, and KPL’s alter ego claim against Green Holdings. KPL now attempts to appeal the denial of its motion for judgment n.o.v. or new trial on those issues. It has long been the rule that failure to move for a directed verdict precludes later appellate review of the sufficiency of the evidence. Comcoa, Inc. v. NEC Tels., Inc., 931 F.2d 655, 663 n. 11 (10th Cir.1991). According to Fed. R.Civ.P. 50(a), specific grounds are required for a motion for directed verdict. At the close of evidence, KPL moved as follows: “At this time, the defendant ... moves for a directed verdict at the close of all the evidence, particularly on the claims of the plaintiff on the issue of misrepresentation.” Aplee.Supp.App. at 1226. Although we interpret Rule 50’s specificity requirement liberally, KPL’s motion was clearly insufficient as to the above issues. As such, KPL has failed to preserve its sufficiency of the evidence argument as to the breach of contract, re-tainage and alter ego claims. See Comcoa, Inc., 931 F.2d at 663 n. 11; Dow Chemical Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 (10th Cir.1990); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988). Furthermore, even had the error been properly preserved, we find the evidence sufficient to support the jury’s findings.\nKPL did move for a directed verdict on Seaboard Surety’s defense of no termination of contract. The jury did not reach the issue of Seaboard’s liability because it found no liability on the part of Green. Green’s liability was a prerequisite to Seaboard’s liability. Because we do not disturb the jury’s finding on Green’s liability, this issue is moot.\nIV. KPL’s Evidentiary Objections\nKPL appeals two adverse evidentiary rulings by the district court; rulings which allowed the admission of evidence of insurance and the admission of multiple expert witnesses. “A trial court necessarily possesses considerable discretion in determining the conduct of a trial” and its evidentiary rulings “will not be disturbed absent a manifest injustice to the parties.” Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987).\nA. Evidence of Insurance\nPrior to trial, KPL filed a motion in limine to exclude evidence of insurance. That motion was denied. KPL failed to renew that objection during trial, except to object to the admission of the policy itself, based on improper foundation. Aplee.Supp. App. at 993. Green argues that KPL waived the objection by failing to preserve it for appeal. We have recently set forth a three-part test to determine whether it is necessary for the objecting party to renew the objection at trial when a motion in limine has been denied. United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir.1993). First, we ask whether the matter was adequately presented to the district court when it considered the motion. Id. at 986. We believe that it was. Second, we determine whether the issue is of a type that can be finally decided prior to trial. Id. We find that it was not. KPL argues that evidence of insurance was highly prejudicial, relying on the general rule excluding evidence of insurance in tort cases. Here, however, the surety company was a party to this contract case and the existence of the policy had relevance as a material term of the contract. The district court did not wish to exclude evidence relevant to the contract prior to having the benefit of hearing related evidence at trial. This was not purely an issue of law which could be definitively decided pretrial. See id. at 987.\nThe third requirement is that the district court’s ruling be definitive. Id. at 987-88. We find that it was not. The district court indicated that the ruling would be subject to reconsideration at trial, informing KPL’s counsel that “because the court has ruled does not prevent you from submitting them [the objections] again during the trial if the circumstances are such that you believe the Court should take another look at them.” Aplee.Supp.App. at 39.\nBased on the above, we find that KPL’s objection was of the type that must be renewed, and thus KPL has waived the objection. See McEwen v. City of Norman, 926 F.2d 1539 (10th Cir.1991). As for the objection to foundation, we find that the district court was within its discretion in overruling it.\nB. Cumulative Expert Testimony\nFinally, KPL appeals the number of expert witnesses which were allowed to testify. We will not disturb an evidentiary ruling unless a substantial right of a party has been affected. Fed.R.Evid. 103(a). In technical cases such as this, it is particularly appropriate that we accord deference to the ruling of the trial judge, who is most familiar with the issues and evidence. C.A Assocs. v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir.1990). Green Construction, Green Holdings and KPL presented numerous expert witnesses. KPL contends that both it and the jury were overwhelmed by Green’s cumulative experts. It is certainly within the district court’s discretion to limit the number of experts, provided the witnesses are not excluded arbitrarily, or on the basis of mere numbers. See Fed.R.Civ.P. 16(c)(4); Coal Resources, Inc. v. Gulf & W. Ind., 865 F.2d 761, 769 (6th Cir.1989); Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1193 (5th Cir.1983); MCI Communications v. American Tel. and Tel. Co., 708 F.2d 1081, 1171 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). By the time KPL objected (two days prior to the end of the six week trial), practically all of the expert testimony had been presented. We find no abuse of discretion in admitting the final expert, who was offered to tie the evidence together.\nFor the foregoing reasons, the district court’s judgment is AFFIRMED.\n. The relevant contract clauses are as follows:\nA.7 LOCAL CONDITIONS. Each bidder shall visit the site of the work and thoroughly inform himself relative to construction hazards and procedure, labor, and all other conditions and factors, local and otherwise, which would affect the prosecution and completion of the work and the cost thereof....\nIt must be understood and agreed that all such factors have been properly investigated and considered in the preparation of every proposal submitted, as there will be no subsequent financial adjustment, to any contract awarded thereunder, which is based on the lack of such prior information or its effect on the cost of the work.\nA.8 SUBSURFACE CONDITIONS. The determination of the character of subsurface materials ... shall be each bidder's responsibility. Borings, field testing, and laboratory tests have been performed for the project design. This information has been bound separately and is issued with these specifications. Rock cores from this site are available for inspection upon request at the Jeffrey Energy Center. Logs of test borings may not be indicative of all subsurface conditions that may be encountered.\nAplt.App. at 28.\n. KPL filed a motion in limine with the magistrate prior to the depositions of the experts, requesting a limit on the number of experts which Green could present. However, KPL withdrew that motion before the magistrate could rule on it. Aplee.Supp.App. at 600. KPL then filed a motion to strike two particular experts that Green had added close to the time of trial. KPL argued that the last minute listing of the experts was prejudicial and that their testimony was cumulative. Id. at 620. The court denied KPL’s motion. Id. at 733. KPL renewed the objection during trial, albeit during the testimony of a different expert than those listed in its motion. Id. at 1010.", "type": "majority", "author": "PAUL KELLY, Jr., Circuit Judge."}], "attorneys": ["John P. Ahlers, Barokas & Martin, Seattle, WA (Kevin E. Glynn, Niewald, Waldeck & Brown, Kansas City, MO and Gilbert G. Lundstrom, Woods & Aitken, Lincoln, NE, with him on the brief) for plaintiff-appellant.", "Jeffrey S. Southard, Kansas Power & Light Co., Topeka, KS (J. Nick Badgerow, Spencer, Fane, Britt & Browne, Overland Park, KS, with him on the brief) for defendant-appellee."], "corrections": "", "head_matter": "GREEN CONSTRUCTION COMPANY, an Iowa corporation, Plaintiff-Appellant and Cross-Appellee, v. The KANSAS POWER & LIGHT COMPANY, Defendant-Counterclaimant-Appellee and Cross-Appellant, v. SEABOARD SURETY COMPANY and Green Holdings, Inc., Counterclaim-Defendants-Appellees.\nNos. 91-3150, 91-3151.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 21, 1993.\nJohn P. Ahlers, Barokas & Martin, Seattle, WA (Kevin E. Glynn, Niewald, Waldeck & Brown, Kansas City, MO and Gilbert G. Lundstrom, Woods & Aitken, Lincoln, NE, with him on the brief) for plaintiff-appellant.\nJeffrey S. Southard, Kansas Power & Light Co., Topeka, KS (J. Nick Badgerow, Spencer, Fane, Britt & Browne, Overland Park, KS, with him on the brief) for defendant-appellee.\nBefore KELLY and SETH, Circuit Judges, and KANE, District Judge.\nThe Honorable John L. Kane, Jr., Senior United States District Judge for the District of Colorado, sitting by designation."} | KELLY | SETH | KANE | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1005 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,515,986 | UNITED STATES of America, Plaintiff-Appellee, v. Johnnie B. DAVIS, a/k/a Arthur Jerome Davis, Defendant-Appellant | United States v. Davis | 1993-07-21 | No. 92-3393 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before EBEL, RONEY and KELLY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Johnnie B. DAVIS, a/k/a Arthur Jerome Davis, Defendant-Appellant."], "opinions": [{"text": "PAUL KELLY, Jr., Circuit Judge.\nDefendant-appellant Johnnie Davis was convicted on one count of conspiracy to distribute heroin, 21 U.S.C. § 846, six counts of distribution of heroin, 21 U.S.C. § 841(a)(1), and one count of use of a firearm in connection with the conspiracy offense, 18 U.S.C. § 924(c)(1). Mr. Davis received a sentence of 360 months and a fine of $554,620. He appeals his conviction and sentence on various grounds. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm.\nBackground\nDefendant and Wendell Nicholson were named in a nine-count narcotics indictment on March 28, 1991. The court later severed Mr. Davis’ trial from Mr. Nicholson’s. A superceding indictment was filed that summer. A trial in the fall of 1991 ended in a mistrial. A retrial in the spring of 1992 resulted in a conviction on all counts. The government argued that Mr. Davis distributed heroin to several dealers in Wichita, Kansas, among them Mr. Nicholson. The government based its case largely on recorded conversations between Mr. Davis and an informer, testimony regarding Mr. Nicholson’s sales practices, and oral statements made by Mr. Davis immediately following his arrest.\nDiscussion\nI. Voluntariness Of Taped Informer Conversations\nMr. Davis claims that the government coerced the consent of an informant to record telephone conversations with Mr. Davis. Although statute forbids the use of warrantless intercepted telephone conversations in law enforcement investigations, law enforcement personnel may lawfully monitor or record conversations with the consent of one of the parties to the conversation. 18 U.S.C. § 2511(2)(c); United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir.1979). We review a district court’s determination that consent was voluntary under the clearly erroneous standard. United States v. Rodriguez-Garcia, 983 F.2d 1663, 1567 (10th Cir.1993). At both the trial and at the suppression hearing, the informant testified that he gave his consent to the recordings knowingly and freely. The district court’s decision to admit the recordings was not clearly erroneous.\nII. Juror Bias\nMr. Davis seeks review of the trial court’s denial of his motion for a new trial. He claims that a jury statement to the judge during deliberations demonstrates impermissible racial bias. The jury asked that Mr. Davis’ family be excluded from the courtroom while taped conversations were replayed during deliberations. Among the fundamental rights secured by the Constitution is a criminal defendant’s right to a jui’y that bases its verdict not upon ethnic bias, but upon the facts of a particular case. See Holland v. Illinois, 493 U.S. 474, 479-80, 110 S.Ct. 803, 806, 107 L.Ed.2d 905 (1990). We review the trial court’s denial of a motion for a new trial for an abuse of discretion. United States v. Chatman, 994 F.2d 1510 (10th Cir.1993).\nDefendant cites several cases in support of his argument of racial bias. However, those cases differ from the present case in that they were supported by at least some evidence of juror bias. We presume that jurors remain true to their oath and observe the instructions of the court absent evidence to the contrary. United States v. Armendariz, 922 F.2d 602, 606 (10th Cir.1990), cert. denied, — U.S. —, 112 S.Ct. 87, 116 L.Ed.2d 59 (1991). In United States v. Heller, 785 F.2d 1524 (11th Cir.1986), the jury forewoman wrote a note to the judge during deliberations mentioning racial slurs by other jurors. Id. at 1525. Subsequent voir dire supported the charges of racial bias and a mistrial was declared. Id. at 1526-27. In United States v. Caporale, 806 F.2d 1487 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987), a jury note during deliberations alerted the judge to possible juror misconduct. Id. 806 F.2d at 1504-05. Voir dire and an evidentiary hearing supported the conclusion that there was no jury bias and that a mistrial was unwarranted. Id. Inquiry into such matters, within the limitations of Fed.R.Evid. 606(b) and local rules, is the appropriate method of developing such allegations. Here, the court conducted voir dire of the jury foreperson during deliberations at the request of the Defendant in connection-with allegations of improper outside contact with a witness. Although defense counsel was fully aware of the jury’s request at the time of this voir dire, he did not seek to inquire about possible racial bias, nor does the record indicate that Mr. Davis ever formally requested access to the jurors to ask them about possible bias.\nMr. Davis bases his allegation of racial bias on nothing more than a hunch. He states in very conclusory fashion that the jury was “obviously unable to come into their deliberations with an open mind” since they asked that the Defendant’s family be excluded from the replaying of the taped conversations. We do not believe that such a conclusion is “obvious” given these facts. Although Mr. Davis’ family was black, the jury could have requested their absence from this particular proceeding for many legitimate reasons. In denying Defendant’s motion for a mistrial, the district court judge noted that the gallery had disturbed the course of the trial and received an admonition from the trial judge, and that the tapes were difficult to hear. We fail to see any abuse of discretion absent some indication that misconduct has occurred. Clearly, an unsupported allegation of jury bias is insufficient to justify a new trial.\nIII. Sufficiency Of The Evidence\nMr. Davis claims that the evidence presented to the jury was insufficient to support guilty verdicts on the conspiracy and weapons charges. In considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the government to determine whether the evidence is such that a reasonable jury could find the Defendant guilty beyond a reasonable doubt. United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990). We consider both direct and circumstantial evidence, as well as the reasonable inferences to be drawn from that evidence. Id. We accept the jury’s resolution of conflicting evidence and its assessment of the credibility of witnesses. United States v. Youngpeter, 986 F.2d 349, 352 (10th Cir.1993).\nConspiracy prosecutions must demonstrate that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, that the defendant knowingly and voluntarily became a part of the conspiracy, and that the coconspirators were interdependent. Fox, 902 F.2d at 1514. Mr. Davis challenges the sufficiency of the government’s evidence that he had a unity of purpose or a common design or understanding with coconspirators to distribute heroin. See United States v. Kendall, 766 F.2d 1426, 1431 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). A conspiracy conviction must be supported by evidence of the essential element of interdependence. Fox, 902 F.2d at 1514. Interdependence requires a showing that each conspirator depended on the actions of the other conspirators to achieve the common goal. Id. The agreement may be inferred from the facts and circumstances presented to the jury. Kendall, 766 F.2d at 1431.\nHere, a narcotics detective testified that following his arrest, Mr. Davis confessed to distributing wholesale quantities of heroin to Mr. Nicholson on a regular basis. Aplee. App. at 564-66. In addition, a reasonable jury could have interpreted a tape recorded conversation between Mr. Davis and a police informant as demonstrating a division of labor between Mr. Davis and Mr. Nicholson. In that conversation, Mr. Davis referred the informant to Mr. Nicholson when Mr. Davis believed the informant wished to purchase a retail amount of heroin (a half gram), but then expressed interest in dealing directly with the informant when the informant indicated that he wanted to purchase a wholesale amount of heroin (a half ounce). Aplee. Br. at 15. When the police arrested Mr. Nicholson immediately after he left Mr. Davis’ house, Mr. Nicholson carried numerous small baggies of heroin packaged for resale. Aplee. App. at 520-21. Overwhelming evidence indicated that both men were heroin dealers. A reasonable jury could have inferred an interdependent relationship and an agreement that Mr. Davis would distribute heroin to Mr. Nicholson, who would handle retail sales. A reasonable jury could also have concluded that Mr. Nicholson’s possession of a loaded handgun in connection with his heroin sales was a foreseeable consequence of the agreement. See Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946).\nIV. Right To A Speedy Trial\n' Mr. Davis also claims that the government violated his constitutional and statutory rights to a speedy trial. We review constitutional violations and the trial court’s application of the legal standards of the Speedy Trial Act de novo, accepting the factual findings of the district court unless clearly erroneous. United States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir.) cert. denied, — U.S. -, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993). One hundred fifty-nine days passed between Mr. Davis’ arrest and the beginning of his first trial. However, much of that time was spent considering Mr. Davis’ own pretrial motions, investigating allegations that Mr. Davis attempted to bribe a witness, and preparing a superceding indictment. In addition, Mr. Davis has failed to demonstrate any prejudice by the length of time between arrest and trial. We therefore reject Mr. Davis’ argument that the delay was unreasonable and prejudicial. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). Mr. Davis also asserts his statutory right to a speedy trial. Although more than seventy days elapsed between indictment and trial, the delays due to the pretrial motions mentioned above and the delay resulting from the addition of the codefendant are properly excluded when calculating the seventy days. See 18 U.S.C. § 3161(h)(1)(F) & (h)(7). Excluding these periods of time, Mr. Davis’ trial commenced within the allowable time under the Speedy Trial Act.\nV. Constitutionality Of Sentencing Guideline § 3E1.1\nFinally, Mr. Davis claims that U.S.S.G. § 3E1.1 imposes a penalty upon him for exercising his constitutional right to a trial. Although § 3E1.1 permits a two level reduction for an acceptance of responsibility, we have previously rejected the argument that this reduction serves to penalize those who exercise their right to a trial. United States v. Trujillo, 906 F.2d 1456, 1461 (10th Cir.) cert. denied, 498 U.S. 962, 111 S.Ct. 396, 112 L.Ed.2d 405 (1990).\nAFFIRMED.", "type": "majority", "author": "PAUL KELLY, Jr., Circuit Judge."}], "attorneys": ["Joseph D. Johnson (Erika V. Bessey, with him on the brief), Law Offices of Joseph D. Johnson, Chartered, Topeka, KS, for defendant-appellant.", "D. Blair Watson, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him on the brief), Wichita, KS, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Johnnie B. DAVIS, a/k/a Arthur Jerome Davis, Defendant-Appellant.\nNo. 92-3393.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 21, 1993.\nJoseph D. Johnson (Erika V. Bessey, with him on the brief), Law Offices of Joseph D. Johnson, Chartered, Topeka, KS, for defendant-appellant.\nD. Blair Watson, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him on the brief), Wichita, KS, for plaintiff-appellee.\nBefore EBEL, RONEY and KELLY, Circuit Judges.\nThc Honorable Paul M. Roney, Senior United States Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation."} | EBEL | RONEY | KELLY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1014 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,026 | UNITED STATES of America, Plaintiff-Appellee, v. Leo Orlando MUNIZ, Defendant-Appellant | United States v. Muniz | 1993-07-22 | No. 92-2192 | United States Court of Appeals for the Tenth Circuit | {"judges": ["McKAY, Chief Circuit Judge, WOOD, Jr., Senior Circuit Judge, and ANDERSON, Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Leo Orlando MUNIZ, Defendant-Appellant."], "opinions": [{"text": "HARLINGTON WOOD, Jr., Senior Circuit Judge.\nDefendant Leo Orlando Muniz appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Muniz was indicted on January 9, 1992, on two separate counts. After a three-day jury trial, the jury found him guilty on one count and acquitted him on the other count.\nMuniz raises five issues. He first appeals the district court’s refusal to suppress statements he allegedly made in violation of his Fifth Amendment right not to incriminate himself. Secondly, he argues the court abused its discretion in failing to sever the two counts for trial. Thirdly, he claims the court abused its discretion by refusing to hold an evidentiary hearing on his claim that excessive pre-indictment and post-indictment delays violated his due process and speedy trial rights. Fourthly, Muniz believes his right of allocution at sentencing was denied. Finally, Muniz argues the court erred in denying his motion to dismiss the indictment because the United States allegedly violated the Interstate Agreement on Detainers Act by delaying his trial.\nI. BACKGROUND\nThe counts involved two separate guns and two separate dates. The first count, the one on which Muniz was acquitted, charged that Muniz possessed a .22 caliber gun on January 6, 1991. A police officer testified that in the early morning of January 6, 1991, when she was investigating an alleged shooting at a residence in Albuquerque, New Mexico, she stopped Muniz outside near the residence. After hearing something metallic hit the ground, she found a .22 caliber gun where Muniz had been standing. A police field investigator also testified that Muniz’s hands had trace metals on them indicating he had been near ammunition or had fired a gun. Additional testimony was given by a witness at the residence that she thought she saw Muniz with a gun earlier that evening.\nThe second count charged Muniz with possession of a .45 caliber gun on May 13, 1991. Muniz had been arrested on January 6, 1991, for state charges of aggravated assault and felon in possession of a firearm because of the above shooting incident but was mistakenly released from custody on May 13, 1991. When released from jail on May 13, Muniz went to his sister’s apartment with one of his brothers and a friend. After a brief visit, Muniz left the apartment and went drinking with his friends.\nMuniz’s sister testified that Muniz returned to her apartment around 11:00 p.m. that evening visibly drunk and threatened her with a gun. Muniz displayed the gun which he loaded and unloaded repeatedly. Her children and another brother were also at the apartment. She testified that Muniz told her it was a .45 caliber gun and that one of the bullets had her name on it. Muniz left the apartment when he chased after his brother who had just fled the apartment. Muniz’s sister called the police but by the time they responded, Muniz was no longer around.\nA few hours later, Muniz returned to his sister’s apartment and broke into it. His sister and brother escaped out windows in the back, the children having been sent to a neighbor’s after the 11:00 p.m. visit. Again the police were called, and this time when they arrived, Muniz was still in the apartment. The gun was not then in his possession; it was later found outside the apartment.\nCounty police officers arrested Muniz and gave him his Miranda warnings. Muniz did not appear to listen to the warnings because he was cursing and yelling at the advising-officer. While being transported to the local detention center, Muniz boasted that he had hidden the .45 caliber gun. Muniz stated that he would be able to work out a plea and be in jail for only a few months. Muniz repeated this while at a hospital receiving medical attention for a wound on his ear. Medical examiners at the hospital tested Muniz’s blood alcohol level and found his blood alcohol level was .268. The legal limit of intoxication for driving offenses in New Mexico is .1.\nMuniz was in state custody after his arrest on May 14, 1991, for aggravated assault and breaking and entering. The federal grand jury indictment followed. The United States Marshals Service filed a detainer on January 13, 1992, for Muniz who was still in state custody. The United States obtained a writ of habeas corpus for Muniz which was executed on March 12, 1992, when Muniz was arraigned in federal district court. The trial began on June 1, 1992, and the jury found Muniz guilty only of the May 13 possession.\nII. ANALYSIS\nA. Suppression of Statements\nMuniz moved to suppress statements he made to police officers following his arrest in the early morning of May 14, 1991. The district court denied his motion after a suppression hearing held on May 28, 1992. The court found nothing in the evidence to reflect that Muniz was interrogated by the police nor held in coercive circumstances.\nWe review the court’s decision and determination of the ultimate issue of volun-tariness de novo. Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir.1987), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988). “But the trial court’s rulings with regard to subsidiary factual questions, such as whether the police intimidated or threatened a suspect or whether the suspect was particularly susceptible to police coercion, are subject to review under the clearly erroneous standard.” Chalan, 812 F.2d at 1307-08. The entire record is considered on appeal which includes evidence at the suppression hearing as well as at trial. United States v. Basey, 816 F.2d 980 (5th Cir.1987); United States v. Smith, 527 F.2d 692, 694 (10th Cir.1975) (on appeal may consider evidence from suppression hearing and trial).\nMuniz argues the district court incorrectly placed the burden of proof on him at the ’ suppression hearing rather than on the government. The government concedes that the court was mistaken when it concluded the hearing by stating: “It is the burden upon the defendant to state or prove by a preponderance of the evidence that his statements were not voluntary or they were made in response to coercive questioning.” (R. at 50, vol. III.) Because the court stated the wrong legal standard, Muniz argues the clearly erroneous standard for factual findings is inapplicable citing United States v. Finefrock, 668 F.2d 1168 (10th Cir.1982).\nIt is unclear from the record, however, whether the court actually did apply the wrong standard. The burden of proof is on the government to prove the statements were voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986); United States v. Slater, 971 F.2d 626, 637 (10th Cir.1992). Which standard the court used is unclear because the court began the suppression hearing by stating: “This matter comes on for a hearing on the defendant’s motion to suppress, and under the submissions, I believe the Government has the burden.” (R. at 2, vol. III.) Nevertheless, under either standard, it is clear from the record that the district court had no doubts concerning the voluntariness of the statements, and whether the defendant had been interrogated. The judge concluded: “There’s nothing in the record to reflect that he was in fact interrogated, and ... the Court finds that the statements were knowingly and voluntarily made.” (Id.) Because we readily agree with the district court that the statements were voluntarily given, we affirm the denial of the defendant’s motion. Cf. Finefrock, 668 F.2d at 1171 (appellate court could not resolve suppression issue when district judge had applied incorrect legal standard and indicated the case was a close one).\nMuniz asserts the court erred by not suppressing his statements because they were not voluntarily given and were only made in response to direct questioning by police officers asking, “Where’s the gun?” Muniz also argues he did not knowingly waive his Miranda rights when arrested at his sister’s apartment. .\nThe Fifth Amendment does not bar the admission of volunteered statements which are freely given. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). If a person voluntarily speaks without interrogation by an officer, the Fifth Amendment’s protection is not at issue, and the statements are admissible. See United States v. Thoma, 726 F.2d 1191, 1197-98 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).\nThe police officer testified that he did not ask the defendant any questions when he brought the defendant to the detention center. The district court found that the transporting .officer did not interrogate the defendant, and the defendant volunteered the statements that he had hidden the .45 caliber gun he had used to threaten his sister. The only contradictory evidence concerning the possible interrogation of the defendant was Muniz’s own testimony at trial. Muniz, who did not testify at the suppression hearing, testified the officers repeatedly asked him where the gun was.\nThe issue of voluntariness is determined by the totality of the circumstances, considering the characteristics of the accused including among other things his or her age or lack of education or intelligence and details of the circumstances like any advice of a person’s constitutional rights or the length of detention or prolonged questioning. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The state of intoxication does not automatically render a statement involuntary. United States v. Casal, 915 F.2d 1225, 1229 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1400, 113 L.Ed.2d 455 (1991). The test is whether the person’s will was overcome, or whether the statement was freely made. Id.\nBased on our independent review of the entire record, we agree with the district court that Muniz’s statements about the hidden gun were volunteered and were not the result of police interrogation. The officers did not interrogate the defendant after he was taken into custody, and there were no threats or physical abuse of any kind. Moreover the record does not show how Muniz’s intoxicated state rendered him unable to voluntarily speak. Because we believe Muniz’s statements were freely made, it does not matter that he did not acknowledge nor waive his Miranda rights. See Thoma, 726 F.2d at 1197-98. Instead, the fact that he was given Miranda warnings at all could help show that his decision to talk was of his own free will when combined with his own ample prior experience with criminal law.\nB. Severance of the Two Counts\nBefore trial, Muniz moved to sever the two counts because he says they were unfairly and prejudicially joined. These two counts were properly joined under Federal Rule of Criminal Procedure 8(a) which allows for the joinder of two or more offenses if they “are of the same or similar character.” See United States v. Lindsey, 782 F.2d 116 (8th Cir.1986) (per curiam) (joinder of two counts of felon in possession of a firearm properly joined). But the district court may sever counts which are properly joined if it appeal’s the defendant is prejudiced by their joinder. Fed.R.Crim.P. 14. The district court, however, denied Muniz’s severance motion, and we will not disturb this decision absent an abuse of discretion. United States v. Hernandez, 829 F.2d 988, 990 (10th Cir.1987), cert. denied, 485 U.S. 1013, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988); United States v. Dickey, 736 F.2d 571, 589 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985).\nThe defendant bears a heavy burden of showing real prejudice from the joinder of the two counts. Dickey, 736 F.2d at 589. When joinder of offenses is based upon their “same or similar character,” the prejudice to the defendant is more likely since proof of one crime may tend to corroborate the commission of the other crime in violation of the evidentiary rules against evidence of a general criminal disposition or propensity to commit crime. 8 James W. Moore, Moore’s Federal Practice ¶ 14.03[1] (2d ed. 1991). Particularly since economizing judicial resources is not of great significance when the offenses were on different dates with different witness.\nMuniz argues he was prejudiced because the jury may have cumulated the evidence against him in order to convict him bn the second count. Specifically he claims the evidence of the trace metals on his hand on January 6, 1991, and his association with certain people used in the first count prejudiced him in the second count. He claims the jury and a witness were confused by the joinder because of the different guns charged in the indictment and identified by witnesses. Muniz’s sister, a key witness on the second count, believed the gun that the defendant threatened her with looked more like the gun identified for the first count. Additionally, the jury sent a note to the judge in the middle of the trial asking about a .25 caliber gun mentioned by a witness for proof of the first count.\nMuniz’s prejudice argument is unconvincing, and the district court’s denial of his motion was not an abuse of discretion. The two counts were separate and distinct, and the evidence presented at trial was not too confusing or unfairly overlapping. The offenses took place on different dates at different locations, and different witnesses and evidence were presented on each count. See Drew v. United States, 331 F.2d 85, 92-93 (D.C.Cir.1964) (confusion resulted from similarity of the two offenses because both were committed in same way and at stores with the same name). Muniz testified in his own defense concerning both counts and can not claim any infringement of his Fifth Amendment right not to testify. Hernandez, 829 F.2d at 991; Dickey, 736 F.2d at 590. There was no unfair prejudice from proof that he was a convicted felon since it was an element for both counts. See United States v. Valentine, 706 F.2d 282, 290 (10th Cir.1983). Moreover, the case for each count was strong enough on its own. The government was not attempting to strengthen a weak case by joining it with a strong case. Muniz’s prejudice argument is not helped by the fact that the jury acquitted him on one of the counts.\nC. Pre-Indictment and Post-Indictment Delay\nMuniz moved to dismiss the indictment prior to trial alleging his due process rights to be free of prejudicial preindictment delay were violated along with his Sixth Amendment right to a speedy trial. The government opposed the motion which the district court denied on May 6, 1992. Muniz relies upon United States v. Stoddart, 574 F.2d 1050 (1978), and United States v. Revada, 574 F.2d 1047 (10th Cir.1978), and argues the court abused its discretion when it improperly denied his motion without even conducting an evidentiary hearing to resolve factual allegations.\nThe offenses with which the defendant was charged occurred on January 6, 1991, and March 13, 1991, and the defendant was indicted on federal charges on January 9,1992. Muniz argues this delay in indictment was intentional because he lost contact with two witnesses he needed for his defense. The government explained the delay was due to the slow exchange of investigative reports between the state authorities who arrested Muniz and the federal agent handling the case.\nThe district court was not required to hold an evidentiary hearing in order to rule on the pre-indictment delay allegation. As the Supreme Court recognized in United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977), “investigative delay is fundamentally unlike delay taken by the Government solely ‘to gain tactical advantage over the accused’ ” and does not deprive a defendant of due process. Id. Muniz made no specific allegations how the government had intentionally delayed seeking an indictment in order to prejudice the defendant. See Gutierrez v. Moriarty, 922 F.2d 1464, 1472 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991); United States v. Pino, 708 F.2d 523, 527 (10th Cir.1983). Nor did Muniz specifically allege why the passage of time caused him to lose contact with the two witnesses. See Gutierrez, 922 F.2d at 1472. In fact, one of the witnesses did appear at trial, and the other is his own brother. The government adequately explained the reason for the admittedly “modest delay” so that the district court could deny the motion after reviewing the memoranda submitted by both parties.\nThe other ground for the defendant’s motion to dismiss was based upon a violation of his Sixth Amendment right to a speedy trial. Muniz argues his speedy trial right attached on January 6, 1991, and May 14, 1991, when he was first arrested for the offenses. The government argues the right did not attach until Muniz was arrested by way of the execution of the writ of habeas corpus on March 12, 1992.\nMuniz’s speedy trial claim is evaluated under the four-part balancing test adopted by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The general rule is that the speedy trial right attaches when the defendant is arrested or indicted, depending on which comes first. See United States v. Manon, 404 U.S. 307, 320-21, 92 S.Ct. 455, 463-64, 30 L.Ed.2d 468 (1971).\nWhen Muniz was arrested by state authorities on January 6, 1991, and May 14, 1991, his speedy trial rights for the subsequent federal charges did not attach. “Where the initial arrest is solely for violation of state law, then it is generally accepted that this arrest does not mark the commencement of the speedy trial right as to a subsequent federal charge, even if based on the same activity.” 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 18.1 (1984 & Supp.1991); see United States v. MacDonald, 456 U.S. 1, 10 n. 11, 102 S.Ct. 1497, 1503 n. 11, 71 L.Ed.2d 696 (1982) (“an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign”).\nAssuming for purposes of this appeal that Muniz’s speedy trial rights attached when the federal indictment was returned on January 9, 1992, and not when the writ of habeas corpus was executed as the government asserts, we do not find any violation of Muniz’s speedy trial rights. The trial was less than five months after the indictment was returned. This a reasonable amount of time and not presumptively prejudicial. Muniz has also not shown any deliberate intention on the government’s part to delay trial in order to prejudice his defense. Nor has he shown what prejudice he actually suffered with the passage of time. Again, one of the previously named witnesses did testify at trial, and there is no proof why the defendant was unable to locate the second witness-.\nD. Right to Allocution\nMuniz argues the district court denied him his right to allocution when he was sentenced because the judge interrupted Muniz when Muniz began, “First of all, in the beginning of this case.” (R. at 385, vol. V.) The judge said to Muniz, “I don’t want to hear anything about the case. I heard the case ... You’re not going to re-argue the case to the Court. Do you have anything else to say?” (Id.) Muniz did have more to say, and the allocution continued:\n“MR. MUNIZ: Yes sir, I feel that in my case the detainer issue, the United States detainer issue has been violated. My speedy trial — my constitutional right to a Sixth Amendment speedy trial has been violated, due process of law. There was a coercion of witnesses in my ease by police officers.\nTHE COURT: Well, Mr. Muniz, this is not the place for that. You can raise those issues on appeal.\nMR. MUNIZ: But other than for myself personally, I was put in the situation where I can feel that my life was threatened. As a convicted felon, I don’t believe that it’s fair that a person should give up their right to protect themselves. I don’t feel that a person should allow anybody to intimidate them or to threaten friends of witnesses that could possibly help. I don’t think that it’s fair that the Government itself doesn’t provide enough money to pay out of his own pockets to get transcripts of several things. And overall, I just don’t— in the due process of my ease, I don’t feel that justice was served.\nTHE COURT: Do you have anything else? MR. MUNIZ: Just other than that I apologize. I apologize that things are the way they are.\nTHE COURT: All right.”\n(Id. at 385-86.)\nThe right to allocution is an integral part of the sentencing process which if not fully afforded to the defendant requires a reversal of the sentence imposed. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961); United States v. Latimer, 548 F.2d 311, 315 (10th Cir.1977). The sentencing court must “address the defendant personally and determine if the defendant wishes to make a statement and to present any information in the mitigation of the sentence.” Fed.R.Crim.P. 32(a)(1)(C).\nThe right of allocution, however, is not one without some limits. See United States v. Eibler, 991 F.2d 1350, 1356 (7th Cir.1993) (defendant may not as of right privately address the court); United States v. Kellogg, 955 F.2d 1244, 1250 (9th Cir.1992) (right not violated when court interrupted defendant and proposed a recess). Most often the cases concern whether the defendant was given a chance to speak at all. Yet Muniz argues he was not allowed to speak enough since the district judge told the defendant, “I don’t want to hear anything about the case ... You’re not going to re-argue the case.”\nThe judge did not unfairly prevent Muniz from speaking because the judge does not have to let the defendant re-argue the case at sentencing. Moreover, the judge allowed the defendant to seek to mitigate his sentence by speaking about how he possessed the gun in self-defense and how some potential witnesses had been prevented from testifying. The judge also asked the defendant if he had anything else to say when he was finished. Therefore, while we agree that “[t]he right of allocution is minimally invasive of the sentencing proceeding,” and “the requirement of providing the defendant a few moments of court time is slight,” United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991), we believe the defendant had adequate opportunity under the circumstances to speak on his own behalf.\nE. The Interstate Agreement on Detain-ers Act\nMuniz argues that because the government failed to begin his federal trial within the 120-day requirement of the Interstate Agreement on Detainers Act (“IAD”), 18 U.S.C. app. 2, § 2, art. IV(e), the indictment should be dismissed. We disagree for the simple reason that the provisions of the IAD do not apply to pretrial detainees.\nIn United States v. Wilson, 719 F.2d 1491 (10th Cir.1983), this court held the terms of article 111(a) of the IAD did not come into play until a person is actually sentenced and imprisoned in state custody. Id. at 1495. In Wilson the 180-day requirement of article III did not begin when the person had a detainer filed against him by the United States Marshal while in state custody and before any guilty pleas or convictions had been entered on the state charges. Id. Articles III and IV apply to prisoners who are serving a “term of imprisonment” in a state party to the IAD, and therefore Wilson forecloses any other interpretation of the time when the provisions of the IAD apply. According to the record, Muniz was not serving a term of imprisonment on any state charges before his federal trial began; the IAD can provide no relief for him. Several other courts have similarly held that the IAD does not apply to pretrial detainees. See United States v. Currier, 836 F.2d 11, 16 (1st Cir.1987); United States v. Reed, 620 F.2d 709, 711 (9th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980); United States v. Harris, 566 F.2d 610, 613 (8th Cir.1977); United States v. Roberts, 548 F.2d 665, 671 (6th Cir.), cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232 (1977).\nIII. CONCLUSION\nFinding no error on the part of the district court, we affirm Muniz’s conviction.\nAFFIRMED.\n. Instead Muniz has been in custody since May 14, 1991, and was sentenced to 300 hundred months imprisonment by the district court for possessing the .45 caliber gun.\n. The detainer is dated January 13, 1991, which apparently is a typographic error since a receipt stamp on the detainer is dated January 13, 1992. But neither of the parties in their briefs or in district court acknowledged this error, if it is one, and both parties use different years in their briefs. The defendant asserted his speedy trial rights in a notification form for the detainer dated January 13, 1992, but this form refers to the detainer filed on January 13, 1991 which adds to the confusion.\n. Muniz was subject to enhanced penalty provisions under 18 U.S.C. § 924(e)(1) because he had three previous violent felony convictions.", "type": "majority", "author": "HARLINGTON WOOD, Jr., Senior Circuit Judge."}], "attorneys": ["David N. Williams, Senior Litigation Counsel, Albuquerque, NM (Don J. Svet, U.S. Atty., with him on brief) for plaintiff-appel-lee.", "Joseph W. Gandert, Asst. Public Defender, Albuquerque, NM, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Leo Orlando MUNIZ, Defendant-Appellant.\nNo. 92-2192.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 22, 1993.\nDavid N. Williams, Senior Litigation Counsel, Albuquerque, NM (Don J. Svet, U.S. Atty., with him on brief) for plaintiff-appel-lee.\nJoseph W. Gandert, Asst. Public Defender, Albuquerque, NM, for defendant-appellant.\nMcKAY, Chief Circuit Judge, WOOD, Jr., Senior Circuit Judge, and ANDERSON, Circuit Judge.\nHonorable Harlington Wood, Jr., United States Senior Circuit Judge for the Seventh Circuit, sitting by designation."} | McKAY | WOOD | ANDERSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1018 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,055 | UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KNAPP, Defendant-Appellant | United States v. Knapp | 1993-07-23 | No. 92-1243 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before MOORE, BALDOCK and BRORBY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KNAPP, Defendant-Appellant."], "opinions": [{"text": "BRORBY, Circuit Judge.\nA jury convicted Mr. Knapp of manufacturing, distributing and possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Mr. Knapp appeals asserting that evidence seized pursuant to two search warrants should have been suppressed.\nThe disputed evidence was seized from two separate dwellings. The first dwelling was an uninhabited house where Mr. Knapp conducted a marijuana growing operation. Mr. Knapp contends the trial court erred in finding that the officer’s affidavit supporting the search warrant did not contain knowing or reckless misstatements of fact or material omissions. Mr. Knapp also argues the law enforcement agents improperly searched the curtilage of this house by walking around to the backyard prior to obtaining the search warrant. Upon executing the search of the second dwelling, Mr. Knapp’s residence, the officers knocked and announced their purpose before smashing in Mr. Knapp’s front door with a battering ram. Mr. Knapp contends the execution of the warrant was unlawful because the law enforcement agents only waited ten to twelve seconds after knocking before they entered the residence.\nIn reviewing the denial of a motion to suppress, we accept the trial court’s findings of fact unless they are clearly erroneous and we view the evidence on appeal in a light most favorable to the government. United States v. Soto-Omelas, 863 F.2d 1487, 1490 (10th Cir.1988).\nI.\nWe first examine the facts supporting the issuance of the search warrant for the uninhabited house. An affidavit submitted by Agent Olachea, the investigating agent from the Drug Enforcement Administration, was instrumental in obtaining the warrant. According to the affidavit, a confidential informant, Kevin Riley, told law enforcement officers that Mr. Knapp had a marijuana growing operation in the uninhabited house. Mr. Riley estimated that there were 150 marijuana plants in the house, and observed the smell of marijuana throughout the house. Apparently, Mr. Knapp wanted to hire Mr. Riley as a caretaker of the marijuana plants in exchange for living quarters. Mr. Riley also related that Mr. Knapp required him to duck down in the car en route to the uninhabited house in order to conceal its exact location.\nAgent Olachea’s affidavit also revealed similar information gained from a second informant, Shawn Waller. Mr. Waller stated that Mr. Knapp was growing forty to sixty marijuana plants which were sold for $250 to $300 per ounce. On one occasion, Mr. Waller accompanied law enforcement officers to the grow operation to identify the location of the uninhabited house. Subsequently, with the authority of drug enforcement agents, Mr. Waller made a wired, controlled buy from Mr. Knapp. During the controlled buy, Mr. Knapp related to Mr. Waller the expense of maintaining the growing operation at the uninhabited house. The affidavit further stated that before obtaining a search warrant for the uninhabited house, the drug enforcement agents drove to the house, knocked on the front door, and received no response. The officers then walked around to the back of the house and observed a strong odor of marijuana near the electric meter. The agents did not cross any fences to make these observations. Agent Olachea deter-' mined the utilities at the uninhabited house were registered to Ron Joseph. Mr. Knapp’s full name is Ronald Joseph Knapp. Agent Olachea’s four-page affidavit contained substantial detail and precision regarding dates and locations, and the magistrate correspondingly issued a search warrant for the uninhabited house. When the warrant was executed, no one was present in the house and growing marijuana was found behind a false wall in the basement together with equipment designed to facilitate the growing.\nAt the suppression hearing, the defendant presented evidence that conflicted with the information contained in the affidavit. Agent Olachea’s testimony mirrored the information that he had provided in his affidavit. Kevin Riley appeared for the defense and denied making all statements attributed to him. Specifically, Mr. Riley testified that although he was at the uninhabited house he did not observe any evidence of a marijuana growing operation. The defense also presented testimony of an investigator from the public defender’s office who had interviewed Mr. Waller in relation to Mr. Knapp’s case. According to the investigator, Mr. Waller denied that he accompanied law enforcement officers to the uninhabited house, or that he participated in the recorded controlled buy of marijuana from Mr. Knapp. Mr. Knapp therefore assumes the statements contained in Agent Olachea’s affidavit were intentionally or recklessly false, and asserts that without these statements no probable cause existed and the search warrant should not have been issued.\nAccording to the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), when a defendant shows that an affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, the search warrant must be voided if the affidavit’s remaining content is insufficient to establish probable cause. The burden was on Mr. Knapp to demonstrate falsity or reckless disregard for the truth in Agent Olachea’s affidavit. United States v. Sullivan, 919 F.2d 1403, 1424 (10th Cir.1990). In reviewing the motion to suppress, the district court properly focused on the credibility of the affiant, Agent Olachea. See United States v. Corral-Corral, 899 F.2d 927, 934 (10th Cir.1990).\nMr. Knapp argues the trial court erred by accepting the credibility of Agent Olachea over the recanted testimony of the two informants. We give deference to the trial court in determining the credibility of witnesses. We note that Mr. Waller’s denial of his presence at the recorded controlled buy gives some indication as to his credibility. Agent Olachea’s affidavit and subsequent testimony are supported by the record, and it certainly was not clearly erroneous for the district court to accept his testimony over that of the recanting informants.\nMoreover, Mr. Knapp could not show that any potential inaccuracies in the affidavit were deliberate falsities on the part of Agent Olachea. “It is not enough to show that the informant lied to an unsuspecting affiant, or that an affiant’s negligence or innocent mistake resulted in false statements in the affidavit.” United States v. Owens, 882 F.2d 1493, 1499 (10th Cir.1989). Therefore, as long as the affidavit reflected what Agent Olachea believed to be true, the warrant was properly issued.\nMr. Knapp next contends the affidavit supporting the search warrant omitted two very significant facts. The first was that Mr. Riley’s information regarding Mr. Knapp’s grow operation was at least six months old. The second related to the fact the government failed to disclose the benefits conferred upon Mr. Waller for his cooperation. This Circuit has extended Franks to hold that it is a Fourth Amendment violation to knowingly or recklessly omit from an affidavit information that would have vitiated probable cause. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir.1990). Although the evidence omitted from the affidavit would have been marginally beneficial to Mr. Knapp, the omissions were not vital to the magistrate’s probable cause determination. A review of the affidavit shows probable cause existed assuming the omitted facts were therein contained. Thus, the district court properly denied the motion to suppress based on the veracity of the affidavit.\nMr. Knapp next contends the drug enforcement agents violated his Fourth Amendment rights by going into the unfenced portion of Mr. Knapp’s yard without a warrant. Only the curtilage of the home warrants the Fourth Amendment protections that attach to the home itself. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). “[Cartilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’ ” Id. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). The district court’s determination that the unenclosed area should not be considered curtilage was factual and therefore subject to a clearly erroneous standard of review. United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993).\nIn United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987), the Court held four factors should be considered in determining whether areas around a house are given the Fourth Amendment protection of curtilage: (1) the proximity of the area to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use of the area searched; and (4) steps taken by the resident to protect the area from observation.\nApplying the Dunn factors, we hold the drug enforcement agents committed no violation of the Fourth Amendment by going into the unfeneed and unenclosed portion of the yard. Although the agents made their observations from close proximity to the house, the other three Dunn factors tend to indicate the defendant did not have a reasonable expectation of privacy for this area. The unenclosed portion of the yard extended into an open field which, in turn, was fronted by a highway. There is no indication in the record that Mr. Knapp attempted to shield the unenclosed portion of the yard from public view, nor is there any evidence that Mr. Knapp had any particular use for this area. On balance, the area near Mr. Knapp’s utility meter was not so intimately tied to the uninhabited house that it enjoyed Fourth Amendment protection. See Swepston, 987 F.2d at 1513-15. Moreover, we are comfortable that probable cause to search the uninhabited house was present even without Agent Olachea’s' observation of the odor. Thus, the denial of the motion to suppress was appropriate.\nII\nWe now address the execution of the warrant on Mr. Knapp’s residence. The facts surrounding this event are essentially undisputed. The officers were aware that Mr. Knapp was an amputee, and suspected that he was home since lights were on in the house. Additionally, the officers knew Mr. Knapp could not readily dispose of the marijuana and did not believe Mr. Knapp was dangerous. The agents heard nothing as they approached the door. Agent Olachea knocked three times and announced, “DEA. We’ve got a warrant. Open the door.” After hearing no sounds from within for ten to twelve seconds, the officers broke the door down with a battering ram. The trial court found the law enforcement agents waited a reasonable period of time before making a forced entry. “We accept the trial court’s findings of fact unless clearly erroneous when reviewing the denial of a motion to suppress, considering the evidence in the light most favorable to the government.” United States v. Peveto, 881 F.2d 844, 851 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989).\nMr. Knapp contends these facts establish a violation of the “knock and announce rule” codified in 18 U.S.C. § 3109. The relevant portion of 18 U.S.C. § 3109 reads: “[t]he officer may break open any ... door ... of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.” “The purpose of 18 U.S.C. § 3109 is to restrict the authority of the government to intrude upon the privacy of its citizens, and to protect law enforcement officers who might be mistaken as unlawful intruders.” United States v. Remigio, 767 F.2d 730, 732 (10th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985). Evidence seized must be suppressed as the fruit of an unlawful search if the officers failed to comply with the knock and announce statute. United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986). “There is a presumption of government propriety, however, and the defendant bears the burden to establish a prima facie case that § 3109 has been violated.” Peveto, 881 F.2d at 850-51.\nCompliance with § 3109 may be excused only when exigent circumstances exist. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989). In this case, the officers waited for ten to twelve seconds without hearing any noise from inside the residence. Mr. Knapp could not readily dispose of his marijuana as it was kept in Mason jars, and could not move very quickly due to his amputated leg. Thus, the officers were unaware of any exigent circumstances that would permit them to disregard the knock and announce requirement of § 3109. Therefore, the critical issue is whether the officers were constructively refused admittance under § 3109 by waiting ten to twelve seconds without receiving a response.\n“It is well established that ‘the phrase “refused admittance” [in § 3109] is not restricted to an affirmative refusal,’ but encompasses circumstances that constitute constructive or reasonably inferred refusal.” United States v. Bonner, 874 F.2d 822, 824 (D.C.Cir.1989) (citation omitted). Whether the officers violated the knock and announce requirement depends upon the particular circumstances surrounding the execution of the warrant. Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). “The time that § 3109 requires officers to wait before they may construe no response as a denial of admittance depends largely on factual determinations made by the trial court.” Ruminer, 786 F.2d at 383-84 (quoting United States v. Davis, 617 F.2d 677, 695 (D.C.Cir.1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980)). Consequently, there is no concrete rule requiring the officers to wait a specific period of time before entry. See Ruminer, 786 F.2d at 384 (officers’ wait of five to ten seconds reasonable after observing occupant leave the room).\nUnder the facts of this case, we hold the district court’s determination that the agents waited a reasonable period of time was not clearly erroneous. Mr. Knapp gave no indication that he intended to voluntarily permit the officers to enter the residence. It was plausible for the officers to conclude that they were affirmatively refused entry after a ten to twelve second interval without a verbal or physical response. We therefore hold that the district court’s denial of the motion to suppress evidence obtained from Mr. Knapp’s residence was not clearly erroneous.\nThe judgment of the District Court is AFFIRMED.\n. We note, however, that Mr. Knapp had enough mobility to answer the door as he utilized a wooden prosthesis.\n. Upon entry, the officers found a switchblade, two firearms, and evidence that cocaine was being cut. The officers had no knowledge of these exigencies, however, prior to their forced entry.", "type": "majority", "author": "BRORBY, Circuit Judge."}], "attorneys": ["John M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty.; Charlotte J. Mapes, Asst. U.S. Atty., with him on the briefs), Denver, CO, for plaintiff-appellee.", "Virginia L. Grady, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KNAPP, Defendant-Appellant.\nNo. 92-1243.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 23, 1993.\nJohn M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty.; Charlotte J. Mapes, Asst. U.S. Atty., with him on the briefs), Denver, CO, for plaintiff-appellee.\nVirginia L. Grady, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant.\nBefore MOORE, BALDOCK and BRORBY, Circuit Judges."} | MOORE | BALDOCK | BRORBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1026 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,100 | MICAL COMMUNICATIONS, INC.; Reflex Marketing, Inc.; Palace Communications, Inc., Plaintiffs-Appellants, v. SPRINT TELEMEDIA, INC., formerly known as Sprint Gateways, Inc.; United Telecommunications, Inc.; US Telecom, Inc., Defendants-Appellees | Mical Communications, Inc. v. Sprint Telemedia, Inc. | 1993-07-23 | No. 92-3096 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR, MOORE, and ANDERSON, Circuit Judges."], "parties": ["MICAL COMMUNICATIONS, INC.; Reflex Marketing, Inc.; Palace Communications, Inc., Plaintiffs-Appellants, v. SPRINT TELEMEDIA, INC., formerly known as Sprint Gateways, Inc.; United Telecommunications, Inc.; US Telecom, Inc., Defendants-Appellees."], "opinions": [{"text": "STEPHEN H. ANDERSON, Circuit Judge.\nPlaintiffs/Appellants Mical Communications, Inc., Reflex Marketing, Inc., and Palace Communications, Inc. (collectively “Mi-cal”) appeal from the denial of a motion for a preliminary injunction seeking to restrain defendants/appellees Sprint Telemedia, Inc. fik/a/ Sprint Gateways, Inc., US Telecom, Inc. and United Telecommunications, Inc. (collectively “Sprint”) from terminating the billing and collection service provided by Sprint in connection with Mical’s area code 900 telephone information business. Specifically, Sprint terminated those services for the “romance talk” telephone lines operated by Mical. Mical claims that that termination was discriminatory and content-based, and therefore in violation of the Communications Act of 1934, 47 U.S.C. §§ 201 and 202.\nThe district court denied Mical’s motion for a preliminary injunction, holding that Sprint’s termination did not violate the Communications Act. We hold as follows: the particular language of the Communications Act at issue is ambiguous and does not clearly resolve the question of whether Sprint’s actions violated the Act; and, because this case involves questions clearly within the expertise of the Federal Communications Commission (“FCC”), and because the precise issue before us in this case is presently pending before the FCC, we conclude that the FCC must be allowed to resolve the issue initially under the doctrine of primary jurisdiction. We therefore reverse and remand to the district court.\nBACKGROUND\nSprint is a common carrier under the Communications Act, providing local and long-distance service to the public. Since 1989, Sprint has offered area code 900 service to subscribers on a pay-per-call basis. Other common carriers such as AT & T and MCI provide the same type of area code 900 service.\nThe area code 900 service typically works as follows: Sprint and subscribers such as Mical enter into information provider agreements, pursuant to which Sprint assigns to the subscriber or information provider (“IP”) a telephone number beginning with the area code 900. The IP advertises to the calling public the particular number and the type of information conveyed when a caller calls the number. Sprint transports calls from individuals to the IP, and is paid by the IP for the cost of the transmission of those calls.\nUnlike an area code 800 service, however, which is free to the caller, the area code 900 service IP charges its callers for the information provided on a per-minute or per-call basis. The IP generates revenues by charging more for each call than the long distance carrier such as Sprint charges the IP to transmit those calls. The IP does not itself, however, typically bill and collect from the caller. Rather, Sprint and virtually all other area code 900 long distance carriers such as Sprint have performed that service on behalf of the IP. Thus, Sprint would bill individual callers for each such call placed, through the normal subscriber billing process of the caller’s local telephone company.\nThe local telephone company would then remit to Sprint the revenues attributable to the IP’s 900 telephone lines. Sprint would deduct the portion of those revenues attributable to its own services (transport, billing and collection) and remit to the IP the balance. Sprint’s obligations under its information provider agreement with Mical were, therefore, to assign to Mical an area code 900 number, transport calls to that number, bill and collect for such calls and remit to Mical its portion of those collections, and handle customer inquiries concerning charges for those calls.\nAfter entering into the information provider agreements with Sprint in 1989, Mical spent $50 million advertising and promoting its 900 lines. Apparently in response to consumer complaints about some of the 900 programs for which Sprint provided transmission, billing and collection services, in September, 1991, Sprint announced that it would cease providing the billing and collection service for most of its area code 900 subscribers, including Mical, although it would continue to provide transmission of area code 900 calls. In its press release dated September 24, 1991, announcing this change, Sprint stated:\n“We have thoroughly evaluated the status of the 900 market today and find that a number of services currently being offered put consumers at some risk. Consumers say they are often confused about what they are getting with these services. They sometimes misunderstand that using these programs will cost them, and they report they have not gotten good value for then-money,” said Adrian Toader, general manager for Sprint Telemedia. “The unfortunate part of this equation is that to insure we can get rid of the bad apples we’ve had to take the rather extreme action of backing away from better than 90 percent of the current marketplace.”\n“What this means,” Toader explained, “is that we are essentially withdrawing from what currently constitutes the majority of this marketplace. We will continue to serve certain providers of quality programs such as news, stock quotes, sports information, and weather.”\nThis puts the company in the extremely awkward position of being unable to legally deny service to anyone — regardless of the content of the message.... Denying associated billing operations appears to be the only legal recourse open to the company to discourage misuse of the company’s network.\nAppendix of Plaintiffs-Appellants at 66-69. In accordance with the terms of the IP agreements it had with Mical and other IPs, Sprint gave them 90 days’ notice of discontinuance. Thus, Sprint ceased to provide billing and collection services for Mieal’s “romance” line area code 900 service. Other long distance carriers remained willing, apparently, to provide the billing and collection service as well as transmitting the calls, but the particular number following the area code 900, which callers had come to associate with Mical’s information services, were not transferable to a different carrier. Transferring to a different carrier was therefore possible, but would have necessitated “reeducating” the calling public as to Mical’s particular 900 phone numbers. Mical asserts that, “[t]he good will and customer base for which Appellant had spent $50 million and dedicated three years of labor to develop was lost.” Brief of Plaintiffs-Appellants at 14.\nMical commenced this action against Sprint in the United States District Court for the Southern District of New York. The action was transferred to the district court in Kansas. The district court issued a temporary restraining order on January 16, 1992, enjoining Sprint from terminating its billing and collection service pending a preliminary injunction hearing. That hearing took place on January 27-29, 1992, and resulted in the denial of Mical’s motion for a preliminary injunction on the grounds, inter alia, that Mical had “failed to show that they will suffer irreparable harm if the injunction is denied”; had “not met their burden to show that there is a likelihood of success on the merits of plaintiffs’ claims”; and because “[t]he Communications Act of 1934 is not violated by defendants’ withdrawal of billing and collection services to plaintiffs.” Order, Appendix of Plaintiffs-Appellants at 294-97. Mical appeals only that portion of the order finding that the Communications Act was not violated by Sprint’s actions. Notice of Appeal, Id. at 337.\nDISCUSSION\nSection 202(a) of the Communications Act provides as follows:\nIt shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.\n47 U.S.C. § 202(a). Mical argues that billing and collection services are “services ... in connection with” communication service, such that Sprint’s selective termination of those services for some area code 900 subscribers but not for others amounts to prohibited discrimination. The district court held that they were not, stating “[sjuch services are not basic transmission services, are not regulated by the Federal Communications Commission and are not subject to the Communications Act.” Order, Appendix of Plaintiffs-Appellants at 296-97.\nSection 201 of the Act provides in pertinent part that “[i]t shall be the duty of every common carrier engaged in interstate ... communication by wire or radio to furnish such communication service upon reasonable request therefor....” 47 U.S.C. § 201(a). Mical also claims Sprint violated this section when it terminated its billing and collection services for Mical allegedly because of the content of the information provided to callers by Mical. Mical argues:\nSprint’s practice of refusing to provide service for horoscope lines, romance lines, entertainment lines or any other types of lawful information services violates its duty under Section 201 of the Act to render service to the public upon reasonable request. Sprint has not alleged that any of the services provided by Appellants are unlawful — the only proper reason under Section 201 for a content-based refusal to provide service.\nBrief of Plaintiffs-Appellants at 31. Mical relies on 47 U.S.C. § 406 for its claim to injunctive relief.\nSprint responds, first, that this court “lacks jurisdiction [over this case] because of the absence of a case or controversy,” Appellant’s Answering Brief at 2, because of Mi-cal’s failure to appeal the district court’s finding that Mical would not suffer irreparable harm; and, second, that the district court properly held that Mical had failed to establish a likelihood of success on the merits and properly concluded that Sprint’s actions did not violate the Communications Act.\nWe begin by rejecting Sprint’s argument based on jurisdiction. Sprint argues that the existence of irreparable harm is an indispensable requirement for the issuance of a preliminary injunction, and even if Mical persuaded this court that it had a likelihood of success on the merits by showing that Sprint’s actions violated the Communications Act, Mical’s failure to appeal the finding of irreparable harm means that no preliminary injunction could issue. Therefore, the argument goes, we lack jurisdiction to hear the case.\nSprint confuses lack of jurisdiction with failure on the merits. Sprint is simply arguing that Mical has failed to establish that it is entitled to a preliminary injunction, and we should affirm the district court’s refusal to issue one. Mieal’s timely filed appeal from that part of the district court’s order finding that the Communications Act had not been violated and that no preliminary injunction should issue, however, conferred jurisdiction on this court. 28 U.S.C. § 1292(a)(1).\nMoreover, we agree with Mical that irreparable harm need not be shown in this case. “When the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown.” Atchison, Topeka and Santa Fe Ry. v. Lennen, 640 F.2d 255, 259 (10th Cir.1981) (per curiam); accord, CSX Transp. v. Board of Equalization, 964 F.2d 548, 551 (6th Cir. 1992) (“since Congress has expressly authorized the granting of injunctive relief to halt or prevent a violation of [the Railroad Revitalization and Regulatory Reform Act of 1976] traditional equitable criteria do not govern the issuance of preliminary injunctions”); Burlington Northern R.R. Co. v. Bair, 957 F.2d 599, 601 (8th Cir.) (“It is a well-established rule that where Congress expressly provides for injunctive relief to prevent violations of a statute, a plaintiff does not need to demonstrate irreparable harm to secure an injunction.”), cert. denied, — U.S. -, 113 S.Ct. 69, 121 L.Ed.2d 36 (1992); Illinois Bell Tel. Co. v. Commerce Comm’n, 740 F.2d 566, 571 (7th Cir.1984) (“[W]here the plaintiff seeks an injunction to prevent the violation of a statute that specifically provides for injunctive relief, it need not show irreparable harm.... This rule has been applied to private plaintiffs seeking an injunction under 47 U.S.C. § 401(b).”) (citations omitted); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.) (“ ‘[w]here ... an injunction is authorized by statute and the statutory conditions are satisfied ... the usual prerequisite of irreparable injury need not be established.’ ”) (quoting United States v. Hayes Int’l Corp., 415 F.2d 1038, 1045 (5th Cir. 1969)), cert. denied, 469 U.S. 882, 105 S.Ct. 249, 83 L.Ed.2d 187 (1984).\n47 U.S.C. § 406 authorizes “district courts ... upon the relation of any person alleging a violation, by a carrier subject to this chapter, of any of the provisions of this chapter which prevent the relator from receiving service in interstate ... communication by wire ... to issue a writ or writs of mandamus against said carrier commanding such carrier to furnish facilities for such communication ... to the party applying for the writ_” Under the rule set forth in Len-nen and the other cases cited above, Mical need not show irreparable harm. It need only show that the statutory conditions for the issuance of an injunction were met — in this case, a violation of the provisions of the Communications Act which prevents Mical from receiving services in interstate communication. 47 U.S.C. § 406.\nHowever, since section 406 is a mandamus statute, the ordinary requirements for the issuance of an injunction do not necessarily apply either. While a motion for injunctive relief now takes the place of a prayer for mandamus, “it appears that the substantive rights of the parties are still governed by the principles which have formerly been applied in mandamus cases.” MCI Communications Corp. v. American Tel. & Tel. Co., 369 F.Supp. 1004, 1025 (E.D.Pa.1973), vacated pending FCC action, MCI Communications Corp. v. American Tel. & Tel. Co., 496 F.2d 214 (3d Cir.1974); see also Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n. 7 (D.C.Cir.1985). Thus, Sprint’s “duties under the Act would have to be clear and unequivocal” in order for a court to grant injunctive relief requiring the performance of those duties. MCI Communications Corp., 369 F.Supp. at 1025. See also 12 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3134 at 203 (1973) (“The same principles that governed the former writ now govern attempts to secure similar relief by action or motion.”). As this court has observed, “[f]or mandamus to issue, there must be a clear right to the relief sought, a plainly defined and peremptory duty ... to do the action in question; and no other adequate remedy available.” Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990). The crucial question, therefore, is whether Sprint’s denial of billing and collection services to Mical constitutes a violation of the Communications Act.\nMical’s argument is fairly straightforward. Because historically area code 900 service has always been offered and provided as a bundled package of transmission service plus billing and collection by the common carrier, and because no other method of billing and collection has proved successful, billing and collections services are clearly and unambiguously services “in connection with” a communication service under the Communications Act. Section 152(b)(1) of the Act, which provides for an exemption from Federal Communications Commission (“FCC”) jurisdiction for “services ... in connection with intrastate communication service,” has been interpreted expansively in a few cases, Mical asserts, and the identical language of section 202(a) should be interpreted equally expansively.\nSprint’s response is also straightforward. It is clear that not every service provided by a common carrier in connection with its provision of telephone transmission is a service “in connection with” such transmission for Communications Act purposes. Thus, the fact that historically billing and collection have been provided by Sprint in connection with its transmission of area code 900 telephone calls does not compel the conclusion that such services are covered by the Communications Act. Sprint reasons that the exact meaning of the terms “services ... in connection with” communications services under the Act is obviously, therefore, ambiguous, and in the face of such ambiguity, deference to the agency charged with enforcing the Act — the FCC — is required and the FCC has held that such billing and collection sendees are “not subject to regulation under Title II of the Act.”\nNeither party suggests referring this matter to the FCC under the doctrine of primary jurisdiction. Neither party suggests that this court should await a decision of the FCC concerning the Public Notice released February 7, 1992, soliciting comments on the petition filed by Audio Communications, Inc. (“ACI”) “requesting that the Commission issue a declaratory ruling on whether U.S. Sprint’s guidelines for 900 service violate the Communications Act.” Pleading Cycle Established for Comments on Audio Communications, Inc. Petition for Declaratory Ruling on 900 Service Guidelines of U.S. Sprint Communications Co., 7 FCC Red 1443, 1992 FCC LEXIS 728 (Feb. 7, 1992). The ACI petition has raised the identical argument which Mical raises here: “ACI argues that U.S. Sprint employs discriminatory practices in selecting the information providers to which U.S. Sprint will provide premium 900 services. ACE describes premium 900 service as a bundled package that includes billing and collection as well as transport services.” Id.\nWe agree with Sprint that the precise meaning of the statutory language here— “services ... in connection with” communication service — is unclear, and there is no indication in the statute whether billing and collection services provided by a common carrier in connection with its transmission of area code 900 telephone calls falls within that statutory language. And the fact that historically such billing and collection services have been provided along with the transmission of area code 900 calls, or even that customers have come to expect that such billing and collection will be performed by a carrier such as Sprint, or that other collection methods have proved less successful, does not necessarily compel the legal conclusion that those services are encompassed by the Communications Act.\nBecause the statute does not clearly resolve the issue before us, we must determine whether we or the FCC is the appropriate entity to make that resolution initially. Despite the fact that both parties have argued that there is no need to refer this matter to the FCC, we conclude that the district court should have stayed the matter pending the FCC’s action on the ACI petition before it.\n“Primary jurisdiction is invoked in situations where the courts have jurisdiction over the claim from the very outset but it is likely that the case will require resolution of issues which, under a regulatory scheme, have been placed in the hands of an administrative body.” Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376 (10th Cir.1989). Under that doctrine, “the judicial process is suspended pending referral of the issues to the administrative body for its views.” Id. at 1377; see also Association for Retarded Citizens v. New Mexico, 678 F.2d 847, 850 (10th Cir.1982). We have noted the factors relevant to application of the doctrine as follows:\nwhether the issues of fact raised in the case are not within the conventional experience of judges; or whether the issues of fact require the exercise of administrative discretion, or require uniformity and consistency in the regulation of the business entrusted to a particular agency.\nMarshall, 874 F.2d at 1377 (citing Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952)). Other courts have approved consideration of similar factors:\nWe have said that a district court in its discretion should invoke primary jurisdiction and defer only if the benefits of obtaining the agency’s aid outweigh the need to resolve the litigation expeditiously. The district court may consider many factors in striking this balance, including: how agency action will aid the litigation; whether the litigation involves conduct requiring continuing supervision by the agency; whether the issues to be litigated are unique to regulated industries; and whether proceedings already are pending before the agency.\nGulf States Utils. Co. v. Alabama Power Co., 824 F.2d 1465, 1473 (5th Cir.1987) (citation omitted).\nThis court in Marshall specifically considered, inter alia, whether “the potential for inconsistent orders [by the district court and the agency] was so likely that the district court abused its discretion in refusing to refer this case to the [agency] under primary jurisdiction.” Marshall, 874 F.2d at 1379.\nMical makes slightly different arguments to support its assertion that referral of this matter to the FCC would be futile. In its briefs, it argues that the FCC has issued several orders and rulings on the general topic of third party billing and collection, all of which have held that such billing and collection is not subject to Title II of the Communications Act, but all of which involve a different type of billing and collection from the billing and collection at issue here. Thus, Mical argues that the billing and collection services at issue in the 1986 Detariff-ing Order, as well as in subsequent rulings which rely on the 1986 Order, were different in crucial ways from the billing and collection services at issue in this case, so that those orders and rulings have no bearing on this case.\nAt oral argument of this case, however, Mical appeared to concede that the FCC has ruled adversely to it, but erroneously, on the very issue before us, and therefore referral to the agency would be pointless.\nSprint, on the other hand, contends that the statute’s ambiguity dictates deference to the FCC, and the FCC has clearly ruled in its favor, so we need not seek the FCC’s expertise to resolve this issue. The FCC ruling upon which Sprint places greatest reliance is an interpretive ruling issued by the Common Carrier Bureau, acting under authority delegated to it by the FCC, in which it concluded that AT & T’s “Premium Billing” service, pursuant to which AT & T would bill and collect on behalf of certain subscribers to its area code 900 “Dial-It” services, “is not a Title II common carrier service, is subject to current and foreseeable competition and, as a result, is properly offered by AT & T on a non-tariffed basis.” In the Matter of AT & T 900 Dial-It Service and Third Party Billing and Collection Service, 4 FCC Red 3429 (available on WEST-LAW, FCOM-FCC database), 1989 FCC LEXIS 911 (April 12, 1989).\nThe FCC has more recently reiterated that billing and collection “remains outside the scope of Title II because it is not a common carrier service.” In the Matter of Policies and Rules Concerning Local Exchange Carrier Validation and Billing Information for Joint Use Calling Cards, 7 FCC Red 3528 (available on WESTLAW FCOM-FCC database), 1992 FCC LEXIS 2511 at *23 (May 8, 1992). The Commission appeared in that order, however, to retreat from its characterization of billing and collection by LECs as merely a “financial and administrative” service. See note 5, supra.\nObviously, considered broadly, this case involves the sort of statutory interpretation in which courts regularly engage. We must simply determine whether the billing and collection service at issue is a service “in connection with” transmission service under the Communications Act. But, considered more specifically, this case involves the appropriate characterization of a specific and relatively new service, in a rapidly changing industry, which has already been the subject of a number of orders and rulings by the FCC, none of which appears to address the precise issue here. And, that precise issue is pending before the FCC now. There is therefore a real possibility that a decision by this court prior to the FCC’s response to the ACI petition would result in conflicting decisions, either between our court and the FCC or our court and another circuit if the FCC ruling is appealed.\nFurthermore, it appears to us that the appropriate characterization of billing and collection in the area code 900 context requires expertise and a familiarity with the industry. For those reasons, we conclude that the only prudent course is to REMAND this case to the district court with instructions that it stay the matter pending the issuance of a dispositive ruling by the FCC, whether by application by the parties in this case or otherwise. See MCI Communications Corp. v. American Tel. & Tel. Co., 496 F.2d 214 (3rd Cir.1974); see also Allnet Communications Serv. v. NECA, 965 F.2d 1118, 1123 (D.C.Cir.1992).\n. Section 406 provides in pertinent part:\nThe district courts of the United States shall have jurisdiction upon the relation of any person alleging any violation, by a carrier subject to this chapter, of any of the provisions of this chapter which prevent the relator from receiving service in interstate or foreign communication by wire or radio ... from said carrier at the same charges, or upon terms or conditions as favorable as those given by said carrier for like communication or transmission under similar conditions to any other person, to issue a writ or writs of mandamus against said carrier commanding such carrier to furnish facilities for such communication or transmission to the party applying for the writ....\n47 U.S.C. § 406.\n. Fed.R.Civ.P. 81(b) abolished writs of mandamus, and provided that relief formerly available by mandamus may now be obtained by \"appropriate motion” such as a motion for injunctive relief.\nSprint argues that section 406 has no application to this case because that section permits injunctive relief only for denials of communication or transmission service and not for denials of services \"in connection with” such communication or transmission functions. As Mical points out, that argument ignores the statutory definitions contained in the Act. 47 U.S.C. § 202(b) specifically provides that \"services, whenever referred to in this chapter, include charges for, or services in connection with, the use of common carrier lines of communication.” Furthermore, section 153(a) defines \"wire communication” or \"communication by wire” to include \"the transmission of ... sounds of all kinds ... including all instrumentalities, facilities, apparatus and services ... incidental to such transmission.” Thus, if the billing and collection services at issue in this case are services \"in connection with” communication services, section 406 authorizes injunctive relief to obtain those services if the denial of those services is a violation of the Communications Act.\n. Sprint argues that the few cases upon which Mical relies in support of its argument are distinguishable. We agree. Both California v. FCC, 905 F.2d 1217 (9th Cir.1990) and National Ass'n of Regulatory Util. Comm'rs v. FCC, 880 F.2d 422 (D.C.Cir.1989) involved the scope of 47 U.S.C. § 152(b)(1) of Title I of the Communications Act, not Title II, 47 U.S.C. §§ 201-222. In particular, both involved the issue of whether the FCC could preempt state regulation of a particular intrastate service where it had held that interstate provision of the service was beyond the scope of Title II of the Act. Mical argues that language in section 152(b)(1) (prohibiting FCC regulation of “services ... in connection with intrastate communication service”) identical to the language of section 202(b) at issue in this case (prohibiting discrimination in \"services ... in connection with” common carrier service) has been construed broadly to include “non-common carrier services.” Brief of Plaintiffs-Appellants at 25. Thus, Mical argues, the principle of parallel statutory construction requires that the broad reading of the “in connection with” language of section 152(b) be equally applied to section 202. We disagree. As the court acknowledged in California v. FCC, “[s]ection 2(b)(1) [47 U.S.C. § 152(b)(1)] is phrased in broad terms that sweep beyond Title II.” 905 F.2d at 1240-41 n. 35. The particular statutory language cannot be read out of its context within that broadly worded provision. The identity of language between section 152(b)(1) and section 202(a) does not necessarily mean that the scope of each should be identical.\nMoreover, while McDonnell Douglas Corp. v. General Tel. Co., 594 F.2d 720 (9th Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 77, 62 L.Ed.2d 50 (1979), upon which Mical also relies, does note that the language of section 202 and 152 is \"virtually identical,” its observations must be read in context. The billing and collection practices at issue in that case were collections from the telephone company's customers for taxes applicable to services it provided. The court appears to assume, although it docs not so hold, that those collection practices would be subject to section 202 (Title II). It then goes on to observe that \"[i]f, as McDonnell contends, General Telephone’s tax collection practices were in violation of § 202 because they constituted 'charges, practices, ... regulations, ... or services' relating to communications, then it would be inconsistent to argue that those same tax collection practices are not 'charges, ... practices, services, ... or regulations' relating to intrastate communications services [under section 152(b)(1)].” Id. at 724. Thus, the court says that if section 202 covers the particular service, then section 152(b)(1) probably does also, and McDonnell's position is internally inconsistent. We do not read that opinion, however, to hold that services encompassed by section 152(b)(l)'s intrastate exemption always arc equally subject to section 202's antidiscrimination provision.\nFinally, none of these cases resolve the precise issue here — whether Sprint's billing and collection service for its 900 area code customers is a service in connection with a communication service under section 202.\n. ACI also argued to the FCC that \"the detariff-ing of billing and collection does not relieve U.S. Sprint of its obligation to provide premium 900 service on a nondiscriminatory basis ... [and] suggests that the Commission reevaluate its 1986 order detariffing billing and collection in light of the development of 900 services.” Pleading Cycle, 1992 FCC LEXIS at *2. The 1986 Order referred to involved the issue of whether the billing and collection service \"provided by a local exchange carrier (LEC) to an interexchange carrier (IC) whereby the former bills and collects from end users for services provided to end users by the IC” is within the scope of Title II. In the Matter of Detariffing of Billing and Collection Services, 102 F.C.C.2d 1150 (available on WEST-LAW, FCOM-FCC database), 1986 FCC LEXIS 4059 at *2 n. 2 (January 29, 1986). The Commission determined that such service was \" 'not communications common carriage within' Title II of the Communications Act.” Id. at *1. See also Public Serv. Comm'n v. FCC, 909 F.2d 1510, 1512 (D.C.Cir.1990) (discussing 1986 Order).\n. Mical characterizes the 1986 Order as addressing \"stand-alone” billing and collection services, where the LEC bills and collects solely on behalf of another entity — i.e. the IC. This case, Mical argues, involves billing and collection in connection with Sprint’s provision of transmission service. Mical relies on the Detariffing Order's observation that \"carrier billing and collection for a communication service that it offers individually or as a joint offering with other carriers is an incidental part of a communication service.” Detariffing Order, 1986 FCC LEXIS at *35-36. Mical argues, ”[i]t is only when the carrier does not condition availability of billing services on subscription to the telecommunication services that the stand-alone billing offered does not fall within the Act.” Reply Brief of Plaintiffs-Appellants at 17.\nIt is clear that the particular billing and collection services involved in that Order were different from the ones at issue here. However, the Order specifically stated, “carrier billing or collection for the offering of another unaffiliated carrier is not a communication service for purposes of Title II of the Communications Act.” Detariffing Order, 1986 FCC LEXIS at *36. The Order goes on to characterize billing and collection as “a financial and administrative service,\" encompassing \"the recording and aggregation of the billing data corresponding to a completed telephone call, the application of the [interexchange carrier’s] rates to those calls in order to create a customer invoice, the mailing of bills, the collection of customer deposits and bill payments, the handling of customer inquiries concerning their bill, and the investigation of customer fraud or billing evasion activities.” Id. at *36. In discussing whether LEC billing and collection was subject to Title I of the Communications Act, which is not at issue in this case, the Commission observed that \"there is sufficient competition to allow market forces to respond to excessive rates or unreasonable billing and collection practices.\" Id. at *39.\n. Mical argues that this ruling is simply wrong, and is based on a misinterpretation of the 1986 Detariffing Order. It also suggests that the AT & T 900 Dial-It ruling was factually distinguishable from the situation here, in that the Bureau's \"finding was itself premised upon the condition that AT & T offer billing services through a separate contract and not as a part of its tariffed transmission offering. Here, in contrast, Sprint offered transmission and billing through a single IP Agreement.\" Reply Brief of Plaintiffs-Appellants at 19 n. 20.\n. For example, one of the issues which has relevance to this case, and about which both parties express widely differing views, is the viability of alternative billing and collection services for area code 900-type services. The record in this case is simply inadequate to resolve that issue. The various orders and rulings by the FCC, however, indicate considerable familiarity with that issue.\nFurthermore, to underscore the rapidity with which changes are occurring in the area code 900 arena, we note that the Telephone Disclosure and Dispute Resolution Act (\"TDDRA”) was recently enacted, which is designed to \"protect the public interest and the future development of pay-per-call technology by providing for the regulation and oversight of the applications and growth of the pay-per-call industry.\" TDDRA, Pub.L. No. 102-556, 106 Stat. 4181 (preamble). TDDRA requires, among other things, both the FCC and the Federal Trade Commission to adopt regulations and make recommendations to Congress regarding interstate pay-per-call services. In a recently released notice, the FCC indicated that it was seeking comment on, inter alia, whether there should be \"a prohibition against carrier billing for any interstate collect calls that offer or initiate audiotext or simultaneous voice conversation programs, and whether such a prohibition is technically feasible.” In the Matter of Policies and Rules Implementing the Telephone Disclosure and Dispute Resolution Act, 8 FCC Red 2331 (available on WESTLAW FCOM-FCC database) 1993 FCC LEXIS 1562 (March 10, 1993).", "type": "majority", "author": "STEPHEN H. ANDERSON, Circuit Judge."}], "attorneys": ["Robert F. Brodegaard of Thacher Proffitt & Wood, New York City (Joel R. Dichter of Seham, Klein & Zelman, New York City and Robert F. Rowe, Jr., of McAnany, Van Cleave & Phillips, P.A., Lenexá, KS, with him on the briefs), for plaintiffs-appellants.", "H. Richard Juhnke of Sprint Co'rp., Kansas City, MO (Stephen R. Tatum and Denise M. Anderson, Sprint Corp., Kansas City, MO, James R. Wyrsch, Keith E. Drill, and Melissa Farley Sebree of Wyrsch Atwell Mirakian Lee & Hobbs, P.C., Kansas City, MO, with him on the brief), for defendants-appellees."], "corrections": "", "head_matter": "MICAL COMMUNICATIONS, INC.; Reflex Marketing, Inc.; Palace Communications, Inc., Plaintiffs-Appellants, v. SPRINT TELEMEDIA, INC., formerly known as Sprint Gateways, Inc.; United Telecommunications, Inc.; US Telecom, Inc., Defendants-Appellees.\nNo. 92-3096.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 23, 1993.\nRobert F. Brodegaard of Thacher Proffitt & Wood, New York City (Joel R. Dichter of Seham, Klein & Zelman, New York City and Robert F. Rowe, Jr., of McAnany, Van Cleave & Phillips, P.A., Lenexá, KS, with him on the briefs), for plaintiffs-appellants.\nH. Richard Juhnke of Sprint Co'rp., Kansas City, MO (Stephen R. Tatum and Denise M. Anderson, Sprint Corp., Kansas City, MO, James R. Wyrsch, Keith E. Drill, and Melissa Farley Sebree of Wyrsch Atwell Mirakian Lee & Hobbs, P.C., Kansas City, MO, with him on the brief), for defendants-appellees.\nBefore SEYMOUR, MOORE, and ANDERSON, Circuit Judges."} | SEYMOUR | MOORE | ANDERSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1031 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,131 | UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Allan Glenn GAITHER, Defendant-Appellee and Cross-Appellant | United States v. Gaither | 1993-07-23 | Nos. 92-3222, 92-3246 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Allan Glenn GAITHER, Defendant-Appellee and Cross-Appellant."], "opinions": [{"text": "BRORBY, Circuit Judge.\nMr. Allan Gaither pled guilty to uttering counterfeit $20 bills in violation of 18 U.S.C.A. § 472 (West 1988). The district court’s decision to depart from the Sentencing Guidelines based upon Mr. Gaither’s post-offense drug rehabilitation is appealed by the Government and Mr. Gaither cross-appeals the increase in his base offense level for manufacturing the bills.\nI. Background.\nMr. Gaither was arrested at a Wichita nightclub for passing counterfeit $20 bills. After his arrest, Mr. Gaither admitted to police that he manufactured and passed $660 worth of counterfeit $20 bills in the Wichita area during the preceding week. Pursuant to Mr. Gaither’s consent, police searched his house and discovered green colored paper, green dye, green marking pens, bowls used to mix the ink, and a clothes lines-used to dry the dyed bills.\nMr. Gaither pled guilty to uttering counterfeit Federal Reserve notes in violation of 18 U.S.C. § 472 (West 1988). In a written statement, Mr. Gaither explained that his drug and alcohol addiction motivated his counterfeiting. The presentence report confirms Mr. Gaither’s history of alcohol and drug abuse. After his arrest, Mr. Gaither was admitted to an inpatient drug rehabilitation program and successfully completed the program prior to sentencing.\nAt sentencing, the district court applied U.S.S.G. § 2B5.1 of the Sentencing Guidelines (1991), resulting in a base offense level of nine, and then increased it to fifteen under U.S.S.G. § 2B5.1(b)(2) for manufacturing counterfeit bills. The court then deducted two points for Mr. Gaither’s acceptance of responsibility under U.S.S.G. § 3E1.1 resulting in a sentencing range of fifteen to twenty-one months. The court departed from the Guidelines, however, and sentenced Mr. Gaither to twelve months in a halfway house, with the possibility of home detention after six months. The court’s reason for departure was based primarily upon Mr. Gaither’s drug rehabilitation.\nThe Government appeals, alleging the district court erred in departing from the Sentencing Guidelines on the basis of Mr. Gaither’s post-arrest drug rehabilitation. Mr. Gaither cross-appeals, alleging the district court erred in enhancing his offense level from nine to fifteen pursuant to U.S.S.G. § 2B5.1(b)(2).\nII. Departure From The Guidelines.\nA. Drug rehabilitation.\nThe question of whether post-offense drug rehabilitation is proper grounds for a departure from the Guidelines was addressed by this panel in United States v. Ziegler, 1 F.3d 1044 (10th Cir.1993). In Ziegler, we held that drug rehabilitation is not grounds for departure from the Guidelines. In reaching that result, we said a district court could consider a defendant’s drug rehabilitation in deciding whether to grant a downward adjustment of two offense levels for acceptance of responsibility under U.S.S.G. § 3E1.1 if the “defendant’s drug abuse problem is closely associated with his criminal conduct.” Ziegler, 1 F.3d at 1047. “Since post-arrest drug rehabilitation is a mitigating circumstance ‘of a kind ... adequately considered] by the Sentencing Commission in formulating the guidelines,’ it is generally not a proper basis for departure.” Id. at 1048, (quoting 18 U.S.C.A. § 3553(b) (West Supp.1993)). We further held that even if a defendant’s drug rehabilitation could be characterized as exceptional, it would still not be a proper basis for departing downwards. Id. at 1049. We adopt the reasoning in Ziegler' and find Mr. Gaither’s drug rehabilitation efforts were not grounds for departure.\nB. Other grounds for departure.\nMr. Gaither alleges the district court did not base its decision to depart solely upon drug rehabilitation, but also upon Mr. Gaither’s exceptional acceptance of responsibility and lack of sophistication in counterfeiting. The Government asserts the contrary. The district court stated its rationale for departure as follows:\n[Yjou have demonstrated to me about that which sentencing is about in part, and that is the rehabilitation, and it strikes me that since [your arrest] you have been a product of self-rehabilitation. The person I have just heard speak to me is certainly not the same person that was dealing with drugs or drug abuse or giving thoughts to manufacturing counterfeit bills to find the funds to support that abuse. I think I’m dealing with an entirely different person.\n... [This] is a departure from the sentencing guidelines, but seems to me one that is deserving in this case, given your own acceptance of not only responsibilities for what you did but the acceptance of the situation that gave rise to your involvement and the total rehabilitation, as I see it. I see absolutely no useful purpose whatsoever for you now to be required to spend time incarcerated at some prison facility.\nOur reading of the district court’s rationale shows the district court based the departure primarily, if not solely, upon Mr. Gaither’s rehabilitation. The district court saw Mr. Gaither’s crime as “an end product of drug abuse” and apparently based the departure upon Mr. Gaither’s rehabilitation from that dependency. The district court did make reference to Mr. Gaither’s “acceptance of ... responsibilities”, but it is unclear what weight that factor was given, if any.\nEven if we were to assume the district court based its decision in part upon Mr. Gaither’s acceptance of responsibility, we could not affirm the sentence for the following reasons. First, if a district court bases a decision to depart from the Guidelines upon an impermissible factor, as it did in this case, remand is appropriate unless this court concludes “the district court would have imposed the same sentence absent the erroneous factor.” Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992). The record does not support such a conclusion.\nSecond, a district court may depart downwards from the guidelines if it finds “ ‘there exists [a] ... mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’” U.S.S.G. § 5K2.0, p.s.; 18 U.S.C.A. § 3553(b) (West Supp.1993). Since a defendant’s acceptance of responsibility is expressly accounted for under U.S.S.G. § 3E1.1, it is not a basis for departure unless the district court finds the acceptance of responsibility to be so exceptional that it is “to a degree” not considered by U.S.S.G. § 3E1.1. See United States v. Smith, 930 F.2d 1450, 1454 (10th Cir.) cert. denied, — U.S. -, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991) (“Where ... departure is based on factors that are considered by the guidelines, the sentencing court cannot depart unless it finds that consideration to be inadequate in light of unusual circumstances.”); United States v. White, 893 F.2d 276, 278 (10th Cir.1990) (“When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.”) Such a finding by the district court, however, must be explained. Smith, 930 F.2d at 1454; see White, 893 F.2d at 278. In the present case, the district court elaborated upon why Mr. Gaither’s rehabilitative efforts were justification for departure, but failed to give any reason why his acceptance of responsibility was so exceptional or the circumstances so unusual as to make § 3E1.1 inadequate.\nFor the reasons stated above, we remand and instruct the district court to vacate the sentence imposed and resentence in accordance with this opinion.,\nIII. Application of § 2B5.1 of the Sentencing Guidelines.\nWe next address Mr. Gaither’s claim that the district court erred in elevating his base offense level to fifteen under U.S.S.G. § 2B5.1(b)(2). Section 2B5.1(b)(2) states that “[i]f the defendant manufactured or produced any counterfeit obligation or security of the United States, or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting, and the offense level as determined above is less than 15, increase to 15.” The district court enhanced Mr. Gaither’s offense level to fifteen, finding he had manufactured counterfeit documents. On appeal, a district court’s application of the sentencing guidelines to the ‘ facts is given due deference. United States v. Short, 947 F.2d 1445, 1456 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992).\nMr. Gaither bases his claim on Application Note 3 to § 2B5.T which states: “[Sjubsection (b)(2) does not apply to persons who merely photocopy notes or otherwise produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.” U.S.S.G. § 2B5.1, comment, (n. 3).\nMr. Gaither first argues that under Application Note 3, subsection (b)(2) should not apply since he merely photocopied the bills. Mr. Gaither claims the use of the conjunction “or,” after “merely photocopy notes,” supports his interpretation. The error in Mr. Gaither’s argument is that he did not “merely photocopy” the $20 bills; instead, the record shows he used ink to dye the photocopied bills in order to make them more realistic. Moreover, Mr. Gaither’s interpretation of Application Note 3 was expressly rejected by this Circuit in United States v. Bruning, 914 F.2d 212, 213 (10th Cir.) cert. denied, 498 U.S. 990, 111 S.Ct. 531, 112 L.Ed.2d 541 (1990), wherein we reasoned that “the defendant’s proposed reading ... would protect even the most successful counterfeiters from the enhanced penalties of subsection (b)(2) based solely on the method of production, photocopying.”\nMr. Gaither next argues his unsophisticated attempts at counterfeiting, as evidenced by the physical appearance of the counterfeit bills, should make Application Note 3 applicable. The district court found that although the counterfeit $20 bills were unsophisticated, “they did pass muster, $660.00 worth.” We agree with the district court.\nWe find it hard to reconcile the facts with Mr. Gaither’s claim. Mr. Gaither was able to spend thirty-three $20 bills at various establishments in the Wichita area before being arrested. While the counterfeit bills were apparently not of exceptional quality, they were also not “so obviously counterfeit that they [were] unlikely to be accepted.” U.S.S.G. § 2B5.1, comment, (n. 3).\nWe REVERSE and REMAND for resen-tencing.\n. Ziegler was argued on the same day as the present case and raised essentially the same issue.\n. The district court found Mr. Gaither's offense to be motivated by, and a result of, his drug abuse problem. (R.Vol. I, doc. 35 at 20, 29.) Mr. Gaither's drug dependency is, therefore, \"closely associated” with his crime. Our holding is in conflict with the Third Circuit which held a district court cannot consider drug rehabilitation as an indication of acceptance of responsibility unless the crime involved drugs, even if the crime was motivated by drug addiction. United States v. Pharr, 916 F.2d 129, 131-32 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991).\n. Section 3El.l(a) states: \"[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for- his criminal conduct, reduce the offense level by 2 levels.”\n. Mr. Gaither specifically notes that the counterfeit bills \"were missing borders, had the wrong color of ink, the ink was not as dark as that on a real bill, the printing details were not as detailed as on a real bill, and most of the counterfeit notes had the same serial number on them.”", "type": "majority", "author": "BRORBY, Circuit Judge."}], "attorneys": ["Kristina L. Ament (Lee Thompson, U.S. Atty., and Kim M. Fowler, Asst. U.S. Atty., Wichita, KS, with her on the brief), Dept, of Justice, Washington, DC for plaintiff-appellant and cross-appellee.", "Cyd Gilman, Asst. Federal Public Defender, Wichita, KS, for defendant-appellee and cross-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Allan Glenn GAITHER, Defendant-Appellee and Cross-Appellant.\nNos. 92-3222, 92-3246.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 23, 1993.\nKristina L. Ament (Lee Thompson, U.S. Atty., and Kim M. Fowler, Asst. U.S. Atty., Wichita, KS, with her on the brief), Dept, of Justice, Washington, DC for plaintiff-appellant and cross-appellee.\nCyd Gilman, Asst. Federal Public Defender, Wichita, KS, for defendant-appellee and cross-appellant.\nBefore BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges."} | BALDOCK | McWILLIAMS | BRORBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1040 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,165 | UNITED STATES of America, Plaintiff-Appellant, v. Maurice L. ZIEGLER, Defendant-Appellee | United States v. Ziegler | 1993-07-23 | No. 92-3242 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, v. Maurice L. ZIEGLER, Defendant-Appellee."], "opinions": [{"text": "BRORBY, Circuit Judge.\nMr. Maurice Ziegler pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. In determining Mr. Ziegler’s sentence under the Sentencing Guidelines, the district court departed downwards on the basis of Mr. Ziegler’s drug rehabilitation efforts. The Government appeals the departure and we reverse and remand for resen-tencing.\nI. Background\nOfficers obtained a warrant to search Mr. Maurice Ziegler’s property after receiving a tip that marijuana was being cultivated on the premises. As a result of the search, officers discovered 920 marijuana plants, paraphernalia for weighing and packaging marijuana, and several shotguns, rifles and revolvers.\nMr. Ziegler was indicted on two counts: (1) possession with the intent to distribute marijuana in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2; and (2) use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C.A. §§ 2 and 924(c)(1). Mr. Ziegler pled guilty to the first count and the second count was dismissed by the government in accordance with a plea agreement.\nOn February 28, 1992, the district court conducted a sentencing hearing in which it calculated the appropriate guideline range under the Sentencing Guidelines and in accordance therewith sentenced Mr. Ziegler to ninety-seven months in prison. During the hearing, the sentencing judge noted that ninety-seven months was the minimum sentence allowable under the Guidelines and grounds for a downward departure were not apparent; however, the judge stated that he would be “glad to hear any motion [to] reconsider” if raised before incarceration.\nMr. Ziegler filed a motion for reconsideration of his sentence, seeking a departure based primarily on his progress in drug rehabilitation. Specifically, Mr. Ziegler argued his crime arose out of his drug addiction and since he was released on bond, he had received drug counseling, remained drug free, and his prognosis for continued recovery was considered good by his counselor.\nUpon reconsideration, the district court granted Mr. Ziegler a downward departure, lowering his offense level from 30 to 26 and reducing his sentence from ninety-seven months to sixty-three months. 791 F.Supp. 843. Relying upon the presentence investigation report, the sentencing judge stated the following justification for the departure:\nIn the past, the defendant smoked approximately twenty marijuana cigarettes a day and had been using marijuana for almost twenty years. The court finds this is a significant substance abuse problem. When the defendant was released on bond after his initial arrest, he was referred to Recovery Road Treatment Center in Em-poria, Kansas, for urinalysis surveillance and counseling. The defendant satisfactorily participated in counseling and became active in self-help support groups. In addition, and perhaps most importantly, the defendant did not have any positive urinalysis tests for any substance abuse.\nThe court finds that these efforts by the defendant were unusual enough to merit departure. The court further finds that the defendant’s presentence rehabilitative efforts and progress are significant, and far exceed ordinary expectations. Given the extent and duration of the defendant’s abuse problem, the rehabilitation efforts are quite remarkable. The court also finds that his efforts exceeded the scope of pre-sentence rehabilitation contemplated by the Sentencing Commissioners when they formulated guideline section 3E1.1, “Acceptance of Responsibility.”\nThe only issue presented on appeal is “[wjhether the district court erred when, in addition to granting [a] reduction for acceptance of responsibility, it departed from the range prescribed by the Sentencing Guidelines on a finding of defendant’s extraordinary post-arrest efforts at drug rehabilitation.”\nII. Analysis\nThe Sentencing Reform Act allows a sentencing court to depart from the guidelines if “the [sentencing] court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C.A. § 3553(b) (West Supp.1993); see also U.S.S.G. § 5K2.0, p.s. (1991).\nIn reviewing a district court’s decision to depart from the sentencing range established under the guidelines, this court applies a three-step analysis. First, we “ ‘determine de novo whether the circumstances [cited by the district court] admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure.’ ” United States v. Bowser, 941 F.2d 1019, 1024 (10th Cir.1991) (quoting United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990)); see 18 U.S.C.A. § 3553(b) (West Supp.1993). Second, we review the district court’s factual findings supporting departure and determine whether they were clearly erroneous. United States v. Pena, 930 F.2d 1486, 1494 (10th Cir.1991); see 18 U.S.C.A. § 3742(e) (West Supp.1993). Third, if the departure was justified, we review the degree of departure to determine whether it was reasonable. Id.; see 18 U.S.C.A. § 3742(e)(3) (West Supp.1993).\nA. Rehabilitation adequately considered in Guidelines.\nThe government contends that post-offense, drug rehabilitation is specifically considered in the guidelines and therefore, the district court relied upon improper grounds for departure. This is an issue which has split the circuits. A majority of circuits apparently hold that drug rehabilitation is not grounds for departure, thus removing a sentencing court’s discretion on the matter. United States v. Desormeaux, 952 F.2d 182, 185-86 (8th Cir.1991); United States v. Bruder, 945 F.2d 167, 172-73 (7th Cir.1991); United States v. Martin, 938 F.2d 162, 163-64 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992); United States v. Pharr, 916 F.2d 129, 132-33 (3rd. Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991); United States v. Van Dyke, 895 F.2d 984, 987 (4th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 112, 112 L.Ed.2d 82 (1990). Three circuits hold that drug rehabilitation is grounds for departure, but only in extraordinary and rare circumstances. United States v. Williams, 948 F.2d 706, 708-11. (11th Cir.1991); United States v. Harrington, 947 F.2d 956, 962 (D.C.Cir.1991); United States v. Sklar, 920 F.2d 107, 115-17 (1st Cir.1990). Finally, two circuits hold that drug rehabilitation is grounds for departure. United States v. Maier, 975 F.2d 944, 946-49 (2d Cir.1992); United States v. Maddalena, 893 F.2d 815, 818 (6th Cir.1989). This is a question of first impression in the Tenth Circuit.\nUnder the first step of the three-part analysis, we hold drug rehabilitation is taken into account for sentencing purposes under U.S.S.G. § 3E1.1 (1991) and, therefore, rehabilitation is generally an improper basis for departure. Section 3E1.1 allows the sentencing court to reduce a defendant’s base offense level by two levels “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” If a defendant’s drug abuse problem is closely associated with his criminal conduct, then satisfactory progress in drug rehabilitation may be considered by a district court in deciding whether the defendant has accepted personal responsibility for his crimes.\nLanguage in the commentary to § 3E1.1 supports our conclusion. The commentary contains a nonexhaustive list of actions which, if taken by the defendant, demonstrate acceptance of responsibility. Listed actions include “voluntary termination or withdrawal from criminal conduct or associations” and “voluntary and truthful admission to authorities of involvement in the offense and related conduct.” The Commentary states the sentencing court may rely upon any of the listed actions “or some equivalent action” in reducing the offense level by two. U.S.S.G. § 3E1.1, comment, (backg’d). While post-offense drug rehabilitation may not fall clearly within one of the listed actions, it is the type of “equivalent action” encompassed by § 3E1.1.\nWilling and fruitful participation in a drug rehabilitation program indicates a defendant’s recognition of his or her drug abuse problem. Because drug dependency is often the undei’lying motivation for criminal behavior, rehabilitation may be an attempt by many defendants to withdrawal from further criminal conduct. Moreover, drug rehabilitation often involves a truthful admission of conduct related to the offense. For these reasons, post-offense drug rehabilitation may appropriately be considered by a sentencing court in determining whether a defendant accepted personal responsibility for the crime. See Desormeaux, 952 F.2d at 185-86; Harrington, 947 F.2d at 962-63; Bruder, 945 F.2d at 172-73; Sklar, 920 F.2d at 115-16; Van Dyke, 895 F.2d at 987.\nOur conclusion is consistent with the most recent version of the Sentencing Guidelines in which the commentary to § 3E1.1 was amended to state that “post-offense rehabilitative efforts {e.g., counseling or drug-treatment)” are an appropriate consideration in determining whether the defendant accepted responsibility for the offense. U.S.S.G. § 3E1.1, comment, (n. 1 (g)) (1992). The 1992 Guidelines are generally not applicable in this case because their effective date is subsequent to Mr. Ziegler’s sentencing date. See 18 U.S.C. §§ 3353(a)(4) and (5) (in determining sentence, the court shall consider the sentencing range and policy statements in effect on date of sentencing). If an amendment to Guideline commentary is merely clarifying and not substantive, however, the amendment is often considered in discerning the Sentencing Commission’s intent as to the pre-amended Guideline. United States v. Voss, 956 F.2d 1007, 1011 (10th Cir.1992); United States v. Saucedo, 950 F.2d 1508, 1514 (10th Cir.1991). It is unnecessary for us to determine whether this amendment constitutes a clarification or substantive change as our decision is not predicated upon the amendment; instead, we simply note our conclusion is consistent with the 1992 Sentencing Guidelines. See United States v. Smith, 951 F.2d 1164, 1168 (10th Cir.1991) (new commentary to Guidelines § 2F1.1 was not the law in effect, but was referred to in order to buttress court’s interpretation of § 2F1.1).\nB. Rehabilitation is not grounds for departure.\nSince post-arrest drug rehabilitation is a mitigating circumstance “of a kind ... adequately considered] by the Sentencing Commission in formulating the guidelines,” it is generally not a proper basis for departure. 18 U.S.C. § 3553(b) (West Supp. 1993). However, § 3553 also allows for departures based upon mitigating circumstances which are of a “degree” not considered by the Guidelines. United States v. Smith, 930 F.2d 1450, 1452, 1454 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); see also U.S.S.G. § 5K2.0, p.s. (“the court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines {e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate”). It is upon these grounds that several circuits have carved a narrow exception allowing a sentencing court to depart downward on the basis of drug rehabilitation deemed to be extraordinary or exceptional. Williams, 948 F.2d at 709; Harrington, 947 F.2d at 962; Sklar, 920 F.2d at 116. We do not agree, and instead adopt the position taken by the majority of circuits in holding that drug rehabilitation is not grounds for departure.\nCongress directed the Sentencing Commission, not the courts, to consider whether certain personal characteristics of the defendant should be relevant to sentencing. 28 U.S.C. § 994(d) (West Supp.Pamp.1993). Section 994(d) contains a nonexhaustive list of factors for the Sentencing Commission to consider, one of which is a defendant’s “physical condition, including drug dependence.” In setting forth the duties of the Sentencing Commission, Congress stated that “[t]he Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.” 28 U.S.C. § 994(e) (West Supp.Pamp.1993).\nThe Sentencing Commission determined that characteristics relating to a defendant’s criminal history and culpability were relevant to sentencing, but characteristics purely personal in nature were not relevant. See generally, U.S.S.G. Ch. 5, Pt. H. Each guideline carves out a “heartland” representing typical eases involving the criminal conduct specified in the guideline, but sentencing courts retain the discretion to depart in atypical cases. 18 U.S.C. § 3553(b) (1988); U.S.S.G. Ch. 1, Pt. A(4)(b), intro.\nThe Sentencing Commission, however, found several factors to be an impermissible basis for departure. See U.S.S.G. Ch. 1, Pt. A(4)(b). One such factor states that “[d]rug or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines.” U.S.S.G. § 5H1.4 (1991). Although § 5H1.4 explicitly refers to drug dependence, not drug rehabilitation, we interpret this section as encompassing both phenomena because drug rehabilitation necessarily presupposes drug dependence. Section 5H1.4 is indicative of the Sentencing Commission’s desire not to reward drug dependency through departures, and in our view, a downward departure based upon drug rehabilitation would do just that. A departure based upon drug rehabilitation rewards drug dependency because only a defendant with a drug abuse problem is eligible for the departure. For this reason, we hold the Guidelines do not contemplate drug rehabilitation as a grounds for departure even in rare circumstances.\nOur conclusion is consistent with the Third and Ninth Circuits. In Pharr, 916 F.2d at 133, the Third Circuit “read policy statement 5H1.4 to mean that dependence upon drugs, or separation from such a dependency, is not a proper basis for a downward departure from the guidelines.” In reaching the same result, the Ninth Circuit stated a defendant “could not ... achieve[ ] ‘independence’ without ‘dependence.’ ” Martin, 938 F.2d at 164. But see Williams, 948 F.2d at 710 (“[sjection 5H1.4 does not prohibit downward departure based on recoveries; it merely prohibits downward departures on the basis of a defendant’s theoretical[ly] diminished capacity because of his drug dependence”).\nSection 5H1.4 is similar to other factors which the Sentencing Commission rejected as a basis for departure. For example, §§ 5H1.2 and 5H1.5 prohibit a court from departing based on an individual’s effort to improve himself by education or steady employment. Similarly, we interpret § 5H1.4 as encompassing a defendant’s efforts to improve himself through drug rehabilitation. Pharr, 916 F.2d at 133.\nOur holding is in accordance with the Congressional goal of uniformity in sentencing. See 18 U.S.C. § 3553(a)(6) (West Supp.1993) (“the need to avoid unwarranted sentence disparities among defendant’s with similar records who have been found guilty of similar conduct”); United States v. Jackson, 921 F.2d 985, 989 (10th Cir.1990) (departures should be rare because Congress set uniformity as a goal of the Guidelines). Departures based upon drug rehabilitation undermine this goal. To allow departure for a defendant who seeks rehabilitation for a drug addiction, yet disallow an equal departure for a similarly situated defendant convicted of the same crime but who did not have a drug addiction, is contrary to uniformity. As the Ninth Circuit stated in Martin, to allow departure would\nreward those defendants with a drug problem who are ordered to participate in a drug treatment program as a condition of pretrial release. This would unduly credit those defendants who comply with one type of condition (to stay drug free), to the detriment of similarly situated defendants who also comply with all conditions of their pretrial release but who have no drug-problem to treat.\nMartin, 938 F.2d at 164.\nIn application, our decision is not significantly different from the minority view which theoretically allows drug rehabilitation as a basis for departure, but tailors the exception so narrowly that it rarely, if ever, is applicable. See, e.g., Harrington, 947 F.2d at 962 (“ ‘on rare occasion’ a [departure] might be in order, ‘but only when and if the rehabilitation is “so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.” ’ ”); Sklar, 920 F.2d at 116 (“departures for rehabilitation are likely to be few and far between”).\nMr. Ziegler alleges there were other mitigating factors in his case which, in combination, justify a downward departure. It is clear, however, that the district court based its decision to depart solely upon Mr. Ziegler’s drug rehabilitation efforts and not upon the other circumstances alleged by Mr. Ziegler. The district court must “explicitly set forth the considerations that motivate its decision to depart ... from the Guidelines [and] we will not speculate as to what those considerations may have been.” United States v. White, 893 F.2d 276, 278 (10th Cir.1990).\nWhile drug rehabilitation is a commendable personal achievement, it is not grounds for departure from the Sentencing Guidelines. Drug rehabilitation may be considered by a district court in determining whether a defendant is eligible for a two offense level reduction for acceptance of responsibility, and may be considered in determining the appropriate sentence within the applicable Guideline range. We REMAND and instruct the district court to vacate the sentence imposed and to resentence in accordance with this opinion.\n. The government initially alleged 1,547 marijuana plants and Mr. Ziegler challenged the quantity's accuracy. At a sentencing hearing, the district court determined that 920 marijuana plants were actually discovered by police at Mr. Ziegler's property.\n. Specifically, U.S.S.G. § 3E1.1, comment, (n. 1) states:\nIn determining whether a defendant qualifies for this provision, appropriate considerations include, but are not limited to, the following:\n(a) voluntary termination or withdrawal from criminal conduct or associations;\n(b) voluntary payment of restitution prior to adjudication of guilt;\n(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;\n(d) voluntary surrender to authorities promptly after commission of the offense;\n(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;\n(f) voluntary resignation from the office or position held during the commission of the offense; and\n(g) the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.\n. In apparent contrast, Congress has instructed courts to consider \"the history and characteristics of the defendant” when imposing a sentence. 18 U.S.C. § 3553(a) (West Supp.1993).\n. We note that the goal of uniformity in sentencing was not persuasive in our initial interpretation of the Guidelines, but we believe a reasonable interpretation of the Guidelines is buttressed when it conforms to this Sentencing Guideline goal.", "type": "majority", "author": "BRORBY, Circuit Judge."}], "attorneys": ["Kristina L. Ament (Lee Thompson, U.S. Atty., and Gregory C. Hough, Asst. U.S. Atty., Wichita, KS, with her on the brief), Dept, of Justice, Washington, DC, for plaintiff-appellant.", "Don W. Lili, Emporia, KS, for defendant-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, v. Maurice L. ZIEGLER, Defendant-Appellee.\nNo. 92-3242.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 23, 1993.\nKristina L. Ament (Lee Thompson, U.S. Atty., and Gregory C. Hough, Asst. U.S. Atty., Wichita, KS, with her on the brief), Dept, of Justice, Washington, DC, for plaintiff-appellant.\nDon W. Lili, Emporia, KS, for defendant-appellee.\nBefore BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges."} | BALDOCK | McWILLIAMS | BRORBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1044 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,190 | In re Ginger Lea MARCUS, Debtor. Ginger Lea MARCUS, Appellant, v. Sally J. ZEMAN, Chapter 13 Trustee; M. Stephen Peters, Chapter 7 Trustee, Appellees | Marcus v. Zeman | 1993-07-26 | No. 92-1180 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR and TACHA, Circuit Judges, and ROGERS, Senior District Judge."], "parties": ["In re Ginger Lea MARCUS, Debtor. Ginger Lea MARCUS, Appellant, v. Sally J. ZEMAN, Chapter 13 Trustee; M. Stephen Peters, Chapter 7 Trustee, Appellees."], "opinions": [{"text": "TACHA, Circuit Judge.\nThis is an appeal from a decision of the district court affirming a bankruptcy court order sustaining the Chapter 7 trustee’s objection to a claimed exemption. See Marcus v. Zeman (In re Marcus), 140 B.R. 803, 806 (D.Colo.1992). In affirming the bankruptcy court, the district court held that the law in effect as of the date of conversion from Chapter 13 to Chapter 7, rather than the original filing date, determines whether an exemption will be available. Id.\nDebtor Ginger Lea Marcus filed her original Chapter 13 bankruptcy petition on December 20, 1988. At that time, she claimed an exemption for portions of her Individual Retirement Accounts pursuant to Colorado law. During the pendency of the Chapter 13 proceeding, however, a Colorado bankruptcy court held the IRA exemption statute was unconstitutional, presumably extinguishing the exemption. See In re Mata, 115 B.R. 288, 291-92 (D.Colo.1990). As a consequence, when debtor converted the ease to Chapter 7, the trustee filed an objection, arguing she could no longer claim an exemption in the IRAs.\nThe bankruptcy court appropriately identified the issue presented as “whether, when a debtor converts a case from a Chapter 13 to one under Chapter 7, the date of conversion determines the date for claiming exemptions or whether the date of the original filing of the Chapter 13 petition controls.” In re Marcus, 128 B.R. 294, 295 (D.Colo.1991). The only circuit court to address this issue held, as did the district court here, that the date of conversion controls. Armstrong v. Lindberg (In re Lindberg), 735 F.2d 1087, 1088 (8th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 566, 83 L.Ed.2d 507 (1984). Two bankruptcy courts have specifically rejected this approach in situations substantially similar to those presented here. See In re Schoonover, 147 B.R. 430, 432-33 (S.D.Ohio 1992); In re Stroble, 127 B.R. 372, 374 (W.D.Va.1991).\nWe begin our analysis by examining the applicable statutory scheme. See United States v. State of Colorado, 990 F.2d 1565, 1575 (10th Cir.1993) (in case of statutory construction, starting point is statutory language). Section 522 of title 11 governs exemptions generally. That statute defines exempt property as any that is “exempt under ... State or local law that is applicable on the date of the filing of the petition.\" 11 U.S.C. § 522(b)(2)(A) (emphasis added). Code § 348(a) is also applicable here. It provides that conversion from one chapter to another does not alter the filing date of the original petition. When read together, these two code provisions require a determination that the law applicable at the date of filing controls exemptions.\nWe recognize this conclusion might appear to conflict with the position which the Eighth Circuit adopted in Lindberg. In that case, however, there was not a change in the law applicable to exemptions. Rather, the debtors sought to change their exemption upon conversion based on a change in circumstances. They wanted to change their homestead exemption because they moved to a different piece of property post-filing but pre-conversion. 735 F.2d at 1088. Thus, the facts, but not the applicable law, were different. The new property had a greater value, which they sought to preserve through a change in the exemption. Id.\nThe Lindberg court was not required to address the consequences of a change in the law between filing and conversion. Where, as here, the law, rather than the facts, has changed, the plain language of the statutes dictates the result. See In re Schoonover, 147 B.R. at 432 (“Where, as here, a statutory scheme is coherent and consistent, there is generally no need for the court to inquire beyond the plain language of the statute.”). We hold that the law in effect on the date of filing controls what exemptions will be available to a debtor converting from Chapter 13 to Chapter 7.\nThe judgment of the United States District Court for the District of Colorado is REVERSED. The case shall be REMANDED to the district court for further proceedings consistent with this opinion.\n. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.\n. In November of 1991, this court addressed the constitutionality of the Colorado statute in a footnote, rejecting the rationale of In re Mata. See Kulp v. Zeman (In re Kulp), 949 F.2d 1106, 1109 n. 3 (10th Cir.1991). Debtor did not raise this issue in the district court or here, however. Therefore, we consider it waived. Moreover, our disposition obviates the need to consider this issue.", "type": "majority", "author": "TACHA, Circuit Judge."}], "attorneys": ["John A. Cimino, P.C., Denver, CO, for appellant.", "M. Stephen Peters, Wheat Ridge, CO, for appellee M. Stephen Peters."], "corrections": "", "head_matter": "In re Ginger Lea MARCUS, Debtor. Ginger Lea MARCUS, Appellant, v. Sally J. ZEMAN, Chapter 13 Trustee; M. Stephen Peters, Chapter 7 Trustee, Appellees.\nNo. 92-1180.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 26, 1993.\nJohn A. Cimino, P.C., Denver, CO, for appellant.\nM. Stephen Peters, Wheat Ridge, CO, for appellee M. Stephen Peters.\nBefore SEYMOUR and TACHA, Circuit Judges, and ROGERS, Senior District Judge.\nHonorable Richard D. Rogers, United States District Judge for the District of Kansas, sitting by designation."} | SEYMOUR | TACHA | ROGERS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1050 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,229 | WESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY RESERVATION; Edwards, McCoy & Kennedy, P.C., Plaintiffs-Appellants, v. Bruce E. BABBITT, Secretary of the United States Department of the Interior, Defendant-Appellee | Western Shoshone Business Council ex rel. Western Shoshone Tribe of the Duck Valley Reservation v. Babbitt | 1993-07-27 | No. 92-4062 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before LOGAN, RONEY and SEYMOUR, Circuit Judges."], "parties": ["WESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY RESERVATION; Edwards, McCoy & Kennedy, P.C., Plaintiffs-Appellants, v. Bruce E. BABBITT, Secretary of the United States Department of the Interior, Defendant-Appellee."], "opinions": [{"text": "LOGAN, Circuit Judge.\nPlaintiffs, the Western Shoshone Business Council (Council), suing for and on behalf of the Western Shoshone Tribe of the Duck Valley Reservation (Western Shoshones), and the law firm Edwards, McCoy & Kennedy (EM & K), appeal the decision of the district court granting defendant Secretary of the Interior’s motion to dismiss and denying plaintiffs’ motions for leave to file an amended complaint.\nIn 1989, the Council approved a contract with EM & K for legal services and submitted it to the Acting Area Director of the Bureau of Indian Affairs (BIA) for approval, pursuant to 25 U.S.C. § 81. The Acting Area Director determined that because the Western Shoshones did not appear on a list of. federally recognized tribes, see 53 Fed. Reg. 52,829-02 (1988), the contract was between private parties and did not inquire BIA approval. This decision was later affirmed by the Interior Board of Indian Appeals (IBIA). Edwards, McCoy & Kennedy v. Acting Phoenix Area Director, 18 I.B.I.A. 454 (1990).\nPlaintiffs then brought this action in district court seeking declaratory and injunctive relief setting aside defendant’s refusal to review the contract and holding that the Western Shoshones are a federally recognized Indian tribe. The district court concluded that because they could pursue a procedure for becoming federally recognized, see 25 C.F.R. pt. 83, plaintiffs had failed to exhaust their administrative remedies and jurisdiction was therefore lacking.\nThe district court’s determination regarding jurisdiction is a legal one, which we review de novo. Boise City Fanners Cooperative v. Palmer, 780 F.2d 860, 866 (10th Cir.1985). We are free to affirm a district court’s decision on any grounds for which there is a record sufficient to support conclusions of law. Medina v. City & County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992).\nI\nUnder the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Id. § 704. The regulations regarding appeals from BIA decisions provide that a decision made by an Area Director may be appealed to the IBIA, 25 C.F.R. § 2.4(e), and that the IBIA is the final authority for the Department of the Interior on administrative actions by BIA officials. 43 C.F.R. § 4.1(b)(2)(i). Plaintiffs pursued their appeal of defendant’s refusal to review their contract to the highest authority available to them within the Department of the Interior. Plaintiffs were not required to pursue any other administrative avenue before seeking judicial review of defendant’s decision. For purposes of the APA, the IBIA decision was final agency action. That is only the first step, however, in our jurisdictional analysis.\nII\nWe turn next to whether plaintiffs have standing to bring this appeal. Plaintiffs must meet both the constitutional requirements subsumed by the Article III “case or controversy” limitation on judicial power and the judicially created prudential requirements under the APA. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).\nThe Supreme Court has summarized the constitutional limitations on standing as follows:\n[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.\nValley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quotations and citations omitted).\nUnder § 702 of the Administrative Procedure Act, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Thus, a plaintiff claiming a right to sue under the APA must “identify some ‘agency action’ that affects him in the specified fashion; it is judicial review ‘thereof to which he is entitled.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). Then the prospective plaintiff must show that this agency action has caused him to suffer “legal wrong,” or that he is “adversely affected or aggrieved” by that action. Id. at 883, 110 S.Ct. at 3186. Because a determination that a plaintiff has suffered legal wrong as the result of agency action goes to the merits, courts have focused on adverse effect or aggrievement in ascertaining standing under the APA.\nAdverse effect or aggrievement, in turn, has been interpreted as requiring a plaintiff to show that “the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Data Processing, 397 U.S. at 153, 90 S.Ct. at 829; see also Lujan, 497 U.S. at 883, 110 S.Ct. at 3186; Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 396, 107 S.Ct. 750, 755, 93 L.Ed.2d 757 (1987).\nA\nAlthough EM & K has an interest that is arguably threatened by defendant’s refusal to review its contract with the Council, it is clear that EM & K does not fall within the zone of interests protected or regulated under 25 U.S.C. § 81. EM & K focuses on a portion of the Supreme Court’s explanation of the zone of interests test in Clarke, that “there need be no indication of congressional purpose to benefit the would-be plaintiff,” 479 U.S. at 399-400, 107 S.Ct. at 757, and reasons that because its right to contract with the Council is regulated under § 81 it is thereby entitled to challenge defendant’s action. We are more persuaded by the unequivocal limitation on standing immediately preceding the above-quoted language: “[TJhe test denies a right of review if the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” 479 U.S. at 399, 107 S.Ct. at 757.\nIt is well settled that § 81 was “intended to protect the Indians from improvident and unconscionable contracts.” In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). Several courts have, on this basis, denied standing to challenge BIA decisions under § 81 to the non-Indian contracting party. See, e.g., Schmit v. International Finance Management Co., 980 F.2d 498 (8th Cir.1992) (per curiam); Enterprise Management Consultants, Inc. v. United States ex rel. Hodel, 685 F.Supp. 221, 223 (W.D.Okla.1988) (“plaintiff is not even arguably within the ‘zone of interest’ to be protected by [§ 81]”), aff'd on other grounds, 883 F.2d 890 (10th Cir.1989); United States ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Mgmt Co., 616 F.Supp. 1200, 1208 (D.Minn.1985) (“The potential economic interest of nonlndians in a contractual relationship with a tribe is not within the intended purview of the statute.”), appeal dismissed, 789 F.2d 632 (8th Cir. 1986). We agree with the reasoning behind these decisions. Of course plaintiff EM & K is “regulated” by § 81, but the undisputed purpose of the statute is to protect tribal lands, not to regulate lawyers specifically, or to create either an administrative right of review or a contract cause of action for non-Indian contractors. Given the overtly paternalistic cast of § 81, we conclude that “it cannot reasonably be assumed that Congress intended to permit the suit,” Clarke, 479 U.S. at 399, 107 S.Ct. at 757, by non-Indian contractors.\nPlaintiff EM & K does not have standing under the APA to bring this action.\nB\nInsofar as defendant’s refusal to review the contract between the Council and EM & K casts a cloud over their transaction and prevents the Council from obtaining the legal services it desires, the Council can show injury in fact, traceable to defendant’s action and redressable by a favorable ruling. Nevertheless, we hold that the Council is not within the zone of interests protected or regulated by § 81. By its terms, § 81 covers only those contracts “made by any person with any tribe of Indians, or individual Indians not citizens of the United States.” This contract does not involve noncitizen individual Indians. Therefore, § 81 will apply only if the Tribe is a “tribe of Indians” within the meaning of the statute.\nHistorically, the federal government has treated a tribe as “recognized” if Congress or the President has created a reservation for the group and the United States has a continuing political relationship with the group. Felix S. Cohen, Handbook of Federal Indian Law 6 (1982). When the tribal status of a group of Indians has been in doubt, the courts have turned to the particular statutory scheme in question to ascertain the rights and responsibilities of the government and the tribe. Id. at 7. Thus, a tribe might be recognized for some purposes and not for others. Id. For example, under the Indian Nonintercourse Act, 25 U.S.C. § 177, which, like 25 U.S.C. § 81 refers to any “tribe of Indians,” the Supreme Court has held that explicit recognition is not required if the group satisfies the general test of tribal status laid out in Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901). That decision defines a tribe as “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.” See United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926). See also Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 n. 8 (1st Cir.1975).\nThe Western Shoshones argue that by this standard they are a recognized tribe for purposes of 25 U.S.C. § 81. Although they may at one time have been correct in this contention, we conclude that the limited circumstances under which ad hoc judicial determinations of recognition were appropriate have been eclipsed by federal regulation. In 1978, the Department of Interior promulgated regulations establishing “procedures for establishing that an American Indian group exists as an Indian tribe.” 25 C.F.R. pt. 83; see 25 U.S.C. §§ la, 2. The express purpose of these regulations is\nto establish a departmental procedure and policy for acknowledging that certain American Indian tribes exist. Such ac-knowledgement of tribal existence by the Department is a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes. Such acknowledgement shall also mean that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their status as Indian tribes as well as the responsibilities and obligations of such tribes.\n25 C.F.R. § 83.2. The regulations obligated the Department of the Interior to contact all Indian groups in the continental United States known to it who had not previously been recognized and inform them of the opportunity to obtain recognition. Id. § 83.-6(a). The Department is further required to publish and update a list of all Indian tribes that are recognized and receiving services from the BIA. The Western Shoshones do not appear on the most recent version of that list, 53 Fed.Reg. 52,829-02 (1988).\nThe judiciary has historically deferred to executive and legislative determinations of tribal recognition. See United States v. Rickeii, 188 U.S. 432, 445, 23 S.Ct. 478, 483, 47 L.Ed. 532 (1903); United States v. Holliday, 70 U.S. (3 Wall.) 407, 419, 18 L.Ed. 182 (1865). Although this deference was originally grounded in the executive’s exclusive power to govern relations with foreign governments, broad congressional power over Indian affairs justifies its continuation. We therefore conclude that the. Tribe’s absence from this list is dispositive. See Edwards, McCoy & Kennedy, 18 I.B.I.A. at 457 (25 C.F.R. pt. 83 procedures “are binding on the Department of the Interior as to which Indian entities may be considered Indian tribes under statutes and regulations which do not define the term ‘Indian tribe.’ ”).\nPlaintiffs’ arguments to the contrary are not persuasive. They cite several cases for the proposition that a tribe may not be included on the list of federally recognized tribes and yet still be recognized for purposes of 25 U.S.C. § 81. Many of these cases, however, address the status of Indian groups in Alaska and Hawaii, to which the acknowledgement procedures of 25 C.F.R. § 83 specifically do not apply. Id. § 83.3(a). See Native Village of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir.1992) (applying tribal status tests of United States v. Sandoval, 231 U.S. 28, 46-47, 34 S.Ct. 1, 5-6, 58 L.Ed. 107 (1913) and Montoya, 180 U.S. at 266, 21 S.Ct. at 359, to Alaskan Native village); Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir.1990) (recognizing Alaskan Native village organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479, for purposes of jurisdiction under 28 U.S.C. § 1362), rev’d on other grounds, 498 U.S. 807, 111 S.Ct. 37, 112 L.Ed.2d 14 (1990); Price v. Hawaii, 764 F.2d 623, 626-29 (9th Cir.1985) (using regulations regarding ac-knowledgement, as well as other factors, for guidance in determining tribal status of native Hawaiian body), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986). Other relatively recent cases in which courts did not defer to the Department’s acknowl-edgement procedures either predate the regulations entirely, see Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975), or were decided only shortly after the regulations were promulgated, see Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 (1st Cir.1979) (“the Department does not yet have prescribed procedures and has not been called on to develop special expertise in distinguishing tribes from other groups of Indians”).\nWe are strongly persuaded by a similar case, James v. United States Dep’t of Health & Human Services, 824 F.2d 1132 (D.C.Cir.1987). James involved an intra-tribal rivalry between two factions of the Gay Head Indians of Martha’s Vineyard, Massachusetts, which had not been recognized as a tribe when the acknowledgement regulations were first promulgated. One faction, the Widdis group, followed the acknowledgement procedures, filed a petition with the Department of Interior, and was recognized in 1987. The other faction, the James group, contended that the Gay Head Indians had been recognized at least since the nineteenth century and therefore sought a court order placing the tribe on the Department of Interior’s list of recognized tribes. The D.C. Circuit refused to pass on whether the evidence of historical recognition presented by the James group supported their claim. It reasoned that Congress has specifically authorized the Executive .Branch to regulate Indian affairs, and that the Department of the Interior has developed procedures expressly for determinations of tribal status. “That purpose would be frustrated if the Judicial Branch made initial determinations of whether groups have been recognized previously or whether conditions for recognition currently exist.” Id. at 1137. The court further took note of the Mashpee decision and observed that the Department has been implementing these regulations for several years and now has the necessary expertise to make tribal status determinations in the first instance. Id. at 1138.\nBecause the Western Shoshones do not appear on the Department of Interior’s list of recognized tribes, the Council is not within the zone of interests of § 81 and does not have standing to bring this suit.\nIll\nPlaintiffs have asserted various other bases for jurisdiction under which they might also have standing, which we address briefly. They claim that jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346(a)(2) (United States as a defendant), 28 U.S.C. § 1361 (mandamus), and 28 U.S.C. § 1362 (actions by Indian Tribes).\nFor this court to exercise federal question jurisdiction under 28 U.S.C. § 1331, there must be a constitutional or federal statutory provision under which plaintiffs are aggrieved. See Gully v. First Nat’l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (“To bring a case within [§ 1331], a right or immunity created by the Constitution or laws of the United.States must be an element, and an essential one, of the plaintiffs cause of action.”). Although plaintiffs maintain that their complaint stems from the contract approval procedure of 25 U.S.C. § 81, we have already held plaintiffs are not within the compass of that statute for judicial redress until there is a determination of their status under the regulations governing tribal recognition. That section 81 authorizes suits in the name of the United States to recover sums paid under contracts which do not comply with its provisions does not amount to “arising under” jurisdiction for all complaints involving this section. See, e.g., Gila River Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); Mescalero Apache Tribe v. Martinez, 519 F.2d 479, 481-82 (10th Cir.1975).\nPlaintiffs invoke 28 U.S.C. § 1362, which specifically grants district courts jurisdiction in federal question cases brought by Indian tribes. Although § 1362 clearly removed some jurisdictional impediments for Indian tribes, see Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 472-73, 96 S.Ct. 1634, 1640-41, 48 L.Ed.2d 96 (1976), it did not eliminate the requirement that there be a statutory or constitutional underpinning for the cause of action. See Gila River, 626 F.2d at 714 (“Congress used ‘arising under’ language in section 1362 that is identical to that contained in section 1331.”); see also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 682 n. 16, 94 S.Ct. 772, 784 n. 16, 39 L.Ed.2d 73 (1974) (declining to find § 1362 broader than § 1331). For the same reasons that plaintiffs cannot bring this action under § 1331, they also cannot assert jurisdiction under § 1362.\nSection 1346 of Title 28 grants jurisdiction over certain suits against the United States to the district courts. However, it does not waive the government’s sovereign immunity. It is well settled that the United States and its employees, sued in their official capacities, are immune from suit unless sovereign immunity has been waived. Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989). Plaintiffs do not allege to any express waiver of immunity in this case.\nPlaintiffs also seek a writ of mandamus under 28 U.S.C. § 1361. Mandamus is a drastic remedy, available only in extraordinary circumstances. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 5.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980). Furthermore, the writ is not available when review by other means is possible. Ketr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Because review is possible under the APA after plaintiffs have followed the procedures of 25 C.F.R. pt. 83, mandamus is not available.\nIV\nWe turn now to plaintiffs’ contention that the district court should have granted them leave to amend their complaint. After final judgment was entered, plaintiffs sought to amend their complaint to require the Secretary of the Interior to place the Western Shoshones on the list of recognized tribes, and to add an individual Indian plaintiff and allege a claim under 25 U.S.C. § 85. Once final judgment is entered, plaintiffs must seek leave of the court to file an amended complaint. Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir.1985). We review the district court’s denial of such leave for an abuse of discretion. Stichting Mayflower Recreational Fonds v. Newpark Resources, Inc., 917 F.2d 1239, 1249 (10th Cir.1990).\nThe district court struck the amended complaint, concluding that 25 U.S.C. § 85 would not provide relief when the contract in question obligated only the tribe and not any individual Indian. It further observed that requiring the Secretary to place the Western Shoshones on the list of recognized tribes simply restated the issues contained in the original complaint and would not cure the complaint’s defects. We agree with these conclusions. The district court did not abuse its discretion in denying the amendment.\nAFFIRMED.\n. In pertinent part, 25 U.S.C. § 81 provides:\nNo agreement shall be made by any person with any tribe of Indians ... for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands ... unless such contract or agreement be executed an approved as follows:\nSecond. It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it.\nSection 81 docs not contain a definition of \"tribe of Indians.\"\n. The Shoshone-Paiute Tribes of the Duck Valley Reservation is on the list of recognized tribes and receives services and benefits from the BIA. The Shoshone-Paiute Tribes is a confederation of the Western Shoshones and the Paddy Cap Band of Paiutes, who have resided together in the Duck Valley region for over one hundred years. It is organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479, with a constitution and bylaws approved by the Secretary of the Interior.\n. In keeping with the recent Supreme Court decision discussing administrative exhaustion, Darby v. Cisneros, — U.S. -, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), we note that the Department of the Interior decisions are not final for purposes of § 704 review if they are subject to appeal to a higher authority within the department. 25 C.F.R. § 2.6(a).\n. Plaintiffs argue that they should not be required to pursue the recognition procedures outlined in 25 C.F.R. pt. 83 before bringing this suit because it would take too long, the Council would be deprived of legal services during the delay, and the Western Shoshones' recognition as a tribe is a matter of simple statutory construction. We reject these arguments because plaintiffs cannot claim the administrative process is inadequate until they attempt to invoke it.\n. 28 U.S.C. § 1362 provides: \"The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Here we assume for argument’s sake that the Western Shoshones are an Indian tribe within the meaning of this statute.\n. 25 U.S.C. § 85 provides:\nNo contract made with any Indian, where such contract relates to the tribal funds or property in the hands of the United States, shall be valid, nor shall any payment for services rendered in relation thereto be made unless the consent of the United States has previously been given.", "type": "majority", "author": "LOGAN, Circuit Judge."}], "attorneys": ["John Paul Kennedy, Salt Lake City, UT, for plaintiffs-appellants.", "Ellen J. Durkee, Atty., Environment & Natural Resources Div., Dept, of Justice, Washington DC (Roger Clegg, Asst. Atty. Gen., David J. Jordan, U.S. Atty., and Stephen Roth, Asst. U.S. Atty., Salt Lake City, UT, Jim Upton and John A. Bryson, Attys., Environment & Natural Resources Div., Dept, of Justice, Washington, DC; of counsel: Scott Keep, Office of the Sol, Dept, of the Interior, Washington, DC, and Wayne Nordwall, Office of the Field Sol., Dept, of the Interior, Phoenix, AZ, with her on the brief), for defendant-appellee."], "corrections": "", "head_matter": "WESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY RESERVATION; Edwards, McCoy & Kennedy, P.C., Plaintiffs-Appellants, v. Bruce E. BABBITT, Secretary of the United States Department of the Interior, Defendant-Appellee.\nNo. 92-4062.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 27, 1993.\nJohn Paul Kennedy, Salt Lake City, UT, for plaintiffs-appellants.\nEllen J. Durkee, Atty., Environment & Natural Resources Div., Dept, of Justice, Washington DC (Roger Clegg, Asst. Atty. Gen., David J. Jordan, U.S. Atty., and Stephen Roth, Asst. U.S. Atty., Salt Lake City, UT, Jim Upton and John A. Bryson, Attys., Environment & Natural Resources Div., Dept, of Justice, Washington, DC; of counsel: Scott Keep, Office of the Sol, Dept, of the Interior, Washington, DC, and Wayne Nordwall, Office of the Field Sol., Dept, of the Interior, Phoenix, AZ, with her on the brief), for defendant-appellee.\nBefore LOGAN, RONEY and SEYMOUR, Circuit Judges.\nThe Honorable Paul H. Roney, Senior United States Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation."} | LOGAN | RONEY | SEYMOUR | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1052 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,259 | U.S. DEPARTMENT of the INTERIOR, Bureau of Reclamation, Missouri Basin Region, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, International Brotherhood of Electrical Workers, Local 1759, Intervenor | U.S. Department of the Interior v. Federal Labor Relations Authority | 1993-07-27 | No. 92-9503 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge."], "parties": ["U.S. DEPARTMENT of the INTERIOR, Bureau of Reclamation, Missouri Basin Region, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, International Brotherhood of Electrical Workers, Local 1759, Intervenor."], "opinions": [{"text": "SEYMOUR, Circuit Judge.\nThe United States Department of the Interior, Bureau of Reclamation, Missouri Basin Region (the Bureau), petitions this court to overturn a decision by the Federal Labor Relations Authority (FLRA) upholding an arbitration award. The arbitrator determined that the Bureau had acted unlawfully in unilaterally terminating a pay practice required by a collective bargaining agreement between the Bureau and the intervenor, the International Brotherhood of Electrical Workers, Local 1759 (the Union). The Bureau recognizes that judicial review of the FLRA’s decision is ordinarily precluded by statute. It nevertheless contends that the FLRA’s decision is erroneous and that the error rises to the level held judicially reviewable under Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), and its progeny. We disagree and dismiss for lack of jurisdiction.\nThe Union represents Bureau employees who negotiate their wages and premium pay provisions in accordance with section 704 of the Civil Service Reform Act (codified at 5 U.S.C. § 5343 note (1988)) and section 9(b) of the Prevailing Rate Systems Act (also codified at 5 U.S.C. § 5343 note). Most federal employees have their pay set administratively according to rates and practices prevailing in the relevant private sector. However, Congress has preserved the collective bargaining rights of a small minority of workers such as those represented here, who have historically negotiated with their employers and entered into collective bargaining agreements. See United States Info. Agency v. FLRA 895 F.2d 1449, 1451 (D.C.Cir.1990). The statutory scheme governing the resolution of labor disputes arising from these collective bargaining agreements establishes a two-track system. See American Fed’n of Gov’t Employees, Local 916 v. FLRA 951 F.2d 276, 277 (10th Cir.1991).\nThe aggrieved party may file a statutory unfair labor practice charge with FLRA General Counsel, who determines whether a complaint should issue. If a complaint ensues, the matter is adjudicated by FLRA, subject to judicial review in the court of appeals. On the other hand, the aggrieved party may elect instead to pursue the matter through the statutorily mandated grievance procedure established in the applicable collective bargaining agreement. If resolution by grievance fails initially, the dispute may be brought before an arbitrator, whose determination is subject to final review by FLRA. A key feature of the grievance-arbitration process is that once FLRA has rendered its decision, judicial review is unavailable “unless the order involves an unfair labor practice under section 711[6] of this title.” 5 U.S.C. § 7123(a)(1). Thus, “[b]oth routes offer one level of review — the statutory route provides for judicial review of the FLRA’s decision and the grievance route provides for FLRA review of the arbitrator’s decision”.\nId. (citation and footnotes omitted).\nIn this case, the Union chose the second alternative and filed a grievance alleging that the Bureau had violated the collective bargaining agreement by unilaterally terminating Sunday premium pay during the contract term without bargaining on the issue. The arbitrator agreed and issued an award ordering the pay practice reinstated. The Bureau filed exceptions to the award with the FLRA pursuant to 5 U.S.C. § 7122(a) (1988). The FLRA upheld the award initially, 42 F.L.R.A. 55 (Oct. 10, 1991), and again on the Bureau’s motion for reconsideration, 43 F.L.R.A. 38 (Nov. 29, 1991).\nThe Bureau now seeks judicial review and reversal of the FLRA’s decision. The statutory provision governing review of FLRA orders entered under section 7122 provides:\nAny person aggrieved by any final order of the Authority other than an order under—\n(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or\n(2) section 7112 of this title (involving an appropriate unit determination),\nmay, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.\n5 U.S.C. § 7123(a) (1988) (emphasis added). It is undisputed that the FLRA order challenged here does not involve an unfair labor practice. Thus, the plain language of the statute specifically precludes our review. See, e.g., United States Dep’t of Justice v. FLRA, 981 F.2d 1339, 1342 (D.C.Cir.1993) (collecting cases).\nThe Bureau acknowledges that section 7123 ordinarily bars judicial review of an FLRA order such as the one at issue here, but nonetheless argues that jurisdiction is proper under the exception recognized in Leedorn v. Kyne. In Kyne, the Supreme Court upheld judicial review, despite a statutory provision intended to preclude such review, “where the National Labor Relations Board had acted ‘in excess of its delegated powei’s and contrary to a specific prohibition in the [National Labor Relations] Act.’ ” Griffith v. FLRA, 842 F.2d 487, 492 (D.C.Cir.1988) (quoting Kyne, 358 U.S. at 188, 79 S.Ct. at 183). In considering whether to proceed under Kyne, courts have emphasized that the case provides an exception of “very limited scope,” United States Dep’t of Justice, 981 F.2d at 1342, to be “invoked only in exceptional circumstances,” Greater Detroit Resource Recovery Auth. v. United States Envtl. Protection Agency, 916 F.2d 317, 323 (6th Cir.1990). As one court has pointed out, the language used in Kyne “carefully and clearly delineated the narrow scope of its holding.” Physicians Nat’l House Staff Ass’n v. Fanning, 642 F.2d 492, 495 (D.C.Cir.1980) (en banc), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). Under the Court’s description of the order at issue in Kyne, agency action will only fall within the exception created by Kyne when the agency’s determination is “made in excess of its powers,” 358 U.S. at 185, 79 S.Ct. at 182, when the agency “disobeyed the express command of [its organic act] ... and in doing so ... acted in excess of its powers,” id. at 186-87, 79 S.Ct. at 183, when the agency order is “an attempted exercise of power that had been specifically withheld,” id. at 189, 79 S.Ct. at 184, and when it is “agency action taken in excess of delegated powers,” id. at 190, 79 S.Ct. at 185.\nThe particular circumstances in Kyne help to clarify the quasi-jurisdictional nature of the exception. At issue was a National Labor Relations Board order in a representation proceeding. The National Labor Relations Act authorizes the Board to certify a bargaining unit made up of both professional and non-professional employees only when a majority of the professional employees vote for inclusion in the unit. See 29 U.S.C. § 159(b)(1) (1988). Despite this explicit limitation on the extent of the Board’s delegated authority, the Board certified a unit including both professional and non-professional employees without taking a vote to determine whether a majority of the professional employees wished to be included in the unit. The Supreme Court concluded that it had jurisdiction in these circumstances to “strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.” Kyne, 358 U.S. at 188, 79 S.Ct. at 184; see also Oester-eich v. Selective Serv. System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (review granted; Selective Service Board without authority to deny exemption).\nThe Bureau contends here that the FLRA order is renewable under Kyne because the FLRA committed plain legal error in construing section 704(b) of the Civil Service Reform Act. In so doing, the Bureau makes two interrelated arguments. First, the Bureau asserts that our jurisdiction turns on whether the FLRA committed plain error. However, the Court in Kyne cautioned that the suit there was “not one to ‘review,’ in the sense of that term as used in the [NLRA], a decision of the Board made within its jurisdiction.” 358 U.S. at 188, 79 S.Ct. at 184. It is clear that Kyne does not confer jurisdiction merely because the FLRA made an error of law. See Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 899, 11 L.Ed.2d 849 (1964) (“The Kyne exception is a narrow one, not to be extended to permit plenary district court review of [NLRB] orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law.”) “That the Board may have made an error of fact or law is insufficient; the Board must have acted without statutory authority.” Physicians Nat’l House Staff Ass’n, 642 F.2d at 496; see also United States Dep’t of Justice, 981 F.2d at 1343.\nSecond, the Bureau contends that Kyne jurisdiction is present because, by plainly misconstruing the Civil Service Reform Act, the FLRA has acted contrary to a specific statutory prohibition that is clear and mandatory. As we have discussed above, the clear and mandatory statutory prohibition the Board violated in Kyne was contained in its enabling act. When the Board acted in violation of that statute, it exceeded its delegated authority and used a power that Congress had expressly denied it. Here, to the contrary, we are not concerned with a violation of the agency’s enabling act. The FLRA clearly had the statutorily conferred authority to make a decision based on its construction of the Civil Service Reform Act. The Bureau thus asks us to undertake judicial review of an agency decision which the agency had the authority to make simply because that decision was allegedly plainly wrong. To rest Kyne jurisdiction on the basis that the FLRA has erred in reviewing an arbitration award is to “turn every error of law into a basis for review, effectively repealing hundreds of finality provisions.” Griffith, 842 F.2d at 494. Congress has explicitly mandated otherwise in section 7123(a) by precluding judicial review unless the order involves an unfair labor practice.\nFinally, even if we were to assume that Kyne jurisdiction could be based on the FLRA’s violation of a statute other than its enabling act, the type of inquiry the Bureau asks us to undertake here is nonetheless outside the narrow perimeters of Kyne. The provision of the Civil Service Reform Act at issue does not provide a facially clear and mandatory directive on the issue of the negotiability of Sunday premium pay. Resolution of that issue necessarily depends upon applying the law to the facts. The Supreme Court has expressly stated that Kyne jurisdiction is not available to address an allegation that the agency’s erroneous assessment of the facts has led it to an improper legal conclusion. See Boire, 376 U.S. at 481, 84 S.Ct. at 898; see also United States Dep’t of Justice, 981 F.2d at 1343-44; Griffith, 842 F.2d at 493-94; Physicians Nat’l House Staff Ass’n, 642 F.2d at 496 & n. 4. We agree with those courts that have rejected virtually identical arguments and refused to find Kyne jurisdiction in these circumstances.\nThe petition is dismissed for lack of jurisdiction.", "type": "majority", "author": "SEYMOUR, Circuit Judge."}], "attorneys": ["Frank A. Rosenfeld, Appellate Staff Atty. (Stuart M. Gerson, Asst. Atty. Gen. and William Kanter, Appellate Staff Attorney, with him on the briefs), Dept, of Justice, Washington, DC, for petitioner.", "Pamela P. Johnson (William E. Persina, Sol., William R. Tobey, Deputy Sol. and Arthur A. Horowitz, Associate Sol, with her on the brief), Federal Labor Relations Authority, Washington, DC, for respondent.", "Lynne L. Hicks (Donald P. MacDonald, with her on the brief), Denver, CO, for inter-venor."], "corrections": "", "head_matter": "U.S. DEPARTMENT of the INTERIOR, Bureau of Reclamation, Missouri Basin Region, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, International Brotherhood of Electrical Workers, Local 1759, Intervenor.\nNo. 92-9503.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 27, 1993.\nFrank A. Rosenfeld, Appellate Staff Atty. (Stuart M. Gerson, Asst. Atty. Gen. and William Kanter, Appellate Staff Attorney, with him on the briefs), Dept, of Justice, Washington, DC, for petitioner.\nPamela P. Johnson (William E. Persina, Sol., William R. Tobey, Deputy Sol. and Arthur A. Horowitz, Associate Sol, with her on the brief), Federal Labor Relations Authority, Washington, DC, for respondent.\nLynne L. Hicks (Donald P. MacDonald, with her on the brief), Denver, CO, for inter-venor.\nBefore SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge.\nHonorable Timothy D. Leonard, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation."} | SEYMOUR | KELLY | LEONARD | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1059 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,298 | Jerrie HOVATER, Plaintiff-Appellee, v. Tommie ROBINSON; Sedgwick County Board of County Commissioners, Defendants, and Mike Hill, individually and in his official capacity as Sheriff of Sedgwick County, Defendant-Appellant | Hovater v. Robinson | 1993-07-27 | No. 92-3230 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR, RONEY, and MOORE, Circuit Judges."], "parties": ["Jerrie HOVATER, Plaintiff-Appellee, v. Tommie ROBINSON; Sedgwick County Board of County Commissioners, Defendants, and Mike Hill, individually and in his official capacity as Sheriff of Sedgwick County, Defendant-Appellant."], "opinions": [{"text": "SEYMOUR, Circuit Judge.\nJerrie Hovater brought this suit against officials of Sedgwick County under 42 U.S.C. § 1983 (1988) alleging a violation of her constitutional rights under the Eighth and Fourteenth Amendments. Ms. Hovater alleges that while an inmate at the Sedgwick County Jail, she was sexually assaulted by defendant Tommie Robinson, a detention officer at the jail. She asserts that defendant Mike Hill, Sheriff of Sedgwick County, and defendant Board of Sedgwick County Commissioners are responsible for the constitutional violations due to their failure to properly protect her and their failure to supervise and train jail employees. Defendant Hill moved for summary judgment based on qualified immunity. The district court denied the motion. Mr. Hill appeals, and we reverse.\nI.\nThe sexual assault allegedly occurred on the third floor of the Sedgwick County Jail (“the jail”). A brief description of the layout and policies of the jail is helpful to determine the liability of those involved. The jail houses both male and female inmates. The female inmates are housed on the fourth floor. Within the secure portion of the third floor, there is a medical clinic, five attorney-inmate visitation rooms, and a combination chapel/library. Sheriff Hill was, at all relevant times, in charge of the jail. He supervised over two hundred employees, of whom approximately eighty worked in the jail.\nTommie Robinson was hired by Sheriff Hill’s predecessor and began employment in January 1985. Mr. Robinson was certified as eligible by the Sedgwick County Civil Service Board. He completed sixty-seven hours of training and was given high evaluations by his supervisors during his employment. Pri- or to the alleged sexual assault of Ms. Hova-ter, no female inmate had complained of sexual misconduct by Mr. Robinson or any other detention officer. Mr. Robinson was assigned to the third floor area. His primary duty was to escort inmates between the elevator and the appropriate rooms.\nMs. Hovater was arrested on April 7, 1988 and charged with driving under the influence of alcohol and other related traffic offenses. She pled guilty as charged and was incarcerated at the Sedgwick County Jail to serve a sentence of one year and thirty days. On June 7, 1988, Mr. Robinson called Ms. Hova-ter to the third floor to straighten the books in the library. While in the library, Ms. Hovater alleges that Mr. Robinson made a sexual advance, sexually propositioned her, and told her he would call her down the next day. She did not inform anyone within the Sheriffs Department of this incident but did tell her boyfriend during a phone call that night. Early the next day, Mr. Robinson called Ms. Hovater to the third floor. She alleges that Mr. Robinson forcibly sodomized her in the chapel/library. She returned to the fourth floor and did not mention the incident to anyone. After lunch on the same day, Mr. Robinson called Ms. Hovater to the third floor again. She told the fourth floor officer that she did not want to go but gave no reason. On the elevator, Ms. Hovater told the elevator operator that Mr. Robinson had made sexual advances toward her. After delivering Ms. Hovater to the third floor, the elevator officer contacted a supervisor immediately. Due to a class in the chapel/library, Mr. Robinson sent Ms. Hovater back to the fourth floor but said he would call her down later. Ms. Hovater again told the elevator operator that Mr. Robinson had made advances toward her. By this time, an investigation had begun. On June 9, Sheriff Hill placed Mr. Robinson on probation. Mr. Robinson later resigned.\nMs. Hovater filed this suit against Sedg-wick County, Mr. Robinson, and Sheriff Hill in his individual and official capacities, alleging violations of her constitutional rights under the Eighth and Fourteenth Amendments to be protected from harm perpetrated by jail guards and to be secure in her bodily integrity. Specifically, she alleges that defendants are responsible\nfor implementing a de facto policy and custom of allowing defendant Robinson to have unsupervised access and custody of female inmates over an extended period of time with deliberate indifference to the consequences, for failure to train the detention officers to prevent the policy and custom from occurring in the first place, for failure to supervise and protect.\nAplee. Br. at 9.\nThe policies and procedures which govern operation of the jail were revised in 1986 and set forth in a new Policy and Procedure Manual (the manual). Captain Ed Pavey was responsible for drafting the manual. He gathered information from several sources, including manuals from various jails throughout the country, the Kansas Jail Advisory Standards, and previous unwritten policies. Aplt. App., vol. II, at 353-55. This information formed the basis of the manual. One policy relevant here provides that a female detention officer, if available, would escort a female inmate moved within the jail. Id., vol. Ill, at 646. If a female officer was not available, two male detention officers were to escort a female inmate. Id. Ms. Hovater alleges that this procedure was not followed. She also asserts that Mr. Robinson “developed a practice of ... call[ing] the fourth floor detention officer and request[ing] that certain female inmates be delivered to his care and custody on the third floor.” Aplee. Br. at 5. Ms. Hovater contends this practice violated jail policy in a number of ways. First, Mr. Robinson violated jail policy by calling Ms. Hovater to the third floor. The professional visitation clerk was the jail employee responsible for the movement of inmates to and from the third floor. Second, straightening the library was a task assigned only to male inmates who were trustees. Third, in contradiction to the manual, once on the third floor, the female inmate was left in the supervision of Mr. Robinson. Ms. Hova-ter contends these violations were carried out with the “knowledge and acquiescence” of the three female staff members on the third floor. Id. at 5-6. In fact, defendants admit that the normal “procedure was not followed in the small third floor area of the Jail because video cameras monitored the hallways and three female staff members worked in that area.” Aplt. Br. at 9-10. Although the manual required only one detention officer on the third floor, the Sheriffs department did not employ a sufficient number of female officers to permanently assign a female officer on the third floor. Id.\nDefendants Hill and Sedgwick County moved for summary judgment. Sheriff Hill asserted the defense of qualified immunity. The district court denied the motion. The court found no evidence that Sheriff Hill had actual knowledge of Mr. Robinson’s violations of the policies. However, the court held Sheriff Hill had “constructive notice that Robinson, a single male officer, had unsupervised care and custody of female inmates.... It is apparent to this court that Sheriff Hill and Sedgwick County were aware that the very injury which Hovater allegedly suffered was likely to result when a single male officer had unsupervised care and custody of a single female inmate.” Aplt. App. at 150. Sheriff Hill appeals the denial of qualified immunity, arguing that the district court did not apply the correct legal principles.\nII.\n“We review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings.” Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990). Once a defendant raises the defense of qualified immunity, the plaintiff bears the burden of establishing that the defendant has violated clearly established law. Id. at 131. Courts have placed this burden on the plaintiff because qualified immunity is “intended to protect the defendant from the burdens associated with trial.” Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). To meet her burden, a plaintiff must demonstrate a “substantial correspondence between the conduct in question and prior law ... establishing that the defendant’s actions were clearly prohibited.” Hannula, 907 F.2d at 131. If the plaintiff meets this burden, then the defendant “as the movant in a motion for summary judgment bears the normal burden of showing that no material issues of fact remain that would defeat his or her claim of qualified immunity.” Pueblo Neighborhood Health Centers, 847 F.2d at 646. See also Hannula, 907 F.2d at 131.\nSheriff Hill contends that his conduct must be reviewed under the “malicious and sadistic” standard set forth in Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986). We disagree. The proper standard for an Eighth Amendment claim based on conditions of confinement, such as the present claim, is “deliberate indifference.” Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir.1990). Under this standard, “an official or municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of a prisoner’s constitutional rights.” Id. at 1496. See also Helling v. McKinney, — U.S. -, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (applying deliberate indifference standard to inmate’s Eighth Amendment claim based on conditions of confinement). Deliberate indifference requires “a higher degree of fault than negligence, or even gross negligence.” Berry, 900 F.2d at 1495 (citing City of Canton v. Harris, 489 U.S. 378, 388 & n. 7, 109 S.Ct. 1197, 1204 & n. 7, 103 L.Ed.2d 412 (1989)). The “mere fact that an assault occurs ... does not establish the requisite indifference to a prisoner’s constitutional rights.” Zatler v. Wainwright, 802 F.2d 397, 403 (11th Cir.1986).\n“As a threshold matter of law, we must first decide whether [Ms. Hovater] could have suffered, at the hands of corrections officials, any deprivation of [her] constitutional rights under the due process clause of the Fourteenth Amendment and the cruel and unusual punishments clause of the Eighth Amendment.” Harris By and through Harris v. Maynard, 843 F.2d 414, 415 (10th Cir.1988). Under the facts alleged by Ms. Hovater, we must determine whether Sheriff Hill disregarded an obvious risk to the safety of female inmates by allowing a single male guard to have custody of a female inmate absent any indication that the guard would assault her. The district court framed the issue in the same way. “The issue is not whether Sheriff Hill and Sedgwick County had notice of prior incidents of sexual misconduct between Robinson and female inmates. Rather, the issue is that Robinson frequently had sole custody and care of unsupervised female inmates.” Aplt. App. at 151. Thus, in order to determine that a constitutional violation could have occurred, we must conclude that a male guard having sole custody of a female inmate creates such a risk to her safety that it constitutes a violation of the Eighth Amendment’s cruel and unusual punishment clause. We are unable to do so.\nWe first note that we were not able to locate any decisions which hold that guards of the same gender as the inmates are required by the Eighth Amendment. The majority of cases which address gender in the prison setting focus on the right to privacy. These cases often must balance the inmates’ right to privacy and the guards’ right to not be discriminated against in employment. See, e.g., Berl v. County of Westchester, 849 F.2d 712 (2d Cir.1988) (county liable under Title VII for refusing to consider two male guards for promotion to female unit of prison); Cumbey v. Meachum, 684 F.2d 712 (10th Cir.1982) (right to privacy violated where guards regularly watch inmates of the opposite sex engaged in personal activities such as undressing); Forts v. Ward, 621 F.2d 1210 (2d Cir.1980) (male guards not enjoined from duties requiring observation of female inmates where privacy rights of female inmates could be protected); Edwards v. Dep’t of Corrections, 615 F.Supp. 804 (M.D.Ala.1985) (illegal discrimination where male guard not appointed shift commander at women’s prison due to his gender). This conflict “has normally been resolved by attempting to accommodate both interests through adjustments in scheduling and job responsibilities for the guards.” Smith v. Fairman, 678 F.2d 52, 55 (7th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983).\nOne case involved the search of female inmates by male guards. In Jordan v. Gardner, 986 F.2d 1521 (9th Cir.1993) (en banc), the Ninth Circuit held that clothed body searches of female inmates performed by male guards violated the Eighth Amendment. The prison had instituted a policy of random searches of inmates to detect contraband. In order to increase the number of searches performed, the prison officials allowed cross-gender clothed body searches. According to the training material, searches required “kneading,” “pushing,” and “squeezing” the bodies of the female inmates, including their crotch and breast areas. Id. at 1523. On the only day that the cross-gender searches were conducted before the lawsuit was filed, one female inmate “who had a long history of sexual abuse by men, unwillingly submitted to a cross-gender clothed body search and suffered severe distress: she had to have her fingers pried loose from bars she had grabbed during the search, and she vomited after returning to her cell block.” Id.\nThe Ninth Circuit upheld the district court’s determination that these random, sus-picionless, cross-gender searches constituted an “infliction of pain” to which the defendants were, deliberately indifferent. In reaching this decision, the district court had relied heavily upon evidence that demonstrated the psychological harm which likely would occur as a result of the searches. “Noting that many of the inmates at [the prison] have histories of sexual or physical abuse by men, the district court found that physical, emotional, and psychological differences between men and women ‘may well cause women, and especially physically and sexually abused women, to react differently to searches of this type than would male inmates subjected to similar searches by women.’” Id. at 1525 (citations omitted). Eighty-five percent of the inmates had histories of serious abuse including rapes, molestations, beatings, and slavery. The court was persuaded that these women had “particular vulnerabilities that would cause the cross-gender clothed body searches to exacerbate symptoms of pre-existing mental conditions.” Id. at 1526. Further, the defendants had notice of these pre-existing conditions. One of the defendants “was urged by members of his own staff not to institute cross-gender clothed body searches due to the psychological trauma which many inmates likely would suffer.” Id. at 1528. The court held that the defendants were deliberately indifferent under the Eighth Amendment standard because they implemented the cross-gender searches knowing of the likelihood of harm and in the absence of the necessity for security purposes.\nThe Southern District of New York specifically discussed the right of an inmate to have a guard of the same gender in United States ex rel. Wolfish v. Levi, 439 F.Supp. 114 (S.D.N.Y.1977), aff'd on other grounds, 573 F.2d 118 (2d Cir.1978), rev’d sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The inmates there argued that the assignment of a guard of the opposite sex creates “ ‘the danger of ... sexual relations, possibly without consent, between staff and inmates’ as well as other ‘unwelcome intrusions’ into inmates’ privacy.” Id. at 159 (citations omitted). The court refused to order the segregation of correctional personnel to match the sexes of the inmates. In so holding, the court said:\nThere is no evidence at all on the present record of sexual abuse of inmates by correctional personnel. The court cannot proceed in this aspect on rumors or on judicial notice. If we did, we could scarcely emerge from the maze to which the topic leads. After all, the main literature and experience of sexual assaults in prison does not treat heterosexual misbehavior. Were assault the main concern, having guards and prisoners of the same sex would not solve the problem.\nId.\nThe Jordan and Levi decisions are the most analogous cases to the issue before us. Under the escort policy here, unlike the policy in Jordan, we are not faced with physical contact between the guards and inmates. Moreover, the record in Jordan was replete with evidence to support the risk of harm likely to result from the policy. Like the record in Levi, there is no evidence in the present case of an obvious risk that male detention officers will sexually assault female inmates if they are left alone.\nWe agree with Ms. Hovater that an inmate has a constitutional right to be secure in her bodily integrity and free from attack by prison guards. Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir.1986). We also acknowledge that a prison official’s failure to protect an inmate from a known harm may constitute a constitutional violation. Santiago v. Lane, 894 F.2d 218, 225 (7th Cir.1990). The district court found evidence of a risk of harm because the jail’s manual included procedures to keep a male guard from having unsupervised care of a female inmate. The court accepted Ms. Hovater’s argument that it was “apparent” Sheriff Hill knew of the risk to female inmates in custody of male guards because the jail had a policy intended to prevent the harm. That asserted rationale for the policy is not supported by any evidence in this record. Sheriff Hill argues on appeal that the policy was adopted to protect male guards from false complaints. Indeed, there is some evidence in the record which supports Sheriff Hill’s argument. The National Sheriffs’ Association’s Jail Officer’s Training Manual provides: “Unless it is absolutely necessary, a male officer should never enter a female inmate’s cell unless he is accompanied by a witness' — preferably a female officer.” Aplee. Supp. App., vol. Ill, at R-522 (emphasis added). “To protect himself, the male officer should never enter a woman’s cell alone, with the exception of true emergencies. He should summon another officer, preferably a female officer or, if there are no female officers on duty, a supervisor.” Id. (emphasis added). Thus, the mere existence of the policy at issue does not establish an obvious risk that females left alone with male guards are likely to be assaulted.\nSheriff Hill had no knowledge that Mr. Robinson was a threat to the female inmates. Any known harm could stem only from the mere fact of Mr. Robinson’s gender. To find a harm present in these circumstances would, in effect, require the conclusion that every male guard is a risk to the bodily integrity of a femále inmate whenever the two are left alone. There is absolutely no evidence in this record to support that conclusion. A constitutional violation may not be established by a reliance upon unsupported assumptions. Had Sheriff Hill possessed information that Mr. Robinson as an individual posed a threat to the safety of female inmates, our decision would be different. We hold that Ms. Hovater has failed to meet her burden of establishing a constitutional violation. Sheriff Hill is therefore entitled to qualified immunity. Hannula, 907 F.2d at 131.\nThe judgment of the district court is REVERSED.\n. Mr. Robinson denies the assault occurred. For the purposes of his summary judgment motion, however, defendant Hill assumes Ms. Hovater’s version of the assault is correct. Aplt. Br. at 12-13.\n. Ms. Hovater also brought pendent state law claims which are not at issue here.\n. The video cameras monitored the hallways only, not the individual rooms.\n. Ms. Hovater argues that she has established a violation by Sheriff Hill's failure to follow his own policies. However, a failure to adhere to administrative regulations does not equate to a constitutional violation. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) (\"Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”).\n. Our determination that the policy at issue here does not establish a constitutional violation is dispositive of Ms. Hovater’s claim against Sheriff Hill for failure to train.", "type": "majority", "author": "SEYMOUR, Circuit Judge."}], "attorneys": ["Edward L. Keeley (Alan L. Rupe with him on the briefs) of Alan L. Rupe Law Offices, P.A., Wichita, KS, for defendant-appellant Hill.", "Thomas M. Warner, Jr., of Pullman & Warner, Chartered, Wichita, KS, for plaintiff-appellee Hovater."], "corrections": "", "head_matter": "Jerrie HOVATER, Plaintiff-Appellee, v. Tommie ROBINSON; Sedgwick County Board of County Commissioners, Defendants, and Mike Hill, individually and in his official capacity as Sheriff of Sedgwick County, Defendant-Appellant.\nNo. 92-3230.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 27, 1993.\nEdward L. Keeley (Alan L. Rupe with him on the briefs) of Alan L. Rupe Law Offices, P.A., Wichita, KS, for defendant-appellant Hill.\nThomas M. Warner, Jr., of Pullman & Warner, Chartered, Wichita, KS, for plaintiff-appellee Hovater.\nBefore SEYMOUR, RONEY, and MOORE, Circuit Judges.\nThe Honorable Paul H. Roney, Senior United States Circuit Judge for the United States Court of Appeals for the Eleventh Circuit, sitting by designation."} | SEYMOUR | RONEY | MOORE | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1063 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,325 | UNITED STATES of America, Plaintiff-Appellee, v. Arloha Mae PINTO, Defendant-Appellant | United States v. Pinto | 1993-07-27 | No. 92-3435 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before McKAY, Chief Judge, SETH and BARRETT, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Arloha Mae PINTO, Defendant-Appellant."], "opinions": [{"text": "McKAY, Chief Judge.\nAfter examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.\nDefendant was convicted in 1986 of conspiracy to defraud the United States and filing a false tax return. This court affirmed. United States v. Pinto, 838 F.2d 426 (10th Cir.1988). After serving her three year sentence, Defendant found that her status as a convicted felon disrupted many aspects of her life, such as preventing her from helping at her daughter’s liquor store. She brought a motion in the district court to expunge her conviction, claiming she had been punished enough. The district court denied relief, and Defendant appeals.\nI\nAs an initial matter, we must inquire into our jurisdiction to hear this appeal. Defendant’s notice of appeal was filed before the 60 days required in a civil case involving the government under Fed.R.App.P. 4(a), but after the 10 days required in a criminal case under Fed.R.App.P. 4(b). The government argues that this is a criminal case, and that the notice of appeal was therefore filed out-of-time, divesting this court of jurisdiction.\nBecause Defendant brings this motion pro se, we view her papers liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The record on appeal refers to her papers as a “petition,” and do not specify whether they were brought as a post-conviction proceeding under 28 U.S.C. § 2255 (1988), as a writ of error coram nobis, or as a motion in the original criminal case. While the case was given its original criminal docket number, the fact that this action was brought pro se leads us to construe the petition as an action under § 2255 or as a writ of error corara nobis. In either case, the 60 day civil appeals period applies. See United States v. Craig, 907 F.2d 653, 657 (7th Cir.1990), cert. denied,U.S. -, 111 S.Ct. 2013, 114 L.Ed.2d 100 (1991). Accordingly, we are satisfied that we have appellate jurisdiction.\nII\nOn the merits of this dispute, we agree with the trial court’s conclusion that it was without power to grant this petition. As an initial matter, “there was no statutory authority for the district court’s expunction order.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991). Rather, any authority to order expungement must stem from the inherent equitable powers of the court. See id. We have stated that, in extreme circumstances, an arrest record may be expunged after dismissal of the charges or acquittal. See United States v. Friesen, 853 F.2d 816, 817 (10th Cir.1988). However, there is a large difference between expunging the arrest record of a presumably innocent person, and expunging the conviction of a person adjudged as guilty in a court of law.\nThe case law does support the notion that when a conviction is somehow invalidated, such as by a finding that it was unconstitutional, illegal, or obtained through government misconduct, a federal court may, in appropriate cases, grant expungement. See Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir.1977) (federal courts have power to order expungement of a conviction on habeas corpus review); see also Smith, 940 F.2d at 396 (collecting cases); United States v. Travers, 514 F.2d 1171 (2d Cir.1974) (granting ex-pungement of a federal conviction after the Supreme Court rejected statutory interpretation under which the conviction was affirmed; the court concluded that the defendant’s actions simply were not illegal). We therefore conclude that federal courts may, in extreme cases, expunge a federal conviction that has, in some manner, been invalidated.\nOn this record, however, there is no allegation that the conviction was in any way improper. The sole contention is that Defendant has been punished enough, and that the presence of the conviction is unjustly interfering with her efforts to rebuild her life. Accordingly, we hold that the trial court was without power to expunge this conviction. As the Ninth Circuit has explained, “The harms alleged [by Defendant] ... are not unusual or unwarranted. Instead, they are the natural and intended collateral consequences of having been convicted.” Smith, 940 F.2d at 396.\nDefendant argues that it was improper to deny her petition without holding a hearing. This argument misses the point. Absent an allegation that the conviction was somehow invalid, Defendant’s arguments that she had been punished enough are simply insufficient as a matter of law.\nThe judgment is AFFIRMED.\n. The only statutory authority to expunge convictions is found at 21 U.S.C. § 844(b)(1) (1988) and 18 U.S.C. § 3607 (1988), both of which apply to first-time drug offenders. The only case which suggests a statutory grant of the power of ex-pungement is United States v. Bohr, 406 F.Supp. 1218, 1219 (E.D.Wisc.1976), which suggests that such authority can be gleaned from the All Writs Act, 28 U.S.C. § 1651 (1988). While we agree that the All Writs Act plays a part in enabling the court to issue the writs of error coram nobis and the writs of mandamus necessary to accomplish an actual expungement, we believe that the authority to consider the issue in the first piace is not contained in that Act. Rather, if it exists at all, it is a function of the inherent equitable power of the court.", "type": "majority", "author": "McKAY, Chief Judge."}], "attorneys": ["Arloha Mae Pinto, pro se.", "Jackie N. Williams, U.S. Atty., and Linda L. Sybrant, Sp. Asst. U.S. Atty., Kansas City, MO, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Arloha Mae PINTO, Defendant-Appellant.\nNo. 92-3435.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 27, 1993.\nArloha Mae Pinto, pro se.\nJackie N. Williams, U.S. Atty., and Linda L. Sybrant, Sp. Asst. U.S. Atty., Kansas City, MO, for plaintiff-appellee.\nBefore McKAY, Chief Judge, SETH and BARRETT, Circuit Judges."} | McKAY | SETH | BARRETT | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1069 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,346 | Robert E. HATFIELD, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant | Hatfield v. Burlington Northern Railroad | 1993-07-30 | No. 91-3158 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before McKAY, Chief Judge, MOORE, Circuit Judge, and ALLEY, District Judge."], "parties": ["Robert E. HATFIELD, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant."], "opinions": [{"text": "ORDER ON REMAND\nJOHN P. MOORE, Circuit Judge.\nThis case is before us after our judgment, previously reported as Hatfield v. Burlington Northern R. Co., 958 F.2d 320 (10th Cir.1992), was vacated by the Supreme Court and remanded for further consideration in light of CSX Transportation, Inc. v. Easterwood, 507 U.S. -, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Having reconsidered, we conclude the case must be remanded for further proceedings.\nIn the original appeal of this case, we held Kansas law did not apply to a grade crossing collision involving Mr. Hatfield because the adoption of the Manual on Uniform Traffic Control Devices on Streets and Highways by the Secretary of Transportation preempted state regulation of grade crossings. That holding was specifically invalidated in Easterwood, 507 U.S. at -, 113 S.Ct. at 1740.\nNonetheless, the Court did not eschew entirely the concept of preemption. Indeed, it observed:\nThe remaining potential sources of preemption are the provisions of 23 CFR §§ 646.214(b)(3) and (4), which ... do establish requirements as to the installation of particular warning devices. Examination of these regulations demonstrates that, when they are applicable, state tort law is pre-empted....\n[A] project for the improvement of a grade crossing must either include an automatic gate or receive FHWA [Federal Highway Administration] approval if federal funds “participate in the installation of the [warning] devices-” In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which ... seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.\n507 U.S. at -, 113 S.Ct. at 1740-41 (citations omitted).\nThus, the precise issue to be resolved here is whether “federal-aid funds participate^] in the installation of La warning] device” prior to the collision involving Mr. Hatfield. The issue requires, first, that we determine the meaning of participation. Thereafter, within the context of that meaning, a factual determination must be made whether participation occurred.\nWe believe this is the first case to explore the subject. Neither the Supreme Court nor § 646.214(b)(3) has given us a definition with which to work; nonetheless, the Court has shown us a direction to follow. Because, in this case, preemption is dependent upon the injection of federal financial resources into a project, we must assume participation is a significant event. Given the Court’s reliance upon a presumption against preemption, Easterwood, 507 U.S. at -, 113 S.Ct. at 1739, logic dictates that more than a casual financial connection between the federal government and the project has to exist before that project is governed and circumscribed by federal regulation. Thus, we conclude the degree of federal participation must be significant.\nDoes that mean, however, that federal funds be earmarked specifically in a sum certain before participation occurs? We do not believe so. Moreover, there is nothing within either the regulations or in the Court’s holding in Easterwood that suggests participation occurs only when earmarked dollars are dedicated to installation of warning devices at a particular project. Indeed, the generic significance of the word “funds” suggests a fungibility that covers more than the expenditure of cash on actual construction of a project. Thus, participation may take place when other resources, for example significant personnel time remunerated by federal-aid funds, are utilized at some point in the project. Were it intended that participation be limited to the actual commitment of specific funds to construction only, the language of § 646.214(b)(3) would have been explicit.\nAt this point, we do not know if, how, or when federal-aid funds were committed to the Haverhill crossing project. Naturally, the parties have taken opposite views of the record and have attempted to answer those questions in a manner most suitable to their own interests. Yet, in fairness, the issue was not significant when the question of preemption was aired in the district court; therefore, no real exploration of the facts has taken place.\nConsequently, we must remand the case to the district court for a specific determination if federal-aid funds have participated in the Haverhill project. If so, the court must determine when and how participation occurred. If the court finds participation did not occur or did not take place until after Mr. Hatfield’s incident, the court must conclude state law was not preempted for the purposes of this suit. The case is REMANDED for further proceedings.\n. Indeed, we have found no definitions anywhere within the United States Code or the Code of Federal Regulations. 23 C.F.R. § 646.214(b)(3) states: \"[0]n any project where Federal-aid funds participate in the installation of the devices [is] to include automatic gates with flashing light signals....”\n. Sec, for example, 23 C.F.R. § 1.11(a) which provides for \"Federal participation” in the costs of engineering services.", "type": "majority", "author": "JOHN P. MOORE, Circuit Judge."}], "attorneys": ["Phillip R. Fields, Wichita, KS, for defendant-appellant.", "Timothy J. King and Terry S. Stephens, Stinson, Lasswell & Wilson, Wichita, KS, for plaintiff-appellee."], "corrections": "", "head_matter": "Robert E. HATFIELD, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.\nNo. 91-3158.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 30, 1993.\nPhillip R. Fields, Wichita, KS, for defendant-appellant.\nTimothy J. King and Terry S. Stephens, Stinson, Lasswell & Wilson, Wichita, KS, for plaintiff-appellee.\nBefore McKAY, Chief Judge, MOORE, Circuit Judge, and ALLEY, District Judge.\nThe Honorable Wayne E. Alley, United States District Court Judge for the Western District of Oklahoma, sitting by designation."} | McKAY | MOORE | ALLEY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1071 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,392 | David JENSEN; Rose Johnson; Tiffny Jensen; Sterling Group; De West Indies; Capital Ventures Development, Plaintiffs-Appellants, v. Thomas G. KIMBLE; Thomas Kimble, P.C.; Richard C. Mason; Richard C. Mason, Inc.; Nosam, Inc.; Trudy Reynolds; Naomi Mason; Nomco, Inc.; J.P. Michaels; Mike Reynolds; Russell K. Nielson; KDR, Inc.; Gary Ramsey, also known as Don L. Ramsey; Tammy Peters; Kristine Ramsey; Donnell Ramsey; Pauline Ramsey; George C. Ramsey; Nosam, Inc.; Nosam, Inc. II; Wallace S. Pidcock, Defendants-Appellees | Jensen v. Kimble | 1993-07-30 | No. 91-4157 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before EBEL, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and COOK, Senior District Judge."], "parties": ["David JENSEN; Rose Johnson; Tiffny Jensen; Sterling Group; De West Indies; Capital Ventures Development, Plaintiffs-Appellants, v. Thomas G. KIMBLE; Thomas Kimble, P.C.; Richard C. Mason; Richard C. Mason, Inc.; Nosam, Inc.; Trudy Reynolds; Naomi Mason; Nomco, Inc.; J.P. Michaels; Mike Reynolds; Russell K. Nielson; KDR, Inc.; Gary Ramsey, also known as Don L. Ramsey; Tammy Peters; Kristine Ramsey; Donnell Ramsey; Pauline Ramsey; George C. Ramsey; Nosam, Inc.; Nosam, Inc. II; Wallace S. Pidcock, Defendants-Appellees."], "opinions": [{"text": "EBEL, Circuit Judge.\nThis case requires us to determine whether the district court properly granted summary judgment dismissing the plaintiffs claims under Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission. The plaintiffs’ complaint alleged that the defendants acquired the plaintiffs’ stock on the basis of undisclosed material, inside information, and affirmative misstatements with regard to a pending merger. The record establishes that the defendants advised the plaintiffs prior to the stock transaction that the nondisclosed information would not be revealed. Hence, the defendants’ failure to disclose this information was not deceptive. With regard to the alleged affirmative misstatements, the plaintiffs failed to come forward with any evidence that these statements were false. Thus, plaintiffs failed to carry their burden under Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Accordingly, we affirm.\nFACTS\nThis case arises out of the merger in November, 1986 of Herbalife International (“Herbalife”), a well-known private company engaged in the manufacture of health-related products, and Sage Court Ventures, Inc. (“Sage Court”), a public corporation organized and existing under the laws of the 'State of Nevada. The merger was prompted by Herbalife’s desire to go public by merging into an existing public company that was a “clean shell.” Defendant Thomas Kimble, an attorney specializing in securities transactions, and defendant Richard Mason, an experienced corporate promoter, assisted Her-balife in its search for a “clean shell” and ultimately introduced Herbalife to Sage Court. For his efforts in arranging the merger with Sage Court, Herbalife gave to Mason 250,000 shares of Herbalife stock as a finder’s fee.\nFive months prior to the merger, in June, 1986, plaintiff David Jensen, a sophisticated investor and experienced corporate promoter, purchased 4 million shares of Sage Court stock at a $200,000 blind pool public offering conducted by Sage Court. Jensen purchased the stock in part under his own name and in part under the name of the other party plaintiffs: his wife, Rose Johnson, his daughter, Tiffny Jensen, and several corporate entities over which he exercised control, Sterling Group, De West Indies, and Capital Ventures. Jensen’s purchase constituted roughly 13% of Sage Court’s outstanding stock.\nOn the morning of October 29 or 30, 1986, Jensen was in California attending a conference when he received a telephone call from Kimble, who at this point was representing both Sage Court and Herbalife in their merger negotiations. Kimble had represented Jensen and his wife on several prior occasions with respect to various corporate matters. During them telephone conversation, Kimble informed Jensen that he was negotiating a prospective deal for Sage Court, and that he needed Jensen to sell 1,950,000 shares of the plaintiffs’ Sage Court stock to a particular broker at $.03 per share and 1,050,000 shares to Kimble himself at $.02 per share. At the time, Sage Court stock was selling on the market at $.12 per share. Kimble told Jensen that these sales would bring into the deal some “very influential” people who “could potentially solidify a deal for Sage.” Jensen asked Kimble to identify the people and the deal but Kimble refused. Nevertheless, Jensen assumed the deal consisted of a merger with an undisclosed company on some undisclosed terms. Kimble concluded the conversation by stating\nLook Dave, I’m basically looking at this deal. You don’t know it, but you want this deal to go down. I want this deal to go down. This — you know — I’m kind of seeing the big picture. I know you don’t understand, but I see the big picture and — you know — basically we have dealt on things in the past. I have worked with you. You have done things with me and have I ever screwed you?\nIn response, Jensen stated “let’s do it.” De-pos. of D. Jensen at 127; Aplnt’s App. at 260. Jensen testified that he agreed to the deal because the plaintiffs were getting a good return on the stock being sold, and the sale still left them with a substantial number of shares upon which he hoped the plaintiffs would realize even greater profit after the deal was done.\nOn the afternoon of October 30, after Jensen initially agreed to sell three million shares of the plaintiffs’ stock as requested by Kimble, a letter of intent was signed between Herbalife and Sage Court announcing their intention to merge. The letter of intent stated that the reorganization would be accomplished by means of a stock for stock exchange, to be followed at a later date by a public offering of the stock of the newly formed corporation. The letter of intent also provided that the merger would be subject to the approval of the shareholders of Sage Court. Immediately following Herbalife and Sage Court’s approval of the letter of intent, a letter announcing this approval was distributed to the market makers, all the shareholders of Sage Court, and the SEC.\nOn the evening of October 30, Jensen received another phone call from Kimble. Kimble told Jensen that the sale of stock at $.03 had to take place the next day at 11:00 a.m. to the broker J.P. Michaels. In accordance with these instructions, Jensen telephoned his own broker on October 31 and directed the sale of 1,950,000 shares of the plaintiffs’ Sage Court stock. According to Jensen, it was not until he called his broker back an hour later to make sure the sale had gone through that he first heard the news about Herbalife’s intent to merge with Sage Court. At this point, Sage Court stock was trading on the market around $1.50 per share. In their verified complaint, the plaintiffs allege that the recipients of the stock sold on October 31 were Mason and the other party defendants.\nUpon returning from California on November 3, Jensen went to Kimble’s office with the remaining 1,050,000 shares of the plaintiffs’ Sage Court stock requested by Kimble. During this encounter, Jensen asked Kimble if he thought the deal he was insisting upon from Jensen was fair. Kimble replied, “I’m a key figure in this deal and if I don’t get the stock, it just may not happen.” Kimble also stated, “Look, Dave, there is a lot to happen on this thing. I have done a lot of work. I deserve it.” Jensen eventually sold the stock to Kimble for $.02 per share. Kimble informed Jensen that the stock was for himself, Mason, and Mason’s associates. At the time of the sale, the market price of Sage Court stock was $1.87 per share.\nThroughout the relevant time period, Jensen’s father-in-law was the Vice-President and a Director of Sage Court. Jensen acknowledged that he never contacted his father-in-law, or anyone else at Sage Court, to try to discover any details about the proposed deal before agreeing to convey, or actually conveying, the plaintiffs’ stock to the defendants.\nThe merger between Herbalife and Sage Court was approved by the shareholders of Sage Court, including the plaintiffs, and consummated on November 24, 1986. However, the subsequent public offering envisioned by the two companies never occurred, and efforts for an S-l Registration were abandoned in early 1987 when it became apparent that the corporate earnings of the new company would not support a hoped for stock price of $20 per share. There is no indication that the plaintiffs complained of any fraud or deception on the part of the defendants until more than a year after the merger was consummated and well after the S-l Registration efforts collapsed. The plaintiffs eventually filed this action against the defendants in February 1988, alleging that Kimble induced them to sell their stock to the defendants by making material misrepresentations and omissions, in violation of Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission. The plaintiffs requested both rescission and compensatory damages.\nThe district court dismissed the plaintiffs’ claims on summary judgment. The court concluded that Kimble was not liable to the plaintiffs for any omissions or misrepresentations because Kimble was under no duty to disclose information to Jensen, Jensen was aware of Kimble’s failure to disclose, and Kimble’s representations consisted merely of predictions rather than statements of fact. Because the liability of the other defendants was premised on the liability of Kimble, the court concluded that the other defendants were similarly devoid of liability. On appeal, the plaintiffs challenge the district court’s conclusion that Kimble made no actionable omissions or misrepresentations.\nSTANDARD OF REVIEW\nWe review the grant of summary judgment de novo. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The court applies the same legal standard used by the district court under Federal Rule of Civil Procedure 56(c). Id. Rule 56(c) permits summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In analyzing whether summary judgment is appropriate, we must view the evidence in the light most favorable to the non-moving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).\nThe moving party has the initial burden of demonstrating the absence of any genuine issue of material fact to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). Once the moving party has met its burden, the burden shifts back to the nonmoving party to show that there is a genuine issue of material fact. Bacchus, 939 F.2d at 891. To discharge its burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). If the nonmoving party fails to make this showing with respect to any element essential to its case and on which it bears the burden of proof at trial, then the moving party is entitled to summary judgment “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.\nDISCUSSION\nSection 10(b) of the Securities and Exchange Act of 1934 prohibits the use “in connection with the purchase or sale of any security ... [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U.S.C. § 78j(b). Pursuant to this section, the SEC promulgated Rule 10b-5, which provides in relevant part:\nIt shall be unlawful for any person ...\n(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading,\nin connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. In light of Rule 10b-5, it is clear that a person can be liable for making either material misrepresentations or material omissions in connection with the purchase or sale of securities. T.J. Raney & Sons, Inc. v. Fort Cobb, Okla. Irrigation Fuel Auth., 717 F.2d 1330, 1332 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984).\nIn the instant case, the plaintiffs assert that Kimble is liable under Rule 10b-5 for making both material omissions and material misrepresentations in connection with their sale of Sage Court stock. We will address each of these contentions in turn.\nA. Material Omissions\nOn appeal, the plaintiffs contend that Kimble violated Rule 10b-5 by failing to disclose to Jensen the nature of the deal, the identity of the merger partner, or the identity of all the persons who were to receive the plaintiffs’ stock. The district court concluded that these omissions were not actionable because Jensen knew of these omissions and no relationship of trust existed between Jensen and Kimble giving rise to a duty to disclose. We agree with the district court’s conclusion that Kimble’s omissions were not actionable under Rule 10b-5 because Kimble specifically advised Jensen of these nondisclosures and therefore Jensen sold the plaintiffs’ stock with full awareness of Kimble’s omissions.\nThe SEC’s authority to proscribe material omissions under Rule 10b-5 cannot exceed the power granted to it under Section 10(b) of the Securities and Exchange Act of 1934. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976). Section 10(b) empowers the SEC to promulgate rules only with respect to “manipulative” and “deceptive” trading practices. 15 U.S.C. § 78j(b). Accordingly, only those material omissions which qualify as manipulative or deceptive practices may properly be considered to fall within the purview of Rule 10b-5. Voege v. Magnavox Co., 439 F.Supp. 935, 941 (D.Del.1977) (“The untrue statements and omissions to state material facts which Rule 10b-5(b) are concerned with are limited to those which constitute manipulative or deceptive devices.”).\nThe Supreme Court recognized that the scope of Rule 10b-5 was limited to manipulative or deceptive practices in Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977). In that case, Santa Fe Industries used the short form merger procedure provided by Delaware Corporation Law to cash out the minority shareholders of Kirby Lumber Company. The minority shareholders subsequently brought suit against Santa Fe, contending that Santa Fe violated Rule 10b-5 by grossly undervaluing their stock in breach of its fiduciary duty, and by invoking the short form merger procedure in the absence of a valid business purpose. The Supreme Court rejected the minority shareholders’ suit, reasoning that Rule 10b-5 extended to claims of corporate mismanagement “only if the conduct alleged can be fairly viewed as ‘manipulative or deceptive.’ ” Id. at 473-74, 97 S.Ct. at 1301. The Court concluded that the minority shareholder’s claims of mismanagement did not satisfy this requirement, and therefore, that the district court properly dismissed their suit for failure to state a claim. Id. at 469, 477, 97 S.Ct. at 1298, 1302-03.\nAs in Green, we do not believe Kimble’s omissions can be fairly viewed as manipulative or deceptive. As Rule 10b-5 indicates, a manipulative or deceptive omission is an omission which renders the other affirmative statements made by an individual misleading. See 17 C.F.R. § 240.10b-5(b). Such a result may occur, thereby giving rise to a duty to disclose, when the parties are in “a fiduciary or other similar relation of trust and confidence.” Windon Third Oil and Gas v. FDIC, 805 F.2d 342, 347 (10th Cir.1986) (quoting Chiarella v. United States, 445 U.S. 222, 228,100 S.Ct. 1108, 1114, 63 L.Ed.2d 348 (1980)), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). Even when a relationship of trust exists between two parties, however, where the non-disclosing party explicitly informs the other party of his failure to disclose, an omission will not be misleading in the absence of special circumstances such as the inability of the dependent party to understand or appreciate the significance of the undisclosed information.\nIn the instant case, Kimble explicitly told Jensen during them initial conversation on October 29 or 30 that he could not reveal the nature of the deal, the identity of the merger partner, or the identity of those who would receive the plaintiffs’ stock. Furthermore, Kimble told Jensen that he didn’t “understand ... the big picture” like Kimble did. These affirmative statements by Kimble clearly notified Jensen that Kimble was not disclosing certain information with respect to the Sage Court deal and with respect to the proposed stock transaction to be performed by Jensen. In other words, by virtue of the disclosures that Kimble did make, Jensen knew what he didn’t know. Under these circumstances, even assuming arguendo that a special relationship of trust existed between Jensen and Kimble, we do not believe it can be said that Kimble’s omissions misled Jensen with respect to any of Kimble’s other remarks. Accordingly, even viewing the evidence in the light most favorable to the plaintiffs, we conclude that Kimble’s omissions were neither manipulative nor deceptive within the meaning of Rule 10b-5 and thus are not actionable under this rule.\nWe find support for our conclusion in the First Circuit’s decision in Willco Kuwait S.A.K. v. deSavary, 843 F.2d 618 (1st Cir.1988). In Willco, the defendant sold a 50% interest in an oil refining company to the plaintiff. After paying the initial downpayment required by the sales contract, the plaintiff refused to make any additional payments and brought suit under Rule 10b-5 for securities fraud. In support of its suit, the plaintiff attempted to introduce evidence at trial of the price that the defendant initially paid for the refinery. The trial court excluded this evidence and the First Circuit affirmed. The latter court reasoned that because the plaintiff knew at the time the sales contract was executed that the defendant refused to divulge the price it initially paid for the refinery, “there can be no claim of misrepresentation or material omission relative to the price information.” Willco, 843 F.2d at 627. Accordingly, the court concluded that the price information was of little relevance and thus inadmissible.\nWe conclude that the district court properly granted summary judgment for the defendants with respect to Kimble’s alleged omissions.\nB. Material Misrepresentations\nIn addition to his failure to disclose certain inside information, the plaintiffs assert that Kimble also violated Rule 10b-5 by misrepresenting that Jensen’s sale of Sage Court stock would bring in some “very influential” people who “could potentially solidify” the merger between Herbalife and Sage Court and that without the sale the deal “may just not happen.” See Aplnt’s Br. at 10-11, 30-31. According to the plaintiffs, these statements were untrue because the recipients of them stock were already involved in the merger and the merger was a done deal prior to the sale of their stock. The district court rejected the plaintiffs claim of affirmative misrepresentations on the ground that the alleged misrepresentations were too speculative to be actionable under Rule 10b-5. We do not reach this issue because we conclude that the plaintiffs have failed to satisfy their summary judgment burden of coming forward with specific facts to support one of the elements of their claim upon which they had the burden of proof: namely that Kimble’s remarks were untrue. See Zobrist v. Coal-X, Inc., 708 F.2d 1511, 1516 (10th Cir.1983) (in misrepresentation case under Rule 10b-5 burden is on plaintiff to establish that defendant made false representation).\nThe plaintiffs argue that their stock was not needed to bring in any influential people to solidify the merger because all the recipients of their stock were already involved in the deal. However, there is no evidence in the record that any of the party defendants other than Kimble and Mason were involved in the Herbalife merger prior to the plaintiffs’ sale of stock. Furthermore, even if all the party defendants had been involved in the deal prior to the sale, there is no evidence that they would have continued to pursue the deal in the absence of the additional incentive provided by the plaintiffs’ stock.\nAs evidence that their stock was unnecessary to enlist the assistance of the party defendants, the plaintiffs rely on the fact that Mason received a share of Herbalife stock as a finder’s fee. However, Mason stood to gain as a result of his share of Herbalife stock whether Herbalife merged with Sage Court or some other “clean shell.” This fact fails to establish that Mason, let alone the other party defendants, was willing to effectuate the merger between Herbalife and Sage Court in the absence of the plaintiffs’ stock. Similarly, the testimony of George Betts, an officer of Herbalife, that his company was unconcerned about whether the party defendants received any Sage Court stock does not deny that the party defendants were influential in ensuring the continued participation of Sage Court.\nThe plaintiffs’ contention that the merger was essentially a done deal prior to their sale of stock is equally devoid of any factual support in the record. Indeed, the evidence that does exist suggests the contrary. The evidence established that the letter of intent was not signed until after Jensen had agreed to sell three million shares of the plaintiffs’ Sage Court stock as requested by Kimble. Furthermore, even after the letter of intent was signed, the deal remained subject to many contingencies, including approval by the Sage Court shareholders. There is nothing in the record establishing that the defendants were not instrumental in effectuating these remaining contingencies.\nBased on our review of the record, therefore, we conclude that the plaintiffs have failed to establish by any evidence that Kim-ble’s representations to Jensen concerning the need for the plaintiffs’ stock at below market price were untrue. This failure of proof concerning an element of the plaintiffs’ claim requires us to affirm the district court’s grant of summary judgment to the defendants irrespective of the existence of any other factual disputes.\nAccordingly, for the foregoing reasons, we AFFIRM the district court’s order dismissing the plaintiffs’ claims on summary judgment.\n.Although Jensen knew the price offered him for three million shares of the plaintiffs' stock was considerably below the prevailing market price for Sage Court stock, he knew he could not sell three million shares on the market at the existing price because such a sale would drive the market price down.\n. The number of shares sold by each individual plaintiff were as follows: Jensen sold 400,000 shares, Rose Johnson sold 400,000 shares, Tiffny Jensen sold 400,000 shares, De West Indies sold 400,000 shares, and Sterling Group sold 350,000 shares.\n. These defendants consist of Mason’s business associates and corporations controlled by Mason.\n. The number of shares sold by each individual plaintiff were as follows: Tiffny Jensen sold 750,-000 shares and Capital Venture sold 300,000 shares.\n. Jensen’s father-in-law resigned his position sometime after November 3, 1986.\n. The district court granted the defendants' second motion for summary judgment. The court denied the defendants’ first motion for summary judgment because discovery had not yet been completed.\n. In their complaint, the plaintiffs also alleged that the defendants violated §§ 5 and 14 of the Securities Act of 1933 and § 61-2-22 of the Utah Uniform Securities Act. These claims were similarly dismissed by the district court on summary judgment and are not at issue in the current appeal.\n. Given our holding, we find it unnecessary to reach the question of whether a relationship of trust existed between Jensen and Kimble.\n. There are no such circumstances here. Jensen was a very experienced, sophisticated, and successful investor who was under no compulsion to sell the plaintiffs' stock. He could readily have declined to sell until he was properly apprised of the undisclosed information had he believed that course of action was in the plaintiffs' best interests.\n. In Platsis v. E.F. Hutton & Co., Inc., 642 F.Supp. 1277 (W.D.Mich.1986), aff'd, 829 F.2d 13 (6th Cir.1987), cert. denied, 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988), the court similarly concluded that the plaintiff's knowledge of certain omissions in the prospectuses for oil and gas shelter limited partnerships in which he invested was “fatal to his claim” that these omissions violated Section 12(2) of the Securities Act of 1933. Id. at 1294. Of course, Section 12(2) of the 1933 Act explicitly provides that liability shall not lie for the failure to disclose a material fact in a prospectus where \"the purchaser ... know[s] of such untruth or omission.” 15 U.S.C. § 77/(2)\n. The plaintiffs also contend at one point in their brief that Kimble is liable for failing to disclose to Jensen prior to the October 31 trade the existence of the letter of intent signed by Sage Court and Herbalife on October 30. However, the plaintiffs failed to raise this argument below in response to the defendants’ second motion for summary judgment. The only reference the plaintiffs made to the letter of intent consisted of a single statement that Jensen did not have a copy of the letter during his meeting with Kimble on November 3. Aplnt's App. at 324. At best, we construe this statement as raising a claim of omission only with respect to the November 3 sale. Accordingly, we find the plaintiffs' contention that Kimble committed an actionable omission by failing to disclose the letter of intent prior to the October 31 sale to be a new argument which we decline to consider for the first time on appeal. See Farmers Ins. Co., Inc. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989); Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1282 (10th Cir.1988).\nWe note that any claim of omission with respect to the November 3 sale of stock is without merit. It is undisputed that the existence of the letter of intent was public knowledge by November 3 and Jensen himself admitted that he learned about the letter of intent immediately following the October 31 sale. There is no duty under Rule 10b-5 to disclose information that is already in the public domain and known by the plaintiff. See Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317, 1323 (7th Cir.1988); Mayer v. Oil Field Systems Corp., 803 F.2d 749, 755 (2d Cir. 1986).\n. We may affirm the district court on any grounds that find reasonable support in the record. In re Slack-Horner Foundries Co., 971 F.2d 577, 580 (10th Cir.1992).", "type": "majority", "author": "EBEL, Circuit Judge."}], "attorneys": ["Paul T. Moxley and Cynthia K.C. Meyer, Campbell Maack & Sessions, Salt Lake City, UT, for plaintiffs/appellants.", "Richard Burbidge, Stephen B. Mitchell, and Gary Rhys Johnson, Burbidge & Mitchell, Salt Lake City, UT, for defendants/appel-lees."], "corrections": "", "head_matter": "David JENSEN; Rose Johnson; Tiffny Jensen; Sterling Group; De West Indies; Capital Ventures Development, Plaintiffs-Appellants, v. Thomas G. KIMBLE; Thomas Kimble, P.C.; Richard C. Mason; Richard C. Mason, Inc.; Nosam, Inc.; Trudy Reynolds; Naomi Mason; Nomco, Inc.; J.P. Michaels; Mike Reynolds; Russell K. Nielson; KDR, Inc.; Gary Ramsey, also known as Don L. Ramsey; Tammy Peters; Kristine Ramsey; Donnell Ramsey; Pauline Ramsey; George C. Ramsey; Nosam, Inc.; Nosam, Inc. II; Wallace S. Pidcock, Defendants-Appellees.\nNo. 91-4157.\nUnited States Court of Appeals, Tenth Circuit.\nJuly 30, 1993.\nPaul T. Moxley and Cynthia K.C. Meyer, Campbell Maack & Sessions, Salt Lake City, UT, for plaintiffs/appellants.\nRichard Burbidge, Stephen B. Mitchell, and Gary Rhys Johnson, Burbidge & Mitchell, Salt Lake City, UT, for defendants/appel-lees.\nBefore EBEL, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and COOK, Senior District Judge.\nThe Honorable H. Dale Cook, Senior District Judge, United States District Court for the Northern District of Oklahoma, sitting by designation."} | EBEL | HOLLOWAY | COOK | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1073 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,424 | UNITED STATES of America, Plaintiff-Appellee, v. Lewis Nathaniel DIXON, Defendant-Appellant | United States v. Dixon | 1993-08-02 | No. 92-1111 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before ANDERSON and EBEL, Circuit Judges, and BRIMMER, District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Lewis Nathaniel DIXON, Defendant-Appellant."], "opinions": [{"text": "EBEL, Circuit Judge.\nDefendant Lewis Nathaniel Dixon filed a pro se motion for relief under 28 U.S.C. § 2255, claiming that the district court erred at trial when it denied his motion to suppress evidence allegedly obtained from an unlawful search and seizure, and that he was denied effective assistance of counsel on appeal because counsel failed to raise the suppression issue. The district court denied the motion. We affirm.\nOn December 5, 1989, federal Drug Enforcement Administration (“DEA”) agents arrested the defendant at his home. The defendant was indicted and charged with conspiracy to possess with intent to distribute cocaine, and possessing and aiding and abetting the possession with intent to distribute cocaine. 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. On the same day DEA agents seized a Chevrolet Blazer automobile that the defendant had driven to two meetings where an undercover agent purchased cocaine. The Blazer was seized at an apartment parking lot several miles from the defendant’s home. The Blazer was seized for purposes of instituting a civil forfeiture proceeding pursuant to 21 U.S.C. § 881, and the defendant was given Notices of Seizure and Conveyance of both the vehicle and the cellular phone because of their involvement in a drug related offense. At the time the vehicle was seized the officers conducted an inventory search during which they found only an address book.\nAfter determining that the Blazer was leased and that a large amount of money was still owed on the lease, the DEA decided not to pursue a forfeiture action on the vehicle. Instead, the DEA planned to return the vehicle to the lessor, GMAC. However, the DEA did decide to proceed with a civil forfeiture proceedings on the cellular phone that had been installed in the vehicle. The DEA transported the vehicle to a garage operated by Motorola so that the cellular phone could be removed. Motorola was under contract with the government to perform such work. A Motorola technician removed the cellular telephone and, in the course of removing the dashboard to access phone wires, found a package of cocaine weighing over a pound. At no time did the DEA officers obtain any warrant or court authorization to search or seize either the vehicle or the cellular phone.\nUpon discovery of the cocaine in the defendant’s vehicle, a superseding indictment based on the cocaine found in the Blazer was filed against the defendant. The defendant filed a motion to suppress the cocaine found in the Blazer; however, the district court denied the motion. A jury found the defendant guilty of one count of conspiracy to possess cocaine with the intent to distribute, and six counts of possession of cocaine with intent to distribute. The defendant was sentenced to 121 months imprisonment, a $25,-000 fine, and three years’ supervised release.\nAfter his conviction, the defendant’s attorney perfected a direct criminal appeal to this court, but the trial court’s denial of the defendant’s motion to suppress was not raised in that appeal. Defendant’s convictions were affirmed on direct appeal. United States v. Dixon, 945 F.2d 411 (10th Cir.1991).\nThe defendant claims in this habeas proceeding that the trial judge erred in refusing to suppress the cocaine found in the Blazer and that he was denied effective assistance of counsel in his direct appeal because his counsel failed to raise the suppression issue. The district court dismissed the defendant’s habe-as action on the grounds that probable cause existed to seize both the defendant’s car and cellular telephone, that the cocaine discovery was inadvertent, and that the defendant failed to show that his appellate counsel’s conduct fell below the standards of objectively reasonable representation.\nAlthough .the defendant’s Fourth Amendment claim concerning the denial of the motion to suppress could properly have been raised on direct appeal, it was not. Accordingly, collateral review is appropriate only if the defendant has shown good cause for the failure to raise the issue, and prejudice as a result. Hines v. United States, 971 F.2d 506, 507-09 (10th Cir.1992); see United States v. Khan, 835 F.2d 749, 753-54 (10th Cir.1987) cert. denied, 487 U.S. 1222, 108 S.Ct. 2881,' 101 L.Ed.2d 915 (1988); cf. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982) (holding that defendant must show cause and prejudice to obtain collateral review where there was no objection at trial). Whether the defendant has shown good cause and prejudice depends on the validity of his ineffective appellate counsel claim.\nIn his habeas petition, and in his reply brief before this court, the defendant makes a Sixth Amendment claim concerning the ineffective assistance of appellate counsel. He asserts that he was denied the effective assistance of counsel because his counsel failed to raise the suppression issue on direct appeal. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), to prevail on a claim of ineffective assistance of counsel, the defendant must establish both that (1) the attorney's conduct fell below the standards of objectively reasonable representation required by the Sixth Amendment, and (2) the attorney’s inadequate performance prejudiced the defendant. Because the defendant’s Sixth Amendment claim concerns counsel’s handling of his Fourth Amendment claim, the defendant “must prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different, absent the excludable evidence, to demonstrate actual prejudice.” United States v. Owens, 882 F.2d 1493, 1498 (10th Cir.1989) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986)).\nThe ultimate issue presented by the defendant’s petition then is whether the defendant has presented a valid Fourth Amendment claim. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. ConstAmd. TV. Under the Fourth Amendment, a warrantless search is invalid, and the fruits of the search are inadmissible at trial, unless the search falls within one of the generally accepted exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); United States v. Franco, 981 F.2d 470, 472 (10th Cir.1992).\nThe Tenth Circuit is aligned with those circuits that have held that the government’s attempts to seize property under the civil forfeiture statute, 21 U.S.C. § 881 et seq, must comport with constitutional standards under the Fourth Amendment. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 872 (10th Cir.1992) (“Although forfeiture proceedings are inherently civil in nature, they are not to be effectuated in derogation of one’s constitutional rights.... Thus, any defects in process used to secure the possession of defendant property may defeat the government’s right to possession, inasmuch as the government will be barred from introducing evidence illegally seized in violation of the Fourth Amendment to prove a claim of forfeiture.”) (citations omitted); see United States v. Lasanta, 978 F.2d 1300, 1304-05 (2d Cir.1992); United States v. Linn, 880 F.2d 209, 215 (9th Cir.1989); United States v. Kemp, 690 F.2d 397, 401 (4th Cir.1982); United States v. Pappas, 613 F.2d 324, 329-30 (1st Cir.1979) (en banc).\nIn this case, the defendant raised a Fourth Amendment objection at trial and the court heard testimony regarding the nature of the search. It is undisputed that the seizure of the car and cellular phone was made without a warrant or other court authorization. The officers testifying at trial relied on the fact that they had probable cause to believe that the Blazer had been used in drug transactions, implicitly relying on 21 U.S.C. § 881. Although the trial court ultimately denied the defendant’s motion to. suppress the cocaine found in the Blazer, it is not clear from the record before us on what basis the trial court made its decision.\nThe district court below, in-considering this § 2255 petition, found that probable cause existed to seize both the defendant’s ear and cellular telephone, but that is insufficient to resolve the constitutional issue. The mere finding that probable cause existed for the Attorney General to conclude that the car and phone had been used pursuant to a drug crime is insufficient to justify a war-rantless search. It is necessary to determine whether there is a valid, recognized exception to the warrant requirement that authorized this seizure. Here we conclude that the record clearly shows that the car and the cocaine fell within the plain view exception to the warrant requirement. Thus, we conclude that the district court did not err in admitting the evidence found in the vehicle.\nThe initial seizure of the vehicle was justified under the plain view exception to the warrant requirement. Under the plain view exception, the incriminating character of the object must be readily apparent, the officers must have had lawful access to the object, and it must have been in plain view. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991). In the instant case, the DEA agents were lawfully present in the parking lot where the vehicle was seized, they had probable cause to believe that the vehicle had been used in drug transactions, and the vehicle was in plain view. As such the warrantless seizure was justified. Cf. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351-52, 97 S.Ct. 619, 628, 50 L.Ed.2d 530 (1977) (holding that warrantless seizure of automobile pursuant to tax levy from public area did not involve invasion of privacy).\nThe discovery of the cocaine was also justified under the plain view exception to the warrant requirement. Because the vehicle was lawfully seized, so were all of its contents. When the DEA decided not to proceed with the forfeiture of the car, but to continue forfeiture proceedings against the cellular phone, it was necessary to remove the phone from the car. The technician was lawfully extracting the phone, which the police had probable cause to believe had been used in drug transactions, and in doing so, came across the cocaine in plain view. Accordingly, the discovery of the cocaine did not violate the defendant’s Fourth Amendment rights. Cf. Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967) (upholding search of automobile following seizure pursuant to forfeiture proceedings where “reason for and nature of the custody may constitutionally justify the search”).\nIn sum, we conclude that the trial court did not err when it refused to suppress the cocaine found in the defendant’s vehicle. Because we find no merit in the defendant’s Fourth Amendment claim, his Sixth Amendment claim fails as well. Accordingly, we conclude that the district court properly denied the defendant’s position, and the order of the district court is AFFIRMED.\n. The parties do not dispute that the Blazer was seized pursuant to 21 U.S.C. § 881. See, e.g., Aplt’s Br. at 7; Aplee’s Br. at 6.\nAccording to 21 U.S.C. § 881(b) seizure without process may be made when:\n(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;\n(2) the property subject to seizure has been the subject of a prior judgment in favor of the United States in a criminal injunction or forfeiture proceeding under this subchapter;\n(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or\n(4) the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of this sub-chapter.\n. On appeal, the defendant did not raise the claim of ineffective assistance of counsel until his reply brief, although he raised the issue in the district court. Construing defendant's pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), we will consider the merits of his claim because the issue was preserved by having been raised below.\nDefendant also attempts to raise a Brady claim alleging the government failed to release exculpatory records for the Blazer’s cellular telephone prior to trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). In the district court, defendant did not claim the records would establish his innocence. Because that issue was not raised in the district court, we decline to address this argument for the first time on appeal. See Hides v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991).\n. Collateral attack under § 2255 is the preferred procedure for challenging the effectiveness of counsel in a federal criminal appeal. Beaulieu v. United States, 930 F.2d 805, 806 (10th Cir. 1991).\n. We have no doubt that the verdict would have been different absent the cocaine found in the vehicle. Those drugs were the subject of an independent charge upon which the defendant was convicted. As such, if the cocaine should have been suppressed, but was not, the defendant was clearly prejudiced.\n. We do not mean to suggest that counsel's conduct falls below an objectively reasonable standard whenever he fails to raise a claim which is ultimately determined to have had merit. We express no opinion on that issue here because we find that the defendant’s claim is without merit. Failure to raise an issue that is determined not to have merit does not constitute constitutionally ineffective assistance of counsel.\n.The court made an oral ruling as follows: “I am prepared to rule. The court in all probability will stand on this ruling. The Motion to Suppress will be denied. The Court finds that the warrantless seizure of the car was proper. That the contents — there is no constitutional or other impediment toward the apprehension of the cocaine.”\n. It is sufficient to satisfy the statutory requirements of 21 U.S.C. § 881(b)(4).\n. We note that we are authorized to affirm on any grounds that are supported on the record. Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 880 (10th Cir.1984), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986).\n. We assume for purposes of this analysis, without deciding the issue, that the Motorola technician, who was acting under contract with the DEA, was an agent of the DEA for purposes of the Fourth Amendment.\n. We conclude that the record supports the finding that the DEA had probable cause to believe that the phone had been used in the course and furtherance of drug transactions.", "type": "majority", "author": "EBEL, Circuit Judge."}], "attorneys": ["Michael J. Norton, U.S. Atty., and John M. Hutchins, Asst. U.S. Atty., Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee.", "Lewis Nathaniel Dixon, pro se."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Lewis Nathaniel DIXON, Defendant-Appellant.\nNo. 92-1111.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 2, 1993.\nMichael J. Norton, U.S. Atty., and John M. Hutchins, Asst. U.S. Atty., Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee.\nLewis Nathaniel Dixon, pro se.\nBefore ANDERSON and EBEL, Circuit Judges, and BRIMMER, District Judge.\nHonorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation.\nAfter examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument."} | ANDERSON | EBEL | BRIMMER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1080 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,463 | Elizabeth A. HONCE, Plaintiff-Appellant, v. Jose A. VIGIL, d/b/a Dorado Investments, Inc., a/k/a Villa Chaparral Mobile Home Sub-Division; Dorado Investments, Inc., Defendants-Appellees | Honce v. Vigil | 1993-08-02 | No. 92-2074 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge."], "parties": ["Elizabeth A. HONCE, Plaintiff-Appellant, v. Jose A. VIGIL, d/b/a Dorado Investments, Inc., a/k/a Villa Chaparral Mobile Home Sub-Division; Dorado Investments, Inc., Defendants-Appellees."], "opinions": [{"text": "PAUL KELLY, Jr., Circuit Judge.\nPlaintiff-appellant Elizabeth A. Honce appeals the dismissal of her Pair Housing Act suit. See 42 U.S.C. § 3601 (“Title VIII”). She claims that the court erred in granting judgment as a matter of law for Defendant-appellee Jose A. Vigil on both her Title VIII claims as well as her covenant of quiet enjoyment claim. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm..\nBackground\nIn August 1990, Ms. Honce arranged to rent a lot in Mr. Vigil’s mobile home park. Ms. Honce placed a mobile home on the property in mid-September and moved in at the beginning of October. Mr. Vigil invited Ms. Honce to accompany him socially on three occasions in September, prior to her moving in. He first asked' her to attend a religious seminar. She told him that she would try to attend, but did not. He then offered to take Ms. Honce and her young son to the state fair. She told him that she would think about it, but did not go. At their next meeting, he asked her to visit some property with him. She politely declined. Finally, two days before moving in, Mr. Vigil asked, “When can we go out?” She responded that she did not wish to go out with him at any time. He told her that he had only wanted to be friends and did not ask her out again. Both parties testified that Mr. Vigil never used profanity or made sexual advances or remarks.\nAfter Ms. Honce moved in, she and Mr. Vigil had a series of disputes over the property. The first involved a plumbing problem, which Mr. Vigil refused to pay for because he claimed that the problem was not in his line. The next arose over the building of a fence for Ms. Honce’s dog. Mr. Vigil required all tenants with dogs to erect fenced dog-runs. He prohibited the use of cement, and preferred that his own fencing materials be used. When Mr. Vigil sent a laborer over to start work on a fence for Ms. Honce as a favor to her, she stopped the work and informed him that she wanted no favors. Mr. Vigil also provided rocks to be used as stepping stones, which Ms. Honce did not want. These rocks were provided to all tenants.\nThe primary confrontation occurred on October 24, 1990. Ms. Honce had purchased fencing from Sears and workers began construction of the fence using cement. Mr. Vigil arrived, upset with the situation, and sent the workers away. He was unhappy with the use of cement, as well as Ms. Honce’s failure to seek his consent to build as required by the rental agreement. He also yelled at a worker who was repairing Ms. Honce’s door, although that worker did not leave. Ms. Honce and Mr. Vigil then entered into a shouting match, during which he threatened to evict her. As Mr. Vigil entered his truck to leave, Ms. Honce’s dog ran in front of the vehicle. Mr. Vigil “revved” the engine and Ms. Honce retrieved her dog, fearing that the dog would be hit. After Mr. Vigil departed, Ms. Honce continued shouting and threw the stepping stones into the street. Mr. Vigil then called the animal control department regarding her loose dog. That night, Ms. Honce went to the sheriffs department for advice and was told that she should be concerned for her safety. She left the next day and moved the trailer out on November 11.\nMr. Vigil testified that he believes there is a “conspiracy” against him, led by his former girlfriend and the sheriffs department. Relationships with most of his tenants quickly break down because of this conspiracy, and the problems are often with women. He has evicted between ten and twenty-five tenants in the past, both male and female, including his own nephew.\nMs. Honce’s neighbors testified that they had similar problems with Mr. Vigil. Rosa and Russell Haenner stated that he bothered Mrs. Haenner almost daily. They had a dispute over their dog fence, because Mr. Vigil wanted them to use his materials, and an argument over the flagstone walkway, because Mr. Vigil wanted them to use his flagstones. Mr. Vigil also yelled at them and called them names because they didn't attend a Bible study class with him. Mrs. Haenner insisted that they move out. When they informed Mr. Vigil that they were moving, he issued an eviction notice. They left two weeks after Ms. Honce moved in.\nMs. Honce alleges that Mr. Vigil’s actions amount to sexual discrimination and harassment, which forced her to leave the trailer park. The district court granted judgment as a matter of law for Mr. Vigil, following the conclusion of Plaintiffs evidence. The court found no disparate treatment in Mr. Vigil’s equally poor treatment of all his tenants, and no evidence of sexual harassment. As for constructive eviction, the court found that the sheriffs advice, not her landlord’s actions, caused her to vacate.\nDiscussion\nWe review de novo the district court’s directed verdict. Fed.R.Civ.P. 50(a) provides for entry of judgment as a matter of law when there is an “absence of proof’ of material issues, viewing the evidence in a light most favorable to the non-moving party. Martin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983). However, a mere scintilla of evidence is insufficient to create a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A directed verdict is appropriate if “there can be but one reasonable conclusion as to the verdict.” Id. While the district court may not resolve conflicts in the testimony or weigh the evidence, it may evaluate the evidence at least to the extent of determining whether there is sufficient evidence to support a jury verdict in favor of the Plaintiff. Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1471 (7th Cir.1993) (affirming directed verdict for defendant in discrimination case). Following a directed verdict in a discrimination case, the question for the appellate court is “simply whether the evidence ... was sufficient to justify a reasonable jury in finding discrimination.” Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174 (8th Cir.1992).\nI. The Fair Housing Act\nThe Fair Housing Act prohibits gender-based discrimination in the rental of a dwelling, or in the provision of services in connection with a rental. 42 U.S.C. § 3604(b). Discrimination may occur either by treating one gender less favorably (disparate treatment) or by sexual harassment. This circuit has not yet addressed the issue of sexual discrimination in the context of fair housing under Title VIII. However, we will look to employment discrimination eases for guidance. Morgan v. HUD, 985 F.2d 1451, 1456 n. 4 (10th Cir.1993); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2nd Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988).\nA. Disparate Treatment\nThe district court determined that there was insufficient evidence of disparate treatment because Mr. Vigil was “equally nasty” to all of his tenants. Ms. Honce argues that Mr. Vigil was more hostile to women, pointing to the evidence of his past problems with women and the supposed “conspiracy” against him by law enforcement. She further argues that Mr. Vigil’s testimony of a “conspiracy” at least creates a triable question of fact.\nThe ultimate question in a disparate treatment ease is whether the defendant intentionally discriminated against plaintiff. St. Mary’s v. Hicks, — U.S. ——, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Sorensen v. City of Aurora, 984 F.2d 349, 352 (10th Cir. 1993). To survive a directed verdict, plaintiff must establish a prima facie case of discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). In the context of employment discrimination, a prima facie case requires proof that the employer, after rejecting plaintiffs application, continued to seek applicants with qualifications similar to plaintiffs. Id. Here, the landlord did not refuse to rent to Ms. Honce, nor did he actually evict her. See e.g. United States v. Reece, 457 F.Supp. 43, 48 (D.Mont.1978) (landlord refused to rent to female tenants). Ms. Honce offers no evidence of a discrepancy in services provided. The landlord offered the same materials for property improvements to Ms. Honce as to her neighbors, and insisted on compliance with the rental agreement. The fact that Mr. Vigil believed that there was a conspiracy against him is not actionable unless he refused to rent to women or to provide women with the same rental services as men. Such was not the case. The Plaintiff has failed to prove a prima facie case of disparate treatment.\nB. Sexual Harassment\nHarassment based on sex is a form of discrimination. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987) (addressing harassment in the workplace). We have previously recognized two distinct categories of sexual harassment: “quid pro quo” harassment and hostile work environment (or housing environment) harassment. Id. “Quid pro quo” harassment occurs when housing benefits are explicitly or implicitly conditioned on sexual favors. See id. at 1414. Ms. Honce admits that Mr. Vigil did not make any sexual requests, explicit or otherwise, that he acted “gentlemanly” during their conversations, and that he even said he just wanted to be friends. She argues, however, that he became unreasonable after she rejected his advances, which forced her to leave.\nFew courts have addressed sexual harassment in the context of fair housing. In Shellhammer v. Lewallen, Fair Housing—Fair Lending Rptr. (P-H) ¶ 15,472 at 16,127 (W.D.Ohio), aff'd, 770 F.2d 167 (6th Cir.1985), the landlord requested that Mrs. Shellham-mer pose for nude pictures, and she refused. One month later he offered her money for sex, which she also rejected. Three months later the landlord evicted her. The district court found that the eviction was in response to the tenant’s rejection and awarded damages. (The court rejected plaintiffs hostile housing environment claim, however.) See also Grieger v. Sheets, No. 87-C-6567, 1989 WL 38707 (N.D.Ill.1989) (“quid pro quo” claim survived summary judgment where landlord refused to make repairs after tenant rejected his explicit demands for sex).\nIn Hicks v. Gates, plaintiff complained of receiving sexual remarks and inappropriate touching in the workplace. We found no quid pro quo harassment because there was no evidence that job security was conditioned on granting sexual favors. 833 F.2d at 1414. Likewise, Mr. Vigil made no quid pro quo threat based on sexual favors. Ms. Honce contends, though, that the threat was implicit, and that the landlord’s subsequent actions were in direct response to her rejection. She failed to provide any evidence of a connection, however. She rejected her landlord’s advances prior to moving in to the park. Mr. Vigil did not “retaliate” for the rejection by attempting to stop her from moving in. The disputes which occurred after she moved in involved the plumbing, stepping stones, and dog fence. Mr. Vigil’s positions were justifiable: he would only pay for his part of the sewer line, and the fence violated the rental agreement by the use of cement, and Plaintiffs failure to give prior notice. See Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982) (no causal connection between protected activity and plaintiffs firing where firing was based on legitimate business reason).\nAlthough Defendant may not be the most rational actor, Title VIII does not make irrational rental policies illegal. See Flasher, 986 F.2d at 1319. Ms. Honee failed to present evidence of a causal connection, and a conclusional allegation is insufficient to create a question of fact. See 1188, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir.1991). We agree that no reasonable jury could find quid pro quo harassment here.\nC. Hostile Housing Environment\nMs. Honce raises the related claim that Mr. Vigil’s harassment created a hostile housing environment. In the employment context an employer violates Title VII by creating a discriminatory work environment, even if the employee loses no tangible job benefits, because the harassment is a barrier to equality in the workplace. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (employer forcing plaintiff to engage in sex in the workplace created hostile environment). Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be “sufficiently severe or pervasive” to alter the conditions of the housing arrangement. See Hicks, 833 F.2d at 1413. It is not sufficient if the harassment is isolated or trivial. Mentor Savings Bank, 477 U.S. at 65, 106 S.Ct. at 2404. “ ‘[C]asual or isolated manifestations of a discriminatory environment ... may not raise a cause of action.’ ” Hicks, 833 F.2d at 1414 (quoting Bundy v. Jackson, 641 F.2d 934, 943 n. 9 (D.C.Cir.1981)). The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender. Hicks, 833 F.2d at 1415. Evidencé of harassment of other female tenants is relevant to plaintiffs claim. See id.\nIn Hicks, we remanded for a determination of whether sexual touching, sexual remarks and threats of violence in the workplace constituted a hostile environment. Hicks, 833 F.2d at 1415. Hostile environment claims usually involve a long-lasting pattern of highly offensive behavior. See e.g. Bundy v. Jackson, 641 F.2d 934. In Shell-hammer, the Sixth Circuit affirmed a district court finding that two explicit sexual propositions from a landlord during four months of tenancy did not prove a hostile housing environment because it did not create a “burdensome situation” that would make the tenancy undesirable. Shellhammer v. Lewallen, No. 84-3573, slip op. at 2, 1985 WL 13505 (6th Cir. July 31, 1985). One survey of sexual harassment in housing cites examples of harassment as making sexual remarks to a tenant, requesting sexual favors, and using the pass key to observe the tenant showering. See Regina Cahan, Comment, Home is No Haven: An Analysis of Sexual Harassment in Housing, 1987 Wis.L.Rev. 1061, 1062; see also Grieger v. Sheets, No. 87 C 6567, 1989 WL 38707 (N.D.Ill. Apr. 10, 1989) (landlord threatened to shoot tenant because tenant rejected sexual advances).\nThe offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence. Mr. Vigil asked Ms. Honee to accompany him socially on three occasions, all prior to her occupying the premises. The contact between them after that involved arguments over plumbing, stepping stones and a fence. The landlord’s behavior here was eccentric, and probably unwarranted, but was not directed solely at Ms. Honce. Other tenants of both sexes endured similar treatment. Because the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory. See Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir.1990); Scott v. Sears, Roebuck and Co., 798 F.2d 210 (7th Cir.1986).\nII. The Covenant of Quiet Enjoyment\nTo sustain a claim of violation of the covenant of quiet enjoyment, a tenant must show actual or constructive eviction. El Paso Natural Gas Co. v. Kysar Ins. Agency, 98 N.M. 86, 87, 645 P.2d 442, 443 (1982). Constructive eviction occurs when the landlord has substantially deprived the tenant of the beneficial use of the premises, and the tenant vacates, Dennison v. Marlowe, 106 N.M. 433, 437, 744 P.2d 906, 910 (1987), or when the landlord’s actions are meritless, done in malice or bad faith, and so severe as to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444.\nThe New Mexico Supreme Court has found that three threatening demand letters by the landlord followed by a lawsuit were not sufficient to interfere with the tenant’s peaceful enjoyment of the premises. El Paso Natural Gas Co., 645 P.2d at 444. However, the court did find constructive eviction where the tenant was forced out of the premises because of a fire code violation. Dennison, 744 P.2d at 910. Other courts have held that mere threats by the landlord do not constitute constructive eviction, see United States v. Bedford Assoc., 548 F.Supp. 732, 740-41 (S.D.N.Y.1982) (threat to condemn building and terminate services), aff'd in relevant part, 713 F.2d 895 (2d Cir.1983), nor do acts which merely inconvenience the tenant. See Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 371, 632 P.2d 723, 724 (1981).\nMr. Vigil did not take steps to evict Ms. Honce prior to her moving out. Ms. Honce claims that she was frightened by Vigil’s erratic behavior and moved out for her safety. Her own testimony, though, was that she moved out after speaking with the sheriffs department and reviewing their files. Past acts of the landlord toward others are not relevant to the current question of whether the landlord acted maliciously toward the plaintiff-tenant. See El Paso Nahiral Gas Co., 645 P.2d at 444 (question of constructive eviction focuses on malicious acts of landlord aimed at ousting a tenant in rightful possession). The relevant acts are Mr. Vigil’s treatment of the fence situation, the plumbing problem, and his apparent threat to the dog. His response to the plumbing problem was, appropriately, that he would only pay for his portion of the line. As for the fence, he chased off the laborers because the fence was being built with concrete and without prior notice to him, in violation of park policy. His actions were not entirely unjustified, even if erratic. The alleged threat, consisting of returning to his vehicle and “revving” the engine when the dog ran in front of him, is insufficient to create a jury question of constructive eviction. See Bedford Assoc., 548 F.Supp. at 740-41.\nFurthermore, even assuming that Defendant’s actions amounted to an interference with the property, the interference was limited to a brief period of time on a single occasion. (The primary dispute between the two parties here lasted for less than one hour.). This does not amount to a material disturbance of possession. See Santulones v. Property Management Serv., 110 Idaho 588, 593, 716 P.2d 1360, 1365 (1986) (locking tenant out of premises for one hour does not materially disturb possession). A reasonable jury could not have found Mr. Vigil’s actions sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises.\nAFFIRMED.\n. Even assuming that Ms. Honce had met a prima facie case with sufficient evidence of constructive eviction, she would then be required to show proof of pretext if the defendant offers a legitimate, nondiscriminatory reason for the eviction. E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992). Defendant presented evidence that the fence and Plaintiff's failure to give notice of construction were in violation of the rental agreement; therefore, Defendant's quarrel regarding the fence was justified. Ms. Honce did not dispute that the fence was in violation of the agreement. In fact her neighbors, a married couple, were evicted (after 'giving notice) following a similar dispute over fencing and stepping stones, and Mr. Vigil had evicted numerous other tenants of both sexes. So, even assuming a pri-ma facie case of disparate treatment, Ms. Honce lacked evidence of pretext and cannot withstand a directed verdict. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033 (10th Cir.1993).", "type": "majority", "author": "PAUL KELLY, Jr., Circuit Judge."}, {"text": "SEYMOUR, Circuit Judge,\ndissenting.\nI must respectfully dissent from the majority’s affirmance of the directed verdict in this case.- My examination of the record reveals that, under the standards governing review of directed verdict rulings, Ms. Honce offered sufficient evidence to raise a jury issue on each of her claims. In holding to the contrary, the district court erroneously refused to admit relevant evidence and misper-ceived the relevance of critical evidence that was admitted. In affirming, the majority selectively and improperly views the record in the light most favorable to Mr. Vigil. In so doing, it both relies on evidence that is irrelevant and disregards relevant evidence supporting Ms. Honce’s claims. Moreover, the majority proceeds under an inaccurate view of the applicable law. Although it articulates the proper test, it appears to evaluate the sexual harassment evidence under a crabbed definition that has been specifically rejected by this court.\nMy disagreement with the majority begins with my belief that it has not reviewed the record under the standards governing consideration of a motion for directed verdict.\nFed.R.Civ. 50(a), which provides for a motion for a directed verdict, is intended to remove from the jury a case where there is either a “complete absence of proof of an issue or issues material to the cause of action” or where “there are no controverted issues of fact upon which reasonable men could differ.” 5A Moore’s Federal Practice ¶50.02[1], at 50-20 (2d ed. 1982). To ensure that the court’s exercise of discretion does not improperly invade the province of the jury, the court’s discretion to grant a motion for directed verdict is limited in several respects. Most importantly, the court must view the evidence in the light most favorable to the non-moving party. Wylie v. Ford Motor Company, 502 F.2d 1292, 1294 (10th Cir.1974). Further, the opposing party must be given the “benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.” New Mexico Savings & Loan Ass’n v. United States Fidelity and Guaranty Co., 454 F.2d 328, 331 (10th Cir.1972). Moreover, the court is not permitted to consider the credibility of witnesses in reaching its decision, Brady v. Southern Ry. Co., 320 U.S. 476, 479-80 [64 S.Ct. 232, 234-35, 88 L.Ed. 239] (1943); Wright & Miller, Federal Practice and Procedure § 2527, at 560 (1971), nor may a court weigh the evidence or determine where the preponderance of the evidence lies. Wylie v. Ford Motor Company, supra, 502 F.2d at 1294. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01 [82 S.Ct. 1404, 1411-12, 8 L.Ed.2d 777] (1962) (jury weighs contradictory evidence and inferences, draws ultimate conclusion as to facts).\nIn short, only where “the evidence points all one way”, Wylie v. Ford Motor Company, supra, 502 F.2d at 1294, is a directed verdict appropriate. If there is conflicting evidence or insufficient evidence to warrant a one-way conclusion, a directed verdict is inappropriate. 5A Moore’s Federal Practice ¶ 50.02[1], supra, at 50-25 to -27. Generally, we have indicated that directed verdicts “should be cautiously and sparingly granted.” Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir.1978) (quoting Wilkin v. Sunbeam Corp., 377 F.2d 344, 347 (10th Cir.1967)).\nMartin v. Unit Rig & Equip. Co., 715 F.2d 1434, 1438 (10th Cir.1983).\nI.\nI agree with the majority that our assessment of discrimination claims under the Fair Housing Act, 42 U.S.C. § 3604(b), is guided by cases addressing employment discrimination under Title VII. However, I cannot agree with the majority’s application of that law to this record.\nA.\nI turn first to the issue of disparate treatment. To raise a jury issue on this claim, Ms. Honce was required to present evidence from which the jury could reasonably infer that Mr. Vigil, as a landlord, treated tenants who were women more harshly than tenants who were men. Although the majority refers to the testimony of Mr. and Mrs. Haen-ner, it fails to draw the inference from their evidence that is most favorable to Ms. Honce or to recognize that this favorable inference supports Ms. Honce’s assertion of disparate treatment. Mr. and Mrs. Haenner both testified that Mr. Vigil harassed Mrs. Haenner almost daily about tenancy matters while refusing to deal with Mr. Haenner on these problems even when both Mr. and Mrs. Haenner asked him to do so. Aplt.App. at 342-43, 354, 359. Mrs. Haenner told her husband the situation was so unbearable that she was moving out of the trailer park with or without him. Id. at 360. Mr. Haenner refused to leave until he was given this ultimatum. Id. This evidence supports a reasonable inference that Mr. Vigil’s conduct was selectively directed to women rather than men and amounted to constructive eviction.\nMoreover, Mr. Vigil himself testified that the problems he had as a landlord primarily involved tenants who were women. The court specifically asked Mr. Vigil: “Do you have the same problem with males in your mobile home subdivision as you do the females?” Id. at 271. Mr. Vigil responded:\nOn the accusations, normally they’ve been with the women. It’s a routine situation. Somebody gets evicted the plan is to go make a report at the police station and include sex. But they’re not bright enough to even come up with it themselves. I’m the one that told them years ago that that’s what I’m going to be accused of, that someday I was going to be sitting in a court because they can’t get to me through money, through law. The only way they can get to me is through false sexual allegations.\nId. at 271-72. Apparently, Mr. Vigil believed that women tenants were constantly attempting to take advantage of him and his money using sex. Mr. Vigil also believed that at least some of the female tenants with whom he had problems, and Ms. Honce in particular, were dupes of a conspiracy against him by police and sheriff personnel. See id. at 297. Mr. Vigil believed that these women were instructed to make false sexual accusations against him by these conspirators. See id. at 271-73. This evidence also supports an inference that Mr. Vigil was selectively hostile to women.\nThe majority simply fails to address the weight we must give this evidence when reviewing a directed verdict ruling. Instead, it begins by adopting the trial court’s “finding” that Mr. Vigil was equally nasty to all of his tenants. See maj. op. at 1088. The court may not, of course, usurp the jury’s role and make fact findings on disputed evidence in directing a verdict. Moreover, the evidence I have set out above supports the inference that Mr. Vigil was abusive only to women and that this abuse rose to the level of constructive or actual eviction.\nNext the majority holds dispositive its conclusion that Ms. Honce failed to make a prima facie case. However, the majority supports its conclusion with an improper recitation of the record. Thus it concludes that Mr. Vigil treated both sexes equally harshly because he evicted the Haenners after disputes over tenancy matters similar to those he had with Ms. Honce. Mr. Haenner testified, however, that Mr. Vigil did not serve an eviction notice on the Haenners until after Mr. Haenner had informed Mr. Vigil, at his wife’s insistence, that they were moving out. Aplt.App. at 364. The majority also concludes that Mr. Vigil was equally nasty to men and women because he provided the same rental services to both sexes. In so doing, the majority again disregards the standards under which we must view the record in reviewing a directed verdict ruling. We are not at liberty to reweigh conflicting evidence and substitute our judgment for that of the jury. “Further, the opposing party must be given the ‘benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.’” Martin, 715 F.2d at 1438 (quoting New Mexico Sav. & Loan Ass’n v. United States Fidelity & Guaranty Co., 454 F.2d 328, 331 (10th Cir.1972)). Thus, assuming that an inference favorable to Mr. Vigil might be drawn from his provision of equal rental services to men and women, this inference is not dispositive when, as here, an inference favorable to Ms. Honce can be drawn from evidence that Mr. Vigil’s differing treatment of men and women when providing those rental services resulted in the constructive eviction of women. This same evidence also supports an inference that Mr. Vigil’s “justification” for his actions, see maj. op. at 1089 n. 1, is mere pretext to discriminate against women. Thus, the evidence, and the reasonable inferences drawn therefrom, supports a finding of disparate treatment.\nB.\nThe majority also concludes that a directed verdict was proper on Ms. Honce’s claim of quid pro quo sexual harassment. Again I must disagree. The majority improperly bases its conclusion on a view of the record that favors Mr. Vigil. Ms. Honce’s quid pro quo claim required her to present evidence that Mr. Vigil conditioned the quality of her home environment upon her positive response to his personal overtures. The majority concludes that Ms. Honce failed to establish any connection between her refusals to go out with Mr. Vigil and his commencement of abusive behavior toward her. In support of this conclusion, the majority states that Ms. Honce rejected Mr. Vigil’s advances before she moved in and that Mr. Vigil did not attempt to stop her from moving in. However, Mr. Vigil’s own testimony undercuts the majority’s characterization of the situation. Ms. Honce moved the trailer into the park in mid-September and then began moving her belongings in piecemeal after that. Although she did not physically move into the trailer herself until October 1, she had signed a rental agreement in August. Mr. Vigil testified that in his view Ms. Honce had possession upon signing the rental agreement on August 25. He stated that after she signed the agreement, “[Njobody else could have lived there. The minute I sign, no one can live — I had given her possession. It’s immaterial when she decides to move in. And it’s immaterial when the mobile home moves in.” Aplt.App. at 278-79. Moreover, Mr. Vigil testified that he and Ms. Honce “had a very, very good relationship up until about a week after she moved in.” Id. at 292 (emphasis added). The majority seemingly believes that a single mother of a young child who has just borrowed money to buy a mobile home and has signed a rental agreement for the lot onto which she has moved it somehow is completely free to abandon the lease and leave the premises upon finding the conduct of her new landlord offensive. This inference, adversely drawn by the majority against Ms. Honce, is belied by Mr. Vigil’s insistent testimony that Ms. Honce was in severe financial straits, and by the fact that she ultimately was required to borrow $1,000 from her parents to pay the cost of moving the mobile home. It also defies common sense regarding the economic realities of single working mothers such as Ms. Honce.\nIn view of our obligation to view the record most favorably to the nonmoving party and to give her the benefit of all reasonable infer-enees to be drawn from the evidence, in my judgment the record raises a jury issue on whether Mr. Vigil retaliated against Ms. Honce because she refused to go out with him. Ms. Honce testified that Mr. Vigil’s attitude toward her changed abruptly after she made it clear to him at the very end of September that she did not wish to see him socially. See id. at 84-86. She testified that when she next spoke to Mr. Vigil to discuss a plumbing problem and her dog run, he became very upset and hung up the phone. Their relationship continued to deteriorate until the October 24 encounter witnessed by the fence installers at which Mr. Vigil threatened to evict her. See infra at 1096-1097. In the context of retaliation under Title VII, we have held that “[t]he causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.\" Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.) (emphasis added), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). I believe the jury could reasonably infer from the circumstances here that Mr. Vigil’s conduct, culminating in his eviction threat, was in retaliation for her refusal of his invitations.\nC.\nFinally, I am particularly troubled by the majority’s treatment of Ms. Honce’s claim that she was the victim of a discriminatory hostile housing environment. This circuit’s law with respect to hostile environment claims is set out in Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.1987), in which we adopted the District of Columbia Court of Appeals’ definition of sexual harassment.\n“We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee must, to be illegal under Title VII, take the form of sexual advances or of other instances with clearly sexual overtones. And we decline to do so now. Rather, we hold that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprises an illegal condition of employment under Title VII.”\nId. at 1415 (emphasis added) (quoting McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir.1985)); see also Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir.1988) (predicate acts underlying a sexual harassment claim need not be clearly sexual in nature); Robson v. Eva’s Super Market, Inc., 538 F.Supp. 857 (N.D.Ohio 1982) (assignment of more onerous tasks to female employee after employee resisted supervisor’s advances is sufficient evidence of sexual harassment to withstand summary judgment); Grieger v. Sheets, 1989 WL 38707 (N.D.Ill. April 10, 1989) (conduct of nonsexual nature can support a sexual harassment claim). We also note that “the requirement for repeated exposure will vary inversely with the severity of the offensiveness of the incidents.” Vermett v. Hough, 627 F.Supp. 587 (W.D.Mich.1986) (collecting cases). See also Henson v. City of Dundee, 682 F.2d 897, 904 n. 8 (11th Cir.1982).\nThe majority’s review of the evidence supports my conclusion that it has again viewed the evidence most favorably to Mr. Vigil. The majority states that “[t]he offensive behavior here did not include sexual remarks or requests, physical touching, or threats of violence.” Maj'. op. at 1090. It then concludes there is no evidence of disparate treatment because Mr. Vigil treated women the same as men. Id. Finally, it states that “[bjecause the conduct was neither sexual nor directed solely at women, it is not actionable under the hostile housing environment theory.” Id.\nThe fact that Mr. Vigil’s conduct was not sexual in nature is irrelevant under Hicks so long as that conduct would not have occurred but for Ms. Honce’s gender. Moreover, when the record is evaluated under a standard that gives effect to our holding in Hicks, the evidence I have set out in discussing the disparate treatment claim indisputably supports the inference that Mr. Vigil’s conduct created a hostile environment for women.- This evidence indicates, that numerous women, including Ms. Honce, Mrs. Haen-ner, and others to whom Mr. Vigil, himself referred, had felt compelled to move out as a result of Mr. Vigil’s behavior or had been evicted by him. The majority’s statement that “tenants of both sexes endured similar treatment” from Mr. Vigil, id., is simply without evidentiary support. The record contains specific references to only two male tenants, Mr. Haenner and Mr. Vigil’s nephew. As set out above, Mr. Vigil did not direct any hostile behavior to Mr. Haenner. Although Mr. Vigil was attempting to evict his nephew, the record does not reveal the details of Mr. Vigil’s conduct toward the nephew during this proceeding. In sum, the majority simply fails to recognize that a landlord may violate the Fair Housing Act even when he does provide equal rental services if, in so doing, he creates a hostile environment for women. Because I believe Ms. Honce has raised a jury question with respect to her Fair Housing Act claims, I would reverse the grant of a directed verdict.\nII.\nI do not disagree with the majority’s discussion of the general law on the covenant of quiet enjoyment but rather with the application of that law to the facts. The covenant of quiet enjoyment gives the lessee “the quiet and peaceable possession and enjoyment of the leased premises.” 49 Am.Jur.2d Landlord and Tenant, § 330 at 344 (1970). “It has been stated that a landlord is under the implied obligation not to disturb or in any way interfere with the leased premises of the tenant’s use and occupancy thereof ...” Id. § 336 at 351. Where there is interference with this covenant that is attributable to the landlord, the tenant has been constructively evicted. “[T]he concept is that, because of some wrongful act or omission by the landlord, the premises become uninhabitable (‘un-tenantable’) for the intended purposes.” Roger A. Cunningham, William B. Stoebuck, Dale A. Whitman, The Law of Property § 6.33 at 296 (1984). The test for constructive eviction can be stated as “ ‘Should a tenant be expected to continue to occupy the premises under these conditions?’ ” Id. at 297.\nDuring her testimony, Ms. Honce stated on numerous occasions that Mr. Vigil’s actions caused her to fear for her own safety and that of her young son. Aplt.App. at 128, 130, 135-137. She went to the police to ask for help and was advised by the police to move. Id. at 331-332. Captain Crespin of the Sandoval County Sheriffs Department told Ms. Honce “it would be for her best interests to leave that place as soon as possible,” id. at 331, “because she was probably in danger for herself and her child,” id. at 332. Ms. Honce’s version of the same encounter reveals that Captain Crespin did not casually suggest that she leave her home:\nQ. What did Captain Crespin do?\nA. He showed me a file that he had in his file cabinet.\nQ. And did you look at that file?\nA. Yes.\nQ. Did you read it over?\nA. Yes. The portion that he showed me, yes.\nQ. He gave you one particular file?\nA. Yes. He gave me a report — one-report out of the file.\nQ. And you read it over?\nA. Yes.\nQ. What was your reaction to reading the report?\nA. I became very concerned for my safety and the safety also of my child, but just concerned to the point that I became very afraid. I felt that I had come very close to having something violent happen to me, and I was — my feeling at that time was just to try to get out of that trailer park as fast as I could.\nId. at 128-29.\nAfter her discussion with the police, she returned home where she spent the night awake and afraid. “Well, I was just very afraid. I didn’t — I just really didn’t sleep. I loaded my gun, and I sat up — I put my son to bed and I sat up and basically watched TV all night.” Id. at 130. During the following two weeks, Ms. Honce stayed with friends as much as possible. Id. at 132-134. She only returned to the trailer when it was a necessity, and then she kept a loaded gun beside her. Id. at 132, 135. When Ms. Honce was able to make arrangements to move her trailer, a police officer came to the trailer park “to see that there was no problem.” Id. at 333. The testimony of Captain Crespin and Ms. Honce raises the inference that the conditions under which Ms. Honce was living, due to Mr. Vigil’s actions, were such that she was constructively evicted.\nMs. Honce also testified that Mr. Vigil threatened to evict her. On October 24, 1990, she was having a fence built so that she could have a dog ran as required by Mr. Vigil. Mr. Vigil arrived at her home while the fence was being put in and proceeded to stop the workers because they were using-concrete. Ms. Honce asked Mr. Vigil what was going on and he responded, “Well, I’ll just evict you, then. I’ll just evict you.” Id. at 115. Bruce Wheeler, the owner of the fence company, was present during the above exchange. His testimony corroborated Ms. Honce’s testimony that Mr. Vigil threatened to evict her. He testified that Mr. Vigil said to Ms. Honce, “‘You’ll be receiving your eviction notice.’ That’s what I heard.” Id. at 372. Mr. Vigil himself admitted that he may have said that. Id. at 277.\nMr. Wheeler also described the abusive nature of Mr. Vigil’s conduct, stating that “[i]t was very unusual. There’s only been another incident in the whole 14 years that I’ve done fence work that something of this magnitude has happened, you know, neighbors or owner and landlord, things like that.” Aplt.App. at 370. He said that Mr. Vigil “started really raising his voice” to Ms. Honce, id. at 372, and that “[i]t just surprised the hell out of me. Things like that just don’t happen every day. To me, he didn’t handle the situation professionally. There were other ways he could have handled it in a more humane manner than the way he did.” Id. Finally, Mr. Wheeler testified that he told his helper that “if somebody ever talked to me or he came over and talked to me the way he was talking to Ms. Honce, I’d bust his ass.” Id. at 374.\nMs. Honce contends that she was constructively evicted by Mr. Vigil’s actions which caused her to fear for her safety. When we give Ms. Honce the benefit of all of the evidence and inferences, as we must, there is ample evidence to suggest an interference with her property. When a landlord causes a tenant to fear for her safety to the point where she seeks other quarters and keeps a loaded gun by her side, I believe there is, at least, a jury question regarding constructive eviction. It is for the jury to determine if her fear is reasonable and justified.\nThe cases cited by the majority do not require that we affirm the district court. The case before us does not involve simple demand letters for eviction, El Paso Natural Gas Co. v. Kysar Ins. Agency, Inc., 98 N.M. 86, 645 P.2d 442 (1982), threats to terminate services, United States v. Bedford Assoc., 548 F.Supp. 732 (S.D.N.Y.1982), or mere inconveniences to the tenant, Baley & Selover, Inc. v. All Am. Van & Storage, Inc., 97 Nev. 370, 632 P.2d 723 (1981). This case involves extremely bizarre behavior on the part of the landlord, coupled with police reports regarding him, which caused the tenant to fear for her safety. The majority notes that Mr. Vigil’s “actions were not entirely unjustified, even if erratic.” Maj. op. at 1091. However, Mr. Vigil’s “justification” is not the issue. Rather, the issue is whether his actions interfered with Ms. Honce’s right to enjoyment of her property.\nFinally, the majority contends that the interference with property was “limited to a brief period of time on a single occasion.” Maj. op. at 1091. The majority relies on Santillanes v. Property Management Servs., Inc., 110 Idaho 588, 716 P.2d 1360 (App.1986). There the evidence, which was submitted to the factfinder, demonstrated that the tenant was locked out of his business for one hour prior to opening. Id. at 590, 716 P.2d at 1362. Here the interference lasted two weeks and ultimately drove Ms. Honce away. Aplt.App. at 134. Moreover, it involved threatening conduct by the landlord corroborated by police reports of prior conduct. Surely the majority does not believe a tenant must wait for actual physical violence before a claim for breach of her right to quiet enjoyment of the property arises. Nothing in the New Mexico cases on the covenant of quiet enjoyment persuades me that state law would require as much. I believe a reasonable jury could find that Mr. Vigil’s actions were sufficiently severe and unjustified so as to deprive Ms. Honce of peaceful enjoyment of the premises. I would therefore reverse the district court’s directed verdict on the constructive eviction issue as well.\n. In order to make out a quid pro quo claim, Ms. Honce docs not need to prove that she was denied the opportunity to move in. A quid pro quo claim may be established by showing that \"tangible [housing] benefits are conditioned on [a lessee’s] submission to conduct of a sexual nature and that adverse [housing] consequences result from the [lessee's] refusal to submit to the conduct.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). In an employment context, we did not require the plaintiff in Hicks to prove that she was fired. Rather, a loss of job benefits due to a refusal to submit to sexual advances was enough. Id. Thus, a denial of rental services alone is enough to make a case for quid pro quo sexual harassment.\n. I must take issue with the majority’s assertion that Mr. Vigil’s offensive behavior did not include \"threats of violence.\" Maj. op. at 1090. Ms. Honce described one incident which a jury could easily view as a threat of violence.\nAnd at that point, he just was — his whole manner was just real looming, you know, like he was just — just, to me it was threatening that he was just coming in there and trying to intimidate me. And then he — you know, he just told the man, \"Stop your work. Pack up and leave. She's not getting this fence.”\nAnd he got in his truck. And at that point my dog is still standing there and happened to be, like, standing right in front of his truck. And he got in his truck. And, like, just from the look on his face and the fact that he was, like, revving his engine, getting ready to go, I knew — I knew that if I didn’t step in and get my dog, he was just going to run over my dog.\nAplt.App. at 115-16. The police officer with whom Ms. Honce spoke described further incidents of violence. \"She claimed that he was insisting that she went out with him, and when she refused, he was coming to the house at all hours of the night and banging on her door, screaming at her obscenities and all types of abusive language; and, therefore, she was very frightened of him.\" Id. at 337.\n. The district court clearly erred in refusing to admit Ms. Honce’s proffered evidence showing Mr. Vigil’s treatment of other women tenants. Over Ms. Honce’s objection, the trial court stated several different times that this evidence was not relevant to Ms. Honce’s claim. See Aplt.App. at 244, 248-49, 251, 253, 257-58, 262. This court, however, has specifically held to the contrary. In Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415, 1416 (10th Cir.1987), we said that \"incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of the plaintiff's claim of a hostile work environment.” We pointed out that because the environment “is an important factor in evaluating the claim,” such evidence could be critical. Id. Accordingly, we stated that evidence tending to show a defendant’s harassment of other women in the plaintiff’s situation \"is directly relevant to the question whether he created an environment violative of Title VII.” Id. at 1416 (citation omitted).\n. I am puzzled by the majority's reference to El Paso Natural Gas Co., 645 P.2d at 444, see maj. op. at 1091, because I find no support in that case for the proposition that past acts of the landlord toward others are not relevant.", "type": "dissent", "author": "SEYMOUR, Circuit Judge,"}], "attorneys": ["Marcia D. Greenberger, National Women’s Law Center, Washington, DC (Richard J. Rubin and Carol Oppenheimer, Santa Fe, NM, with her on the brief) for plaintiff-appellant.", "Paul J. Kennedy, Albuquerque, NM, for defendant-appellee."], "corrections": "", "head_matter": "Elizabeth A. HONCE, Plaintiff-Appellant, v. Jose A. VIGIL, d/b/a Dorado Investments, Inc., a/k/a Villa Chaparral Mobile Home Sub-Division; Dorado Investments, Inc., Defendants-Appellees.\nNo. 92-2074.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 2, 1993.\nRehearing Denied Aug. 25, 1993.\nMarcia D. Greenberger, National Women’s Law Center, Washington, DC (Richard J. Rubin and Carol Oppenheimer, Santa Fe, NM, with her on the brief) for plaintiff-appellant.\nPaul J. Kennedy, Albuquerque, NM, for defendant-appellee.\nBefore SEYMOUR and KELLY, Circuit Judges, and LEONARD, District Judge.\nThe Honorable Timothy D. Leonard, United States District Judge for the Western District of Oklahoma, sitting by designation."} | SEYMOUR | KELLY | LEONARD | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 1085 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,489 | UNITED STATES of America, Plaintiff-Appellant, v. Ray GARZA, Defendant-Appellee | United States v. Garza | 1993-08-02 | No. 92-6390 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BRORBY, BARRETT and KELLY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, v. Ray GARZA, Defendant-Appellee."], "opinions": [{"text": "BARRETT, Senior Circuit Judge.\nIn conjunction with an investigation conducted by the United States Drug Enforcement Administration (DEA), approximately seventy-six pounds of marijuana were recovered from Margaret Gordon’s (Gordon) residence in Oklahoma City, Oklahoma. In cooperation with law enforcement officials, Gordon informed investigative agents that her source for the marijuana was a drug organization in Mexico, specifically one headed by an individual known as “Nacho.” She also indicated that the marijuana was being delivered to Oklahoma City by Ray Garza (Garza) who worked for Nacho.\nOn January 7, 1992, Gordon informed law enforcement officials that she had been contacted by Garza who sought collection of monies due and owing on a previous marijuana shipment. During the phone conversation, Garza informed Gordon that one Israel Avila (Avila) would be accompanying him and that the two were staying at a local hotel. Based on this information, DEA agents established surveillance of Garza’s hotel room.\nSubsequently, Garza and Avila were arrested, and both agreed to cooperate with law enforcement officials. Just as they had informed investigative agents, the next shipment of marijuana was delivered to their hotel room by Elaine Chavez (Chavez). Upon Chavez’ arrival, she was arrested and a search of her vehicle yielded 259 pounds of marijuana.\nGarza was indicted with co-defendants Avila and Chavez, charged with conspiracy to distribute marijuana and conspiracy to possess with the intent to distribute marijuana; distribution of approximately seventy-six pounds of marijuana; and use of a communication facility, namely a telephone, to facilitate the conspiracy. Pursuant to a plea agreement, Garza plead guilty to a one-count superseding information charging him with interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3). A one-count information charging Avila with the same offense was also filed.\nThrough additional interviews with Garza, law enforcement officials learned that Garza began work with the Mexico drug organization transporting marijuana from Albuquerque, New Mexico, to Oklahoma City. Garza’s role ultimately changed to collecting monies owed on past drug sales. Garza had just recruited Avila for possible employment shortly before their arrest.\nBased on the extent of Garza’s participation in the drug organization, his base offense level pursuant to U.S.S.G. § 2Dl.l(c)(8) was 28. He was credited with a three level adjustment for his prompt cooperation with law enforcement officials, and, under level 25, the court calculated Garza’s guideline range at 57 to 60 months.\nAt sentencing, the court determined that there was a disparity between Avila’s sentence of 33 months, the minimum within his guideline range, and the potential sentence for Garza. Accordingly, the court announced its intent to depart downward from Garza’s calculated guideline range. Following the Government’s objection, the court reviewed the pre-sentence report, the Government’s brief in opposition to downward departure, Garza’s brief in response, and entertained oral argument of counsel. The court ruled that, pursuant to 18 U.S.C. § 3553(a) and (b), a downward departure was justified, and it committed Garza to a term of 41 months followed by a period of three years supervised release. The Government appeals the district court’s sua sponte downward departure.\nAnalysis\nThe Government contends that the district court erred in sua sponte departing downward from the calculated guideline range based upon a perceived disparity in the sentences of Garza and Avila. “The determination of whether a downward departure is warranted and appropriate is committed to the sound discretion of the trial judge.” United States v. Underwood, 982 F.2d 426, 430 (10th Cir.1992), cert. denied, U.S. -, 113 S.Ct. 3043, 125 L.Ed.2d 729 (1993) (citing United States v. Bromberg, 933 F.2d 895, 897 (10th Cir.1991)).\nHere the sentencing court relied on 18 U.S.C. § 3553(a)(6) and (b) to depart from the guideline range:\n(a) ... The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—\n******\n(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; ...\n******\n(b) ... The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.\nThe court found that “the equalization of sentences in companion cases was not a factor the guidelines [took] into account, and thus is proper for consideration on a departure.” (Appellant’s Appendix, Vol. 1, p. 9). Further, the court noted that Garza and Avila had similar records and were charged with similar conduct, and thus the great disparity between the two sentences warranted equalization. Id. at pp. 9-10. In departing downward, the court found Garza more culpable than Avila and therefore sentenced him within a range two levels higher than Avila’s range, analogizing the two-level difference to that required under U.S.S.G. section 3131.1(c). Id.\nThe Government contends that the court was obligated under section 3553(b) to impose a sentence within the guideline range, as there was no showing of a mitigating circumstance of a kind, or to a degree, not adequately considered by the Sentencing Commission which would authorize the downward departure. According to the Government, it is only when the guidelines, the policy statements, or the official commentary of the Sentencing Commission do not account for a particular circumstance that the court may rely on that circumstance as a basis to depart from the applicable sentencing range.\nCongress specified that one purpose of the Sentencing Commission was to establish policies and practices which avoid unwarranted sentencing disparities among defendants with similar eiiminal records found guilty of similar criminal conduct. 28 U.S.C. § 991(b)(1)(B). “The method chosen by Congress to avoid unwarranted disparities is a guideline system that prescribes appropriate sentencing ranges for various combinations of facts concerning an offense and an offender and permits a sentencing judge to depart from the recommended range in unusual circumstances.” United States v. Joyner, 924 F.2d 454, 460 (2d Cir.1991). “The departure authority permits a sentencing judge to recognize that some factor concerning an individual defendant is of a kind or is present to a degree not adequately considered by the Commission. But neither Congress nor the Commission could have expected that the mere fact of a difference between the applicable guideline range for a defendant than that of his co-defendant would permit a departure, either because the difference was too large or too small. The Congressional objective was to eliminate unwarranted disparities nationwide.” Id.\nBased on the defendant’s role in the offense, increase the offense level as follows:\n(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.\nIt has been observed that “there must be something ‘special’ about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense.” United States v. Wogan, 938 F.2d 1446, 1448 (1st Cir.), cert. denied, — U.S. -, 112 S.Ct. 441, 116 L.Ed.2d 460 (1991). The Wogan court held that the reduction of Wogan’s sentence solely in an effort to achieve parity between Wogan and his co-defendant was not warranted. “[A] perceived need to equalize sentencing outcomes for similarly situated codefendants, without more, will not permit a departure from a properly calculated guideline sentencing range.” Id.\nIn our case, the sentencing court stated that “the equalization of sentences in companion cases was not a factor the guidelines [took] into account, and thus is proper for consideration on a departure.” (Appellant’s Appendix, Vol. 1, p. 9). However, as Joyner has indicated, Congress did consider that sentences of co-defendants may be disparate. Congress chose to avoid unwarranted disparities through a guideline system which considered various facts concerning the offense and the offender. Moreover, in the instant case, the sentencing judge failed to specify any factor concerning Garza which was of a kind or was present to a degree not adequately considered by the Commission. Nothing was referenced indicating that Garza should be treated differently than a defendant similarly situated. “To reduce the sentence by a departure because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant’s sentence and that of all similarly situated defendants throughout the country.” Wogan, 938 F.2d at 1449. Congress’ objective was to eliminate unwarranted disparities nationwide. Joyner, 924 F.2d at 460.\nWe have previously held that “[wjhile similar offenders engaged in similar conduct should be sentenced equivalently, disparate sentences are allowed where the disparity is explicable by the facts on the record.” United States v. Goddard, 929 F.2d 546, 550 (10th Cir.1991) (disparate sentences were warranted, due in part to the level of active involvement of each of the defendants). See also United States v. Sardin, 921 F.2d 1064, 1067 (10th Cir.1990), cert. denied, — U.S. -, 113 S.Ct. 348, 121 L.Ed.2d 263 (1992).\nIn this case, there is no evidence of similarity in the participation, culpability, criminality, and conduct of Garza and Avila. Garza became involved in the Mexico drug organization in early 1991 and had been actively involved for over a year. Avila had been a member of the organization for only a few days. Garza had been involved in delivering or receiving monies due on at least 1,145 pounds of marijuana, while Avila had been present only, on one occasion, during the delivery of 250 pounds of marijuana. Based on (1) Garza’s conduct and role in this particular offense, (2) the fact that Garza approached the Mexico drug organization and sought employment, (3) Garza’s delivery of marijuana for shipment on local freight lines, (4) Garza’s delivery of 100 to 150 pounds of marijuana to Oklahoma City on four or five occasions, (5) Garza’s collection of monies due and owing for previous marijuana deliveries, and (6) Garza’s compensation for this drug activity, Garza was clearly not a minimal participant. Avila, on the other hand, was a minimal participant. He received the benefit of an appropriate adjustment as provided in U.S.S.G. section 3B1.2(a).\nUnder the sentencing guidelines, the policy statements, and the official commentary of the Sentencing Commission, the only disparities which are to be avoided are unwarranted disparities. Here, the disparity in sentences is clearly explicable by the facts on the record. Goddard, 929 F.2d at 550. Accordingly, this cause is REMANDED for resentencing within the applicable guideline range.\n. Section 3B1.1 states in part:\n. Section 3B1.2 states in part:\nBased on the defendant's role in the offense, decrease the offense level as follows:\n(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.", "type": "majority", "author": null}], "attorneys": ["Leslie M. Kaestner (Joe Heaton, U.S. Atty., with her on the briefs), Asst. U.S. Atty., Oklahoma City, OK, for appellant.", "William P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, v. Ray GARZA, Defendant-Appellee.\nNo. 92-6390.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 2, 1993.\nLeslie M. Kaestner (Joe Heaton, U.S. Atty., with her on the briefs), Asst. U.S. Atty., Oklahoma City, OK, for appellant.\nWilliam P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for appellee.\nBefore BRORBY, BARRETT and KELLY, Circuit Judges."} | BRORBY | BARRETT | KELLY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1098 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,520 | Kenneth P. COFFEY, M.D., Plaintiff, David High, Real Party in Interest-Appellant, v. HEALTHTRUST, INC., a Delaware corporation, Edmond Memorial Hospital, Inc., an Oklahoma corporation, Joel A. Hart, McKinley D. Moore, James E. Dalton, Jr., Charles R. Brown, and Larry K. Killebrew, M.D., individuals, Defendants-Appellees | Coffey v. Healthtrust, Inc. | 1993-08-03 | No. 92-6202 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before LOGAN, Circuit.Judge, RONEY, Senior Circuit Judge, and SEYMOUR, Circuit Judge."], "parties": ["Kenneth P. COFFEY, M.D., Plaintiff, David High, Real Party in Interest-Appellant, v. HEALTHTRUST, INC., a Delaware corporation, Edmond Memorial Hospital, Inc., an Oklahoma corporation, Joel A. Hart, McKinley D. Moore, James E. Dalton, Jr., Charles R. Brown, and Larry K. Killebrew, M.D., individuals, Defendants-Appellees."], "opinions": [{"text": "RONEY, Senior Circuit Judge:\nThis is an appeal of an order entering Rule 11 sanctions against plaintiffs attorney for filing with the district court an economic study and an accompanying brief which the district court held purposely misconstrued the effect of that study. The district court imposed a sanction of $10,000 to be paid personally by the attorney to defendants under Rule 11 of the Federal Rules of Civil Procedure, finding that the filing was a knowing filing of a false and misleading pleading because the attorney knew that the study’s authors thought the study did not help the plaintiffs position. Because the claimed effect of the study was supported by the simultaneous filing of an affidavit of an expert, the attorney’s filing did not meet the requirements of Rule 11 for sanctions. We, therefore, reverse.\nThis is an antitrust suit. David High represented Kenneth Coffey, a radiologist, the plaintiff, whose case against Edmond Memorial Hospital rested in large part on the contention that the City of Edmond, Oklahoma, constituted the relevant market of the hospital. Edmond Memorial is the only hospital in Edmond, which is near Oklahoma City. Dr. Coffey was excluded from treating patients at Edmond Memorial when it entered into an exclusive radiology contract with another doctor. Defendants moved for summary judgment. An issue on the summary judgment was the market power of the hospital. Plaintiff submitted the deposition of Dr. James Freeland Horrell, an expert economist, who testified that, in his opinion, the relevant geographic market for Edmond Hospital was the area encompassed within the corporate limits of Edmond. Since Edmond Hospital was the only hospital in that area, Dr. Freeland concluded it would, of course, have market power within that geographic area. Defendants submitted contradictory evidence. Following the parties’ submissions, the district court entered an order on June 6, 1990, announcing its intention to take judicial notice of certain facts which would support a ruling as a matter of law that Edmond Memorial enjoys no market power in the relevant geographic market because of the distance between the center of Edmond and eight Oklahoma City hospitals.\nAfter the order, Attorney High came into possession of and submitted to the court as newly discovered evidence the study which is the focal point of this Rule 11 proceeding. The study was conducted by Health Care Investment Analysts, Inc., which compared costs of health care in competitive and noncompetitive markets. The study considered urban and suburban hospitals to be in the same market if they were within five miles of each other. High attached an affidavit of Dr. Horrell stating that the study supported High’s position that the hospital did not have competitors within its geographic market.\nIn connection with its motion for sanctions against High, pursuant to Federal Rule of Civil Procedure 11, the Hospital presented affidavits of Health Care Investment Analysts officials stating that they had told High that his intended use of the study would be misguided because the market definition used in the study was chosen arbitrarily and did not support his position as to the relevant geographic area. At the Rule 11 hearing, High testified that he had not been so informed.\nThe district court imposed sanctions. On appeal, this court vacated and remanded because it could not tell whether the district court had imposed sanctions based on High’s filing of the supplemental pleading or for having testified falsely.’ Coffey v'. Health-trust, 955 F.2d 1388 (10th Cir.1992).\nOn remand, the district court again imposed sanctions stating that they were imposed because of High’s knowing filing of a false and misleading supplemental pleading. The court answered the question posed by the remand order when it stated that it relied on the fact that High testified falsely simply to support its finding that High knew the supplemental pleading was false and misleading when it was filed.\nThe question then is whether what High filed violated Rule 11. Since High’s false testimony is a matter dealt with under different rules, the Rule 11 issue is no different than if High had truthfully testified that he had been told by the authors of the study that it did not support his position, but purposely did not reveal that to the court. Although imposition of Rule 11 sanctions is subject to an abuse of discretion standard of review, Cooter & Gell v. Hartmarx Co., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), this is an evolving area of the law, and it is difficult for a district court to predict accurately the development of the law in light of the various decisions that are being made. We hold, however, that it is not a violation of Rule 11 to fail to disclose a contrary expert opinion. Further, while lying at a Rule 11 hearing may be a disciplinary problem, it is not a subject for Rule 11 sanctions.\nRule 11 sanctions serve to punish a knowing filing of a false and misleading pleading. It ensures that an attorney observes his duty as an officer of the court, as well as an advocate for his client. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1335 (2d ed. 1990). Rule 11 requires that the pleading be, to the best of the signer’s knowledge, well grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. Fed.R.Civ.P. 11. The attorney has an affirmative duty to inquire into the facts and law before filing a pleading. His inquiry must be reasonable under the circumstances. Business Guides, Inc. v. Chromatic Comm. Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). There would seem to be little question that had High not known the view of the authors of the study, or the view of any other expert, the filing of the study with Dr. Horrell’s affidavit would not have been a violation of Rule 11.\nIn a case such as this, where the attorney does not have the necessary knowledge, involvement of the specialized knowledge of an expert is necessary. The attorney relies on the expert to explain to the judge or jury what is not within his or her realm of knowledge. There would seem to be no problem for the attorney to rely on the expert’s opinion as the basis of his client’s position. Als long as reliance is reasonable under the circumstances, the court must allow parties and their attorneys to rely on their experts without fear of punishment for any errors in judgment made by the expert. This case then boils down to whether the attorney, knowing of a differing opinion of another expert, must reveal that opinion to the court in order to avoid a Rule 11 sanction.\nIn light of Dr. Horrell’s affidavit and later testimony, High’s reliance was reasonable under the circumstances. Dr. Horrell swore in his affidavit submitted with the study that the study supported High’s position. Further, Horrell had been accepted as an expert by the trial court. Finally, Horrell testified at the Rule 11 hearing that, even when presented with the contradictory conclusion of the author of the study, his conclusion would not change. Given Horrell’s unwavering belief that the study supported his conclusions, the level of his expertise, and the trial court’s acceptance of him as an expert, reliance on his conclusions by the attorney is reasonable even in light of contradictory expert conclusions.\nAs to the argument that High violated the Rule by failing to disclose that other experts, those who made the study, disagreed with Horrell’s conclusion, we find that failure to disclose such evidence to the court is not sanetionable under Rule 11. We agree with the Third Circuit that conflict of opinion alone is an insufficient basis for Rule 11 sanctions. Schering Corp. v. Vitarine Pharmaceuticals, Inc., 889 F.2d 490, 499 (3d Cir.1989). It is the obligation of counsel opposing the value of evidence, not the proponent, to expose weakness in evidence upon which an attorney relies for the filing of pleadings, motions and other papers.\nREVERSED", "type": "majority", "author": "RONEY, Senior Circuit Judge:"}], "attorneys": ["William J. Skepnek, Stevens, Brand, Golden, Winter & Skepnek, Lawrence, KS (William R. Burkett and Steven L. Tolson, with him on briefs, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, with him on briefs), for plaintiff-appellant.", "Douglas Colton, Verner, Liipfert, Bern-hard, McPherson & Hand, Washington, DC (Don C. Lewis, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, DC, Darrell W. Downs, Susan A. Short, and Glen D. Huff, Foliart, Huff, Ottaway & Caldwell, Oklahoma City, OK, George F. Short, Cynthia L. Sparling and Kevin Driskill, Short, Barnes, Wiggins, Margo & Adler, Oklahoma City, OK, with him on the briefs), for defendants-appellees."], "corrections": "", "head_matter": "Kenneth P. COFFEY, M.D., Plaintiff, David High, Real Party in Interest-Appellant, v. HEALTHTRUST, INC., a Delaware corporation, Edmond Memorial Hospital, Inc., an Oklahoma corporation, Joel A. Hart, McKinley D. Moore, James E. Dalton, Jr., Charles R. Brown, and Larry K. Killebrew, M.D., individuals, Defendants-Appellees.\nNo. 92-6202.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 3, 1993.\nWilliam J. Skepnek, Stevens, Brand, Golden, Winter & Skepnek, Lawrence, KS (William R. Burkett and Steven L. Tolson, with him on briefs, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, with him on briefs), for plaintiff-appellant.\nDouglas Colton, Verner, Liipfert, Bern-hard, McPherson & Hand, Washington, DC (Don C. Lewis, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, DC, Darrell W. Downs, Susan A. Short, and Glen D. Huff, Foliart, Huff, Ottaway & Caldwell, Oklahoma City, OK, George F. Short, Cynthia L. Sparling and Kevin Driskill, Short, Barnes, Wiggins, Margo & Adler, Oklahoma City, OK, with him on the briefs), for defendants-appellees.\nBefore LOGAN, Circuit.Judge, RONEY, Senior Circuit Judge, and SEYMOUR, Circuit Judge.\nHonorable Paul H. Roney, Senior United States Circuit Judge for the Eleventh Circuit Court of Appeals, sitting by designation."} | LOGAN | RONEY | SEYMOUR | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1101 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,553 | UNITED STATES of America, Plaintiff-Appellee, v. Leson REED, Defendant-Appellant | United States v. Reed | 1993-08-03 | No. 92-6216 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BALDOCK, KELLY, Circuit Judges, and OWEN, District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Leson REED, Defendant-Appellant."], "opinions": [{"text": "OWEN, District Judge.\nLeson Reed appeals from his conviction and sentence as a drug dealer. The evidence at the trial, in essential outline, was as follows. In May or June 1991, Antonio Williams, a confidential informant for the Drug Enforcement Agency in Oklahoma City, Oklahoma attempted to purchase cocaine from Reed at the James Market in Oklahoma City. Reed, who was leaving to attend a funeral in another city, told Williams that Mike Woods could provide him with cocaine. Thereafter, in August, Williams, who already had Woods’s pager number written on a “Strictly Neat Body Shop” business card, paged Woods, and met with him at the James Market where Williams bought one ounce of cocaine from Woods for $1000. The Strictly Neat Body Shop was an operating auto body repair shop, but was also, it appears, the base for Reed’s narcotics operation.\nOn September 5, Williams paged Fred Rice, known as “Porky,” to get cocaine. On a previous occasion Rice had told him, “Damn, we ain’t got no dope. I will be glad when Leson gets back.” This time Rice had dope available and they met at the James Market. There Williams introduced undercover Detective Elic Bostic to Rice as “C.T.”. Because Rice did not have cocaine with him, he told Williams to follow him to another location. They did, going to the house of Roshawn McFarland. Rice went in the house, and on coming out again told Williams and Bostic to follow him, which they did to the Han-D-Sak parking lot. There Rice gave Williams an ounce of cocaine for $1,100.\nOn October 2, Williams spoke again with Woods. Thereafter, accompanied by undercover agent Bostic, Williams picked Woods up, and Woods told him to drive to the Strictly Neat Body Shop. Upon arriving, Woods went inside, while Williams and Bostic waited in the car. Reed’s and Rice’s cars were in front of the shop when they arrived. When Woods came out of the body shop he gave Williams the cocaine in exchange for $2,200.\nA couple of days later, Williams called Reed to complain that Woods had given him only seven quarter ounces of cocaine although he , had paid Woods for eight. Williams’ testimony was:\n[Reed] said that he had gave Mike eight and I told him Mike only gave me seven. He said he was going to get at Mike about that, because he knowed what he gave him.\nDuring this conversation Reed gave Williams his mobile phone number so Williams could deal with him directly in future drug transactions; and Rice’s pager number.\nThereafter, Williams called Reed on Reed’s mobile phone and arranged for the purchase of four ounces of cocaine base.\nOn October 10, Williams and Bostic drove to the Strictly Neat Body Shop to get the four ounces of cocaine base from Reed. Williams introduced Bostic to Reed as his “home boy, C.T.”. Reed then told Williams and Bostic that “Dilos was going to count the [drug] money because he [Reed] wouldn’t touch the stuff. Because if the police was around, everything would be legitimate.” Reed also told them that someone else was bringing the cocaine — that his “home boy was on his way[.]”\nWhile waiting for the cocaine to arrive, Williams was introduced to Reed’s brother, George Mackey, also known as “May-May.” Upon the coming in view of one Keith Wayne Dennis, also known as “Ki-Ki”, Reed remarked, “[H]ere comes my home boy right now.” Dennis took four ounces of cocaine out from under his shirt and Williams handed $4,000 to Reed’s brother Mackey, who proceeded to count the money. When it was observed that Mackey was having trouble counting the money, Dennis helped him. When Dennis finished counting the money, Williams took the drugs and put them in the trunk of his car. As Williams and Bostic were about to leave, Reed came over to their ear and asked, “[I]s everything cool,” to which Williams responded, “Yeah.” Williams also told Reed at this time that he might want to buy drugs from him every Wednesday, to which Reed replied, “Well, it is on the table. Next time you come, you won’t have to count the money, you just get the dope and you can leave.”\nOn evidence supporting the foregoing, Appellant Leson Reed was convicted of: (1) conspiring to possess cocaine base with intent to distribute, and to distribute it in violation of 21 U.S.C. § 846; (2) using a telephone in facilitating the knowing and intentional distribution of cocaine base in violation of 21 U.S.C. § 843(b); and (3) distributing 103.7 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). He was sentenced to a term of 360 months, plus concurrent one and five year terms of supervised release to follow, and the standard mandatory special assessments.\nOn appeal, Reed raises the following issues: (1) whether there was sufficient evidence to establish a drug conspiracy and to link him to it; (2) whether the District Court erroneously denied his motion to dismiss the count charging him with using a telephone in facilitating the knowing and intentional distribution of drugs; (3) whether the District Court erroneously denied his motion for a new trial by reason of the government’s alleged failure to comply with a discovery order; and (4) whether the District Court imposed an excessive sentence under the Sentencing Guidelines.\nThe Conspiracy Count\nCount 1 of the Indictment alleged that a drug conspiracy existed between Le-son Reed, George Mackey, Fred Rice, Keith Wayne Dennis, and Michael Woods. Reed contends that the evidence presented at trial was insufficient to establish a drug conspiracy and link him to it. The law, well-established, is as we stated in United States v. Horn, 946 F.2d 738 (10th Cir.1991):\nThe essence of a drug distribution conspiracy is an agreement between two or more persons to traffic in controlled substances.\n•Jfi # # 5¡{ Jfc #\nA conspiracy conviction requires the government to [have] prove[n] that “(1) a conspiracy existed, (2) the defendant knew the essential objectives of the conspiracy, and (3) the defendant knowingly and voluntarily became a part of it.”\nId. at 740 (quoting United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991)) (citation omitted).\nThe following essential facts dispose of Reed’s contention that there was no conspiracy of which he was a member: (1) Reed’s base of operations was the Strictly Neat Body Shop; (2) When Reed was approached by Williams in May or June of 1991 to purchase drugs, Reed told him to get in touch with Woods; (3) in August, Woods, who had previously given Williams his pager number on a Strictly Neat Body Shop business card, sold one ounce of cocaine to Williams; (4) Rice complained to Williams that he had no drugs because Reed was away; (5) Rice later sold cocaine to Williams; (6) Woods sold cocaine to Williams at the Strictly Neat Body Shop on October 2; (7) Reed’s and Rice’s cars were located in front of the Strictly Neat Body Shop while that transaction was going on; (8) after being shorted one quarter ounce of cocaine by Woods during that transaction, Williams complained to Reed, who said that he would take care of the shortage; (9) Reed gave Williams Rice’s pager number; (10) on October 10,1991 Williams went to the body shop to get cocaine from Reed. It was brought to the body shop by Dennis and delivered to Williams; and (11) Reed and Williams arranged for future deliveries every Wednesday.\nBased on the foregoing, it was clearly reasonable for the jury to conclude that there was a conspiracy as charged and that Reed was its main coconspirator.\nUse of a Telephone to Facilitate a Drug Transaction\nCount 10 of the indictment charged Reed with using a telephone “on or about October 3” to facilitate the commission of a drug felony in violation of 21 U.S.C. § 843(b). Reed claims that the government failed to prove that the telephone calls “on or about October 3” resulted in an actual distribution of cocaine which, he asserts, is required to convict under § 843(b). Accordingly, Reed contends that the District Court was in error in denying his motion for dismissal or judgment of acquittal as to Count 10.\nHowever, as the Third Circuit has stated in dealing with this issue:\nSection 843(b) makes criminal the use of a telephone “in committing, or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter [subehapter IJ or subchapter II of this chapter [Chapter 13 of Title 21].” Included within subchapter I is § 846, which makes it a felony for a person to attempt or conspire to commit any offense defined in subchapter I (such as distribution or possession with intent to distribute, defined as offenses in § 841). In other words, attempt to distribute a controlled substance, conspiracy to distribute a controlled substance, attempt to possess a controlled substance with intent to distribute it, and conspiracy to possess a controlled substance with intent to distribute it, are all felonies under provisions of subchapter I. As such, they are plainly included within the terms of § 843(b).\nIn sum, we hold that proof of an underlying inchoate crime, such as attempt or conspiracy under § 846, is sufficient to sustain a facilitation conviction under § 843(b). It is therefore not necessary that an actual, consummated distribution be shown. In reaching this result, we are in accord with all other courts of appeals which have considered this question.\nUnited States v. Pierorazio, 578 F.2d 48, 51 (3d Cir.) (emphasis in original), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652 (1978) (citations omitted). Accord United States v. Briscoe, 896 F.2d 1476, 1510 (7th Cir.1990). We agree. Having concluded that Reed’s conviction on the conspiracy was proper, the government did not need to prove that the phone calls “on or about October 3rd, 1991” facilitated an “actual distribution” of cocaine base, although it appears on this record that one did in fact facilitate an actual distribution of cocaine base.\nAccordingly, the District Court properly denied Reed’s motion for dismissal or a judgment of acquittal as to Count 10.\nFailure to Comply with the Court’s Discovery Order\nPrior to trial, the government was to provide Reed with any statements made by him, written or oral. An oral statement came out on the direct examination of undercover agent Michael Bakios as follows:\nQ. Did [Reed] make any statements to you?\nA. [Reed] had made a statement about Lee Arthur Tucker that — or “Rocky” is the name that he used, that they were enemies. As a matter of fact, Leson stated that he had hit him in the mouth, I think it was, a week ago, a week prior to November 6th. He said he hit Rocky in the mouth.\nReed contends that not having been told by the agent of this statement of his to the agent, his counsel repeatedly explored a line of inquiry endeavoring to establish, or at least suggest, that it was actually Lee Tucker who was on the phone calls at the body shop and was the one involved in the actual distribution of cocaine. This line of attack, Reed asserts, was undercut by the disclosure later in the trial of his statement concerning his punching Tucker, making it unlikely that Tucker would have been around the body shop at all to take phone calls.\nAgent Bakios, upon later inquiry, conceded he had not told Reed’s counsel all the details of his conversation with Reed:\nQ. And is there a particular reason why you have never brought [the discussion about Lee Arthur Tucker] to the attention of the Court in the preliminary hearing or any other report?\nA. I honestly didn’t think it was going to become an issue at all until you brought the name Lee Arthur Tucker out.\nQ. Is that why, when you testified at preliminary hearing on January 23,1992, Page 16, you indicated as — or my question to you was “As supplemental information from this affidavit from the undercover report, what additional information has come to your attention since you signed the affidavit?”\nYou indicated, “Just further details.”\nA. Uh-huh.\nQ. I indicate, “Nothing more than what you testified as of today?”\n“Right.”\nSo, in fact, you were not telling us the whole story at the preliminary hearing?\nA. No. I was telling you — I don’t know whether you expected me to give you everything that Leson Reed had stated to me. I tried to remember the pertinent facts. For instance, Reed stated that he wasn’t involved in narcotics trafficking. I thought you would want to know that. The Lee Arthur Tucker bit, to me, was insignificant until trial.\nIn United States v. Peveto, 881 F.2d 844 (10th Cir.1989), we set forth the factors applicable here:\nThe Federal Rules of Criminal Procedure give trial courts broad discretion in imposing sanctions on a party who fails to comply with a discovery order.\nIf any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.\n* *****\n(citations omitted). The district court’s exercise of discretion is governed by several factors:\nWhen the government fails to comply with a discovery order, the factors the district court should consider in determining if a , sanction is appropriate are (1) the reasons the government delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government’s delay; and (3) the feasibility of curing the prejudice with a continuance. United States v. Eucedar-Hemandez, 768 F.2d 1307, 1312 (11th Cir.1985); United States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir. 1986); United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir.1988).\nApplying those factors here, it is clear on this record that while Reed’s counsel at trial sought a few times to elicit facts supporting a contention that it was Tucker and not Reed at the body shop, counsel’s efforts never bore the slightest fruit. As to confidential informant Williams, an example of the cross examination in this area went as follows:\nQ. (By Mr. Strealy) The question was: You are not sure that was Leson Reed that answered the telephone?\nA. He never answered the phone. Someone called him to the phone.\nQ. Someone called someone to the phone?\nA. Someone called somebody by the name of Lee to the phone.\nQ. Do you know Lee Arthur Tucker?\nA. Yes, I do.\n* * X ❖ * *\nQ. How many times have you talked to Lee Arthur Tucker on the phone?\nA. I haven’t.\nAs to the other participant, Bostic, the cross examination was:\nQ. Have you ever met [Lee Tucker]?\nA. No, sir, I haven’t.\nQ. You wouldn’t recognize him, then, if he was one of those individuals there?\nA. I’m sure I wouldn’t.\nOn the other hand, the evidence supporting Reed’s identity as the party with whom the informant and the undercover agent dealt was clear, and indeed, on the October 10th transaction was irrefutably backed up by a video taken by surveillance agents across the street from the body shop.\nThus, under Peveto, supra, there was no showing whatsoever of prejudice to Reed. Accordingly, the district court was well within its discretion in denying Reed’s motion for a new trial. We note that Reed does not contend that he had not told the agent he had punched Tucker. Thus, Reed was presumably aware of both the incident with Tucker and the fact he had told the agent about it. Accordingly, he permitted his counsel to cross examine in accordance with this strategy at his peril.\nReed’s Sentence\nFinally, Reed asserts that his sentence of 360 months imprisonment was grossly excessive, and that the record was insufficient to support the Guidelines enhancements imposed in four areas: 1) his role as an organizer or leader of the conspiracy; 2) the quantity of drugs attributable to him; 3) the use of a weapon in the drug transaction and 4) his criminal history calculation. Reviewing a District Court’s sentence we “accept the findings of fact of the district court unless they are clearly erroneous and give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e).\nReed’s Role in the Conspiracy\nThe District Court assessed a four point upward adjustment pursuant to § 3B1.1 of the Sentencing Guidelines based on its finding that Reed was an organizer or leader of a drug operation that involved five or more individuals. The recital of the evidence supporting the conviction, supra, fully supports the sentencing judge’s conclusion that a drug conspiracy existed, that at least Reed, Woods, Rice, Dilos, Mackey, and Dennis were members of it, and that Reed was its leader. This meets the test of United States v. Bernaugh, 969 F.2d 858, 862-63 (10th Cir.1992), where we stated: “The defendant ‘must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime.’ ” See also, United States v. Rutter, 897 F.2d 1558, 1563 (10th Cir.1990).\nThe Quantity of Drugs Attributable to Reed\nIn determining Reed’s base offense level for purposes of sentencing the District Court concluded that Reed was responsible for the sale of 216.5 grams. Reed claims that at most only 108 grams can be attributed to him. The Sentencing Guidelines provide that:\n[I]n a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.\nTypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.\nU.S.S.G. § 1B1.3, comment, (backg’d); U.S.S.G. § 2D1.1 comment, (n. 12), respectively. In determining the base offense level, the sentencing judge must aggregate the quantity of drugs “ ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990) (quoting U.S.S.G. § 1B1.3(a)(2)). While the government must prove this to the satisfaction of the sentencing judge by a preponderance of the evidence, the defendant need not have been indicted or convicted by the jury for quantities for which he is ultimately held responsible. See Ross, 920 F.2d at 1538; United States v. Rutter, 897 F.2d 1558 (10th Cir.1990).\nHaving reviewed the evidence both on the trial and on the sentencing hearing, we conclude that the District Judge was justified in determining that Reed was responsible for transactions totalling 216.5 grams. Only a transaction with Roshawn McFarland requires discussion. While that transaction was not before the jury, McFarland’s presence at the body shop at relevant times during the conspiracy, and the use of her house as a “stash” on a sale by another co-conspirator was the subject of trial testimony. The McFarland transaction itself (for which she was convicted at a separate trial) was, however, put before the sentencing judge at the sentencing hearing, and the District Judge was fully justified in finding that this transaction was conducted by her as a member of the Reed conspiracy, and therefore Reed was chargeable with the cocaine involved in that transaction as well.\nPossession of a Firearm During the Commission of the Offense\nThe District Court assessed a two point enhancement for the possession of a firearm during the October 10, 1991 transaction at the Strictly Neat Body Shop. The Sentencing Guidelines state that “[t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, comment, (n. 3).\nThis enhancement was based on the testimony of Agent Bakios at Reed’s sentencing hearing. Bakios put before the Court the testimony of Agent Bostic at co-conspirator George Mackey’s sentencing hearing. There, Bostic testified that he saw firearms in the waistbands of Reed’s co-conspirators and the barrel of a gun sticking out from around a corner in close proximity to the drug sale during the October 10, 1991 transaction at the Strictly Neat Body Shop. The District Court properly concluded that these weapons were connected with the offense, and its two point enhancement for the possession of firearms during the October 10, 1991 drug transaction at the Strictly Neat Body Shop was not error.\nCriminal History\nFinally, Reed objects to the addition of nine points to his criminal history calculation, three for a crime committed by Reed as a juvenile, and six for two crimes committed as an adult which Reed claims were related.\nWith respect to the juvenile conviction, Reed was tried and sentenced as an adult for that crime. Accordingly, the District Court could properly include this in Reed’s criminal history calculation.\nAs to the other two, Reed contends the court committed error by adding three points for each crime because the sentences were served concurrently. The first of these two convictions was for a burglary committed on April 4, 1992, and the second was for the theft of a car on August 17, 1982. Reed was sentenced on November 2, 1982, to 16 months for the burglary, and on November 16,1982, to 16 months for the car theft, to be served concurrently. The District Court, however, committed no error in finding the crimes unrelated within the meaning of the Sentencing Guidelines and adding three points to Reed’s criminal history calculation for each conviction.\nGiven the foregoing, Reed’s sentence of 360 months, with supervised release upon release from prison, was within the guidelines.\nLeson Reed’s conviction and sentence are accordingly affirmed in all respects.\n. On September 3, Williams had negotiated with one Roshawn [Wright] McFarland, at her house, for the purchase of one ounce of cocaine base. McFarland, in her white jeep, delivered it later that day in the Han-D-Sak parking lot and Williams paid her $1200. This was not testified to at trial, but was considered as a transaction of Reed's conspiracy at sentencing.\n. Williams, as noted, already possessed Rice's pager number.\n. In reviewing the sufficiency of the evidence, \"We view the entire record in the light most favorable to the Government to determine wheth-cr the evidence, together with all reasonable inferences to be drawn therefrom, is such that the jury could find the defendant!] guilty beyond a reasonable doubt.” United States v. Gomez, 810 F.2d 947, 959 (10th Cir. 1987).\n. As the evidence was sufficient to prove a conspiracy and Reed's involvement in that conspiracy, Reed’s argument that it was error for the court to admit coconspirator hearsay statements under Federal Rule of Evidence 801(d)(2)(E) fails.\n. That this was pursuant to some order of the District Court seems clear, and was assumed by the parties before us. Its exact form is, however, not contained in the record.\n. While Detective Bostic did not testify at Reed's sentencing hearing, the Court below was entitled to consider that testimony reliable hearsay and consider it in making its factual findings. See Rutter, 897 F.2d at 1563.", "type": "majority", "author": "OWEN, District Judge."}], "attorneys": ["Frank Michael Ringer, Asst. U.S. Atty. (Joe Heaton, U.S. Atty., Leslie M. Kaestner, Asst. U.S. Atty., Oklahoma City, OK, on the brief), Oklahoma City, OK, for plaintiff-ap-pellee.", "Joseph W. Strealy of Schnetzler/Strealy, Oklahoma City, OK, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Leson REED, Defendant-Appellant.\nNo. 92-6216.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 3, 1993.\nFrank Michael Ringer, Asst. U.S. Atty. (Joe Heaton, U.S. Atty., Leslie M. Kaestner, Asst. U.S. Atty., Oklahoma City, OK, on the brief), Oklahoma City, OK, for plaintiff-ap-pellee.\nJoseph W. Strealy of Schnetzler/Strealy, Oklahoma City, OK, for defendant-appellant.\nBefore BALDOCK, KELLY, Circuit Judges, and OWEN, District Judge.\nThe Honorable Richard Owen, Senior United States District Court Judge for the Southern District of New York, sitting by designation."} | BALDOCK | KELLY | OWEN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1105 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,587 | UNITED STATES of America, Plaintiff-Appellee, v. Christopher ARUTUNOFF, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Steven J. DeVRIES, Defendant-Appellant, Cross-Appellee | United States v. Arutunoff | 1993-08-03 | Nos. 91-5146, 91-5147, 91-5166 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before McKAY, Chief Judge, GODBOLD, Senior Circuit Judge, and SEYMOUR, Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Christopher ARUTUNOFF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Steven J. DeVRIES, Defendant-Appellant, Cross-Appellee."], "opinions": [{"text": "GODBOLD, Senior Circuit Judge.\nThese consolidated appeals arise from appellants’ convictions for participating in a scheme to defraud investors. Appellant DeVries was convicted of one count of conspiracy to commit securities fraud, 18 U.S.C. § 371, 15 U.S.C. § 77q, three counts of selling unregistered securities, 15 U.S.C. § 77e(a)(l), and one count of securities fraud, 15 U.S.C. § 77q(a)(2)-(3). He appeals from his convictions and the district court’s restitution order. Appellant Arutunoff likewise was convicted of conspiracy to commit securities fraud but only appeals from the district court’s restitution order. The government cross-appeals from the district court’s decision at sentencing to depart downward in DeVries’s case. We affirm DeVries’s convictions but vacate DeVries’s sentence. We vacate the restitution awards against both appellants and remand for further proceedings.\nI. FACTUAL BACKGROUND\nWe view the evidence in the light most favorable to the jury’s verdict. U.S. v. Harrison, 942 F.2d 751, 754 (10th Cir.1991); U.S. v. Wright, 932 F.2d 868, 872 (10th Cir.), cert. denied, — U.S. -, -, 112 S.Ct. 428, 450, 116 L.Ed.2d 448, 467 (1991).\nIn January 1988 John McFarlin set up a business called McFarlin Trading Co. (MTC) for the purpose of trading commodities futures. Purchases of futures were to be funded by investors. McFarlin was to receive a commission of 25% of the profits generated by any trade made by MTC. McFarlin hired Arutunoff to assist with the trades and De-Vries to attract investors. McFarlin initially agreed to pay DeVries 25% of the commissions earned on accounts obtained by De-Vries. This was later increased to 35%.\nTo facilitate investment with MTC, De-Vries formed a limited partnership called De-Vries Trading Limited Partnership (DTLP). Individual investors placed funds with DTLP, and the aggregate of DTLP’s funds was invested with MTC. These investors, like all of MTC’s clients, received monthly statements prepared by McFarlin and Arutunoff that showed the trades made on their behalf and the resulting profit or loss. DeVries prepared brochures, business cards, and other materials designed to encourage investment with DTLP and/or MTC. These materials were sent to potential investors.\nThe brochures prepared by DeVries contained several misrepresentations. DeVries misrepresented his qualifications and those of McFarlin and Arutunoff, as well as whether DTLP was registered with the Securities Exchange Commission, and misrepresented the risk associated with investment. McFar-lin contributed to the misrepresentations in the brochures by providing DeVries with false data concerning MTC’s track record. In addition, when DeVries formed DTLP he did not register it as a security.\nThe first investor obtained by DeVries was Helen Menning. Although McFarlin made trades with Menning’s money he failed to generate any profits. Rather than reveal this fact McFarlin and Arutunoff agreed to send Menning a false monthly statement. Thereafter the monthly statements sent to Menning and every other investor were false. By sending out doctored statements McFar-lin hoped to present an illusion of profitability so he could continue to attract investors. To conceal this fraud McFarlin decided to pay DeVries in accordance with the false statements and also to pay investors the stated profits if they chose to withdraw their money. It is agreed that DeVries did not know that McFarlin and Arutunoff had decided to send out false statements.\nThroughout 1989 and early 1990 McFarlin and Arutunoff continued to send out false statements while trying to make up the losses through further trades. But they only fell further behind because they continued to lose money trading and also began to spend investor funds on personal expenses. In May 1990 DeVries confronted McFarlin who admitted that he had been sending out false statements. On May 10 DeVries sent a letter to the investors- informing them that McFarlin had sent out false statements and had mismanaged their funds but stated that McFarlin promised to make restitution.\nWhen criminal charges were brought McFarlin negotiated a plea and agreed to testify at trial against Arutunoff and De-Vries. DeVries was convicted of one count of conspiracy to commit securities fraud, three counts of selling unregistered securities, and one count of securities fraud. Arutunoff was convicted of conspiracy to commit securities fraud.\nThe presentence report calculated the total loss to investors as $2,632,851.41. McFarlin received a sentence of 30 months imprisonment plus three years supervised release and was ordered to make restitution for the entire loss. Arutunoff also received a sentence of 30 months imprisonment plus three years supervised release and was ordered to make restitution of $877,617.13. The presentence report calculated DeVries’s offense level as 20 and placed him in criminal history category I, resulting in a guideline range of 33 to 41 months imprisonment. The court, however, departed downward to offense level 10 and criminal history category I and imposed a six month sentence. DeVries was ordered to make restitution of $877,617.\nDeVries appeals from his convictions and the restitution order. Arutunoff challenges the restitution award. In DeVries’s case the government cross-appeals from the court’s decision to depart downward.\nII. DISCUSSION\nA. Conspiracy\nDeVries contends that the evidence was insufficient to support the jury’s verdict that he conspired to commit securities fraud with McFarlin and Arutunoff. When reviewing a jury verdict, we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt. U.S. v. Pina, 974 F.2d 1241, 1244 (10th Cir.1992); U.S. v. Morehead, 959 F.2d 1489, 1499 (10th Cir.), adhered to on reh’g en banc, U.S. v. Hill, 971 F.2d 1461 (10th Cir.1992). A conspiracy conviction cannot be sustained if “ ‘the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference.’ ” U.S. v. Evans, 970 F.2d 663, 671 (10th Cir.1992) (quoting U.S. v. Horn, 946 F.2d 738, 741 (10th Cir.1991)), cert. denied, — U.S. -, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993).\nProving a conspiracy requires the government to show:\n“[1] that two or more persons agreed to violate the law, [2] that the defendant knew at least the essential objectives of the conspiracy, ... [3] that the defendant knowingly and voluntarily became a part of it,” and [4] that the alleged coconspirators were interdependent.\nId. at 668 (quoting U.S. v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)). DeVries asserts that the government failed to prove that he agreed with anyone else to violate the law. The government contends that the evidence would permit a reasonable jury to find that DeVries and McFarlin agreed to commit securities fraud by sending out materials containing misrepresentations to induce people to open investment accounts with MTC.\nThe essence of a conspiracy is an agreement to commit an unlawful act. U.S. v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 882, 116 L.Ed,2d 786 (1992). The agreement need not be formal or explicit but rather may be inferred from facts and circumstances. Morehead, 959 F.2d at 1500. “ ‘[T]he critical inquiry is whether the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.’” Id. (quoting U.S. v. Kendall, 766 F.2d 1426, 1431 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986)). To reasonably infer an agreement the defendant’s conduct must be interdependent with the conduct of other conspirators. Id. Interdependence requires more than casual transactions or mere associations; the defendant’s activities must facilitate the endeavors of other conspirators or the venture as a whole. Id.\nThe government presented evidence sufficient for a reasonable juror to infer an agreement between DeVries and McFarlin to send materials containing misrepresentations to investors. Although McFarlin testified that he had voiced objections to DeVries concerning the misrepresentations in the brochures, (R. IV, at 586-92, 606-07), a reasonable juror could conclude, based on the evidence concerning McFarlin’s conduct, that he agreed to the misrepresentations. First, McFarlin admitted that some of the misrepresentations were based on false data that he had supplied to DeVries. (R. IV, at 589). Second, McFarlin stated that he did he did not press his objections because he needed DeVries to continue raising money. (R. V, at 745). Finally, despite both DeVries’s and McFarlin’s awareness that the brochures contained misrepresentations, DeVries continued to use the materials to attract investors and McFarlin continued to accept money from those investors. Based on- this evidence, reasonable jurors could infer that McFarlin and DeVries agreed to make misrepresentations for the unlawful purpose of fraudulently inducing people to invest with MTC.\nThis conclusion is reinforced by the interdependence of DeVries’s actions with those of McFarlin and Arutunoff.. To prevent discovery of the fraudulent monthly statements McFarlin and Arutunoff paid investors the profits falsely shown on the monthly statements whenever investors withdrew from the program. These “profits” had to be paid with contributions from new investors because the money provided by the initial investors had been lost. A constant influx of new investors therefore was critical to the success of the conspiracy. By helping to create this influx DeVries’s misrepresentations facilitated the efforts of McFarlin and Arutunoff to conceal the misuse of investor . funds. The . interdependence of DeVries’s misrepresentations with McFarlin’s and Aru-tunoff s fraud reinforces the reasonableness of the jury’s finding that DeVries and McFarlin agreed to use misrepresentations to attract investors. See Morehead, 959 F.2d at. 1500. The evidence and the reasonable inferences to be drawn therefrom were sufficient to support DeVries’s conspiracy conviction.\nB. Expert Testimony\nThe district court permitted the government to introduce expert testimony by a law teacher. The expert’s testimony began with a discussion of the requirement that a security be registered and the purpose of that requirement. (R. V, at 812-15). The witness also discussed the major exemptions to the registration requirement, id. at 816-19, the meaning of the terms “broker-dealer” and “registered-representative,” id. at 820-24, and the interplay between various securities acts, id. at 824-27. DeVries contends that the expert’s testimony concerning the exemptions from registration, the meaning of statutory terms, and the interplay between various statutes should have been excluded because only the judge may instruct the jury as to the law. See, e.g., U.S. v. Kingston, 971 F.2d 481, 486 (10th Cir.1992); U.S. v. Willie, 941 F.2d 1384, 1396 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992). He further contends that the admission of this testimony prejudiced his defense on each count so all of his convictions must be reversed. In this case our review of the district court’s decision to admit the law teacher’s testimony is for plain error.\nWe do not need to decide whether the court committed plain error, however, because DeVries has not shown that the admission of the law teacher’s testimony was more than harmless error. “[E]rror in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties, and the burden of demonstrating that substantial rights were affected rests with the party asserting error.” K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1156 (10th Cir.1985) (citing Fed. R.Evid. 103(a)(1)). A noneonstitutional error is harmless unless it had a substantial influence on the jury’s verdict in the context of the entire ease, or leaves one in grave doubt whether it had such an effect. U.S. v. Short, 947 F.2d 1445, 1455 (10th Cir.1991). The expert discussed several aspects of securities law, but he did not attempt to apply the law to the facts of the ease or otherwise tell the jury how the case should be decided. This distinguishes Specht v. Jensen, 853 F.2d 805 (10th Cir.1988) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989), which held that experts may not testify on an ultimate issue of law. Id. at 809. In Specht the expert “painstakingly developed over an entire day the conclusion that defendants violated plaintiffs’ constitutional rights.” Id. at 808. This court held that permitting the jury to hear this legal conclusion was more than harmless error. Id. at 808-09. But Specht did not answer the question before us—whether testimony concerning the requirements of the law is harmless error if the witness does not attempt to apply the law to the facts of the case.\nTo the extent that the expert accurately discussed the requirements of the law De-Vries suffered no harm. DeVries has not asserted that the expert’s testimony concerning the meaning of the terms “broker-dealer” or “registered representative” and the interplay between various securities acts misstated the law. DeVries has not shown how a correct statement of the law, without a conclusion as to how the law should be applied, affected his defense. We conclude that the admission of expert testimony concerning statutory definitions and the relationship between various securities acts was harmless error.\nDeVries contends, however, that the expert misstated the law concerning the private offering exemption from the registration requirement. The expert stated that one of the requirements for the private offering exemption was that “you must make a filing on the SEC notifying them that you have availed yourself of the exemption.” (R. V, at 819). This was incorrect. Section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2), exempts from the registration requirements of 15 U.S.C. § 77e “transactions by an issuer not involving any public offering.” An offering is considered private only if limited to investors who have no need for the protection provided by registration. SEC v. Ralston Purina Co., 346 U.S. 119, 125, 73 S.Ct. 981, 984, 97 L.Ed. 1494 (1953); Lively v. Hirschfeld, 440 F.2d 631, 632 (10th Cir.1971). To determine if an offering is sufficiently limited courts focus on such factors as: (1) the number of offerees; (2) the sophistication of the offerees, including then-access to the type of information that would be contained in a registration statement; and (3) the manner of the offering. See, e.g., Mark v. FSC Securities Corp., 870 F.2d 331, 333 (6th Cir.1989); Cook v. Avien, Inc., 573 F.2d 685, 691 (1st Cir.1978); Doran v. Petroleum Mang. Corp., 545 F.2d 893, 900 (5th Cir.1977). But § 4(2) of the 1933 Act does not require an issuer to give notice to the SEC. DeVries contends that this misstatement undercut his theory that he did not willfully violate the registration requirement because he believed in good faith that he had qualified for the private offering exemption.\nDespite the expert’s misstatement of the law we conclude that the admission of the testimony was harmless because the issue whether DeVries believed in good faith that DTLP qualified for the private offering exemption was not submitted to the jury. The private offering exemption is an affirmative defense that must be proved by the person claiming the exemption. Hirschfeld, 440 F.2d at 632; U.S. v. Custer Channel Wing Corp., 376 F.2d 675, 678 (4th Cir.), cert. denied, 389 U.S. 850, 998, 88 S.Ct. 38, 458, 19 L.Ed.2d 119, 503 (1967). DeVries did not request that the court instruct the jury concerning the requirements of this defense or object when no instructions were given. Whether DeVries believed in good faith that he had qualified for the private offering exemption therefore was not before the jury. See Strauss v. U.S., 376 F.2d 416, 419 (5th Cir.1967) (failure to instruct jury concerning a defense removes issue from jury’s consideration). Since the jury could not consider this defense theory, the admission of the witness’s misstatements concerning the defense was harmless error.\nIn any event DeVries would not have been entitled to an instruction on the private offering exemption. To have a theory of defense submitted to the jury a defendant must present evidence sufficient for a reasonable jury to find in his favor. Mathews v. U.S., 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); see also U.S. v. Mann, 884 F.2d 532, 537 (10th Cir.1989). The evidence concerning the private offering exemption did not meet this standard. De-Vries stated that DTLP was specifically designed to appeal to the middle class. (R. VI, at 1001-02). He testified that to solicit investment in DTLP he developed a four-level marketing structure. Id. at 1004. This structure was basically a pyramid scheme providing financial incentives for DTLP investors and non-investors designated as independent contractors to solicit others to invest in DTLP and MTC. Id. at 1004-06. One person who invested in DTLP, Bill Butler, testified that he had brought in 25 other investors, (R. I, at 83) and that there were 70 independent contractors nationwide, id. at 115. Based on this evidence, no reasonable juror could conclude that DeVries believed in good faith that DTLP qualified for the private offering exemption. DeVries’s failure to present evidence sufficient to have the private offering defense submitted to the jury provides another basis for the conclusion that the law teacher’s misstatements concerning the private offering exemption were merely harmless error.\nC. Downward Departure\nThe presentenee report calculated De-Vries’s total offense level as 20, consisting of a base offense level under U.S.S.G. § 2Fl.l(a) of six, plus an enhancement of 12 levels under § 2Fl.l(b)(l)(M) for causing a loss of more than $1,500,000, plus a two-level enhancement under § 2F1.1(b)(2) because the offense involved more than minimal planning. See U.S.S.G. § 2F1.1 (Nov. 1992). Combined with DeVries’s criminal history category of I, the offense level of 20 resulted in a sentencing range of 33-41 months imprisonment. The district court, however, concluded that the 12-level enhancement for loss overstated the seriousness of DeVries’s offense, thus it departed downward to an offense level of 10 and criminal history category of I and imposed a six month sentence. Tr. Sentencing Hearing of Sept. 24, 1991, at 23. The government contends that the court should not have departed at all and, in the alternative, disputes the reasonableness of the departure.\nThis court employs a three-part analysis to review sentencing departures. First we exercise plenary review to determine whether the circumstances cited by the district court justify a departure. U.S. v. Pena, 930 F.2d 1486, 1494 (10th Cir.1991). Second, any factual determinations are reviewed for clear error. Id. Third, “we review the degree of departure to determine if it is reasonable.” Id.\nThe district court concluded that a downward departure was justified because the 12-level enhancement for loss required by § 2F1.1 overstated the seriousness of DeVries’s offense. Although the court acknowledged that there was sufficient evidence that DeVries had participated in a conspiracy to cause a loss “well in excess of $2 million” it concluded:\nthere was a part of the conspiracy that he was not culpable in and that’s in reference to the fraudulent monthly statement to these various investors. So the total amount involved insofar as Mr. DeVries is concerned very considerably overstates the amount applicable to him, although certainly a lot of this money would not have been raised had he not put out the brochures that he did and had he not violated the securities registration laws.\nFor the reason I’ve stated here and him not being specifically involved in the out and out misrepresentations and fraudulent accounting statements, nor was he involved in the type of conduct that went on down in Austin- — the spending of investor’s money, boats, airplanes, cocaine, et cetera — for that reason, I think the Court is justified in a downward departure from the total offense level of 20 to a total offense level of 10, which is based upon considerations that I’ve just stated and also is based on the consideration of the $110,000 that the evidence seems to show that Mr. DeVries benefited [sic] from this overall program. And I think a reasonable downward departure would be to a level of 10 with a criminal history of one.\nTr. Sentencing Hearing of Sept. 24, 1901, at 22-23. The commentary to § 2F1.1 provides, “In a few instances, the loss determined under subsection (b)(1) may overstate the seriousness of the offense.” U.S.S.G. § 2F1.1, comment, (n. 10). When this occurs a downward departure may be justified. U.S. v. Shattuck, 961 F.2d 1012, 1017 (1st Cir.1992); U.S. Joetzki, 952 F.2d 1090, 1096-97 (9th Cir.1991); U.S. v. Carey, 895 F.2d 318, 323 (7th Cir.1990). A downward departure is justified when the defendant was not the sole cause of the loss. See Shattuck, 961 F.2d at 1017. The district court’s conclusion that DeVries was not responsible for the entire loss is sufficient justification for departing downward.\nThe government has not shown that the district court’s factual conclusions were clearly erroneous. From the outset of the case the government conceded that DeVries was unaware of the fraudulent monthly statements. It also agreed that, once DeVries became aware of the misuse of investor funds, he acted to expose the fraud. We conclude that the record supports the district court’s conclusion that DeVries should not be held responsible for the entire loss caused by the conspiracy.\nWe cannot, however, find that the degree of departure was reasonable. Our review of the reasonableness of the departure focuses on the court’s stated reasons for imposing the particular sentence and the factors to be considered in general when imposing a sentence. U.S. v. O’Dell, 965 F.2d 937, 939 (10th Cir.1992) (quoting Williams v. U.S., — U.S. -, -, 112 S.Ct. 1112, 1112, 117 L.Ed.2d 341 (1992)). The court is not required to explain the degree of departure with mathematical exactitude but should justify the departure by analogy to or extrapolation from the Guidelines. U.S. v. Jackson, 921 F.2d 985, 990-91 (10th Cir.1990) (en banc). The district court’s determination of the degree of departure deserves due deference and should not be lightly overturned. U.S. v. Bowser, 941 F.2d 1019, 1026 (10th Cir.1991).\nAs discussed above, the reason for departing downward from offense level 20 was the court’s conclusion that DeVries should not be held responsible for the entire loss. The court did not, however, provide a reasonable explanation why it chose to depart downward 10 offense levels. There is no question that the base offense level of six and the two-level enhancement for more than minimal planning are applicable to DeVries. Thus, a total offense level of 10 can be justified only if the enhancement for the amount of the loss should be two levels. Under § 2Fl.l(b) a two-level enhancement is appropriate for a loss of more than $5,000 and equal to or less than $10,000. See U.S.S.G. § 2F1.1(b)(1)(C). Although the court did not specifically find the amount of loss that should be attributed to DeVries, it stated that its sentence was based “on the consideration of the $110,000 that the evidence seems to show that Mr. DeVries benefited [sic] from this overall program.” Tr. Sentencing Hearing of Sept. 24, 1991, at 23. But if the court considered DeVries responsible for $110,000 of the loss, it should have departed downward only six levels. See U.S.S.G. § 2F1.1 (base offense level of six plus a six-level enhancement for causing a loss of more than $70,000 and less than or equal to $120,-000 plus a two-level enhancement for more than minimal planning equals a total offense level of 14). The court’s stated rationale for its sentence therefore is inconsistent with the sentence actually imposed. Under these circumstances we cannot conclude that the degree of departure was reasonable in light of the grounds for departing, thus DeVries’s sentence must be vacated.\nD. Restitution\nDeVries and Arutunoff both appeal from the district court’s restitution order. They contend that the restitution award is illegal because the court awarded restitution in an amount exceeding the total loss caused by the conspiracy. The district court found that the conspiracy caused a total loss of $2,632,851.41. Tr. Sentencing Hearing of Sept. 12,1991, at 24. Pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, it ordered McFarlin to make restitution in the amount of $2,632,851.41, (Doc. 94, at 4), DeVries to make restitution in the amount of $877,617, (Doc. 93, at 4), and Arutunoff to make restitution in the amount of $877,617.13, (Doc. 90, at 4). Thus, the court ordered restitution in the total amount of $4,388,085.54 even though it had found that the total loss caused by the conspiracy was $2,632,851.41.\nThe VWPA’s purpose is not to punish defendants or to provide a windfall for crime victims but rather to ensure that victims, to the greatest extent possible, are made whole for their losses. See U.S. v. Diamond, 969 F.2d 961, 968 (10th Cir.1992); U.S. v. Rochester, 898 F.2d 971, 983 (5th Cir.1990). This purpose is evinced by the VWPA itself which, for property offenses, authorizes restitution only for the value of the property lost less the value of any property returned. 18 U.S.C. § 3663(b)(1). It further provides that “The court shall not impose restitution with respect to a loss for which the victim has received or is to receive compensation_” Id. § 3663(e)(1). In cases involving individual defendants courts have concluded that “the loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order.” Hughey v. U.S., 495 U.S. 411, 420, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990); see also U.S. v. Patty, 992 F.2d 1045, 1050 (10th Cir.1993); U.S. v. Cook, 952 F.2d 1262, 1265-66 (10th Cir.1991).\nWe conclude that the loss caused by the conduct underlying the offense of conviction also limits a court’s authority to award restitution for an offense involving multiple defendants. See U.S. v. McHenry, 974 F.2d 1031,1034 (9th Cir.1991) (In a conspiracy case “restitution must be limited to the loss flowing from the conspiracy itself.”). If each defendant were required to pay restitution for the entire loss caused' by a conspiracy, victims theoretically could receive more in restitution than they had lost, a result at odds with both the VWPA’s limited purpose and its language which, for property offenses, authorizes a court to award restitution only for the value of the property lost “less the value ... of any part of the property that is returned.” By ordering restitution in an amount greater than the total loss caused by the conspiracy the district court exceeded its statutory jurisdiction and imposed an illegal sentence. Cook, 952 F.2d at 1265-66; U.S. v. Waimuright, 938 F.2d 1096, 1098 (10th Cir.1991). The restitution orders in DeVries’s and Arutunoffs cases must be vacated.\nIII. CONCLUSION\nDeVries’s convictions are AFFIRMED. DeVries’s sentence is VACATED. The restitution orders against DeVries and Arutunoff are VACATED. The cases of DeVries and Arutunoff are REMANDED for further proceedings consistent with this opinion.\n. At trial the government contended that the interests in DTLP sold by DeVries were securities subject to the registration requirement of 15 U.S.C. § 77e. On appeal DeVries has not challenged this contention.\n. McFarlin pleaded guilty to one count of conspiracy to violate the securities laws and two counts of mail and wire fraud.\n. DeVries also contends that the government failed to prove he was part of the conspiracy, therefore prejudicial retroactive misjoinder occurred, and he should be granted a new trial on his convictions for securities fraud and selling unregistered securities. But he concedes that if this court finds that the evidence supporting the conspiracy conviction was sufficient no retroactive misjoinder occurred. DeVries’s Reply Brief at 4. Because we conclude that DeVries’s conspiracy conviction was supported by sufficient evidence, see infra, we do not address the issue of retroactive misjoinder.\n. The indictment charged that DeVries, McFar-lin, and Arutunoff conspired to commit mail, wire, and securities fraud and to sell unregistered securities. The jury found by special verdict that DeVries had conspired to commit all four of the unlawful objects alleged in the indictment. Because we conclude that the evidence was sufficient to establish that DeVries conspired to commit securities fraud, it is not necessary to determine whether DeVries also conspired to commit the other unlawful objects. U.S. v. Sullivan, 919 F.2d 1403, 1435 (10th Cir.1990), cert. denied, — U.S. -, 113 S.Ct 285, 121 L.Ed.2d 211 (1992); Newman v. U.S., 817 F.2d 635, 638 (10th Cir.1987).\n. That DeVries’s misrepresentations facilitated the efforts of McFarlin and Arutunoff to conceal their fraud also indicates that there was one conspiracy encompassing DeVries, McFarlin, and Arutunoff, even though DeVries was unaware that McFarlin and Arutunoff were sending out false statements. See Harrison, 942 F.2d at 756 (quoting U.S. v. Daily, 921 F.2d 994, 1007 (10th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991)).\n. A district court's decision to permit expert testimony on a subject is generally reviewed for abuse of discretion. See, e.g., Kingston, 971 F.2d at 486. But if a party fails to make a contemporaneous objection to expert testimony review is limited to plain error. McEwen v. City of Norman, 926 F.2d 1539, 1544-45 (10th Cir.1991). A pre-trial motion in limine to exclude evidence does not necessarily preserve an issue for appeal. U.S. v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.1993). The evidentiary issue may be preserved for review if it was: adequately presented to the court in the motion, the type of issue that can be finally decided in a pre-trial hearing, and definitively resolved prior to trial. Id. at 986-988. If the court declines to rule on the motion until trial the objection must be renewed at trial. Id. at 982-988 (discussing McE-wen). DeVries filed a pre-trial motion seeking to limit the teacher's testimony, but the district court did not rule on the motion until trial and DeVries did not object at that time on the ground he now seeks to raise. We therefore review only for plain error.\n. The only reference to exemptions from registration in the jury instructions given by the court was an instruction that, once the government proves the defendant sold unregistered securities, the defendant has the burden of proving that he qualified for an exemption and that exemptions should be interpreted narrowly. (R. VIII, at 1412-13). The instructions did not name, or set out the requirements of, any exemption. The court instructed the jury that a good faith belief in the truth of a statement was a defense to fraud, (R. VIII, at 1422), but it did not give a similar instruction concerning the sale of unregistered securities.\n. Since we agree that the restitution order must be vacated because the amount awarded exceeded the total loss, we do not address the appellants’ contention that the district court did not adequately consider their ability to pay.\n. In other cases involving multiple defendants courts have either apportioned the total loss among the defendants, e.g., U.S. v. Sharp, 927 F.2d 170, 173 n. 2 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 139, 116 L.Ed.2d 106 (1991); U.S. v. Anglian, 784 F.2d 765, 768 (6th Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986), or made the obligation to pay joint and several, e.g., U.S. v. Chaney, 964 F.2d 437, 454 & n. 52 (5th Cir.1992); U.S. v. Angelica, 951 F.2d 1007, 1009 (9th Cir.1991).", "type": "majority", "author": "GODBOLD, Senior Circuit Judge."}], "attorneys": ["Jill M. Wichlens, Asst. Federal Public Defender, Denver, CO (Michael G. Katz, Federal Public Defender, with her on the briefs) for defendant-appellani/eross-appellee.", "Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, OK (Tony M. Graham, U.S. Atty., with him on briefs), for plaintiff-appellee/cross-appel-lant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Christopher ARUTUNOFF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Steven J. DeVRIES, Defendant-Appellant, Cross-Appellee.\nNos. 91-5146, 91-5147, 91-5166.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 3, 1993.\nJill M. Wichlens, Asst. Federal Public Defender, Denver, CO (Michael G. Katz, Federal Public Defender, with her on the briefs) for defendant-appellani/eross-appellee.\nKenneth P. Snoke, Asst. U.S. Atty., Tulsa, OK (Tony M. Graham, U.S. Atty., with him on briefs), for plaintiff-appellee/cross-appel-lant.\nBefore McKAY, Chief Judge, GODBOLD, Senior Circuit Judge, and SEYMOUR, Circuit Judge.\n. The Honorable John C. Godbold, Senior U.S. Circuit Judge for the Eleventh Circuit, sitting by designation."} | McKAY | GODBOLD | SEYMOUR | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1112 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,620 | Debra T. SAUERS, Plaintiff-Appellant, v. SALT LAKE COUNTY and Theodore L. Cannon, Defendants-Appellees, David Yocom, Donald Sawaya, Michael Stewart, Sam Dawson, John Does 1-8, Defendants | Sauers v. Salt Lake County | 1993-08-09 | No. 91-4223 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before McKAY, Chief Judge, and LOGAN and BALDOCK, Circuit Judges."], "parties": ["Debra T. SAUERS, Plaintiff-Appellant, v. SALT LAKE COUNTY and Theodore L. Cannon, Defendants-Appellees, David Yocom, Donald Sawaya, Michael Stewart, Sam Dawson, John Does 1-8, Defendants."], "opinions": [{"text": "LOGAN, Circuit Judge.\nPlaintiff Debra T. Sauers appeals the judgment in favor of defendants Salt Lake County and Theodore L. Cannon on her claims that defendants are liable for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, and for sexual harassment in violation of the Equal Protection Clause, actionable under 42 U.S.C. § 1983. A jury, whose verdict was binding on the § 1983 claims and advisory with respect to the Title VII charges, found for defendants on all counts except one, finding that Cannon had sexually harassed plaintiff in violation of Title VII. The district court, however, found that plaintiff did not consider Cannon’s conduct to be sexual harassment, and it therefore rejected the advisory verdict and entered judgment for defendants on all counts.\nOn appeal plaintiff argues that the evidence required findings in her favor on her sexual harassment and retaliation charges, and that the district court erred in rejecting her quid pro quo sexual harassment theory, dismissing her § 1983 claim against the County, and admitting evidence of Cannon’s mental illness and a disciplinary letter from plaintiffs personnel file. Defendants argue that plaintiffs Title VII claims were time-barred.\nI\nWe first consider defendants’ argument that the Title VII claim was filed out of time. Plaintiff was terminated as a secretary in the Salt Lake County Attorney’s Office in early 1988, and sought relief from the Salt Lake County Career Service Council. The Council denied relief, and plaintiff received a Right to Sue letter from the EEOC dated April 7, 1988, informing her that she had ninety days within which to file a discrimination action in federal court. On July 5, the eighty-ninth day, plaintiff filed a pro se complaint naming, inter alia, the Salt Lake County Attorney’s Office and Ted Cannon as defendants. Plaintiff subsequently retained counsel, and filed a verified amended complaint on September 29, 1988, naming Salt Lake County and Cannon as defendants, among others.\nRelying on Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), in which the Supreme Court adopted a strict reading of Fed.R.Civ.P. 16(c), defendants argue that plaintiffs amended complaint did not relate back to her original complaint, and therefore that her Title VII action is time barred. Salt Lake County was first correctly named in the amended complaint after the ninety-day statute of limitations expired. Even if we were to agree that Schiavone requires a holding that naming the Salt Lake County Attorney’s Office is not a suit against Salt Lake County, we still must find that the claim against the County was timely filed.\nCannon, the county attorney, was named as a defendant in the original complaint. Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate. “The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act. We think the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (citations omitted). Therefore, because the suit against Cannon could proceed only in his official capacity, it operated as a suit against Salt Lake County itself, see Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), and the County was tiinely named as a defendant.\nThe County may be liable without necessarily knowing of Cannon’s actions. “The term ‘employer’ means a person engaged in an industry affecting commerce ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Unfortunately, “[n]owhere in Title VII is the term ‘agent’ defined.” Barger v. Kansas, 630 F.Supp. 88, 89 (D.Kan.1985). We agree with the Fourth Circuit that “[a]n individual qualifies as an ‘employer’ under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiffs hiring, firing or conditions of employment.” Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), aff'd in pertinent part, 900 F.2d 27 (4th Cir.1990) (en banc). In such a situation, the individual operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices of the individual without regard to whether the employer knew of the individual’s conduct. See 29 C.F.R. § 1604.11(c).\nIn this case, defendant Cannon is a paradigm example of a supervisor with significant control over plaintiffs hiring, firing, or conditions of employment. The parties agree that, as county attorney, Cannon had the ultimate authority over her employment and working conditions. Consequently, plaintiffs claim of a hostile work environment caused by Cannon’s conduct is a claim against Salt Lake County itself, and no knowledge or recklessness on the part of the County must be demonstrated.\nII\nWe next turn to plaintiffs argument that the evidence of Cannon’s sexual harassment of her was so overwhelming that no reasonable factfinder could fail to find liability. It is undisputed that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). “Hostile work environment harassment occurs where [sexual] conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.” Hirschfeld, 916 F.2d at 575 (internal quotations omitted). “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). The plaintiff must demonstrate that the offending conduct was unwelcome; however, “the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact.” Vinson, 477 U.S. at 68, 106 S.Ct. at 2406. We review the district court’s finding of no sexual harassment under a clearly erroneous standard. Cortes v. Maxus Exploration Co., 977. F.2d 195, 198 (5th Cir.1992).\nIn its findings of fact, the district court concluded that “[t]he work environment at the Investigative Division of the Salt Lake County Attorney Office was that of an unusually rough, sexually explicit and raw atmosphere,” and that “[t]his atmosphere was known and accepted or tolerated by all concerned personnel, male and female alike, including plaintiff.” I Appellant’s App. at 546-47. Although the court found that this was a “hostile work environment,” it determined that the environment “did not interfere with the performance of plaintiffs duties and it was not a hostile atmosphere and environment to plaintiff.” Id. at 547. Further, the court concluded that “Cannon’s conduct was not viewed by plaintiff as unwelcome sexual harassment, but rather it was viewed by plaintiff as disgusting and degrading conduct, likely the product of mental illness.” Id. If evidence in the record supports these conclusions, the court’s judgment must be affirmed, even if contrary evidence is present. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir.1993).\nIn 1984, plaintiff became a secretary in the Investigations Division of the Salt Lake County Attorney’s Office. Defendant Cannon was the Salt Lake County Attorney, plaintiffs highest level supervisor. Plaintiff testified that, although the atmosphere in the division was often coarse, the situation worsened in the spring of 1986 when Cannon chose not to seek re-election as county attorney and began to exhibit bizarre behavior. He came to the office unshaven and unkempt, wearing clothing apparently purchased at a local consignment shop; he once walked around the office without his shoes, and on another occasion placed a flower basket atop his head. Plaintiff alleged that Cannon also began sexually harassing her and Shauna Clark, the other secretary in the division, beyond what they had come to accept as office banter. Cannon admits that during this period he did make comments about plaintiffs breasts and her attire, that on one occasion he asked plaintiff to “swap spit,” and that he once commented on a sweater pattern plaintiff was wearing and outlined the pattern with his finger in the air in front of plaintiffs chest.\nPlaintiff testified that in September 1986 Cannon attempted to grab her breasts, and that he approached her from behind as she was sitting at her desk and rubbed his groin against her shoulder. Cannon denies these allegations. On September 19, plaintiff was reassigned to a different office, over her objections. That same evening, Shauna Clark decided to file sexual harassment charges against Cannon. The following week, a special commission was formed to investigate the charges, and called plaintiff to testify. Plaintiffs testimony at that hearing was introduced into evidence in the instant case. Her testimony there was somewhat equivocal, in that she admitted that she was used to a certain rough working atmosphere among police officers and investigators, that she was known as the “bruiser” of the office, and that the men stayed away from her as a result. Appellee’s Supp.App., Tr. of Investigative Interview at 14. However, she also testified that Cannon’s behavior had degenerated since his decision not to seek re-election, that he had rubbed his groin against her shoulder, and that she found Cannon’s recent conduct unwelcome, characterizing it as “garbage.” Id. at 22.\nDuring the same testimony, plaintiff made a number of statements that appear to contradict her claim of a hostile work environment based on sexual harassment: “I’ve never had Ted, in all the years I’ve known him, ever come on to me or anything else.” Id. at 14; “I go back a long way with Ted. He’d always been a character. That’s what I’m used to working with. I work with cops. So as a woman, I take a little bit more maybe in the way of language and things like that because it’s a different environment.” Id. at 17; “But a lot of men are sure fed up with Ted and his antics. The disruption it’s caused with jobs and that. So it’s not like it’s totally a sexual harassment thing. Ted is really turning the office upside down.” Id. at 44.\nIn her trial testimony, plaintiff reiterated her contention that Cannon’s actions had created an abusive work environment, and this testimony was largely corroborated by Clark. However, a number of defense witnesses testified that plaintiff engaged in sexual banter with investigators, that plaintiff and Cannon exchanged off-color stories, and that plaintiff never objected to the atmosphere in the office. Further, three defense witnesses testified that plaintiff told Clark on September 19, when Clark was contemplating sexual harassment charges, that “I’d really like to help you but Ted never said anything or did anything to me.” II Appellant’s App. at 3-98; accord id. at 3-24; id. at 4-143. This statement, coming as it did on the evening of plaintiffs reassignment, is persuasive evidence that, although the atmosphere in the office was difficult, plaintiff never viewed any of Cannon’s words or actions as sexual harassment directed at her. In his testimony, Cannon admitted making off-color comments to plaintiff, but denied her charges of physical contact. Taken as a whole, although plaintiff presented significant evidence objectively supporting a sexual harassment claim, the evidence in the record supports the district court’s finding that plaintiff herself did not perceive Cannon’s actions as sexual harassment, but merely as “disgusting and degrading conduct.”\nIII\nPlaintiff argues that the district court erred in determining that plaintiff had not presented a claim for quid pro quo sexual harassment. “Quid pro quo sexual harassment involves the conditioning of tangible employment benefits upon the submission to sexual conduct.” Hirschfeld, 916 F.2d at 575. “If the plaintiff can show that she suffered an economic injury from her supervisor’s actions, the employer becomes strictly liable without any further showing of why the employer should be responsible for the supervisor’s conduct.” Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.1992). “And the finding of no quid pro quo sexual harassment — whether as to a subsidiary or ultimate fact — must be reviewed under the clearly erroneous standard.” Hicks, 833 F.2d at 1414.\nWe agree with the district court that plaintiff failed to make a prima facie case of quid pro quo sexual harassment. Plaintiff offered no evidence that Cannon made a sexual advance that plaintiff rejected, other than the “swap spit” comment. Plaintiff argues that her “refusal to accede in defendant Cannon’s sexual harassment of herself and co-worker, Shauna Clark, and defendant Cannon’s fear that plaintiff might file a sexual harassment complaint against him, were motivating forces in defendant Cannon’s decision to transfer plaintiff from the Investigation Division.” Appellant’s Br. at 32. The district court correctly ruled that, although this argument is properly considered in plaintiffs retaliation claim, it is insufficient to support a quid pro quo sexual harassment claim.\nIV\nPlaintiff alleged that her reassignment on September 19 was motivated by her opposition to Cannon’s conduct and by his fear that she would bring a sexual harassment claim against him, and therefore constituted impermissible retaliation under Title VII. In its findings of fact, the district court found that plaintiff had not proven these allegations by a preponderance of the evidence, and that defendants had given legitimate nondiscriminatory reasons for the transfer. We review these findings also under a clearly erroneous standard.\nTitle VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subehapter.” 42 U.S.C. § 2000e-3(a). To support a claim of retaliation,\n[a] plaintiff must first establish a prima facie ease of retaliation. If a prima facie case is established, then the burden of production shifts to the defendant to produce a legitimate, nondiscriminatory reason for the adverse action. If evidence of a legitimate reason is produced, the plaintiff may still prevail if she demonstrates the articulated reason was a mere pretext for discrimination. The overall burden of persuasion remains on the plaintiff.\nSorensen, 984 F.2d at 353. To make a prima facie case, a plaintiff must prove: (1) protected opposition to discrimination or participation in a proceeding arising out of discrimination; (2) adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action. Williams v. Rice, 983 F.2d 177, 181 (10th Cir.1993).\nAt trial, plaintiff presented evidence that Cannon first mentioned the possibility of reassignment to South Valley, a branch office, on September 18, two days after Cannon allegedly rubbed his groin against plaintiffs shoulder. Plaintiff was formally reassigned the next day. Plaintiff also introduced evidence of a tape-recorded conversation between Cannon and Shauna Clark, in which Cannon appears to be concerned about someone filing sexual harassment charges against him. Plaintiff contended that, although Cannon styled the reassignment as a promotion and promised a raise and opportunity for advancement, no raise or promotion resulted.\nAlthough plaintiffs evidence does not match the usual pattern present in retaliation cases, we hold that to the extent the district court’s findings imply that plaintiff failed to make out a prima facie case of retaliation, those findings are clearly erroneous. Plaintiff had not yet taken any action against which Cannon could retaliate, but the .tape-recorded conversation between Cannon and Clark indicates his fear that a sexual harassment complaint might soon be filed by plaintiff. Action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact; consequently, we hold that this form of preemptive retaliation falls within the scope of 42 U.S.C. § 2000e-3(a). Plaintiff demonstrated that she was reassigned against her wishes, satisfying the requirement that an adverse action be taken against her, and the fact that reassignment came just two days after the Cannon-Clark conversation raises an inference that the reassignment was causally connected to Cannon’s fear of suit from plaintiff.\nThe district court also found, however, that defendants presented nondiscriminatory reasons behind the transfer, thereby rebutting any case of retaliation raised by plaintiff. Defendants introduced evidence that Don Harmon, plaintiffs second-level supervisor, was dissatisfied with plaintiffs work and sought to have her reassigned four to six weeks before it occurred. Cannon testified that he reassigned plaintiff to save her job, because he was to leave office soon and would not be able to protect her position once he left. The defense also presented evidence of a backlog of work at the South Valley office and the need for assistance there. Plaintiff received the same salary at the new location and had many of the same responsibilities. The district court’s finding that defendants rebutted any inference of discrimination associated with plaintiffs reassignment is thus supported by the evidence, and is not clearly erroneous. Therefore, the court’s finding of no impermissible retaliation in violation of Title VII is also not clearly erroneous.\nV\nFinding no basis for municipal liability the district court dismissed before trial plaintiffs claim against- Salt Lake County under 42 U.S.C. § 1983 for sexual harassment in violation of the Equal Protection Clause. Plaintiff argues that this ruling was erroneous.\nMunicipalities are “persons” under § 1983, and can therefore be sued for their constitutional torts. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This extends to “other local government entities” such as counties. Collins v. City of Darker Heights, — U.S. -, -, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261 (1992). Local government liability under § 1983 is not imposed on a respondeat superior theory. Jantz v. Mud, 976 F.2d 623, 630 (10th Cir.1992). However, “a municipality is liable for the acts of its ‘final policymaking authority’ and may also be liable for the actions of an employee who is not a final policymaking authority if a widespread practice exists to the end that there is a ‘custom or usage with the force of law.’ ” Butcher v. City of McAlester, 956 F.2d 973, 977 n. 2 (10th Cir.1992).\nIn Starrett v. Wadley, 876 F.2d 808 (10th Cir.1989), we were confronted with a situation similar to the one here. There we held that employment decisions by an individual with final responsibility for personnel could generate liability for the County. Id. at 819. Cannon’s reassignment of plaintiff, if improper, could therefore have resulted in § 1983 liability for Salt Lake County. However, plaintiffs reassignment was not proven to be the result of improper sexual discrimination, and Salt Lake County cannot be liable for it.\nThere is no indication in the record that Cannon’s individual acts relating to plaintiff were officially sanctioned or ordered. Cannon’s alleged sexual harassment could not have imposed liability on Salt Lake County “unless they were so widespread and pervasive as to establish a ‘custom’ within his office.” Id. Although at trial plaintiff complained about the general atmosphere in the Investigations Division, she specifically objected to the particular acts of defendant Cannon in the late summer and early fall of 1986. She stated that she was used to the office atmosphere among police officers, and that it was Cannon’s increasingly bizarre conduct that offended her. Those specific acts do not rise to the level of a policy or custom within the Investigation Division, and Salt Lake County was properly dismissed as a defendant on the § 1983 claim.\nVI\nWith respect to the 42 U.S.C. § 1983 claim against defendant Cannon that proceeded to trial, plaintiff argues that the court erred when it permitted the defendants to introduce evidence of Cannon’s mental illness during 1986 as evidence of Cannon’s lack of intent to intentionally discriminate. Plaintiff argues that Cannon’s interposition of mental illness evidence constituted an affirmative defense that was not pleaded, and therefore should have been stricken under Fed. R.Civ.P. 8(c). Without deciding the nature of the defense offered by Cannon, we hold that because plaintiff had knowledge of the defense before trial, Cannon’s failure to plead it was not reversible error. “[W]hen parties argue an affirmative defense in the district court, technical failure to plead the defense is not fatal.” DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987).\nPlaintiff argues in the alternative that the mental illness evidence was not relevant to her § 1983 claim, and therefore should have been excluded. “A trial court’s decision on whether to admit or exclude evidence may not be disturbed on appeal unless the appellate court determines that the district court abused its discretion.” Sorensen, 984 F.2d at 354. We agree with Cannon’s contention that evidence of his mental condition goes to the intent necessary to violate the Fourteenth Amendment. “A plaintiff in an equal protection action has the burden of demonstrating discriminatory intent. It is not necessary to demonstrate that the challenged action was taken solely for discriminatory purposes; it is necessary only to prove that a discriminatory purpose was a motivating factor.” Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir.1988) (citation omitted). If Cannon was unable to form the requisite discriminatory intent because of mental illness, then he would not be liable under § 1983. Consequently, the evidence was relevant and properly admitted.\nVII\nFinally, plaintiff contends that a disciplinary letter from her personnel file admitted against her was irrelevant and highly prejudicial. She also argues that because the letter was redacted to eliminate any reference to the reason for the discipline, the jury must have been confused and must have impermissibly speculated as to why plaintiff was reprimanded. As noted, admission of evidence is reviewed for abuse of discretion.\nDefendants argued at trial that plaintiff was transferred for legitimate business reasons, and \"evidence of a prior disciplinary proceeding was corroborative of Harmon’s testimony that he was unhappy with her work. There is no evidence that the redaction of the letter to omit references to the specific reasons for the action in any way confused the jury or prejudiced plaintiffs case. Plaintiffs argument is wholly speculative, and the district court did not abuse its discretion in admitting the letter.\nAFFIRMED.\n. Some of the district court’s pretrial rulings on motions are reported in Sauers v. Salt Lake County, 722 F.Supp. 676 (D.Utah 1989).\n. Rule 15(c) has since been amended to overrule Schiavone, but that amendment did not take effect until December 1, 1991, and is therefore inapplicable to plaintiff's claim.\n. The employer is not always liable for sexual harassment by its supervisors, Meritor Savings Bankv. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986), but may be liable under the agency principles discussed in Hirschfeld v. New Mexico Corrections Department, 916 F.2d 572 (10th Cir.1990). There we determined that employer liability for sexual harassment may attach if the harassers were acting within the scope of their employment, if the employer failed to remedy a hostile environment of which it knew or should have known, or if the harassers acted under apparent authority from the employer or were aided in accomplishing the harassment by their relationship to the employer. Id. at 576-79.\n. Defendants argue that the § 1983 claims should be dismissed because the findings of the Utah Career Service Council are binding on the federal court, and therefore preclude relitigation of the facts. The district court rejected this argument before trial, and we reject it for the same reasons. See Sauers v. Salt Lake County, 722 F.Supp. 676, 680-82 (D.Utah 1989).", "type": "majority", "author": "LOGAN, Circuit Judge."}], "attorneys": ["Kathryn Collard (Steve Russell, also of Collard & Russell, with her on the briefs), Salt Lake City, UT, for plaintiff-appellant.", "Patricia J. Marlowe, Deputy County Atty. (David E. Yocom, Salt Lake County Atty., with her on the brief), Salt Lake City, UT, for defendants-appellees."], "corrections": "", "head_matter": "Debra T. SAUERS, Plaintiff-Appellant, v. SALT LAKE COUNTY and Theodore L. Cannon, Defendants-Appellees, David Yocom, Donald Sawaya, Michael Stewart, Sam Dawson, John Does 1-8, Defendants.\nNo. 91-4223.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 9, 1993.\nKathryn Collard (Steve Russell, also of Collard & Russell, with her on the briefs), Salt Lake City, UT, for plaintiff-appellant.\nPatricia J. Marlowe, Deputy County Atty. (David E. Yocom, Salt Lake County Atty., with her on the brief), Salt Lake City, UT, for defendants-appellees.\nBefore McKAY, Chief Judge, and LOGAN and BALDOCK, Circuit Judges."} | McKAY | LOGAN | BALDOCK | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1122 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,656 | In re MID REGION PETROLEUM, INC., Debtor. GENERAL AMERICAN TRANSPORTATION CORPORATION, Appellant, v. W. Scott MARTIN, Trustee of Mid Region Petroleum, Inc., Appellee | Inc. v. Martin | 1993-08-09 | No. 92-5114 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BALDOCK, HOLLOWAY and BRORBY, Circuit Judges."], "parties": ["In re MID REGION PETROLEUM, INC., Debtor. GENERAL AMERICAN TRANSPORTATION CORPORATION, Appellant, v. W. Scott MARTIN, Trustee of Mid Region Petroleum, Inc., Appellee."], "opinions": [{"text": "BALDOCK, Circuit Judge.\nGeneral American Transportation Corporation (“GATX”) appeals the district court’s order affirming the bankruptcy court’s decision to disallow GATX’s administrative expense claim. GATX claims the district court erred in affirming the bankruptcy court’s denial of administrative expense status for post-petition rents accruing prior to the bankruptcy trustee’s rejection of the underlying lease agreements. The bankruptcy court denied the administrative expense claim, holding that Debtor Mid-Region Petroleum, Inc. (“Mid-Region”) received no benefit from the leased railcars because it did not use them post-petition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.\nThe parties have stipulated to the following facts. In 1977 and 1979, GATX leased seventy railcars to Mid-Region pursuant to various lease agreements. The agreements provided that upon termination of the leases, Mid-Region was to promptly return the cars to GATX and would be liable for all accrued charges under the contract. On December 23, 1983, Mid-Region filed its Chapter 11 bankruptcy petition and retained possession of the railcars. In March 1984, W. Scott Martin was appointed trustee, and on May 15, 1984, he sent a letter to GATX cancelling the lease agreements. Following the letter, neither the trustee nor GATX took any actions to return the cars to GATX’s possession. On June 20, 1984, the trustee moved the bankruptcy court for authorization to reject the GATX lease agreements, and on July 24, 1984, the bankruptcy court ordered rejection of the leases. None of the railcars were returned to GATX prior to July 24, 1984. From the time the petition was filed to the time the cars were returned, the trustee did not use the railcars for the transaction of Mid-Region business or otherwise.\nOn August 15, 1988, GATX filed its First Amended Proof of Claim seeking an unsecured claim in the amount of $240,234.67 for pre-petition rents and damages due to lease rejection, and an Administrative Proof of Claim seeking an administrative expense claim in the amount of $112,547.36 for post-petition rents. These amounts were later amended to $222,397.58 and $176,062.34 respectively. The trustee filed no objection to the First Amended Proof of Claim, but on September 25, 1989, sought disallowance of the administrative expense claim on the ground that GATX performed no services and incurred no expenses post-petition which benefitted the estate. The bankruptcy court disallowed the claim on this basis, and the district court affirmed. Because the parties have stipulated to the facts, we review de novo. FDIC v. Kansas Bankers Sur. Co., 963 F.2d 289, 292 (10th Cir.1992).\nExecutory contracts, such as the GATX leases, can be assumed or rejected by the trustee at any time before the confirmation of a plan. 11 U.S.C. § 365(d)(2) (1978). If the trustee assumes the leases, he must pay post-petition rent at the contract rate. 11 U.S.C. § 365(b)(1)(A) (1978). However, there is no obligation for the trustee to pay post-petition rent when the leases are rejected, except unpaid post-petition rent is given unsecured claim status, 11 U.S.C. § 502(g) (1978), unless the post-petition rent claim is subject to favored administrative expense status.\nIn bankruptcy court, the party claiming entitlement to administrative expense priority has the burden of proof. In re Amarex, Inc., 853 F.2d 1526, 1530 (10th Cir.1988). Administrative expenses are specially favored post-petition claims, given priority in asset distribution over most other claims against the bankruptcy estate. 11 U.S.C. §§ 503, 507(a)(1) (1978). For a claim to rise to the level of an administrative expense, it must fit within one of the categories listed in 11 U.S.C. § 503(b) (1978). Both parties agree that the only category which could possibly apply to the GATX leases is 11 U.S.C. § 503(b)(1)(A) (1978), which grants administrative expense status to “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.”\nTo be deemed an administrative expense, the expense must: (1) arise out of a transaction between the creditor and the bankrupt’s trustee or debtor-in-possession; and (2) benefit the debtor-in-possession in the operation of the business. Amarex, 853 F.2d at 1530; see also Broadcast Corp. v. Broadfoot, 54 B.R. 606, 611 (N.D.Ga.1985) (“use of the words ‘actual’ and ‘necessary’ indicate that the estate must accrue a real benefit from the transaction for which the claim is filed”), aff'd sub nom., In re Siibscription Television of Greater Atlanta, 789 F.2d 1530 (11th Cir.1986). Potential to benefit the estate does not satisfy this requirement, Broadcast Corp., 54 B.R. at 611, nor does mere possession, In re Templeton, 154 B.R. 930 (Bankr.W.D.Tex.1993). To be granted administrative expense status, the bankruptcy estate must benefit from the use of the creditor’s property. Broadcast Corp., 54 B.R. at 612-13.\nThe parties have stipulated that the railcars were never used post-petition. GATX alleges, however, that the estate received a benefit in that it was allowed to retain possession of the leased cars and spared the trouble and expense of deciding whether to reject or allow the lease early in the case, thus allowing Mid-Region the opportunity to resume business operations if they so desired or to sell the entire company to a third party with the leases intact. Although this opportunity is advantageous to the trustee, it is not the type of benefit which is provided administrative expense protection because a benefit to the estate results only from use of the leased property. See Broadcast Corp., 54 B.R. at 612-13. To hold otherwise would always allow administrative expense status for mere possession. This is not a contract suit between GATX and a solvent Mid-Region, under which GATX would clearly be entitled to back rent upon default, but is instead a contest among Mid-Region’s creditors. See Broadcast Corp., 54 B.R. at 611 (“administrative expense scheme does not focus in the first instance on whether a creditor sustained a loss during this period, but on whether the estate has received an actual benefit”). We see no reason why GATX’s claim should be superior to the claims of other Mid-Region creditors, especially considering that GATX could have moved at any time after Mid-Region filed its petition to require the trustee to accept or reject within a specified period of time, 11 U.S.C. § 365(d)(2), thereby mitigating its losses.\nGATX cites Kneeland v. American Loan & Trust Co., 136 U.S. 89, 10 S.Ct. 950, 34 L.Ed. 379 (1890), and In re Fred Sanders Co., 22 B.R. 902 (Bankr.E.D.Mich.1982), to support its claim of entitlement to administrative expense status. Kneeland, a case dealing with a receivership and foreclosure sale of a railroad, was decided long before enactment of the Bankruptcy Code of 1978 and was even decided prior to the 1978 Code’s predecessor, the Bankruptcy Act of 1898. Because the Bankruptcy Code exclusively governs administrative expense determinations, we do not find Kneeland controlling.\nSanders, 22 B.R. 902, a case directly contrary to our holding today, holds that a lessor is entitled to administrative payment for the pre-rejection period at the contract rate, regardless of whether the trustee used the asset. For a number of reasons, we reject the Sanders rationale and cases which have followed that rationale, see, e.g. In re Curry Printers, Inc., 135 B.R. 564 (Bankr.N.D.Ind.1991), to the extent that those cases hold that pre-rejection, a creditor is entitled to administrative expense status, regardless of use.\nOne of the goals of Chapter 11 is to keep administrative costs to a minimum in order to preserve the debtor’s scarce resources and thus encourage rehabilitation. In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 897 (Bankr.E.D.Pa.1987); see also In re Dant & Russell, 853 F.2d 700, 706 (9th Cir.1988). In keeping with this goal, § 503(b)(1)(A) was not intended to “saddle debtors with special post-petition obligations lightly or give preferential treatment to certain select creditors by creating a broad category of administrative expenses.” Grant Broadcasting, 71 B.R. at 897. The policy behind giving priority to administrative expenses in Chapter 11 proceedings is “to encourage creditors to supply necessary resources to debtors post-petition.” Id. This policy is “diminished where, as here, the creditor is asserting that its administrative claims arise as a result of pre-petition executory contracts,” for equipment which has not been used by nor been a direct benefit to the estate, “as opposed to contracts which are formulated post-petition” or serve to benefit the estate post-petition. Id. Acceptance of GATX’s argument would make debtors liable for their full contract obligations on executory contracts prior to acceptance or rejection, creating tremendous pressure upon debtors to reject as many contracts as quickly as possible. Id. This is contrary to the purpose of the Bankruptcy Code, which accords the debtor “breathing space” to assume or reject, prior to confirmation of the plan, unless the executory contract obligee forces an earlier determination. 11 U.S.C. § 365(d)(2) (1978); Grant Broadcasting, 71 B.R. at 898. Therefore, we believe the preferable course is to place the burden of compelling an early choice on creditors such as GATX. See Grant Broadcasting, 71 B.R. at 898.\nAFFIRMED.\n. GATX also asserts that if it is entitled to administrative expense status, it must be compensated at the rate specified in the lease agreements for the period beginning on the date the petition is filed and ending on the date the bankruptcy court approves the trustee’s rejection. Because we hold that GATX is not entitled to administrative expense status, wc do not reach GATX's valuation issues.\n. Because Mid-Region filed bankruptcy in 1983, we apply the relevant Bankruptcy Code sections as they existed at that time. Bankruptcy Amendments and Federal Judgeship Act of 1984, § 553(a), Pub.L. No. 98-353, 98 Stat. 333, 392 (1984) (\"[e]xcept as otherwise provided in this section the amendments made by this title shall become effective to cases filed 90 days after the date of enactment of this Act [July 10, 1984]”). Section 365(d)(2) (1978) provided:\nIn a case under chapter 9, 11, 12, or 13 of this title, the trustee may assume or reject an exec-utory contract or unexpired lease of the debtor at any time before the confirmation of a plan, but the court, on request of any party to such contract or lease, may order the trustee to determine within a specified period of time whether to assume or reject such contract or lease.\n. 11 U.S.C. § 365(b)(1) (1978) provided:\nIf there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee—\n(A) cures, or provides adequate assurance that the trustee will promptly cure, such default.\n. 11 U.S.C. § 502(g) (1978) provided in relevant part:\nA claim arising from the rejection, under section 365 of this title or under a plan under chapter 9, 11, or 13 of this title, of an executo-ry contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed ... or disallowed ... the same as if such claim had arisen before the date of the filing of the petition.\n. GATX argues that the Amarex decision is not applicable to this case because Amarex involved an employee’s post-petition compensation while this case involves post-petition rent. We disagree. Amarex’s adoption of a definitive procedure for determining entitlement to an administrative expense claim is in no way limited to the particular facts of that case. Therefore, we apply that procedure.\n. Although Broadcast Corp. arises out of a Chapter 7 proceeding, it interprets 11 U.S.C. § 503(b)(1)(A) and has been followed in several Chapter 11 cases. See, e.g., Kinnan & Kinnan Partnership v. Agristor Leasing, 116 B.R. 162 (D.Neb.1990); In re ICS Cybernetics, Inc., 111 B.R. 32 (Bankr.N.D.N.Y.1989); In re Pickens-Bond Construction Co., 83 B.R. 581 (Bankr.E.D.Ark.1988); In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891 (Bankr.E.D.Pa.1987).\n. Sanders and Curry Printers also addressed the proper valuation method for calculating lease payments owed by the estate when the debtor-in-possession or trustee actually used the property for the benefit of the business. We emphasize that, today, we in no way decide that issue. Therefore, we find irrelevant many of the cases cited by GATX, which resolve only the valuation issue when the fact that the debtor used the property is undisputed. See Mohawk Industries, Inc. v. Related Industries, Inc., 64 B.R. 667, 669 (D.Mass.1986); In re Energy Resources, Ltd., 47 B.R. 337, 338 (Bankr.D.Mass.1985); In re Tucci, 47 B.R. 328, 333 (Bankr.E.D.Va.1985).", "type": "majority", "author": "BALDOCK, Circuit Judge."}], "attorneys": ["Gerald F. Munitz of Winston & Strawn, Chicago, IL (Ann C. Hinnant of Richards, Paul & Wood, Tulsa, OK, Dean C. Gramlich of Winston & Strawn, Chicago, IL, with him on the brief), for appellant.", "William C. Kellough (Carol A. Grissom, with him on the brief) of Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for appellee."], "corrections": "", "head_matter": "In re MID REGION PETROLEUM, INC., Debtor. GENERAL AMERICAN TRANSPORTATION CORPORATION, Appellant, v. W. Scott MARTIN, Trustee of Mid Region Petroleum, Inc., Appellee.\nNo. 92-5114.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 9, 1993.\nGerald F. Munitz of Winston & Strawn, Chicago, IL (Ann C. Hinnant of Richards, Paul & Wood, Tulsa, OK, Dean C. Gramlich of Winston & Strawn, Chicago, IL, with him on the brief), for appellant.\nWilliam C. Kellough (Carol A. Grissom, with him on the brief) of Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for appellee.\nBefore BALDOCK, HOLLOWAY and BRORBY, Circuit Judges."} | BALDOCK | HOLLOWAY | BRORBY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1130 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,672 | UNITED STATES of America, Plaintiff-Appellant, v. John S. WILLIAMSON, Defendant-Appellee | United States v. Williamson | 1993-08-11 | No. 92-2139 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before LOGAN, TACHA, and KELLY, Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellant, v. John S. WILLIAMSON, Defendant-Appellee."], "opinions": [{"text": "TACHA, Circuit Judge.\nThe government appeals a district court order granting the defendant’s motion to suppress evidence seized pursuant to an insufficiently particular search warrant. We exercise jurisdiction under 18 U.S.C. § 3741 and affirm.\nThis case arises out of an Internal Revenue Service (“IRS”) investigation of Mr. Williamson. In an effort to seize assets in satisfaction of an outstanding tax assessment of John S. Williamson, d/b/a Williamson Waterworks, IRS Officer Richard Rose applied for a warrant “to enter the business premises located at Star Route Box 302, Tijeras, New Mexico.” Officer Rose described the premises in his affidavit as consisting of “a three (3) acre (approximately) fenced lot and a butler building used as an office and a warehouse.” The magistrate issued a warrant which authorized the IRS “to enter the premises located at Star Route Box 302, Tijeras, New Mexico.” Officers of the IRS, including Officer Rose, executed the warrant and took photographs that the district court later suppressed as illegally seized evidence.\nOn appeal, we consider evidence addressed at a suppression hearing in the light most favorable to the prevailing party. United States v. Johnson, 895 F.2d 693, 697-98 (10th Cir.1990). We review the trial court’s findings of fact for clear error, United States v. Palomino, 877 F.2d 835, 837 (10th Cir.1989), and review questions of law, including the determination whether the warrant at issue is sufficiently particular, de novo, see United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).\nTo pass muster under the Fourth Amendment, “[t]he warrant must describe the place to be searched with sufficient particularity so that the executing officer can locate and identify it with reasonable effort. The requisite specificity of the description differs for rural and urban areas and depends heavily on the facts of each case.” United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991). “[Practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched.” Id.\nWe conclude that the warrant at issue did not describe the premises to be searched with sufficient particularity because it cannot be described as even “practically accurate.” Williamson Waterworks, the target of the investigation, is located at 1277 Old Highway 66 in Tijeras. The address is marked both on the front of the office and warehouse building and on both sides of a mailbox on the other side of the street. In contrast, Star Route Box 302 identifies a rural mail box located about one mile east and eight miles south of Williamson Waterworks on New Mexico Highway 217. The mail box sits at the end of a dirt road leading to Mr. Williamson’s residence, located at 23 Dina Road.\nThe warrant’s sole description of the premises is “the premises located at Star Route Box 302, Tijeras, New Mexico.” As Officer Rose admitted, a business’s mail box number indicates nothing about the physical location of the business premises. This case is thus similar to United States v. Votteller, 544 F.2d 1355 (6th Cir.1976), in which the Sixth Circuit held that “the number of the telephones alleged to be installed in the premises to be searched ... was [no] aid to the required particularity of the description.” Id. at 1363.\nWe also reject the government’s contention that the executing officer’s knowledge cured this manifestly defective warrant. Although an executing officer’s knowledge may be a curing factor, see United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir.1992), the officer’s knowledge in this case was the sole source of information identifying the physical location of the business premises. In effect, then, the government asks us to adopt a rule that an executing officer’s knowledge alone is sufficient to satisfy the Fourth Amendment’s particularity requirement. Because such a rule would be fundamentally inconsistent with the requirement of a written warrant, we conclude that the search warrant at issue was invalid.\nFinally, we agree with the district court that the government is not entitled to the “good faith” exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Supreme Court has made clear that “a warrant may be so facially deficient— 1.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 923, 104 S.Ct. at 3421. This is precisely such a case: no reasonable officer could have concluded that this warrant—which provides no meaningful description of the premises—was valid. We therefore AFFIRM the district court’s order granting the defendant’s motion to suppress.\n. We do not consider the contents of the warrant application or its accompanying affidavit because such documents can cure a defective warrant only when both of two requirements are met: “ 'first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.' ” Leary, 846 F.2d at 603 (quoting 2 Wayne R. LaFave, Search and Seizure § 4.6(a), at 241 (2d ed. 1987)). We find no evidence in the record that cither the affidavit or the warrant application were attached to the search warrant at the time of execution.\n. Williamson Waterworks applied for and acquired this rural property address in 1986.", "type": "majority", "author": "TACHA, Circuit Judge."}], "attorneys": ["Cynthia A. Young (Don J. Svet, U.S. Atty., District of N.M.; and Paula G. Burnett, Asst. U.S. Atty., D. of N.M., with her on the briefs), Atty., Dept, of Justice, Washington, DC, for plaintiff-appellant.", "Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellant, v. John S. WILLIAMSON, Defendant-Appellee.\nNo. 92-2139.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 11, 1993.\nCynthia A. Young (Don J. Svet, U.S. Atty., District of N.M.; and Paula G. Burnett, Asst. U.S. Atty., D. of N.M., with her on the briefs), Atty., Dept, of Justice, Washington, DC, for plaintiff-appellant.\nPeter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellee.\nBefore LOGAN, TACHA, and KELLY, Circuit Judges."} | LOGAN | TACHA | KELLY | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1134 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,700 | UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Gene KELLY, Jr., Defendant-Appellant | United States v. Kelly | 1993-08-13 | No. 92-5045 | United States Court of Appeals for the Tenth Circuit | {"judges": ["Before BALDOCK and BRORBY, Circuit Judges, and VRATIL, District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Gene KELLY, Jr., Defendant-Appellant."], "opinions": [{"text": "BRORBY, Circuit Judge.\nAppellant, Jimmy Gene Kelly, appeals his sentence of 360 months for the conviction of second degree murder under 18 U.S.C. § 1111. Appellant contends the sentencing court improperly departed upward from the applicable guideline range in imposing the sentence.\nBACKGROUND\nMr. Kelly, who is part Cherokee Indian, committed the murder on a Quapaw Indian allotment, thus bringing the crime within federal jurisdiction. 18 U.S.C. § 1153 and § 3242. Since Mr. Kelly admitted responsibility for the killing, the only issue before the jury was whether the murder was premeditated. The jury found no premeditation and convicted Mr. Kelly of second degree murder. Under the Sentencing Guidelines, Mr. Kelly was classified in criminal history category II and received a base offense level of 33, yielding a guideline range of 151-188 months. Instead, the sentencing court upwardly departed to an offense level of 41, producing a Guideline range of 360 months to life, from which Mr. Kelly received the 360 month minimum. In upwardly departing, the district court listed four potential aggravating circumstances regarding Mr. Kelly’s crime that were not adequately considered by the Sentencing Commission in formulating the offense level for second degree murder: (1) the use of a dangerous instrumentality; (2) the restraint of the victim; (3) extreme conduct; and (4) premeditation. Appellant challenges each of these grounds for departure under 18 U.S.C. § 3742(a)(3).\nFACTS\nMr. Kelly’s animosity toward the victim, Vernon Moyer, steadily grew in the period immediately preceding the murder. Apparently, Mr. Kelly was upset about rumors Mr. Moyer was spreading about his family. Mr. Moyer allegedly claimed to have fathered children with Mr. Kelly’s sister, and insinuated that Mr. Kelly and his father were dealing drugs. On the morning of the murder, Mr. Kelly learned the police were looking for the son of his friends, and became angry when he perceived Mr. Moyer was responsible for revealing the son’s whereabouts. There was additional testimony -that Mr. Kelly admitted to a friend, eight days prior to the murder, that he intended to kill Mr. Moyer.\nOn the day of the murder Mr. Kelly visited Mr. Moyer’s residence and invited him to go fishing. Mr. Kelly had no intention of fishing as he did not bring a fishing rod on the excursion. Shortly after arriving at the fishing pond, Mr. Kelly grabbed the victim by the throat, slammed him to the ground, and proceeded to choke him. After a few minutes of attempting to remove his assailant’s grip, Mr. Moyer’s struggle ended as his body went limp in an unconscious state. As Mr. Kelly stood up and walked back over to the pickup truck, the victim apparently gasped for breath. Mr. Kelly removed a jack handle/tire iron implement from the back of the truck and violently inflicted numerous blows to the victim’s head, causing severe facial fractures. Still in a rage, Mr. Kelly returned again to the truck and this time chose the jack itself as a weapon. Mr. Kelly, swinging the jack like an ax, decimated the victim’s neck, larynx, and voice box. Mr. Kelly then disposed of the body in a nearby pond. A few days after the murder, Mr. Kelly confessed his deed to a co-worker and lamented that he did not punch holes in the victim’s body and remove his tennis shoes so the body would not float.\nREVIEW OF DEPARTURES\nThe appellate disposition of an appealed sentence is governed by 18 U.S.C. § 3742(f). In accordance with § 3742(f), the Supreme Court has adopted a two-part departure analysis which examines whether the sentence was imposed in violation of law, and whether the sentence imposed is reasonable. Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992). Prior to Williams, the Tenth Circuit established a three-step process to review upward departures: 1) de novo review of whether the circumstances cited by the district court warrant departure; 2) clearly erroneous review of the factual determinations underlying the decision to depart; and 3) reasonableness review of the degree of departure. United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990). In United States v. Flinn, 987 F.2d 1497, 1500 (10th Cir.1993), we held it was still appropriate to engage in the White tripartite analysis since it comports with the Supreme Court’s approach. Because the district court listed four potential grounds for departure, we will perform the three-step review on each specified ground.\nPREMEDITATION\nDespite substantial evidence indicating the murder was premeditated, the jury acquitted Mr. Kelly of first-degree murder. In upwardly departing, the district court stated “the record was pretty clear to me as the judge listening to it that premeditation was present.” Mr. Kelly contends such an increase violates his constitutional right to due process and protection against double jeopardy. We will not address these constitutional concerns as the issue can be resolved through interpretation of the guidelines. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 (1988).\nThe first prong of the White test directs us to examine whether the sentencing court’s rationale to depart from the guidelines falls under 18 U.S.C. § 3553(b). Section 3553(b) instructs a court to stay within the applicable guideline range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” The relevant section in the guidelines, § 5K2.0, echoes this same language. Thus, the threshold issue is whether the Sentencing Commission adequately considered the element of premeditation when establishing the guideline range for second degree murder.\n“In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). In developing the guidelines the Commission examined “the many hundreds of criminal statutes in the United States Code.” U.S.S.G. Ch. 1, Pt. A, intro, comment, (n. 5). From these statutes, the Commission developed distinctions between types of criminal conduct and “applied sentencing ranges to each resulting category.” Id. In formulating the applicable guidelines for first and second degree murder the Commission referenced 18 U.S.C. § 1111(a). See U.S.S.G. §§ 2A1.1, 2A1.2. The guidelines incorporate the statutory definition for first and second degree murder as no separate definitions are provided in the guidelines. Thus, in order to understand the Commission’s rationale in • assigning an offense level of 43 for first degree murder and 33 for second degree, we must turn to the statutory definition.\nUnder 18 U.S.C. § 1111(a), “[M]ur-der is the unlawful killing of a human being with malice aforethought.” Specifically, first degree murder is “perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing.” Id. Second degree murder is consequently defined as any murder that does not fall under the definition provided for first degree. Id. Premeditation is the only element which distinguishes first degree murder from second. In this case, the parties recognized the sole issue was whether the murder was premeditated.\nThe presentenee report followed by the district court recommended premeditation as a grounds for upward departure as it is not an element of the offense of conviction. Such an approach is overly simplistic. It is true the “sentencing court should ‘treat each guideline as carrying out a “heartland,” a set of typical cases embodying the conduct that each guideline describes’.” White, 893 F.2d at 278 (quoting U.S.S.G. Ch. 1, Pt. A, intro, comment., at 16 (Nov. 1989)) and certainly, a premeditated murder is atypical of the heartland of cases representing second degree murders. Merely examining the elements of the offense of conviction, however, ignores the critical question of whether the Sentencing Commission adequately considered a potential aggravating circumstance in formulating base offense levels. If the sentencing court departs based on a circumstance already fully considered by the Sentencing Commission, it is an inappropriate grounds for departure. Williams, — U.S. at -, 112 S.Ct. at 1119. Premeditation was obviously considered in assigning the sentencing ranges applicable to first and second degree murder, as it is the only distinguishing factor between the two crimes, and thus accounts for a ten base offense level disparity. Consequently, the defendant’s state of mind was adequately considered by the guidelines when assigning offense levels to the different statutory degrees of homicide. Moreover, premeditation is not a factor which the defendant could possess “of a kind” or “to a degree” not adequately considered by the guidelines, but instead is an all-or-nothing determination. Because the Commission implicitly accounted for the element of premeditation in assigning appropriate offense levels in accordance with the murder statute, it is not a valid ground for departure. Therefore, it is unnecessary to engage in the second and third prongs of the White analysis for this justification.\nRESTRAINT OF VICTIM\nAt sentencing, the government referenced U.S.S.G. § 3A1.3 in requesting an adjustment for the restraint of the victim during the commission of the murder. Section 3A1.3 provides a two-level adjustment to the defendant’s base offense level, “[i]f a victim was physically restrained in the course of the offense.” The sentencing court rejected the government’s argument finding that the restraint of the victim in this case might not be “the type of restraint ... Congress has in mind.” Despite declining to adjust Mr. Kelly’s sentence for restraining the victim, the district court found that restraint was an appropriate grounds for departure: “[TJhere was restraint of the victim from the standpoint of grabbing him by the throat, so that is a factor that would justify some upward departure.”\nAlthough the district court never referenced a guidelines section in support of its departure, § 5K2.4 is the only departure section which addresses restraint. Section 5K2.4 (Abduction or Unlawful Restraint) justifies an upward departure “[i]f a person was abducted, taken hostage, or unlawfully restrained to facilitate commission of the offense or to facilitate the escape the scene of the crime, the court may increase the sentence above the authorized guideline range.” The type of restraint justifying upward departures under § 5K2.4 is the restraint employed in kidnapping or abducting the victim. There is no evidence in the record showing that Mr. Moyer was taken away from his home against his will. The brief grabbing of the victim’s throat in effectuating the murder does not constitute the type of restraint the Commission envisioned in formulating § 5K2.4. Thus, the sentencing court’s departure on this ground was inappropriate as a matter of law.\nDANGEROUS INSTRUMENTALITY\nThe court further attempted to justify an upward departure through the defendant’s use of the jack and tire iron as dangerous instrumentalities. Specifically, the district court stated:\nThere isn’t any question in the manner in which the tire iron and the manner in which the bumper jack were used, particularly in using the heavy bumper jack like you would a pickax to violently slam away at the victim’s head, it was a dangerous instrumentality, and that’s a factor that can be considered.\nWe find this justification to be an inappropriate ground for departure since the use of a dangerous instrumentality is usually inherent in the crime of murder.\nThe guidelines specifically address the use of a dangerous instrumentality as grounds for departure under U.S.S.G. § 5K2.6. Section 5K2.6 reads as follows:\nIf a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase.\nThe Sentencing Commission in formulating the applicable guideline range for murder contemplated that a dangerous instrumentality would be used in committing the offense. The fact that the end result of a defendant’s conduct is murder necessarily implies that the instrumentality effectuating the death of the victim was dangerous in the manner it was used. Therefore, murder must subsume the use of a dangerous instrumentality. See United States v. Medina^-Gutierrez, 980 F.2d 980, 983 (5th Cir.1992) (§ 5K2.6 was improper basis for departure where defendant was convicted of illegal possession of firearms. Possession of a dangerous instrumentality is only a proper ground for departure when the crime could be committed with or without the instrumentality, not when it is inherent in the charged crime).\nThe guidelines, in a general statement addressing the propriety of departures, specifically caution, “[wjhere, for example, the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense.” U.S.S.G. § 5K2.0.\nThe record does not reflect that Mr. Kelly’s use of the tire changing implement fell outside the “‘heartland’ or ‘set of typical cases embodying the conduct that [the guideline for murder] describes.’ ” United States v. Baker, 914 F.2d 208, 210 (10th Cir.1990) (quoting U.S.S.G. Ch. 1 Pt. A, intro. 4(a) p.s.), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991). Thus, defendant’s conduct in this case was not to a degree in excess of that which would ordinarily be involved in committing the offense of murder. Therefore, we hold the district court’s reliance on § 5K2.6 in upwardly departing was improper.\nEXTREME CONDUCT\nWe now address the district court’s fourth justification for upward departure, § 5K2.8 (Extreme Conduct). The court emphasized this rationale to be its foremost reason for departure: “the principal factor[ ] here that should be considered in the upward departure is under § 5K2.8,[] which states that an upward departure is warranted if the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim. Further, ... if there is additional gratuitous infliction of injury.”\nMr. Kelly contends § 5K2.8 is unconstitutionally vague on its face and unconstitutional as applied by the district court. We will first address the vagueness claim. Mr. Kelly claims § 5K2.8 is an aggravating circumstance incapable of objective determination and therefore is unconstitutionally vague as written. We take guidance from Supreme Court capital punishment cases which have previously applied an Eighth Amendment analysis in interpreting the vagueness of words such as “heinous”, “cruel,” and “brutal.”\nThe Supreme Court in Maynard v. Cartwright, 486 U.S. 366, 363-64, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988) found the language “especially heinous, atrocious, or cruel,” standing alone, provided insufficient guidance to a jury. The Maynard court reasoned that without precise explanatory language to guide the sentencing decision, “an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’ ” Id. at 364, 108 S.Ct. at 1859. In order for such phrases to survive a vagueness challenge, the sentencer’s discretion must be channeled “ ‘by clear and objective standards that provide specific and detailed guidance.’ ” Creech v. Arave, 947 F.2d 873, 883, (9th Cir.1991) (quoting Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)), cert. denied, — U.S. -, 113 S.Ct. 1840, 123 L.Ed.2d 466 (1993).\nThe Supreme Court upheld the constitutionality of the language “especially heinous, cruel, or depraved” as interpreted by the Arizona Supreme Court. Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990); see also Lewis v. Jeffers, 497 U.S. 764, 777-78, 110 S.Ct. 3092, 3100-3101, 111 L.Ed.2d 606 (1990). Such language was deemed constitutional because “the Arizona Supreme Court has sought to give substance to the operative terms.” Walton, 497 U.S. at 654, 110 S.Ct. at 3057. The Court recognized the proper degree of definition given to such language “is not susceptible to mathematical precision,” but the definition must give “meaningful guidance to the sentencer.” Walton, 497 U.S. at 655, 110 S.Ct. at 1058.\nSection 5K2.8 provides that upward departure may be appropriate when “the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim”. The next sentence in the policy statement provides illustrations of situations which should be considered extreme conduct: “Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.” The language that attempts to provide guidance to the initial terms must also be reviewed for vagueness. See Walton, 497 U.S. at 654, 110 S.Ct. at 3057. The phrases “torture of a victim,” “gratuitous infliction of injury,” and “prolonging of pain or humiliation,” provide objective standards for the application of § 5K2.8. Further, by giving precise detailed illustrations of extreme conduct, § 5K2.8 only applies to specific sets of circumstances. Therefore, we hold § 5K2.8 is not unconstitutionally vague.\nAfter upholding the constitutionality of § 5K2.8, we still must engage in the three-part White analysis to determine whether the sentencing court’s upward departure based on extreme conduct was proper. We begin by reviewing de novo whether the circumstances cited by the district court justify a departure from the guidelines. By using the word “unusually,” § 5K2.8 recognizes that departure may be appropriate when the defendant’s actions are heinous, cruel, or brutal beyond the characteristics inherently associated with the crime being sentenced. Therefore, we must limit our focus on whether Mr. Kelly’s conduct was unusually heinous within the universe of second degree murders, as § 2A1.2 plainly accounts for the heinousness and brutality generally involved in murder. See United States v. Kikumura, 918 F.2d 1084, 1118 (3rd Cir.1990). The nature of a defendant’s brutal conduct in carrying out a murder was an aggravating circumstance not contemplated by § 2A1.2 in setting an offense level for second degree murder. Thus, the district court properly relied on § 5K2.8 as a justification for departure.\nIn the second prong of the White analysis, “we ascertain whether the circumstances cited by the district court to justify departure actually exist in the instant case.” White, 893 F.2d at 278. Any “findings of fact will be overturned only if they are clearly erroneous.” Id. The district court made the factual finding that the murder involved “gratuitous infliction of injury,” one of the enumerated examples of extreme conduct in § 5K2.8.\nThe dictionary defines gratuitous as “[unnecessary or unwarranted.” Webster’s II New Riverside University Dictionary (1984). As applied to this case, we interpret the phrase “gratuitous infliction of injury” to include the infliction of an injury beyond what is necessary to effectuate the death of the victim. After strangling the victim to the point of unconsciousness, Mr. Kelly violently inflicted at least six punishing blows to the victim’s head and neck area. The doctor performing the autopsy identified the cause of death as “a combination of blunt and sharp force injuries of the head and neck.” The doctor further explained the damage to the victim’s neck caused by the strike by the jack.\nThe voice box or larynx was broken and crushed — the cartilages were crushed and broken in several places. The hyoid bone, which is a horseshoe shaped bone that lies just above the voice box between the tongue and the voice box, was broken in several places, and there were multiple small and medium sized arteries and veins that were cut or torn through by this wound.\nBy strangulating the victim and striking him with a tire iron and a jack, Mr. Kelly inflicted cumulative damage beyond the threshold necessary to kill the victim. Given the repetitive and severe nature of the injuries meted out by the defendant, the district court was not clearly erroneous in its finding of gratuitous infliction of injury.\nUnder the third prong of White, we must now determine whether the district court’s imposition of an eight-level departure was reasonable. After articulating its reasons for upward departure, the court then upwardly departed eight levels with no further explanation. We have consistently held that a “district court must specifically articulate reasons for the degree of departure.” Flinn 987 F.2d at 1502. Merely explaining “why a departure was made does not fulfill the separate requirement of stating the reasons for imposing the particular sentence.” Id. “[W]e will generally not commence a reasonableness analysis unless the district court has referenced the Guidelines in its rationale for selecting a degree of departure.” Id. at 1503.\nMoreover, because we rejected three out of the four rationales relied upon by the district court in justifying its departure, we find remand necessary after applying the approach articulated in Williams, — U.S. at — —, 112 S.Ct. at 1120-21. Under Williams, we are required to “decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.” Id. — U.S. at -, 112 S.Ct. at 1120. If the sentence was imposed as a result of the incorrect application of the guidelines we must remand. Id. Although the district court specified that it principally relied on § 5K2.8 in upwardly departing, we cannot conclude that the error in listing invalid grounds for departure “did not affect the district court’s selection of the sentence imposed.” Id. — U.S. at-, 112 S.Ct. at 1121.\nConsequently, we REMAND to the district court for resentencing. We approve of an upward departure for extreme conduct, but we instruct the court to provide a precise methodology for arriving at the particular sentence imposed.\n. The parties present the issue as whether the sentencing court’s upward departure based on acquitted conduct is a violation of Mr. Kelly’s protection against double jeopardy. The Tenth Circuit allows a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted. United States v. Coleman, 947 F.2d 1424, 1429 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992) (relying on U.S.S.G. § 2D1.1(b)(1) for firearms enhancement when he was acquitted of firearms possession). AH circuits except the Ninth permit the sentencing court to consider the facts underlying an acquittal in upwardly departing or enhancing a sentence. See United States v. August, 984 F.2d 705, 713 (6th Cir.1992), petition for cert. filed, (U.S. May 26, 1993) (No. 92-9156); United States v. Boney, 977 F.2d 624, 636 (D.C.Cir.1992); United States v. Olderbak, 961 F.2d 756, 764-65 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992); United States v. Rivera-Lopez, 928 F.2d 372, 372-73 (11th Cir. 1991); United States v. Fonner, 920 F.2d 1330, 1332-33 (7th Cir.1990); United States v. Rodriguez-Conzalez, 899 F.2d 177, 180-82 (2d Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir.1989); United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir.1989); United States v. Ryan, 866 F.2d 604, 609 (3d Cir.1989). Generally, these courts found no double jeopardy violation because the standard of proof at sentencing is preponderance of the evidence, as opposed to the beyond a reasonable doubt standard at trial. In contrast, the Ninth Circuit rejected the consideration of acquitted conduct in upward departures, stating: \"[I]t does not follow that the Guidelines permit a court to reconsider facts during sentencing that have been rejected by a jury’s not guilty verdict.” United States v. Brady, 928 F.2d 844, 851 (9th Cir.1991).\n. The elements of first degree murder are: \"(1) the act or acts of killing a human being; (2) doing such act or acts with malice aforethought; and (3) doing such act or acts with premeditation.” United States v. Free, 841 F.2d 321, 325 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). On the other hand, second degree murder only requires the killing of the victim with malice aforethought. United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir.1992).\n. Our holding is consistent with the only other case that has addressed an upward departure for a homicide conviction based on the defendant’s state of mind. In United States v. Brady, 928 F.2d 844 (9th Cir.1991), the defendant was acquitted of first degree murder but convicted of voluntary manslaughter. The sentencing court upwardly departed from the guidelines based in part on the defendant’s state of mind. The Ninth Circuit rejected the sentencing court's rationale in upwardly departing. In invalidating the departure, the Brady court relied primarily on the notion that the guidelines do not permit the sentencing court to reconsider facts rejected by a jury’s acquittal. Id. at 851. Our circuit together with other circuits, has declined to adopt such a broad holding. See Coleman, 947 F.2d at 1429, supra n. 1. In relevance to this case, however, the Brady court more specifically considered the propriety of a departure based on the defendant's state of mind: \"[T]he sentencing court’s determination of [the defendant's] state of mind is an impermissible factor on which to depart from the Guidelines.” Brady, 928 F.2d at 852.\n. Section 5K2.8 reads in full:\nIf the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.\n. Mr. Kelly appears to mischaracterize his own arguments. First, Mr. Kelly constitutionally challenges the vagueness of the section, and second, questions whether the circumstances necessary to justify departure under § 5K2.8 actually exist in the instant case. The second part of Mr. Kelly's challenge is not constitutionally based, but instead challenges whether the district court appropriately applied the section to the facts in this case. We will review this concern in the second prong of the White analysis.", "type": "majority", "author": "BRORBY, Circuit Judge."}], "attorneys": ["Thomas S. Woodward, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.", "Robert R. Nigh, Jr., Asst. Federal Public Defender (Stephen J. Greubel, Asst. Federal Public Defender, on the brief), Tulsa, OK, for defendant-appellant."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Gene KELLY, Jr., Defendant-Appellant.\nNo. 92-5045.\nUnited States Court of Appeals, Tenth Circuit.\nAug. 13, 1993.\nThomas S. Woodward, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.\nRobert R. Nigh, Jr., Asst. Federal Public Defender (Stephen J. Greubel, Asst. Federal Public Defender, on the brief), Tulsa, OK, for defendant-appellant.\nBefore BALDOCK and BRORBY, Circuit Judges, and VRATIL, District Judge.\nThe Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation."} | BALDOCK | BRORBY | VRATIL | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1137 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,741 | UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants | United States v. Kimmons | 1993-08-26 | No. 90-5413 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants."], "opinions": [{"text": "BY THE COURT:\nDefendants William Kimmons, Howard Small, and Bruce Lee Berta were convicted of conspiracy to rob armored ear companies and related firearms offenses. In United States v. Kimmons, 965 F.2d 1001 (11th Cir. 1992), we affirmed defendants’ convictions and sentences. Defendant Howard Small filed a petition for writ of certiorari. The Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Stinson v. United States, 508 U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Small v. United States, — U.S. -, 113 S.Ct. 2326, 124 L.Ed.2d 239 (1993).\nAt issue in Stinson was the definition of “crime of violence” as that term is used in the sentencing guidelines career offender provision, U.S.S.G. § 4B1.1. The commentary to the guidelines provides that “[tjhe term ‘crime of violence’ does not include the offense of unlawful possession of a firearm by a felon.” U.S.S.G. § 4B1.2, comment, (n. 2). The Court of Appeals had held that this commentary, though “persuasive,” was not “binding” on the federal courts. 957 F.2d 813, 815 (11th Cir.1992). The Supreme Court disagreed, holding that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. at -, 113 S.Ct. at 1915. The Supreme Court concluded that the commentary at issue was a binding interpretation of the phrase “crime of violence” as used in § 4B1.1.\nIn his petition for writ of certiorari filed with the Supreme Court, defendant Howard Small raised, as Issue II, the application of the career offender provision, § 4B1.1, in his case. Specifically, he argued that this court “erroneously held that possession of a weapon by a convicted felon is a crime of violence for purposes of sentencing under section 4B1.1 of the Sentencing Guidelines.” Petition for Writ of Certiorari at 11. This court did not render any such holding. Small raised the § 4B1.1 issue in this court for the first time in his reply brief; Small’s initial appellate brief filed with this court does not even mention § 4B1.1. Because arguments raised for the first time in a reply brief are not properly before the reviewing court, United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), we did not address the § 4B1.1 issue in our opinion. In any event, the issue is without merit. The “crime of violence” upon which Small’s career offender treatment is based is his conviction of conspiracy to rob armored car companies, not his conviction of firearms possession. Accordingly, the commentary at issue in Stinson has no relevance to Small’s case.\nWe have carefully reviewed our decision in United States v. Kimmons, 965 F.2d 1001. We conclude that the decision is consistent with Stinson, as we treated as authoritative any commentary relevant to the sentencing issues raised by defendants. Accordingly, having considered our decision in light of Stinson, we conclude that neither our decision nor our opinion, 965 F.2d 1001, is affected by Stinson. See United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir.1992); Jones v. American Broadcasting Companies, Inc., 961 F.2d 1546 (11th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 971, 122 L.Ed.2d 126 (1993). We reinstate our judgment affirming defendants’ convictions and sentences.", "type": "majority", "author": "BY THE COURT:"}], "attorneys": ["Theodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, FL, for Small.", "Frank H. Tamen, Lynne W. Lampreeht, Linda C. Hertz, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants.\nNo. 90-5413.\nUnited States Court of Appeals, Eleventh Circuit.\nAug. 26, 1993.\nTheodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, FL, for Small.\nFrank H. Tamen, Lynne W. Lampreeht, Linda C. Hertz, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.\nBefore FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges."} | FAY | DYER | CLARK | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1144 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,770 | UNITED STATES of America, Plaintiff-Appellee, v. $270,000.00, IN UNITED STATES CURRENCY, PLUS INTEREST, seized from the First Federal of Seminole Bank, etc., safe deposit box number 1-0-6 registered to Jeffrey Scott Boetto, Defendants, Jeffrey Scott Boetto, Claimant-Appellant | United States v. $270,000.00, in United States Currency, Plus Interest | 1993-09-14 | No. 92-2175 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before EDMONDSON and BLACK, Circuit Judges, and MELTON, Senior District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. $270,000.00, IN UNITED STATES CURRENCY, PLUS INTEREST, seized from the First Federal of Seminole Bank, etc., safe deposit box number 1-0-6 registered to Jeffrey Scott Boetto, Defendants, Jeffrey Scott Boetto, Claimant-Appellant."], "opinions": [{"text": "PER CURIAM:\nThis appeal requires us to resolve the outcome of conflicting state and federal forfeiture actions that created a dispute over whether the state court or the federal district court has jurisdiction over the $270,000 (the res). There is no dispute that the state court first assumed jurisdiction over the res. The question presented -is when the state court’s jurisdiction ended. We hold that the federal court improperly asserted jurisdiction while the res was still under the state court’s initial and exclusive jurisdiction, and we direct the federal court to return the res to the state court.\nI. BACKGROUND\nA state search warrant was issued for Claimant-Appellant Jeffrey Scott Boetto’s residence as a result of an undercover investigation of Boetto for drug trafficking. The search of Boetto’s residence yielded, among other things, two safe deposit box keys. On September 4, 1987, a search of one of the safe deposit boxes, pursuant to another state search warrant, yielded the res. The county sheriff took physical possession of the res.\nBoetto was subsequently charged with violating Florida and U.S. drug laws. After joint negotiations with federal and state authorities, and pursuant to a January 1988 joint plea agreement, Boetto pled guilty to cocaine charges in both state and federal courts.\nWhen forfeiture settlement talks failed, forfeiture actions were filed in both courts. Boetto’s residence was forfeited in federal court. The state court forfeiture action encompassed the res and other items seized in the search of his residence. After an eviden-tiary hearing on a defense motion to suppress evidence seized from the safe deposit box, the state court ordered the evidence suppressed on the grounds that the affidavit upon which the search warrant was issued was insufficient to support a finding of probable cause. On July 14, 1989, the state court entered a partial final order that dismissed the action against the res, but failed to direct its disposition. An appeal was taken, but on August 29, 1989, a notice of voluntary dismissal was filed. The state court of appeals granted the dismissal the next day. On September 1, 1989, Boetto filed a motion for return of the res in state court.\nThe morning of August 29, the same day that the state filed its notice of voluntary dismissal, state and federal law enforcement agents informally' transferred the res from state hands to federal hands. Later that afternoon, the United States filed its forfeiture complaint in federal district court, and the clerk of the federal district court issued a warrant of arrest in rem. A U.S. marshal executed the warrant on September 1, 1989.\nOn September 6, Boetto filed a motion to quash the federal arrest warrant and return the res to state court. The district court denied that motion on September 21, with a written notation that the federal court had concurrent jurisdiction over the res.\nIn the meantime, on September 19, 1989, nunc pro tunc July 14, 1989, the state court granted Boetto’s motion to return the res to him, entered final judgment in favor of Boet-to,' and ordered the sheriff to retrieve the res from the U.S. marshal. The state court order to surrender the res to the state was served on the U.S. Marshals Service on September 21, 1989, which refused to comply.\nOn September 25,1989, the federal district court- issued a protective order and enjoined enforcement of the state court order on the basis that the federal court had exclusive jurisdiction over the res. In October 1989, the district court rejected Boetto’s motion to dismiss, reasoning that, because the state circuit court had dismissed the forfeiture action and the appeal had been voluntarily dismissed, the state court did not need the res in order to proceed. After a bench trial, the district court ordered the res forfeited, but stayed execution of the order. This appeal followed.\nII. DISCUSSION\nA state court and a federal court cannot simultaneously exercise in rem jurisdiction over the same property. The Supreme Court has long recognized that a court’s in rem jurisdiction must be exclusive: “To avoid unseemly and disastrous conflicts in the administration of our dual judicial system, and to protect the judicial processes of the court first assuming jurisdiction, the principle, applicable to both federal and state courts, is established that the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other.” Penn General Casualty Co. v. Commonwealth, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935) (citations omitted); see also Kline v. Burke Construction Co., 260 U.S. 226, 229, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922) (“[Wjhere the [in. rem] jurisdiction of the state court has first attached, the federal court is precluded from exercising its jurisdiction over the same res to defeat or impair the state court’s jurisdiction.”).\nThe United States argues, and the district court agreed, that the state court’s jurisdiction ended when the state court of appeals granted the motion to voluntarily dismiss the appeal from the trial court’s partial final order dismissing the action against the res. The United States further contends that any additional action required to dispose of the property was purely ministerial, thus apparently divesting the state courts of continued jurisdiction. We do not agree.\nDisposition of the property is an integral part of the court’s ability to grant the relief sought in the proceedings. Thus, in rem jurisdiction must encompass the right of the court originally asserting jurisdiction to control and dispose of the property. See, e.g., Penn General, 294 U.S. at 195, 55 S.Ct. at 389 (in rem action requires the court to have possession or control of the property “in order to proceed with the cause and to grant the relief sought”). The United States asserts that the relief was granted when the state trial court ordered the evidence suppressed. At that time, however, no disposition of the res was ordered. Under Florida law, “the court acquiring original jurisdiction is competent to hear and determine all questions respecting title, possession, and control of the property.” Garmire v. Red Lake, 265 So.2d 2, 4 (Fla.1972) (quoting Adams v. Burns, 126 Fla. 685, 695, 172 So. 75, 79 (1936)). Once jurisdiction is acquired, property in the court’s custody “remain[s] there, by operation of law, until it is withdrawn by order of a competent court.” Adams, 126 Fla. at 695, 172 So. at 79.\nThe Florida Contraband Forfeiture Act, under which the state brought its forfeiture action, gives the state circuit court jurisdiction over property seized for forfeiture. Fla.Stat. § 932.704; see also Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991) (upholding constitutionality of the Florida Contraband Forfeiture Act if it is applied consistent with the due process requirements set forth in the opinion). Under the statutory scheme, the court must enter a “final order of forfeiture,” or otherwise direct disposition of the property. § 932.704(1), (3)(b).\nAlthough the statute does not establish a procedure for return of improperly seized property, or for disposal of property attendant to an appeal, consistent interpretation of the statute and Florida case law leads inexorably to the conclusion that property in a court’s custody subject to forfeiture proceedings can only be disposed of by a final court order that directs its disposition. See Department of Law Enforcement v. Real Property, 588 So.2d at 968 (upon a forfeiture verdict, the court shall issue a final order of forfeiture disposing of the property in accordance with law). The original property owner’s motion to return the res is a recognized procedure in Florida case law. Cf. Sawyer v. Gable, 400 So.2d 992, 994 (Fla.3d DCA 1981) (section 933.14, providing for return of property seized under a search warrant, does not provide statutory mechanism for motion seeking return of property, but implicit in the court’s authority to order the property returned is “the right of the person from whom it was seized to move for its return”).\nThe United States argues that upon the voluntary dismissal of the appeal, there was nothing left for the trial court to do. To the contrary, the record reveals that at the time the appeal was dismissed, the trial court had not entered a final order directing disposal of the property. In our view, upon dismissal of the appeal, jurisdiction vested back in the circuit court for it to enter a final order directing the disposition of the res. Cf Huie v. State, 92 So.2d 264 (Fla.1957) (jurisdiction vested back with the trial court to dispose of a habeas corpus bond when the appeal was dismissed). In sum, the state court’s jurisdiction does not end before it issues a final order directing the disposition of the property.\nIII. CONCLUSION\nAt the time the federal district court asserted jurisdiction over the res, the state circuit court had not entered a final order disposing of the property. The federal district court’s premature exercise of in rem jurisdiction impaired the state court’s jurisdiction and violated the spirit of comity that must underlie federal and state court relations. In that its exercise of jurisdiction was premature, the district court must return the res to the state court’s jurisdiction.\nThe district court’s order of forfeiture is VACATED and, upon REMAND, the district court is directed to order the U.S. Marshals Service to return the res to the state court.\nVACATED and REMANDED with directions.\n. Due to this disposition of the case, we do not reach the other issues raised on appeal.\n. Florida law also provides that the circuit court judge may order a return of property seized under a warrant not supported by probable cause. Fla.Stat. § 933.14(1). Further, judges in the state’s criminal division of the circuit courts also have inherent power to direct the return of property, including property seized without a warrant, in criminal actions. E.g., Garmire v. Red Lake, 265 So.2d 2, 5 (Fla.1972); Sawyer v. Gable, 400 So.2d 992, 996-97 (FIa.3d DCA 1981).\n. We need not resolve the parties' dispute about whether the partial final order dismissing the action only against the res was valid and appeal-able. If it was not appealable under Florida law, then jurisdiction never left the circuit court.\n. We do not decide whether the federal district court can request the state circuit court to return the res to it. Nor do we decide whether, if the res is released to Boetto, the federal district court can again assert jurisdiction.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["James M. Russ, Orlando, FL, for claimant-appellant.", "Gregory N. Miller, Asst. U.S. Atty., AUSA, Orlando, FL, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. $270,000.00, IN UNITED STATES CURRENCY, PLUS INTEREST, seized from the First Federal of Seminole Bank, etc., safe deposit box number 1-0-6 registered to Jeffrey Scott Boetto, Defendants, Jeffrey Scott Boetto, Claimant-Appellant.\nNo. 92-2175.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 14, 1993.\nJames M. Russ, Orlando, FL, for claimant-appellant.\nGregory N. Miller, Asst. U.S. Atty., AUSA, Orlando, FL, for plaintiff-appellee.\nBefore EDMONDSON and BLACK, Circuit Judges, and MELTON, Senior District Judge.\nHonorable Howell W. Melton, Senior U.S. District Judge for the Middle District of Florida, sitting by designation."} | EDMONDSON | BLACK | MELTON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1146 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,809 | Oswaldo JARAMILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and The Executive Office For Immigration Review, Respondents | Jaramillo v. Immigration & Naturalization Service | 1993-09-14 | No. 92-4332 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, and CARNES, Circuit Judges.", "EDMONDSON, Circuit Judge, concurs in the result."], "parties": ["Oswaldo JARAMILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and The Executive Office For Immigration Review, Respondents."], "opinions": [{"text": "CARNES, Circuit Judge:\nThis appeal involves § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c), which authorizes the Attorney General to grant an otherwise deportable alien discretionary relief from deportation, but only if the alien’s period of lawful unre-linquished domicile in this country is seven years or more. The Attorney General has delegated that authority to Immigration Judges, whose decisions are reviewed by the Board of Immigration Appeals (“the Board”). See 8 C.F.R. §§ 212.3(e), 3.1(b)(2). The Board in this case held that Oswaldo Jaramil-lo was ineligible to be considered for § 212(c) relief, because he did not meet the seven-year lawful unrelinquished domicile requirement. Jaramillo concedes that he is deporta-ble but seeks review of the Board’s holding that he did not meet the seven-year requirement for discretionary relief consideration.\nThe issue presented is at what point during deportation proceedings the status of an alien lawfully admitted for permanent residence ends so that the alien is no longer accruing lawful unrelinquished domicile time for § 212(c) purposes. Giving deference to the interpretation of the statute by the Board and aligning ourselves with two other circuit courts of appeal that have addressed the issue, we hold that the point during the deportation process at which a resident alien’s lawful domicile ends for § 212(c) purposes is when the deportation order becomes administratively final. That will be the date the Board renders its decision on appeal or certification, or the date an appeal is waived, or the date that time for appeal expires with none taken. Because Jaramillo had accrued seven years of lawful unrelinquished domicile before the order of deportation became administratively final, we reverse the Board’s decision that he is not entitled to be considered for § 212(c) relief.\nBACKGROUND\nOswaldo Jaramillo, a citizen of Colombia, entered the United States as a lawful permanent resident in 1974. He was convicted in 1976 of conspiracy to import cocaine and served a sentence of one year and one day followed by a probationary period. Jaramil-lo’s conviction rendered him subject to deportation. 8 U.S.C. § 1251(a)(ll) (1970). In 1979, when Jaramillo had been a lawful permanent resident of the United States for five years, the INS began deportation proceedings against him by issuing a show cause order. That order was mailed to Jaramillo, but was returned to the INS as undeliverable by the postal service. Nothing happened about the show cause order until Jaramillo, unaware that the INS was seeking to deport him, sought naturalization. During the course of naturalization proceedings, the show cause order was discovered in 1984. As a result of that discovery, a deportation hearing was scheduled. The INS did not serve Jaramillo with the show cause order until he appeared for his deportation hearing in 1984, by which time he had been a lawful permanent resident of this country for ten years.\nAt the deportation hearing, Jaramillo informed the Immigration Judge of his intention to seek relief under INA § 212(c), and he filed a timely application for relief under that section, which provides:\nAliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General ....\n8 U.S.C. § 1182(c). Under case law, discretionary relief under § 212(c) has been extended to resident aliens. E.g., Melian v. INS, 987 F.2d 1521, 1523 (11th Cir.1993); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976). The INS does not question that extension in this case.\nThe Attorney General is responsible for the administration of laws concerning immigration and naturalization, including the adoption of necessary regulations, and has delegated those responsibilities to the Commissioner of the INS. 8 U.S.C. § 1103(a), (b); 8 C.F.R. § 2.1. Immigration Judges conduct hearings on show cause orders in deportation proceedings, see 8 C.F.R. §§ 3.10, 242.8(a), and the Board of Immigration Appeals has appellate jurisdiction over decisions by Immigration Judges, id. § 3.1(b)(2). A deportation order issued by an Immigration Judge becomes final upon decision of the appeal by the Board, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken. Id. § 243.1. The Board’s decision is administratively final, but review by the United States Circuit Court of Appeals may be sought by petition. See 8 U.S.C. § 1105a.\nIn In re Lok, 18 I. & N. Dec. 101, 107 (BIA 1981), aff'd, Lok v. INS, 681 F.2d 107 (2d Cir.1982), the Board adopted as its official interpretation of § 212(c), a construction under which an alien’s period of lawful unrelin-quished domicile terminates only upon entry of an administratively final order of deportation. Under the Board’s Lok rule, Jaramillo would be eligible for consideration for § 212(c) discretionary relief, because his order of deportation did not become final until 1992, eighteen years after he had become a permanent resident. Indeed, at the time Jaramillo applied for § 212(c) relief in 1984, the order of deportation had not become final and he had already been a permanent resident for more than the requisite seven years. Jaramillo would not be eligible for § 212(c) relief if issuance of the show cause order itself served to stop the running of the lawful domicile period, because the order was issued before he had been a resident for seven years. That was the eventual holding of the Board in this case, which felt compelled in cases within this circuit to yield its interpretation of the statute in the face of two contrary decisions of this Court: Marti-Xiques v. INS, 741 F.2d 350 (11th Cir.1984), and Ballbe v. INS, 886 F.2d 306 (11th Cir.1989), cert. denied, 495 U.S. 929, 110 S.Ct. 2166, 109 L.Ed.2d 496 (1990).\nAfter the Board had announced in Lok that accrual of lawful residency did not stop until the deportation order became administratively final, this Court decided Marti-Xi-ques. In that case, we rejected the Board’s Lok interpretation and adopted, instead, the date the show cause order is issued as the cutoff date for accrual of lawful domicile for § 212(c) purposes. Marti-Xiques, 741 F.2d at 354-55.\nThe INS persuaded the Immigration Judge that because this case arose in the Eleventh Circuit, Marti-Xiques required that the cutoff date be the issuance of the show cause order, notwithstanding the Board’s different interpretation of the statute. The Immigration Judge held Jaramillo ineligible for § 212(c) relief solely because of the Marti-Xiques decision. Jaramillo appealed to the Board, which reversed. The Board interpreted Marti-Xiques as establishing that the commencement of deportation proceedings is the event which stops accrual of lawful residency time, and the Board held that under regulations in effect at the time of the Marti-Xiques decision, deportation proceedings did not commence until the show cause order was served as well as issued. See 8 C.F.R. § 242.1(a) (1984). Because service did not occur in this case until after Jaramillo had been a lawful resident for more than seven years, the Board concluded that he was eligible for § 212(c) consideration.\nAfter the Board reversed and remanded this case to the Immigration Judge, we decided Ballbe v. INS, which reiterated and clarified the rule of law set forth in Marti-Xiques. We held in Ballbe that the date lawful residency ceases to accrue for § 212(c) purposes is the date that the show cause order is issued, not the date it is served. 886 F.2d at 309. The INS then used our Ballbe decision to argue before the Immigration Judge in this case that notwithstanding the Board’s mistaken reading of Marti-Xiques, it was now clear that for § 212(c) purposes issuance of the show cause order was the crucial date in deportation proceedings undertaken in the Eleventh Circuit. Under that rule, Jaramillo was ineligible for § 212(c) relief because at the time the show cause order was issued, he had been in the United States as a lawful permanent resident for only five years. The Immigration Judge agreed with the INS, and applied Ballbe to preclude consideration of the merits of Jar-amillo’s previously filed § 212(c) application. The Board, in light of Ballbe, upheld the Immigration Judge’s decision and dismissed the appeal. Jaramillo petitioned for review by this Court.\nThe INS succeeded in convincing the Immigration Judge and the Board to apply our Marti-Xiques and Ballbe decisions to deny consideration of Jaramillo’s § 212(e) application. Nonetheless, the INS has now acquiesced in Jaramillo’s suggestion for hearing en banc in this case, 989 F.2d 1117, and has informed this Court that it agrees that we should defer to the Board’s interpretation of § 212(c) and overrule our two contrary decisions. This change in position by the INS, coupled with the existence of an inter-circuit conflict between the Fifth and Seventh Circuits’ holdings on the issue and ours in Marti-Xiques and Ballbe, prompted us to hear this case en banc in order to consider whether those two decisions should be overruled.\nDISCUSSION\nThe problem with our Marti-Xiques and Ballbe decisions is that they do not pay sufficient heed to Supreme Court precedent which commands us to defer to the interpretation of a statute by the agency charged with administering it, so long as the agency’s interpretation is reasonable and is not inconsistent with the language of the statute or congressional intent. The Supreme Court set forth the rule of deference in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which described a court’s duty in reviewing an administrative agency’s construction of a statute as a two-step process. First, the court is to determine if the intent of Congress is clear; if so, that is the end of the matter. On the other hand, if Congress has not spoken directly to the precise question at issue, a second step of review comes into play, and the court must determine whether the agency’s answer to the question Congress left open reflects a permissible construction of the statute. Id. at 842-43, 104 S.Ct. at 2781-82.\nCongress did not speak directly to the precise issue of when lawful domicile ends for § 212(c) purposes, so we are past the first step of the Chevron analysis. This case is about the second step: determining whether the agency’s construction of the statute is a permissible one. Under Chevron a court is not to search for what in the court’s view is the best possible construction of the statute: “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11. Instead, a court’s review is confined to whether the agency’s construction is a reasonable one, and the court may not substitute its own construction of a statutory provision for that of the agency. Id. at 844, 104 S.Ct. at 2782. Realizing that administrators and judges might well disagree about the wisdom of a policy behind an agency’s construction of a statutory provision, the Supreme Court admonished courts not to forget to whom the authority and responsibility for such policy making is entrusted:\nWhen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.” TVA v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 2302 [57 L.Ed.2d 117] (1978).\nId. at 866, 104 S.Ct. at 2793.\nThe Chevron rule of deference is fully applicable to the immigration area. Indeed, even before its Chevron decision, the Supreme Court had held that courts are required to defer to the Board of Immigration Appeals’ interpretation of the INA. INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981), involved the Board’s interpretation of INA § 244, 8 U.S.C. § 1254(a)(1). That section provides the Attorney General and her delegates with discretion to suspend the deportation and adjust the status of an alien when three requirements are met, one of which is that the deportation would result in “extreme hardship.” Id. at 140-41, 101 S.Ct. at 1029. The Board had construed that statutory term narrowly, but on appeal the Ninth Circuit disagreed, expressing its preference for a more liberal construction. The Supreme Court reversed, explaining:\n[T]he Court of Appeals improvidently encroached on the authority which the Act confers on the Attorney General and his delegates. The crucial question in this case is what constitutes “extreme hardship.” These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.\nId. at 144, 101 S.Ct. at 1031. The Supreme Court held that the Attorney General’s delegates had the authority to construe “extreme hardship” narrowly should they deem it wise to do so, which is what had occurred. Id. at 145, 101 S.Ct. at 1031; see also INS v. Rios-Pineda, 471 U.S. 444, 451, 105 S.Ct. 2098, 2103, 85 L.Ed.2d 452 (1985) (applying Wang’s, deference holding to the Board’s interpretation of INA § 244(a)(l)’s requirement of physical presence “for a continuous period of not less than seven years.”).\nThe teaching of Chevron and Wang apply to the present case. In the words of Chevron, Congress left a “gap” in § 212(c): it failed to specify the event that marks the end of the period of lawful unrelinquished domicile, and the Board filled that gap by interpreting the statute to mean that th'e period ends when a deportation order becomes administratively final. In re Lok, 18 I. & N. Dec. at 105. In the words of Wang, the phrase “lawful unrelinquished domicile” is “not self-explanatory, and reasonable men could easily differ” about its interpretation.\nWhen this Court reviews the manner in which the Board has filled the gap in § 212(c), Chevron says we may not “substitute [our] own construction of a statutory provision for a reasonable interpretation” by the agency. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. In such a ease, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782 (emphasis added). We must defer to the Board, even if its construction of § 212(c) is not the one we would choose, so long as the Board’s interpretation “represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, ... unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” Id. at 845, 104 S.Ct. at 2783 (quoting United States v. Shimer, 367 U.S. .374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). Likewise, Wang prohibits us from casting aside the Board’s interpretation of § 212(c) “simply because [we] may prefer another interpretation of the statute.” 450 U.S. at 144, 101 S.Ct. at 1031.\nThe reasonableness of the Board’s action in filling the gap Congress left in § 212(c) is evident from the reasoning process the Board followed in deciding where along the spectrum of possibilities the cutoff point for an alien’s accrual of lawful residence time should be. See In re Lok, 18 I. & N. Dec. at 105-07. The Board ruled out the two extremes, and moving away from those two extremes, the Board eliminated possibilities until it reached what it deemed to be a good cutoff point. One extreme, the earliest possible cutoff point, is the occurrence of the act or event leading to deportation. Prior Board decisions on related issues had established that an alien’s lawful status does not change that early, and the Board chose to be consistent. Id. at 106. Moving forward through the deportation process, the Board also rejected as a cutoff point the Immigration Judge’s adjudication that the alien is due to be deported. The Board reasoned that such a cutoff would be premature, because on appeal the Board is not bound by the decisions of Immigration Judges concerning de-portability, but instead reviews the record of each case de novo. Id. At the far end of the spectrum, the Board rejected the other extreme, which would be the date the alien' departs the United States after having been ordered deported. The Board reasoned that permitting an alien under a final order of deportation to remain a lawful' permanent resident would be “inherently incongruous,” because that would allow a clearly deportable alien to continue to enjoy benefits, such as visa preferences for relatives, to which the alien was no longer entitled. Id. Moving back one step in the process, the Board decided that permitting lawful residence time to accrue pending review by the court of appeals would be unacceptable, because the appellate courts’ scope of review is limited to errors of law or unfairness in procedure, instead of the de novo review conducted by the Board, and reversals of Board decisions are “relatively rare.” Under these circumstances, allowing lawful residence time to continue accruing during the judicial review process would encourage spurious appeals. Id. at 107. As a middle ground, in between the possibilities it rejected, the Board chose as the cutoff date the time at which the deportation decision becomes administratively final. -As the Board explained, because “[ajuthority to adjudicate an alien’s deporta-bility is vested primarily in the Attorney General and his delegates, the immigration judge and the Board,” their decisions are the primary components in the process. Id. Thus, the Board concluded that\nthe policies of the Act would best be served by deeming the lawful permanent resident status of an alien to end with the entry of a final administrative order of deportation — generally, when the Board renders its decision in the case upon appeal or certification or, where no appeal to the Board is taken, when appeal is waived or the time allotted for appeal has expired.\nId. at 105.\nThe Fifth and Seventh Circuits have each deferred to the Board’s construction of § 212(c), which it initially announced in Lok. The Fifth Circuit explained its decision as follows: “The Lok opinion, which the Board followed in the instant case, reflects careful consideration of the solution to the problem of when lawful residence in this country should terminate. We find nothing unreasonable about the [Board’s] rationale or its conclusion.” Rivera v. INS, 810 F.2d 540, 541 (5th Cir.1987). The Seventh Circuit, after reviewing the Board’s Lok decision, reached the same conclusion. Variampar- amibil v. INS, 831 F.2d 1362, 1367 (7th Cir.1987) (“We agree with the Fifth Circuit that the Board’s interpretation of § 212(c) is reasonable and reflects a careful consideration of the alternatives”). No decision of which we are aware has held that the Board’s interpretation of § 212(c) establishing the cutoff date for accrual of lawful domicile status is unreasonable.\nThe Board’s interpretation of the statute is not necessarily the one we would choose were the choice ours to make. Indeed, our prior decisions in Marti-Xiques and Ballbe reflect a preference for a different interpretation. Nonetheless, we agree with the Fifth and Seventh Circuits that the Board’s interpretation is reasonable and permissible. Under Chevron and Wang our inquiry stops there. We ai’e required to defer to the Board, and we do so. The Board’s rule is now the rule in this Circuit: lawful unrelin-quished domicile status for § 212(c) purposes ends when the deportation order becomes administratively final, as specified in the Board’s opinion in In re Lok, 18 I. & N. Dec. 101 (BIA 1981).\nNot only does our conclusion today help heal an intercireuit split, it also will help achieve nationwide uniformity in an area of the law where uniformity is particularly important. The Board has expressed concern over the inconsistent application of § 212(c) which resulted in large part from our prior decisions in Marti-Xiques and Ballbe. Noting that “a principal mission of the Board of Immigration Appeals is to ensure as uniform an interpretation and application of this country’s immigration laws as is possible,” the Board stated in In re Cema, No. [ A-XXXXXXXX ], slip op. at 10 (BIA Oct. 7, 1991) (Appendix), that the division among the circuits was making that goal unattainable. The result of the split of authority, the Board wrote, was that an alien’s eligibility for § 212(c) relief depended upon where a case arises. Id. at 13. While admitting that “this is not an issue in which there is an obviously correct or incorrect answer,” id. at 14, the Board nonetheless described a genuine problem:\nThe laws that we administer and the eases we adjudicate often affect individuals in the most fundamental ways. We think that all would agree that to the greatest extent possible our immigration laws should be applied in a uniform manner nationwide, particularly where the most significant aspects of the law are in issue. Here, however, we are left with a patchwork application of the law — with the most profound decisions affecting aliens (all of whom in this context have been lawful permanent residents of the United States) tied to the mere happenstance of where their cases arise geographically.\nId. By deferring to the Board’s interpretation of § 212(c), as we are required to do by the Chevron and Wang decisions, we have aligned ourselves with the Fifth and Seventh Circuits, thereby doing what we can to make possible a uniform nationwide application of the immigration laws.\nCONCLUSION\nBecause Jaramillo had been a lawful permanent resident of this country for more than seven years at the time his deportation order became administratively final, he is eligible to be considered for discretionary relief under § 212(c). But nothing we say is meant to imply in the least that the Attorney General and her delegates should grant Jar-amillo relief from deportation. He is a convicted felon. He conspired to import cocaine into this country. Under the law, the Attorney General and her delegates must consider Jaramillo’s request for relief, but they remain free to deny that request. Cf. INS v. Rios-Pineda, 471 U.S. 444, 450, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985) (noting Attorney General’s broad discretion over decisions to suspend deportation orders under INA § 244(a)(1), 8 U.S.C. § 1254(a)(1)).\nThe decision of the Board of Immigration Appeals that Jaramillo is ineligible to be considered for § 212(e) discretionary relief is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.\nEDMONDSON, Circuit Judge, concurs in the result.\n. Although we announced a rule different from the Board’s interpretation, the actual result in Marti-Xiques was consistent with the Board’s position. The alien in that case had been a lawful resident for less than seven years when the deportation decision became administratively final. See 741 F.2d at 351. Thus, he was ineligible for § 212(c) relief under the Board’s interpretation as well as under the earlier cutoff rule we adopted.\n. Upon review of the Board’s decision in Lok itself, the Second Circuit in dictum expressed the belief that Lok’s lawful domicile period \"may\" have ended when he conceded deportability instead of when the Board thereafter decided the appeal involving denial of his § 212(c) relief request. Lok v. INS, 681 F.2d 107, 110 (2d Cir.1982). Coming as it did prior to Chevron, the Second Circuit's Lok opinion contains no analysis of whether the Board’s construction of the statute is reasonable, and the Second Circuit’s dictum is unpersuasive for that reason. The Fifth and Seventh Circuit decisions, on the other hand, were informed by Chevron, and we agree with their holdings.", "type": "majority", "author": "CARNES, Circuit Judge:"}], "attorneys": ["Ira J. Kurzban, Helena Tetzeli, Kurzban Kurzban & Weinger, P.A., Miami, FL, for petitioner.", "Donald A. Couvillon, Richard M. Evans, Donald E. Keener, Robert Kendall, Jr., OIL, Civ. Div. Dept, of Justice, Washington, DC, for respondents."], "corrections": "", "head_matter": "Oswaldo JARAMILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and The Executive Office For Immigration Review, Respondents.\nNo. 92-4332.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 14, 1993.\nIra J. Kurzban, Helena Tetzeli, Kurzban Kurzban & Weinger, P.A., Miami, FL, for petitioner.\nDonald A. Couvillon, Richard M. Evans, Donald E. Keener, Robert Kendall, Jr., OIL, Civ. Div. Dept, of Justice, Washington, DC, for respondents.\nBefore TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, and CARNES, Circuit Judges."} | TJOFLAT | FAY | KRAVITCH | 2 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1149 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,846 | In re EMPIRE FOR HIM, INC., Debtor. CAPITAL FACTORS, INC., Plaintiff-Appellant, v. EMPIRE FOR HIM, INC., Defendant-Appellee, Hamilton Bank, N.A., Movant-Appellee | Capital Factors, Inc. v. Empire for Him, Inc. | 1993-09-14 | No. 92-4440 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before KRAVITCH and COX, Circuit Judges, and HOBBS , Senior District Judge."], "parties": ["In re EMPIRE FOR HIM, INC., Debtor. CAPITAL FACTORS, INC., Plaintiff-Appellant, v. EMPIRE FOR HIM, INC., Defendant-Appellee, Hamilton Bank, N.A., Movant-Appellee."], "opinions": [{"text": "PER CURIAM:\nUpon the filing of Debtor’s petition for relief under Chapter 11 of the Bankruptcy Code, Capital Factors, Inc. held funds which it had collected on Debtor’s accounts pursuant to a factoring agreement. Debtor asked the bankruptcy court to order the turnover of these funds pursuant to 11 U.S.C. § 542(a). Capital Factors opposed the turnover claiming a security interest in the funds and claiming damages for the Debtor’s rejection of their factoring agreement. Although the bankruptcy court found that Capital Factors had a security interest in the funds as proceeds of the accounts and that Capital Factors had suffered damages in the amount of $70,000, the court refused to enforce the security interest for equitable reasons. The court ordered a turnover of the funds and allowed Capital Factors a general unsecured claim against the estate for its damages. On appeal, the district court affirmed, and Capital Factors now appeals to this court. The issue before us is whether the bankruptcy court properly exercised its general equitable powers. We hold that it did not and vacate its order.\nI. FACTUAL AND PROCEDURAL BACKGROUND\nEmpire for Him, Inc. (Empire) and Capital Factors, Inc. entered into a factoring agreement, whereby Empire agreed to sell and assign its accounts to Capital Factors, and in return, Capital Factors agreed to service the accounts and return advances on those accounts to Empire. Under the agreement, Capital Factors received a certain percentage of each factored receivable as a commission. The minimum amount of the commission was $60,000 for each contract year payable in the amount of $5,000 per month. In other words, Capital Factors was to receive no less than $5,000 each month of the term of the contract.\nEmpire also granted Capital Factors a security interest in its accounts for any indebtedness it owed to Capital Factors. Specifically, the agreement provided\n9. SECURITY: As collateral security for any and all of our (and our parent’s subsidiaries’ and affiliates’) indebtedness and obligations to you (and to your parent, subsidiaries and affiliates), whether matured or unmatured, absolute or contingent, now existing or hereafter arising (including under indemnity or reimbursement agreements or by subrogation), and however acquired by you, whether arising directly between us or acquired by you by assignment, whether relating to this Agreement or independent hereof, including all obligations incurred by us to any other person factored or financed by you (collectively, the “Obligations”), we do hereby grant to you a security interest in all of our accounts, contract rights, and general intangibles (including all patents, trademarks, and copyrights registered in the United States Copyright or Patent offices, together with the goodwill of the business in connection with which such trademark may be used and the royalties and other fees which become due for the use of such patents, trademarks, or copyrights), whether or not otherwise specifically assigned to you in this Agreement, now existing or hereafter acquired, and in the proceeds and products thereof, any security and guarantees therefor, in the goods and property represented thereby, in all of our books and records relating to the forgoing, and in all reserves, credit balances, sums of money at any time to our credit with you, and any of our property at any time in your possession. We hereby irrevocably authorize and direct you to charge at any time to our account any Obligations, and to pay any Obligations owing by us to your parent, subsidiaries or affiliates, by so charging our account. We agree to execute financing statements and any and all other instruments and documents that may now or hereafter be provided for by the Uniform Commercial Code or other law applicable thereto reflecting security interests granted to you hereunder. We hereby appoint you as our attorney-in-fact and authorize you to sign such financing statements on our behalf as debtor or to file such financing statements without our signature, signed only by you as secured party. We shall be liable for, and you may charge our account with, all reasonable costs and expenses of filing such financing statements (including any filing or recording taxes), making lien searches, and any attorney’s fees and expenses that may be incurred by you in perfecting, protecting, preserving, or enforcing your security interests and rights hereunder.\nThe agreement further provided that in the event of termination of the contract, Capital Factors was to receive the monthly minimum factoring fee for ninety days.\nOn January 3,1991, Empire filed a petition for relief under Chapter 11 of the Bankruptcy Code. It then moved under 11 U.S.C. § 365(d)(2) to reject the Factoring Agreement with Capital Factors, explaining that Capital Factors had not actively collected the accounts since Empire had filed for bankruptcy. The bankruptcy court granted the motion to reject the contract.\nEmpire then filed an adversary complaint against Capital Factors seeking a turnover of account proceeds collected and held by Capital Factors. Capital Factors answered the complaint and filed a motion for summary judgment, arguing that the funds were property of the estate and that, if the funds were property of the estate, the bankruptcy court could not order turnover without adequate protection for Capital Factors’ secured interest in the funds as cash proceeds of the accounts. Capital Factors attached to its motion for summary judgment the financing statements filed with Florida’s Secretary of State and an affidavit which stated that the disputed funds were generated by the accounts and that Empire had not paid the factoring commission since January 1991. Capital Factors also filed an amended proof of claim in the amount of $70,000.\nEmpire sought summary judgment ordering Capital Factors to turn over the funds. Empire argued that Capital Factors had only an unsecured claim against the estate because there were no outstanding factoring commissions owed on the date that the bankruptcy petition was filed.\nIn its order, the bankruptcy court accepted as fact the parties’ stipulation (1) that the amount of Capital Factors’ damages for breach of the Factoring Agreement was $70,-000 and (2) that Capital Factors had “an unavoidable perfected security interest” in Empire’s accounts. However, the bankruptcy court then stated that it would be inequitable to enforce this security interest, because Capital Factors had not collected the accounts since Empire’s bankruptcy. The court denied Capital Factors’ motion for summary judgment, granted Empire’s motion for summary judgment and ordered Capital Factors to turn over $119,643.16, the amount of the proceeds in Capital Factors’ possession. The bankruptcy court allowed Capital Factors a general unsecured claim in the amount of its contract damages.\nCapital Factors appealed to the district court. In the meantime, Empire received post-petition financing from Hamilton Bank, N.A. (Hamilton). The district court allowed Hamilton to file a brief on Empire’s behalf to defend Hamilton’s interest in the funds as a post-petition secured creditor. The district court affirmed the bankruptcy court. It reasoned that the bankruptcy court had not abused its discretion in finding enforcement of the security interest inequitable and allowing Capital Factors a general unsecured claim to the extent of its damages.\nCapital Factors appeals to this court. Because of its post-petition financing agreement with Hamilton, Empire has disclaimed any interest in these appellate proceedings, and Hamilton now defends this appeal in Empire’s stead to protect Hamilton’s interest in the funds.\nII.CONTENTIONS OF THE PARTIES AND ISSUES ON APPEAL\nCapital Factors argues that the summary judgment ordering it to turn over the funds to Empire was error. Capital Factors contends that the funds were not the property of the estate; that it was entitled to a setoff of damages for breach of the Factoring Agreement; and that it was improper for the district court to order turnover without first providing adequate protection for Capital Factors’ security interest. Capital Factors maintains that the bankruptcy court erred when it exercised its equitable powers in a manner inconsistent with the provisions of the Bankruptcy Code.\nHamilton (in Empire’s stead) counters that the bankruptcy court acted within its equitable power. It argues that the funds were property of the estate and that Capital Factors was entitled to neither a setoff nor adequate protection. Hamilton argues that Capital Factors was entitled only to an unsecured claim for damages for breach of the Factoring Agreement.\nWe hold that the funds were property of the estate, but that the bankruptcy court’s equitable powers did not permit it to order a turnover of the funds without adequate protection for Capital Factors’ security interest in those funds. We do not address any of the other issues raised by the parties.\nIII.STANDARD OF REVIEW\nThe parties differ as to the standard of review to be applied in this case. Appellant Capital Factors urges us to apply a de novo standard, because a review of a summary judgment and a review of the bankruptcy court’s equitable powers involve only issues of law. The appellee maintains that, because we review here the bankruptcy court’s exercise of its equitable powers, we should apply a clearly erroneous standard or, at the very least, an abuse of discretion standard.\nBecause the district court in reviewing the decision of a bankruptcy court functions as an appellate court, we are the second appellate court to consider this case. As a general rule, “[t]his Court’s standard of review with regard to questions of law, whether made by the bankruptcy court or by the district court, is de novo.” Equitable Life Assurance Soc. v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990). Because the district court (as an appellate court) makes no factual findings, our review of its decision is entirely de novo. Id. at 1384. We review the bankruptcy court’s factual determinations for clear error. Rush v. JLJ, Inc. (In re JLJ, Inc.), 988 F.2d 1112, 1116 (11th Cir.1993).\nHere, we consider the scope of the bankruptcy court’s equitable powers. We address only issues of law. Accordingly, we review de novo the conclusions of the bankruptcy court and the district court. See Shapiro v. Saybrook Manuf. Co. (In re Saybrook Mamif. Co.), 963 F.2d 1490, 1492 (11th Cir. 1992).\nIV.DISCUSSION\nWe reject Capital Factors’ argument that the funds in its possession were not property of the estate under 11 U.S.C. § 541(a)(1). Section 541(a)(1) defines the property of the estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1) (West 1993). This language plainly includes the funds held by Capital Factors, even though those funds were subject to Capital Factors’ security interest. Cf. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (holding that property seized by a creditor prior to debtor’s bankruptcy was property of the estate even though creditor — the IRS — held a secured interest — a tax lien — in the property).\nOnce we have concluded that the funds were property of the estate, we must then determine whether the bankruptcy court properly ordered the turnover of those funds pursuant to the provisions of 11 U.S.C. § 542 and the bankruptcy court’s general equitable powers. This court has held that “[bankruptcy courts are indeed courts of equity, and they have the power to adjust claims to avoid injustice or unfairness.” Shapiro v. Saybrook Manuf. Co. (In re Saybrook Manuf. Co.), 963 F.2d 1490, 1495 (11th Cir.1992) (citations omitted). However, we have also held that this equitable power is not unlimited. Id. A bankruptcy court’s equitable power “must and can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 969, 99 L.Ed.2d 169 (1988).\nThe Bankruptcy Code authorizes a bankruptcy court to order turnover of the debt- or’s property held by others. See 11 U.S.C.A. § 542(a) (West 1993). Section 542(a) provides that\nan entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, ... shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.\nId. Section 363, to which § 542(a) refers, states that a trustee may only use, sell, or lease cash collateral if each entity with an interest in the cash collateral consents or, if after notice and a hearing, the court authorizes the use, sale, or lease of the cash collateral in accordance with the provisions of section 363. Id. § 363(c)(2). The provisions of section 363 further state that “the court ... shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of such interest.” Id. § 363(e).\nSection 542(a) authorizes the bankruptcy court to order the turnover of property of the estate, but only to the extent that the court provides adequate protection for those who have an interest in such property. As the Supreme Court explained in United States v. Whiting Pools, Inc., 462.U.S. 198, 207-07, 103 S.Ct. 2309, 2314-15, 76 L.Ed.2d 515 (1983),\nAs does all bankruptcy law, § 542(a) modifies the procedural rights available to creditors to protect and satisfy their liens. In effect, § 542(a) grants to the estate a pos-sessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings. The Bankruptcy Code provides secured creditors various rights, including the right to adequate protection, and these rights replace the protection afforded by possession.\nHere, the bankruptcy court found that Capital Factors held an unavoidable perfected security interest in the funds in its possession. It also found that the amount of Capital Factors’ damages for breach of the Factoring Agreement was $70,000. Given these explicit findings, the court could not then refuse to enforce Capital Factors’ security interest, ignoring the protections afforded Capital Factors’ interest by other provisions of the Code. The bankruptcy court’s equitable powers simply do not extend that far.\nV. CONCLUSION\nAccordingly, we VACATE the bankruptcy court’s order granting Empire’s motion for summary judgment, denying Capital Factors’ motion for summary judgment and ordering Capital Factors to turn over the funds. We REMAND for proceedings not inconsistent with this opinion.", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Michael W. Ullman, Richard A. Warren, Ullman & Ullman, P.A., North Miami Beach, FL, for plaintiff-appellant.", "Gregg J. Breitbart, Kirkpatrick & Lock-hart, Miami, FL, for Hamilton Bank."], "corrections": "", "head_matter": "In re EMPIRE FOR HIM, INC., Debtor. CAPITAL FACTORS, INC., Plaintiff-Appellant, v. EMPIRE FOR HIM, INC., Defendant-Appellee, Hamilton Bank, N.A., Movant-Appellee.\nNo. 92-4440.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 14, 1993.\nMichael W. Ullman, Richard A. Warren, Ullman & Ullman, P.A., North Miami Beach, FL, for plaintiff-appellant.\nGregg J. Breitbart, Kirkpatrick & Lock-hart, Miami, FL, for Hamilton Bank.\nBefore KRAVITCH and COX, Circuit Judges, and HOBBS , Senior District Judge.\nHonorable Truman M. Hobbs, Senior U.S. District Judge for the Middle District of Alabama, sitting by designation."} | KRAVITCH | COX | HOBBS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1156 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,875 | UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth KAMMER, Defendant-Appellant | United States v. Kammer | 1993-09-14 | No. 92-6343 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before FAY and HATCHETT, Circuit Judges, and ATKINS , Senior District Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth KAMMER, Defendant-Appellant."], "opinions": [{"text": "HATCHETT, Circuit Judge:\nWe reverse the misapplication convictions in this case because the government failed to prove that the appellant’s failure to refund Pell Grant monies constituted a misapplication under 20 U.S.C. § 1097(a).\nI. FACTS\nDuring 1988, Elizabeth Kammer, appellant, owned and operated Coastal Training Institute (CTI), a vocational training school in Mobile, Alabama. Some of the students attending CTI were eligible for Pell Grants from the federal government or guaranteed student loans (GSL) from a private lender.\nWhen students were awarded Pell Grants through the Department of Education’s (DOE) Pell Grant program, CTI held the Pell Grants awarded to the students in trust for the DOE pursuant to 34 C.F.R. § 668.16. When these students enrolled, CTI would withdraw the funds from its trust account and deposit them into CTI’s operating account for tuition. If, however, the students with Pell Grants withdrew prior to completing the course of study, regulations required that CTI refund the unearned portions of the Pell Grants to the federal trust fund within thirty days, pursuant to 34 C.F.R. § 668.-22(e)(5). No unearned portion of a Pell Grant could be used for any other purpose. 34 C.F.R. § 668.16. To obtain guaranteed student loans, the students would apply for a loan from a private lender. After obtaining the loans, the students would deposit them with CTI for tuition. CTI would then deposit the funds in its operating account. According to the regulations, if students who received these loans withdrew prior to completing the course, the unearned portions of the loans had to be refunded to the lender within sixty days, pursuant to 34 C.F.R. § 682.607(c).\nDuring the spring of 1989, Rammer decided to open a new school in order to reduce the overall default rate because a high default rate could render a school ineligible to participate in the federal loan program. For a student to be admitted to the new school in Prichard, Alabama, CTI required that the student have a high school diploma, GED, college work, or pass the CPAT, a standardized test. Thus, if a student failed the CPAT, CTI would not enroll the student, and CTI would not receive federal financial aid funds.\nJudy Martin, a CTI employee, administered the CPAT at the Prichard campus. On one occasion, Rammer called Martin and stated, “They will all pass, won’t they?” Martin responded affirmatively and altered students’ CPAT scores so that ineligible students would qualify for federal financial aid funds.\nDuring the summer of 1989, a CTI employee informed Rammer that someone was falsifying test scores at the Prichard campus. Although Rammer stated that she would talk to Judy Martin about the test scores, CTI employees testified at trial that she never investigated the alleged falsification of test scores.\nCTI’s financial condition deteriorated; students failed to remain enrolled; and Rammer failed to refund the unearned portions of federal financial aid funds. Instead, Ram-mer partially operated CTI with the unearned federal financial aid funds. Specifically, Rammer used $160,561.11 of federal funds to operate CTI.\nIn January, 1990, a DOE program reviewer appeared unannounced at CTI for a program review. The program reviewer noted that withdrawn students’ files contained copies of non-negotiated refund cheeks, but that refunds had not actually been made. Rammer explained to the program reviewer that she was “aging debts,” meaning that the most necessary and immediate debts were being paid first; other debts, including federal financial aid refunds, were “aged” so that the oldest debts could be identified readily and paid as funds became available.\nIn April, 1990, CTI closed, and shortly thereafter filed for bankruptcy.\nII. PROCEDURAL HISTORY\nOn September 19, 1991, a federal grand jury returned charges against Rammer in a twelve-count indictment. Count I was for conspiracy, in violation of 18 U.S.C. § 371. Counts II through XII were for embezzling, misapplying, and stealing federal financial aid funds in violation of 20 U.S.C. § 1097(a) and 18 U.S.C. § 2. After a two-day trial, the jury convicted Rammer on all twelve counts.\nThe district court denied Rammer’s motion for judgment of acquittal. Eventually, the district court also denied Rammer’s supplemental motion for acquittal.\nThe district court sentenced Rammer to concurrent terms of twenty-seven months imprisonment, without parole, as to all counts. The district court also imposed supervised release for a concurrent term of three years as to all counts with special conditions of restitution of $160,561.11 to DOE. The restitution is to be paid in three installments of $53,520.37 each during the period of supervised release and 100 hours of community service for each of the three years of supervised release. The district court also required Rammer to pay a special assessment of $600.\nIII. CONTENTIONS\nRammer contends that this court must reverse the conspiracy count because of insufficiency of the evidence. Additionally, Ram-mer contends that this court must reverse the criminal misapplication convictions because on the facts of this case her actions do not constitute crimes, but rather violations of civil regulations. Consequently, the evidence was insufficient to establish criminal misapplication. Additionally, Rammer contends that this court must remand the case to the district court because it misinterpreted the United States Sentencing Guidelines.\nThe government contends that the evidence sufficiently proved a conspiracy between Kammer and Martin. The government also contends that the evidence sufficiently established that Kammer misapplied federal financial aid funds because the civil regulations create a reversionary interest in the federal monies in requiring the unearned portions of the federal financial aid funds to be returned within a specific time. Thus, the unearned portions of the federal financial aid funds remained property of the United States. Moreover, the government contends that it did not equate violation of a civil regulation to criminal intent nor did the district court charge the jury that it could find Kammer guilty for violating a civil regulation. The government also contends that the district court properly sentenced Kammer.\nIV.ISSUES\nWe must determine whether the evidence viewed in a light most favorable to the government sufficiently proved a conspiracy between Kammer and Martin in violation of 18 U.S.C. § 371. Additionally, we must determine whether the evidence viewed in a light most favorable to the government sufficiently proved that Kammer embezzled, misapplied, and stole federal financial aid funds in violation of 20 U.S.C. § 1097(a).\nV.STANDARD OF REVIEW\nWe review de novo sufficiency of the evidence claims, viewing the evidence in a light most favorable to the government. United States v. Kelly, 888 F.2d 732, 739-40 (11th Cir.1989). When reviewing a sentence under the guidelines, however, this court will not overturn the district court’s factual findings unless they are clearly erroneous. United States v. Griffin, 945 F.2d 378, 380-81 (11th Cir.1991), cert. denied sub nom. Edwavds v. United States, — U.S. -, 112 S.Ct. 1958, 118 L.Ed.2d 561 (1992).\nVI.DISCUSSION\nA. Conspiracy\nThe jury found Kammer guilty of a conspiracy against the United States in violation of 18 U.S.C. § 371. To sustain a conviction under section 371, the government must prove: “(1) the existence of an agreement to achieve an unlawful objective; (2) the defendant’s knowing and voluntary participation in the conspiracy; and (3) the commission of an overt act in furtherance of the conspiracy.” United States v. Harmas, 974 F.2d 1262, 1267 (11th Cir.1992) (citation omitted). The Supreme Court has defined a conspiracy to defraud the United States as “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Harmas, 974 F.2d at 1267 (citing Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966)). Additionally, the Supreme Court has required that the United States be the target of a conspiracy to defraud under section 371. Harmas, 974 F.2d at 1267 (citing Tanner v. United States, 483 U.S. 107, 128-32, 107 S.Ct. 2739, 2751-54, 97 L.Ed.2d 90 (1987)). After reviewing the record, we hold that the evidence was sufficient to prove Kammer conspired to defraud the United States in violation of section 371.\nFirst, Martin, who altered the students’ test scores thereby allowing otherwise ineligible students to receive federal financial aid funds, pleaded guilty to the conspiracy charge and testified at Kammer’s trial. Kammer denies that she instructed Martin to falsify test scores with her question, “They will all pass, won’t they?” Martin, however, testified that she understood Kammer’s question to mean that students taking the CPAT should all pass rendering them eligible for federal financial aid funds. Additionally, Dean Bentley and Joyce Jackson, other CTI administrators, testified that they informed Rammer of the false test scores at the Prich-ard campus, but Rammer failed to take remedial action and instructed them to stay away from the Prichard campus. Additional evidence showed that Rammer pressured employees to bring students into the Prich-ard campus to set a monthly quota.\nRammer also contends that Martin’s altering of the students’ test scores was immaterial because it was not beneficial to her in any way. Rammer suggests that the CPAT was not required for students to be eligible for federal financial aid funds.\n“All [section 371] requires is that two or more persons conspire to commit an offense against or otherwise defraud the United States and that one or more of such persons do an act in pursuit of that objective.” United States v. Booty, 621 F.2d 1291, 1297 (5th Cir.), modified on other grounds, 627 F.2d 762 (5th Cir.1980). In this case, sufficient evidence exists to conclude, as the government contends, that Rammer and Martin believed that a passing score on the CPAT was required to obtain federal financial aid for students who otherwise failed to have a high school diploma, GED, or college work. Because of this belief, Rammer and Martin conspired to alter and falsify CPAT scores to defraud the government and acquire funds they were not entitled to receive. See Booty, 621 F.2d at 1297-98.\nB. Criminal Misapplication\nRammer contends that the evidence in this case is insufficient to prove -criminal misapplication, does not establish criminal intent, and does not prove civil conversion. Rather, according to Rammer, the evidence only proves that federal financial aid refunds were not timely paid. Because we find the evidence insufficient to establish criminal misapplications, we reverse Rammer’s criminal misapplication convictions based on 20 U.S.C. § 1097(a).\nTo establish a criminal misapplication, the government must prove (1) a conversion of the property to the use of the defendant or a third party, and (2) fraudulent intent. United States v. Jakeway, 783 F.Supp. 590, 597 (M.D.Fla.1992) (extrapolating the elements of criminal misapplication from United States v. Acosta, 748 F.2d 577, 580 (11th Cir.1984), finding that misapplication under 18 U.S.C. § 656 is the “willful taking of an insured bank’s money by its employee with intent to defraud the bank” (emphasis omitted)).\nThe first element of misapplication is conversion of the property. Conversion is “an act of dominion or control over the property that seriously interferes with the owner’s rights.” Jakeway, 783 F.Supp. at 597. In this case, the government did not establish a conversion.\nThis conclusion dictates a discussion of how Pell Grand funds are disbursed. DOE would transfer Pell Grant funds to CTI’s Pell Grant Federal Funds Account to be held in trust pending disbursement to students for tuition. CTI then would transfer funds into CTI’s corporate operating account to pay students’ tuition debts to CTI. Similarly, CTI deposited students’ GSLs into its operating account. CTI paid its operating expenses, refunds for withdrawn students, and other debts to its creditors out of its corporate operating account. The government argues that according to 34 C.F.R. § 668.-22(e)(5) and § 682.607(c), CTI must refund the unearned federal financial aid funds within either thirty days for a Pell Grant or sixty days for a GSL. The government is correct in pointing out that Pell Grants are to be refunded within thirty days and GSL funds are to be refunded within sixty days. These regulations, however, do not prohibit CTI from commingling the federal financial aid funds with its other monies. In fact, 34 C.F.R. § 690.81(b) states that a “separate bank account for Pell Grant funds is not required.” Thus, when a student withdrew, CTI may not have had sufficient funds in its operating account to reimburse DOE because it had expended monies for other obligations. After all, CTI could not control the timing of a student’s withdrawal.\nThe government submitted legislative history on the Higher Education Act of 1965, indicating that “failure to pay refunds does constitute criminal misapplication under current law.” H.R.Conf.Rep. No. 630, 102d Cong., 2d Sess. 413, 513 (1992), reprinted in 1992 U.S.C.C.A.N. 334, 528, 628. Thus, Congress indicated that persons who failed to refund grant funds to the government could be charged with criminal misapplication. As indicated earlier, however, the regulations allow CTI to commingle its own monies with federal financial aid funds. The fact that CTI may have paid operating expenses before a student withdrew, and thus did not have money to refund DOE is not a conversion. What happened in this case is exactly what the program anticipated: a commingling of funds with grant funds being used for operating expenses. Any financially endangered institution would be in the same position as CTI, with no criminal intent to defraud. Under these circumstances, we cannot find that the government intended to maintain supervision and control over the funds after the point of the commingling of the funds.\nMoreover, the government has not demonstrated that Kammer had the requisite intent to defraud the government. Kammer claims that she put copies of non-negotiated refund checks in the withdrawn students’ files because she intended to refund the money as it became available. The government contends that Kammer put the non-negotiated copies of refund checks in withdrawn students’ files to “look like refunds had been made.” Even accepting the government’s version, we do not find fraudulent intent. It is undisputed that the DOE program reviewer appeared unannounced at CTI for a program review. Kammer was unaware that a DOE representative was coming for a program review. The non-negotiated check evidence is all the government offers to show criminal intent. Even in the light most favorable to the government, that evidence is insufficient. Thus, we hold that the evidence was insufficient to establish criminal misapplication. We emphasize that we do not hold that a failure to refund federal monies will never constitute a crime. We reverse in this case strictly on the facts of this case.\nC. Sentencing\nIn light of our reversal on Counts II through XII, we remand the case to the district court for resentencing.\nVII. CONCLUSION\nWe affirm Kammer’s conviction for conspiracy to defraud the government in violation of 18 U.S.C. § 371. We reverse Kam-mer’s convictions for criminal misapplication in violation of 20 U.S.C. § 1097(a), and remand the case to the district court for all matters regarding sentencing.\nAFFIRMED in part, REVERSED in part, and REMANDED.\n. Title 34 C.F.R. § 668.16 states:\nFunds received under the Pell Grant SEOG, CWS, ICL, and Perkins Loan programs, except those funds received for the administrative cost allowance, are held in trust for the intended student beneficiaries and the Secretary. The institution, as a trustee of Federal funds, may not use or hypothecate (i.e. use as collateral) Title IV, HEA program funds for any other purpose.\n. Title 34 C.F.R. § 668.22(e)(5) states:\nThe amount of the Title IV, HEA program portion of the refund allocated to the Title IV, HEA programs other than the CWS, GSL, PLUS and SLS programs must be returned to the appropriate program account(s) by the institution within 30 days of the date that the student officially withdraws or is expelled or the institution determines that a student has unofficially withdrawn.\n.Title 34 C.F.R. § 682.607(c) states:\nTimely payment. A school shall pay a refund that is due—\n(1) within sixty days after the earliest of the—\n(1) Student’s withdrawal as determined under § 682.605(b)(l)(i) or (b)(3);\n(ii) Expiration of the academic term (c.g. semester, quarter or trimester) in which the student withdrew as determined under § 682.-605(b)(l)(ii);\n(iii) Expiration of the period of enrollment for which the loan was made; or\n(iv) The date on which the school makes a determination that the student has withdrawn under § 682.605(b)(1)(h); or\n(2) In the case of a student who does not return to school at the expiration of an approved leave of absence under § 682.605(c), within 30 days after the last day of that leave of absence.\n. Pell Grants are federal funds. 34 C.F.R. § 668.16. GSLs are federally insured funds. 34 C.F.R. § 682.100.\n. Rammer’s “most necessary and immediate debts” included her salary, campus renovations, consulting fees, loan repayment to her husband, and her private housekeeper.\n. Title 18 U.S.C. § 371 states:\nIf two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined ... or imprisoned ... or both.\nIf, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.\n. According to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.\n. Title 20 U.S.C. § 1097(a) states:\nAny person who knowingly and wilfully embezzles, misapplies, steals, obtains by fraud, false statement or forgery, or fails to refund any funds, assets, or property provided or insured under this subchapter or part C of sub-chapter I of chapter 34 of Title 42 or attempts to so embezzle, misapply, steal, obtain by fraud, false statement or forgery, or fail to refund any funds, assets, or property, shall be fined no more than $20,000 or imprisoned for not more than 5 years, or both, except if the amount so embezzled, misapplied, stolen, obtained by fraud, false statement, or forgery, or failed to be refunded does not exceed $200, then the fine shall not be more than $5,000 and imprisonment shall not exceed one year, or both.\n. The government refers the court to Jakeway, which, in dicta, inferred that a conversion could be established under 34 C.F.R. § 682 (GSL program) and 34 C.F.R. § 690 (Pell Grant program) because those regulations require refunds to be paid within a specific time period. Jakeway, 783 F.Supp. at 597. Although we find the general principles set forth in Jakeway helpful to this case, we are not persuaded by Jakeway's unsupported inference regarding the GSL and Pell Grant programs.\n. Because we reverse Kammer’s criminal misapplication convictions, we find it unnecessary to address the issue of prosecutorial misconduct, which related to the criminal misapplication convictions.", "type": "majority", "author": "HATCHETT, Circuit Judge:"}], "attorneys": ["Rebekah J. Poston, Fine, Jacobson Schwartz, Nash, Block, & England, Komal J. Bhojwani, Miami, FL, William L. Webber, Howrey & Simon, Washington, DC, for defendant-appellant.", "J.B. Sessions, III, U.S. Atty., Richard W. Moore, Mobile, AL, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth KAMMER, Defendant-Appellant.\nNo. 92-6343.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 14, 1993.\nRebekah J. Poston, Fine, Jacobson Schwartz, Nash, Block, & England, Komal J. Bhojwani, Miami, FL, William L. Webber, Howrey & Simon, Washington, DC, for defendant-appellant.\nJ.B. Sessions, III, U.S. Atty., Richard W. Moore, Mobile, AL, for plaintiff-appellee.\nBefore FAY and HATCHETT, Circuit Judges, and ATKINS , Senior District Judge.\nHonorable Clyde C. Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation."} | FAY | HATCHETT | ATKINS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1161 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,909 | UNITED STATES of America, Plaintiff-Appellee, v. Tommy Hill JONES, Rickie Lockhart, Defendants-Appellants | United States v. Jones | 1993-09-15 | No. 91-8438 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Tommy Hill JONES, Rickie Lockhart, Defendants-Appellants."], "opinions": [{"text": "GODBOLD, Senior Circuit Judge:\nDefendants were convicted under all counts of a multi-count indictment charging narcotics offenses.\nI.\nBoth defendants seek reversal based on remarks made by government counsel in oral argument. One remark referred to defendants’ “sell[ing] cocaine and crack knowing what it does to people, knowing the misery it causes.” The second remark was: “If you sit on five, six, seven more juries during the course of your life, I doubt that you will find a case with evidence more overwhelming than this.” Neither defendant made an objection or motion for mistrial. Counsel’s remarks, if eiTor at all, do not even approach plain error.\nII.\nThe court found that Jones was not entitled to a two-level adjustment in the offense level for being a minor participant. He was not the supplier, but the court concluded that he set up transactions and had some decision-making authority. He was not a mere “mule” but acted as a sort of middleman through whom buys were made. The informant contacted Jones when he wanted to make a buy. Jones would tell him whether the drugs and quantity desired were available and would set the times and locations for the buy. Jones was present at some buys, and at times the money was handed to him. At some of the buys a person working for Jones would make the actual delivery of the drugs purchased. On this evidence, the court’s finding was not plainly erroneous.\nIII.\nThe court did not 'err in applying a two-point adjustment to Lockhart’s sentence for possession of a dangerous weapon during commission of the offense. According to the PSI the weapon, a handgun loaded with six rounds, was found in Lockhart’s apartment on the headboard of the master bed. There was evidence that Lockhart “cooked” cocaine at the apartment, made deliveries there to a juvenile courier, and when agents searched and found the pistol they also found drug-handling paraphernalia.\nIV.\nLockhart contends that in sentencing him the court improperly departed upward because he was not given notice before the hearing that it would consider upward departure and of any possible ground for upward departure. The PSI did not suggest that an upward departure would be considered, and before the hearing the government made no such suggestion. In Burns v. U.S., — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), the Court held that, before a sentencing court can depart upward on a ground not identified as a ground for an upward departure either in the PSI or in a pre-hearing submission by the government, F.R.Crim.P. 32 requires that the court give the parties reasonable notice that it is contemplating such action. Id. at -, 111 S.Ct. at 2187. If not clear from Bums itself the subsequent caselaw clearly requires that the defendant must be given notice before the hearing. U.S. v. Paslay, 971 F.2d 667, 673 (11th Cir.1992); U.S. v. Wright, 968 F.2d 1167, 1173-74 (11th Cir.1992), vacated on other grounds, — U.S. -, 113 S.Ct. 2325, 124 L.Ed.2d 238 (1993); U.S. v. Cornog, 945 F.2d 1504, 1513-14 (11th Cir.1991). It is not enough, as the government contends to us, that Lockhart had an opportunity to speak to the issue of upward departure and that he did not ask for additional time to address the issue or request a continuance.\nThe PSI categorized Lockhart as a career offender under U.S.S.G. § 4B1.1, based upon two predicate offenses of robbery in 1981, said to have been committed when Lockhart was age 17. As the sentencing hearing began Lockhart’s counsel stated objections to possible career offender characterization: the two predicate offenses were related because within the same scheme of activity and done within a short span, one was committed while Lockhart was only 17, and in one of the convictions the plea requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not met. The prosecution responded that the two offenses did not occur on a single occasion, both were armed robberies, they occurred in separate counties, and Lockhart was charged and sentenced in separate jurisdictions. The prosecution concluded with what it called “at least an appropriate argument” that even if the offenses were treated as related there was “probable” ground for upward departure because consolidating the two offenses would result in un-derreporting of criminal history.\nThe succeeding 15 to 20 pages of the transcript of the sentencing hearing were devoted to the issue of relatedness of the two priors. Counsel for Lockhart addressed the objections that he had stated. When presentation of these issues was concluded the court ruled that Lockhart did not meet the requirements for a career offender because the two priors were related and both could not be counted for the purpose of applying the career offender provisions. Rec. 6, p. 485. The judge explained that even if the two priors had not been related there was basis for a downward departure under § 5K2.0. He explained that Lockhart had no personal involvement in one of the offenses though he might have been an aider and abettor. He referred to Lockhart’s age and inexperience, and he noted that it was unsettled whether Lockhart had been properly advised of his rights in one of the priors. Id. at 485-86. He concluded:\nSo even if these were not related offenses, I do think that they would justify a downward departure for the reasons stated, because I think all of these factors are matters that the Guidelines had not anticipated in applying the career offender provisions in the manner in which they are applied. And, finally, from my review of the pre-sentence report, I think that the indicated punishment, based upon the amount of controlled substances involved under the guideline calculation without application of the career offender provisions, certainly satisfies the goals of punishment and deterrence in this particular case.\nId. at 486.\nThe court then turned to the issues of enhancement for possession of a dangerous weapon, enhancement based on Lockhart’s being a leader, organizer or supervisor, and the issue of acceptance of responsibility. When these inquiries had been completed the court inquired of counsel whether its ruling that the two priors were related would preclude their being used to determine Lock-hart’s criminal history category. Rec. 6, p. 489. The probation officer responded that the finding that the priors were related had “[brought] the criminal history category down to level three.” Id. The court then announced:\nI am going to exercise a discretion that I am given pursuant to the application notes which points out if the defendant commits a number of offenses on independent occasions, even though I don’t feel like this was a sufficient situation to trigger the independent offenses for the purpose of applying the career offender, I certainly think that there were — that there is enough evidence of separate offenses here that it would be under reflected in the guideline calculation.\nId. at 489-90. The court explained that the offenses that it was considering as “committed on independent occasions” were one of the two priors found to be related (the judge did not include the prior in which Lockhart was not personally involved) plus other offenses. This added three points to Lock-hart’s criminal history, producing a criminal history category of four. The judge’s calculation, he announced, produced a guideline range of 262 to 327 months.\nThe court then inquired whether there were objections to its calculations. Counsel for Lockhart announced that he would preserve his objections based on possession of a dangerous weapon and role in the offense and added: “We also would enter an objection to the upward departure.” Rec. 6, p. 491. The court did not pursue the matter further nor did counsel. The dialogue shifted to possible downward departure on grounds not relevant to our decision. Following argument by counsel the court announced that it would sentence at the upper mid-level of the 262-327 guideline range, and it chose 310 months. Rec. 6, p. 496. Prior to the court’s upward departure the range would have been 235-293 months imprisonment.\nIn Paslay this court announced that in cases in which the defendant was sentenced after June 13,1991, the date on which Bums was decided, if the defendant did not receive notice, he must make an objection, to the sentencing court, based on Bums, and if no objection was made the case would be reviewed only for plain error. 971 F.2d at 674 n. 13. We hold there was plain error. Before the hearing it was not self evident or readily foreseeable that an issue of underrep-resentation would be addressed at the sentencing hearing. The issue surfaced initially by the prosecution’s brief reference to it “as at least an appropriate argument” and a “probable ground.” The hearing proceeded on relatedness, and on other issues described above. Only after the judge ruled that the two priors were related and ruled on other grounds for enhancement and possible downward departure, did he ask for comment on a possible upward departure. Also, the judge’s consideration, and his announcement, had been preceded by his statement that a sentence based upon amount of controlled substances “satisfies the goals of deterrence in this particular case.” Rec. 6, p. 486. Additionally, Lockhart was sentenced only 15 days after Bums issued. Neither counsel nor court referred to it, and we can fairly assume that both were unaware of it.\nIn the circumstances of this case, the failure to give pre-hearing notice to Lockhart was a failure so obvious and substantial that it seriously affected the fairness and integrity of his sentencing hearing. It does not suffice to suggest that had notice been given the judge might well have reached the same decision about an upward departure. Bums’ purpose was to insure that a decision as critical as an upward departure will be tested by the adversarial process. See - U.S. at -, 111 S.Ct. at 2187. By not providing Lockhart with notice that it might depart upward if his prior sentences were found to be related, the court diluted Lockhart’s right to comment on the appropriate sentence and prevented the decision to depart upward from being fully tested by the adversarial process. The Sentencing Guidelines are a complex and rapidly evolving area. Lock-hart’s counsel could not be expected to create effective arguments without advance notice. See Paslay, 971 F.2d at 673.\nIn U.S. v. Wright, decided 18 days before Paslay but not referred to in Paslay, this court had strongly reiterated the Bums principle. It quoted with approval that part of Justice Souter’s dissent in Bums that described the purpose of notice and the inadequacy of contemporary notice given to a defendant at the hearing:\nsuch a practice would be of little use in reducing the risk of error in sentencing determinations. A contemporaneous warning of upward departure might sharpen defense counsel’s rhetoric, but it would not be of much help in enabling him to present evidence on disputed facts he had not previously meant to contest, or in preparing him to address the legal issue of the adequacy of the Guidelines in reflecting a particular aggravating circumstance. Contemporaneous notice, would, then, probably him out to be more a formality than a substantive benefit.\n968 F.2d at 1173 (quoting Burns, — U.S. at - n. 4, 111 S.Ct. at 2193 n. 4 (Souter, J., dissenting)). Thus, in Wright this court recognized that contemporaneous events at the sentencing hearing may not be useful in “reducing the risk of error in sentencing determinations” and noted the possibility that contemporaneous notice would turn out to be merely a formality rather than a substantive benefit. Failure to give effect to the plain error rule in the circumstances before us would enshrine untouched a flawed sentencing determination. It would be antithetical to the Bums aim of a clean, risk-free sentencing procedure.\nPaslay also indicated that, because failure to give notice implicates due process rights, review of a Bums violation would be subject to a test of harmless error beyond reasonable doubt. 971 F.2d at 674. We cannot say that the failure in this case was error harmless beyond reasonable doubt. A sentencing error is harmless if the record as a whole shows that the error did not affect the district court’s selection of the sentence imposed. Williams v. U.S., — U.S. —, —, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992). Lockhart’s counsel was prepared to, and did, subject to the adversarial process the issue of whether the two priors were related, not that — if they were found to be related — Lockhart’s criminal history would be underrepresented. On appeal Lockhart has presented arguments directed to under-representation that were not made at the sentencing hearing. We cannot conclude beyond reasonable doubt that if the district court had heard these arguments it still would have departed upward. The prejudice to Lockhart is evident. The upward departure to criminal history four had a direct impact on the length of the sentence, indeed it was expressly intended to lengthen the sentence.\nThe convictions of Jones and of Lockhart are AFFIRMED. The sentence of Jones is AFFIRMED. The sentence of Lockhart is VACATED and the case against him is REMANDED for resentencing.\n. With respect to the Boykin objection, the government contended, by analogy to habeas corpus, that Lockhart must show cause and prejudice to question the voluntariness of his plea to one of the priors. The transcript of the sentencing in that prior was missing and no longer available, and the government attempted to remedy this deficiency by showing the trial judge's allegedly uniform sentencing practices.\n. See U.S. v. Jones, 899 F.2d 1097 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), in which wc instructed the district court to “elicit from counsel an articulation of the grounds on which the objection is based.\"", "type": "majority", "author": "GODBOLD, Senior Circuit Judge:"}, {"text": "COX, Circuit Judge,\nspecially concurring:\nI join the court’s opinion except for that part addressing the sentencing issue raised by Lockhart; as to that part, I concur in the result.", "type": "concurrence", "author": "COX, Circuit Judge,"}], "attorneys": ["Gregory Stuart Smith, Federal Defender Program, Inc., Atlanta, GA, for Lockhart.", "Donald Samuel, Garland & Samuel, P.C., Atlanta, GA, for Jones.", "William R. Toliver, Asst. U.S. Atty., Atlanta, GA, for U.S."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Tommy Hill JONES, Rickie Lockhart, Defendants-Appellants.\nNo. 91-8438.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 15, 1993.\nGregory Stuart Smith, Federal Defender Program, Inc., Atlanta, GA, for Lockhart.\nDonald Samuel, Garland & Samuel, P.C., Atlanta, GA, for Jones.\nWilliam R. Toliver, Asst. U.S. Atty., Atlanta, GA, for U.S.\nBefore COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge."} | COX | DUBINA | GODBOLD | 1 | 2 | 1 | 0 | 1 | 0 | 1 F.3d 1167 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,954 | Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams; Selendra Williams; Katrina Miles; Desi Wayne Dunlap; Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, v. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees | Nipper v. Smith | 1993-09-15 | No. 92-2588 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before KRAVITCH and HATCHETT, Circuit Judges, and ATKINS, Senior District Judge."], "parties": ["Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams; Selendra Williams; Katrina Miles; Desi Wayne Dunlap; Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, v. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees."], "opinions": [{"text": "ATKINS, Senior District Judge:\nThe plaintiffs/appellants are (1) Jesse L. Nipper, Donald A. Carter, Annie Ruth Williams, Selendra Williams, Katrina Miles, Desi Wayne Dunlap, Carol D. Days, and Anthony Days, black adult citizens of the United States and residents and registered voters of Duval County, Florida, and the Fourth Judicial Circuit, and (2) D.W. Perkins Bar Association, an unincorporated association of black attorneys in Duval County, Florida. They appeal from the judgment entered against them by the district court, following entry of an order finding that appellants failed to establish a violation of their rights under the Fourteenth and Fifteenth Amendments of the United States Constitution and section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 795 F.Supp. 1525.\nAppellants challenge the method of at-large circuitwide and countywide election of judges to the Fourth Judicial Circuit Court of Florida and the Duval County Court. While appellants disagree with the district court’s ruling on the constitutional issue, they seek only a review of the ruling on the section 2 claim. Appellants’ Brief at 2.\nFor the reasons discussed below, we find that the district court erred in holding (a) that appellants failed to establish the existence of polarized voting and (b) given the presence of the Gingles threshold factors, that the appellees discharged their burden of defeating a section 2 claim, in terms of the totality of circumstances. Accordingly, we REVERSE AND REMAND.\nI. BACKGROUND\nDuval County’s population is 24.4% black and the population of the Fourth Judicial Circuit is 21% black. The twenty-eight judges on the Fourth Judicial Circuit Court are elected cireuitwide and the twelve judges on the Duval County Court are elected countywide in these majority white election districts. R6-125-6. The at-large judicial elections for the Fourth Circuit and the Duval County Court are characterized by a majority vote requirement, a numbered-place system, and the use of staggered terms. R6-125-11. The election districts are very large: the Fourth Circuit covers approximately 2,017 square miles and contains a 1990 census population of 822,898; Duval County covers approximately 776 square miles and contains a 1990 census population of 672,971. Id. at 6. In order to qualify to run for a judgeship, a candidate must pay a filing fee of approximately $4,400 for county court and $5,000 for circuit court, although a candidate can avoid the fee by a petition process with a number of signatures from registered voters. Id. at 6-7. .\nAlthough the voting age populations of the Fourth Judicial Circuit and Duval County are 19% and 22% black, respectively, no black candidate has ever won a contested election. Between 1972 and 1990, five black candidates ran for seats on the two courts in six contested elections. As the district court found, each of those election contests was characterized by severe polarized voting, with the majority of black voters choosing the black candidate and the vast majority of white voters supporting the white candidate, resulting in the consistent defeat of the black candidates. R6-125-9-10, 21. For example, Leander Shaw, former Chief Justice of the Florida Supreme Court, advanced to a runoff in the 1972 primary after gaining less than 25% of the white vote but 93% of the black vote in Duval County. However, he lost in the runoff against the white candidate even though Shaw had 98% of the black vote. Summarizing the analyses of the six elections, the district court stated as follows:\nOn their face, the voting estimates for the Shaw, Buggs, Washington, Prescod, and Micks elections indicate that voting was racially polarized in those elections. Stated differently, the estimates show that blacks were politically cohesive in those judicial elections, and that the white majority voted sufficiently as a bloc to enable the majority to usually defeat the black minority’s preferred candidate. The regression estimates and extreme case analyses show that in these elections, black support for the black candidates ranged from 73% to 98%, white support for the black candidate ranged from 3% to 33%, black support for the white candidate ranged from 2 to 27%, and white support for the white candidate ranged from 67% to 97%.\nId. at 21.\nTestimony indicated there would have been additional black candidates but for the apparent futility of running in the existing majority white election districts in the face of such severe white bloc voting. R11-8-14 (testimony of Brian Davis); R10-118-120 (testimony of Judge Henry Adams).\nAt the time appellants filed this action, only one black judge had ever served on the circuit court and only one on the county court. Both reached office by way of midterm appointments to vacancies. Id. at 14-15, 32-33; R4-64-11. At the time of trial, only one of the twenty-eight circuit judges and two of the twelve county judges were black. Id\nAppellants established at trial that an election subdistrict easily could be drawn in the northwest quadrant of Duval County with a 60 percent black voting age majority and with sufficient population to elect six of the twenty-eight circuit court judges and three of the twelve county court judges. R6-125-7, 20; Plaintiffs’ Exhibits 4A and 5. Appellants have not contended this would be the only remedy available; rather, they submitted evidence of the subdistrict to demonstrate that a new electoral configuration could increase the ability of black voters to elect candidates of choice. R10-160, 164 (testimony of plaintiffs’ expert demographer Jerry Wilson).\nAs the district court found, Florida has a long history of racial discrimination in elections and in other aspects of life. R6-125-11-12. For example, until 1958, the State of Florida prohibited black citizens from attending the University of Florida College of Law. Florida A & M Law School was created in 1951 for black students, but was not accredited until several years later. When the state opened another law school in Tallahassee in 1967 at Florida State University, it closed Florida A & M Law School. R6-125-12. The district court also found that “black citizens in Florida still suffer in some ways from the effects of Florida’s history of purposeful discrimination,” particularly in terms of pronounced socio-economic disparities. R6-125-13.\nAlthough the district court noted that certain discriminatory devices, such as poll taxes, are no longer in effect, the court also considered recent evidence of discrimination. Referring to the 1990 report of the Florida Supreme Court Racial and Ethnic Bias Commission, the district court observed: “This Report documented numerous features of Florida’s justice system that allegedly have an adverse effect on the dispensation of justice to minority citizens, including the under-representation of minorities in the judiciary in comparison to the percentage of minorities in the total population.” R6-125-12-13. The Commission reported as follows:\nClearly, the current election process, which provides for circuit-wide, at-large elections, is not yielding sufficient representation of minorities on Florida’s bench. At the same time, the dramatic underrepresentation of minority judges reflected in the above statistics compels the conclusion that the appointive system, as currently structured and implemented, has itself failed to achieve racial and ethnic diversity. The Commission strongly believes that serious measures need to be considered for implementation — in both systems — which are aimed at producing a more racially and ethnically sensitive judiciary.\nPlaintiffs’ Exhibit 7 at 16-17. The Commission further recommended that the Florida Legislature study the feasibility of utilizing judicial election subdistricts as a means of redressing prior discrimination and increasing minority representation on the bench. Plaintiffs’ Exhibit 7 at xii. In addition, the Commission issued a subsequent report on December 11, 1991, which stated the following:\n[T]he underrepresentation of minorities as attorneys and judges serves to perpetuate a system which is, through institutional policies or individual practices, unfair and insensitive to individuals of color in the ways described in the Commission’s first report_ [B]y threatening the withdrawal of the tacit “consent of the governed,” the underrepresentation of minorities in positions of responsibility in the judicial system weakens the very system of ordered liberty upon which our democracy is based.\nPlaintiffs’ Exhibit 15 at vii-viii; RIO-114-115.\nThe district court also weighed evidence of black and white political participation, finding little disparity between black and white voter registration in the Fourth Judicial Circuit and Duval County. However, the evidence also showed that black voter turnout in judicial elections was lower than that of whites.\nThe district court also relied on elections involving only white candidates, finding that black voters’ candidate of choice won 68% of the thirteen contested circuit court elections and 58% of the fourteen contested county court elections held during the 1972-90 period.\nIn addition to evidence of voting statistics, the parties presented evidence on the issue of the “state interests” that the defendants suggested would be compromised if a subdis-tricting remedy were imposed. The defendants’ primary witness on this point was then-chief judge of the Fourth Judicial Circuit, John Santora. Judge Santora testified that subdistrieting would cause, elected judges to hear cases involving one litigant from inside their district and one from outside. However, he acknowledged that the present system frequently involves litigants from outside the election district facing those from inside the district. Moreover, Judge Santora testified that judges in the Fourth Circuit and elsewhere are fair and impartial even when such situations arise. R13-198-199. Judge Henry Adams of the Fourth Circuit also testified that litigants from outside the election district frequently oppose litigants from inside the district under the current system, and that judges nevertheless are able to exercise their duties fairly and impartially. R15-5-7.\nThe appellants presented the testimony of Judge Robert Gibbs, a black judge elected from a Mississippi subdistrict of approximately 75,000 people, and Spencer Gilbert, a white Mississippi lawyer practicing in a jurisdiction that uses subdistricts. Both testified that subdistrieting has not harmed the administration or perception of justice in that state and, if anything, has actually improved the administration and perception of justice. R15-16-33 and R15-45-51.\nThe reports of the Florida Supreme Court Racial and Ethnic Bias Commission stated that elimination of discrimination in judicial elections would actually enhance the state’s interests, as would increasing the number of black judges. Plaintiffs’ Exhibit 7 at xii, 16-17; Plaintiffs’ Exhibit 15 at vii and xxiv.\nAs noted, based on the evidence presented at trial, the district judge found “that blacks are a sufficiently large and geographically compact group to constitute a majority in a subdistrict.” R6-125-20. Additionally, he conceded that the statistics before him “ordinarily make out a sufficient showing of racial polarization in these six judicial elections.” R6-125-21. Despite these findings, the district judge ruled against the appellants on the critical issue of polarized voting. Alternatively, the district court held that even if appellants had established racially polarized voting, no section 2 violation existed because the “voting community is not driven by racial bias.” R6-125-28.\nII. STANDARD OF REVIEW\nWe review the district court’s findings of fact for clear error, Thornburg v. Gingles, 478 U.S. 30, 78-79, 106 S.Ct. 2752, 2780-81, 92 L.Ed.2d 25 (1986), affording special deference to the district court due to its “special vantage point” and ability to conduct an “intensely local appraisal of the design and impact of’ a voting system. White v. Regester, 412 U.S. 755, 769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973). However, this standard does not affect this court’s power to correct errors of law or findings of fact predicated on a misunderstanding of the law. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2781 (citations omitted); Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1554 (11th Cir.1987), cert. denied, Duncan v. Carrollton, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Edüd 272 (1988).\nIII. OVERVIEW OF SECTION 2 OF THE VOTING RIGHTS ACT\nTo prevail on a claim of vote dilution under section 2 of the Voting Rights Act, appellants must meet certain threshold requirements which the United States Supreme Court first identified in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Under Gingles, appellants must establish (1) that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district, (2) that the minority group is politically cohesive, and (3) that the white majority votes sufficiently as a bloc to cause it usually to defeat the minority’s preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766-67.\nIn addition to the three core requirements, the Gingles Court identified other factors which might be considered as part of the “totality of the circumstances” that would support a section 2 claim:\n(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;\n(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;\n(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;\n(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;\n(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health, which hinder their ability to participate effectively in the political process;\n(6) whether political campaigns have been characterized by overt or subtle racial appeals;\n(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.\nId at 36-37, 106 S.Ct. at 2759 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 177, 206-07). Additional factors which may be probative in some cases are:\n(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group, and\n(9) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.\nId at 37, 106 S.Ct. at 2759.\nThe Gingles Court noted that “this list of factors is neither comprehensive nor exclusive.” Id at 45, 106 S.Ct. at 2763. However, evidence of racially polarized voting has been recognized as “the linchpin of a section 2 vote dilution claim,” and is relevant to establishing two of the three threshold Gingles requirements: the political cohesiveness of the minority group and the ability of the white majority usually to defeat the minority’s preferred candidate. Citizens For a Better Gretna v. Gretna, 834 F.2d 496, 499 (5th Cir.1987), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989). Thus, although certain Senate Report factors, such as racially polarized voting, are more significant because of their direct bearing on the section 2 threshold inquiry, other factors are “supportive of, but not essential to, a minority voter’s claim.” Hall v. Holder, 955 F.2d 1563, 1568 (11th Cir.1992) (quoting Gingles, 478 U.S. at 48-49 & n. 15, 106 S.Ct. at 2765-66 & n. 15). These factors are relevant to the extent that they are supportive of the three core Gingles factors, however, they need not be present to satisfy the Gingles test. Hall, 955 F.2d at 1568.\nIV. DISCUSSION\nThis appeal centers on two issues. First, appellants challenge the district court’s conclusion that they failed to prove the existence of racially polarized voting patterns in the Fourth Circuit and Duval County. Second, appellants challenge the district court’s holding that, even if appellants did show racially polarized voting, the “totality of the circumstances” did not support a section 2 claim. We address each of these contentions below.\nA. Racially Polarized Voting\nAs discussed above, both parties presented substantial evidence related to the degree of racial polarization in judicial elections in the Fourth Judicial Circuit and Du-val County. Based on this evidence, the district judge acknowledged that the statistics before him ordinarily would establish racial polarization but nevertheless ruled that appellants failed to prove this critical factor. In so ruling, the district court gave the following reasons: (1) the judicial elections involving black candidates were stale; (2) black voters occasionally elected candidates of choice in elections involving only white candidates; and (3) two of the black-white elections involved incumbents. We now consider each of the district court’s grounds for ruling against appellants on the issue of racial polarization.\n1. Staleness of Elections\nThe district court’s decision to discount the probative value of the six elections, which took place between 1972 and 1984, because four of those elections were “stale” was incorrect for two reasons. First, this ruling is contrary to precedent in this circuit as well as other circuits. See, e.g., Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en banc), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991); Gretna, 834 F.2d at 500-03. In Solomon, six elections for county offices in the time period 1968-1984 were held sufficient to establish polarized voting as a matter of law. Solomon, 899 F.2d at 1013 and 1019-21 and n. 8 (Kravitch, J., specially concurring); Solomon, 899 F.2d at 1021 (Tjoflat, C.J., specially concurring). Likewise, the Fifth Circuit in Gretna, a 1987 decision, held that plaintiffs had shown polarization in a citywide at-large challenge based on two aldermanic elections occurring in 1977 and 1979 and two exogenous elections occurring in 1979 and 1984. Gretna, 834 F.2d at 501-02; see also Gingles, 478 U.S. at 82, 106 S.Ct. at 2782-83 (Court relied upon elections occurring in ten year period before the suit was filed). Moreover, appellees’ own expert, Dr. Ronald Weber, conceded that black-white elections from 1972 are “recent enough to be probative of current voting patterns.” R13-61-62.\nSecond, the district court, in effect, penalized appellants because black candidates have not run in judicial elections in the recent past. At least two witnesses, Brian Davis and Judge Henry Adams, offered credible reasons for this reluctance—the futility of running in the face of pervasive bloc-voting and the resulting pattern of black defeat in prior years. R11-12-16 and R10-117-118.\nCourts have refused to deny section 2 relief simply because there are few or no elections in which minority candidates have run. See McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir.1984). The McMillan court explained that “the fact that no black ran [for office] between 1970 and the time this litigation commenced [is of no help] to defendants.” Rather, “the lack of black candidates is a likely result of the discriminatory system.” Id. Also instructive on this issue is the recital in Gingles where the Supreme Court said: “Where a minority group has begun to sponsor candidates just recently, the fact that statistics from only one or a few elections are available for examination does not foreclose a vote dilution claim.” Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25; see also, Westwego Citizens for Better Government v. Westwego (Westwego I), 872 F.2d 1201, 1208-09 and n. 9 (5th Cir.1989) (holding that plaintiffs could establish a section 2 violation even though there were no statistics available related to Westwego aldermanic elections involving black candidates because no black had ever run).\nAs the Fifth Circuit warned in Westwego I, the failure to consider the possibility that “black candidates ‘don’t run because they can’t win’ ” in weighing such evidence “would allow voting rights cases to be defeated at the outset by the very barriers to political participation that Congress has sought to remove.” Westwego I, 872 F.2d at 1209 n. 9. Thus, in keeping with the teachings of Gin-gles, McMillan, and Westwego I, we hold that the district court erred in discounting the probative value of the six judicial elections on the basis of “staleness.”\n2. Elections Involving Only White Candidates\nBased upon its erroneous conclusion that the judicial elections involving black candidates were stale, the district court decided to “give some weight to all elections for circuit and county judge from 1972 to 1990 ... in determining racial polarization, regardless of the race of the candidates.” R6-125-23. Thus, in holding against appellants on the issue of racial polarization, the district court relied primarily on elections involving only white candidates, concluding that “[w]hen judicial elections not involving black candidates are included in the analysis, the black candidate of choice for circuit or county judge wins the majority of the time.” Id. at 25.\nThe genesis of the district court’s approach was the plurality comment by the Supreme Court in Gingles that “the race of the candidate -per se is irrelevant to racial bloc voting analysis.” Gingles, 478 U.S. at 67, 106 S.Ct. at 2775. However, when viewed in the context of facts before the Gingles Court and the subsequent holdings of other courts called upon to interpret the practical meaning of Gingles, it is clear that a consistent showing of polarization involving black and white candidates cannot be rebutted by evidence that black voters’ candidates of choice sometimes win when only white candidates are running. As the court noted in Westwe-go I, “the evidence most probative of racially polarized voting must be drawn from elections including both black and white candidates.” 872 F.2d at 1208 n. 7. See also, id. (“Gingles is properly interpreted to hold that the race of the candidate is in general of less significance than the race of the voter—but only within the context of an election that offers the choice of supporting a viable minority candidate.”) (quoting Gretna, 834 F.2d at 503); Campos v. Baytown, 840 F.2d 1240, 1245 (5th Cir.1988) (rejecting argument that any time candidate gets majority of minority votes he is the minority group’s “chosen representative,” especially where there was no evidence that any Anglo-Anglo race offered voters choice of “viable minority candidate”); Davis v. Chiles, No. TCA 90-40098 MMP (N.D.Fla., Sept. 3, 1991 (slip op. at 19-20) (holding that evidence from white-white elections could not rebut showing of polarization in black-white elections). Indeed, appellees’ own expert admitted on cross-examination that black-white elections are more probative than elections involving only white candidates if they provide contrary evidence. R13-48 (cross-examination of Dr. Ronald Weber). Here, unlike the white-white judicial elections relied upon by the district court, the black-white elections show that black voters have less opportunity to elect candidates of choice than white voters.\nFurthermore, the district court’s focus on elections involving only white candidates runs counter to this court’s holding in Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (11th Cir.1987). There, the district court criticized plaintiffs’ expert for not analyzing two white versus white sheriffs races in which one of the candidates had a black deputy sheriff who assisted the white candidate in getting elected. In rejecting the district court’s holding, this court wrote: “It is the access of minority voters to the political process, not the majority’s access to the black vote, which is the chief concern of Section 2 of the Voting Rights Act.” Carrollton, 829 F.2d at 1559.\nIn sum, given the pervasive polarization in the elections involving black and white candidates, we hold that the district court erred in relying on elections involving only white candidates. Under these circumstances, evidence that black voters are sometimes able to elect candidates of choice in white only elections was an insufficient basis to find against appellants on the issue of racial polarization.\n3. Incumbency\nThe district court also rejected two of the judicial elections in which black candidates lost as evidence of racial polarization because the black candidates, Buggs and Prescod, ran against incumbents. The court explained its ruling as follows:\nMost importantly, special circumstances in several of the judicial elections involving black candidates are damaging to Plaintiffs’ attempt to prove racial polarization. In Gingles, the Supreme Court stated that minority electoral success does not foreclose a vote dilution claim if that success can be explained by special circumstances, such as the minority candidate running unopposed, or the fact that the minority ran as an incumbent. See Gingles, 478 U.S. at 57, 106 S.Ct. at 2770. The converse of this proposition must also be true. That is, any balanced consideration of a vote dilution claim should also take into account any special circumstances that may explain minority electoral failure in a polarized contest. In particular, the same special circumstances identified by the Gingles Court to explain minority success — incumbency and the absence of an opponent — should be considered in analyzing elections in which minority candidates have been defeated.\nR6-125-25. Thus, the district court concluded that the Buggs and Prescod elections “[were] better viewed as evidence of the power of incumbency rather than as strong evidence of racial polarization.” Id. at 26. For the reasons that follow, we conclude that the district court erred in discrediting the value of these elections as evidence of racial polarization.\nFirst, the district judge erred in giving substantial weight to the white incumbencies as an explanation for the outcomes of the Buggs and Prescod elections given the relative weakness of the incumbents in those elections. For example, the white incumbent against whom Prescod ran in 1984 was not an attorney, a prerequisite for running for county judge in that election; rather, he was “grandfathered” in from an earlier time when non-attorneys were permitted to run for county judgeships. ' More significantly, the incumbent in the Prescod race received the worst ratings in the bar polls of any judge in the circuit, including an “unqualified” rating from 82% of the lawyers polled, in the year he defeated Prescod. Furthermore, Jacksonville’s only daily newspaper and a racially integrated public teacher’s organization both endorsed Prescod. In the 1978 Buggs election, the white incumbent, who had been appointed to a vacancy, had been an incumbent judge for a mere 100 days before running against Buggs. In short, contrary to the district court’s conclusion, these elections are hardly “evidence of the power of incumbency.”\nSecond, even aside from the relative weakness of the white incumbents, the single factor of incumbency is insufficient to explain the defeat of black candidates where the evidence shows that black candidates consistently lost because of white bloc voting. In Gingles, the Court explained that\nin a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as ... incumbency, ... may explain minority electoral success in a polarized contest.\nGingles, 478 U.S. at 57, 106 S.Ct. at 2770 (emphasis added, footnote omitted). We interpret Gingles to permit consideration of special circumstances only to explain variations from a usual pattern of racially polarized voting. In other words, special circumstances may explain minority electoral success in a polarized election; however, contrary to the district court’s interpretation, the converse is not also true. As one court has explained, “the ‘special circumstances’ the [Gingles] Court had in mind were circumstances that would explain the minority candidates winning the election in spite of white bloc voting. Plaintiffs’ argument turns the Court’s language on its head and would have it refer to circumstances explaining the defeat of the minority’s candidate.... ” Williams v. State Bd. of Elections, 718 F.Supp. 1324, 1329 (N.D.Ill.1989). As in Williams, we conclude that the district court erred in construing Gingles to permit consideration of special circumstances to explain minority electoral failure.\nIn sum, we respectfully reject as clear error each of the district court’s reasons for concluding that appellants failed to show racial polarization. Accordingly, we hold that the evidence in the entire record demonstrates racially polarized voting in the Fourth Judicial Circuit and Duval County.\nB. Violation of Section 2 under “Totality of the Circumstances”\nHaving concluded that the district court erred in finding against appellants on the issue of racial polarization, we next consider appellants’ contention that the district court erred in holding that, assuming racial polarization exists, appellants failed to establish a section 2 violation. Following Judge Tjoflat’s concurrence in Solomon, 899 F.2d at 1035, the district court stated that it still would have ruled for appellees because, under the totality of the circumstances, “the voting community is not driven by racial bias.” R6-125-28. The court explained its ruling as follows:\nSpecifically, Defendants have proved that there are legitimate state interests in maintaining the current system, that eligible blacks have achieved more than proportional representation on the circuit and county courts, that no racial appeals or candidate slating processes have been used to exclude black voters or candidates from the electoral process, that the current circuit or county judges are responsive to the needs of all citizens, and that Florida’s history of discrimination and the lingering effects thereof do not have a material current impact on black voters’ ability to participate in the political process.\nId. at 38.\nIn challenging this ruling, appellants maintain that, assuming the district court is reversed on the issue of polarization, the view articulated in Solomon by Judge Kravitch dictates judgment in their favor. Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring). However, as stated, this circuit remains divided on the issue raised in Solomon, that is, whether plaintiffs can establish a section 2 violation simply by satisfying the three core Gingles factors or whether defendants can raise a lack of racial bias defense under the totality of circumstances after plaintiffs have satisfied the threshold Gingles factors. We do not resolve that question today because we find that appellants have established a section 2 violation under either approach. Based on the district court’s findings and our determination that appellants established racially polarized voting, we agree that appellants have met the three threshold Gingles requirements. In addition, for the reasons discussed below, we reject the district court’s determination that the appellees showed an absence of racial bias.\nAccording to Judge Tjoflat’s concurrence, a plaintiffs satisfaction of the Gingles factors shifts the burden to the defendant to show that “in light of the totality of the circumstances, ... the voting communities were not driven by racial bias.” Solomon, 899 F.2d at 1037. In finding that defendants had shown an absence of racial bias, the district court relied upon factors indicating that the legislature had no discriminatory purpose in adopting and maintaining the existing election districts. R6-125-28-37. For example, the court noted that the state has an interest in fostering an independent and stable judiciary. In addition, the district court relied on the fact that three black judges had been appointed over the years as evidence of minority electoral success. While these factors may support a finding that the state had “legitimate interests” in maintaining the existing election districts and that the appointing authorities were not driven by racial bias, they show nothing about the motivation of the voting communities.\nThe critical inquiry under the racial bias approach is whether racial bias motivates the voting community, not whether it influences the legislature in appointing judges. See Solomon, 899 F.2d at 1037; see also Meek v. Metropolitan Dade County, 985 F.2d 1471, 1487 (11th Cir.1993) (per curiam) (discussing racial bias in voting communities). Section 2 refers to the ability of black voters to elect their candidates of choice, not to the ability of black candidates to be appointed to office. Carrollton Branch of NAACP, 829 F.2d at 1560 (“While appointments ... may be evidence of the willingness of some whites to allow some black participation in the political process, it does not demonstrate the ability of blacks to get elected to political office-”). We therefore hold that the district erred in relying upon evidence indicating that the legislature, as opposed to the voting community, was not driven by racial bias.\nFurthermore, as discussed above, we also reject the district court’s appraisal of minority electoral “success” in obtaining representation on the judiciary based on a comparison of the number of black judges to the low number of black attorneys eligible for judge-ships. As the Florida Supreme Court Racial and Ethnic Bias Commission’s commented: “A comparison of minority judges to the estimated eligible minority population alone is not responsive to the question of whether the Florida judiciary adequately reflects the racial and ethnic diversity of the citizens of Florida.” Defendants’ Exhibit 23 at 15. In finding minority electoral success based on a percentage of black lawyers, the district court improperly discounted the evidence of Florida’s history of racial discrimination and the exclusion of black citizens from access to legal education in the state. Thus, the appropriate comparison is the percentage of black citizens or black voters, not the percentage of black lawyers.\nAdditionally, based on our review of the record, we conclude that the district court erred in ruling that Florida’s history of official discrimination, along with the other Senate Report factors—the socio-economic effects of discrimination, the responsiveness of judges to the needs of the local black community, and the absence of candidate slating processes and the use of racial appeals—did not support a finding of racial bias motivating voting in the relevant communities. After recounting the long history of discrimination and the exceedingly difficult economic conditions under which black citizens live as compared to most white citizens in the Fourth Judicial Circuit, the district court discredited these factors largely because black voter registration is equal to that of white voter registration. However, as this court has observed, the fact that blacks register in approximately the same numbers as whites does not defeat or detract from a section 2 claim, especially where the evidence shows that black voter turnout is lower than that of whites. See United States v. Dallas County Commission, 739 F.2d 1529, 1538 (11th Cir.1984). In addition, this court previously has held that the absence of candidate slating processes and racial appeals is insufficient to defeat a section 2 case. See United States v. Marengo County Commission, 731 F.2d 1546, 1571 (11th Cir.), cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984); see also McMillan v. Escambia County, 748 F.2d 1037, 1045-47 (5th Cir.1984). Similarly, evidence of elected officials’ responsiveness to minority needs “does not overcome evidence that minorities are excluded from political participation.” Marengo, 731 F.2d at 1572.\nIn short, the district court erred in concluding that these additional factors supported a defense based on the absence of racial bias, especially where the evidence showed the existence of racially polarized voting. This court has recognized that “the surest indication of race-conscious politics is a pattern of racially polarized voting.” Marengo, 731 F.2d at 1567; United States v. Dallas County Commission, 850 F.2d 1430, 1439 (11th Cir.1988), cert. denied, 490 U.S. 1030, 109 S.Ct. 1768, 104 L.Ed.2d 203 (1989) (same); see also Meek, 985 F.2d at 1488 (relying heavily upon evidence of racially and ethnically polarized voting in upholding district court’s finding that racial bias substantially motivates voting behavior). As stated, no black candidate has ever won a contested judicial election in the Fourth Circuit or Du-val County. This has been so even when the black candidates were clearly more qualified and more experienced than the white candidates. We find these circumstances to be compelling proof of racially biased voting. Accordingly, we conclude that the district court erred in ruling that defendants satisfied their burden of showing an absence of racially biased voting in the Fourth Judicial Circuit and Duval County.\nV. CONCLUSION\nIn summary, we hold that the district court erred in finding that appellants did not satisfy the three core Gingles factors and in ruling that appellees discharged their burden of proving that the voting communities were not driven by racial bias. Therefore, we REVERSE the district court’s judgment and REMAND for the district court to provide forthwith an appropriate remedy to the appellants.\n. In their reply brief, appellants make clear that they do not challenge the district court’s factual findings. Rather, they base their appeal \"upon the misconceptions of the law that hampered the District Court in addressing the issues of polarized voting and the totality of circumstances.” Appellants’ Reply Brief at 2.\n. The Fourth Judicial Circuit, located in the northern part of Florida, consists of Duval, Clay and Nassau Counties.\n. The elections and black candidates were: (1) 1972 Primary, Circuit Court, Leander Shaw; (2) 1972 Runoff, Circuit Court, Leander Shaw; (3) 1978 Primary, Circuit Court, Harrell Buggs; (4) 1978 Primary, Duval County Court, Alfred Washington; (5) 1984 Primary, Duval County Court, Denise Prescod; and (6) 1984 Primary, Duval County Court, Dietra Micks.\n.Plaintiffs’ expert, Dr. Allan Lichtman, performed ecological regression and extreme case analyses of the six elections. The ecological regression analysis revealed the following degrees of polarization in the Fourth Circuit and Duval County:\n. Before trial, a second black judge was appointed to the county court, R6-125-32-33; R4-84-10-11, but when this case was tried still only one black judge served among the twenty-eight on the circuit court.\n. Stipulations 30-45 in the pretrial stipulation also recount some of this history of discrimination. R4-64-12-15.\n.The Florida Supreme Court appointed the Bias Commission, which contained a cross-section of judges, lawyers, and lay citizens from throughout the state. R10-109 (testimony of Judge Henry Adams, Commission member).\n. Judge Henry Adams, a Commission member, testified that the Commission unanimously concurred in these findings and recommendations. RIO-112.\n. The analysis of plaintiffs' expert, Dr. Allan Lichtman, showed consistently lower participation by black registered voters than white registered voters in the black-white circuit and county court elections. Plaintiffs' Exhibit 13.\n. Section 2 of the Voting Rights Act, as amended, provides as follows:\n(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.\n(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.\n42 U.S.C. § 1973.\n. We note that this circuit is divided on the questions of whether plaintiffs can establish a section 2 violation by proving the threshold Gingles factors, see Solomon v. Liberty County, 899 F.2d 1012, 1017 (11th Cir.1990) (en banc) (per curiam) (Kravitch, J., specially concurring), and whether defendants can thereafter raise a defense under the totality of the circumstances. Id. at 1033 (Tjoflat, C.J., specially concurring); see Hall v. Holder, 955 F.2d 1563, 1568 n. 9 (11th Cir.1992) (recognizing division).\n. In Gingles, the only elections analyzed were elections in which black candidates ran against white candidates.\n. We also reject the district court's “applicant pool\" analysis with respect to the number of black elected judges. The district court focused upon the low number of black attorneys who would be eligible for judicial candidacies. However, the appropriate comparison is the percentage of black citizens or black voters, not the percentage of black lawyers. As the Florida Supreme Court Racial and Ethnic Bias Commission observed:\nA comparison of minority judges to the estimated eligible minority population alone is not responsive to the question of whether the Florida judiciary adequately reflects the racial and ethnic diversity of the citizens of Florida. One way of determining reflectiveness is to examine population proportional representation. That is, whether the number of minority judges reflects proportionately the number of minorities of the general population. A population proportional analysis reveals that minority judges are significantly underrepresented [in proportion] to the general population.\nRIO-147-48; Defendant’s Exhibit 23 at 15 (emphasis added).\nMoreover, courts have rejected defenses based on an “applicant pool\" theory. As the former Fifth Circuit stated, \"[t]he necessary link between the percentage of those eligible and the percentage actually selected that exists in school cases and employment cases is missing in voting cases.” Marshall v. Edwards, 582 F.2d 927, 936 (5th Cir.1978); see also Martin v. Allain, 658 F.Supp. 1183, 1203-04 (S.D.Miss.1987) (finding fact that small percentage of blacks was eligible to be elected as judges relevant but not controlling and further holding that existence of sufficiently large and geographically compact group which could constitute majority in single-member district was overriding factor).\n. See supra note 11.\n. See supra note 13.", "type": "majority", "author": "ATKINS, Senior District Judge:"}], "attorneys": ["Brenda Wright, Washington, DC, Robert B. MeDuff, Jackson, MS, Denise M. Prescod, Jacksonville, FL, Mitchell F. Dolin, Coving-ton & Burling, Washington, DC, Sherrilyn A. Ifill, New York City, for plaintiffs-appellants.", "George L. Wass, Harry F. Chiles, Denis Dean, Dept, of Legal Affairs, Tallahassee, FL, Frank E. Brown, Asst. Atty. Gen., Leonard S. Magid, Jacksonville, FL, Mitchell D. Franks, Lakeland, FL, for defendants-appel-lees.", "Rebecca K. Troth, Dept, of Justice, Civ. Rights Div., Appellate Section, Washington, DC, Howard C. Coker, Coker, Myers, Schickel, Cooper & Sorenson, Jacksonville, FL, for amicus curiae U.S."], "corrections": "", "head_matter": "Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams; Selendra Williams; Katrina Miles; Desi Wayne Dunlap; Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, v. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees.\nNo. 92-2588.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 15, 1993.\nBrenda Wright, Washington, DC, Robert B. MeDuff, Jackson, MS, Denise M. Prescod, Jacksonville, FL, Mitchell F. Dolin, Coving-ton & Burling, Washington, DC, Sherrilyn A. Ifill, New York City, for plaintiffs-appellants.\nGeorge L. Wass, Harry F. Chiles, Denis Dean, Dept, of Legal Affairs, Tallahassee, FL, Frank E. Brown, Asst. Atty. Gen., Leonard S. Magid, Jacksonville, FL, Mitchell D. Franks, Lakeland, FL, for defendants-appel-lees.\nRebecca K. Troth, Dept, of Justice, Civ. Rights Div., Appellate Section, Washington, DC, Howard C. Coker, Coker, Myers, Schickel, Cooper & Sorenson, Jacksonville, FL, for amicus curiae U.S.\nBefore KRAVITCH and HATCHETT, Circuit Judges, and ATKINS, Senior District Judge.\nHonorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation."} | KRAVITCH | HATCHETT | ATKINS | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1171 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,516,999 | Travis Lee LAMB, by his Guardian ad Litem, Stephen E. SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee | Lamb ex rel. Shepard v. Sears, Roebuck & Co. | 1993-09-15 | No. 92-8005 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before ANDERSON, Circuit Judge, MORGAN and JOHNSON, Senior Circuit Judges."], "parties": ["Travis Lee LAMB, by his Guardian ad Litem, Stephen E. SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee."], "opinions": [{"text": "MORGAN, Senior Circuit Judge:\nAppellant, through his guardian ad litem, brought this products liability action against the seller of, an above-ground swimming pool for damages suffered when he nearly drowned after falling into the pool. Appellant alleges that the pool was defectively designed and that it contained inadequate and defective directions and warnings. At the close of evidence, the district court directed a verdict in favor of appellee. We AFFIRM.\nFACTUAL AND PROCEDURAL BACKGROUND\nIn the summer of 1982, Donald Fuller purchased a ten-foot in diameter, twenty-four inch high, above-ground swimming pool from the appellee, Sears, Roebuck & Company (Sears). The pool was manufactured by Muskin, Inc. for Sears. The instructions, which bore the Sears name, were prepared and printed by Muskin. The directions accompanying the pool warned that the pool should only be used under adult supervision. However, this pool did not come with a fence nor did any of the directions state that a fence was necessary for the proper use of the pool.\nMr. Fuller installed the pool in his backyard according to the directions provided by Sears. The directions instructed the purchaser to pick out a place in the yard for the pool, to draw a ten-foot circle, find the lowest spot within the circled area, and level the ten-foot area to the lowest spot in that circle. Mr. Fuller’s backyard has a gentle slope to it and as a result of following Sears’ instructions, the wall of the southern end of the pool was only fourteen to eighteen inches above ground level . The southern side of the Fuller’s backyard is adjacent to the Lamb property. After setting up the pool, Mr. Fuller kept the instructions and subsequently used them to order a replacement liner for the pool from Sears.\nOn October 23, 1985, Mrs. Jan Lamb, mother of the appellant Travis Lamb, was preparing supper while Travis and his four-year-old brother were playing in the carport area. The carport of the Lamb house is on the opposite side of the house from the Fuller’s property. Sixteen-month-old Travis wandered away from his house, traveled at least one hundred and sixty -feet to the Fuller’s swimming pool, found his way into the pool and was discovered some time later by his mother. Lamb remained underwater for an undetermined period of time and suffered severe brain injuries from a lack of oxygen.\nPhotographs of the pool taken the day after the accident occurred were admitted into evidence during the trial. These photographs show that the rim of the pool wall is bent inward near the point where the pool wall is lowest. However, these photographs also show that the rim of the pool is bent inward in at least six separate locations, including an area above the pool filter which sits adjacent to the pool wall. In addition, several of the top rails of the pool wall are missing. Mr. Fuller testified that at some point between the time he purchased the pool and the date of the accident, several of the top rails were lost by children playing there. Mr. Fuller spread the remaining rails around the top of the pool wall and continued to use the pool without the missing rails. Mr. Fuller never attempted to purchase replacement rails, which were available through Sears.\nTravis Lamb suffered severe brain damage from oxygen deprivation as a result of his fall into his next-door neighbor’s pool. Through his guardian ad litem, Lamb filed this suit against Sears and Mr. Fuller. Mr. Fuller was dismissed as a party and the case went to trial before a jury on December 16, 1991. Following the close of evidence, the trial judge granted Sears’ motion for a directed verdict on the grounds that the pool was not defective, that the dangers involved with the pool were open and obvious, and that Lamb had not presented sufficient evidence of causation. Notice of appeal was timely filed with this court.\nSTANDARD OF REVIEW\nIn determining whether the district court erred in granting Sears’ motion for a directed verdict, we apply the same standard as that applied by the district court. In evaluating the standard, this court has stated:\nOn motions for directed verdict and for judgment notwithstanding the verdict the court should consider all of the evidence— not just that evidence which supports the non-movers case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in. the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a questions for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question.\nMiles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)).\nDISCUSSION\nLamb sued Sears under theories of negligence and strict liability for selling an above-ground pool that was defective. A defect can exist in the product design, in faulty construction, in the instructions, in the form and content of the warnings, or in the failure to warn. Collins v. Newman Machine Co., 190 Ga.App. 879, 881, 380 S.E.2d 314, 317 (1989). Lamb contends that there were defects in the design and manufacture of the pool, that the directions were defective, and that the warnings were inadequate. In order for Lamb to prove his claims against Sears under his strict liability theory, he must show that the pool, “when sold by the manufacturer, was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” O.C.G.A. § 51-1-11(b)(1) (Supp.1992). To prove his claims of negligence, Lamb must show that Sears breached some duty owing to him and that said breach was the proximate cause of Lamb’s injuries. Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982).\nI. DEFECTIVE DESIGN\nLamb contends that the swimming pool was negligently and defectively designed and manufactured in that it did not contain the appropriate safeguards to prevent the sides of the pool from collapsing, thereby creating a dangerous condition to minor children who could push over the side of the wall and fall into the pool. Lamb’s expert witness, Dr. Harrenstien, testified that the pool, as originally designed and sold by Sears with all of its rails in place, could withstand at least fifty pounds of vertical pressure without buckling. Dr. Harrenstien also testified that the wall of the pool in its original condition provided enough support and structural integrity to keep a child the size of Lamb from pushing in the side walls of the pool, and he opined that, had the pool been on level ground with all its rails in place, Lamb probably would not have been able to get into the pool. The uncontradicted evidence of Lamb’s own expert shows that the walls of the pool, in its original condition, were structurally sound.\nLamb argues, however, that the condition of the pool at the time of the accident was a result of reasonably foreseeable wear and tear. The district court found, to the contrary, that the pool was in a materially altered condition from when it was sold. The injuries suffered by Lamb must be the proximate result of a defect which existed in the product at the time it was sold, and if the product has been materially altered or modified by a third party after the sale, those injuries cannot be traced to be the proximate result of Sears’ original design. Talley v. City Tank Corp., 158 Ga.App. 130, 134-35, 279 S.E.2d 264, 269 (1981); see also Union Carbide Corp. v. Holton, 136 Ga.App 726, 730, 222 S.E.2d 105, 109 (1975) (“A seller is not liable when he delivered the product in a safe condition and subsequent mishandling or other causes made it harmful by the time it was consumed.”). The photographs of the pool show a complete failure on the part of the Fullers to observe routine care and maintenance. This goes well beyond normal wear and tear. We can come to no other conclusion but that the Fuller’s swimming pool was in a materially altered condition.\nLamb asserts that Seal’s should have foreseen the possibility that the top rails would wear out, break, or be lost. Sears addressed this contingency by making replacement parts available to the purchaser, but Lamb argues that Sears could have and should have designed the rails so that they could not be removed or broken. We find the analysis in Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 393 S.E.2d 64 (1990) to be applicable here. In Weatherby, the plaintiff was injured while riding a motorcycle without the gas cap in place. The plaintiff argued that the vehicle was defective because the manufacturer did not provide the best or more advanced safety device to keep the gas cap connected to the gas tank. The Georgia court rejected this argument, stating that a manufacturer is under no obligation to make a product accident proof, foolproof, or even “more safe”, as long as it is reasonably safe for its intended use. Weatherby, 195 Ga.App. at 170-71, 393 S.E.2d at 66; see also Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975) (recognizing that many products cannot be made completely safe for use and some cannot be made safe at all, but liability is not imposed merely because a product may be dangerous).\nThe function and purpose of a swimming pool is to retain water in order to allow people to make recreational use of the water. In this respect, the pool at issue was functioning exactly as intended at the time of the accident. Although the danger of drowning existed, there was no defect in the design and construction of the pool. Lamb’s own expert testified that the sidewalls of the pool were strong enough to keep a child such as Lamb from pushing them in. At the time of its sale, the swimming pool was reasonably safe for its intended use and Sears was under no obligation to make it accident proof.\nFurthermore, the pool had been allowed to deteriorate to the point where it was in a materially altered condition so that, even if it could be shown that Lamb pushed over the wall and fell into the pool, those injuries are not the proximate result of Sears design. Sears cannot be held responsible for the Fullers’ failure to repair or replace broken parts, particularly where replacement parts were made readily available by Sears. The district court correctly directed a verdict on this issue.\nII. DEFECTIVE INSTRUCTIONS\nLamb contends that the directions accompanying the pool negligently and defectively instructed the user to dig out land for the pool with the effect of lowering the outside height of the pool wall, thereby making it easier for young children to get into the pool. Dr. Harrenstien testified that because of Lamb’s height and weight at the time of the accident, Lamb would not have had the strength to pull himself over a fixed, twenty-four inch high barrier, but that it would have been relatively easy for Lamb to have climbed over an eighteen-inch high barrier. Lamb argues that the six to ten inch differential in wall height resulting from Sears’ directions was a defect which was a proximate cause of his injuries.\nThe height of the pool wall did not affect the pool’s ability to fulfill its intended purpose of holding water. A fourteen-inch high pool holds water just as well as a twenty-four inch high pool and it presents the same danger of drowning. The pool in question, as is true with any above-ground pool that is not fenced, presented a hazard to every child in the neighborhood in inverse proportion to the size and age of the child. Obviously, the higher the wall, the taller the child must be to overcome that barrier. Conversely, if the barrier was lowered six to ten inches, then it would be easier for smaller children to overcome. The easier it was for Lamb to gain access to the pool, the greater the risk that he might drown or be injured by the water. As Lamb grew older and bigger, the pool wall became less and less of a barrier between him and the water. Without a fence around the pool, it was just a matter of time before Lamb became big enough to get into the pool regardless of the height of the pool wall. This should have been equally apparent to both Mrs. Lamb and the Fullers. The pool was not defective merely because Sears did not make it impossible for children to gain access to the pool.\nIII. FAILURE TO WARN\nFinally, Lamb argues that Sears failed to give adequate warnings of the potential danger to toddlers that a swimming pool presents. Specifically, Lamb contends that Sears was under a duty to warn consumers that following the directions could result in the surrounding earth encroaching upon the height of the pool wall, and that Sears should have warned that a fence around the pool was necessary to keep children out. A manufacturer of a product which involves danger to users generally has a duty to warn of such dangers. Ford Motor Co. v. Stubble-field, 171 Ga.App. 331, 335, 319 S.E.2d 470, 476 (1984). However, a manufacturer has no duty to warn of open and obvious dangers. Giordano v. Ford Motor Company, 165 Ga. App. 644, 645, 299 S.E.2d 897 (1983). Whether a danger is open and obvious is determined “on the basis of an objective view of the product, and the subjective perceptions of the user or injured party are irrelevant.” Weatherby, 195 Ga.App. at 171, 393 S.E.2d at 66. While in many cases, the obvious and common nature of a peril will be a question for the jury, it may be determined as a matter of law in plain and palpable cases. Id. at 173, 393 S.E.2d at 68. The existence of an open and obvious danger constitutes an absolute legal defense to the claims of negligent manufacture and design in failure to warn cases under Georgia law, Pressley v. Sears, Roebuck & Co., 738 F.2d 1222, 1224 (11th Cir.1984), and if the danger is open and obvious, the manufacturer is entitled to judgment as a matter of law. Weatherby, 195 Ga.App. at 173, 393 S.E.2d at 68.\nGeorgia law recognizes that any reasonable adult knows or should know of the dangers presented to toddlers by any body of standing water. In Georgia “Ltjhe danger of drowning in a swimming pool ... is an apparent, open danger, the knowledge of which is common to all, including a boy nine years of age.” McCall v. McCallie, 48 Ga.App. 99, 100, 171 S.E. 843, 844 (1933). Although the twenty-four inch side of the pool presented a barrier to most smaller children, it was still possible for a child to find its way into the pool and suffer injuries. Since the danger of drowning in a pool is an open and obvious danger, it is axiomatic that to alleviate or reduce the danger a person must erect a fence or some similar means of preventing access to the pool. Every expert at trial testified that a fence surrounding the pool would have prevented this accident. The danger of drowning presented by the pool, as well as the absence of a fence, was apparent to anyone viewing the pool and would not have been more apparent had Sears provided warnings.\nA more difficult question is whether the increased danger to small children presented by the lower, fourteen-inch high pool wall was so obvious that Sears had no duty to warn. Lamb presented expert testimony that, from a biomechanical point of view, it was much easier for a child of Lamb’s size to climb over the lower wall. However, if the pool was only fourteen inches high when sold, the risk of drowning would have been obvious, regardless of the ease or difficulty that a small child would have climbing into it. Lamb argues that since the pool was sold as a twenty-four inch high pool, the disparity in height and its attendant risks were not open and obvious to the average consumer.\nWe conclude, from an objective point of view, that a reasonable person who has owned a pool for over three years should be aware of a ten-inch differential in the height of the pool wall as well as the additional risk that the lower height would pose to small children. See Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 321 S.E.2d 353 (1984), aff'd, Mann v. Coast Catamaran Corp., 254 Ga. 201, 326 S.E.2d 436 (1985) (“the nature and height of the Lsailboat] mast were readily observable” and the “presence of the aluminum mast and danger resulting from its contact with high voltage power lines were obvious”). The differential in the height of the pool wall is easier to determine and more readily apparent than the clearance between a twenty-six foot high sailboat mast and overhead power lines. Therefore, we believe that Lamb did not meet his burden of presenting sufficient evidence to create a question of fact for the jury as to whether the increased risk to small children was so obvious as to preclude Sears’ duty to warn.\nAssuming, arguendo, that Sears did have a duty to warn of the dangers created by the decreased height of the pool wall, there still must be some reasonable connection between Sears’ omission and the injuries suffered by Lamb. Whether proceeding under a strict liability or a negligence theory, proximate cause is an essential element of any cause of action sounding in tort. Talley, 158 Ga.App. 130, 134, 279 S.E.2d 264, 269. Lamb has the burden of introducing some “evidence which affords a reasonable basis for a jury to conclude that it is more likely than not that the conduct of [Sears] was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, ... it becomes the duty of the court to direct a verdict for [Sears].” Anneewakee, Inc. v. Hall, 196 Ga.App. 365, 367, 396 S.E.2d 9, 10 (1990).\nThe only evidence of how Lamb got into the pool consists of Mrs. Lamb’s testimony that she found Travis in the pool near the lower pool wall. Mrs. Lamb’s testimony provides only the slightest thread of circumstantial evidence as to how Travis fell into the pool. No one witnessed Lamb wandering into the Fullers’ backyard or falling into the pool. As the district court stated:\nThere are a number of scenarios, maybe an endless number of scenarios, of how it could have happened, but we still don’t know how it happened in this case.\nWe don’t know whether he went around the back of the Lamb house or the back of the Fuller house to get there. He could have gone around both the Lamb and the Fuller houses to get to the pool.\n[These possibilities] bring me to the inescapable conclusion that the proximate cause element is totally lacking here. (R-663-67).\nHad the lower wall height been the only means of access into the water then this might be a different case, but there were at least six indentations where the pool wall was bent inward and a child could have fallen in. In addition, Lamb could have used the pool filter as a stepladder to get into the pool. Based on Mrs. Lamb’s testimony, no reasonable or fair-minded jury could conclude that it was more likely than not that Lamb fell into the pool because of the lower height of the pool wall. A verdict imposing liability on Sears in this case would be based on pure speculation. The district court properly took this case out of the hands of the jury and directed a verdict in favor of Sears.\nCONCLUSION\nAt the time the pool was sold by Sears, there was no defect in its design. Furthermore, Georgia law clearly states that the hazards inherent in a swimming pool present an open and obvious danger, and consequently, Sears was under no duty to warn of such obvious dangers. In addition, Lamb has failed to present any evidence of a causal connection between the alleged defects in the pool and his injuries.\nFor all of the foregoing reasons, we AFFIRM the district court’s direction of a verdict in favor of Sears.\n. Although Mr. Fuller testified that the dirt build up outside the pool wall had washed down to the pool over a period of time, there was ample evidence to allow a jury to infer that Mr. Fuller had cut into the slope of his yard following Sears’ instructions and that this resulted in the lower height of the pool.\n. Of course, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 7, 1981.\n. Dr. Harrenstien qualified as an expert in the field of human factors engineering and product and design safety engineering.\n. Dr. Harrenstien’s opinion that Lamb would not have been able to get into the pool if it had been on level ground was based on his own speculation that Lamb gained entry into the pool at the point where the height of the sidewall is lowest.\n. As the district court stated, \"[t]his pool, as shown in this photograph, is' simply not in the same configuration that it was intended by the manufacture^] to be used and the evidence is clear on that point.\" (R5-662).\n. Although not adopted by Georgia, the Model Uniform Products Liability Act states,\n\" 'Alteration or modification' occurs when a person or entity other than the product seller changes the design, construction, or formula of the product.... 'Alteration or modifications' of a product includes the failure to observe routine care and maintenance, but ¿loes not include ordinary wear and tear.\" MUPLA § 112(D)(1).\n. A local county ordinance applicable to the Fuller’s pool required all above-ground swimming pools to be enclosed by a fence with a self-latching gate. However, the existence of such an ordinance has no bearing on Sears' duty to warn. Obviously, some purchasers of this type of pool lived in counties without any regulations regarding above-ground pools. If Sears had a duty to warn purchasers of the need for a fence, that duty existed regardless of whether the purchaser's county had a local ordinance regulating pools.", "type": "majority", "author": "MORGAN, Senior Circuit Judge:"}, {"text": "ANDERSON, Circuit Judge,\ndissenting:\nRespectfully, I disagree with two aspects of the opinion for the court. First, in my judgment, the evidence in this case created a question of fact for the jury on the issue of whether the instructions accompanying the pool were negligent and were a concurring proximate cause of the injuries. Second, I do not believe that the open and obvious defense is available as a matter of law on the evidence in this case with respect to the additional danger presented by a pool wall that was only 14 inches to 18 inches above ground on the outside, although was the full 24 inches high on the inside.", "type": "dissent", "author": "ANDERSON, Circuit Judge,"}], "attorneys": ["John Chapman Bell, Jr., Bell & Pannell, Augusta, GA, for plaintiff-appellant.", "Patrick J. Rice, Hull, Towill, Norman & Barett, James B. Ellington, Augusta, GA, for defendant-appellee."], "corrections": "", "head_matter": "Travis Lee LAMB, by his Guardian ad Litem, Stephen E. SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.\nNo. 92-8005.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 15, 1993.\nJohn Chapman Bell, Jr., Bell & Pannell, Augusta, GA, for plaintiff-appellant.\nPatrick J. Rice, Hull, Towill, Norman & Barett, James B. Ellington, Augusta, GA, for defendant-appellee.\nBefore ANDERSON, Circuit Judge, MORGAN and JOHNSON, Senior Circuit Judges."} | ANDERSON | MORGAN | JOHNSON | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 1184 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,030 | UNITED STATES of America, Plaintiff-Appellee, v. Fred T. SULLIVAN, et al., Defendants-Appellants | United States v. Sullivan | 1993-09-15 | No. 92-8268 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before COX and BLACK, Circuit Judges, and MORGAN, Senior Circuit Judge."], "parties": ["UNITED STATES of America, Plaintiff-Appellee, v. Fred T. SULLIVAN, et al., Defendants-Appellants."], "opinions": [{"text": "MORGAN, Senior Circuit Judge.\nThe government brought this trespass action for damages arising when appellants clear cut timber on lakeshore property on Lake Lanier, Georgia. Appellants challenge the district court’s holding that the subject realty was unique and without market value and that the proper measure of damages under Georgia law was the cost of restoration, as well as the jury verdict itself on several grounds. We AFFIRM.\nFACTUAL AND PROCEDURAL BACKGROUND\nIn February 1982, Tim and Avie Sullivan purchased a parcel of property located in the center of a pear-shaped peninsula on Lake Sidney Lanier, Georgia. The shoreline surrounding the Sullivan property was owned by the United States and managed by the United States Army Corps of Engineers (Corps), pursuant to a lakeshore management plan. The Corps property was open to the public for recreation, swimming, and picnicking.\nIn 1988, portions of the Sullivan property and the adjacent Corps property became infested with southern pine beetles. In July of 1988, Avie Sullivan confirmed that her property was infested with southern pine beetles and subsequently contacted the Corps. This resulted in a meeting between herself and two park rangers who took a walking tour of the property. During this meeting, Ms. Sullivan and the rangers discussed the possibility of using a single tree-cutting service to remove the infested trees from both properties. Although no written permit was ever issued to allow the Sullivans to cut trees on public property, Ms. Sullivan claims that she received verbal permission from the park rangers to remove the trees.\nMs. Sullivan contacted Lamar and Robert Suddeth about removing the infested trees. In September of 1988, the Suddeths began to cut and remove trees from both the Sullivan property and the Corps property. The tree removal continued until November 14, 1988, when a park ranger ordered Robert Suddeth to stop operating heavy equipment on public property. The next day, a Corps representative called Ms. Sullivan and informed her that the pine beetle operation required a permit. On November 28, Erwin Topper, the Resource Manager of Lake Lanier sent the Sullivans a cease and desist letter. Nevertheless, on December 5, a park ranger noticed heavy equipment work being done along the shoreline adjacent to the Sullivan property. The ranger approached Mr. Kiser, who was operating the bulldozer, and instructed him to discontinue his work. At that point, work on the Corps property was discontinued and shortly thereafter, grass was planted to prevent erosion.\nThe government planted 4,850 trees plus bushes to replace the trees that had been cleared, at an expense in excess of $5,000. The government then filed suit against Tim and Avie Sullivan, the owners of the adjacent property; William Kiser, the operator of the bulldozer; and Lamar and Robert Suddeth, the brothers hired to clear the trees. The government claimed that the defendants entered upon its property without consent and cleared several acres of vegetation and trees. A jury returned a verdict in favor of the government and against the defendants as follows:\nFred T. Sullivan $100,000;\nAvie Sullivan $100,000;\nLamar Suddeth, Inc. $9,476;\nRobert Suddeth $9,476; and\nWilliam W. Kiser $100.\nImmediately after the verdict was rendered, the district court sent the jury out for further deliberations on two questions. The first was: “Do you find liability as to Lamar Suddeth? Yes or No.” The second was: “Answer for the court: What do you find the total amount of damages sustained by the plaintiff to be, the total figure?” The jury returned with a finding that the total amount of damages to be recovered by the plaintiff was $219,052. The district court then entered two separate judgments in favor of the government: one in the amount of $218,952 against appellants Tim and Avie Sullivan and Lamar and Robert Suddeth, jointly and severally; and one in the amount of $100 against William Kiser. Following denials of motions for judgment notwithstanding the verdict, for remittitur and for a new trial, appellants timely filed this appeal. William Kiser chose not to appeal and is not a party on appeal. Appellants challenge the district court’s instruction to the jury on the proper measure of damages, and they challenge the jury verdict itself on several grounds.\nDISCUSSION\nI. Measure of Damages\nAppellants contend that the district court improperly instructed the jury on the proper measure of damages. The standard applied by this court when reviewing jury instructions is deferential: “So long as [the] instructions reflect the pertinent substantive law, the trial judge is given wide discretion as to the style and wording that [he] may employ.” McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir.1990). “If a requested instruction is refused and is not adequately covered by another instruction, the court will first inquire as to whether the requested instruction is a correct statement of the law. In such a scenario, if the requested instruction does accurately reflect the law, the next step is to assess whether the instruction addresses an issue that is properly before the jury.” Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir.1991). Consequently, our first inquiry is whether the district court was correct in holding that the subject property is unique and has no market value. This inquiry is governed by Georgia law.\nThere are no Georgia cases directly on point, as none have determined whether government-owned shoreline has a market value, although at least one Georgia decision has recognized that land used as a park has a special, inherent value as a park. See Louisville and Nashville R.R. Co. v. Kohlruss, 124 Ga. 250, 251, 52 S.E. 166 (1905) (“If the evidence shows that the trees were ornamental trees and were situated in an enclosed park and planted there for park purposes only, the jury may take into consideration the value of the trees for the purpose intended, and how much the premises had been damaged by their destruction; that is, how much the park, as a park, has been damaged by the loss of the trees.”). The general rule in Georgia is that “the measure of damages involving real property is the diminution in fair market value of the land, that is, the difference in the value of the property before and after the injury.” Whitaker Acres, Inc. v. Schrenk, 170 Ga.App. 238, 241, 316 S.E.2d 537 (1984). The cost of restoration has been used as an exception to the general rule in the following situations: (1) an action “involving] damage to any building or structure of the property,” (2) an action “involving] a continuing trespass which can be remedied by the making of certain ‘repairs’ to the property,” and (3) an action “involving] the loss of an article having no market value.” Id. at 241-42, 316 S.E.2d 537; see also Cherry v. McCutchen, 65 Ga.App. 301, 16 S.E.2d 167 (1941) (family heirloom painting had no market value); Horton v. Georgia Power Co., 149 Ga.App. 328, 254 S.E.2d 479 (1979) (utility pole served a unique purpose).\nIn the instant case, the district court relied on the third exception to the Whitaker Acres test in holding that the lakeshore property constitutes special use property that is unique and without market value. Appellants argue that the district court improperly took the issue of market value and consequently, the appropriate measure of damages away from the.jury by determining that the subject realty was unique and had no market value. The proper measure of damages to be applied by the jury is a matter that may be determined by the court. The district court reasoned that the parcel of government shoreline at issue here is not simply an isolated piece of property with timber on it, but instead is part of an environmental system. It is not available for sale, nor is it likely to be sold in the future. The property benefits the public by providing access to the lake as well as preventing the flooding of private property. Furthermore, the subject property was covei’ed by a complex lakeshore management plan which required a certain amount of forest and canopy in order to protect the wildlife, prevent soil erosion, and comply with numerous other congressional objectives for lakeshore property. As a part of a whole environmental system, the property needed to remain as it was in order to continue to perform its function. The value of the forest in the ecological scheme of things far exceeds the market value of the fallen timber. One cannot put a market value on the loss of a thirty year old forest. A more accurate, and more logical measure, is the cost to restore the land, as near as possible, to its original condition.\nII. Defective Verdict\nAppellants moved for a new trial on the grounds that the verdict was against the weight of the evidence and that it indicated an impermissible compromise by the jury. Generally, we review a district court’s denial of a motion for new trial for an abuse of discretion. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984). A new trial should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great — not merely the greater — weight of the evidence. Id.\nAppellants point to the vast difference between the government’s figure of estimated damages of $614,000 and their own maximum damage figure of $5,276, and argue that since the government never introduced evidence itemizing the cost of reforestation, there was no basis for the jury to “pick and choose” among the items of cost and therefore there is no evidence to support the damage figure arrived at by the jury. However, testimony throughout the trial indicated that numerous factors could effect the cost of reforestation, such as the number and kind of trees purchased, the age of those trees, and the expenses involved in planting them. The government presented expert testimony that restoration of the property called for the replanting of 600 native trees per acre, at an average cost of $200 per tree for 6.26 acres. This amount came to $307,000 and was doubled to cover installation and a one year guarantee. The jury was free to listen to the testimony, reject both figures offered by the parties, and arrive at a figure which seemed reasonable to it. Considering the varying estimates admitted into evidence, the jury’s verdict of $219,000 was well within the range of damages that the evidence would support.\nA compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. Mekdeci by and through Mekdeci v. Merrell National Labs, 711 F.2d 1510,1513-14 (11th Cir.1983). Ironically, the party that one would expect to raise this issue is the government, which was awarded substantially less in damages than it sought. However, the jury enjoys substantial discretion in awarding damages within the range shown by the evidence, and while the jury may not pull figures out of a hat, its verdict does not fail for a lack of exhaustive or dispositive evidence so long as a rational basis exists for the calculation. NiemanMarcus Group, Inc. v. Dworkin, 919 F.2d 368, 372 (5th Cir.1990). As discussed above, the jury’s verdict was supported by the evidence and we find this argument to be completely without merit.\nIII. Evidence of Consent\nAppellants argue that the government failed to establish lack of consent as an element of their case in chief, and therefore appellants were entitled to judgment in their favor. See e.g., Scott v. Leder, 164 Ga.App. 334, 297 S.E.2d 103 (1982). The only evidence relating to the issue of consent came from Ms. Sullivan, who testified that she received permission to cut down the infested timber on Corps land. However, there was substantial evidence to the contrary that would allow the jury to discredit Ms. Sullivan’s testimony. Mr. Mullin, who was one of the Corps representatives who allegedly assented to the cutting, denied ever giving permission for the cutting. Mr. Topper, the Resource Manager of Lake Lanier, stated that he was the only person who had authority to permit a cutting of this size. No written work permit was ever issued and the cutting continued even after the need for a permit was clearly communicated to the Sul-livans. In addition, rather than cut only the infected pines, the land was cleared of all trees, including hardwoods. We conclude that the government produced sufficient evidence to negate appellants’ defense of consent.\nIV. Alteration or Amendment of Jury Verdict\nAppellants also appeal the denial of their motion for a new trial on the grounds that the district court improperly amended the jury’s verdict by combining four out of the five several verdicts into a single joint and several judgment and then entering two separate judgments. We review the district court’s rewriting of an apportioned or several verdict into a joint and several verdict to determine whether the court’s actions were within the scope of Rule 60(a) of the Federal Rules of Civil Procedure or the inherent equitable powers of the court.\nInitially, we note that “although we are bound by Georgia substantive law on joint and several liability, the incidents of jury trial are for the federal courts to decide for themselves, guided by the Seventh Amendment, and are not a matter on which state law should be given any effect.” Stuckey v. Northern Propane Gas Co., 874 F.2d 1563, 1572 (11th Cir.1989). The district court may correct damage awards that initially allocate damages among defendants who are actually jointly and severally liable. G.A Thompson and Co. v. Partridge, 636 F.2d 945, 963-64 (5th Cir.1981). In G.A. Thompson, the court amended a several verdict into a joint and several verdict, stating that the jury’s misunderstanding of the court’s instruction on joint and several liability was so obvious that it was not unlike a clerical error under Rule 60(a).\nUnder Georgia law, a trespass involves entering upon the land of another without consent. Gloss v. Jacobs, 86 Ga.App. 161, 167, 71 S.E.2d 253 (1952). The undisputed evidence shows that the Suddeths, acting at the direction of the Sullivans, entered upon the Corps property and cut down trees standing thereon. The only factual issue in dispute is whether the Sullivans received consent from the Corps to engage in this activity. The jury’s verdict awarding damages against the appellants shows that they discounted appellant’s defense of consent and found that a trespass did in fact occur. Given Georgia law and the facts of this case, if a trespass occurred then the Sullivans and Suddeths are, as a matter of law, jointly and severally liable for any damages caused by the trespass.\nThe district court instructed the jury that “if you find that one or more of the defendants committed a trespass on the land of the plaintiff, either acting for him or herself, or under the direction of another one of the defendants, you of course will find against that defendant in favor of the plaintiff. If you find that a defendant was acting under the direction of another defendant, you of course shall find against both of them jointly and in favor of the plaintiff.” These instructions clouded the issue of joint and several liability. A jury could conclude from these instructions that if it found that a defendant was acting under the directions of another defendant, then it could find “against that defendant” or “against both of them jointly.” However, the undisputed facts dictate that any finding of liability against the appellants must be joint and several. The fact that the jury returned several verdicts against each defendant shows that they were confused on this question of law and the district court was correct in amending the several verdicts into a single joint and several verdict.\nThe jury returned a nominal verdict of $100 against Mr. Kiser, the bulldozer operator, and the district court entered a separate judgment against him in this amount. In closing arguments, the government asked the jury to hold Mr. Kiser liable for $200, which was to represent the fruits of his labor on the two days when he was operating his bulldozer on public property. The government did not argue for joint liability against Mr. Kiser nor is there any evidence to support such liability. The record reveals that Mr. Kiser did not act in concert with the appellants in cutting the timber, but rather that he committed a separate trespass by entering upon the Corps property for the purposes of grading the land. In light of this, the $100 verdict against Mr. Kiser not only is reasonable, but also should be separate from the other four defendants.\nFor all of the foregoing reasons, the judgment of the district court is AFFIRMED.\n. The southern pine beetle is a destructive insect which can cause the mass destruction of pine forests.\n. This had to be asked because the listing of Lamar Suddeth, Inc., as opposed to Mr. Suddeth personally was a clerical error on the verdict form.\n.The district court instructed the jury on the issue of market value and damages as follows:\n\"[N]ormally damages for a trespass would be the difference between the value before a trespass and the value after the trespass. However, under special use properties or where there's no market value for the property then [diminution in market value] is not the proper measure of damages because the value is difficult or impossible of determination. In a case such as that, as in this case, the proper measure of damages become the cost of repair or the cost of restoration of the property, and therefore that’s the element of damages or the measure of damages that you should consider.\"\n. The government contends that federal law governs this case because it involves a question regarding the rights of the United States arising under a nationwide federal program to control the flooding of private lands. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979). However, this case does not arise out of the lakeshore management program, nor will application of Georgia law contravene any federal policy contained therein. United States v. Williams, 441 F.2d 637, 643 (5th Cir.1971) (In the absence of a contravening federal statute or policy, suits to protect the government's proprietary interests are local in nature.). The primary issue in this case pertains to the question of damages arising . out of an alleged trespass. Therefore, Georgia law must be examined to determine the appropriate measure of damages. Mason v. United States, 260 U.S. 545, 558, 43 S.Ct. 200, 204, 67 L.Ed. 396 (1923) (damages for conversion are within the scope of state legislation).\n. As the district court stated, Georgia cases strongly \"imply that the question of whether property has a market value (and, by extension, what measure of damages is to be used) is a question for the court and not the jury.” In Horton, the Georgia Court of Appeals affirmed a grant of summary judgment where the only issue was the proper measure of damages. Both parties stipulated to the replacement cost as well as the actual out-of-stock cost. The utility pole at issue in Horton had a market value in that it could be purchased for $200, but the court determined that its real value derived from its use as an integral part of an electrical distribution system. Similarly in this case, if the Corps decided to sell the lakeshore property, a price could be determined, but the property's true value came from the function it performed as part of an overall environmental system.", "type": "majority", "author": "MORGAN, Senior Circuit Judge."}], "attorneys": ["Arthur Timothy Jones, Erie E. Huber, Freeman & Hawkins, Atlanta, GA, Michael R. Carey, Carey, Aylward & O’Malley, Tampa, FL, for defendants-appellants.", "James R. Schulz, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee."], "corrections": "", "head_matter": "UNITED STATES of America, Plaintiff-Appellee, v. Fred T. SULLIVAN, et al., Defendants-Appellants.\nNo. 92-8268.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 15, 1993.\nArthur Timothy Jones, Erie E. Huber, Freeman & Hawkins, Atlanta, GA, Michael R. Carey, Carey, Aylward & O’Malley, Tampa, FL, for defendants-appellants.\nJames R. Schulz, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.\nBefore COX and BLACK, Circuit Judges, and MORGAN, Senior Circuit Judge."} | COX | BLACK | MORGAN | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1191 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,057 | Frances M. WALLS, Plaintiff-Appellant. v. BUTTON GWINNETT BANCORP, INC., Button Gwinnett Savings Bank, Defendants-Appellees | Walls v. Button Gwinnett Bancorp, Inc. | 1993-09-15 | No. 92-8680 | United States Court of Appeals for the Eleventh Circuit | {"judges": ["Before FAY and DUBINA, Circuit Judges, and GIBSON , Senior Circuit Judge."], "parties": ["Frances M. WALLS, Plaintiff-Appellant. v. BUTTON GWINNETT BANCORP, INC., Button Gwinnett Savings Bank, Defendants-Appellees."], "opinions": [{"text": "FLOYD R. GIBSON, Senior Circuit Judge:\nFrancis Walls filed suit against her former employer, Button Gwinnett Bank (“Bank”), alleging her termination violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (1988), and Title VII of the 1964 Civil Rights Act. On January 23, 1992, the ADEA portion of the case was tried before a jury. After a jury verdict in Walls’ favor, the court granted the Bank’s motion for judgment as a matter of law and alternative motion for a new trial. Walls appeals both orders. We reverse and order the district court to reinstate the jury verdict in Walls’ favor.\nI. BACKGROUND\nOn May 15, 1988, Walls was hired by the Bank as a treasurer, controller, and chief financial officer; she was 58 years old. Walls had more than 25 years of experience in the savings and loan industry, and performed financial, budgeting, auditing and accounting duties at the Bank. During her employment, she received positive recommendations, received a merit increase at the end of January, 1989, and was promoted to Senior Vice President on April 20, 1989. In November, 1989, the Bank decided to convert from a savings and loan institution to a commercial bank. One month later, the Bank hired Christopher Fluehr to oversee the transition and act as a consultant. In January, 1990, Fluehr interviewed all employees and reviewed their personnel files, which contained information concerning each employee’s age. In a deposition, Fluehr admitted that he tended to look at age when reviewing personnel files. Sometime in mid-January, Fluehr and Walls had a disagreement concerning the posting of a loan; Michael Alen, who was then president of the bank, testified that shortly after the disagreement Fluehr stated “this old lady can’t work for me.” At trial, Fluehr denied making the comment. On January 26, 1990, Fluehr asked Walls how old her secretary was, and Walls responded that she thought that was a rather personal question. Fleuhr then said, in Alen’s presence, “Well, I know how old you are.” At trial Fluehr testified that he probably made a comment about Walls’ age, but that he often joked about age. On February 8,1990, Walls received a memo from Fluehr stating that Fluehr had hired Jeff Wyatt to act as a consultant for the Bank. On February 9, Fluehr asked Walls to resign from the Bank, and on February 12, Wyatt, who was then 33 years old, started with the Bank.\nWalls filed suit against the Bank, alleging her termination violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (1988), and Title VII of the 1964 Civil Rights Act. The ADEA portion of the case was tried before a jury beginning on January 23, 1992. The jury found that the Bank had discriminated against Walls because of her age, and awarded her $51,200 as damages for the Bank’s actions. The Bank then moved for judgment as a matter of law under Fed.R.Civ.P. 50(b), and alternatively, for a new trial under Fed. R.Civ.P. 59(a). In granting the Bank’s motion for judgment as a matter of law, the district court stated there was no credible direct evidence of discrimination, Walls did not rebut the Bank’s legitimate nondiscriminatory reasons for its actions, and Walls failed to carry her burden on the issue of pretext. In granting the Bank’s alternative motion for a new trial, the court found that the verdict was against the great weight of the evidence and resulted in a miscarriage of justice. Walls appeals both orders. We reverse and order the district court to reinstate the jury verdict.\nII. DISCUSSION\nUnder the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age,” if that individual is at least 40 years of age. 29 U.S.C. §§ 623(a), 631(a). The plaintiff bears the ultimate burden of proving that age was a determinative factor in the employer’s decision to terminate the employment. Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989).\nA. Motion for Judgment as a Matter of Law\nWe review the district court’s order granting the Bank’s motion for judgment as a matter of law under the same standard applied by the district court. This court has held that reviewing courts must view the evidence\n“in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion[ ] is proper. On the other hand, if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[] should be denied.”\nWilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1436 (11th Cir.1991) (per curiam) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)). It is improper to grant a judgment as a matter of law if “the evidence is such that ‘reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.’ ” MacPherson v. University of Montevallo, 922 F.2d 766, 770 (11th Cir.1991) (citations omitted).\nAfter reviewing the record in the light most favorable to Walls, we conclude there was substantial evidence upon which reasonable persons could differ as to whether Walls was discharged because of her age. Boeing, 411 F.2d at 374. As the district court noted, Walls introduced sufficient evidence to establish a prima facie case. The Bank then presented its evidence that Walls was terminated for various nondiscriminatory reasons, i.e., the change to a commercial bank, the elimination of Wall’s position, and the Bank’s need for a new management team with commercial banking experience. However, the evidence presented to the jury was such that a reasonable person could conclude the Bank’ justifications were merely pretexts for discrimination. Walls introduced evidence that Fluehr stated he relied on age when reviewing personnel files, that Fluehr told Walls he knew how old she was, and that Fluehr told Alen that “that old lady can’t work for me.” Walls also introduced evidence that she was 59 years old when she was discharged by the Bank, that she had good job reviews and had received a promotion, that the Bank had hired a 33-year old male to act as a consultant three days after her termination, and that she was qualified for several other positions in the Bank. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (a plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely [than not] motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”) Though some of the testimony and evidence at trial was conflicting, it was the jury’s function to weigh the evidence and make credibility determinations. See Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir.1988) (“Neither the district courts nor the appellate courts are free to reweigh the evidence and substitute their judgment for that of the jury.”) There was enough evidence for the jury to find that the Bank’s explanation for Wall’s termination was pretextual and the Bank discharged Walls because of her age. Thus, the district court erred in granting the Bank’s motion for judgment as a matter of law.\nB. Motion for new trial\nWalls argues the court erred in granting the Bank’s motion for new trial because the jury verdict was not contrary to the evidence presented at trial. We review a district court’s decision to grant a new trial under the abuse of discretion standard. Ard v. Southwest Forest Industries, 849 F.2d 517, 520 (11th Cir.1988). However, “[w]hen a district court grants a new trial because the verdict is against the weight of the evidence, this court’s review will be extremely stringent to protect a party’s right to a jury trial.” Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir.1991). Our reasoning for reversing the court’s judgment as a matter of law also supports our conclusion that the jury verdict was not contrary to the weight of the evidence, and the district court erred in granting the Bank’s motion for a new trial. “[T]he district judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury.” Id. (citing Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir.1987) (per curiam) (citation omitted)).\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the district court’s order granting the Bank’s motion for judgment as a matter of law. We also reverse the district court’s grant of a new trial and order the district court to reinstate the jury verdict.\nREVERSED and REMANDED.\n. Fluehr became president of the bank in March, 1990.\n. On January 24, 1992 the Title VII portion of the case was tried to the court, which ruled in favor of the Bank. Walls does not appeal that ruling.\n. The Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).", "type": "majority", "author": "FLOYD R. GIBSON, Senior Circuit Judge:"}], "attorneys": ["Robert C.D. McDonald, Office of Robert C.D. McDonald, Leslie Stewart, Norcross, GA, for plaintiff-appellant.", "Lynn C. Stewart, Schreeder, Wheeler and Flint, Atlanta, GA, for defendants-appellees."], "corrections": "", "head_matter": "Frances M. WALLS, Plaintiff-Appellant. v. BUTTON GWINNETT BANCORP, INC., Button Gwinnett Savings Bank, Defendants-Appellees.\nNo. 92-8680.\nUnited States Court of Appeals, Eleventh Circuit.\nSept. 15, 1993.\nRehearing Denied Oct. 25, 1993.\nRobert C.D. McDonald, Office of Robert C.D. McDonald, Leslie Stewart, Norcross, GA, for plaintiff-appellant.\nLynn C. Stewart, Schreeder, Wheeler and Flint, Atlanta, GA, for defendants-appellees.\nBefore FAY and DUBINA, Circuit Judges, and GIBSON , Senior Circuit Judge.\nHonorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation."} | FAY | DUBINA | GIBSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1198 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,084 | AT & T COMMUNICATIONS, INC., and Richard G. Austin, Administrator General Services Administration, Appellants, v. WILTEL, INC., and MCI Telecommunications Corporation, Intervenors | AT & T Communications, Inc. v. Wiltel, Inc. | 1993-07-30 | 92-1474, 93-1090 | United States Court of Appeals for the Federal Circuit | {"judges": ["Before NEWMAN, CLEVENGER, and RADER, Circuit Judges."], "parties": ["AT & T COMMUNICATIONS, INC., and Richard G. Austin, Administrator General Services Administration, Appellants, v. WILTEL, INC., and MCI Telecommunications Corporation, Intervenors."], "opinions": [{"text": "RADER, Circuit Judge.\nThe General Services Administration Board of Contract Appeals (Board) granted Wiltel, Inc.’s and MCI Telecommunications Corporation’s bid protest. Wiltel, Inc. v. General Services Admin., 1992 BPD ¶ 201 1992 WL 189631 (GSBCA 1992). AT & T Communications, Inc. and the General Services Administration (GSA) appeal. The protest concerns FTS2000, the Federal Government’s comprehensive telecommunications contract. GSA and AT & T agreed to modify the FTS2000 contract to add services. Wiltel (and later MCI) protested the modification for exceeding the scope of the FTS2000 contract. Because the Competition in Contracting Act (CICA) does not require a separate competitive procurement for this modification to the FTS2000 contract, this court reverses.\nBACKGROUND\nIn 1986, GSA solicited bids for FTS2000, a Government-wide telecommunications system. Under the heading Description/Specifications/Work Statement, the FTS2000’s request for proposals describes the scope of the contract:\nC.1.3 Objectives\nThe FTS2000 procurement is designed to meet the following government objectives:\na. To obtain a comprehensive set of telecommunications services\nb. To obtain telecommunications services through two prime service contractors responsible for providing all services and network management\nc. To accurately forecast telecommunications costs over a 10-year contract period\ne. To adopt an architecture that will provide a smooth transition to an Integrated Services Digital Network (ISDN) environment when it becomes economically attractive\nf. To encourage competition between the two FTS2000 services contractors as a means of ensuring continued improvements in FTS2000 services and prices Some specific requirements to meet\nthese objectives are described below.\nC.l.3.1 Telecommunications Services. The government intends to procure the following six telecommunications services: switched voice service, switched data service, switched digital integrated service, packet switched service, video transmission service, and dedicated transmission service. This solicitation describes these services, as well as specific features of these services that the government is likely to procure. It is the government’s intent that these services conform as closely as possible with those offered commercially.\nGSA Request for Proposals number KET-JW-87-02 ¶ C.1.3-C.1.3.1 (RFP); see also Wiltel, 1992 BPD ¶ 201 at 3. This case features one of the six services mentioned above, namely dedicated transmission services.\nThe RFP’s next paragraph defines “dedicated transmission service”:\nC.2.1.1 Services, the contractor shall provide the following services:\nf. Dedicated transmission service for point-to-point private line transmission of voice and data.\nRFP at ¶ C.2.1.1.\nDedicated transmission service receives detailed treatment later in the FTS2000 RFP: “Dedicated transmission service includes analog, digital, and T1 transmission service.” RFP at ¶ C.2.7. “Analog” includes “(i) voice and analog data at rates up to 4.8 kbps, and (ii) voice and analog data at 9.6 kbps between two FTS2000 service delivery points.” RFP at ¶ C.2.7.1. “Digital” includes digital data transmission at 9.6 kbps and at 56 kbps/64 kbps. RFP at ¶ C.2.7.2. T1 is digital data transmission at a rate of 1.544 Mbps. Wiltel at 3, n. 1.; see RFP at ¶ C.2.7.3. The three separate types of dedicated transmission service in the RFP differ primarily in their transmission rates.\nThe RFP encourages offerors to propose additional features:\nL.37.4.4 Additional Features!Items. The offeror is encouraged to offer additional features and items not identified in the price schedules provided in the RFP, but which the offeror normally supplies to its other customers....\nCertain general rales apply to what features/items may be offered, as listed below:\nd. They shall be items that can be included under the general scope of this solicitation.\nRFP ¶ L.37.4.4.\nThe RFP also incorporates by reference a standard changes clause and a “Service Improvements” clause:\nH.16 Service Improvements\na. After contract award, the Government may solicit, and the Contractor is encouraged to propose independently, improvements to the services, features, or other requirements of the contract. These improvements may be proposed to save money, to improve performance, or for any other purpose which presents a service advantage to the Government. ... Those proposed service improvements that are acceptable to the government will be processed as modifications to the contract.\ne. If a proposal submitted pursuant to this clause is accepted and applied to this contract, the equitable adjustment increasing or decreasing the contract price shall be in accordance with the procedures of the “Changes” clause. The resulting contract modification will state that it is made pursuant to this clause.\nRFP ¶ H.16.\nThe RFP requires the contractor to present “an annual service plan for approval by the service oversight center.” RFP at ¶ C.3.2.10. The plan must assess “areas of growth requiring new access arrangements, the opening of new locations ... forecasting of new telecommunications applications and services, and the like.” Id.\nCongress required GSA to award the FTS2000 contract to two providers in a 60%-40% division. Wiltel, 1992 BPD ¶ 201 at 2. After four and seven years of contract performance, the FTS2000 contract permits the two providers to compete for a larger share of the services. See RFP HH.14. Three companies submitted bids on the FTS2000 RFP — AT & T, Sprint, and Martin Marietta (with whom MCI participated as a subcontractor). In late 1988, GSA awarded the contracts to AT & T and Sprint, with the 60% share to AT & T. Id. at 4-5.\nThe contract awarded to AT & T had a guaranteed value of 270 million dollars over the first four years. Id. at 5. The contract price depends principally on the volume of use by the government. The stated maximum value of the AT & T contract is 15 billion dollars. The current estimated total value of the AT & T contract is 5 to 8 billion dollars. Id. at 10.\nOn March 4, 1992, AT & T submitted a proposal under the Service Improvements clause of the FTS2000 contract. AT & T proposed to modify the contract by adding “T3” circuits as a fourth type of dedicated transmission service. T3 circuits provide digital data transmission at 44.736 Mbps, a rate 28 times faster than Tl, the fastest pre-modification dedicated transmission service circuit. GSA evaluated the proposal and determined that federal agencies needed T3 service. GSA also concluded that the proposal was within the scope of the FTS2000 contract.\nOn March 31, 1992, GSA and AT & T entered into Modification PS95, a “bilateral modification to incorporate an enhancement feature to the Dedicated Transmission Service.” See Wiltel, 1992 BPD ¶ 201 at 9-10. The modification provides for procurement of twenty-one T3 circuits joining pairs of locations from among a set of thirty. Id. at 19. The total value of the modification is approximately 100 million dollars. See id. at 10.\nDISCUSSION\nStandard of Review\n. This court upholds the Board’s decision on a question of fact “unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence.” 41 U.S.C. § 609(b) (1988). This court reviews the Board’s legal conclusions de novo. Id.\nModification\nThe Competition in Contracting Act (CICA) requires executive agencies, when procuring property or services, to “obtain full and open competition through the use of competitive procedures.” 41 U.S.C. § 253(a)(1)(A) (1988). CICA, however, does not prevent modification of a contract by requiring a new bid procedure for every change. Rather only modifications outside the scope of the original competed contract fall under the statutory competition requirement. CICA sets forth no standard for determining when modification of an existing contract requires a new competition or falls within the scope of the original competitive procurement.\nThis court’s predecessor, the Court of Claims, set forth a standard for determining whether a contract modification is within the scope of the underlying contract:\nUnder established case law, a cardinal change is a breach. It occurs when the government effects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for. By definition, then a cardinal change is so profound that it is not redressable under the contract, and thus renders the government in breach.\nAllied Materials & Equip. Co. v. United States, 569 F.2d 562, 563-64, 215 Ct.Cl. 406 (1978); see also Air-A-Plane Corp. v. United States, 408 F.2d 1030, 1032-33, 187 Ct.Cl. 269 (1969). The question presented in this case is slightly different from the cases which produced this cardinal change doctrine.\nThis ease does not ask whether Government modifications breached a contract, but asks instead whether Government modifications changed the contract enough to circumvent the statutory requirement of competition. The cardinal change doctrine asks whether a modification exceeds the scope of the contract’s changes clause; this ease asks whether the modification is within the scope of the competition conducted to achieve the original contract. In application, these questions overlap. See American Air Filter Co., 57 Comp.Gen. 567, 572-73 (1978) (affirming on reconsideration 57 Comp.Gen. 285 (1978)). A modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause. Id. at 573.\nIn determining whether a modification falls within CICA’s competition requirement, this court examines whether the contract as modified materially departs from the scope of the original procurement. See Neil R. Gross & Co., B-237434, 90-1 CPD ¶ 212 at 2-3 (Feb. 23, 1990), aff'd on reconsideration, B-237434.2, 90-1 CPD ¶ 491 (May 22, 1990) (“[W]e look to whether there is a material difference between the modified contract and the prime contract that was originally competed.”); American Air Filter, 57 Comp.Gen. at 286 (The test is “whether a changed contract is materially different from the competed contract.”). The analysis thus focuses on the scope of the entire original procurement in comparison to the scope of the contract as modified. Thus a broad original competition may validate a broader range of later modifications without further bid procedures.\nScope of the FTS2000 Contract\nThe FTS2000 contract encompasses “a comprehensive set of telecommunications services” for the entire Federal Government. See RFP ¶0.1.3. By its terms, FTS2000 covers a broad range of telecommunications services. The contract also has the objective of “accurately forecasting] telecommunications costs over a 10-year contract period.” Id. With services extending over this lengthy period, potential bidders on the FTS2000 certainly contemplated extensive modifications to meet changing needs of the entire Federal Government. In sum, this contract’s breadth suggests that a broad range of modifications would fall within the scope of its changes clause.\nThe FTS2000 contract also explicitly includes a Service Improvements Clause. This clause expressly encourages contractors “to propose independently improvements to the services, features, or other requirements of the contract.” RFP ¶11.16. FTS2000 explains that improvements acceptable to the Government “will be processed as modifications to the contract.” Id. Indeed the contract requires contractors to draft an annual service plan. This annual plan provides a mechanism for contractors to suggest new access arrangements, new telecommunications services, and other alterations to meet the Government’s needs over this lengthy service contract. RFP ¶ 3.2.10.\nThe FTS2000 contract also expressly mentions transition to more advanced technology as it becomes available commercially. See, e.g., RFP ¶ L.37.4.4. Indeed the contract states that services under the contract should “conform as closely as possible with those offered commercially.” RFP ¶ C.1.3.1. Thus, potential bidders had full notice that the FTS2000 contract would require extensive alterations to meet the Government’s changing needs and the changing technology of telecommunications.\nThe T3 technology fits within the work obligations undertaken by the FTS2000 contractors. The contractors promised to provide “dedicated transmission service.” According to the contract, this service includes analog, digital, and Tl transmission service. These three types of service differ primarily in their transmission rates. Tl is faster than digital which is faster than analog.\nT3 is the next generation of dedicated transmission service. T3 conveys the same voice or data information as the other forms of dedicated transmission service, but at a higher rate of speed. The higher capacity T3 circuits convey information twenty-eight times faster than the Tl technology. In the interim between the original procurement and the modification, TB became commercially available on a wide-scale. In light of the contractor’s obligations to propose improvements to keep the Government’s telecommunications technology in step with technology advances, T3 falls within the scope of the FTS2000 contract.\nThe Board erred in its reading of RFP ¶ H.16, the Service Improvements clause. The Board concluded that this clause did not authorize the addition of T3 to the contract because T3 was not an “improvement to the services, features, or other requirements of the contract.” The Board limited the clause to improvements in the existing services, namely the analog, digital and Tl services. This erroneous interpretation overlooks the contractor’s obligation to improve Dedicated Transmission Service as a whole. The RFP lists Dedicated Transmission Service as one important service under the contract. The term Dedicated Transmission Service is not merely a heading of the contract. The contract specifically defines the term as “point-to-point private line transmission of voice and data.”\nThe Board erred in assuming that the term “service” has one and the same meaning in various contexts. To the contrary, the FTS2000 contract uses “service” in many distinct ways. For instance, a comprehensive “service” can include more than one component “service”: “Dedicated transmission service includes analog, digital and T1 transmission service_” RFP ¶ C.2.7 (emphasis added). The FTS2000 contract refers to the entire performance of the contract as well as parts thereof as a “service.”\nMoreover the Service Improvement clause includes sweeping language to ensure the Government obtains any service advantage: “These improvements may be proposed to save money, to improve performance, or for any other purpose which presents a service advantage to the Government.” RFP ¶ H.16. The clause expressly notes that acceptable improvements “will be processed as modifications.” Id. Because the FTS2000 contract itself defines Dedicated Transmission Service as a “service,” this court concludes that improvements in that service fall within the Service Improvements clause.\nBidders’ Expectations\nAn important factor in determining the scope of the original competition is “whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred, or whether the modification is of a nature which potential offerors would reasonably have anticipated.” Neil R. Gross & Co., 90-1 CPD ¶212 at 3 (1990) (citation omitted). The FTS2000 contract highlights the Government’s desire to procure state-of-the-art comprehensive telecommunications services from two prime contractors. In particular, the breadth of the stated objectives, the meaning of the Service Improvements clause, the express language about commercially available technology, and the requirement for an annual forecast of new technologies would suggest to potential offerors that the next generation of Dedicated Transmission Service would reasonably fall within the scope of the contract.\nOther Board cases support the conclusion that potential bidders would have interpreted the scope of the FTS2000 contract to include this modification. In MCI Telecommunications Corp., GSBCA No. 11963-P, 1992 BPD ¶ 287, 1992 WL 292853 (MCI II), MCI protested a modification to the AT & T FTS2000 contract. The modification added multipoint service to the contract’s dedicated transmission service. The contract defined dedicated transmission service as point-to-point transmission of voice and data. Multipoint service connects more than two points at the same time. In finding the modification within the scope of the contract, the Board determined:\nThe record ... establishes beyond doubt that all of the offerors for the FTS2000 contract, and the Government, believed that the successful vendors would provide virtually all commercially available intercity telecommunications services to the user agencies, and that the losing vendor would be essentially shut out of that business for a ten-year period.\nMCI II, 1992 BPD ¶ 287 at 14. Although the Board noted that it “need not decide ... whether all of those grand expectations were reasonable,” id., the Board found that the expectation that multipoint would have been within the scope of the contract was clearly reasonable. Likewise, this court concludes that the offerors at the time of the competition would reasonably have believed T3 to be within the scope of the contract.\nThe Board gave undue emphasis to GSA’s purported “rejection” of offers to include T3 in the original procurement. The Board’s own findings disclose that “GSA did not accept, or even evaluate, any of [the] additional features or items, like T3, that offerors proposed.” Wiltel at 5. GSA’s non-acceptance and refusal to consider T3 was not a rejection, nor the type of disapproval which would have led a reasonable bidder at the time to conclude that the non-accepted proposals were outside the scope of the contract and its changes clause.\nConclusion\nIn sum, the Board erred by focusing on the differences between TI and T3, rather than on the modification in the context of the contract as a whole. The Board also failed to properly evaluate the reasonable expectations of offerors at the time of the competition. Based on the Board’s findings and on its own review of the record, this court concludes as a matter of law that the modification at issue is within the scope of the FTS2000 contract. This court thus reverses and remands with directions to dismiss the protest.\nCosts\nEach party to bear its own costs.\nREVERSED.\n. Congress did not intend to prevent contract modification. Other statutes specifically recognize that federal procurement contracts may be modified. See 41 U.S.C. § 423(e)(1) & (2) (Supp. Ill 1991) (providing that certain certifications must be made by the contractor and the contracting officer before an agency may award a contract or agree to a modification or extension of a contract).\n. Other Board decisions construing the scope of the FTS2000 contract support this reading of the contract. In MCI Telecommunications Corp., GSBCA No. 10450-P, 1990 BPD ¶ 55, 1990 WL 18930 (MCI I), MCI protested a modification of U.S. Sprint's FTS2000 contract. The modification enhanced the contract's switched voice service. The Board denied the protest, concluding that “the contract as contemplated and awarded was intended to permit the Government to obtain enhanced capabilities such as those provided under the contract modification.” The Board characterized the FTS2000 contract as \"a contract which ... permitfs] the Government to obtain services under the contract as they become available.” MCI I, 1990 BPD ¶ 55 at 14.\n. Similarly the Board erred by focusing only on the differences between T3 and Tl. The \"service\" at issue is the entire service under the contract. The Board should have compared the service performed by AT & T under the contract before the modification with the service to be performed under the contract after the modification. Before the modification, viewed from the perspective of the contract as a whole, AT & T was providing \"comprehensive telecommunications services\" to federal agencies. A modification adding a more advanced speed of dedicated transmission service does not substantially affect the type of service AT & T performs under the contract as a whole.\nThe Board also erred in comparing \"only the incremental difference in cost between providing a Tl and a T3 line.” Wiltel at 15. Because the proper comparison is between the competed contract and the contract as modified, the pricing of the \"service” refers to the pricing of the contract's entire service.", "type": "majority", "author": "RADER, Circuit Judge."}], "attorneys": ["C. Stanley Dees, McKenna & Cuneo, Washington, DC, argued, for appellants, AT & T Communications, Inc. With him on the brief was Thomas C. Papson. Of counsel was G. Ridgley Loux. Kirk T. Manhardt, Attorney, Commercial Litigation Branch, Dept, of Justice, of Washington, DC, argued for appellants, Richard G. Austin, Adm’r Gen. Services Admin. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief was Seth Binstock, General Services Admin.", "David W. Burgett, Hogan & Hartson, Washington, DC, argued, for WilTel, Inc. With him on the brief was Jonathan S. Fran-lin. Also on the brief was Patricia E. Martin, WilTel, Inc., Tulsa, OK.", "Robert H. Koehler, Patton, Boggs & Blow, Washington, DC, argued, for intervenors, MCI Telecommunications Corp. With him on the brief were Mary E. Bosco and Michael J. Schaengold. Also on the brief was Robin L. Redfield, Corporate Counsel, MCI Telecommunications Corp., Washington, DC. Of counsel was Douglas R. Duberstein, Hogan & Hartson."], "corrections": "", "head_matter": "AT & T COMMUNICATIONS, INC., and Richard G. Austin, Administrator General Services Administration, Appellants, v. WILTEL, INC., and MCI Telecommunications Corporation, Intervenors.\n92-1474, 93-1090.\nUnited States Court of Appeals, Federal Circuit.\nJuly 30, 1993.\nRehearing Denied; Suggestions for Rehearing In Banc Declined Oct. 5, 1993.\nC. Stanley Dees, McKenna & Cuneo, Washington, DC, argued, for appellants, AT & T Communications, Inc. With him on the brief was Thomas C. Papson. Of counsel was G. Ridgley Loux. Kirk T. Manhardt, Attorney, Commercial Litigation Branch, Dept, of Justice, of Washington, DC, argued for appellants, Richard G. Austin, Adm’r Gen. Services Admin. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief was Seth Binstock, General Services Admin.\nDavid W. Burgett, Hogan & Hartson, Washington, DC, argued, for WilTel, Inc. With him on the brief was Jonathan S. Fran-lin. Also on the brief was Patricia E. Martin, WilTel, Inc., Tulsa, OK.\nRobert H. Koehler, Patton, Boggs & Blow, Washington, DC, argued, for intervenors, MCI Telecommunications Corp. With him on the brief were Mary E. Bosco and Michael J. Schaengold. Also on the brief was Robin L. Redfield, Corporate Counsel, MCI Telecommunications Corp., Washington, DC. Of counsel was Douglas R. Duberstein, Hogan & Hartson.\nBefore NEWMAN, CLEVENGER, and RADER, Circuit Judges."} | NEWMAN | CLEVENGER | RADER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1201 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,114 | William R. VAGG, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent | Vagg v. Office of Personnel Management | 1993-08-03 | No. 92-3529 | United States Court of Appeals for the Federal Circuit | {"judges": ["Before PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and CLEVENGER, Circuit Judge."], "parties": ["William R. VAGG, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent."], "opinions": [{"text": "SMITH, Senior Circuit Judge.\nWilliam R. Vagg appeals from the 25 June 1992 order of the Merit Systems Protection Board (Board) denying his petition for review of the Board’s initial decision, which affirmed the 10 June 1991 reconsideration decision of the Office of Personnel Management (OPM). The Board held that Vagg’s divorced spouse is entitled to 48.49% of Vagg’s gross civil service retirement annuity computed on the basis of a hypothetical deferred annuity under 5 U.S.C. § 8338, effective on the date of Vagg’s actual retirement on the grounds of disability pursuant to 5 U.S.C. § 8337, and increased by all cost-of-living-adjustments under 5 U.S.C. § 8340. We affirm.\nIssue\nWhether the Board erred in computing, under California state law as interpreted by this court’s prior decision, Levy v. Office of Personnel Management, the apportionment, ordered by a California decree of divorce, of Vagg’s civil service retirement annuity.\nBackground\nWilliam R. Vagg retired under the disability retirement provisions of the Civil Service Retirement System (CSRS), 5 U.S.C. §§ 8331, 8337 (1988 & Supp. I 1989, Supp. II 1990, Supp. III 1991), effective 30 October 1974 after more than 27 years of federal service. He immediately began to receive a disability annuity calculated according to his years of service under 5 U.S.C. § 8339(a) (1988). The amount of Vagg’s disability annuity was increased by periodic cost-of-living-adjustments (COLA’s).\nAt the time of his separation from federal service, Mr. Vagg had not met the eligibility requirements for an immediate non-disability retirement — 30 years of service and age 55. 5 U.S.C. § 8336(a) (1988). Vagg had completed 27 years of service and was 46 years old. If Vagg had resigned from federal service in 1974 rather than retiring on disability, he would not have received any retirement benefits until 1990 when he would have met the minimum requirements for a non-disability deferred retirement annuity — 5 years of service and age 62. 5 U.S.C. § 8338(a) (1988). The amount of a non-disability deferred retirement annuity under section 8338 is not increased by COLA’s in the interim of time between separation from federal service and the future date when the former employee reaches age 62 and begins receiving retirement payments.\nFacts\nVagg and his former spouse, Barbara, residents of California, divorced in 1984. On 11 December 1987, pursuant to the decree of divorce, the Superior Court of California for the County of Nevada issued a judgment which, in part, directed that Vagg’s civil service retirement benefits be subject to a division in accord with the following terms:\n1. Retirement Benefits. Petitioner BARBARA L. VAGG has a vested interest in respondent’s deferred retirement benefits in the civilian federal civil service retirement system by reason of his employment with McClellan Air Force Base said interest having a value of .50 x .9697% [sic] of the monthly entitlement of respondent’s retirement installment benefits commencing March 23, 1990 when respondent achieves age 62.\nThe divorce settlement, in addition to awarding Barbara an interest in Vagg’s civil service benefits, directed Vagg to pay Barbara the sum of $300.00 per month in alimony. The portion of the settlement agreement awarding the alimony is not at issue in this appeal.\nVagg became 62 years of age on 23 March 1990. Barbara Vagg filed a formal application with OPM for apportionment of Vagg’s annuity under 5 U.S.C. § 8345(j) (1988) on 30 April 1990.\nIn its final reconsideration decision of 10 June 1991, OPM concluded that Barbara Vagg was entitled to 48.49% of Vagg’s gross annuity as of 23 March 1990, the day he turned 62 years of age. In calculating the amount of Barbara Vagg’s share of Vagg’s deferred annuity, OPM computed a hypothetical deferred annuity under 5 U.S.C. § 8338. The amount of the hypothetical deferred annuity was identical to the amount of disability retirement that Vagg was actually receiving as of 23 March 1990 because OPM: (1) calculated the base amount for both annuities according to Vagg’s years of service as of the date of Vagg’s actual disability retirement; and (2) included in the computation of the hypothetical deferred annuity all COLA increases actually received by Vagg between 1974, the year he separated from federal service, and 1990, the year he attained age 62. See 5 U.S.C. § 8339(a), (g). OPM reasoned that this result was dictated by California law as applied by this court in Levy v. Office of Personnel Management, 902 F.2d 1550 (Fed.Cir.1990).\nVagg appealed the final reconsideration decision of OPM to the Board. The Board affirmed OPM’s decision by its initial decision of 10 March 1992. By its order of 25 June 1992, the Board denied Vagg’s petition for review of the initial decision because it did not meet the criteria set forth at 5 C.F.R. § 1201.115 (1992).\nDiscussion\nThis court must apply California community property law in deciding whether the Board properly apportioned Vagg’s retirement benefits under the divorce judgment. We must affirm the Board’s action unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 7703(c) (1988). See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 844 (1987); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Further, this court is bound by its prior interpretation of California law in Levy.\nIn Levy, as in this case, the issue on appeal was whether the Board properly apportioned a federal civil service retirement annuity pursuant to a California divorce judgment. The facts in Levy, however, are distinguishable from the facts of the case at hand. In Levy, the husband had retired on disability under section 8337 after only six years of federal service. Levy, 902 F.2d at 1551. The divorce judgment entered by the Orange County Superior Court of the State of California awarded the former wife one-half of Levy’s civil service retirement benefits effective upon Levy’s attaining the age of 62. The Board concluded that Levy’s former spouse was entitled to one-half of the total monthly benefits Levy was receiving as of his 62nd birthday. Id. at 1552.\nThe Federal Circuit reversed and remanded the case to the Board for a recalculation of the amount of retirement benefits that Levy’s former spouse was entitled to pursuant to the California divorce judgment. Id. at 1555. Because Levy’s length of federal service had been relatively short, Levy’s monthly benefits would have been significantly smaller if he had retired under section 8338. The court concluded that “[o]nly the amount attributable to retirement is properly subject to division; the remaining amount is attributable to Levy’s disability, not retirement, and therefore his sole and separate property.” Id. at 1553.\nThe outcome in this case turns on the construction of the last operative sentence in Levy, which states:\n[T]he Board is to enter an order requiring respondent OPM to calculate the amount of regular longevity benefits to which Levy would have been entitled had he retired in 1966 under 5 U.S.C. § 8338 and to pay Mrs. Levy one-half of that amount.\nId. at 1554-55. The Levy decision leaves open the question whether the hypothetical deferred annuity of a disability annuitant that is subject to apportionment is increased by COLA’s between the date that the annuitant is deemed to have retired (the date of the disability retirement) and the date the annuitant attains the age of 62.\nVagg urges an interpretation of the operative sentence in Levy that would not include COLA increases to the hypothetical deferred annuity between 1974, the year he retired on disability, and 1990, the year Vagg reached 62 years of age. According to Vagg’s calculations, his former spouse is entitled to 48.-49% of $665.00. The base of $665.00 is the amount of the deferred annuity Vagg would have received under 5 U.S.C. § 8338 upon reaching age 62 had he resigned from federal service in 1974 rather than retiring on disability. Vagg argues that the COLA increases he received between 1974 and 1990 are attributable solely to his disability annuity, which is his separate property under California law.\nThe government asserts that OPM properly apportioned Vagg’s annuity under California law as interpreted by this court in Levy. Under Levy, the government argues, a civil service annuitant whose disability annuity is exempt from division as marital property under California law until he reaches eligibility for deferred retirement, based on age and service at age 62, is nevertheless deemed to have “retired” on a deferred annuity under section 8338(a) effective on the date of the individual’s actual disability retirement under section 8337. Because Levy directs that an annuitant in such a case must be deemed to have “retired” as a deferred annuitant on the date of his actual disability retirement, the deferred annuity must be deemed to have commenced on the same date.\nThe government further argues, if Vagg’s deferred annuity under section 8338(a) had commenced on the date of his actual disability retirement, that deferred annuity would have been subject to all of the same periodic COLA increases which were applicable to his disability annuity since that date. In the present case, because the commencing rate of Vagg’s hypothetical deferred annuity under section 8338(a) in 1974 would have been identical to the commencing rate of his actual disability annuity, all of Vagg’s current monthly annuity is subject to division under 5 U.S.C. § 8345(j)- According to the government’s calculations, Barbara Vagg is entitled to approximately $931.00 a month, 48.49% of Vagg’s current monthly annuity.\nThe Hypothetical Deferred Annuity\nTo close the gap left open by the last operative sentence in Levy, this court must look to California law. In Levy, we cited with approval a California case with a fact pattern strikingly similar to the facts of the case at hand. In, In re Marriage of Samuels, 96 Cal.App.3d 122, 158 Cal.Rptr. 38 (1979), as in the present case, the retiree spouse was a civilian federal employee who had retired under CSRS, on grounds of disability under section 8337, prior to the age at which he would be entitled to a deferred age- and-service retirement under section 8338. Thus, there was a lapse of time between the date that the retiree’s disability annuity commenced, and the date upon which he would attain age 62, the date of eligibility for a deferred annuity under section 8338.\nThere was a further similarity between the factual circumstances of the present case and the retiree spouse in Samtiels. In each case, the CSRS annuitant spouse had completed more than 21 years and 11 months of creditable federal service at the time of his disability retirement. Therefore, in each case, the disability annuity of the annuitant involved, as computed according to section 8339(a), the general annuity formula under CSRS, exceeded the “minimum annuity” formula, applicable to disability annuities only, in section 8339(g). Thus, had the annuitant in Samuels been 62 years of age on the date of his disability retirement, the commencing rate of a deferred annuity under section 8338(a) would have been identical to the amount of the disability annuity under section 8337 that he actually received.\nIn Samuels, the court first held that the retiree spouse was entitled to receive his entire disability as his separate property until reaching age 62. Samuels, 158 Cal.Rptr. at 42. The court, however, continued:\nBut after John [Samuels] reaches the minimum age (62 years) credited with past service longevity (5 years), the predominant purpose of such payments shifts to retirement support rather than disability compensation resulting from premature retirement [citation omitted]; at that point the true character of the disability benefits commensurate in value to the fully matured retirement benefits based upon completion of five years of service during marriage and salary rank (§ 8339) effectively constitutes community property irrespective of the label affixed to John’s pension benefits, [citation omitted] Since the benefits payable are of like value (i.e., no excess) and are fully attributable to the requisite 5 years employment (and contributions made) during coverture, the total sums received by John after reaching 62 years of age comprise divisible community assets which under the circumstances reflected require no proportionate allocation.\nId. In reaching its conclusions, the court relied on the leading California Supreme Court case, In re Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr. 9, 582 P.2d 96 (1978), which this court thoroughly discussed in the Levy opinion.\nIn order to sustain the position of OPM and the Board in this case, we have to treat Mr. Vagg as actually having “retired” in 1974 when he separated from federal civil service and immediately began receiving benefits in the form of a disability annuity. This construction of “retired” is consistent with federal law. See Horner v. Benedetto, 847 F.2d 814, 818 (Fed.Cir.1988) (an employee is “retired” from federal civil service when he is first eligible to receive an immediate annuity); Schellfeffer v. United States, 170 Ct.Cl. 178, 343 F.2d 936, 941 (1965) (same). Further, this construction is consistent with the holding in Levy. In Levy, this court, interpreting California law, created a constructive right to receive the deferred annuity under section 8338 as of the date the annuitant retired under the disability retirement provision of section 8337.\nThe hypothetical deferred annuity, or constructive right to receive the deferred annuity, is likewise consistent with the holding in Samuels. Despite the fact that the court did not specifically explain its calculations, the only way the amount of the disability annuity under section 8337 that Samuels was receiving at age 62 can be identical to the amount of a hypothetical deferred annuity under section 8338 is if all COLA increases received by Samuels from the date he retired on disability until he reached the age of 62 are included in the equation.\nIn terms of dollars, this results in an allotment of $931.00 (48.49% of $1,992.00) to Barbara and $1,061.00 (51.51%) to Vagg. This appears appropriate in accordance with the division ordered by the divorce court based on her “contribution” to the development of the pension asset in accordance with California law. However, we are constrained to note that the operative consideration is a presumption by the California courts that in all cases, the purpose of “disability” automatically changes to a purpose of “retirement” on the attainment of an arbitrarily selected statutory date. In Vagg’s case, the pension is immediately no longer attributable to his continued disability, even though the record does not disclose a termination of his disability in fact. Barbara’s need for alimony is not subject to any such legal fiction. Although this record does not and need not disclose her needs, we do not know whether the alimony payment comes also out of the pension. That is a clear possibility in light of Vagg’s continued disability.of some 16 years. If so, it would appear on the bare facts to be inequitable that a disabled retiree would have his pension suddenly change from “disability” to “retirement” with a resultant radical decrease in income with no decrease in his needs, and that his divorced former spouse would begin receiving $1,231.00 (62%) and he $691.00 (38%), which does not appear to be in accordance with the percentages contemplated by the California divorce court or with the equitable resuits presumably contemplated by the California property laws.\nHowever, it is not a proper function for this court to make determinations of allocations for the state divorce courts, and we do not pretend to do so.\nOPM’s Interpretation of its own Regulations\nWe are not persuaded by Vagg’s arguments that OPM’s regulations, 5 C.F.R. §§ 831.1711(a)(3), -.1717 (1990), preclude inclusion of COLA increases to Vagg’s annuity between the date of his disability in 1974 and the date he reached age 62 in 1990 in the amount of annuity subject to apportionment. The Board’s deference to OPM’s interpretation of its own regulations was correct. An agency’s interpretation of its own regulation is controlling “unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); accord United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977).\nNeither 5 C.F.R. § 831.1711(a)(3) nor 5 C.F.R. § 831.1717 is plainly inconsistent with OPM’s decision in the present case to include all past COLA increases in calculating the amount of Yagg’s annuity subject to apportionment. First, section 831.1711(a)(3) provides that no monthly payments of annuity paid to an annuitant by OPM prior to the date on which an order or decree dividing the annuity is received by OPM can be made retroactively subject to apportionment. Thus, section 831.1711(a)(3) has no bearing upon computation of the apportionment of the monthly payments, but rather only upon when the division of the monthly annuity must commence.\nSecond, section 831.1717 provides that the amount of an annuity payable to a former spouse will periodically increase after the first apportionment unless the divorce judgment provides that no future COLA increases apply. However, the provisions of section 831.1717 do not preclude the inclusion of past COLA increases in computing the initial apportionment.\nConclusion\nWe conclude that the Board decision awarding Barbara Vagg 48.49% of William Vagg’s current monthly benefits is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. We reach this conclusion out of respect for California property law and formality of the term “retired” as construed by federal law. The Board properly concluded that the amount of Vagg’s retirement annuity subject to apportionment under a California divorce judgment includes all cost-of-living-adjustment increases to his disability annuity he received between 1974, the date Vagg retired on disability under 5 U.S.C. § 8337, and 1990, the year he reached age 62 and met the eligibility requirements for a deferred age-and-service annuity under 5 U.S.C. § 8338. The decision of the Merit Systems Protection Board is affirmed.\nAFFIRMED\n. Vagg v. Office of Personnel Management, 54 M.S.P.R. 250 (MSPB 1992).\n. Vagg v. Office of Personnel Management, No. SF0831920235-I-1 (MSPB Mar. 10, 1992).\n. 902 F.2d 1550 (Fed.Cir.1990).\n. 5 U.S.C. § 8337 (1988 & Supp. I 1989, Supp. II 1990, Supp. Ill 1991) provides in relevant part: \"(a) An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee’s own application or on application by the employee's agency.”\n. Under 5 U.S.C. § 8339(g) (1988 & Supp. I 1989, Supp. II 1990, Supp. Ill 1991), a disability annuitant is entitled to an annuity of at least 40% of his highest average pay for 3 years. Vagg, however, had sufficient service (more than 21 years 11 months) so that his annuity was calculated under section 8339(a) according to his years of service without regard for the 40% minimum.\n. 5 U.S.C. § 8336(a) (1988) provides: \"An employee who is separated from the service after becoming 55 years of age and completing 30 years of service is entitled to an annuity.”\n. 5 U.S.C. § 8338(a) (1988) provides in relevant part: \"An employee who is separated from the service ... after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years.”\n. The Superior Court’s judgment shows the word \"deferred,” handwritten, inserted above the typewritten word \"service,” which is stricken out.\n. OPM's initial decision of 27 August 1990 apportioned to Barbara Vagg 48.49% of $665.00— the amount that Vagg’s deferred annuity would have been had he not retired on disability, but rather a deferred annuity payable to Vagg upon reaching age 62. This figure did not include any COLA increases. Upon Barbara Vagg’s timely request for reconsideration, OPM issued a new initial decision on 12 April 1991 changing Barbara Vagg’s apportionment from $339.00 (48.-49% of $665.00) to $931.00 (48.49% of Vagg’s gross annuity as of 1 April 1990). OPM reasoned that since Vagg had served for over 27 years, his disability annuity should be computed on the basis of actual years of service under 5 U.S.C. § 8339(a) rather than the 40% minimum formula under section 8339(g). Therefore, in Vagg’s case, the commencing rate of a hypothetical deferred annuity under section 8338(a), effective on the date of Vagg’s disability retirement, would have been identical to the commencing rate of his actual disability annuity, had Vagg been entitled to receive a deferred annuity prior to age 62. Vagg requested reconsideration of OPM’s new initial decision.\n. Levy's disability annuity was calculated on the basis of the \"minimum annuity\" formula applicable to disability retirements after relatively brief service, 5 U.S.C. § 8339(g), rather than the general annuity formula, 5 U.S.C. § 8339(a), which would apply to the computation of a disability annuity if the annuitant had completed more than 21 years and 11 months of service at the time of his retirement. Thus, Levy's actual commencing disability annuity was considerably larger than a hypothetical deferred annuity commencing on the same date would have been.\n. A second California case cited in Levy, In re Marriage of Pace, 132 Cal.App.3d 548, 183 Cal.Rptr. 314 (1982), also involves the situation of a former federal civil service employee retiring on disability under section 8337 before his rights to an immediate age-and-service annuity under section 8336 had vested. Like the annuitants in the case at hand and in Samuels, the amount of Mr. Pace's disability retirement annuity was equal to the amount of a hypothetical deferred annuity under section 8338. Because of his long years of service, the disability annuity had been calculated according to years of service under section 8339(a). Citing Stenquist and Samuels, the court held: \"Until he reaches [age 62], his benefits compensate him for his injury and are his separate property; at age 62, the benefits serve as retirement support and are divisible community property.” Pace, 183 Cal.Rptr. at 317. The court concluded that Mr. Pace's former spouse was entitled to seven-fifteenths (as directed by the divorce judgment) of the total amount of monthly benefits Pace was receiving as of the date he attained age 62. Id. at 318.\n. 5 C.F.R. § 831.1711(a)(3) provides:\nBenefits payable to a former spouse from a retiree's annuity begin to accrue no earlier than the beginning of the month after receipt of a qualifying court order and the documentation required by § 831.1705, and terminate no later than the last day of the month before the death of the retiree.\n. 5 C.F.R. § 831.1717 provides:\nIn cases where the court order apportions a percentage of the employee retirement benefit, the Associate Director will initially determine the amount of proper payment. That amount will be increased by future cost-of-living increases unless the court directs otherwise.", "type": "majority", "author": "SMITH, Senior Circuit Judge."}], "attorneys": ["Douglas B. Cone, Merced, CA, argued for petitioner.", "Edmund W. Chapman, Atty., Commercial Litigation Branch, Dept, of Justice, Washington, DC, argued for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Franklin E. White, Jr., Dept, of Justice, represented respondent. Also on the brief were Arthur Troilo, III, Gen. Counsel and Earl A. Sanders, Atty., Office of Gen. Counsel, Office of Personnel Management, of counsel."], "corrections": "", "head_matter": "William R. VAGG, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.\nNo. 92-3529.\nUnited States Court of Appeals, Federal Circuit.\nAug. 3, 1993.\nDouglas B. Cone, Merced, CA, argued for petitioner.\nEdmund W. Chapman, Atty., Commercial Litigation Branch, Dept, of Justice, Washington, DC, argued for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Franklin E. White, Jr., Dept, of Justice, represented respondent. Also on the brief were Arthur Troilo, III, Gen. Counsel and Earl A. Sanders, Atty., Office of Gen. Counsel, Office of Personnel Management, of counsel.\nBefore PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and CLEVENGER, Circuit Judge."} | PLAGER | SMITH | CLEVENGER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1208 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,136 | BIC LEISURE PRODUCTS, INC., Plaintiff-Appellant, and Windglider Fred Ostermann, GmbH, Plaintiff, v. WINDSURFING INTERNATIONAL, INC., Defendant/Cross-Appellant, and James R. Drake, Defendant | BIC Leisure Products, Inc. v. Windsurfing International, Inc. | 1993-08-04 | Nos. 92-1106, 92-1107 | United States Court of Appeals for the Federal Circuit | {"judges": ["Before NIES, Chief Judge, SMITH, Senior Circuit Judge, and RADER, Circuit Judge."], "parties": ["BIC LEISURE PRODUCTS, INC., Plaintiff-Appellant, and Windglider Fred Ostermann, GmbH, Plaintiff, v. WINDSURFING INTERNATIONAL, INC., Defendant/Cross-Appellant, and James R. Drake, Defendant."], "opinions": [{"text": "RADER, Circuit Judge.\nThe United States District Court for the Southern District of New York awarded Windsurfing International, Inc. lost profits for BIC Leisure Products, Inc.’s infringement of U.S. Reissue Patent No. 3L167. BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 761 F.Supp. 1032, 19 USPQ2d 1922 (S.D.N.Y.1991) (BIC I). The court refused to award lost profits for alleged price erosion. Id. The district court also refused to award Windsurfing enhanced damages and attorney fees. Windsurfing Int’l, Inc. v. Fred Ostermann GmbH, 668 F.Supp. 812, 4 USPQ2d 1429 (S.D.N.Y.1987). Finally, the court granted BIC “absolute” intervening rights. BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 774 F.Supp. 832, 21 USPQ2d 1548 (S.D.N.Y.1991) (BIC II).\nAssuming BIC had not been in the market, Windsurfing did not show that BIC’s customers would have purchased sailboards from Windsurfing and other manufacturers in proportion to their market shares. Therefore, this court reverses the award of lost profits based upon Windsurfing’s market share. Otherwise, this court affirms.\nBackground\nBIC infringed Windsurfing’s Reissue Patent No. 31,167, which covers sailboards. Windsurfing seeks damages from BIC for the period from March 8, 1983 (the reissue date of Windsurfing’s patent) to September 30, 1985 (the date the district court enjoined BIC from further infringement).\nWindsurfing primarily manufactured and marketed sailboards embodying its patented invention for the “One-Design Class.” The One-Design Class refers to a uniform competition class as defined by a sailboarding association. A sailboarding association sponsors regattas in which sailboarders compete against each other on boards of uniform weight and shape. Most of Windsurfing’s sailboards fit within the weight and shape requirements for the One-Design competition class.\nOne-Design sailboards lost favor with most sailboarders, however, with the advent of faster, more maneuverable, and more versatile “funboards” and “wave boards.” These newer boards had a lighter hull design. Despite the rising popularity of these newer boards in the early 1980s, Windsurfing decided to continue to concentrate on its One-Design boards.\nWindsurfing licensed its patented technology extensively. Windsurfing licensed at least twelve companies in Europe. At least one of the European licensees granted sublicenses to other European manufacturers. Windsurfing also granted licenses in the United States. Eventually, Windsurfing licensed twelve companies in the United States. With few exceptions, Windsurfing charged 7.5% of net sales for the U.S. licenses. All of the U.S. licensees, as well as some of the European licensees, competed against Windsurfing in the United States.\nWindsurfing manufactured its boards using a rotomolding process. During the early 1980s, many of Windsurfing’s competitors reduced their production costs with a new blowmolding process. Instead of switching to the more efficient blowmolding process, Windsurfing invested one million dollars in an unsuccessful attempt to improve its roto-molding process. Windsurfing controlled 29.2% of the sailboard market in 1983, 25.6% in 1984, and 13.6% in 1985.\nBIC began selling sailboards in 1981. BIC manufactured with the more efficient blow-molding process. BIC did not sell sailboards with the One Design hull form. Rather, BIC’s sailboards differed from Windsurfing’s products. BIC instead sold boards at the lower end of the market’s price spectrum, reflecting its decision to target the entry level segment of the sailboard market.\nIn comparison, Windsurfing priced its sailboards at the upper end of the sailboard price spectrum. During the years covered by the damages period, U.S. sailboard dealers charged the following average prices:\n1983 1984 1985\nMarker 837 Brockhaus 753 Mistral 804\nBrockhaus 753 Mistral 741 Marker 774\nMistral 750 Marker 674 Brockhaus 750\nWindsurfing 670 SAN/Romney 623 SAN 623\nSAN/Romney 643 Windsurfing 589 Schütz 575\nAlpha 574 Schütz 575 Windsurfing 571\nWayler 550 HiFly 527 HiFly 570\nHiFly 518 Wayler 500 Wayler 500\nSAN/Scháeffer 441 Alpha 450 O’Brien 477\nO’Brien 436 O’Brien 412 Alpha 450\nBIC 407 SAN/Schaeffer 388 AMF Inc. 380\nAMF Inc. 377 AMF Inc. 384 BIC 312\nTen Cate 366 BIC 335 Ten Cate 253\nAMF Mares 244 Ten Cate 299 AMF Mares 244\nAMF Mares 234\nThe Patent and Trademark Office reissued Windsurfing’s patent on March 8, 1983. On that date, BIC had 5,245 sailboards in its inventory and another 5,625 on order. BIC confirmed its purchase of the boards on order with a February 10, 1983 telex.\nThe district court applied the Panduit test to determine whether Windsurfing lost profits. BIC I, 761 F.Supp. at 1034. The district court required Windsurfing to show (1) a demand for the patented product, (2) the absence of acceptable noninfringing substitutes, (3) its capacity to exploit the demand, and (4) the profits lost due to the infringement. See Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir.1978). The district court modified the Panduit test by presuming that Windsurfing would have captured a share of BIC’s sales in proportion to Windsurfing’s share of the sailboard market. BIC I, 761 F.Supp. at 1035-37. Relying on State Industries, Inc. v. Mor-Flo Industries, Inc., 883 F.2d 1573, 12 USPQ2d 1026 (Fed.Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 725, 107 L.Ed.2d 744 (1990), the district court awarded Windsurfing lost profits based upon its pro rata percentage of BIC’s sales for each year of the damages period. BIC I, 761 F.Supp. at 1035-37, 1039. In addition, the district court awarded Windsurfing lost royalties for the boards its licensees would have sold absent BIC’s infringement. Id., 761 F.Supp. at 1040. The court calculated the amount of lost royalties based upon a weighted average price of the boards sold by the licensees. Id.\nThe district court permitted BIC to raise a defense of absolute intervening rights at the damages phase of trial. The district court granted BIC intervening rights on its sale of 10,870 boards after the reissue of Windsurfing’s patent. BIC II, 774 F.Supp. at 837.\nDiscussion\nLost Profits\nSection 284 of title 35 provides:\nUpon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer.\nThe finding of the amount of damages for patent infringement is a question of fact on which the patent owner bears the burden of proof. SmithKline Diagnostics, Inc. v. Helena Laboratories Corp., 926 F.2d 1161, 1164, 17 USPQ2d 1922, 1925 (Fed.Cir.1991). Where the district court fixes the amount of damages, this court reviews that finding under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a). Id.\nTo recover lost profits as opposed to royalties, a patent owner must prove a causal relation between the infringement and its loss of profits. The patent owner must show that “but for” the infringement, it would have made the infringer’s sales. Water Technologies Corp. v. Calco Ltd., 850 F.2d 660, 671, 7 USPQ2d 1097, 1106 (Fed.Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 498, 102 L.Ed.2d 534 (1988). An award of lost profits may not be speculative. Rather the patent owner must show a reasonable probability that, absent the infringement, it would have made the infringer’s sales. Id., 850 F.2d at 671.\nThe district court clearly erred by failing to apply the “but for” test before awarding lost profits. The record in this case does not evince a reasonable probability that Windsurfing would have made its pro rata share of BIC’s sales had BIC not been in the market. During the period in question, at least fourteen competitors vied for sales in the sailboard market with prices ranging from $234 to $837. BIC’s boards sold for $312 to $407; Windsurfing’s boards sold for $571 to $670 — a difference of over $250 or about 60-80% above BIC’s selling range. Because Windsurfing concentrated on the One Design class hull form and BIC did not, Windsurfing’s boards differed fundamentally from BIC’s boards.\nThe record contains uncontradicted evidence that demand for sailboards is relatively elastic. The record further contains uncon-tradicted evidence that the sailboard market’s entry level, in which BIC competed, is particularly sensitive to price disparity. By purchasing BIC sailboards, BIC’s customers demonstrated a preference for sailboards priced around $350, rather than One-Design boards priced around $600. Therefore, without BIC in the market, BIC’s customers would have likely sought boards in the same price range.\nSeveral manufacturers offered sailboards at prices much closer to BIC than to Windsurfing. At least two of Windsurfing’s licensees, O’Brien and HiFly, sold boards resembling BIC’s in the same distribution channels as BIC. On this record, Windsurfing did not show with reasonable probability that BIC’s customers would have purchased from Windsurfing in proportion with Windsurfing’s market share. The record shows rather that the vast majority of BIC’s customers would have purchased boards from O’Brien or HiFly if BIC’s boards had not been available. The district court erred in assuming that, without BIC in the market, its customers would have redistributed their purchases among all the remaining sailboards, including Windsurfing’s One Design boards at a price $200 to $300 more than BIC’s. See Water Technologies, 850 F.2d at 673 (district court erred in awarding lost profits when patent owner’s product differed significantly from and cost significantly more than infringer’s product); cf. Dobson v. Dornan, 118 U.S. 10, 17-18, 6 S.Ct. 946, 949-950, 30 L.Ed. 63 (1886).\nMoreover, Windsurfing’s sales continued to decline after the district court enjoined BIC’s infringement. This aspect of the record shows as well that Windsurfing did not capture its market share of the sales replacing BIC’s market sales. According to the record, the principal beneficiary of BIC’s exit appears to be O’Brien.\nThe district court applied the Panduit test for lost profits. Properly applied, the Pan-duit test is an acceptable, though not an exclusive, test for determining “but for” causation. State Indus., 883 F.2d at 1577. The Panduit test, however, operates under an inherent assumption, not appropriate in this case, that the patent owner and the infringer sell products sufficiently similar to compete against each other in the same market segment. If the patentee’s and the infringer’s products are not substitutes in a competitive market, Panduit’s first two factors do not meet the “but for” test — a prerequisite for lost profits.\nThe first Panduit factor — demand for the patented product — presupposes that demand for the infringer’s and patent owner’s products is interchangeable. Under this assumption, evidence of sales of the infringing product may suffice to show Panduit’s first factor, “demand for the patented product.” E.g., Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 552, 222 USPQ 4, 6 (Fed.Cir.1984). This analysis assumes that the patent owner and the infringer sell substantially the same product. In Gyromat, for instance, the patent owner’s and the infringer’s products were similar in price and product characteristics. Gyromat, 735 F.2d at 550-51, 553-54. If the products are not sufficiently similar to compete in the same market for the same customers, the infringer’s customers would not necessarily transfer their demand to the patent owner’s product in the absence of the infringer’s product. In such circumstances, as in this case, the first Panduit factor does not operate to satisfy the elemental “but for” test.\nSimilarly, the second Panduit factor — absence of acceptable, noninfringing alternatives — presupposes that the patentee and the infringer sell substantially similar products in the same market. To be acceptable to the infringer’s customers in an elastic market, the alleged alternative “must not have a disparately higher price than or possess characteristics significantly different from the patented product.” Kaufman Co. v. Lantech, Inc., 926 F.2d 1136, 1142, 17 USPQ2d 1828, 1832 (Fed.Cir.1991) (citing Gyromat, 735 F.2d at 553). In Kaufman, for instance, the patent owner and the infringer sold substantially the same product. Kaufman, 926 F.2d at 1143. Thus Panduit’s second factor, properly applied, ensures that any proffered alternative competes in the same market for the same customers as the infringer’s product. See Yarway Corp. v. Eur-Gontrol USA, Inc., 775 F.2d 268, 276, 227 USPQ 352, 357 (Fed.Cir.1985) (alternative products did not possess features of the patent owner’s and the infringer’s products, nor compete in the same “ ‘special niche’ or mini-market”).\nThis court has held that a patent owner may satisfy the second Panduit element by substituting proof of its market share for proof of the absence of acceptable substitutes. State Indus., 883 F.2d at 1578. This market share approach allows a patentee to recover lost profits, despite the presence of acceptable, noninfringing substitutes, because it nevertheless can prove with reasonable probability sales it would have made “but for” the infringement. Like Panduit’s second prong, however, this market share test also assumes that the patent owner and the infringer compete in the same market. In State Industries, for instance, the patent owner, infringer, and the other manufacturers sold substantially similar products. Id., 883 F.2d at 1576. This similarity of products is necessary in order for market share proof to show correctly satisfaction of Panduit’s second factor.\nThe assumption underlying Panduit, Gy-romat, and State Industries is not appropriate in this case. Instead, the record reveals that during the damages period the sailboard market was not a unitary market in which every competitor sold substantially the same product. Windsurfing and BIC sold different types of sailboards at different prices to different customers. As noted, their sailboards differed significantly in terms of price, product characteristics, and marketing channels. On the facts of this case, Windsurfing did not show “but for” causation under a correct application of Panduit or otherwise. The district court erred in awarding lost profits.\nMoreover, Windsurfing itself set the value of its patent rights by licensing its technology to nearly every company supplying sailboards in the United States without competing itself in most sailboard submarkets. Windsurfing valued its patent in terms of licensing royalties, not in terms of profits it could make by excluding others from the market. See Seymour v. McCormick, 57 U.S. (How.) 480, 490, 14 L.Ed. 1024 (1854). Without evidence to support Windsurfing’s claim to lost profits, this court reverses the district court’s award.\nWith regard to royalties, Windsurfing is entitled to receive lost royalties (on amounts Windsurfing’s licensees would have paid “but for” the infringement) and reasonable royalties (on amounts of any other BIC use, if any, of the patented invention). BIC challenges the methodology of the district court in calculating lost royalties per board, but this court concludes that the chosen methodology was within the court’s discretion. On remand, the trial court may award damages based upon the lost royalties per board calculation.\nPrice Erosion\nThe district court evaluated the documentary and testimonial evidence on price erosion and found it too speculative to support an award of price erosion lost profits. This court finds nothing clearly erroneous in the district court’s finding.\nThe record shows that other market forces, not BIC, forced Windsurfing to lower its prices. The record is replete with evidence that funboards, wave boards, and other designs replaced One Design boards as the sailboard of choice for many practitioners. Besides reducing the demand for One Design boards, consumer choices also caused many companies to discount their stock of One Design boards to make room for the newer boards.\nFurthermore, Windsurfing licensed many competitors who produced boards at less cost. The more efficient blowmolding process allowed Windsurfing’s competitors to cut prices. Windsurfing’s own licensing policies exacerbated this problem. When the European market peaked in the early 1980s, Windsurfing’s European licensees sold their excess inventory in the United States. The influx of European boards increased the supply of sailboards and further reduced prices. In light of these facts, the district court correctly found that Windsurfing failed to meet its burden of proof. Simply put, Windsurfing did not prove that it could have sold its boards at higher prices “but for” BIC’s infringement.\nIntervening Rights\nWindsurfing challenges the district court’s recognition of intervening rights as a limitation on damages because BIC did not litigate this issue during the liability phase of this litigation. The accused infringer may raise the defense of intervening rights only when none of the infringed claims of the reissue patent were present in the original patent. 35 U.S.C. § 252 (1988); Seattle Box Co. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 830, 221 USPQ 568, 576 (Fed.Cir.1984). In this case, none of the reissue claims which BIC infringed were present in Windsurfing’s original patent. Therefore, this prerequisite for invoking intervening rights does not bar BIC from raising the defense. This court next examines the other requirements for an intervening rights defense.\nThe second paragraph of 35 U.S.C. 8 252 limits the scope of a reissue patent:\nNo reissued patent shall abridge or affect the right of any person or his successors in business who made, purchased or used prior to the grant of a reissue anything patented by the reissue patent, to continue the use of, or to sell to others to be used or sold, the specific thing so made, purchased or used, unless the making, using or selling of such thing infringes a valid claim of the reissued patent which was in the original patent. The court before which such matter is in question may provide for the continued manufacture, use or sale of the thing made, pui’chased or used as specified, or for the manufacture, use or sale of which substantial preparation was made before the grant of the reissue, and it may also provide for the continued practice of any process patented by the reissue, practiced, or for the practice of which substantial preparation was made, prior to the grant of the reissue, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced before the grant of the reissue.\nThe second paragraph of section 252 provides for two separate and distinct defenses under the doctrine of intervening rights: “absolute” intervening rights and “equitable” intervening rights. The paragraph consists of two sentences which address two distinct situations and provide two different types of protection. See P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1, 46-47 (1954).\nThe first sentence defines “absolute” intervening rights. This sentence provides an accused infringer with the absolute right to use or sell a product that was made, used, or purchased before the grant of the reissue patent as long as this activity does not in fringe a claim of the reissue patent that was in the original patent. This right is absolute. In the words of the statute, “[n]o reissue patent shall abridge or affect the right of any person.” As long as the use or sale of the accused product does not infringe a claim of the reissue patent that also was in the original patent, the owner of the reissued patent has no recourse under the Patent Act.\nThis absolute right extends only to anything made, purchased, or used before the grant of the reissue patent. In other words, it covers products already made at the time of reissue.\nThe legislative history of section 252 underscores the meaning of the words in the first sentence:\nThe specific things made before the date of reissue, which infringe the new reissue claims, are absolutely free of the reissued patent and may be used or sold after the date of reissue without regard to the patent.\nFederico, Commentary, 35 U.S.C.A. 1, 46; see also Spectronics Corp. v. H.B. Fuller Co., 940 F.2d 631, 637, 19 USPQ2d 1545, 1550 (Fed.Cir.) (quoting Federico), cert. denied, — U.S. -, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991).\nThe second sentence of the second paragraph of section 252 defines “equitable” intervening rights. By its terms, this sentence provides for the court to grant much broader rights than does the first sentence. The second sentence permits the continued manufacture, use, or sale of additional products covered by the reissue patent when the defendant made, purchased, or used identical products, or made substantial preparations to make, use, or sell identical products, before the reissue date.\nThis equitable right is not absolute. The second sentence states: “[tjhe court ... may provide for the continued manufacture, use or sale ... to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced_” 35 U.S.C. § 252 (emphasis added). Thus, under this language, the trial court may, as dictated by the equities, protect investments made before reissue. Again, the legislative history reinforces the meaning of the statutory language. See Federico, Commentary, 35 U.S.C.A. 1, 46-47.\nIn the previous interlocutory appeal, AMF, a defendant which has since settled with Windsurfing, challenged the district court’s liability holding and injunction. It argued that the district court did not consider its defense of intervening rights. This court ruled that AMF had abandoned, during the trial on liability, the defense of intervening rights. This court did not distinguish, however, between equitable and absolute intervening rights. On remand, the district court ruled that AMF had abandoned only the defense of equitable intervening rights by which AMF sought the right to continue to manufacture infringing sailboards. The district court further ruled that neither AMF nor BIC had waived the defense of absolute intervening rights. The district court reasoned as follows:\nAMF properly waited to assert this defense until the damage phase of this bifurcated action, because the effect of the defense, if established, will be to reduce the amount of damages which AMF must pay.\nWindsurfing Int’l, Inc. v. Fred Ostermann GmbH, 655 F.Supp. 408, 410, 2 USPQ2d 1318, 1319 (S.D.N.Y.1987). This court agrees that BIC properly raised its defense of absolute intervening rights during the damages trial. BIC’s absolute intervening rights defense addresses a damages issue — the identification of those sales of BIC sailboards that properly serve as a measure of Windsurfing’s damages. Thus, the absolute intervening rights defense did not become an issue until Windsurfing secured a liability judgment against BIC.\nAlthough BIC did not plead its absolute intervening rights defense, the district court properly admitted BIC’s intervening rights evidence under Federal Rule of Civil Procedure 15(b). Rule 15(b) provides in part:\nIf evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice the party.\nIn such situations, however, failure actually to amend the pleading “does not affect the result of the trial of these issues.” Id. The district court found that BIC provided Windsurfing with ample notice of its intent to prove intervening rights. BIC II, 114 F.Supp. at 835-36. The trial court also found that Windsurfing was fully aware of BIC’s position through its deposition of BIC’s intervening rights witness. Id. The court further found that this notice prevented any prejudice to Windsurfing by the presentation of BIC’s intervening rights evidence. Finally, the district court found that BIC’s intervening rights defense was an important part of the merits of the action within the above rule. Windsurfing challenges none of these findings. The district court committed no error in considering BIC’s absolute intervening rights defense.\nThis court’s Windsurfing I opinion, 782 F.2d at 1002-03, did not preclude, under the doctrine of law of the case, the district court from considering BIC’s defense. The doctrine of law of the ease “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 2177, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983).\nIn Windsurfing I, the court was presented only with the issue of AMF’s waiver of an equitable intervening rights defense to the injunction. AMF asserted an equitable intervening rights defense under the second sentence of the section 252’s second paragraph. AMF belatedly sought to introduce evidence to support its contention that it should not be enjoined from the continued manufacture of sailboards because it had made substantial investments before reissue. Thus, Windsurfing I addressed an issue, whether equitable intervening rights precluded the injunction, not present in this case. Accordingly, Windsurfing 1 does not govern BIC’s absolute intervening rights defense.\nTherefore, this court sustains the district court’s ruling that BIC established an absolute intervening rights defense to damages on 10,870 sailboards. BIC had 5,245 boards in inventory as of the reissue date. The district court found that BIC had another 5,625 boards on order. Specifically, the district court found that the telex purchase order, dated February 10, 1983, between BIC and an affiliated supplier, BIC Marine, bound BIC to purchase the sailboards. This court discerns no error in the trial court’s determination that these sailboards were purchased within the meaning of section 252 before the critical date of March 8, 1983. Because BIC purchased the boards before the reissue date, the district court properly excluded the post-reissue sale of the 10,870 sailboards from the computation of damages.\nWillful Infringement and Enhanced Damages\nThe patent statute authorizes courts to award increased damages. 35 U.S.C. § 284 (1988). A court may award enhanced damages under this section upon a finding of willful infringement. Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1566, 7 USPQ2d 1548 (Fed.Cir.1988). In “exceptional cases” the district court may award attorney fees to the prevailing party. 35 U.S.C. § 285 (1988). Both willfulness and exceptionality are questions of fact that this court reviews under the clearly erroneous standard. See State Indus., 883 F.2d at 1581; Fromson v. Western Litho Plate & Supply Co., 853 F.2d 1568, 1573, 7 USPQ2d 1606, 1611 (Fed.Cir.1988). Windsurfing had the burden of proving by clear and convincing evidence that BIC’s infringement was willful and that the case was exceptional. State Indus., 883 F.2d at 1581; Badalamenti v. Dunham’s, Inc., 896 F.2d 1359, 1364, 13 USPQ2d 1967, 1972 (Fed.Cir.), cert. denied sub. nom., Hyde Athletic Indus., Inc. v. Badalamenti, 498 U.S. 851, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990).\nAfter reviewing the record, this court finds no clear error in the district court’s findings of nonwillfulness and nonexceptionality. The record shows that BIC had a good faith basis for its belief that Windsurfing's reissue patent was invalid. BIC received both oral and written opinions from patent attorney Mesorole advising to that effect. The district court specifically found that Mr. Mesorole was “competent and experienced in patent matters” and “intimately knowledgeable as to both the history of the [Windsurfing] patent proceedings and the legal issues involved.” And, although it had no bearing on validity proceedings in this country, the invalidation of Windsurfing’s British patent served to strengthen further BIC’s belief that the claimed invention was obvious in light of prior art. Moreover, as the district court correctly found, Windsurfing produced no evidence of direct copying. The district court’s determination, that Windsurfing did not show willfulness was not clearly erroneous.\nThe district court 'conducted a separate, three-day trial on the issues of enhanced damages and attorney fees. The trial court carefully weighed the testimony of six witnesses and hundreds of documents. This court discerns no reason to overturn the district court’s decision. For the same reasons, this court finds no error in the district court’s denial of attorney fees.\nConclusion\nFor the reasons stated above, the judgment of the district court is affirmed-in-part, reversed-in-part and remanded for recalculation of royalty damages in accordance with this opinion.\nCosts\nEach party to bear its own costs.\nAFFIRMED-IN-PART, REVERSED-IN-PART, and REMANDED\n. This court previously affirmed the judgment against BIC for infringement of Windsurfing's patent. See Windsurfing Int’l, Inc. v. AMF, Inc., 782 F.2d 995, 228 USPQ 562 (Fed.Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986) (Windsurfing I).\n. On remand, BIC conceded it had waived equitable intervening rights.\n. Furthermore, in Windsurfing I, this court did not limit the district court’s discretion to determine when an absolute intervening rights defense may be tried. This court merely held that the district court was under no obligation to consider a defense which under the facts of that case AMF had abandoned during the liability trial. Windsurfing I, 782 F.2d at 1003.", "type": "majority", "author": "RADER, Circuit Judge."}], "attorneys": ["Jonathan A. Marshall, Pennie & Edmonds, of New York City, argued for plaintiff-appellant. With him on the brief were Robert M. Kunstadt and John J. Normile.", "Harold E. Wurst, Nilsson, Wurst & Green, of Los Angeles, CA, argued for defendant/cross-appellant. With him on the brief was Jai Ho Rho. Also on the brief were Michael Sweedler and Beverly Goodwin, Darby & Darby, of New York City, of counsel."], "corrections": "", "head_matter": "BIC LEISURE PRODUCTS, INC., Plaintiff-Appellant, and Windglider Fred Ostermann, GmbH, Plaintiff, v. WINDSURFING INTERNATIONAL, INC., Defendant/Cross-Appellant, and James R. Drake, Defendant.\nNos. 92-1106, 92-1107.\nUnited States Court of Appeals, Federal Circuit.\nAug. 4, 1993.\nRehearing Denied Sept. 7, 1993.\nJonathan A. Marshall, Pennie & Edmonds, of New York City, argued for plaintiff-appellant. With him on the brief were Robert M. Kunstadt and John J. Normile.\nHarold E. Wurst, Nilsson, Wurst & Green, of Los Angeles, CA, argued for defendant/cross-appellant. With him on the brief was Jai Ho Rho. Also on the brief were Michael Sweedler and Beverly Goodwin, Darby & Darby, of New York City, of counsel.\nBefore NIES, Chief Judge, SMITH, Senior Circuit Judge, and RADER, Circuit Judge."} | NIES | SMITH | RADER | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1214 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,166 | Anna Lou BELANGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent | Belanger v. Office of Personnel Management | 1993-08-04 | No. 92-3302 | United States Court of Appeals for the Federal Circuit | {"judges": ["Before PLAGER and RADER, Circuit Judges, and PLUNKETT, District Judge."], "parties": ["Anna Lou BELANGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent."], "opinions": [{"text": "PLAGER, Circuit Judge.\nPetitioner Anna Lou Belanger (Petitioner) appeals the denial of her claim for a former spouse annuity by Respondent Office of Personnel Management (OPM). On September 20, 1991, the denial was upheld by an administrative judge (AJ) of the Merit Systems Protection Board (MSPB or Board), No. SE0831910415I-1. That decision became the final decision of the MSPB on January 22, 1992, 52 M.S.P.R. 124. 5 C.F.R. § 1201.-113(b) (1992). We affirm.\nBACKGROUND\nA.\nThis case presents the court with the unfortunate result of less than crystal-clear OPM directives regarding employee benefits. Specifically, this case involves 1) an employee’s protracted efforts to secure a survivor annuity for his former spouse, 2) confusing and conflicting advice from the government as to the legal effect of the employee’s divorce decree, and finally, 3) confusion wrought by OPM’s loose use of the term “annuity” to refer to both retirement annuities and survivor annuities. When the employee finally understood what it was that OPM was trying to communicate, the deadline for making the desired survivor annuity election had passed.\nThe employee’s former spouse argues that this court should give effect to the wishes of the now-deceased employee, rather than to the letter of the OPM regulation. The deference we are required by statute to give to the factual findings of the AJ prevents us from doing so. Nor can we adopt the former spouse’s proffered reading of the relevant statute and regulations. Courts must enforce statutory requirements as Congress has written them. See Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (the Appropriations Clause of the constitution requires that any payment from the Treasury be in accordance with the authorizing statute; equitable estoppel may not be applied to negate a statutory prerequisite for disbursement).\nB.\nAt the outset, it is helpful to do what OPM did not do — to clearly state the difference between a ‘retirement annuity’ and a ‘surviv- or annuity.’ When an eligible and qualified government employee retires, the employee receives certain monthly payments, known as the ‘retirement annuity.’ A portion of the retirement annuity may be set aside for receipt by a former spouse during the retired employee’s remaining years of life. (Of course a current spouse presumably shares in the benefits from the current income provided the employee by the retirement annuity.) After the employee dies, the ‘survivor annuity’ comes into play. It is that portion of the employee’s retirement benefits which may be reserved for monthly disbursement, after the employee’s death, to the spouse or former spouse. The establishment of a former spouse’s annuity or a survivor’s annuity reduces the amount of the employee’s retirement annuity, and thus requires either the employee’s affirmative election or, in some circumstances, a court order. Having made the semantics clear, we proceed to explain the confusion wrought by loose use of these two similar terms.\nPetitioner was the first spouse of Robert Belanger. Their divorce was finalized on March 6, 1985. The divorce decree awarded Petitioner half of Robert’s “retirement benefits,” Jt.App. at 33, but a survivor annuity for a former spouse was not amongst the benefits available at that time. However, legislation granting former spouses the right to receive survivor annuities had been enacted by Congress but was not yet effective. Civil Service Retirement Spouse Equity Act, Pub.L. No. 98-615, 98 Stat. 3195 et seq. (1984) (Spouse Equity Act or Act). On March 28, 1985, Robert married his current spouse, Maureen.\nUnder the terms of the Spouse Equity Act, enacted on November 8, 1984, a divorce decree finalized after the effective date of the Act — May 7, 1985 — could award a former spouse survivor annuity rights which OPM would recognize, with no further election required of the employee. See id. § 2(4)(G), codified as 5 U.S.C. § 8341(h)(1) (1988); 5 C.F.R. J 831.1704(d)(1) (1985). For decrees entered prior to that date, the government employee was and continued to be required to file a specific, written election in order to grant the former spouse rights to a survivor annuity. See 5 C.F.R. § 831.605 (1988). Accordingly, the divorce decree instructed Robert to “cooperate to the fullest extent and to execute and file such instruments as are necessary to make any future annuity or benefits available to this petitioner.” Jt.App. at 36. Although Robert’s and Petitioner’s divorce decree clearly became final before that date, OPM initially indicated that the divorce decree would be effective in granting Petitioner’s interests under the decree. OPM did not distinguish between Robert’s retirement annuity, for which the decree had legal effect, and the survivor annuity, for which it did not.\nThe confusion deepened in July of 1989 when Maureen, apparently acting on behalf of Robert pursuant to power of attorney and presumably in recognition of Petitioner’s interest, filed his retirement application. She filled out OPM Form 1538 to designate herself rather than Petitioner as the survivor annuitant, even though the form clearly indicated that court orders entered before May 7,1985, were without legal effect. Jt.App. at 51. Maureen states that she was acting on instruction of a Civilian Personnel Office (CPO) Representative, who told her to “put [her] name and not Anna Lou’s [Petitioner’s] on the Survivor Election form because Anna Lou would automatically get the survivor benefit (until she died at least) because of the divorce decree and therefore, placing my name on the form would only insure benefits to me later in the event she did die before me.” Jt.App. at 88-89. Robert’s application for disability retirement was approved on December 13, 1989, and he received his first retirement annuity payment on June 1, 1990. At that point, OPM regulations provided for thirty days in which to change the designated recipient of the employee’s survivor annuity. 5 C.F.R. § 831.609 (1990). After that, the employee’s elections became final. 5 C.F.R. 831.611(a) (1990).\nIn the interim, Petitioner’s attorney contacted OPM to insure that Petitioner would receive Robert’s survivor annuity. In response to this inquiry, OPM sent Robert a letter dated April 3,1990, informing him that he needed to file “an Election of Former Spouse Annuity or Combination Cur-renf/Former Spouse Annuity, a Spouse’s Consent to Survivor Election (OPM Form 1431), and a Designation of Beneficiary, (OPM Form 2823)” in order to give effect to the terms of the divorce decree. Jt.App. at 56. The letter also clearly states that at that time Maureen was the designated survivor annuitant, and that Robert’s designation of Petitioner as Civil Service Retirement System beneficiary “does not affect your ... survivor annuity designation ].” Id. (emphasis added). The letter then concludes: “The apportionment of your annuity will take effect, as required by the Decree of Dissolution, without any further action from you. We will process the forms requesting the other actions as soon as you complete them and return them to us.” Id. (emphasis added). OPM also sent Robert a summary of his benefits, in which Maureen was listed as his designated survivor annuitant. Jt. App. at 58. Subsequently OPM confirmed in writing to both Robert and Petitioner’s attorney that the annuity would be apportioned in compliance with the Decree of Dissolution. JtApp. at 63, 65 (emphasis added).\nThe sum total of these communications was to leave Robert with the erroneous impression that the Decree of Dissolution would guarantee Petitioner both the retirement annuity and the survivor annuity. Jt.App. at 74, 76. Thus, Robert did not change his election from Maureen to Petitioner prior to July 1, 1990, the last possible date under the regulations for making such a change.\nOPM contacted Petitioner’s attorney on October 30, 1990, to inform her that Petitioner would not be receiving the survivor annuity, because “[t]he court order is not qualifying for that purpose.” The letter referred Petitioner’s attorney to 5 C.F.R. § 831.-1704(d)(1) (1990), which as stated above sets forth the May 7, 1985 cut-off for self-executing divorce decrees. Jt.App. at 77. Although on November 14, 1990, Robert belatedly sought to change his election to designate Petitioner as his survivor annuitant, Jt. App. at 78, OPM refused to honor the election. Jt.App. at 87. Robert died on November 18, 1990. Petitioner’s application for a survivor annuity was twice rejected by OPM, and this appeal ensued.\nDISCUSSION\nOn appeal, Petitioner contends that the MSPB’s affirmance of OPM’s decision awarding the survivor annuity to Maureen in accordance with Robert’s July 1989 election should be reversed on three grounds. First, Petitioner argues that no substantial evidence supports the MSPB’s conclusion that Robert knew or should have known that the Decree of Dissolution would not provide Petitioner with the survivor annuity. Second, petitioner argues that OPM’s provision of misinformation regarding the effect of the Decree of Dissolution should as a matter of law estop OPM from denying benefits. Third, petitioner argues that Robert’s belated election of Petitioner as his survivor annuitant should be given effect — that the thirty day deadline set forth in 5 C.F.R. § 831.609 ought to be waived.\nAlthough the image of Robert Belanger going to his deathbed struggling to get his OPM paperwork in order is rather Orwellian, none of Petitioner’s arguments provide a basis for judicial redress.\nA.\nPetitioner challenges the AJ’s conclusion that Robert knew or should have known that the Decree of Dissolution would not secure the survivor annuity for Petitioner. However, the factfinding of the MSPB is accorded deference by this court. A petitioner who challenges the factual underpinnings of the MSPB’s decision must show that the decision is unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Substantial evidence is “such relevant evidence as a reasonable individual might accept as adequate to support a conclusion.” Brewer v. United States Postal Serv., 647 F.2d 1093, 1096, 227 Ct.Cl. 276 (1981), cert. denied 454 U.S. 1144, 102 S.Ct.. 1005, 71 L.Ed.2d 296 (1982) (quoting Consolidated Edison Co. v. National Labor Relations Review Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). We do not review the facts de novo, but only determine “whether the administrative determination is supported by substantial evidence on the record as a whole.” Id.\nHere, the AJ fully considered the communications described above, and concluded that even prior to the April 1990 letter from OPM, “a reasonable person would know that the divorce decree did not provide appellant with a survivor annuity.” Jt.App. at 13. Further, the AJ noted that nothing explained “why Mr. Belanger did not execute the forms provided by OPM with its April 3, 1990, letter and change his survivor election to appellant.” Id. at 13-14. Robert’s belief that the divorce decree would secure for Petitioner the survivor annuity as well as the retirement annuity was “unjustified in view of the information he received to the contrary.” Id. at 15.\nAlthough Petitioner correctly notes that OPM’s communications were not models of clarity and consistency, Petitioner has not refuted the substantial evidence discussed above which supports the AJ’s conclusion that the April 3, 1990 letter adequately informed Robert of both the need to change his election and of the proper procedure for. so doing. In particular, we note the clear statement on the OPM Form 1538 (Application for Retirement), which Maureen filled out on behalf of Robert in 1989: “However, a former spouse cannot receive a survivor annuity by court order unless he or she ... was divorced from you after May 6, 1985.... ” Jt.App. at 51. While Robert obviously remained confused as to the difference between retirement annuities and survivor annuities, the record contains substantial evidence supporting the AJ’s conclusion that Robert Be-langer’s confusion was not objectively defensible.\nB.\nContrary to the AJ’s view of the matter, Petitioner argues that OPM “affirmatively misled” Robert, because it did not “adequately notify Robert Belanger that he could not rely on the divorce decree.... ” Pet.Br. at 31. Petitioner argues that OPM’s 1985 communications allegedly planted the misconception that the Decree of Dissolution would have legal effect for the survivor annuity, that the erroneous advice given in 1989 by the CPO Representative reinforced that impression, and that all subsequent communications by OPM were insufficient to dispel the confusion.\nAssuming for the sake of argument that Office of Personnel Management v. Richmond, 496 U.S. at 423, 110 S.Ct. at 2470-71, leaves open a “crack in the door” through which an estoppel argument might pass, Brush v. Office of Personnel Management, 982 F.2d 1554, 1558 n. 11 (Fed.Cir.1992), petitioner has failed to make the threshold showing of reasonable reliance as required by Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947). See also Schweiker v. Hansen, 450 U.S. 785, 788-89, 101 S.Ct. 1468, 1470-71, 67 L.Ed.2d 685 (1981). OPM’s April 1990 correspondence at the very least provided Robert with ample reason to seek verification of his understanding of the effect of the Decree of Dissolution. Thus Petitioner’s estoppel argument is not viable.\nC.\nFinally, Petitioner argues that the thirty day deadline for changing elections found in 5 C.F.R. § 831.609 should be waived in Robert Belanger’s case, because OPM did not tell him that he had only thirty days in which to change his mind. Petitioner cites a line of cases which apply such waiver principles. Subsequent to oral argument, this court clarified that waiver can be applied by the courts, Office of Personnel Management v. Richmond notwithstanding. Brush, 982 F.2d at 1561-64. We now need to determine if waiver is appropriate in this ease.\nThe gravamen of Petitioner’s waiver argument is that OPM violated a clear statutory duty to notify Robert of his “rights of election,” and therefore the deadline for filing the change in election should be waived and Robert’s belated election of November 14, 1990 should be given effect. Petitioner finds OPM’s duty to notify in the following:\n“The Director of the Office of Personnel Management shall, on an annual basis, inform each annuitant of such annuitant’s rights of election under sections 8339© and 8339(k)(2) of title 5, United States Code.”\n5 U.S.C. § 8339 (note), Pub.L. 95-317, 92 Stat. 382, § 3 (1978) (emphasis added). This notification requirement was also at issue in Brush.\nIn Brush, the government employee was married when he retired. He elected to receive a reduced annuity in order to provide Mrs. Brush with a survivor annuity. Roughly three years later, the Brushes divorced. Mr. Brush continued to collect a reduced annuity until his death almost two years later. Mrs. Brush’s application for a survivor annuity was denied, because Mr. Brush had not formally elected to provide a survivor annuity for her in her new capacity as former spouse. 982 F.2d at 1556.\nIn Bmsh, the court held that OPM constructively waived the requirement for formal election, because OPM had violated the notification requirement of 5 U.S.C. § 8339 by failing to annually inform Mr. Brush of his right to elect a former spouse annuity under 5 U.S.C. § 8339(j)(3). See also 5 C.F.R. §§ 831.512(a)(2) and 831.621(a)-(b) (1989). The court rejected OPM’s contention that it was required to provide notification only in the event of post-retirement marriages. Instead, it held that “the plain meaning of this provision is that annual notice is mandatory.” It further noted that “[wjhile post-retirement marriage is one scenario under sections 8339(j) and (k)(2), it is by no means the complete menu of possibilities anticipated by sections 8339(j) and (k)(2).” Brush, 982 F.2d at 1559. Since OPM violated its notification duty, the court required OPM to waive the requirement that a formal election in favor of Mrs. Brush as a former spouse be filed within two years, and to give continued effect to Mr. Brush’s initial election of an annuity for Mrs. Brush in her past capacity as current spouse.\nRobert Belanger’s case differs significantly from the facts in Bmsh. First, Bmsh holds in accordance with the statute that OPM is obligated to provide annual notice to “annuitants.” 982 F.2d at 1559. Robert Belanger did not become an “annuitant” until December 13, 1989, when his application for retirement was granted. 5 U.S.C. § 8331(9) (1988) (“annuitant” means a former employee_) See also 5 C.F.R. § 831.112(b)(2)\n(1989) (annuitant is a “person who has been separated from service.... ”). From that point onward, OPM was obligated to give him annual notice of his “rights of election.” Brush, 982 F.2d at 1559. Since Robert Be-langer died within a year of his retirement, OPM could not have violated this notice provision.\nPetitioner’s argument also fails because the right to change an election within thirty days of receiving the initial payment is not a “right of election” within the notification requirement of 5 U.S.C. § 8339. The notification requirement at issue here is limited to those “rights of election” found in 5 U.S.C. §§ 8339(j) and (k)(2) — namely, the right to elect for a former spouse a survivor annuity in the event of post-retirement divorce, and to elect for a new spouse a surviv- or annuity in the event of a post-retirement marriage or remarriage. Such “rights of election” are changes which may arise after a government employee retires — i.e., after he or she becomes an “annuitant.” Periodic reminders of the available options is of obvious importance when those elections must be made within a certain time period, and the occasion for those elections may arise years after retirement. See, e.g., S.Rep. No. 904, 95th Cong. 2nd Sess. (1978), 1978 U.S.C.C.A.N. 1024, 1035 (letter of Jule Sug-arman, Chairman of the Civil Service Comm’n, supporting passage of the notification provision).\nThe right to make changes amongst the options initially elected at retirement is quite different. Congress provided by statute that a former spouse annuity “shall be made at the time of retirement_” 5 U.S.C. § 8339(j)(3). Pursuant to OPM’s statutory authority to “prescribe such regulations as are necessary and proper to carry out this subchapter,” 5 U.S.C. § 8347(a) (1988), OPM provided a limited grace period in which to correct a mistake: “An employee ... may name a new survivor or change his election of type of annuity if, not later than 30 days after the date of the first regular payment, the ... employee ... files with OPM a new written election.” 5 C.F.R. § 831.609.\nThe right to change an initial election is thus limited by statute and regulation. Given the size of the retirement program which OPM administers, common sense dictates that an employee’s elections at retirement become irrevocable, absent some future change in circumstances as envisioned by 5 U.S.C. § 8339 and its notification provision.\nFinally, we note that Robert Belanger in fact had been given notice of the permanency of his elections. The instructions accompanying the retirement application form, which Maureen with his power of attorney filled out and signed in 1989, state: “[Consider your election carefully. No change will be permitted after your annuity is granted except as explained in the instructions. ” Jt.App. at 48 (emphasis added). Absent a specific Congressional directive, OPM need do no more. See Davis v. Office of Personnel Management, 918 F.2d 944, 946 (Fed.Cir.1990) (citing Nordstrom v. United States, 342 F.2d 55, 59, 169 Ct.Cl. 632 (1965)).\nCONCLUSION\nPetitioner has not demonstrated that the MSPB’s decision was unsupported by substantial evidence, was based on an error of law, or was otherwise procedurally defective. 5 U.S.C. § 7703(c). Accordingly, we must affirm.\nCOSTS\nParties to bear their own costs.\nAFFIRMED.\n. It is clear from the record that that provision contemplated both retirement and survivor annu-itics, as they became available in the future. See Jt.App. at 36.\n. At the time of the divorce, Robert was in active government service; he did not retire until 1989.\n. Petitioner's attorney sent OPM a copy of the Decree of Dissolution on May 7, 1985. Jt.App. at 40. OPM responded on June 10, 1985, requesting a certified copy of the decree, and stating \"[u]pon receipt of the certified Decree, we will flag our files to reflect your client's interest.\" Jt.App. at 41 (emphasis added). On July 1, 1985, after receipt of that document, OPM responded again; \"we have flagged our files to reflect the legal instrument in order to preserve your client's interest.” JtApp. at 47 (emphasis added).\n. Maureen could not have been confused as to whether Petitioner's divorce from Robert preceded May 7, 1985, because Maureen’s subsequent marriage to Robert occurred on March 28, 1985.\n. Petitioner also claims that OPM's alleged failure to rectify any misunderstanding arising from the 1985 and 1898 communications violates OPM’s \"obligation to notify” arising from FPM Supp. 831-1, Sl-4(d), ¶ 6, and further that OPM’s unclear communication violates \"general notions of due process.” While we agree with Petitioner that there is room for improvement in OPM's communication, the AJ’s factual findings discussed supra rebut these arguments.\n. Harris v. Office of Personnel Management, 888 F.2d 121, 124 (Fed.Cir.1989); Darsigny v. Office of Personnel Management, 787 F.2d 1555, 1559 (Fed.Cir.1986); Speker v. Office of Personnel Management, 45 M.S.P.R. 380 (1990); Davies v. Office of Personnel Management, 5 M.S.P.R. 199, 203 (1981). See also Kolbe v. Office of Personnel Management, 32 M.S.P.R. 626 (1987); Leyson v. Office of Personnel Management, 31 M.S.P.R. 111, 114 (1986).\n. By regulation, Mr. Brush had two years from time of his post-retirement divorce to make a new election. 5 C.F.R. § 831.612(a)(2) (1989). In short, Mr. Brush expired before the election period did.", "type": "majority", "author": "PLAGER, Circuit Judge."}], "attorneys": ["Steven B. Frank, Frank & Rosen, Seattle, WA, argued for petitioner.", "John Warshawsky, Commercial Litigation Branch, Dept, of Justice, Washington, DC, argued for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Donna C. Maizel, Attorney, Commercial Litigation Branch, Dept, of Justice, Washington, DC, were on the brief for respondent. Of counsel was Sharon Y. Eubanks. Also on the brief were James S. Green, Acting Gen. Counsel and Gail Goldberg, Deputy Asst. Gen. Counsel, Office of Personnel Management, of counsel."], "corrections": "", "head_matter": "Anna Lou BELANGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.\nNo. 92-3302.\nUnited States Court of Appeals, Federal Circuit.\nAug. 4, 1993.\nSteven B. Frank, Frank & Rosen, Seattle, WA, argued for petitioner.\nJohn Warshawsky, Commercial Litigation Branch, Dept, of Justice, Washington, DC, argued for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Donna C. Maizel, Attorney, Commercial Litigation Branch, Dept, of Justice, Washington, DC, were on the brief for respondent. Of counsel was Sharon Y. Eubanks. Also on the brief were James S. Green, Acting Gen. Counsel and Gail Goldberg, Deputy Asst. Gen. Counsel, Office of Personnel Management, of counsel.\nBefore PLAGER and RADER, Circuit Judges, and PLUNKETT, District Judge.\nThe Honorable Paul E. Plunkett, United States District Court for the Northern District of Illinois, sitting by designation."} | PLAGER | RADER | PLUNKETT | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1223 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,260 | ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, Chemical Manufacturers Association, and Edison Electric Institute, et al., Intervenors | Environmental Defense Fund, Inc. v. Reilly | 1993-07-13 | No. 90-1387 | United States Court of Appeals for the District of Columbia Circuit | {"judges": ["Before WALD, RUTH BADER GINSBURG, and D.H. GINSBURG, Circuit Judges."], "parties": ["ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, Chemical Manufacturers Association, and Edison Electric Institute, et al., Intervenors."], "opinions": [{"text": "Opinion for the Court filed by Circuit Judge D.H. GINSBURG.\nD.H. GINSBURG, Circuit Judge:\nThe Environmental Defense Fund petitions for an award of attorneys’ fees in the amount of $32,542.75. In the underlying litigation we vacated an Environmental Protection Agency rule for want of public notice and comment before promulgation. We now hold that the EDF was a “prevailing party” within the meaning of the Resource Conservation and Recovery Act and therefore is entitled to recover its attorneys’ fees. Because one of the EDF’s attorneys submitted intolerably excessive time entries, however, we deny all of the $17,773.50 in fees requested for her work. After making a further adjustment of $700, we award the EDF a fee of $14,069.25.\nI. Background\nIn 1980 the EPA promulgated a regulation governing hazardous waste management pursuant to the RCRA. The regulation provided in pertinent part:\n(a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: ...\n(3) It contains any of the toxic constituents listed in Appendix VIII unless, after considering any of the following factors, the Administrator concludes that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed....\n40 C.F.R. § 261.11(a)(3) (emphases added).\nIntervenor American Petroleum Institute challenged this regulation. See Shell Oil Company v. EPA 950 F.2d 741 (D.C.Cir.1991). In January 1990 the EPA entered into a settlement agreement whereby it amended § 261.11(a)(3) to read as follows:\n(a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: ...\n(3) It contains any of the toxic constituents listed in Appendix VIII and, after considering the following factors, the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly stored, transported or disposed of, or otherwise managed....\n55 Fed.Reg. 18,276 (May 4, 1990) (emphases added). Deeming the amendment a technical correction that was “not intended to and [would] not affect existing Agency listing practices based upon the Agency’s consistent interpretation of the 1980 regulatory language,” the EPA decided not to give public notice of and solicit comment on the change. See id.\nIn July 1990 the EDF petitioned this court to set aside the EPA’s amended rule on the ground that the amendment implemented a policy change and thus required notice and an opportunity for comment. The EDF argued that under the original regulation the EPA could list a waste upon determining only that the waste contained a toxic constituent; under the amended regulation, by contrast, before it could list a waste the EPA had to determine also that the waste was capable of posing a substantial present or potential hazard to human health or the environment.\nBefore the EDF was scheduled to file its brief on the merits, the parties settled their dispute and filed a joint motion for remand and dismissal. This court accordingly ordered that the 1990 amendment be vacated, that § 261.11(a)(3) read as it did prior to the amendment, and that the case be remanded to the EPA.\nAs provided in the settlement agreement, the EPA then published a notice soliciting comment on its proposal to adopt anew its 1990 revision of § 261.11(a)(3). See 56 Fed. Reg. 33,238 (July 19, 1991). The EPA again stated that “the proposed language is not intended to and will not affect existing Agency listing practices based upon the Agency’s consistent interpretation of the 1980 regulatory language.” After receiving comments, the Administrator adopted the proposed revision. The current version of § 261.11(a)(3) is therefore identical to the regulation as first purportedly amended without public comment in 1990.\nThe EDF now seeks an award of attorneys’ fees in the amount of $32,542.75 pursuant to 42 U.S.C. § 6972(e). Of that total $7,972.50 is claimed for attorney time spent on the merits of the case, while $24,570.25 is claimed for attorney time spent attempting to recover the attorneys’ fees.\nII. Analysis\nThe RCRA provides for the award of attorney’s fees as follows:\nThe court, in issuing any final order in any action brought pursuant to this section or section 6976 of this title, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.\n42 U.S.C. § 6972(e). In Farrar v. Hobby, - U.S. -, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Supreme Court explained that “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. at -, 113 S.Ct. at 573; see also Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987) (prevailing party must secure some benefit greater than just “favorable statement of the law in an otherwise unfavorable opinion”); Waterman S.S. Corp. v. Maritime Subsidy Bd., 901 F.2d 1119, 1122 (D.C.Cir.1990) (prevailing party must achieve “something more than an enhanced legal position in a proceeding that ultimately fails to supply any material relief’). The Court added that a plaintiff would not be entitled to recover its attorney’s fee if it secured only a “technical” or an insignificant victory. Farrar, — U.S. at -, 113 S.Ct. at 574; accord Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989).\nWhen the plaintiff is the prevailing party, the court (on motion) calculates a “reasonable” attorney’s fee based upon “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Although the Supreme Court has said that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, when there is a dispute the “hours reasonably devoted to litigating attorney’s fees are [also] compensa-ble.” Grano v. Barry, 783 F.2d 1104, 1113-14 (D.C.Cir.1986). In such a case, as the court is “expert[] in assessing the reasonableness of an attorney’s fee award,” we “scrutinize an attorney’s fees with particular care,” EDF v. EPA, 672 F.2d 42, 54 (D.C.Cir.1982) (citation omitted).\nA. Prevailing PaHy\nGenerally a plaintiff that has obtained a remand for further proceedings is not at that point a “prevailing party” for the purpose of collecting its attorney’s fee. Only if it ultimately succeeds on the merits of its underlying claim may it be awarded the attorney’s fee it incurred in obtaining the remand. See Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 2254, 104 L.Ed.2d 941 (1989); Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Watennan, 901 F.2d at 1122; National Coalition Against Misuse of Pesticides v. Thomas, 828 F.2d 42, 44 (D.C.Cir.1987). The rationale for this rule is that “the award of [attorneys’] fees for corrective efforts that yield no real world benefit would reduce the normal deterrent to litigative nitpicking.” Waterman, 901 F.2d at 1122.\nThe EPA belittles the EDF’s victory as “purely procedural.” But it succeeded in changing the regulation then in force, albeit subject to the agency’s right later, if it chose to pursue the matter (as it did), to undo the change pursuant to notice-and-comment rule-making. The present case is therefore like Action on Smoking and Health v. Civil Aeronautics Board, 713 F.2d 795 (D.C.Cir.1983). In that case ASH successfully challenged the CAB’s purported revocation of a regulation without notice and comment; the court vacated the revocation order and directed the CAB to republish and retain the regulation in force “until such time as those provisions may be amended or revoked by proper rulemaking made after notice and comment proceedings.” Id. at 797. Although we later denied as untimely the petitioner’s request for its attorney’s fee, we had no doubt that “[i]n the normal course ASH would be entitled to fees for this work.” ASH v. CAB, 724 F.2d 211, 225 (D.C.Cir.1984). Similarly here, after vacating the amendment, the court ordered the EPA to restore the original regulation and precluded the agency from reinstating the amendment without prior notice and comment. See also EDF v. EPA, 716 F.2d 915, 919 (D.C.Cir.1983) (awarding fee where petition to review EPA decision to delay RCRA reporting requirements prompted agency to rescind decision and thereby moot petition: “but for this litigation, the original reporting requirements would not have been reinstated”).\nThe EPA would have us distinguish ASH v. CAB on the ground that the petitioner in this case received no. “real world benefit” from our vacatur of the 1990 amendment. The EPA points out that a mere eight months later it promulgated the very amendment to which the EDF had objected. That is entirely beside the point of EDF’s objection, however, which was to the lack of public notice and comment in the agency’s first attempt to alter the regulation. In the real world of the APA, an opportunity for comment — which the EDF did get — is not to be denigrated. While it does not assure that the petitioner will be able to persuade the agency to change its proposal, of course, it does give the petitioner a chance. And if that chance were not in itself something of value in the real world, then there would be no need for the notice and comment procedures of the APA.\nGrano v. Barry, 783 F.2d 1104 (D.C.Cir.1986), is instructive in this regard. There we held that plaintiffs who had obtained an injunction against demolition of an historic building pending a referendum were entitled to recover their attorney’s fee even though that referendum was later declared invalid and the building was ultimately demolished. We found that “these plaintiffs clearly obtained a significant benefit when they succeeded in ensuring that the voting would take place while the [building] still stood and the initiative still had the potential to mean something.” Id. at 1109 (emphasis in original). By the same token, in this case the comment period gave the EDF and other members of the public an opportunity to participate before and potentially to persuade the agency not to adopt the proposed amendment.\nThe EPA also points to the statement in Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), that a plaintiffs status as a prevailing party is “often completely dependent on the successful completion of the remand proceedings before [the agency].” Id. at 887, 109 S.Ct. at 2256. True enough, “often” it is. Indeed in Hudson itself the claimant’s status as a prevailing party depended upon a future administrative adjudication in order to determine his entitlement to Social Security disability benefits. By contrast, in Grano and in this case, no further proceedings were necessary in order for the plaintiff to have obtained all the relief that it sought or that was available to it.\nFinally, the EPA argues that the EDF’s victory was insignificant because, despite the change in the wording of the regulation, the agency has never changed its interpretation of § 261.11(a)(3). This argument, however, assumes the answer to the question whether notice and comment were required—no, if the amendment was technical and not substantive—the very issue that the parties settled. We decline the EPA’s invitation implicitly to decide that question now in this distinctly collateral context and without the benefit of full briefing and argument.\nB. Amount of Fees\nThe EDF requests $32,542.75 for the services rendered by an in-house staff lawyer (Karen Florini) and three lawyers and a recent law school graduate at the Sierra Club Legal Defense Fund (Howard I. Fox, Kirsten H. Engel, Robert G. Dreher, and Edward Zukoski)—of which $7,972.50 is for work on the merits and $24,570.25 is for work done in order to recover the attorneys’ fees. The EPA argues that the EDF’s claim is for a grossly unreasonable number of attorney hours with respect both to the merits and to the fee petition. We agree. Therefore, says the EPA, the court should deny the fee request in its entirety or, alternatively, substantially reduce the award. We take the latter course.\nAs already mentioned, we determine an attorney’s fee by multiplying the prevailing hourly rate (or “lodestar”) by the number of attorney hours reasonably expended. See Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. In deciding the reasonableness of the hours reported, we properly disallow “time spent in duplicative, unorganized or otherwise unproductive effort.” Jordan v. Department of Justice, 691 F.2d 514, 518 (D.C.Cir.1982). We may deny in its entirety a request for an “outrageously unreasonable” amount, lest claimants feel free to make “unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place.” Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.1980); accord Jordan, 691 F.2d at 518; Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 708 (2d Cir.1987). In a case of less egregious overbilling, we may impose a lesser sanction, such as awarding a fee below what a “reasonable” fee would have been in order to discourage fee petitioners from submitting an excessive request. Cf. Farris v. Cox, 508 F.Supp. 222, 227 (N.D.Cal.1981) (denying attorney’s fee for work on fee petition in order to “curb the practice of padding fee requests” but awarding fee for work on merits).\nIn this case one of the attorneys for the EDF, Kirsten Engel, claims to have spent what we believe to be an outrageously excessive amount of time on certain tasks. The EDF discounted some of her time but still seeks reimbursement for an unreasonable number of her hours. As a result, the EDF’s fee application is greatly inflated; nevertheless, we do not deny the petitioner’s fee request in its entirety, but adopt a more discriminating approach by denying all recovery for Engel’s services alone—$17,773.50. The other EDF attorneys all submitted reasonable time sheets; and the EDF itself discounted Engel’s time substantially in formulating its fee request. In these circumstances we think that disallowing all fees would unduly penalize the EDF for the conduct of a single outside attorney who has since departed the SCLDF.\n1. Time Entries of Kirsten Engel\nWhile we ordinarily probe a petition for attorneys’ fees with particular care, see EDF v. EPA 672 F.2d 42, 54 (D.C.Cir.1982), even a perfunctory examination of Engel’s time entries would show that she billed on a Brobdingnabian scale. To take the clearest case first, Engel reported having spent 3.5 hours completing a Notice of Appearance. Even the EDF must regard that as wholly unreasonable for it seeks reimbursement for only .5 hours, or one-seventh of the time Engel claimed to have spent. At oral argument counsel for the EDF was understandably incapable of explaining how a lawyer could spend 3.5 hours on a Notice of Appearance.\nPerhaps even more egregiously, Engel claimed to have spent 73.45 hours — nearly two work weeks — preparing two letters to the EPA about the EDF’s request for attorneys’ fees. Of that amount, 31.3 hours were said to be for a one-and-one-half page letter consisting of four paragraphs, one of which merely cites a string of cases; another 42.15 hours were said to lie behind a three-page letter that briefly distinguishes three cases cited by the EPA, cites two eases not cited in the previous letter, and disputes the EPA’s contention that the vacatur of the 1990 amendment effected no substantive change. Neither letter contains any detailed analysis of the cases relied upon, and indeed most of the second letter simply discusses the cases cited by the EPA in earlier correspondence.\nThese relatively brief letters should have taken no more than two days to research and prepare. Yet, Engel attributed to them some 23 separate time entries totalling almost 75 hours. Indeed, research aside, she claimed to have spent 13 hours just drafting the three-page letter and then another 15 hours redrafting it in response to comments from Howard Fox, the attorney who supervised her work. The EDF seeks reimbursement for only 76.35 of the 101.35 hours that Engel claimed to have spent on its fee motion, but it does not say specifically which of Engel’s claims it is discounting. Even if we were to assume, however, that the EDF deducted all 25 hours from the time Engel claimed to have spent on these two letters, the EDF would still be seeking fees for nearly 50 hours spent preparing them — or about three times what the work should have required.\nWe come next to Engel’s work drafting the motion for the award of fees. The EDF states that “[t]he research performed by Ms. Engel during settlement negotiations enabled her to draft the ... motion expeditiously.” Would that it were so. In fact, Engel claims to have spent 21.1 hours drafting the motion, which is essentially a boilerplate memorandum not at all tailored to the particular fee request. The motion contains no citations to or discussion of the legal authorities most relevant to the EDF’s petition — ASH v. CAB, EDF v. EPA Grano, Waterman, Garland, and Sullivan — and refers to only two of the 23 cases cited in the two letters Engel had prepared. The legal analysis in the motion spans all of two pages and features virtually no argument that the EDF would not have made in its every previous motion for attorneys’ fees. The motion should have required of any reasonably efficient lawyer at most eight hours to complete — one day, not three as claimed.\nThese most egregious examples cast a fatal doubt upon the efficiency of Engel’s work, much of which would be at least suspect anyway. For example, Engel claimed to have spent almost a full work day (7.8 hours) “reviewing” a five-page draft Motion for Dismissal and Remand and “conferring” with other EDF attorneys about it. She also claimed to have done 37.5 hours of research on the merits (for 34 of which EDF seeks compensation). This seems a lot because the merits involved only one issue: Whether the EPA had to give public notice and receive comments before amending its regulation. We do not understand why any attorney— much less one who, according to the EDF, has “extensive experience practicing under RCRA” and was asked to teach at a major law school — would need almost a full week in order to research that issue. Cf. Conservation Law Foundation v. Watt, 654 F.Supp. 706, 708 (D.Mass.1984) (reducing fee award because attorneys’ “experience and background would necessarily mean that its efforts in this case started from a basic familiarity with environmental law and not from scratch”). Significantly, it is impossible to corroborate the extent of Engel’s research on the merits issue, and thus to evaluate the reasonableness of the time she claims to have expended. Neither she nor any other EDF attorney wrote even a draft brief before the parties settled the case.\nWe are compelled to conclude that Engel submitted outrageously excessive time entries and that the EDF failed adequately to exercise its billing judgment by reducing the resulting fee request to a reasonable level. Therefore, we award the petitioner none of the $17,773.50 it asks for Engel’s work.\n2. Time Spent by Other EDF Attorneys\nWith one exception, the court accepts as reasonable all the time entries made by the EDF’s other attorneys for time spent on the merits and the fee petition. We deny only the EDF’s request to be compensated for the five hours that Karen Florini spent “preparing memorandum to Litigation Review Committee to secure case approval.” “Hours that are not properly billed to one’s client are also not properly billed to one’s adversary pursuant to statutory authority.” Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (emphasis in original). According to the Government, a law firm does not normally bill a client for the time it takes to decide whether to accept a case; the EDF notes the lack of authority supporting that observation but does nothing to carry its burden of showing that it is reasonable to bill for such internal deliberations. Accordingly, we deny the $700 in fees requested for the time Florini spent in securing case approval.\nIII. Conclusion\nIt appears that Engel’s flagrant overbilling was an aberration and that the EDF and its other outside attorneys have been conscientious in submitting their recordkeeping and fee request to this court. While we expect that the EDF will be more alert to the need to exercise billing judgment in the future, we think that complete disallowance of the EDF’s fee request would unduly punish the organization and its attorneys because the SCLDF happened to have been associated at one time with an attorney who billed an unreasonable amount of time for the work she produced. Therefore, while we award the EDF none of the fee request for Engel, we award the rest of its requested fee subject to the one adjustment set out in Part II.B.2 above.\nToday’s decision should nonetheless clearly convey this court’s attitude toward excessive fee requests. We regard overbilling the government as a serious transgression, damaging to the public ñsc and violative of the trust reposed in each member of the bar. It is irrelevant that in this particular case the award of Engel’s fees would enrich neither her nor any individual attorney. (Any award would be paid to the Sierra Club Legal Defense Fund.) There is simply no excuse for a private attorney general billing the Government for unnecessary legal services. Therefore, the petition for fees totalling $32,542.75 is granted to the extent of $14,069.25 and otherwise denied.\nSo ordered.\nSUPPLEMENTAL OPINION\nSept. 10, 1993.\nBefore WALD and D.H. GINSBURG, Circuit Judges.\nOpinion for the Court filed by Circuit Judge D.H. GINSBURG.\nD.H. GINSBURG, Circuit Judge:\nThe Environmental Defense Fund moves without opposition to modify the court’s opinion of July 13, 1993. Specifically, the EDF requests that the court delete all references to Ms. Engel by name (as to which the EPA concurs) and revise various passages in order to avoid the implication that Ms. Engel intentionally inflated her time, as opposed to having expended “excessive time on her services in this matter through inefficiency, through inexperience with litigation, or through an excess of zeal.”\nThe motion is granted in part. We decline to delete references to Ms. Engel by name. It would be improvident to advise the members of our bar that their billing excesses, whether owing to intentional inflation or merely to inefficiency and the like, will not be publicized even when the resulting fee is denied because it is “outrageously excessive.” At the same time, however, the court does not find it necessary to conclude or to imply that Ms. Engel intentionally inflated her time, as opposed to having actually spent an unwarranted amount of time. Therefore, we have modified the opinion in several respects (although not always precisely as requested by the EDF) in order to avoid that implication.\nJudge (now Justice) Ruth Bader Ginsburg was the third member of the panel.", "type": "majority", "author": "D.H. GINSBURG, Circuit Judge:"}], "attorneys": ["Howard I. Fox, with whom Robert G. Dre-her, and Karen L. Florini were on the brief for petitioner.", "Elizabeth M. Ahern, Atty., Dept, of Justice, with whom Mary Elizabeth Ward, Atty., Dept, of Justice, and Thomas H. Beisswen-ger, Atty., E.P.A., were on the brief for respondents.", "Gottlieb J. Frick and Ralph J. Colleli, Jr. entered appearances for intervenor American Petroleum Institute.", "Hunter L. Prillaman and David F. Zoll entered appearances for intervenor Chemical Mfr’s. Ass’n.", "Douglas H. Green and Toni K. Allen entered appearances for intervenor Edison Elec. Institute, et al."], "corrections": "", "head_matter": "ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, Chemical Manufacturers Association, and Edison Electric Institute, et al., Intervenors.\nNo. 90-1387.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued Jan. 14, 1993.\nDecided July 13, 1993.\nAs Amended Aug. 30, 1993.\nSupplemental Opinion Sept. 10, 1993.\nHoward I. Fox, with whom Robert G. Dre-her, and Karen L. Florini were on the brief for petitioner.\nElizabeth M. Ahern, Atty., Dept, of Justice, with whom Mary Elizabeth Ward, Atty., Dept, of Justice, and Thomas H. Beisswen-ger, Atty., E.P.A., were on the brief for respondents.\nGottlieb J. Frick and Ralph J. Colleli, Jr. entered appearances for intervenor American Petroleum Institute.\nHunter L. Prillaman and David F. Zoll entered appearances for intervenor Chemical Mfr’s. Ass’n.\nDouglas H. Green and Toni K. Allen entered appearances for intervenor Edison Elec. Institute, et al.\nBefore WALD, RUTH BADER GINSBURG, and D.H. GINSBURG, Circuit Judges."} | WALD | RUTH BADER GINSBURG | D.H. GINSBURG | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1254 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,297 | SWEDISH HOSPITAL CORPORATION, et al., Appellants, v. Donna E. SHALALA, Secretary of Health and Human Services; SWEDISH HOSPITAL CORPORATION, et al. v. Donna E. SHALALA, Secretary of Health and Human Services, Appellant | Swedish Hospital Corp. v. Shalala | 1993-08-10 | Nos. 92-5061, 92-5155 | United States Court of Appeals for the District of Columbia Circuit | {"judges": ["Before: D.H. GINSBURG, SENTELLE, and RANDOLPH, Circuit Judges."], "parties": ["SWEDISH HOSPITAL CORPORATION, et al., Appellants, v. Donna E. SHALALA, Secretary of Health and Human Services. SWEDISH HOSPITAL CORPORATION, et al. v. Donna E. SHALALA, Secretary of Health and Human Services, Appellant."], "opinions": [{"text": "Opinion for the Court filed by Circuit Judge SENTELLE.\nSeparate opinion concurring in part and dissenting in part filed by Circuit Judge D.H. GINSBURG.\nSENTELLE, Circuit Judge:\nThis appeal raises important questions about the reasonable calculation of contingent counsel fees in class actions resulting in the creation of a common fund payable to plaintiffs. We hold that the proper measure of such fees in a common fund case is a percentage of the fund. In addition, on the facts before us, we conclude that the District Court did not abuse its discretion in calculating both the percentage to be used and the amount of the fund that resulted from the efforts of counsel. Therefore, we affirm.\nI. Introduction\nThis case is the endgame in a .series of lawsuits attacking a Department of Health and Human Services (“HHS,” the “Department,” or the “Secretary”) policy concerning reimbursement by HHS for photocopying costs incurred by hospitals in meeting requirements of the Medicare program. In the underlying case, plaintiff hospitals and HHS entered into a settlement agreement, approved by the District Court, in which HHS agreed to pay $27.8 million to the hospitals. Today’s dispute is over what portion of that pie goes to plaintiffs’ lawyers.\nThe District Court applied a “percentage-of-the-fund” method in determining a reasonable fee award for class counsel, and decided that the attorneys should receive twenty percent of the common fund produced by their efforts. However, the court awarded only $2 million in fees, reasoning that because the efforts of plaintiffs’ attorneys had contributed only $10 million to the value of the settlement fund, the attorneys were entitled to twenty percent of only that amount.\nPlaintiffs appeal, arguing that their attorneys were entitled to twenty percent of the entire $27.8 million fund, or about $5.6 million. The Secretary cross-appeals, arguing that the fees awarded were too high; that under governing circuit and Supreme Court precedent, class counsel’s fee should be limited to the product of the hours reasonably spent by the attorneys and their reasonable hourly rates (the “lodestar”), resulting in a fee of no more than $619,000.\nII. Background\nThe Social Security Amendments of 1983 require all hospitals participating in the Medicare program to enter into agreements with Medicare “peer review organizations” (“PROs”), which review the quality and medical necessity of hospital services rendered to Medicare beneficiaries. 42 U.S.C. § 1395cc(a)(l)(F) (1988). The statute directs HHS to reimburse hospitals for the costs of maintaining such agreements. Id.\nFrom the outset, however, HHS has refused to reimburse some costs incurred by hospitals in maintaining PRO agreements. One regulation, known as the “photocopying rule,” specifically prohibited reimbursing costs incurred by hospitals in furnishing photocopies of medical records to PROs for mandatory review. 42 C.F.R. § 466.78(b)(2) (1985), as amended by 57 Fed.Reg. 47,779 (1992) (codified at 42 C.F.R. § 466.78(b)(2) (1993)).\nSeveral hospitals filed a series of lawsuits challenging the legality of the photocopying rule. In Burlington Memorial Hosp. v. Bowen, 644 F.Supp. 1020 (W.D.Wis.1986), a district court concluded that the photocopying rule was arbitrary and capricious because the Department’s basis for denying reimbursement for photocopying costs mandated by the statute — that these costs were already reimbursed in other payments — was without any reasonable basis in the rulemaking record. The court accordingly enjoined the Secretary’s enforcement of the rule. HHS appealed the Burlington decision, but later dropped the appeal and settled with the seventeen plaintiffs in that case, agreeing to pay ten cents per page for PRO photocopies.\nBecause HHS did not change its photocopying rule, hospitals filed at least six other cases seeking reimbursement. In Beverly Hosp. v. Bowen, Medicare & Medicaid Guide (CCH) ¶ 36,738, 1987 WL 192217 (D.D.C.1987), a consolidation of four of those eases involving several hundred hospitals, the dis-triet court held the photocopying rule illegal. That court, however, denied plaintiffs’ requested relief of prospective and retrospective reimbursement, holding that the rule-making process would provide an adequate remedy. The hospitals appealed.\nDuring the pendency of the Beverly appeal, HHS issued a notice of proposed rule-making, proposing to reimburse hospitals for photocopies furnished to PROs at the rate of $.0498 per page. 53 Fed.Reg. 8,654 (1988). The proposed rule would have limited retrospective relief to the previous three years, and would have imposed a number of procedural and substantive restrictions on hospitals seeking relief.\nWe rejected HHS’s proposed approach, and remanded the ease to the District Court “with instructions to assure that the agency affords the hospitals a fair opportunity to recover photocopying costs they were made to pay due to the Secretary’s unlawful regulation.” Beverly Hosp. v. Bowen, 872 F.2d 483, 487 (D.C.Cir.1989) (per curiam). We defined the Department’s “task ... [as] conscientiously to remold the situation to approximate fairly what it should have been initially.” Id.\nBeverly, by its terms, applied only to the few hundred hospitals which were plaintiffs in that case. Perceiving that HHS was likely to pursue a policy of “non-acquiescence,” several hospitals brought this class action, seeking declaratory and injunctive relief and damages for all other hospitals participating in the Medicare program. Two principal issues separated the parties: how much HHS should pay per page and how to calculate retroactively the number of pages copied going back to 1984. Most hospitals kept records of the relevant copying expenses starting in 1987, but the parties could not agree how to calculate the number of copies made between 1984 and 1987. HHS initially insisted on documentation for all copies reimbursed, whereas the hospitals urged, and eventually the settlement embraced, an extrapolation formula for determining the number of copies in the earlier years.\nShortly before the trial was scheduled to begin, after eighteen months of litigation involving considerable discovery, the parties entered a settlement agreement requiring HHS to pay prospectively for relevant copying costs, and to pay $27.8 million into a settlement fund for distribution to the class for copies made between 1984 and 1991. Before approving the settlement agreement, the District Court ordered notice of the proposed settlement sent to class members. In a separate mailing, class members received the details of the petition for attorneys’ fees, requesting twenty percent of the common fund. The fee petition notice advised class members of their right to file objections to any element of the proposed settlement or fee petition. None of the plaintiff hospitals objected to class counsel receiving twenty percent of the common fund; indeed, a number of hospitals, including several of the class members with the largest economic stake in the fund, submitted declarations affirmatively favoring that disposition.\nThe District Court, applying a percentage-of-the-fund methodology, granted plaintiffs’ requested twenty percent share as a rate, but concluded that counsel could “claim credit only for enhancing the fund” by payment at roughly $.07 per page instead of approximately $.0498 per page “which was apparently on the table when negotiations opened.” Swedish Hosp. Corp. v. Sullivan, Medicare & Medicaid Guide (CCH) ¶ 39,730, at 28,743, 1991 WL 319154 (D.D.C.1991). As that difference generated a “fund for which ... counsel is responsible” of approximately $10 million, rather than the $28 million, the twenty percent rate produced a fee of $2 million.\nThe district judge based his assessment of the attorneys’ contribution to the fund on a number of factors. He found that plaintiffs in this case were at least in part piggybacking on the success of the Beverly plaintiffs; that plaintiffs’ attorneys never faced the risk of zero recovery because the central issue of the illegality of HHS’s photocopying rule was resolved in Beverly; that because the government was the defendant, plaintiffs and their attorneys never faced a risk of nonpayment; and that “the government acquiesced early in the treatment of the dispute as a class action.” Id. The court also observed that the class members “were not paupers, unable to pay counsel for their time in the remote event of no recovery beyond” the Secretary’s initial offer. Finally, the court was of the opinion that plaintiffs’ attorneys had exhibited no extraordinary legal skills in their representation.\nBoth parties appeal the fee award, plaintiffs arguing it is too small and HHS that it is too large.\nIII. Discussion\nThis case raises two main questions. The first is whether the District Court erred in not utilizing the lodestar to determine the appropriate fee. Because the answer is “no,” we must address a second question, whether the District Court abused its discretion in setting a twenty percent fee in this case, and in choosing to apply that percentage only to that part of the fund for which counsel was responsible. The answer to this question is “no” as well. We address both questions in turn below.\nA. Lodestar Verstis Percentage of the Fund\n1. General Principles Governing Fee Awards\nIn general, each party to litigation in the United States bears its own attorneys’ fees absent a specific fee-shifting statute. Over time, courts have fashioned several equitable exceptions to this “American rule.” One of the earliest, and still most common, exceptions is the “common fund” doctrine typically applied in class actions like the present one. See Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164, 59 S.Ct. 777, 779, 83 L.Ed. 1184 (1939) (fee award from fund generated is within “the historic equity jurisdiction of the federal courts”). That doctrine allows a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. It is by now well established that “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). The underlying justification for attorney reimbursement from a common fund, as explained by the Supreme Court in three early cases, is that unless the costs of litigation are spread to the beneficiaries of the fund they will be unjustly enriched by the attorney’s efforts. See Sprague, 307 U.S. at 166-67, 59 S.Ct. at 779-80; Central R.R. & Banking Co. of Georgia v. Pettus, 113 U.S. 116, 126-27, 5 S.Ct. 387, 392-93, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882).\nWhen awarding attorneys’ fees, federal courts have a duty to ensure that claims for attorneys’ fees are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Pettus, 113 U.S. at 127, 5 S.Ct. at 392-93. Special problems exist in assessing the reasonableness of fees in a class action suit since class members with low individual stakes in the outcome often do not file objections, and the defendant who contributed the fund will usually have no interest in how the fund is divided between the plaintiffs and class counsel.\n2. The Percentage-of-the-Fund Method for Calculating Fees\nHistorically, courts exercised considerable discretion and applied a reasonableness standard, focusing upon the particular circumstances of a case, in determining the amount of a common fund fee award. The percentage-of-the-fund method of calculating attorneys’ fees in common fund cases was most common. See Pettus, 113 U.S. at 128, 5 S.Ct. at 393 (paying successful attorneys a percentage of the fund recovered for the class). See also Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 242 (1986) (“Third Circuit Task Force Report’’).\n3. The Lodestar and Twelve-Factor Tests\nThe application of a percentage-of-the-fund approach sometimes resulted in large fee awards, and in the 1970s several courts began a movement to alternative methods of calculating attorneys’ fees. In 1973, the Third Circuit led the way in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973), instructing judges in that circuit to first compute the product of the reasonable hours expended and the reasonable hourly rate to arrive at the “lodestar.” That amount could then be adjusted upward or downward, based upon additional factors such as the contingent nature of the case and the quality of the attorneys’ work. This so-called “lodestar/multiplier” approach thus shifted the emphasis from a fair percentage of recovery to the value of the time expended by counsel.\nA year later in a case involving a fee-shifting statute rather than a common fund, the Fifth Circuit identified twelve factors as relevant to determining a reasonable fee award: 1) the time and labor required; 2) the novelty and difficulty of the questions involved; 3) the skill requisite to perform the legal services properly; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or other circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the “undesirability” of the ease; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), abrogated in part on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).\nAfter the emergence of Lindy and Johnson, the federal courts experimented with combinations of the Lindy lodestar and Johnson twelve-factor approaches in both common fund and fee-shifting contexts. In the context of the fee-shifting statutes, the lodestar approach but without enhancement for the Johnson factors has emerged as the prevailing method of fee calculation. See, e.g., City of Burlington v. Dague, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); King v. Palmer, 950 F.2d 771 (D.C.Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 3054, 120 L.Ed.2d 920 (1992). However, at the same time, many courts and commentators have noted differences between the fee-shifting and common fund cases, raising questions as to whether the same methodology should apply. A Third Circuit task force appointed to compare the respective merits of the lodestar and percentage-of-the-fund approaches concluded that the lodestar technique, at least as encumbered with the Johnson factors, is a “cumbersome, enervating, and often surrealistic process of preparing and evaluating fee petitions that now plagues the Bench and Bar.” Third Circuit Task Force Report, 108 F.R.D. at 255.\nThe task force enumerated nine deficiencies in the lodestar process: 1) it “increases the workload of an already overtaxed judicial system”; 2) the elements of the process “are insufficiently objective and produce results that are far from homogeneous”; 3) the process “creates a sense of mathematical precision that is unwarranted in terms of the realities of the practice of law”; 4) the process “is subject to manipulation by judges who prefer to calibrate fees in terms of percentages of the settlement fund or the amounts recovered by the plaintiffs or of an overall dollar amount”; 5) the process, although designed to curb abuses, has led to other abuses, such as “encouraging lawyers to expend excessive hours engag[ing] in du-plicative and unjustified work, inflating] their ‘normal’ billing rate[s], and includ[ing] fictitious hours”; 6) it “creates a disincentive for the early settlement of cases”; 7) it “does not provide the' district court with enough flexibility to reward or deter lawyers so that desirable objectives, such as early settlement, will be fostered”; 8) the process “works to the particular disadvantage of the public interest bar” because, for example, the “lodestar” is set lower in civil rights cases than in securities and antitrust cases; and 9) despite the apparent simplicity of the lodestar approach, “considerable confusion and lack of predictability remain in its administration.” Id. at 246-49.\nThe task force, though recommending the retention of a lodestar approach in statutory fee cases, concluded that in common fund cases the best determinant of the reasonable value of services rendered to the class by counsel is a percentage of the fund. Id. at 255.\nThe Eleventh Circuit has, after reviewing criticisms of the lodestar method and the findings of the Third Circuit task force, specifically established the percentage-of-the-fund, not the lodestar, approach as applicable in all common fund cases in that circuit. Camden I Condominium Ass’n, Inc. v. Dunkle, 946 F.2d 768, 774 (11th Cir.1991). Other cases also offer evidence of a trend toward percentage-of-the-fund calculations in common fund cases. See, e.g., Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir.1989) (setting attorney fee benchmark of 25% of common fund); Brown v. Phillips Petroleum Co., 838 F.2d 451 (10th Cir.) (holding fee award representing 16.5% of fund not a per se abuse of discretion), cert. denied, 488 U.S. 822, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); In re Avon Prods., Inc. Sec. Litig., Fed.Sec.L.Rep. (CCH) ¶ 97,061, 1992 WL 349768 (S.D.N.Y.1992) (awarding 30% fee); In re Workers’ Compensation Ins. Antitrust Litig., 771 F.Supp. 284 (D.Minn.1991); In re SmithKline Beckman Corp. Sec. Litig., 751 F.Supp. 525 (E.D.Pa.1990); In re Activision Sec. Litig., 723 F.Supp. 1373, 1377-78 (N.D.Cal.1989) (adopting policy of awarding 30% of the fund “absent extraordinary circumstances that suggest reasons to lower or increase the percentage”); Mashburn v. National Healthcare, Inc., 684 F.Supp. 679 (M.D.Ala.1988); Pray v. Lockheed Aircraft Corp., 644 F.Supp. 1289, 1311 (D.D.C.1986); In re Warner Communications Sec. Litig., 618 F.Supp. 735, 749-50 (S.D.N.Y.1985), aff'd, 798 F.2d 35 (2d Cir.1986); In re Superior Beverage/Glass Container Consol. Pretrial, 133 F.R.D. 119 (N.D.Ill.1990); see generally Third Circuit Task Force Report, 108 F.R.D. at 247 n. 32 (listing cases).\nNeither this Court nor the Supreme Court has recent authority clearly controlling the question of the appropriate fee award methodology in the common fund' context. We have at times applied a lodestar approach in common fund cases. See, e.g., National Treasury Employees Union v. Nixon, 521 F.2d 317, 320-22 (D.C.Cir.1975). More recently, we engaged in both a lodestar/multiplier analysis and a percentage-of-the-fund calculation in the same case using the results of each to bolster the other. In Bebchick v. Washington Metro. Area Transit Comm’n, 805 F.2d 396, 406-07 (D.C.Cir.1986), we awarded a fee representing twenty-five percent of the common fund which, we noted, approximated the lodestar plus a sixty percent\" enhancement for the contingency of success and compensation, the high quality of representation, and the public benefit involved.\nThe Supreme Court, while frequently dealing with the lodestar approach in the'fee-shifting context, see, e.g., cases collected in Burlington v. Dade, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), has not lately spoken to the common fund fee issue. However, the latest guidance from the High Court counsels the use of a percentage-of-the-fund methodology. In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), where the Court approved the use of the lodestar method in a statutory fee-shifting context, the Court distinguished the common fund cases stating: “[u]nlike the calculation of attorney’s fees under the ‘common fund doctrine,’ where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under [the fee-shifting statute before the Courtl reflects the amount of attorney time reasonably expended on the litigation.” Id. at 900 n. 16, 104 S.Ct. at 1550 n. 16. Although this language is dicta, as Blum involved no common fund, it is entirely consistent with the Court’s decision four years earlier in Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980), in which the Court approved a fee award based on the percentage-of-the-fund method in a common fund case. More importantly, the Blum footnote makes it plain that that decision’s approval of the lodestar method in the fee-shifting context was not intended to overrule prior common fund eases, such as Boeing.\nHHS argues that Burlington and King, though involving fee-shifting statutes, supply reasoning applicable to common fund fee awards because both situations require the court, rather than the market, to determine the value of the lawyer’s services. According to HHS, in a common fund case such as this, the only possible reason to pay counsel more than the lodestar is to compensate them for the risk that they would recover nothing. But, HHS argues, Burlington and King “prohibit paying an attorney’s fee higher than the lodestar when such an enhancement is designed to compensate counsel for the risk that they would lose the case and thus receive no fees.” HHS Br. at 22-23. The Secretary argues that because Burlington and King abandon prior methods of calculating the lodestar and then enhancing it for risk of loss in a common fund fee award, and because Burlington deals in detail with the theoretical and practical concerns of court-ordered fees higher than the lodestar in contingent situations, it, rather than the brief footnote in Blum, supplies the controlling law. HHS concludes that the hospitals’ attorneys cannot receive more than the $619,-000 they have already been paid, which constitutes the District Court’s already generous calculation of the lodestar.\nWe disagree with the proposition that Burlington and King mandate an unenhanced lodestar approach in common fund cases. An important assumption underlying the Secretary’s assertion that Burlington and King forbid the award of attorneys’ fees beyond the lodestar — that fee-shifting cases are in all relevant respects similar to common fund cases — does not withstand scrutiny. In our judgment, Burlington and King do not govern common fund awards because of several important, and ultimately decisive, differences between the two types of cases.\nFirst and most obviously, there is often no resulting fund in fee-shifting cases, so the alternative of using a percentage-of-the-fund method to calculate attorneys’ fees is not necessarily available. As a leading treatise on attorney fee awards explains:\nFee awards authorized by statute are payable by a losing defendant whether or not there has been any monetary'recovery for the named plaintiffs or for a class, in contrast to common fund fee awards that are payable of the fund recovered. Because statutory fees are payable to prevailing parties to encourage private enforcement of statutes and deter violations, and because the results obtained are often non-monetary or modest recoveries, a formula for a reasonable statutory fee award based on a percentage of the recovery is not usually available to the courts.\nNewberg, Attorney Fee Awards § 1.10, at 17 (1986) (emphasis added) (footnotes omitted).\nSecond, and perhaps more importantly, using the lodestar approach in common fund cases encourages significant elements of inefficiency. First, attorneys are given incentive to spend as many hours as possible, billable to a firm’s most expensive attorneys. Second, there is a strong incentive against early settlement since attorneys will earn more the longer a litigation lasts. See In re Union Carbide Corp. Consumer Prods. Business Sec. Litig., 724 F.Supp. 160, 167 (S.D.N.Y.1989); In re Activision Sec. Litig., 723 F.Supp. 1373 (N.D.Cal.1989). Arguably, the lodestar method may encourage some inefficiency even in the fee-shifting context, but there the risk is not as great nor the alternative as readily available as in the common fund cases. So far as the degree of risk of inefficiency, attorneys in fee-shifting cases not involving a common fund know that the two most determinative factors affecting their fees after Burlington are winning, without which there is no award, and reasonableness of time expended and rate as determined in adversarial context. Working additional hours beyond those efficiently allocated to the case does not appreciably enhance the first yet risks unrewarded effort determined in the second.\nIn the common fund case, by contrast, victory is still the key factor, but, as in the present ease, the monetary amount of the victory is often the true measure of success, and therefore it is most efficient that it influence the fee award. That is, in the common fund case, if a percentage-of-the-fund calculation controls, inefficiently expended hours only serve to reduce the per hour compensation of the attorney expending them. On the other hand, if we apply the lodestar method to the common fund case, then the attorney inefficiently expending an excess amount of time does stand to gain by that inefficiency if the awarding court does not ultimately recognize the inefficiency in the far-from-exact testing of the fee award hearing. The danger that the court will not recognize unreasonably expended hours is magnified by the fact that in the common fund case the only party having an adverse interest at the time of the award will be the attorney’s own clients, often a diverse and scattered group with small individual stakes. The opposing party in the common fund case, unlike the loser in a fee-shifting ease, stands to lose no more if the attorneys’ fee award is greater and therefore cannot be relied upon to provide an adversarial approach to deleting unreasonable time entries.\nFurthermore, a percentage-of-the-fund approach more accurately reflects the economics of litigation practice. The district court in Howes v. Atkins, 668 F.Supp. 1021 (E.D.Ky.1987), noted that “[plaintiffs’ litigation practice, given the uncertainties and hazards of litigation, must necessarily be result-oriented. It matters little to the class how much the attorney spends in time or money to reach a successful result.” Id. at 1025 (internal quotation marks omitted). Making a similar point, Judge Posner has recently argued that a percentage-of-the-fund approach most closely approximates the manner in which attorneys are compensated in the marketplace for these types of eases. Writing for the court in In re Continental Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir.1992), he noted:\nThe judicial task might be simplified if the judge and the lawyers spent their efforts on finding out what the market in fact pays not for the individual hours but for the ensemble of services rendered in a case of this character.... The class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis, with a similar outcome.\nObviously, a court setting a fee does not perfectly replicate the marketplace by assigning counsel a percentage of the common fund, but the device can approximate the market with reasonable accuracy. Mechanisms which may facilitate a judge in more closely approximating the market include: encouraging class counsel to enter into preliminary non-binding fee agreements with class members; surveying class members for their views about appropriate levels of compensation; and, as the Third Circuit task force suggests, considering the fee issue early in the litigation. Although the district judge in this case did not employ exactly those mechanisms, his approximation of the market appears well supported, especially given the notice to and response of the class.\nAdditionally, a percentage-of-the-fund approach is less demanding of scarce judicial resources than the lodestar method. The lodestar method makes considerable demands upon judicial resources since it can be exceptionally difficult for a court to review attorney billing information over the life of a complex litigation and make a determination about whether the time devoted to the litigation was necessary or reasonable. This Court has reiterated the Supreme Court’s warning that “ ‘[a] request for attorney’s fees should not result in a second major litigation.’” Bebchick, supra, at 401 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). It is much easier to calculate a percentage-of-the-fund fee than to review hourly billing practices over a long, complex litigation.\nA related weakness in the lodestar approach is that it often results in a substantial delay in distribution of the common fund to the class. The lodestar procedure requires detailed involvement by the District Court, evaluating the reasonableness of expenditure of attorney time and effort, and making comparative inquiries on reasonable rates for those services. Given the complexity of many class action lawsuits, combined with the degree of detailed review required and considering the heavy workload of most district court judges, lodestar calculation is likely to cause significant delay between the creation of a common fund and remuneration of class counsel. In contrast, the application of a percentage-of-the-fund methodology is relatively straightforward and much less time consuming.\nFor similar reasons, a percentage-of-the-fund approach is less subjective than the lodestar approach; under the former, the court need not second-guess the judgment of counsel as to whether a task was reasonably undertaken or hours devoted to it reasonably expended. See Third Circuit Task Force Report, 108 F.R.D. at 246 (“The elements of the Lindy process are insufficiently objective and produce results that are far from homogeneous.”).\nHHS advances two further arguments in support of its conclusion that the attorneys’ fees in this case should be limited to the lodestar, which we briefly address. First, HHS reminds this Court that it has “a high obligation to do equity,” and urges that we should not grant a fee award that excessively diverts money from the common fund to pay for the lawyers. HHS asserts that the portion of the fund awarded to attorneys “could otherwise have been used by [the hospitals] for many far better purposes, such as to improve their service or their facilities, to provide medical care to the indigent, or to help them gain control over their costs.” HHS also suggests that we have a special obligation to “do equity” because the government, and by extension taxpayers, are the source of the common fund.\nWe find this argument to be without merit for multiple reasons. First, there is no evidence on how the money reimbursed to the hospitals will be spent. To the extent such a consideration is even appropriate or relevant, there is no reason on the record before us to conclude the hospitals would use the money they recover from the common fund for purposes any “better” than class counsel would. Second, HHS has failed to cite any case law or other authority for the novel proposition that a common fund case such as this one should be treated differently than other common fund cases simply because it successfully challenged illegal government action. Third, we are not convinced that a percentage-of-the-fund methodology will necessarily, or even routinely, result in larger fees. Admittedly it does in this case, but the Secretary provides, and we can discern, no reason to believe that this will be the general rule. We adopt a percentage-of-the-fund methodology not because it will pay lawyers more, but primarily because it is more efficient, easier to administer, and more closely reflects the marketplace.\nFourth, HHS’s argument can be made with equal validity (or invalidity) as to any amount of fee and in no readily discernable way distinguishes between this method and any other. We further note that the Secretary’s stated concern for money getting to the hospitals rings particularly hollow here given the history of this litigation. HHS would have this Court ignore the fact that the government, left to its own devices, would have paid nothing to reimburse hospitals for their photocopying expenses. HHS would also have us ignore the lengths to which the Department has gone, through repeated litigation, to avoid its statutory obligations in this matter.\nHH'S’s second argument is that this Court should assign no relevance to the fact that none of the plaintiff hospitals objected to their attorneys receiving twenty percent of the entire $27.8 million dollar fund. HHS asserts that the average economic stake in the fee issue for any hospital is only about $900, which is too small an amount to justify careful attention to the issue or the trouble of objecting to the proposed fee arrangement. Furthermore, HHS argues, there is no reason to believe that the hospitals who declared their support for the attorneys receiving twenty percent of the entire fund are a fair, representative sample of the opinions of the roughly 6,000 hospitals in the class.\nWe find this argument unconvincing as well. First of all, even if no significance is to be found in the hospitals’ failure to object to the proposed fee arrangement, this does not at all explain why significance should not be attached to the fact that a large number of hospitals, in contravention of their economic interests, took the trouble to affirmatively support the proposed fee settlement. Second, many of the hospitals, or health care systems, with the largest economic stake in this litigation were among the approximately 450 class members expressly endorsing the requested twenty percent of the common fund as a reasonable fee award.\nIn sum, we join the Third Circuit Task Force and the Eleventh Circuit, among others, in concluding that a pereentage-of-the-fund method is the appropriate mechanism for determining the attorney fees award in common fund cases. We now turn to the District Court’s application of that methodology to this case.\nB. Application of Percentage-of-the-Fund Methodology in this Case\nThe hospitals argue the District Court appropriately employed a percentage-of-the-fund approach in determining the fee, but abused its discretion in applying that methodology because it based the fee award on a number of erroneous factual and legal conclusions. HHS argues that even if a percentage-of-the-fund methodology is appropriate, the trial court abused its discretion in granting twenty percent rather than a smaller percentage of the fund.\nWe consider three distinct issues: first, whether twenty percent of the fund represents a reasonable fee in this ease; second, whether the District Court has the discretion to apply a percentage of the fund only to that part of a fund for which counsel is responsible; and third, whether the District Court reasonably concluded that in this case counsel was only responsible for $10 million of the value of the fund. We conclude the answer to each question is “yes.”\n1. Standard of Review\nIn general, a trial court enjoys substantial discretion in making reasonable fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). That discretion is premised upon the district court’s “superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Id.; see also Pierce v. Underwood, 487 U.S. 552, 563, 108 S.Ct. 2541, 2549, 101 L.Ed.2d 490 (1988) (holding that abuse-of-discretion standard governs appellate review of the trial court’s attorney fee determination).\nThe hospitals are of the view that the normal degree of deference is not due here because “this case was unusual in that it required no meaningful substantive participation by the District Court until the stipulation of settlement was offered for approv-al_” Appellants’ Br. at 20. According to appellants, “the District Court simply did not have the opportunity to develop the familiarity with the issues or the positions of the parties that would have resulted from disputatious discovery or a full-blown trial.” Id.\nWe find this argument to be without merit. We can hardly imagine a more futile and foolhardy endeavor than struggling to review each district court’s degree of familiarity with a case to decide how much deference to grant its findings and conclusions. Furthermore, it is far from unusual for a case to settle before trial — in fact, it may be the usual expectation. And, even if we accepted this argument as a general proposition, it would not apply here as Judge Oberdorfer had a high degree of familiarity with this case. Not only was he responsible for this case throughout the eighteen months of pretrial preparation, he was also the trial judge in the Beverly case, in which the primary legal issue underlying this litigation was decided.\n2. The Twenty Percent Figure\nWe are of the opinion that the District Court acted within its discretion in setting the percentage of the fund at twenty percent. The twenty percent figure is well within the range' of reasonable fees in common fund cases. As suggested in our discussion above, a review of similar cases reveals that a majority of common fund class action fee awards fall between twenty and thirty percent. Also, the already noted supportive response of the class members to the attorneys’ fee notice, though not decisive, is relevant to the District Court’s reasonableness determination.\nWe also hold that the court was within its discretion in basing its fee calculation only on that part of the fund for which counsel was responsible. The District Court’s conclusion that, to a considerable extent, this case rode “piggyback” on the Beverly case is entitled to deference, especially as Judge Oberdorfer was the district court judge in both cases. The hospitals argue that Beverly, by its terms, applied only to the plaintiffs in that case, so the issue of whether HHS was obliged to pay the copying expenses of the hospital plaintiffs in this case was still an open question. This argument is unpersuasive as Beverly represented binding precedent in this Circuit when the plaintiffs in this case filed their complaint.\"\nFinally, the hospitals’ attorneys argue that the conclusion that they were responsible for only $10,million in added value to the fund was based on misleading information supplied by HHS and misunderstandings of the record. We disagree. The District Court concluded that the method for calculating the number of pages to be reimbursed was not a matter of much dispute. The court also concluded that at the time this lawsuit was brought, HHS had proposed a regulation that would have paid $.0498 per page, whereas the eventual settlement agreement provided payment of $.07 per page. Based on the difference between these two figures, the District Court concluded that class counsel contributed about $10 million to the value of the common fund. We find substantial evidence in the record to support these conclusions and do not think the court abused its discretion in reaching them.\nIV. Conclusion\nFor the reasons stated herein, we conclude that percentage-of-the-fund is the proper method for calculating fees in a common fund case. We also hold that in this case the District Court did not abuse its discretion in calculating either the percentage to be used or the amount of the fund that resulted from the efforts of counsel. Accordingly, we affirm the District Court’s judgment in all respects.\nSo ordered.\n. Indeed, it would appear that there is some question whether the government has standing in this case since it is not immediately apparent what the government's interest is in the apportionment of a common fund, once the fund has been established and the government has surrendered all control over it. This issue, however, previously has been resolved in favor of affording the government standing. See Freeman v. Ryan, 408 F.2d. 1204, 1206 (D.C.Cir.1968); see also Allen v. United States, 606 F.2d 432, 434 (4th Cir.1979); Jackson v. United States, 881 F.2d 707, 709 (9th Cir.1989) (finding government has \"ancillary standing” in fee issue by virtue of its status as party to case in chief). We are bound by the Freeman decision.\n. Although Johnson is a statutory fee case, rather than a common fund case, a number of courts have applied the Johnson analysis to common fund contexts as well. See, e.g.. Brown v. Phillips Petroleum Co., 838 F.2d 451 (10th Cir.), cert. denied, 488 U.S. 822, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); In re Terra-Drill Partnerships Sec. Litig., 733 F.Supp. 1127, 1130 (S.D.Tex.1990). See also cases collected in Newberg, Attorney Fee Awards, § 2.06 (1986 & Supp.1992).\n. Obviously, we would not exactly duplicate this calculation today as we have generally disavowed the use of enhancement, in recognizing that enhancing factors are reflected in the original lodestar, King v. Palmer, 950 F.2d 771 (D.C.Cir.1991) (en banc), cert. denied, - U.S. -, 112 S.Ct. 3054, 120 L.Ed.2d 920 (1992). However, at the time of Bebchick, that dual-calculation exercise was consistent with Circuit precedent as established in Puerto Rico v. Heckler, 745 F.2d 709 (D.C.Cir.1984), in which we considered both the lodestar and the percentage of the fund as \"indicia of overall reasonableness\" in calculating a fee award. Id. at 714.\n. We recognize, as the separate opinion of Judge Ginsburg points out, that Bebchick did begin with a lodestar analysis followed by a percentage-of-the-fund calculation. Nonetheless, the Bebchick court did expressly recognize that “where the fees, as here, will come out of a 'common fund,’ ‘a reasonable fee is based on a perccntage-of-the-fund bestowed on the class.’ ” 805 F.2d at 406 (quoting Blum, 465 U.S. at 900 n. 16, 104 S.Ct. at 1550 n. 16). Most importantly, the Bebchick panel did not find it necessary to choose between the lodestar and percentage-of-the-fund methods as we must do in the present case given the disparity of the results here. Therefore, Bebchick does not control this case. We do not intend to imply, as the separate opinion suggests, that City of Burlington compels the result we reach today. Rather, it merely supports it as we discuss above. The last Supreme Court pronouncement directly on this subject seems to have been footnote 16 in Blum and, while dicta, that pronouncement would seem to support if not compel our result. That the resulting fee may appear high is not to say that the method for calculating it is incorrect.", "type": "majority", "author": "SENTELLE, Circuit Judge:"}, {"text": "Circuit Judge D.H. GINSBURG,\nconcurring in part and dissenting in part:\nI join in the opinion of the court insofar as it upholds the district court’s decision to reduce the fee award from $5.6 million to $2 million. I dissent, however, insofar as the court relies upon the percentage-of-the-fund approach as the only permissible measure of a reasonable fee in a common fund case.\nThe authority controlling a common fund case in this circuit is Bebchick v. W.M.A.T.A., 805 F.2d 396, 406-07 (D.C.Cir.1986). Under that precedent, the lodestar is the starting point for calculating a fee award and the percentage-of-the-fund it represents is merely a secondary check upon the reasonableness of the resulting award.\nNeither this court nor the Supreme Court has ever in a common case cast doubt upon the continuing vitality of this approach. Cf. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (dictum in a statutory fee shifting case). Both City of Burlington v. Dague, —— U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), and King v. Palmer, 950 F.2d 771 (D.C.Cir.1991), were brought under fee-shifting statutes. According to the Supreme Court, the plaintiffs were not entitled to a risk enhancement principally because the statute authorized the award of a fee only to a “prevailing parity].” Because that constraint is absent in a non-statutory common fund case, we find the question of enhancement in such a case precisely where Bebchick left it.\nFar from being indicated by the Supreme Court’s decision in City of Burlington, as the court implies, the percentage-of-the-fund approach seems actually to be at odds with that decision. The Supreme Court there clearly assumed that the lodestar was the appropriate starting point in calculating a reasonable fee. Contrary to my colleague’s implication, however, that assumption was not compelled; many cases brought under fee-shifting statutes produce a common fund that could provide the measure of a reasonable fee. See e.g. Kientzy v. McDonnell Douglas Co., 990 F.2d 1051 (8th Cir.1993) ($600,000 award in sex discrimination case); King v. Palmer, 950 F.2d 771 (award of back pay). Were a percentage-of-the-fund approach so clearly preferable, it could be applied to such eases, with the lodestar reserved for instances in which there is no fund from which to calculate a reasonable award.\nI realize that the percentage-of-the-fund approach is appealingly simple to administer. Whatever the problems associated with applying the lodestar, however, see supra Ct. Op. at 1267,1268-69, they are no greater in a common fund case than in a fee-shifting case. Moreover, reliance upon the percentage-of-the-fund approach without any regard for the lodestar may produce excessively high awards and thus encourage even relatively non-meritorious cases to be brought. This is a case in point: since the fee award here comes to about 3.3 times what it would be using the lodestar, the case would have been worth bringing (i.e., would have given counsel an ex ante probability of earning the lodestar rate) even if the plaintiff had only a 30% chance of success.\nIn order to ensure that we do not encourage the litigation of less meritorious claims, any enhancement above the lodestar should be limited to what is reasonable in the particular case — again as illustrated in Bebchick. The district court ought to be required to give some special reason for authorizing any amount more than twice the lodestar — which is to say, any amount that makes it remunerative for lawyers to bring cases with less than a 50% chance of success. Perversely, however, the approach adopted by the court today will encourage counsel to bring just such relatively non-meritorious claims. The potential for recovering a fee that is all out of proportion to the resources expended on the litigation means that counsel need win only occasionally in order to make a profit. The result will be to burden with crap-shoot cases a system already overburdened with close cases.\nIn this case the district court offered no justification whatsoever for an award so disproportionate to (3.3x) the lodestar. I would remand the matter for the district court either to explain or to revise its award of $2 million for legal work that, if billed at counsels’ hourly rate, would have fetched only $619,000.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Circuit Judge D.H. GINSBURG,"}], "attorneys": ["J. Mark Waxman, Los Angeles, CA, of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, argued the cause for appellant/cross-appellee. With him on the brief were Margaret M. Manning and Robert A. Klein, Los Angeles, CA.", "Frank A. Rosenfeld, Attorney, U.S. Dept, of Justice, Washington, DC, argued the cause for appellee/cross-appellant. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. at the time the brief was filed, and William Kanter, Attorney, U.S. Dept, of Justice. John D. Bates, R. Craig Lawrence, and Susanne Marie Lee, Asst. U.S. Attys., Washington, DC, also entered appearances for appellee/cross-appel-lant."], "corrections": "", "head_matter": "SWEDISH HOSPITAL CORPORATION, et al., Appellants, v. Donna E. SHALALA, Secretary of Health and Human Services. SWEDISH HOSPITAL CORPORATION, et al. v. Donna E. SHALALA, Secretary of Health and Human Services, Appellant.\nNos. 92-5061, 92-5155.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued April 5, 1993.\nDecided Aug. 10, 1993.\nJ. Mark Waxman, Los Angeles, CA, of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, argued the cause for appellant/cross-appellee. With him on the brief were Margaret M. Manning and Robert A. Klein, Los Angeles, CA.\nFrank A. Rosenfeld, Attorney, U.S. Dept, of Justice, Washington, DC, argued the cause for appellee/cross-appellant. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. at the time the brief was filed, and William Kanter, Attorney, U.S. Dept, of Justice. John D. Bates, R. Craig Lawrence, and Susanne Marie Lee, Asst. U.S. Attys., Washington, DC, also entered appearances for appellee/cross-appel-lant.\nBefore: D.H. GINSBURG, SENTELLE, and RANDOLPH, Circuit Judges."} | D.H. GINSBURG | SENTELLE | RANDOLPH | 1 | 2 | 1 | 1 | 0 | 0 | 1 F.3d 1261 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
10,517,383 | Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, American Historical Association and American Library Association, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants; Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants. (Two Cases); Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies; American Historical Association; American Library Association, Plaintiffs-Appellants, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellees | Armstrong v. Executive Office of the President | 1993-08-13 | Nos. 93-5002, 93-5048, 93-5156 and 93-5177 | United States Court of Appeals for the District of Columbia Circuit | {"judges": ["Before MIKVA, Chief Judge; WALD and HENDERSON, Circuit Judges."], "parties": ["Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, American Historical Association and American Library Association, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants. Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants. (Two Cases) Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies; American Historical Association; American Library Association, Plaintiffs-Appellants, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellees."], "opinions": [{"text": "Opinion for the Court filed PER CURIAM.\nPER CURIAM:\nThis consolidated appeal presents us with important questions of federal agencies’ statutory obligations to manage electronic records as well as issues related to the appropriate use of the civil contempt power to coerce conformity with district court orders.\nIn the flagship portion of the appeal, defendants-appellants — the Executive Office of the President (“EOP”), the Office of Administration, the National Security Council (“NSC”), the White House Communications Agency, and Trudy Peterson, Acting Archivist of the United States' — challenge the district court’s conclusion that EOP and NSC guidelines for managing electronic documents do not comport with Federal Records Act (“FRA” or the “Act”) requirements. More specifically, these government agencies and officials contend that, contrary to the court’s ruling, they have, in the past, reasonably discharged their FRA obligations by instructing employees to print out a paper version of any electronic communication that falls within the statutory definition of a “record” and by managing the “hard-copy” documents so produced in accordance with the Act. We reject the government’s argument on this score. The government’s basic position is flawed because the hard-copy printouts that the agencies preserve may omit fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and/or recipient and the time of receipt.\nThe defendants also appeal the district court’s order holding them in civil contempt of its prior order enjoining the Archivist to “take all necessary steps” to preserve federal records and requiring the defendant agencies not to remove, alter, or delete any information until the Archivist takes action to prevent the destruction of federal records. More specifically, they contest the district court’s contempt citation grounded in the court’s conclusions that (1) the defendant agencies failed to issue adequate recordkeep-ing instructions to employees in the four months after their former guidelines were held invalid and (2) the transfer of nearly 6,000 backup tapes to the Archivist “adversely affected” those tapes. Because the district court orders on which the contempt citation rests did not specify that the defendants had an affirmative duty to create new guidelines by a date certain, the district court abused its discretion in holding the defendants in contempt at least in part because of their failure to issue such guidelines within four months. We remand to allow the district court to determine whether, in light of the defendants’ speeded-up attempts in recent months to assure preservation of the tapes, its second ground, the failure to preserve these tapes, by itself, justifies a contempt citation.\nFinally, we are presented with a cross-appeal. The plaintiffs-cross-appellants— Scott Armstrong, the National Security Archive, and several other researchers and nonprofit organizations — take issue with the district court’s conclusion that federal courts have no authority to review NSC and Office of Science & Technology Policy (“OSTP”) guidelines differentiating federal records subject to the FRA from presidential records subject to the Presidential Records Act (“PRA”), 44 U.S.C. § 2201 et seq. Contrary to the district court, we conclude that the PRA allows limited review to assure that guidelines defining presidential records do not improperly sweep in nonpresidential records. Accordingly, we remand to the district court to determine whether the relevant NSC and OSTP directives categorize nonpre-sidential records as subject to the PRA.\nI. BACKGROUND\nA. Statutory Framework\nFederal agencies’ records creation, management, and disposal duties are set out in a collection of statutes known collectively as the Federal Records Act. See 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq. The FRA, Congress informs, is intended to assure, among other things, “[a]e-curate and complete documentation of the policies and transactions of the Federal Government,” “[cjontrol of the quantity and quality of records produced by the Federal Government,” and “[jjudicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (2), (5); see also Armstrong v. Bush, 924 F.2d 282, 292 (D.C.Cir.1991) (“Armstrong I ”) (the FRA is intended to guarantee that agencies’ records management programs “strike a balance ‘between developing efficient and effective records management, and the substantive need for Federal records’ ”) (quoting S.Rep. No. 1326, 94th Cong., 2d Sess. 2 (1976)). To achieve those ends, the FRA burdens the heads of federal agencies with several obligations. Most basically, each agency head must “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.” 44 U.S.C. § 3101. Moreover, under the Act, agency chiefs must also “establish and maintain an active, continuing program for ... economical and efficient [records] management,” id. § 3102, and “establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist.” Id. § 3105; see also Armstrong I, 924 F.2d at 293 (noting that these provisions, as well as others, furnished “law to apply” under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 701(a)(2), and thus permitted judicial review of agency recordkeeping guidelines’ conformity with the FRA).\nBesides assigning specific duties to agency heads, the FRA prescribes the exclusive mechanism for disposal of federal records. See 44 U.S.C. § 3314 (no records may be “alienated or destroyed” except in accordance with the FRA’s provisions). For these purposes, “records” are defined as\nall books, papers, maps, photographs, machine readable [ie., electronic] materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.\nId. § 3301. If a document qualifies as a record, the FRA prohibits an agency from discarding it by fiat. See American Friends Service Committee v. Webster, 720 F.2d 29, 62 (D.C.Cir.1983) (“Congress did not intend to grant [the agency] ... a blank check for records disposal.”)- Instead, the FRA requires the agency to procure the approval of the Archivist before disposing of any record. Cf. id. at 63. Normally, that approval may be obtained in one of two ways. First, an agency may submit a schedule of records sought to be discarded to the Archivist, who will sign off on the records’ destruction only if she concludes that they do not “have sufficient administrative, legal, research, or other value to warrant their continued preservation.” 44 U.S.C. § 3303a(a). Second, the agency may jettison certain common types of records pursuant to disposal schedules promulgated in advance by the Archivist (the disposal schedules are, of course, designed to take into account the FRA’s goal of preserving documents of “administrative, legal, research, or other value”). Id. § 3303a(d).\nUnder the FRA, the Archivist’s duties are not limited to judging the suitability of records for disposal. In addition, the Archivist must “provide guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal Government and ensuring proper records disposition,” id. § 2904(a), “promulgate standards, procedures, and guidelines with respect to records management,” id. § 2904(c)(1), and “conduct inspections or surveys of the records and the records management programs and practices within and between Federal agencies.” Id. § 2904(c)(7). The Archivist also plays a key role in the FRA’s enforcement scheme. If she discovers that an FRA provision has been or is being breached, the Archivist must (1) inform the agency head of the violation and suggest corrections and (2) if ameliorative measures are not undertaken within a reasonable time, submit a written report to Congress and the President. Id. § 2115(b). Also, should the Archivist become aware of any “actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency,” she must notify the agency head of the problem and assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress. Id. § 2905(a); see also id. § 3106 (requiring agency heads to notify the Archivist of any unlawful destruction or removal of records and placing upon them an independent-duty to seek legal action through the Attorney General to recover the records). If the agency head is recalcitrant in pursuing legal remedies, the Archivist herself is to (1) request the Attorney General to initiate action and (2) inform Congress that she has made that- request. I'd. § 2905(a); see also Armstrong I, 924 F.2d at 295 (holding that “if the agency head or Archivist does nothing while an agency official destroys or removes records in contravention of agency guidelines and directives, private litigants may bring suit to require the agency head and Archivist to fulfill their- statutory duty to notify Congress and ask the Attorney General to initiate legal action”).\nB. The NSC and EOP Electronic Communications Systems\nSince the mid-1980s, the NSC and the EOP have utilized electronic communications systems to improve their operational efficiency. These systems allow employees to create and share electronic appointment calendars as well as to transfer and edit word processing documents, but it is their electronic mail (or “e-mail”) capacity that has racked up the most mileage. The 1,300 federal employees with access to the EOP and NSC electronic mail systems can, and apparently do, utilize them to relay lengthy substantive — even classified — “notes” that, in content, are often indistinguishable from letters or memoranda. But, in contrast to its paper cousin, e-mail can be delivered nearly instantaneously at any time of the day or week. And, in contrast to telephone conversations, e-mail automatically creates a complete record of the exact information users send and receive.\nOther attributes of the EOP and NSC electronic mail systems are also relevant here. First, these systems give recipients the option of storing notes in their personal electronic “log.” After receiving a message, a user may instruct the computer to delete the note; otherwise, it will be stored in her log for later use. Second, both the recipient and the author of a note can print out a “hard copy” of the electronic message containing essentially all the information displayed on the computer screen. That paper rendering will not, however, necessarily include all the information held in the computer memory as parCbf the electronic document. Directories, distribution lists, ac-knowledgements of receipts and similar materials do not appear on the computer screen — and thus are not reproduced when users print out the information that appears on the screen. Without this “non-screen” information, a later reader may not be able to glean from the hard copy such basic facts as who sent or received a particular message or when it was received. For example, if a note is sent to individuals on a distribution list already in the computer, the hard copy may well include only a generic reference to the distribution list (e.g., “List A”), not the names of the individuals on the list who received the document. Consequently, if only the hard copy is preserved in such situations, essential transmittal information relevant to a fuller understanding of the context and import of an electronic communication will simply vanish. A final relevant fact here is that the individual note logs are not the only electronic repositories for information on the e-mail system. The defendant agencies periodically create backup tapes— snapshots of all the material stored on these electronic communications systems at a given time — that can be used later for retrieval purposes.\nC. Procedural History\nOn January 19, 1989, the final day of the Reagan Presidency, the National Security Archive filed several Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests for all the material stored on the EOP and NSC electronic communications systems from their installation in the mid-1980s up to that time. Simultaneously, the plaintiffs filed this suit for a declaration that the electronic documents contained on the NSC and EOP electronic communications systems and back-up tapes were federal and presidential records and an injunction prohibiting those documents’ destruction. After agreeing to preserve the electronic tapes, the defendants filed a motion in the district court for dismissal or, in the alternative, for summary judgment. After that motion was denied, see Armstrong v. Bush, 721 F.Supp. 343 (D.D.C.1989), this court, on interlocutory appeal, settled several threshold issues in the litigation. Specifically, we held that the plaintiffs had standing to assert these claims because they were within the zone of interests of the records management provisions of the PRA and the FRA, see Armstrong I, 924 F.2d at 287-88, but that the President was not an agency under the APA and that the PRA impliedly precluded judicial review of the President’s record creation, management, and disposal decisions under that statute. See id. at 288-91. We said, however, that the plaintiffs could seek judicial review of (1) agency guidelines’ conformity to the FRA and (2) the agency heads’ and Archivist’s discharge of their FRA-derived responsibility to take action to prevent destruction or removal of federal records. See id. at 291-96. We then remanded the case to allow for supplementation of the record as to the precise guidance — written and oral — that the defendant agencies had given employees. See id. at 296-97.\nOn remand, the parties developed an extensive record, including a Joint Statement of Facts (the “Joint Statement”), and, on January 6,1993, the district court issued its ruling on all the FRA issues raised by the plaintiffs (the plaintiffs’ FOIA claims remain undecided). See Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C.1993). In that ruling, the district court first addressed whether the communications stored in these electronic communications systems constituted federal records. Because the FRA’s definition of “records” includes material “regardless of physical form or characteristics,” the court concluded that substantive communications otherwise meeting the definition of federal “records” that had been saved on the electronic mail came within the FRA.’s purview. See id. at 340-41.\nThe court then found that the defendants’ current practices for electronic records management were deficient in two key respects. First, assuming arguendo that the defendant agencies unequivocally informed their staffs to print out all on-screen information of any electronic note that qualified as a federal record (an assumption that the plaintiffs have vigorously contested throughout this litigation), that instruction was not adequate to meet the FRA’s requirements because the “electronic material ... [is] qualitatively different than a copy printed out in paper form.” Id. at 341. The district court emphasized that unless employees also printed out the transmittal information stored in the computer but not appearing on screen, the hard copies preserved in the paper files would not necessarily contain all the important items retained in the electronic system. See id. (“A paper copy of the electronic material does not contain all of the information included in the electronic version.”); see also Appellants’ Brief at 22 (“[The defendant agencies] do not require that all information related to an electronic message be preserved, but only that information that is captured when the message screen is printed or incorporated into a written memorandum.”). Specifically, data “regarding who has received the information and when the information was received” might well be omitted from the paper versions. 810 F.Supp. at 341; see also id. at 346-47 (discussing NSC guidance).\nThe court found a second flaw in the agencies’ records management practices: they failed to provide for any supervision of agency employees’ electronic recordkeeping practices. Noting that (1) the National Archives Records Management Handbook provided that only “records officers” should determine the status of FRA records and (2) the defendant agencies supervise staffers’ management of paper, but not electronic, records, the court concluded that the defendants’ failure to supervise employees’ electronic recordkeeping was arbitrary and capricious. See id. at 343; see also id. at 347 (discussing NSC guidance).\nFinally, the district court refused to adjudicate plaintiffs’ claim that the NSC guidelines did not adequately distinguish between federal and presidential records. The court found that our holding in Armstrong I precluded judicial review of any guideline affecting the status of a presidential record. See id. 810 F.Supp. at 347-48.\nTo implement its decision, the district court issued a multi-part declaratory and in-junctive order. The order, as amended, first declared that the defendant agencies’ current guidelines were arbitrary and capricious and contrary to law. See Amended Order, Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C.1993). Second, it enjoined the Archivist to “seek the assistance of the Attorney General with notice to Congress, and take all necessary steps to preserve, without erasure, all electronic Federal Records generated at the defendant Agencies.” Id. Finally, it enjoined all the defendants “from removing, deleting, or altering information on their electronic communications systems until such time as the Archivist takes action ... to prevent the destruction of federal records, including those records saved on backup tapes.” Id. In response to an emergency motion by the defendants, this court stayed this last requirement to the extent of allowing the agencies to “remove, delete, or alter” information so long as it was preserved elsewhere in identical form. See Armstrong v. Executive Office of the President, No. 93-5002 (D.C.Cir. Jan. 15, 1993).\nOn May 21, 1993, on petition of the plaintiffs, the district court found the defendants in civil contempt. See Armstrong v. Executive Office of the President, 821 F.Supp. 761 (D.D.C.1993). First, it found that interim guidance issued by the defendants in the wake of the court’s invalidation of their old guidelines was inadequate.' Accordingly, the court reasoned, the defendants were in contempt for not substantially complying with its orders requiring the agencies to preserve all records. See id., at 766-768. Second, the court held that the conditions surrounding the January 19,1993, inauguration-eve transfer of backup tapes from the White House to the National Archives, as well as the Archivist’s subsequent failure to recopy Reagan-era backup tapes nearing the end of their natural lifespan, violated the court’s orders requiring preservation of the tapes. This treatment of the backup tapes, including the failure to recopy deteriorating tapes, thus furnished an additional basis for the contempt citation. See id. at 768-771. The court then set out a list of specific acts that the defendants were required to undertake by June 21, 1993 to purge themselves of contempt; if the defendants failed to accomplish them, fines of $50,000 a day, to be doubled in subsequent weeks, would be imposed until the defendants cleansed themselves of their contempt. See Order, Am-strong v. Executive Office of the President, 821 F.Supp. 761 (D.D.C.1993).\nFollowing oral argument on June 15, 1993, this court stayed the district court’s contempt sanctions pending the outcome of this appeal. See Armstrong v. Executive Office of the President, No. 93-5002, et al. (D.C.Cir. June 15, 1993).\nII. The Validitv of CurREnt NSC and EOP Guidelines\nA. The Instruction to Print “Hard-Copy” Paper Versions\nWe first address appellants’ contention that the district court erred in finding that their pre-January-order instruction to print on-screen information from electronic federal records was inconsistent with the FRA. This question implicates two parts of this case. First, if the agencies’ policy of printing on-screen information did not result in “papering” all federal records material, then at least some federal records will be permanently lost or destroyed unless the electronic backup records, currently being retained pursuant to the district court’s orders, are preserved. This circumstance alone creates the predicate for an order requiring the Archivist and the relevant agency heads to take the statutorily prescribed steps to prevent the destruction of those tapes. Second, if this “print screen” policy — which was still in effect at the time the district court ruled in January — is inadequate under the FRA, then the district court appropriately issued a declaratory judgment invalidating its future use.\nIn proceeding to decision on this point, we adopt the district court’s assumption, based on the appellants’ submissions, that both the EOP and the NSC have consistently instructed employees, either orally or in writing, that when any electronic document meets the definition of a federal record, the employee should either print out the information that appears on her computer screen or incorporate that material into a written memorandum. See Appellants’ Brief at 7-8; see also id.- at 22 (“[The agencies] do not require that all information related to an electronic message be preserved, but only that information that is captured when the message screen is printed or incorporated into a written memorandum.”).\nAccepting appellants’ factual predicate, however, does not lead us to their legal conclusion that such an approach satisfies the Act. Our analysis is a straightforward one. We begin with the apparently undisputed proposition that the EOP and NSC electronic communications systems can create, and have created, documents that constitute federal records under the FRA. The FRA contemplates that documents qualifying as ree-ords may be stripped of that status only if they are “extra copies of documents preserved only for convenience of reference.” 44 U.S.C. § 3301. Applied to this case, that means that the mere existence of the paper printouts does not affect the record status of the electronic materials unless the paper versions include all significant material contained in the electronic records. ■ Otherwise, the two documents cannot accurately be termed “copies” — identical twins — but are, at most, “kissing cousins.” Since the record shows that the two versions of the documents may frequently be only cousins — perhaps distant ones at that — 'the electronic documents retain their status as federal records after the creation of the paper print-outs, and all of the FRA obligations concerning the management and preservation of records still apply. See, e.g., id- § 3105 (requiring agency heads to “establish safeguards against the removal or loss” of “records”); id. § 3314 (stating that “records” may only be “alienated or destroyed” in accordance with FRA provisions, ie., with the approval of the Archivist).\nTo qualify as a record under the FRA, a document must satisfy a two-pronged test. It must be (1) “made or received’ by an agency of the United States Government under Federal law or in connection with the transaction of public business” and (2) “preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in [it].” Id. § 3301. The appellants do not contest the fact that many, if not all, of the communications relayed over the electronic system satisfy the “public transaction” element of this test. At oral argument, the government appeared to acknowledge that the “preserved or appropriate for preservation” criterion was satisfied as well for some documents on the system.\nTo the extent any question remains, we reject the appellants’ argument, on brief, that agency heads have sweeping discretion to decide which documents are “appropriate for preservation” (since we reject this contention, we do not consider whether the disputed documents have also been “preserved”). The appellants have stipulated that the electronic communications systems “contain information on the organization, functions, policies, decisions, procedures, operations, and other activities” of the agencies. Joint Statement ¶ 64. Such documents could only fail to qualify as records if, despite their content, the agency has the inherent discretion to consider them en masse as not “appropriate for preservation ... as evidence of [the government’s] organization, functions, policies, decisions, procedures, operations or other activities,” 44 U.S.C. § 3301 (emphasis added), an odd proposition to assert in this case since the agency heads admit that they have never surveyed the contents of the electronic systems. See Joint Statement ¶ 67 (“Neither the EOP nor the NSC ha[s] conducted any formal examination, inspection, or survey to determine the types of communications recorded on the system, or the amount of information on the organization, functions, policies, decisions, procedures or other activities of the EOP or NSC recorded in [electronic] files.”); cf. American Friends, 720 F.2d at 65. In any case, while the agency undoubtedly does have some discretion to decide if a particular document satisfies the statutory definition of a record, see Armstrong I, 924 F.2d at 297 n. 14, the statute surely cannot be read to allow the agency by fiat to declare “inappropriate for preservation” an entire set of substantive e-mail documents generated by two administrations over a seven-year period. Cf. American Friends, 720 F.2d at 41 (“Congress was certainly aware that agencies, left to themselves, have a built-in incentive to dispose of records relating to [their] ‘mistakes’.... ”). Indeed, to conclude that agencies have broad discretion to exempt seven years of substantive documents from record status would flout our prior holding in Armstrong I that the FRA furnishes sufficient “law to apply” to permit judicial review of agency guidelines relating to the management of federal records. See Armstrong I, 924 F.2d at 293 (noting that the FRA contains a “detailed definition of the ‘records’ that agencies must preserve”) (emphasis added); see also id. (“Although the FRA understandably leaves the details of records management to the discretion of individual agency heads, it does contain several specific requirements.... ”).\nHaving established that the electronic communications systems contain preservable records, we turn finally to the question of whether the government has the discretion to convert only part of the electronic records to paper and then manage only the partial paper records in accordance with the FRA and the Archivist’s regulations. The question answers itself. Only one FRA provision exists that would even arguably sanction a document, once denominated a federal record, shedding that appellation at a later point. That provision states that “extra copies of documents preserved only for convenience of reference” are not “records.” 44 U.S.C. § 3301. But it is too tight a fit for the government to shoehorn the electronic records at issue here into that exception. Even assuming, without of course deciding, that one set of parallel documents retained in a different records system in a different medium than another set may be classified as a “cop[y]” under the FRA and thus subject to unobstructed destruction, the electronic records would still not qualify as “full reproduction[s] or transcription[s]; imitation[s] of a prototype; ... duplicated],” WebsteR’s New UniveRsal Unabridged Dictionary 404 (2d ed. 1979), of the paper print-outs. This is because important information present in the e-mail system, such as who sent a document, who received it, and when that person received it, will not always appear on the computer screen and so will not be preserved on the paper print-out. See Joint Statement ¶46 (“When printed on paper, a[n] [e-mail] note will not always identify the sender(s) and recipient(s) of a note by name. Instead, the sender(s) or recipient(s) may be identified only by (a) userid lie., user identification]; (b) nickname; or (c) the title given to a distribution list identifying several individuals. Identifying the names of the sender(s) or recipient(s) for such notes requires reference to the distribution lists or directories maintained only in electronic form.”) (emphasis added; record citations omitted); see also id. at ¶ 47 (“If requested, [the electronic communications system] will provide the sender of a note with a confirmation that it has been received, called an ‘acknowledgement.’ The acknowledgement records the date and time the addressee of the note opened his or her electronic mail. This information on the date and time the note is received does not appear on the paper copy of the note when it is printed-out.”) (record citations omitted). Since employees had never been — at least until the time of the district court’s January order — instructed to include these integral parts of the electronic record in any paper print-out, there is no way we can conclude that the original electronic records are mere “extra copies” of the paper print-outs. Cf. National Archives and Records Administration, Managing Electronic Records 19 (1990) (“Most agencies have decided to meet their recordkeeping requirements for documents that are created using word processing or electronic mail or messaging by printing those documents in hard copy. The success of this approach depends upon a clear understanding by all employees of the obligation to print and file all record material.”) (emphasis added).\nOur refusal to agree with the government that electronic records are merely “extra copies” of the paper versions amounts to far more than judicial nitpicking. Without the missing information, the paper print-outs— akin to traditional memoranda with the “to” and “from” cut off and even the “received” stamp pruned away — are dismembered documents indeed. Texts alone may be of quite limited utility to researchers and investigators studying the formulation and dissemination of significant policy initiatives at the highest reaches of our government. See 810 F.Supp. at 341 (noting that the omitted information may be “of tremendous historical value in demonstrating what agency personnel were involved in making a particular policy decision and what officials knew, and when they knew it”). The “[tjomorrow, and tomorrow, and tomorrow” of government will be allowed to “creep in [their] petty pace from day to day” without benefit of the “last syllable of recorded time.” William Shake-speaRE, Macbeth, Act V, scene v, line 19. In our view, as well as the district judge’s, the practice of retaining only the amputated paper print-outs is flatly inconsistent with Congress’ evident concern with preserving a complete record of government activity for historical and other uses. See 44 U.S.C. § 2902(1) (listing first among Act’s goals the “[accurate and complete documentation of the policies and transactions of the Federal Government”); see also Armstrong I, 924 F.2d at 288 (noting the “expressed statutory goal of preserving records for historical purposes”); American Friends, 720 F.2d at 57 (describing the FRA’s legislative history as demonstrating that “Congress intended, expected, and positively desired private researchers ... to have access to the documentary history of the federal government”); cf. 36 C.F.R. § 1222.38 (“Agency recordkeeping requirements shall prescribe the creation and maintenance of records of the transaction of agency business that are sufficient to: ... (e) Document the formulation and execution of basic policies and decisions and the taking of necessary actions, including all significant decisions and commitments reached orally (person to person, by telecommunications, or in conference).”). Perhaps that is why, in this court, the appellants seem to have abandoned their former heavy reliance on this theory.\nBefore us they plead an alternative, related, but no more compelling theory of statutory compliance: “that the extra information that plaintiffs argue must be preserved is in fact not always ‘appropriate for preservation’ as evidence of an agency’s essential transactions, and that printing the actual message text on the computer screen normally is sufficient for adequate documentation of the agency’s business. Since the printed copy is identical to what, is on the computer screen, the electronic version of the message that remains is a copy that is nonrecord within the meaning of the statute.” Reply Brief for Appellants at 9. In other words, the appellants contend that given the broad discretion vested in the agencies by the FRA, they may reasonably determine that some parts of a record document—the so-called “extra information”—are not “appropriate for preservation”; thus, after the creation of the paper records, the electronic version is a “copy” because the paper record contains all the material worth preserving from the electronic files.\nThis appeal to discretion, however, relies in the main on snippets of language from different parts of the FRA pasted together in ways incompatible with the overall design of the Act. As noted above, the “appropriate for preservation” phrase in the definition of “records” at most allows the agency some discretion in deciding whether a document meets that definition in the first place. See 44 U.S.C. § 3301 (providing that federal “records” must be, inter alia, “preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them”). It does not, as appellants imply, grant agencies the discretion to automatically lop off a predesignated part of a whole series of documents that qualify as records (nor would it allow the wholesale destruction of the directories and similar materials if they were perceived to be independent records, see supra note 8). In substance, the appellants are claiming that it satisfies the Act to preserve a second version of a record that is an approximation of the first version if it includes all the material that, in their view, is “appropriate for preservation.” Even if this argument made sense with respect to a particular document, it cannot be accepted across the board for seven years of records documenting high-level government decision-making. Further, as our discussion above makes clear, it cannot be squared with the FRA’s “extra copies” provision. The Act explicitly provides an “out” of the system for a federal record only when a second version is identical to—i.e., an “extra copy” of—the first. There is no provision accepting abbreviated or summary versions of the original as the only record if the summary contains all material deemed “appropriate for preservation.”\nEqually unconvincing is the appellants’ suggestion that Congress’ directive to preserve “adequate documentation” of agencies’ “essential transactions” justifies their practice of retaining only the “substantive information” displayed on the computer screen. The phrases “adequate documentation” and “essential transactions” are lifted from 44 U.S.C. § 3101, which states: “The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.” The purpose of this provision, by its own terms, is to place a general obligation on agency leaders to create and then retain a baseline inventory of “essential” records. See American Friends, 720 F.2d at 54; see also id. at 56 (summarizing legislative history of this provision and concluding that it provided an enforceable “across-the-board requirement” that agencies retain certain types of records); S.Rep. No. 2140, 81st Cong., 2d Sess. 15 (1950) (this provision “provides a general declaration by the Congress [to maintain adequate records]”). Other parts of the FRA, however, go on to prescribe more particularized duties for agency heads that reach beyond their general obligation to “adequately document” core agency functions. In particular, the Act includes (1) a separate definition of the term “records” that the appellants acknowledge sweeps in many of the electronic communications at issue here—whether or not preservation of those documents is necessary to maintain “adequate documentation” of “essential transactions”—and (2) other statutory provisions that mandate that all records—again, whether or not related to “adequate documentation” of “essential transactions”—be managed and retained in accordance with explicit statutory directives. See 44 U.S.C. § 3314 (“/RJecords ... may not be alienated or destroyed except under this chapter.”) (emphasis added); see also id. § 3105 (agency heads must “establish safeguards against the removal or loss of records ”) (emphasis added). In sum, appellants’ arguments fail to detour us from the analytical path we started down and now come close to finishing: (1) substantive e-mail communications satisfy the FRA definition of “records”; (2) the lone FRA provision for terminating then-status as such requires that they be merely “extra copies” of other- documents preserved elsewhere; and (3) since there are often fundamental and meaningful differences in content between the paper and electronic versions of these documents, the electronic versions do not lose their status as records and must be managed and preserved in accordance with the FRA.\nContrary to appellants’ assertions, the conclusion that agencies must retain and manage these electronic documents in no way collides with Congress’ oft-expressed intent to balance complete documentation with efficient, streamlined recordkeeping. See, e.g., S.Rep. No. 2140, 81st Cong., 2d Sess. 4 (1950) (“It is well to emphasize that records come into existence, or should do so, not in order to ... satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them.”). Our decision does not require that agencies, in appellants’ words, save “every scrap of paper” they create. Not all scribbles and off-the-cuff comments will qualify as federal records. Nor do we saddle agencies with any new obligations to make additional documents in order to satisfy the needs of researchers or investigators. Cf. Armstrong I, 924 F.2d at 288 (“[Plaintiffs do not seek the creation of any new records, but rather ask only that the records already created be appropriately classified and disposed of....”); S.Rep. No. 1326, 94th Cong., 2d Sess. 8 (1976), 1976 U.S.C.C.A.N. 6150, 6157 (emphasizing the need for economy in records creation because that is where 80% of total recordkeeping costs are incurred). Finally, our decision leaves undisturbed the agencies’ ability to purge incidental electronic records from their files by acting, with the Archivist’s approval, to dispose of those documents that lack “sufficient administrative, •legal, research, or other value to warrant their continued preservation.” 44 U.S.C. § 3303a(a); see also 55 Fed.Reg. 19,216, 19,-216 (1990) (Archivist notes that the burden of managing electronic records “can be reduced significantly by promptly scheduling all electronic records, thus limiting the application of [regulatory] requirements to the very small percentage of records that are sched-uléd as permanent”).\nIn sum, we find that the district court was fully justified in concluding that appellants’ recordkeeping guidance was not in conformity with the Act.\nB. Supervision of Electronic Recordkeeping Practices\nAppellants also dispute the district court’s finding that their records management practices were arbitrary and capricious in failing to provide for supervision or auditing of employees’ electronic recordkeeping practices by knowledgeable records management personnel. Specifically, appellants contend that they reasonably discharged their obligation to “safeguard” federal records by assigning records managers the task of providing oral and written guidance to agency personnel and making those recordkeeping experts available for resolution of specific problems.\nThe FRA explicitly requires each agency head to establish such safeguards against the removal or loss of federal records as she “determines to be necessary and required by regulations of the Archivist.” 44 U.S.C. § 3105; see also 36 C.F.R. § 1220.2 (“Federal agency records management programs must be in compliance with regulations promulgated by [the Archivist].”). In this case, the agency heads clearly failed to discharge this obligation.\nThe Archivist’s regulations provide:\nThe head of each Federal agency shall ensure that the management of electronic records incorporates the following elements: ...\n(,l) Reviewing electronic records systems periodically for conformance to established agency procedures, standards, and policies.... The review should determine if the records have been properly identified and described, and whether the schedule descriptions and retention periods reflect the current informational content and use....\nId. § 1234.10 (emphasis added). The Archivist has defined an “electronic records system” as “any information system that produces, manipulates, or stores Federal records by using a computer.” Id. § 1234.2 (emphasis added). As previously discussed, the electronic communication systems used by the EOP and the NSC do produce federal records, and it follows that agencies have an obligation under the Archivist’s guidelines to undertake periodic reviews to assure that “established agency procedures, standards, and policies,” including instructions as to what constitutes a record, are being adhered to. Moreover, the relevant regulations make clear that they apply to all electronic systems used by agency employees to create electronic records, not just, as appellants suggest, to “official” agency electronic records systems. See id. § 1234.1 (“Unless otherwise noted, [this section’s] requirements apply to all electronic records systems, whether on microcomputers, minicomputers, or mainframe computers, regardless of storage media, in network or stand-alone configurations.”); cf. id. § 1234.22 (listing specific requirements for electronic records systems “that maintain the official file copy of text documents on electronic media”). Moreover, to the extent there is any residual doubt on this question, we think that the agencies’ own action in undertaking some review of employees’ paper records before those employees exit government service and the common sense insight that an adequate program for ensuring records preservation must include some ongoing inspections and evaluations tip the balance against the government and lead to the conclusion that oversight is necessary as part of “an agencywide program for the management of all records created, received, maintained, used or stored on electronic media.” Id. § 1234.10(a).\nOn that basis, we affirm the district court’s holding that the defendant agencies must undertake some periodic review of their employees’ electronic recordkeeping practices.\nIII. The District Court’s Civil Contempt Order\nNext, the appellants appeal from the district court’s May 21, 1993 civil contempt order. The district court found the appellants “in contempt of this Court’s Orders of January 6 and 11,1993, and the Order of the United States Court of Appeals for the District of Columbia dated January 15, 1993” in two respects: (1) “for failing to promulgate new, appropriate, and proper recordkeeping regulations for electronic federal records to replace those regulations struck down by this Court on January 6, 1993” and (2) “because the transfer of 5,839 tapes from the Defendant agencies to the Archivist has adversely affected the condition of the tapes and the information stored therein” which was “contrary to this Court’s Orders to preserve the tapes and federal records contained on them.” Order, Armstrong v. Executive Office of the President, 821 F.Supp. 761 (D.D.C.1993). The court further ordered that, unless the appellants should “purge themselves of this finding of contempt” by “tak[ing] appropriate action by 4:00 p.m. on June 21, 1993,” they would be subject to a fine of $50,000 for each day of noneompliance during the first week, to be doubled to $100,000 per day the second week and $200,000 per day the third week, “with increases in such sanctions reserved thereafter for any further noneompliance with Court Orders.” Id. at 2-3. The appellants assert that the contempt finding must be reversed because, inter alia, the district court’s first ground, the failure to promulgate new regulations, was not a violation of the cited orders and therefore cannot support civil contempt. “The standard of review on an appeal from a finding of contempt is whether the District Court abused its discretion.” International Ass’n of Machinists & Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481, 1486 (D.C.Cir.1988). We agree with the appellants that the contempt finding, as articulated, was an abuse of discretion because it rests in part on an impermissible ground.\nAs a preliminary matter, we reject the appellees’ jurisdictional argument that the May 21, 1993 order is not an appealable one because it “imposes only a conditional sanction for failure to comply with a preexisting order.” See Appellees’ Contempt Brief at 13. As both the Eleventh Circuit and the Second Circuit have concluded, “ ‘Being placed under the threat of future sanction is a present sanction’ ” and an order so threatening “ ‘imposes a present remedy and hence is appealable.’ ” United States v. O’Rourke, 943 F.2d 180, 186 (2d Cir.1991) (quoting Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529, 1533 n. 2 (11th Cir.1986)) (emphasis in original). We agree and therefore proceed to the merits of the contempt appeal.\n“There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Nevertheless, “civil contempt will lie only if the putative contemnor has violated an order that is clear and unambiguous,” Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir.1991), and the violation must be proved by “clear and convincing” evidence. Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 626 F.2d 1029, 1031 (D.C.Cir.1980). The district court’s first ground for its contempt finding, however, did not involve violation of any court order. The district court’s January 11, 1993 order did not expressly direct the appellants to promulgate new regulations, but merely issued “a Declaratory Judgment that the guidelines issued by and at the direction of the Defendant Agencies are inadequate and not reasonable and are arbitrary and capricious and contrary to law in that they permit the destruction of records contrary to the Federal Records Act.” Amended Order, Armstrong v. Bush, 810 F.Supp. 335 (D.D.C.1993). As the Supreme Court has observed: “[E]ven though a declaratory judgment has ‘the force and effect of a final judgment,’ 28 U.S.C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not'ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.” Steffel v. Thompson, 415 U.S. 452, 471, 94 S.Ct. 1209, 1221, 39 L.Ed.2d 505 (1974) (quoting Perez v. Ledesma, 401 U.S. 82, 125-26, 91 S.Ct. 674, 697, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring)). Thus, because the appellants were never directly ordered to promulgate new regulations, we must reverse the district court’s contempt finding which was based in part on their failure to do so. Cf. Spallone v. United States, 493 U.S. 265, 276-77, 110 S.Ct. 625, 632-33, 107 L.Ed.2d 644 (1990) (reversing contempt finding against individual city coun-cilmembers for city’s violation of consent decree where “the individual city eouneilmem-bers ... were not parties to the action” and “although the injunctive portion of that decree was directed not only to the city but to ‘its officers, agents, employees, successors and all persons in active concert with any of them,’ ... the remaining parts of the decree ordering affirmative steps were directed only to the city”); International Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967) (reversing opinion upholding contempt finding for violating order that “did not state in ‘specific ... terms’ the acts that it required or prohibited”) (quoting Fed.R.Civ.P. 66(d)). Accordingly, we vacate the contempt order and remand to the district court to consider whether its second ground, the failure to preserve the tapes, by itself, justifies a finding of contempt, taking into account all efforts that have or will then have been made to assure the tapes’ integrity.\nIV. Reviewability of EOP and NSC Guidelines Defining Presidential Records\nFinally, the plaintiffs-appellees cross-appeal the district court’s conclusion that it did not have jurisdiction to review the EOP recordkeeping guidelines regarding presidential records. As cross-appellants, they assert that the guidelines improperly instruct NSC and OSTP staff to treat as presidential records materials that are, in fact, agency records subject to the FRA. We have jurisdiction to hear the cross-appeal under 28 U.S.C. § 1292(b) because it challenges aspects of the same interlocutory order that is the subject of the main appeal. See Armstrong I, 924 F.2d at 296 n. 13.\nThe district court erred in declining to review the EOP guidelines defining presidential records. The PRA delineates those records over which the President may exercise “virtually complete control” during his term of office, id. at 290, and the courts may not restrict that control by reviewing the President’s recordkeeping practices and decisions. Id. at 291. But the courts are accorded the power to review guidelines outlining what is, and what is not, a “presidential record” under the terms of the PRA. The PRA does not bestow on the President the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. Rather, it provides that all materials that were subject to the FOIA, 5 U.S.C. § 552, prior to the passage of the PRA remain subject to the FOIA and do not qualify as “presidential records.” Thus, the court may review the EOP guidelines for the limited purpose of ensuring that they do not encompass within their operational definition of presidential records materials properly subject to the FOIA. We therefore reverse and remand to the district court for proceedings consistent with this opinion.\nA. Background\nThe FRA and the PRA apply to distinct categories of documentary materials. As restated more fully, supra pages 1278-79, the FRA defines the “records” subject to the Act as all\ndocumentary materials ... made or received by an agency of the United States Government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation ... as evidence of the ... activities of the Government or because of the informational value of data in them.\n44 U.S.C. § 3301. (“Records” subject to the FRA are referred to hereinafter as “federal records.”) The PRA defines “presidential records” as\ndocumentary materials ... created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.\n44 U.S.C. § 2201(2). The definition goes on to exclude specifically “any documentary materials that are ... official records of an agency,” as the term “agency” is defined in the FOIA, 5 U.S.C. § 552(f). Id. § 2201(2)(B)(i).\nWhereas federal records are subject to a strict document management regime supervised by the Archivist, see supra pages 1278-79, the PRA “accords the President virtually complete control over his records during his term of office.” Armstrong I, 924 F.2d at 290. Neither the Archivist nor an agency head can initiate any action through the Attorney General to effect recovery or ensure preservation of presidential records. Compare 44 U.S.C. § 3106 (requiring agency heads to notify the Archivist of unlawful removal or destruction of federal records and to seek legal action through the Attorney General to recover or preserve the records); id. § 2905(a) (directing the Archivist to assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed federal records or for other legal redress, and requiring the Archivist to make her own request to the Attorney General if the agency head is recalcitrant). Furthermore, the President may designate a period, not to 'exceed twelve years after the completion of his presidency, during which his presidential records shall not be accessible under the FOIA or otherwise. Id. § 2204.\nThe Archivist can request congressional advice regarding the President’s intention to dispose of presidential records if the Archivist believes that the records may be of special interest to Congress or that consultation is in the public interest, 44 U.S.C. § 2203(e), and she can also cause the President to submit a disposal schedule at least 60 calendar days of continuous session of Congress in advance of the proposed disposal date. Id. § 2203(d). But “neither the Archivist nor the Congress has the authority to veto the President’s disposal decision.” Armstrong I, 924 F.2d at 290 (citation omitted).\nThe EOP guidelines in question classify broad categories of NSC records as federal records, but also provide that NSC records “are [presidential records if they were received or created for the President, the [National Security Adviser] ... or his Deputy, or a member of the White House staff independently of any meeting or policy and staff actions of the NSC or its various groups.” Joint Statement ¶ 157(c). The analogous guidelines for the OSTP provide that OSTP records are federal records, but “records produced or received by the Director of OSTP in his role as Science Advisor to the President are [presidential records and should be segregated as such.” Id. ¶ 157(d).\nRelying in large part on our decision in Armstrong I, the district court held that “the NSC is entitled to segregate presidential and federal records.... [T]his Court has no power to review actions taken by the President to ensure that presidential records are maintained.” Armstrong, 810 F.Supp. at 347, 348 (citations omitted). The district court also stated that our decision in Armstrong I\nprovided the methodology for separating the FRA and the PRA as it applies here: ... EOP components whose sole responsibility is to advise the President are subject to the PRA and create presidential records. Similarly, the components of the EOP that have statutory responsibility are subject to the FRA.\nId. 810 F.Supp. at 349 (citing Armstrong I, 924 F.2d at 286 n. 2). The district court further understood Armstrong I to have found that the NSC advises the President and has statutory obligations, and to have applied the foregoing “methodology” to determine that the NSC “produces both presidential and federal records.” Id. 810 F.Supp. at 347-48 (citing Armstrong I, 924 F.2d at 286 n. 2).\nIn light of its interpretation of Armstrong I, the district court concluded that its order to take all necessary steps to preserve electronic federal records applied only to those agencies\nthat have statutory responsibility and not those that solely advise the President.... The Defendants shall not be required to preserve materials] which are presidential records produced by components whose sole responsibility is to advise the President. However, in components that produce both types of records, this Court does have the jurisdiction to authorize the preservation of these materials until the Archivist can ensure that federal records are not destroyed.\nId. 810 F.Supp. at 349. Thus, although the district court concluded that it could not review the presidential records guidelines, it nonetheless ordered the NSC—and other EOP components who do not have the sole responsibility of advising the President—to preserve all records, both federal and presidential, “until the Archivist can ensure that federal records are not destroyed.” Id.\nB. Reviewability of the Guidelines\nAs we have already stated, supra page 1290, the PRA defines “presidential records” as\ndocumentary materials ... created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.\n44 U.S.C. § 2201(2). In addition, Congress explicitly provided that presidential records do not include “any documentary materials that are ... official records of an agency,” as the term “agency” is defined in the FOIA, 5 U.S.C. § 552(f). 44 U.S.C. § 2201(2)(B)(i). The legislative history explains this limitation on the definition of “presidential records” as follows:\nThe term “presidential records” is intended ... to encompass all White House and [EOPJ records ... which ... fall outside the scope of the FOIA because they are not agency records. In other words, that which is now subject to FOIA would remain so and that which is [not] now subject to FOIA would be subject to the [PRA,] including those provisions of the [PRA] which in specified circumstances specially apply FOIA to these non-agency records after a President leaves office.\nH.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978), 1978 U.S.C.C.A.N. 5732, 5742; see also id. at 3.\nThus, Congress perceived the potential definitional overlap between agency records under the FOIA and presidential records under the PRA, and explicitly provided that the PRA would apply only to records that “fall outside the scope of FOIA because they are not agency records.” Put another way, the PRA provides that the definition of “agency” records in the FOIA trumps the definition of “presidential records” in the PRA. Congress was “keenly aware of the separation of powers concerns that were implicated by legislation regulating the conduct of the President’s daily operations,” and thus sought “to minimize outside interference with the day-to-day operations of the President and his closest advisors and to ensure executive branch control over presidential records during the President’s term of office.” Armstrong I, 924 F.2d at 290. At the same time, however, Congress sought to provide a clear limitation on just which materials the President could legitimately assert control over and to preserve the pre-existing body of FOIA law governing the disclosure of government agency records.\nThe PRA exclusion of records subject to the FOIA from the class of materials that may be treated as presidential records averts a clash in the role of judicial review under the two statutory schemes. Judicial review plays an indispensable role in ensuring proper government disclosure under the FOIA. 5 U.S.C. § 552(a)(4)(B); Truitt v. Department of State, 897 F.2d 540, 547 (D.C.Cir.1990); Senate of Puerto Rico v. U.S. Department of Justice, 823 F.2d 574, 587 (D.C.Cir.1987); McGehee v. Casey, 718 F.2d 1137, 1148 (D.C.Cir.1983); Ray v. Turner, 587 F.2d 1187, 1190-95 (D.C.Cir.1978). At the same time, judicial review of the President’s management of admittedly presidential records is impliedly precluded by the PRA. Armstrong I, 924 F.2d at 289; see infra pages 1293-94. Congress preserved the critical role of judicial review under the FOIA, and avoided a conflict between the PRA and the FOIA, by explicitly exempting records subject to the FOIA from the scope of the PRA and allowing judicial review of guidelines defining presidential records under the rubric of substantive FOIA law.\nThis narrow, clearly defined limitation on the scope of the PRA is absolutely essential to preventing the PRA from becoming a potential presidential carte blanche to shield materials from the reach of the FOIA. Of course, we presume that executive officials will act in good faith. But if guidelines that purport to implement the PRA were not reviewable for compliance with the statute’s definition of presidential records, non-presidential materials that would otherwise be immediately subject to the FOIA would be shielded from its provisions, whether wittingly or unwittingly, if they were managed as presidential records. See 44 U.S.C. § 2204(a), (b) (President may designate a period, not to exceed twelve years after the completion of his presidency, during which his presidential records shall not be accessible under the FOIA or otherwise); id. § 2204(c)(1) (presidential records shall be administered under the FOIA after the expiration of any limitations on access imposed under subsections 2204(a) and (b)). Moreover, in light of the fact that disposal decisions under the PRA are unreviewable, Armstrong I, 924 F.2d at 290, a non-presidential document subject to the FOIA could be forever removed from that statute’s provisions if it were improperly classified as a presidential record and destroyed.\nFor example, imagine a guideline defining “presidential records” as “all records produced or received by, or in the possession or under the control of, any government agency or employee of the United States.” This definition would sweep all, or virtually all, federal records — and many documentary materials that are neither federal nor presidential records — within the ambit of the PRA, and outside the scope of the FOIA. Reading the PRA to forbid judicial review of such a guideline for conformity with the PRA definition of presidential records would be tantamount to allowing the PRA to functionally render the FOIA a nullity. As we have already stated, supra pages 1292-93, Congress avoided this problem by excluding records subject to the FOIA from the scope of the PRA, thereby preserving FOIA law intact and maintaining the integral role of judicial review.\nOur holding today is also consonant with the relationship between the FRA and the PRA. The FRA defines a class of materials that are federal records subject to its'provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different and less rigorous regime. In other words, no individual record can be subject to both statutes because their provisions are inconsistent. If guidelines that purport to define presidential records were not reviewable, the cross-appellees could effectively shield all federal records not only from the FOIA, but also from the provisions of the FRA — thus evading this court’s holding in Armstrong I, 924 F.2d at 293, that the courts have jurisdiction to decide whether the NSC’s recordkeeping guidelines adequately describe the material subject to the FRA.'\nWe held in Armstrong I that “the PRA precludes review of the President’s record-keeping practices and decisions.” Armstrong I, 924 F.2d at 289. The cross-appel-lees' urge the court to give this language the broadest possible reading, holding in effect that we may not review any guidelines that purport to implement the PRA or deal with asserted presidential records. Thus, argue the cross-appellees, the district court correctly held that the guidelines for determining which materials are presidential records are not subject to judicial review. We disagree. The Armstrong I opinion does not stand for the unequivocal proposition that all decisions made pursuant to .the PRA are immune from judicial review.\nThe Armstrong I opinion addressed the question whether the courts could review the decision to erase materials designated by the government as presidential records within the meaning of the PRA. See id. at 284, 291. We held that judicial review was hot available to monitor disposal and emphasized that Congress drafted the PRA in a manner that would “ensure executive branch control over presidential records during the President’s term of office.” Id. at 290 (emphasis added). Thus, we held that those decisions that involve materials that are truly presidential records are immune from judicial review. We did not hold in Armstrong I that the President could designate any material he wishes as presidential records, and thereby exercise “virtually complete control” over'it, id. at 290, notwithstanding the fact that the material does not meet the definition of “presidential records” in the PRA.\nThe cross-appellees point to individual phrases and sentences in our Armstrong I opinion which they contend dictate the broad result they urge upon this court. However, as we have just said, this language must be read in the context of the issue before the court in Armstrong I. In any case, the language seized upon by the cross-appellees is entirely consistent with the result we reach today. We stated in Armstrong I that the PRA “require[s] the President to maintain records documenting the policies, activities, and decisions of his administration, but leav[es] the implementation of such a requirement in the President’s hands.” Id. However, the discussion that immediately follows this statement makes clear that the Armstrong I court was not addressing the initial classification of existing materials. The Armstrong I court discusses only the “creation, management, and disposal decisions” described in the provisions of 44 U.S.C. § 2203. See id. at 290, 291. None of these decisions encompasses the initial classification of materials as presidential records.\nA “creation” decision refers to the determination to make a record documenting presidential activities. See 44 ' U.S.C. § 2203(a). Thus, the courts may not review any decisions regarding whether to create a documentary presidential record. “Management decisions” describes the day-to-day process by which presidential records are maintained. See id. § 2204(a), (b). The courts may likewise not review these particulars of the presidential records management system. Armstrong I, 924 F.2d at 290. Finally, “disposal decisions” describes the process outlined in 44 U.S.C. § 2203(c)-(e).for disposing of presidential records. Judicial review of the President’s action under these provisions is also unavailable. But guidelines describing which existing materials will be treated as presidential records in the first place are subject to judicial review.\nThus, although the PRA impliedly precludes judicial review of the President’s decisions concerning the creation, management, and disposal of presidential records during his term of office, Armstrong I, 924 F.2d at 291, the courts may review guidelines outlining what is, and what is not, a “presidential record” to ensure that materials that are not subject to the PRA are not treated as presidential records. We remand to the district court to conduct this inquiry.\nC. The PRA Definition of Presidential Records\nHaving held that the recordkeeping guidelines defining presidential records are subject to judicial review, and having remanded to the district court for that purpose, it remains for us to discuss the definition of “presidential records” to be applied on remand. As our previous discussion of the PRA, supra pages 1290, 1292-93, has undoubtedly indicated, we must turn again to the PRA provision exempting from its scope any materials that are official records of an agency, as “agency” is defined in the FOIA, 5 U.S.C. § 552(f). 44 U.S.C. § 2201(2)(A)(i). Congress expressly intended when it passed the PRA to preserve unchanged the coherent body of law that had been developed under the FOIA, and it is that body of law that provides the basis for our limited review of the definition of presidential records provided in the guidelines. The guidelines violate the PRA to the extent that they classify as presidential records materials that would otherwise be subject to the FOIA.\nThe FOIA definition of “agency” invoked in the PRA raises a clear but somewhat intricate set of references and cross-references. The FOIA provision mentioned in the PRA, 5 U.S.C. § 552(f), incorporates the definition of agency provided at 5 U.S.C. § 551(1): “agency means each authority of the Government of the United States, whether or not it is subject to review by another agency, but does not include ... the Congress ... [or] the courts of the United States.” 5 U.S.C. § 551(1). Section 552(f) itself adds an additional proviso:\n[AJgency ... includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.\n5 U.S.C. § 552(f). The Supreme Court has added still another layer of complexity, holding that for FOIA purposes, the EOP does not include the Office of the President. “ ‘[T]he President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)), 1974 U.S.C.C.A.N. 6267.\nThe Supreme Court test adopted in Kissinger for determining which entities within the EOP are agencies subject to the FOIA was originally developed by this court in Soucie v. David, 448 F.2d 1067 (1971). In Soucie, this court held that only entities whose “sole function [is] to advise and assist the President” are not separate agencies subject to the FOIA. Id. at 1075. Thus, the court concluded that the Office of Science and Technology (“OST”) — the precursor of the OSTP, one of the agencies whose guidelines are at issue in this appeal — was an agency subject to the FOIA because its duties went beyond advising the President and included evaluating federal scientific programs. Id.\nThe legislative history of the PRA could not be clearer in indicating congressional intent to adopt the test articulated in Soucie to determine what entities are “agencies” subject to the FOIA:\nThe [PRA] does not modify the applicability of the [FOIA] to White House and [EOP] records.... That is, it does not redefine the term agency to include entities not now covered by the FOIA. The Conference Report for the 1974 Freedom of Information Act amendments stated that “[w]ith respect to the meaning of the term ‘[EOP]’ the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 [(D.C.Cir.1971)]. The term is not interpreted as including the President’s immediate staff or units in the [EOP] whose sole function is to advise and assist the President.”\nH.R.Rep. No. 1487, 95th Cong., 2d Sess. 11 (1978) (quoting H.R.Conf.Rep. No. 1380, 93d Cong., 2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742. The FOIA Conference Report quoted in the PRA legislative history is the same report upon which the Supreme Court relied in Kissinger, 445 U.S. at 156, 100 S.Ct. at 971.\nThis court has consistently applied the “sole function” test developed in Soucie and adopted in Kissinger in its subsequent decisions. In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), we rejected the argument that certain records of the Attorney General regarding judicial nominations were not subject to the FOIA because the Attorney General was acting in his independent capacity as an advisor to the President when he prepared the records in question. Id. at 788. The Court explained that\nSoucie did not intimate that the [OST] might be an agency only when performing its non-advisory functions, and still be a presidential staff component, or non-agency, when performing its other function of advising the President. In fact, the reports under consideration in Soucie were requested by the President precisely for advisory purposes, but we did not deem the [OST] to be a non-agency in that specific context.\nId. (citing Soucie, 448 F.2d at 1075-76). See also Pacific Legal Foundation v. Council on Environmental Equality, 636 F.2d 1259 (D.C.Cir.1980) (holding that the Council on Environmental Equality (“CEQ”) is a FOIA agency because, in addition to advising the President, the CEQ coordinated federal environmental regulatory programs, issued guidelines for preparing environmental impact statements, and promulgated regulations for implementing the procedural provisions of the National Environmental Policy Act); Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985) (holding that the Council of Economic Advisers is not an agency under the FOIA because its sole function is to advise and assist the President); Meyer v. Bush, 981 F.2d 1288 (D.C.Cir.1993) (holding that the President’s Task Force on Regulatory Relief “flails] within the Soucie test as an entity whose sole function is to advise and assist the President”).\nWe hasten to add that our opinion in Armstrong I did not hold as a matter of law that the. NSC “produces both presidential and federal records” because the NSC “advises the President and has statutory obligations.” See Armstrong, 810 F.Supp. at 347-48, 349 (citing Armstrong I, 924 F.2d at 286 n. 2.). The passage on which the district court relied appears as a footnote in the “background” section of our Armstrong I opinion, without any of the legal exposition that would be expected to accompany a holding announcing the resolution of a previously unsettled legal question. See Maggard v. O’Connell, 703 F.2d 1284, 1290-91 (D.C.Cir.1983) (statements in the background discussion of an opinion should not be construed as deciding unresolved legal issues, especially where the court was only reviewing and reversing a grant of summary judgment). The footnote appears to be nothing more than a description of the position of the defendants-appellants as embodied in the EOP regulations. See Joint Statement ¶ 157 (“The records of the [NSC] staff are federal records if they were received or created in connection with the work of the statutorily-created [NSC].... The records of the NSC staff are presidential records if they were received or created for the President, the Assistant to the President for National Security, his Deputy, or a member of the White House staff independently of any meeting or policy and staff actions of the NSC or its various groups.”). Consequently, Armstrong I did not provide the legal basis for distinguishing federal and presidential records nor decide the legal status of various NSC materials.\nAlthough we hold in accordance with the PRA that materials subject to the FOIA are not presidential records, we are unable to ascertain on the record before us whether the guidelines defining presidential records inappropriately classify certain materials. We cannot determine with certainty whether materials that the guidelines classify as presidential records are in fact official records of an agency subject to the FOIA. The NSC appears to have routinely conceded its status as an “agency” subject to the FOIA in litigation regarding specific FOIA requests to the NSC. See, e.g., Lisee v. CIA, 741 F.Supp. 988 (D.D.C.1990) (NSC made requisite showing of exceptional circumstances and exercise of due diligence in processing FOIA request to justify stay of further proceedings); Willens v. NSC, 726 F.Supp. 325 (D.D.C.1989) (requested NSC documents were within the FOIA exemption for documents authorized to be kept secret in the interest of national defense or foreign policy); Halperin v. NSC, 452 F.Supp. 47 (D.D.C.1978) (same). The Supreme Court also appears to have assumed, without deciding the issue, that the NSC is a FOIA agency. See Kissinger, 445 U.S. at 156, 100 S.Ct. at 971 (stating that the FOIA requesters argued that certain documents which related to the [NSC] “may have been [NSC] records and therefore subject to the [FOIA]. See H.R.Rep. No. [876, 93d Cong., 2d Sess. 8 (1974), 1974 U.S.C.C.A.N. 6274], indicating that the [NSC] is an executive agency to which the FOIA applies.”). But the issue has never been definitively resolved, and the record before us does not contain sufficient facts for us to make the determination.\nMoreover, the cross-appellees suggest that the materials in question may not be subject to the FOIA—even if the NSC is an “agency” under the FOIA—because they are not “official records” of the NSC. See Brief for Cross-Appellees at 44-48. The factual record is also insufficient to resolve this issue on appeal. Thus, we remand to the district court for further proceedings to determine whether the guidelines under review inappropriately classify as presidential records materials that would otherwise be subject to the FOIA.\nCONCLUSION\nTo recap: We affirm the district court’s decision that the EOP and NSC electronic records management guidelines violate the FRA, reverse the district court’s civil contempt finding, and remand to allow the district court to determine whether the challenged NSC and OSTP guidelines inaccurately classify some documents as presidential records.\nSo ordered.\n. Originally, the EOP employed the \"PROFS” computer system. In 1989, the EOP installed another \"OASIS” system as an additional means of transmitting information among employees. The original PROFS system ceased operations in 1992. The NSC has its own PROFS system as well as a similar system known as \"All-In-One.”\n. The district court went on to find that older guidelines of the NSC and the EOF were deficient because, inter alia, some instructions did not tell staff how to save electronic records and did not differentiate between federal and presidential records. See 810 F.Supp. at 344-46.\n. The appellants contend that the EOP is not a proper party to this action because it is the subparts of the EOP that are “agencies” under the APA. The appellants, however, never raised this argument in their briefs to the district court; accordingly, it has been waived. See, e.g., Association of Accredited Cosmetology Schools v. Alexander, 979 F.2d 859, 862 (D.C.Cir.1992).\n. Indeed, because we agree with the district court that federal records will be lost if only the paper documents are preserved, we need not address the flaws that it identified in earlier EOP and NSC recordkeeping documents. The legal insufficiency of a mere instruction to print out on-screen material is enough to create a risk that federal records will be permanently destroyed if the backup tapes are not preserved. Thus, we need not decide if additional errors in these instructions would also require the Archivist and agency heads to take curative steps to fulfill their statutory duties.\n. The following exchange took place at argument:\nThe Court: We agree ... that this system has, in the past, created some things that qualify as federal records ... ?\nAppellants' Counsel: We agree.\n. We note that the substantive importance of these documents is demonstrated by the frequency with which they have been used in recent years. They were used by the Tower Commission, congressional investigators and the Independent Counsel looking into the Iran-Contra affair; by the Department of Justice in connection with its prosecution of Manuel Noriega; and by the NSC's legal advisor in relation to the confirmation of Robert Gates as Director of the CIA. See Joint Statement ¶¶ 56-59.\n. Our discussion assumes that directories, distribution lists, etc. become part of an electronic record when they are incorporated in that record to specify senders and receivers of documents. We believe such an assumption is warranted as the most natural way of understanding the relation between the substance of a message and its origin and destination. See also Appellants’ Brief at 22 (referring to the disputed material as \"information related to an electronic message\"). Nonetheless, our conclusion is in no way dependent upon this assumption. If these electronic directories, distribution lists, etc., are perceived to be separate electronic records, making the paper renderings of the substantive notes copies, the paper records system maintained by the agencies would still fail to meet the Act's requirements since it would omit entirely a different class of documents that, as the Archivist acknowledges, áre \"appropriate for preservation” in situations like this one. See National Archives and Records Administration, Disposition of Federal Records 2 (1989) (\"Sometimes papers normally considered nonrecord, such as transmittals or routing slips, acquire record status because they clarify the matter being documented.\") (emphasis added); cf. 36 C.F.R. § 1222.38 (\"Agency recordkeeping requirements shall prescribe the creation and maintenance of records of the transaction of agency business that are sufficient to: ... (e) Document the formulation and execution of basic policies and decisions and the taking of necessary actions, including all significant decisions and commitments reached orally (person to person, by telecommunications, or in conference).\").\n. The appellants attempt to minimize this fact by noting that traditional letters, memoranda, and phone calls do not always leave behind a historical trail including such information. This observation is beside the point. The key facts here are that this information is available on the electronic systems and that the defendant agencies have not taken any steps to retain it on their paper documents.\n. At the same time, for the reasons discussed infra at pages 1286-87, we do not believe that our conclusion on this point is inconsistent with the Act's desire to balance this interest against the need for efficient records management. See Armstrong I, 924 F.2d at 292.\n. Further, the agencies’ assertion of unilateral discretion to discard part of a federal record is at odds with the FRA’s specific requirement that federal records may be \"alienated or destroyed\" only with the approval of the Archivist. See 44 U.S.C. §§ 3303a, 3314.\n. We also reject the appellants' contention that the district court's injunctive order sweeps too broadly. First, they argue that the court's order requiring the Archivist immediately to seek the assistance of the Attorney General and notify Congress of that action ignores Armstrong I's statements that the Archivist and agency heads could discharge their statutory obligations through informal, intra-agency mechanisms. See 924 F.2d at 296 n. 12. In this case, the Archivist had failed to take any actions—formal or informal—necessary to prevent the statutory violations. See Joint Statement ¶ 237 (acknowledging that although Archivist’s regulations require her to \"periodically evaluate agency records management programs,” the Archivist has never performed such an evaluation for the NSC and the EOP, has never reviewed their recordkeeping guidelines, and has never surveyed or inspected their e-mail systems). Given that circumstance, the district court did not abuse its discretion in ordering the Archivist to take the specific actions provided for in the statute. Similarly unpersuasive is the appellants’ argument that the district court should not have enjoined the defendant agencies from destroying any electronic records until new guidelines were in place. Because these systems continue to produce federal records, the district court used its discretion appropriately in insisting upon a full-scale method for preventing the records’ destruction until the agencies came up with new, adequate records management guidelines to replace the ones voided by the district court's declaratory order.\n. In light of this disposition, wc need not address the appellants' challenge to the second contempt ground or its claim of sovereign immunity from contempt fines. See Spallone, 493 U.S. at 274, 110 S.Ct. at 631 (finding it unnecessary to reach alternative first amendment and legislative immunity arguments after reversing contempt finding against city councilmembers on merits).", "type": "majority", "author": "PER CURIAM:"}], "attorneys": ["Freddi Lipstein, Attorney, U.S. Dept, of Justice, Washington, DC, argued the cause for appellants-cross-appellees. With her on the joint brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., J. Ramsey Johnson, U.S. Atty., Leonard Schaitman, Matthew M. Collette, and Patricia A. Millett, Attorneys, U.S. Dept, of Justice, Washington, DC.", "Michael E. Tankersley, Washington, DC, argued the cause for appellees-cross-appel-lants. With him on the joint brief were David C. Vladeck and Alan B. Morrison, Washington, DC. Patti Ann Goldman, Kate Abbott Martin and Katherine Anne Meyer, Washington, DC, entered appearances."], "corrections": "", "head_matter": "Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, American Historical Association and American Library Association, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants. Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellants. (Two Cases) Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies; American Historical Association; American Library Association, Plaintiffs-Appellants, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White House Communications Agency, Defendants-Appellees.\nNos. 93-5002, 93-5048, 93-5156 and 93-5177.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued June 15, 1993.\nDecided Aug. 13, 1993.\nFreddi Lipstein, Attorney, U.S. Dept, of Justice, Washington, DC, argued the cause for appellants-cross-appellees. With her on the joint brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., J. Ramsey Johnson, U.S. Atty., Leonard Schaitman, Matthew M. Collette, and Patricia A. Millett, Attorneys, U.S. Dept, of Justice, Washington, DC.\nMichael E. Tankersley, Washington, DC, argued the cause for appellees-cross-appel-lants. With him on the joint brief were David C. Vladeck and Alan B. Morrison, Washington, DC. Patti Ann Goldman, Kate Abbott Martin and Katherine Anne Meyer, Washington, DC, entered appearances.\nBefore MIKVA, Chief Judge; WALD and HENDERSON, Circuit Judges.\n. Sections I and II of this opinion were authored by Circuit Judge Wald; Section IV was authored by Chief Judge Mikva."} | MIKVA | WALD | HENDERSON | 1 | 1 | 1 | 0 | 0 | 0 | 1 F.3d 1274 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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