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4,589,528	Maria Sylvia CARDOSO DE FLORES, Also Known as Maria Flores, Petitioner v. Matthew G. WHITAKER, Acting U. S. Attorney General, Respondent	Maria Cardoso de Flores v. Matthew Whitaker	2019-02-11	17-60744	U.S. Court of Appeals for the Fifth Circuit	{"judges": "King, Higginson, Costa", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-60744 Document: 00514829668 Page: 1 Date Filed: 02/11/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 11, 2019\n No. 17-60744\n Lyle W. Cayce\n Clerk\nMARIA SYLVIA CARDOSO DE FLORES, also known as Maria Flores,\n\n Petitioner\n\nv.\n\nMATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,\n\n Respondent\n\n\n\n Petition for Review of an Order of\n the Board of Immigration Appeals\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nPER CURIAM:\n An immigration judge ordered petitioner Maria Sylvia Cardoso de Flores\nremoved from the United States. Cardoso de Flores had been lawfully admitted\nas a permanent resident alien, but the immigration judge determined she was\nremovable under the Immigration and Nationality Act because she was\nconvicted of a drug offense. The Board of Immigration Appeals affirmed.\nCardoso de Flores petitions this court for review, arguing that she is not\nremovable because she was convicted for possessing a small amount of\nmarijuana for personal use. We find no error in the BIA’s analysis; accordingly,\nwe DENY Cardoso de Flores’s petition.\n\f Case: 17-60744 Document: 00514829668 Page: 2 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\n I.\n Cardoso de Flores, a Mexican citizen, was lawfully admitted to the\nUnited States as a permanent resident alien in 1998 after marrying a United\nStates citizen. In 2000, authorities in Tennessee arrested Cardoso de Flores\nafter finding her in a car carrying 54.6 pounds of marijuana. A Tennessee\ngrand jury indicted Cardoso de Flores with possessing with the intent to sell\nmore than 4,536 grams of marijuana in violation of Tenn. Code Ann. § 39-17-\n417. Cardoso de Flores later pleaded guilty to the lesser offense of possession\nof a controlled substance in violation of Tenn. Code Ann. § 39-17-418.\n In 2010, the Department of Homeland Security issued Cardoso de Flores\na notice to appear charging her with removability under 8 U.S.C.\n§ 1227(a)(2)(B)(i)—part of the Immigration and Nationality Act (“INA”)—\nbecause she had been convicted of a controlled-substance offense. Cardoso de\nFlores argued through counsel that her Tennessee conviction did not render\nher removable because her conviction was for “a single offense involving\npossession for one’s own use of 30 grams or less of marijuana,” which\n§ 1227(a)(2)(B)(i) excepts as grounds for removal. Looking to Cardoso de\nFlores’s arrest report, an immigration judge (the “IJ”) determined that Cardoso\nde Flores’s conviction involved possession of 54.6 pounds of marijuana. 1 The IJ\ntherefore determined that § 1227(a)(2)(B)(i)’s personal-use exception did not\napply. The IJ further found Cardoso de Flores was not entitled to cancellation\nof removal because she did not live in the United States continuously for seven\nyears prior to her offense. Accordingly, the IJ ordered Cardoso de Flores\nremoved from the United States.\n\n\n\n\n 1 There are 453.592 grams in a pound. Therefore, Cardoso de Flores was caught with\nwell over 30 grams of marijuana.\n 2\n\f Case: 17-60744 Document: 00514829668 Page: 3 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\n Cardoso de Flores appealed to the Board of Immigration Appeals (“BIA”).\nFollowing its precedent, the BIA applied a circumstance-specific inquiry to\ndetermine whether the personal-use exception applied to Cardoso de Flores’s\nconviction. It determined as a threshold matter that the Tennessee statute\nsupporting Cardoso de Flores’s conviction was not limited to simple possession\nof 30 or fewer grams of marijuana. Then, looking to Cardoso de Flores’s arrest\nreport, criminal complaint, and plea colloquy, the BIA determined that\nCardoso de Flores possessed 54.6 pounds of marijuana. Finding no contrary\nevidence, it concluded that the personal-use exception did not apply and\naffirmed the IJ’s order. Cardoso de Flores now petitions this court for review.\n II.\n Where, as here, the BIA issues its own opinion explaining its reasoning,\nwe review the BIA’s opinion instead of the IJ’s order. See Ghotra v. Whitaker,\n912 F.3d 284, 287 (5th Cir. 2019). “Although we generally review its legal\nconclusions de novo, ‘the BIA is entitled to Chevron deference when it\ninterprets a statutory provision of the INA and gives the statute “concrete\nmeaning through a process of case-by-case adjudication,”’ so long as the BIA’s\nopinion is precedential.” Calvillo Garcia v. Sessions, 870 F.3d 341, 343-44 (5th\nCir. 2017) (footnotes omitted) (quoting Ali v. Lynch, 814 F.3d 306, 309-10 (5th\nCir. 2016)); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S.\n837, 843-44 (1984). Under Chevron, we afford agency interpretations of\nstatutes “‘controlling weight unless they are arbitrary, capricious, or\nmanifestly contrary to the statute’ or Congress has ‘unambiguously expressed’\na contrary intent.” Calvillo Garcia, 870 F.3d at 344 (quoting Orellana-Monson\nv. Holder, 685 F.3d 511, 517 (5th Cir. 2012)). We review the BIA’s factual\nfindings for substantial evidence. Ghotra, 912 F.3d at 287.\n\n\n\n\n 3\n\f Case: 17-60744 Document: 00514829668 Page: 4 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\n III.\n Section 1227 lists categories of aliens subject to removal, including:\n Any alien who at any time after admission has been\n convicted of a violation of (or a conspiracy or attempt to violate)\n any law or regulation of a State, the United States, or a foreign\n country relating to a controlled substance (as defined in section\n 802 of Title 21), other than a single offense involving possession\n for one’s own use of 30 grams or less of marijuana.\n\n\n§ 1227(a)(2)(B)(i). Courts must apply the so-called categorical approach to\ndetermine whether an alien’s conviction relates to a controlled substance. See\nMellouli v. Lynch, 135 S. Ct. 1980, 1985-87 (2015). Under the categorical\napproach, courts “look[] to the statutory definition of the offense of conviction,\nnot to the particulars of an alien’s behavior.” Id. at 1986.\n The parties do not dispute that the categorical approach governs\nwhether Cardoso de Flores’s conviction relates to a controlled substance, nor\ndo they dispute that under the categorical approach, Cardoso de Flores’s\nconviction in fact does relate to a controlled substance. Rather, the dispute is\nover the exception in the final clause of § 1227(a)(2)(B)(i): “other than a single\noffense involving possession for one’s own use of 30 grams or less of marijuana.”\nThe BIA applies a circumstance-specific approach to determine whether a\nconviction falls within this personal-use exception. See Davey, 26 I. & N. Dec.\n37, 39 (B.I.A. 2012).\n The BIA’s approach to assessing removability under § 1227(a)(2)(B)(i)\nproceeds in three parts. First, it applies the categorical approach to determine\nwhether an alien’s conviction relates to a drug offense. See, e.g.,\nWanniarachchi, 2018 WL 3045846, at *2 (B.I.A. Apr. 23, 2018) (unpublished).\nIf so, it then asks whether “the fact of conviction is sufficient by itself to\nconclusively establish all facts relevant to prove the applicability of the”\nexception. Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 (B.I.A. 2014). If this\n 4\n\f Case: 17-60744 Document: 00514829668 Page: 5 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nis the case, the “inquiry is at an end, and the removal charge must be dismissed\nwithout resort to a circumstance-specific inquiry.” Id. But if the fact of the\nconviction is not enough to show the personal-use exception applies, then the\nBIA looks to the specific facts supporting the alien’s conviction to ascertain\nwhether the conviction involved personal possession of 30 grams or less of\nmarijuana. See Davey, 26 I. & N. Dec. at 39. Therefore, for example, if an alien\nwas convicted of violating a statute that criminalizes simple possession of 29\ngrams or less of marijuana, then the elements of the conviction would\nconclusively establish that the alien’s offense fell within the personal-use\nexception and the BIA would have no reason to look at the facts supporting the\nconviction. But if, as the BIA concluded was the case here, the alien was\nconvicted of violating a statute that criminalizes simple possession of\nmarijuana without reference to quantity, then the BIA looks to the facts\nsupporting the conviction to determine the quantity involved.\n Cardoso de Flores maintains that this approach is incorrect. She says\nthe categorical approach must apply to § 1227(a)(2)(B)(i) in its entirety. In\nother words, Cardoso de Flores argues that—regardless of the real-world facts\nsupporting her conviction—if she could have been convicted under the same\nTennessee statute for possessing 30 grams or less of marijuana for her personal\nuse, then the personal-use exception applies to her conviction. She also argues\nthat the personal-use exception should apply to her conviction even under the\nBIA’s approach because her conviction necessarily involved the possession of\n30 grams or less of marijuana for her personal use.\n A.\n We have never directly addressed the BIA’s position that the\ncircumstance-specific approach applies to the personal-use exception in\n§ 1227(a)(2)(B)(i). We have applied the BIA’s circumstance-specific approach\non one occasion. See Esquivel v. Lynch, 803 F.3d 699, 702 (5th Cir. 2015). But\n 5\n\f Case: 17-60744 Document: 00514829668 Page: 6 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nwe specifically noted that neither party challenged the BIA’s approach and that\nour holding would have been the same under the categorical approach. See id.\nat 702 n.2. Now faced squarely with this question, we conclude that the BIA’s\nposition that the personal-use exception requires a circumstance-specific\ninquiry is a reasonable interpretation of the INA; we therefore defer to the\nBIA. 2\n The Supreme Court’s analysis in Nijhawan v. Holder, 557 U.S. 29 (2009),\nall but compels this result. In Nijhawan, the Court considered a different\nsection of the INA that defines the term “aggravated felony” for purposes of\n§ 1227(a)(2)(A)(iii). See 557 U.S. at 32. Under that definition, an alien is\nremovable for having committed an aggravated felony if the alien is convicted\nof, inter alia, “an offense that . . . involves fraud or deceit in which the loss to\nthe victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). The alien\nin Nijhawan had been convicted in federal court of violating five federal fraud\nstatutes. 557 U.S. at 32. None of the statutes at issue required the Government\nto prove a specific loss, but the alien stipulated at sentencing that he defrauded\nhis victims of more than $100 million. Id. Thus, if § 1101(a)(43)(M)(i)’s $10,000\nthreshold referred to an element that must be proved in every instance to\nsustain a conviction, then the alien’s fraud convictions would not have been\naggravated-felony convictions. But if the $10,000 threshold referred to facts\nunderlying the convictions, then the fraud convictions would have been\naggravated-felony convictions.\n\n\n\n\n Although the BIA’s decision below was from a single board member and is thus not\n 2\n\nprecedential, see Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir. 2013), that decision followed\nprior published three-member decisions in which the BIA held the circumstance-specific\napproach applies to the personal-use exception. See Oanh Nguyen v. Holder, 542 F. App’x\n384, 389 (5th Cir. 2013) (unpublished) (per curiam) (“[P]rior precedential BIA decisions cited\nby [a] single-member decision will be afforded Chevron deference as appropriate.”).\n 6\n\f Case: 17-60744 Document: 00514829668 Page: 7 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\n The Court determined that the $10,000 threshold referred to the specific\nfacts of the crime. See id. at 40. The Court began its analysis by observing:\n [I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and\n the like sometimes refer to a generic crime, say, the crime of fraud\n or theft in general, and sometimes refer to the specific acts in\n which an offender engaged on a specific occasion, say, the fraud\n that the defendant planned and executed last month.\n\nId. at 33-34. The Court then recognized that it had previously interpreted the\nterm “violent felony” in the Armed Career Criminal Act (the “ACCA”) to refer\nto generic crimes. See id. at 34-35. But it explained that the language in the\nACCA’s definition of “violent felony” refers to generic crimes and elements of\ncrimes. See id. at 36. By contrast, the Court noted, § 1101(a)(43)’s definition of\n“aggravated felony” uses some “language that almost certainly does not refer\nto generic crimes but refers to specific circumstances.” Id. at 37.\n To illustrate, the Court gave the example of § 1101(a)(43)(P), which\ndefines aggravated felony to include “falsely making, forging, counterfeiting,\nmutilating, or altering a passport . . . except in the case of a first offense for\nwhich the alien . . . committed the offense for the purpose of assisting . . . the\nalien’s spouse, child, or parent.” See id. (second and third omissions in original)\n(emphasis omitted) (quoting § 1101(a)(43)(P)). The Court explained that\n“‘forging . . . passport[s]’ may well refer to a generic crime,” but it said the\n“exception cannot possibly refer to a generic crime[] . . . because there is no\nsuch generic crime.” Id. (first alteration and first omission in original) (quoting\n§ 1101(a)(43)(P)). The Court thus surmised that “if the provision is to have any\nmeaning at all, the exception must refer to the particular circumstances in\nwhich an offender committed the crime on a particular occasion.” Id. at 37-38.\nTherefore, the Court concluded that some parts of the “aggravated felony”\ndefinition refer to generic crimes and thus require the categorical approach\n\n\n 7\n\f Case: 17-60744 Document: 00514829668 Page: 8 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nwhile other parts refer to the facts of the particular case and require the\ncircumstance-specific approach. See id. at 38.\n Turning to § 1101(a)(43)(M)(i) specifically, the Court determined that it\ncalled for the circumstance-specific approach. The Court first noted that the\ntext of that subparagraph—specifically the use of “in which”—appeared to\nrefer to “the commission of the offense of conviction.” Id. at 38-39. It then\nobserved that applying the categorical approach “would leave\n[§ 1101(a)(43)(M)(i)] with little, if any, meaningful application.” Id. at 39. The\nCourt elaborated that it “found no widely applicable federal fraud statute that\ncontains a relevant monetary loss threshold.” Id. Further, the Court surveyed\nstate law and concluded that at the time Congress added the $10,000 threshold\nto § 1101(a)(43)(M)(i), only eight states had fraud statues “in respect to which\n[§ 1101(a)(43)(M)(i)]’s $10,000 threshold, as categorically interpreted, would\nhave full effect.” Id. at 40.\n Applying the same analysis to § 1127(a)(2)(B)(i)’s personal-use\nexception, we conclude that the BIA reasonably interpreted the personal-use\nexception to require a circumstance-specific approach. First, the language “a\nsingle offense involving” suggests a circumstance-specific inquiry. Although,\nas the Court recognized, “offense” could refer to either a generic crime or\nspecific conduct, see id. at 33-34, the use of “involving” makes the latter\ninterpretation more plausible. In this regard, “involving” functions similarly to\nthe use of “in which” in § 1101(a)(43)(M)(i) that swayed the Court toward the\ncircumstance-specific approach.\n But perhaps more tellingly, applying the categorical approach to the\npersonal-use exception would leave § 1227(a)(2)(B)(i) “with little, if any,\nmeaningful application.” Id. at 39. Congress first added the personal-use\nexception to § 1227(a)(2)(B)(i)’s predecessor in 1990. See Immigration Act of\n1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5080. At that time, the federal\n 8\n\f Case: 17-60744 Document: 00514829668 Page: 9 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nsimple-possession statute did not distinguish between possession of marijuana\nas opposed to any other controlled substance, nor did it distinguish between\npossession of greater or less than 30 grams. See 21 U.S.C. § 844(a) (1988).\nLikewise, a majority of states and the District of Columbia followed the\nUniform Controlled Substances Act (“UCSA”) at the time. The 1990 version of\nthe UCSA’s simple-possession provision is at least somewhat congruent to the\npersonal-use exception in that it carves out a lower offense for simple\npossession of fewer than 29 grams of marijuana. Unif. Controlled Substances\nAct § 406(d) (Unif. Law Comm’n 1990). But the difference in the quantity\ncutoff—as small as it is—means that no simple-possession conviction under\nthe UCSA would ever render an alien removable under the categorical\napproach: possession of 29 or more grams of marijuana under the UCSA is a\ncategorically broader offense than possession of more than 30 grams of\nmarijuana. If Congress had intended for § 1227(a)(2)(B)(i) to track state law\nsuch that the categorical approach would apply, one would expect Congress to\nset the upper limit for the personal-use exception at 29 rather than 30 grams.\nAccordingly, Congress must have intended the circumstance-specific approach\nto apply.\n Cardoso de Flores relies solely on Moncrieffe v. Holder, 569 U.S. 184\n(2013), to argue otherwise. Moncrieffe is inapposite. The issue in Moncrieffe\nwas whether a Georgia possession-with-intent-to-distribute statute\ncategorically fit the federal generic definition of illicit trafficking in a controlled\nsubstance. See 569 U.S. at 192. The Court held that the Georgia statute did\nnot meet the generic definition because it prohibited distributing small\namounts of marijuana without remuneration, which federal law explicitly\nexcluded from its drug-trafficking prohibition. See id. at 194-95. Thus, the\nCourt held that the Georgia statute was categorically broader than the generic\noffense. See id. The Government nevertheless argued that the Court should\n 9\n\f Case: 17-60744 Document: 00514829668 Page: 10 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nadopt an approach similar to the one it endorsed in Nijhawan in which it would\nlook to the specific circumstances to determine whether the no-remuneration\nexception applied. See id. at 200. The Court rejected the invitation; in\ndistinguishing Nijhawan, it noted that the exception in that case came from\nthe INA itself whereas the no-remuneration exception was part of the generic\noffense. See id. at 202. In this case, as in Nijhawan, that the personal-use\nexception is located “in the INA proper suggests an intent to have the relevant\nfacts found in immigration proceedings.” Id.\n We therefore conclude that the BIA’s interpretation of § 1227(a)(2)(B)(i)’s\npersonal-use exception is reasonable, so we defer to it.\n B.\n Applying the BIA’s circumstance-specific approach, we conclude that\nCardoso de Flores’s conviction does not fall within the personal-use exception.\nCardoso de Flores argues that her conviction for possession of a controlled\nsubstance under Tenn. Code. Ann. § 39-17-418 necessarily involved possession\nof no more than 14.175 grams of marijuana for personal use. Ergo, she insists,\nthe BIA should have concluded that the personal-use exception applied without\nlooking to records from her arrest and prosecution.\n Cardoso de Flores misreads § 39-17-418. Section 39-17-418 states, in\nrelevant part:\n (a) It is an offense for a person to knowingly possess or\n casually exchange a controlled substance, unless the substance\n was obtained directly from, or pursuant to, a valid prescription or\n order of a practitioner while acting in the course of professional\n practice.\n (b) It is an offense for a person to distribute a small amount\n of marijuana not in excess of one-half ( ½ ) ounce (14.175 grams).\n\n\n The text and structure of § 39-17-418 show that subsection (a)\ncriminalizes simple possession and casual exchange of a controlled substance,\n\n 10\n\f Case: 17-60744 Document: 00514829668 Page: 11 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\nregardless of the specific type or quantity of that substance, while subsection\n(b) criminalizes low-quantity marijuana distribution. This is especially\napparent when read in conjunction with § 39-17-417, which criminalizes more\nserious controlled-substance offenses. Section 39-17-417(g)(1) makes it a felony\nto distribute more than 14.175 grams of marijuana, thus addressing a more\nserious distribution offense than § 39-17-418(b). But no part of § 39-17-\n417(g)(1) addresses a simple-possession offense more serious than § 39-17-\n418(a), suggesting that all simple possession offenses, regardless of quantity,\nfall under § 39-17-418(a). 3\n Thus, to the extent Cardoso de Flores was convicted under subsection\n(a), her conviction could have involved possession of a substance other than\nmarijuana or possession of greater than 30 grams of marijuana, either of which\nwould place the conviction beyond the personal-use exception’s reach. To the\nextent she was convicted under subsection (b), her conviction would have\ninvolved distribution, which would likewise place her conviction beyond the\npersonal-use exception’s reach. Therefore, the BIA appropriately looked to the\nfacts surrounding Cardoso de Flores’s arrest and conviction. Looking to those\nfacts, we conclude that substantial evidence supports the BIA’s findings that\nCardoso de Flores possessed 54.6 pounds of marijuana—substantially more\nthan the personal-use exception’s 30-gram threshold. Cardoso de Flores does\nnot argue otherwise.\n\n\n\n 3 We also reject Cardoso de Flores’s suggestion that the rule of lenity should inform\nour interpretation of § 39-17-418. Even assuming the rule of lenity could otherwise apply in\nthis situation, we perceive no ambiguity in this statute, especially not one severe enough to\nwarrant resort to the rule of lenity. See United States v. Suchowolski, 838 F.3d 530, 534 (5th\nCir. 2016) (“[T]he rule of lenity only applies if, after considering the text, structure, history,\nand purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the\n[c]ourt must simply guess as to what Congress intended”. (alterations in original) (quoting\nUnited States v. Castleman, 572 U.S. 157, 172-73 (2014))).\n\n 11\n\f Case: 17-60744 Document: 00514829668 Page: 12 Date Filed: 02/11/2019\n\n\n\n No. 17-60744\n IV.\n For the reasons stated above, we DENY Cardoso de Flores’s petition for\nreview.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366781/", "author_raw": "PER CURIAM"}]}	KING	HIGGINSON	COSTA	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589528/	Published	1	0	0	2,019	2	[ { "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...
4,589,970	UNITED STATES of America, Plaintiff-Appellee, v. Abel DE LEON, Defendant-Appellant.	United States v. Abel De Leon	2019-02-12	17-50881	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before SMITH, BARKSDALE, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-50881 Document: 00514832846 Page: 1 Date Filed: 02/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 17-50881\n Fifth Circuit\n\n FILED\n February 12, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee,\n\nversus\n\nABEL DE LEON,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\n\n\nBefore SMITH, BARKSDALE, and HO, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Abel De Leon signed an agreement pleading guilty of receipt of child\npornography in violation of 18 U.S.C. § 2252A(a)(2) and (b). Yet at his initial\nsentencing hearing, De Leon claimed that he lacked the requisite mens rea,\nthat the government had entrapped him, and that the factual basis of the plea\nwas inaccurate. The court offered to schedule a trial, and De Leon welcomed\nthe proposal. At the pretrial conference, however, De Leon again changed his\n\f Case: 17-50881 Document: 00514832846 Page: 2 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\nmind and pleaded guilty under the original agreement. Now on appeal he\ninsists that the district court committed plain error by restricting his right to\nwithdraw the guilty plea and by involving itself in plea negotiations. See FED.\nR. CRIM. P. 11(c)(1), (d)(1). We disagree and affirm.\n\n I.\n In 2012, Homeland Security agents searched De Leon’s home and dis-\ncovered two DVDs containing seventy-three child pornography videos, as well\nas forty-eight deleted videos on his computer. De Leon was charged with\nreceipt of child pornography, 18 U.S.C. § 2252A(a)(2), (b); distribution of child\npornography, id.; and accessing child pornography with the intent to view it,\nid. § 2252A(a)(5)(B), (b). He signed a written agreement, pleading guilty to the\nfirst charge, admitting its factual basis, and waiving appeal.\n\n But at rearraignment, De Leon protested that he had thought viewing\nchild pornography was legal because the videos were readily available online.\nHe acknowledged, however, that he now understood the activity to be unlawful.\nAfter ensuring that De Leon had freely and voluntarily signed the plea agree-\nment, the magistrate judge recommended that the district court accept the\nguilty plea.\n\n At his initial sentencing hearing in April 2014, De Leon again averred\nthat he did not knowingly or intentionally commit a crime because he thought\nthat freely accessible videos were lawful. And while he recognized that it was\nunlawful to have sex with a minor, he did not know that watching such videos\nwas also prohibited. De Leon further contended that he had been forced to\naccept the plea agreement even though it contained misleading information.\nSpecifically, he claimed that he had already deleted all the illegal images at\nthe time of the search and that the two DVDs found at his house did not belong\n 2\n\f Case: 17-50881 Document: 00514832846 Page: 3 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\nto him. Finally, he alleged that the government deliberately allowed websites\nto feature child pornography to entrap people like him.\n\n The district court offered to withdraw the plea and to proceed to trial.\nBut the court warned that law enforcement had no duty to expurgate all illegal\nimages from the internet and that an entrapment defense would not be a “win-\nning strategy” at trial. De Leon requested a trial, and the court scheduled a\ndocket call. The parties confirmed at the docket call that they were ready for\ntrial, and in June 2014 there was a pretrial conference and jury selection.\n\n At the pretrial conference, De Leon’s counsel noted that he did not intend\nto raise any affirmative defense. The court stated that it had not withdrawn\nthe plea agreement and that the only reason it had scheduled a trial was to\ngive De Leon the opportunity to present his affirmative defense. Now that\ncounsel had resolved not to present an entrapment defense, the district judge\nremarked, “I don’t know that I’m real inclined to allow [De Leon] to withdraw\nhis plea.” Speaking on his own behalf, De Leon then clarified that he wanted\nto raise entrapment.\n\n The court responded that De Leon could not present that defense because\nhe had failed to file timely notice of his intent to do so. 1 Because ignorance of\nthe law is no defense, the court rejected De Leon’s claim that he did not know-\ningly commit a crime. Lastly, the court ruled that any dispute over the number\nof illegal images in De Leon’s possession was a sentencing issue reserved for\nthe court, not the jury. The court agreed, however, to consider his arguments\nat sentencing and to allow him to contest the number of videos and the manner\nin which the government had conducted its investigation.\n\n\n 1See FED. R. CRIM. P. 12.3 (requiring notice of a defendant’s intent to assert a public-\nauthority defense).\n 3\n\f Case: 17-50881 Document: 00514832846 Page: 4 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\n Upon receiving those assurances, De Leon decided to renew his guilty\nplea. The court asked whether he was coerced into accepting the plea agree-\nment. De Leon replied that “in a way, [the court] shot my defense down,” but\nhe ultimately conceded that he suffered no coercion. The court scheduled a\nsentencing hearing for the next day, at which it accepted De Leon’s guilty plea\nand imposed the statutory maximum.\n\n II.\n De Leon asserts that the district court plainly erred by restricting his\nright to withdraw the guilty plea and by involving itself in plea negotiations.\nSee FED. R. CRIM. P. 11(c)(1), (d)(1). He asks that we vacate the conviction and\nsentence and assign his case to a different judge on remand. 2\n\n Plain-error review applies where, as here, the defendant “fail[ed] to pre-\nserve an error by specific objection in the trial court.” 3 We need not wade\nthrough the methodology for plain error because there is no error, plain or\notherwise.\n\n A.\n Before a district court accepts a guilty plea, the defendant may withdraw\nit “for any reason or no reason.” FED. R. CRIM. P. 11(d)(1). The defendant\nenjoys “an absolute right to withdraw his or her guilty plea before the court\naccepts it.” United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008) (citation\n\n\n\n\n 2Because the merits of De Leon’s claims implicate the validity of the plea agreement,\nwe pretermit consideration of the appeal waiver. See United States v. Draper, 882 F.3d 210,\n214 & n.3 (5th Cir.), cert. denied, 138 S. Ct. 2637 (2018).\n 3United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012) (citing Puckett v.\nUnited States, 556 U.S. 129, 135 (2009)).\n 4\n\f Case: 17-50881 Document: 00514832846 Page: 5 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\nomitted). Once the court accepts the plea, however, the defendant has no un-\nconditional right to withdraw it. See id. (citing FED. R. CRIM. P. 11(d)(2)).\n\n Both parties recognize that the district court neither explicitly nor\nimplicitly accepted De Leon’s guilty plea until the second sentencing hearing\nin June 2014. After all, the court never expressly accepted the plea before that\ndate. Moreover, the court would not have set the case for docket call or\nempaneled a jury if it had previously accepted the plea agreement. Hence, De\nLeon had an unqualified right to withdraw his plea before the second sentenc-\ning hearing. See id.\n\n The court faithfully upheld De Leon’s absolute right to withdraw his\nguilty plea. Once De Leon denied having the requisite mens rea and disputed\nthe factual basis of the plea, the court immediately offered to withdraw the\nagreement. When De Leon agreed to go to trial, the court scheduled a docket\ncall and empaneled a jury. In doing so, the court stated that it did not want\nDe Leon “to get up here and ever say he was forced by anybody to accept one\nthing or the other.” Hence, the court was fully prepared to subject De Leon’s\ncase to the crucible of trial.\n\n The only reason that a trial did not occur was that De Leon continued to\nwaffle. After the court ruled that his defenses were inadmissible, De Leon\nchanged his mind—for the second time—and renewed his guilty plea. This\ncase is thus distinct from Arami, in which we held that the district court had\nplainly erred by denying the defendant’s motion to withdraw his guilty plea. 4\nIn contrast, De Leon never formally requested to withdraw his plea but,\n\n\n\n 4Arami, 536 F.3d at 483. See also United States v. Cessa, 626 F. App’x 464, 468, 470\n(5th Cir. 2015) (per curiam) (noting that the case was “materially indistinguishable” from\nArami).\n 5\n\f Case: 17-50881 Document: 00514832846 Page: 6 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\ninstead, continued to waver before ultimately deciding to persist in his original\nguilty plea. There can be no error under such circumstances.\n\n De Leon claims, however, that the district court improperly conditioned\nthe withdrawal of the plea on his decision to pursue an affirmative defense.\nBut far from imposing any such condition, the court merely expressed confu-\nsion as to whether De Leon was intent on going to trial. 5 Indeed, the court\nnoted that it had scheduled a trial because De Leon had desired an opportunity\nto present his affirmative defense. Yet now that counsel had resolved not to\npresent an entrapment defense, the district judge was understandably puz-\nzled. Especially given De Leon’s chronic indecision, the judge’s stray comments\ndo not amount to a violation of Rule 11(d)(1).\n\n B.\n Rule 11(c)(1) prohibits the court from participating in plea discussions\nbetween the government and the defendant or his attorney. See FED. R. CRIM.\nP. 11(c)(1). “It is a bright line rule that constitutes an absolute prohibition on\nall forms of judicial participation in or interference with the plea negotiation\nprocess.” Draper, 882 F.3d at 215 (internal quotation marks and citation\nomitted).\n\n The rule serves three purposes. First, “it diminishes the possibility of\njudicial coercion of a guilty plea,” regardless of whether the coercion would\nactually cause an involuntary plea. 6 Second, it preserves the “trial court’s im-\n\n\n\n\n 5“If [counsel’s] strategy now is not to present any evidence of an affirmative defense,\nthen why should I reject the plea?”; “Now what I’m understanding is . . . there is not going to\nbe an entrapment defense, so what are we doing?”\n 6 United States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995) (citing United States v.\n 6\n\f Case: 17-50881 Document: 00514832846 Page: 7 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\npartiality,” lest the “judge who suggests or encourages a particular plea bar-\ngain . . . feel a personal stake in the agreement” and “resent the defendant who\nrejects his advice.” United States v. Pena, 720 F.3d 561, 571 (5th Cir. 2013)\n(quoting Miles, 10 F.3d at 1139). Third, it avoids confusion over “the judge’s\nrole in the proceedings,” 7 ensuring that he remains a “neutral arbiter” rather\nthan an “advocate for the agreement.” Daigle, 63 F.3d at 348. “In light of these\nconsiderations, we have not hesitated to find a Rule 11 error even when the\ncourt’s participation is minor and unintentional.” United States v. Ayika,\n554 F. App’x 302, 305 (5th Cir. 2014) (per curiam).\n\n In assessing a claim of improper judicial participation, we consider\n“whether the court was actively evaluating a [defendant’s decision to plead\nguilty], as the court is required to do, rather than suggesting what should occur\nor injecting comments while the parties are still negotiating.” Draper, 882 F.3d\nat 216 (quoting United States v. Hemphill, 748 F.3d 666, 673 (5th Cir. 2014)).\nA trial judge violates Rule 11(c)(1) by making statements that may be “con-\nstrued as predictive of the defendant’s criminal-justice outcome; suggestive of\nthe best or preferred course of action for the defendant; or indicative of the\njudge’s views as to guilt.” Id. at 215 (citing Ayika, 554 F. App’x at 305). But a\njudge does not offend the rule “where performing the duties mandated by\nRule 11(b).” Id. (citing Miles, 10 F.3d at 1140).\n\n The district court never interfered in active negotiations, given that the\ncomments at issue occurred after De Leon had volitionally signed the plea\nagreement and disclosed its terms to the district court. Hence, this case is\ndistinguishable from United States v. Rodriguez, 197 F.3d 156, 159–60 (5th\n\n\nMiles, 10 F.3d 1135, 1139 (5th Cir. 1993)).\n 7 Pena, 720 F.3d at 571 (quoting Miles, 10 F.3d at 1139).\n 7\n\f Case: 17-50881 Document: 00514832846 Page: 8 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\nCir. 1999), and Pena, 720 F.3d at 574–75. In Rodriguez, the court had made\nsuggestive statements before the defendant signed the plea agreement. Rodri-\nguez, 197 F.3d at 158. And in Pena, the judge had made improper remarks\nbefore the terms of the plea agreement were revealed to the court. 8 In both\ncases, we vacated the convictions because, absent the court’s participation, it\nwas unclear whether, and under what terms, the defendants would have\npleaded guilty. Such is not a concern here.\n\n De Leon counters that he withdrew his guilty plea at the initial sentenc-\ning hearing and that the court improperly entered ongoing negotiations at the\npretrial conference. De Leon’s tale plays fast and loose with the record.\nThough, at the initial sentencing hearing and the docket call, he evinced a\ndesire to go to trial, De Leon never moved to withdraw his guilty plea, and he\ncontinued to vacillate at the pretrial conference. Because De Leon never\nclearly withdrew his signed plea agreement, the district court did not partici-\npate in ongoing negotiations. Instead, it fulfilled its duty “actively [to] evalu-\nat[e] a [defendant’s decision to plead guilty].” Draper, 882 F.3d at 216 (quoting\nHemphill, 748 F.3d at 673 ).\n\n But even if De Leon had withdrawn his plea, there was no violation of\nRule 11(c)(1). According to De Leon, the court pressured him into renewing his\nguilty plea by stating that he could proceed to trial only if he presented an\nentrapment defense and by then barring that defense. Yet as already\ndiscussed, the district court imposed no such condition on his right to a trial.\nRather, the court was justifiably perplexed by De Leon’s mercurial intentions.\n\n\n\n 8 Id. at 574–75. See also United States v. Crowell, 60 F.3d 199, 204 (5th Cir. 1995)\n(finding it “critical” that the court’s comments were “injected into the discussions while the\nparties were still preparing the [plea] agreement”).\n 8\n\f Case: 17-50881 Document: 00514832846 Page: 9 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\n De Leon next maintains the court improperly entered negotiations by\nsuggesting that none of his defenses would lead to an acquittal. But the court\nmerely ruled on the admissibility of De Leon’s defenses at trial. Indeed, it held\nthat De Leon could not present an entrapment defense because he had failed\nto provide timely notice of his intent to do so. See FED. R. CRIM. P. 12.3.\nMoreover, explaining that ignorance of the law is no defense, the court rightly\nrejected De Leon’s claim that he did not knowingly commit a crime. The court\nalso determined that De Leon could contest the number of images at sentenc-\ning but not before the jury. Nothing in Rule 11(c)(1) prevents the court from\nmaking such evidentiary rulings, and De Leon does not challenge them here. 9\n\n Finally, De Leon urges that the district court erred by “chang[ing] the\nterms of the [plea] agreement.” Rodriguez, 197 F.3d at 159 (citation omitted).\nDe Leon initially agreed not to dispute the factual basis of the plea. But later\nat the pretrial conference, the court offered to schedule an evidentiary hearing\nto determine the number of illegal images and the manner in which the gov-\nernment had conducted the investigation. De Leon asserts that, in doing so,\nthe court altered the terms of the agreement by allowing him to contest facts\nhe had previously promised not to challenge.\n\n That argument is frivolous. The plea agreement stated that two DVDs\ncontaining seventy-three child pornography videos were found in De Leon’s\nhouse. It further stipulated that De Leon was the sole owner with exclusive\naccess to the desktop computer, that he had searched for and viewed illegal\n\n\n 9 At the initial sentencing hearing, the district court observed that De Leon’s proposed\nentrapment defense was “not a winning strategy.” Though the court may not make state-\nments that suggest the preferred course of action for a defendant, Draper, 882 F.3d at 215,\nthat remark did not occur during active plea negotiations. The district judge made that\ncomment after De Leon had signed the plea agreement and before he expressed any inclina-\ntion to withdraw it. Cf. Rodriguez, 197 F.3d at 159–60.\n 9\n\f Case: 17-50881 Document: 00514832846 Page: 10 Date Filed: 02/12/2019\n\n\n\n No. 17-50881\nimages, and that he subsequently had deleted them from his computer. But\nnowhere did the agreement specify that the two DVDs belonged to De Leon. In\nallowing De Leon to contest his ownership of the DVDs for sentencing pur-\nposes, the district court therefore did not change the terms of the plea\nagreement.\n\n There is no error. The judgment of conviction and sentence is\nAFFIRMED.\n\n\n\n\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367223/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]}	SMITH	BARKSDALE	HO	1	{"SMITH": ", Circuit", "BARKSDALE": ", Circuit", "HO": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589970/	Published	1	0	0	2,019	2	[ { "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...
4,590,437	Michael WEASE, Plaintiff - Appellant v. OCWEN LOAN SERVICING, L.L.C.; Wells Fargo Bank, N.A., Defendants - Appellees	Michael Wease v. Ocwen Loan Servicing, L.L.C., et	2019-02-13	17-10574	U.S. Court of Appeals for the Fifth Circuit	{"judges": "King, Haynes, Higginson", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-10574 Document: 00514834421 Page: 1 Date Filed: 02/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-10574 February 13, 2019\n Lyle W. Cayce\nMICHAEL WEASE, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nOCWEN LOAN SERVICING, L.L.C.; WELLS FARGO BANK, N.A.,\n\n Defendants - Appellees\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n ON PETITION FOR REHEARING\n\nBefore KING, HAYNES, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n The petition for rehearing is DENIED. The court’s prior opinion is\nwithdrawn, and this opinion is substituted.\n This Texas mortgage dispute presents contractual, statutory, and\nequitable issues. We discern ambiguity in the contract’s escrow provisions and\ntherefore hold that the district court erred by granting summary judgment to\nthe defendants on claims arising from that ambiguity. Otherwise, we affirm.\n BACKGROUND\n I. Factual\n In 2003, Michael Wease executed a home equity note on his Texas\nproperty and secured the loan with a deed of trust. Wells Fargo Bank, N.A., is\n\f Case: 17-10574 Document: 00514834421 Page: 2 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nthe current beneficiary of the deed of trust and Ocwen Loan Servicing, L.L.C.,\nthe loan servicer. 1\n Among the promises the parties exchanged was the Escrow Waiver\nAgreement (the Waiver Agreement), which was appended to the deed of trust.\nIt provided that the lender would “elect[] not to collect monthly escrow deposits\nto pay real estate taxes” subject to the condition that “[a]ll real estate taxes are\npaid when due, and evidence is furnished to Lender at that time.” The Waiver\nAgreement warned:\n In the event Borrower fails to comply with [the] above condition[],\n Lender has the right and Borrower agrees to pay sufficient funds\n to establish a fully funded escrow account and to have the monthly\n payment adjusted to include a monthly escrow deposit.\n\n This action is an election not to collect escrows at this time and\n should not be deemed a waiver of Lender’s right to do so at some\n future date.\n\nSections 3, 9, and 14 in the deed of trust also contained agreements about\nescrow. Section 3 explained when and how the lender could establish an\nescrow. It defined “Escrow Items” to include “taxes and assessments” and\nexplained:\n If Borrower is obligated to pay Escrow Items directly, pursuant to\n a waiver, and Borrower fails to pay the amount due for an Escrow\n Item, Lender may exercise its rights under Section 9 and pay such\n amount and Borrower shall then be obligated under Section 9 to\n repay to Lender any such amount. Lender may revoke the waiver\n as to any or all Escrow Items at any time by a notice given in\n accordance with Section 14 and, upon such revocation, Borrower\n shall pay to Lender all Funds, and in such amounts, that are then\n required under this Section 3.\n\n\n\n\n 1 Although both are named as defendants, we follow the parties’ lead and refer to them\ncollectively as “Ocwen.”\n 2\n\f Case: 17-10574 Document: 00514834421 Page: 3 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nSection 9 provided that if “Borrower fails to perform the covenants and\nagreements contained in this Security Instrument,” then “Lender may do and\npay for whatever is reasonable or appropriate to protect Lender’s interest in\nthe Property and rights under this Security Instrument.” The section defined\nthose actions to include, but not be limited to, “paying any sums secured by a\nlien which has priority over this Security Instrument.”\n Section 14 addressed notice. It required that all notices “given by\nBorrower or Lender in connection with this Security Agreement” be “in\nwriting.” It also provided that “[a]ny notice to Borrower . . . shall be deemed\nto have been given to Borrower when mailed by first class mail or when\nactually delivered to Borrower’s notice address if sent by other means.”\n For seven years, the arrangement functioned amicably. But in April\n2010, Wease’s loan servicer—then HomEq Servicing—sent Wease a letter\nadvising him that HomeEq had performed an “examination of past due\nproperty taxes” which revealed that Wease was “delinquent” on his taxes for\nthe prior year (2009). The letter warned:\n The terms of your loan agreement require that you pay all taxes\n and assessments on your property when due. In accordance with\n the terms of your Mortgage/Deed of Trust, HomeEq may advance\n funds to protect its interest in your property if this is not done. If\n HomeEq advances funds to pay the delinquent property taxes, an\n escrow account will be established and will remain in effect for the\n remaining term of your loan. Your monthly payment will increase\n to reflect the escrow payment due.\n\nThe letter requested that Wease pay the taxes within 30 days of the date of the\nnotice or, if he had already paid the taxes, that he forward proof of payment.\nFive days later, HomEq sent an identical letter. Wease did not pay his 2009\nproperty taxes until June 30, 2010. The record does not indicate whether\nHomEq ever advanced or escrowed any money.\n\n\n 3\n\f Case: 17-10574 Document: 00514834421 Page: 4 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\n Six weeks later, Wease received a “Notice of Transfer” dated August 11,\n2010. This letter informed him that Ocwen would replace HomEq as servicer.\nThe terms of the financing agreement would remain in place. “If you are\ncurrently responsible for payment of your real estate taxes,” the letter clarified,\n“you will continue to be responsible for payment of these items after your\naccount transfers to Ocwen.” Towards the end of the letter, Ocwen included a\nparagraph expressly concerning “Section 6 of RESPA (12 USC 2605).” The\nletter explained that the statute mandates servicers to acknowledge a\n“qualified written request” within 20 business days of receipt. Then the letter\nstated, “If you want to send a ‘qualified written request’ regarding the servicing\nof your loan, it must be sent to [an Orlando, FL] address[.]” At that time, Wease\nwas current on his loan and tax payments.\n On December 16, 2010—without prior notice—Ocwen paid Wease’s 2010\nproperty taxes. Unaware of Ocwen’s payment, Wease paid his 2010 taxes in\nJanuary 2011; the tax authorities subsequently refunded that amount. Six\nmonths later, on June 6, 2011, Ocwen sent Wease a letter labeled, “Annual\nEscrow Account Disclosure Statement Account History.” It began by\nexplaining: “This is a statement of actual and scheduled activity in your escrow\naccount from August 2010 through July 2011.” The statement did not mention,\nlet alone expressly revoke, the Waiver Agreement. Instead, the letter asserted\nthat Wease had a “total shortage for coming escrow period” worth $4,740.64,\nwhich Ocwen would collect “over 12 monthly payments” starting August 1,\n2011. That would constitute an increase in Wease’s monthly mortgage\npayment from approximately $700 to $1,355.88.\n Wease defaulted in August 2011. He attempted to cure by sending\npartial payments in October and November, but Ocwen rejected them and, on\nJanuary 3, 2012, sent a notice of default and intent to accelerate. On January\n27, 2012, Wease sent his first of three alleged qualified written requests, or\n 4\n\f Case: 17-10574 Document: 00514834421 Page: 5 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nQWRs, to a West Palm Beach, FL address. Wease’s letter requested “all\ndocumentation concerning [his] loan including transaction history for the\nduration of the loan and any documentation proving who actually owns the\nproperty along with me.” But Wease did not send this purported QWR to the\nexclusive QWR address in Orlando, FL.\n The misaddressed letter nonetheless elicited a response from Ocwen on\nFebruary 13, 2012, stating that Wease’s partial payments were “insufficient to\ncure the default on the loan.” The letter closed by telling Wease that he “may .\n. . send written correspondence” to the same West Palm Beach address where\nWease had sent the letter—which, again, differed from the exclusive QWR\naddress.\n Wease sent two more alleged QWRs in the next few months, one to a\nSpringfield, OH address and another via email. Neither went to Ocwen’s\nexclusive QWR address listed in the notice of transfer and neither elicited an\nanswer. Instead, in May 2012, Ocwen sent a notice of acceleration. Wease\nresponded with this lawsuit.\nII. Procedural\n Wease originally filed suit in Texas state court and Ocwen removed to\nthe Northern District of Texas. The operative complaint alleges, in relevant\npart: (1) breach of contract; (2) “equitable relief,” i.e., a preemptive “unclean\nhands” defense to a potential foreclosure action; (3) violation of the Real Estate\nSettlement Procedures Act (RESPA); and (4) violation of the Texas Debt\nCollection Practices Act (TDCA). Ocwen filed a counterclaim for foreclosure.\nOcwen prevailed entirely on its motion for summary judgment and Wease\nappealed.\n STANDARD OF REVIEW\n We assess summary judgment de novo, viewing the evidence in the light\nmost favorable to the nonmoving party and drawing all reasonable inferences\n 5\n\f Case: 17-10574 Document: 00514834421 Page: 6 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nin the nonmovant’s favor. Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir.\n2013). The movant prevails by showing “that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a).\n ANALYSIS\nI. Breach of Contract, Unclean Hands, and Foreclosure\n Wease argues that Ocwen breached the deed of trust by paying Wease’s\n2010 taxes, starting to escrow, and increasing monthly mortgage payments—\nall without notice. Although “unclean hands” is “an affirmative defense,” Cantu\nv. Guerra Moore, LLP, 448 S.W.3d 485, 496 (Tex. App.—San Antonio 2014, pet.\ndenied), Wease’s complaint invoked it as a “cause of action” to prevent Ocwen\nfrom foreclosing on his home. Ocwen’s answer counterclaimed for foreclosure\non the grounds that Wease breached the deed of trust and remains in default.\n Texas substantive law governs the contract claims. 2 In Texas, breach of\ncontract requires four elements: (1) a valid contract, (2) plaintiff’s performance,\n(3) defendant’s breach, and (4) resulting damages. See Henning v. OneWest\nBank FSB, 405 S.W.3d 950, 969 (Tex. App.—Dallas 2013, no pet.). To\ndetermine the meaning of contractual terms, Texas courts focus on the parties’\nintentions as expressed in the contract itself. Italian Cowboy Partners, Ltd. v.\nPrudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). We must “examine\nand consider the entire writing in an effort to harmonize and give effect to all\nthe provisions of the contract so that none will be rendered meaningless.” Id.\n(quotation omitted). The starting point is the express language, El Paso Field\nServs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 805–06 (Tex. 2012), which\nwe will “strictly construe[]” when reading a deed of trust, Bonilla v. Roberson,\n\n\n 2 The contract named Texas as its source of governing law. Applicable choice-of-law\nrules give effect to that clause. W.–S. Life Assurance Co. v. Kaleh, 879 F.3d 653, 658 (5th Cir.\n2018).\n 6\n\f Case: 17-10574 Document: 00514834421 Page: 7 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\n918 S.W.2d 17, 23 (Tex. App.—Corpus Christi 1996, no writ). We will interpret\nthose terms as a matter of law if they carry a “certain or definite legal meaning\nor interpretation.” El Paso, 389 S.W.3d at 806. “[W]hether the contract is\nambiguous is itself a question of law for the court to decide.” First Bank v.\nBrumitt, 519 S.W.3d 95, 105 (Tex. 2017). If we find the contract ambiguous, its\ncorrect reading presents a jury question. El Paso, 389 S.W.3d at 806.\n The first breach-of-contract question is whether the contract permitted\nOcwen to pay Wease’s non-delinquent 2010 taxes on December 16, 2010. The\nsecond issue is whether Ocwen provided contractually required notice of that\naction and of Ocwen’s revocation of the Waiver Agreement.\n Ocwen’s strongest argument that the contract permitted Ocwen to pay\nWease’s 2010 taxes is Section 9’s provision that Wease’s “fail[ure] to perform\nthe covenants and agreements contained in” the deed of trust permits the\nlender to “do and pay for whatever is reasonable or appropriate to protect\nLender’s interest in the Property and rights under this Security Instrument.”\nOcwen reads that section to mean that when Wease failed to timely pay his\n2009 taxes, Ocwen acquired the right to pay Wease’s 2010 taxes, even though\nat the time Ocwen paid the 2010 taxes, Wease had already paid his 2009 taxes\nand the 2010 taxes were not yet delinquent. 3\n In addition to the fact-specific resolution called for by Section 9’s\n“reasonable or appropriate” provision, Ocwen faces a problem under Section 3,\n\n\n 3 The 2010 tax lien attached on January 1, 2010. See Tex. Tax Code § 32.01(a)\n(emphasis added) (“On January 1 of each year, a tax lien attaches to property to secure the\npayment of all taxes, penalties, and interest ultimately imposed for the year on the property\n. . . .”). However, Wease’s taxes would not have become delinquent until February 1, 2011.\nSee Tex. Tax Code § 31.02(a) (“[T]axes are due on receipt of the tax bill and are delinquent if\nnot paid before February 1 of the year following the year in which imposed.”). Ocwen has not\npresented evidence suggesting that the taxing authority would attempt to foreclose on the\nproperty after the taxes became “due” but over a month before they became “delinquent.”\nTherefore, there remains a factual dispute as to whether it was “reasonable or appropriate”\nfor Ocwen to pay Wease’s tax bill prior to delinquency.\n 7\n\f Case: 17-10574 Document: 00514834421 Page: 8 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nwhich provides: “If Borrower is obligated to pay Escrow Items directly,\npursuant to a waiver, and Borrower fails to pay the amount due for an Escrow\nItem, Lender may exercise its rights under Section 9 and pay such amount . . .\n. ” (emphasis added). Section 3 uses the singular, backward-looking “amount\ndue” and permits the lender to pay “such amount.” Under that interpretation,\nthe contract would have permitted Ocwen only to pay Wease’s past-due 2009\ntaxes—not to pre-pay his 2010 taxes. 4 To be sure, Section 3 also states that\nOcwen “may revoke the [escrow] waiver as to any or all Escrow Items at any\ntime . . . .” 5 A strong reading of that clause would suggest that Ocwen might\nhave the right to pay taxes preemptively without a triggering condition. 6\n A contract is ambiguous if it “is subject to two or more reasonable\ninterpretations.” Nat’l Union Fire Ins. Co. of Pitt., PA v. CBI Indus., Inc., 907\nS.W.2d 517, 520 (Tex. 1995). Given the two plausible readings above, the deed\nof trust is ambiguous. And because ambiguity precludes summary judgment,\nEl Paso, 389 S.W.3d at 806, Wease was entitled to proceed to trial on his claim\nthat Ocwen breached the contract by paying his 2010 taxes before they became\ndelinquent.\n The second breach-of-contract issue is whether Ocwen failed to provide\nadequate notice of its actions. Section 3 provides that “Lender may revoke the\n[escrow] waiver as to any or all Escrow Items at any time by a notice given in\naccordance with Section 14.” Section 14 simply requires that a notice be given\n“in writing” and delivered to the borrower. The record reflects, and Ocwen\nacknowledged at oral argument, that Ocwen did not provide notice that it\n\n\n\n 4 By the time Ocwen took over the loan from HomeEq, Wease had already paid his\n2009 taxes.\n 5 The crucial end of that sentence—“by a notice given in accordance with Section 14”—\n\nis explained below.\n 6 The record is unclear as to whether and, if so, how Ocwen ever revoked the Waiver\n\nAgreement.\n 8\n\f Case: 17-10574 Document: 00514834421 Page: 9 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nwould begin collecting taxes through an escrow account until June 6, 2011. But\nthe record is also clear that Ocwen had paid Wease’s 2010 taxes six months\nbefore that notice was sent. Indeed, the June letter informed Wease that his\n(presumably already-existent) escrow account had a shortage of $4,740.64,\nwhich Ocwen would collect over the following twelve-month period. With these\nfacts in the record, it was error for the district to conclude as a matter of law\nthat Ocwen had provided contractually adequate notice of its revocation of the\nWaiver Agreement. 7\n The district court rejected Wease’s unclean hands argument and granted\nsummary judgment on Ocwen’s foreclosure counterclaim based on the\nreasoning that Ocwen’s actions “concerning the payment of taxes,\nimplementing an escrow account, and pursuing foreclosure, were proper.” As\nset forth above, there is a factual question as to whether Ocwen’s actions\nbreached the contract; however, unclean hands is only a defense to a request\nfor equitable relief. We therefore affirm the district court’s summary judgment\nfor Ocwen on Wease’s unclean hands “cause of action” (a mislabeled affirmative\ndefense). Contrastingly, foreclosure is a contractual remedy. Our breach-of-\ncontract holding here does not mean that Ocwen is barred from recovery of\nmoney that may be owed on the property, or eventual foreclosure—but we\nhighlight that the foreclosure remedy would only be available if Ocwen shows\nthat it complied with contractual requirements. At this stage, it is premature\nto conclude that Ocwen is entitled to summary judgment on its foreclosure\n\n\n\n\n 7Ocwen maintains that it had no obligation at all to provide notice of revocation of\nthe Waiver Agreement. But at oral argument, Ocwen contended that if such notice were\nrequired, the June letter sufficed to put Wease on notice of actions that Ocwen had taken in\nthe past—namely, paying Wease’s 2010 taxes and opening the escrow account. As Ocwen’s\ncounsel candidly put it, “The notice was sent in June but the action was taken in [the\nprevious] December.”\n 9\n\f Case: 17-10574 Document: 00514834421 Page: 10 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\n counterclaim. We therefore vacate the foreclosure ruling and remand for\n reconsideration.\nII. Real Estate Settlement Procedures Act (RESPA)\n RESPA is a consumer protection statute that, in relevant part, obligates\n a covered loan servicer to respond to a borrower’s qualified written requests\n (QWRs). 12 U.S.C. § 2605(e). A QWR is a written request “for information\n relating to the servicing of [a] loan.” Id. § 2605(e)(1)(A). When a borrower sends\n a QWR, the loan servicer must, among other actions, return “a written\n response acknowledging receipt of the correspondence.” Id. § 2605(e)(2)(A)–(C).\n Pursuant to § 2605(f), a borrower can sue a servicer who fails to reply as\n required.\n Federal regulation permits servicers to “establish a separate and\n exclusive office and address for the receipt and handling of” QWRs.\n 24 C.F.R. § 3500.21(e)(1) (repealed 2014). 8 “[If] the servicer establishes such an\n office and complies with all the necessary notice provisions of this rule, then\n\n\n\n 8 RESPA originally authorized the Department of Housing and Urban Development\n (HUD) “to prescribe such rules and regulations” and “make such interpretations . . . as may\n be necessary to achieve [the statute’s] purposes.” 12 U.S.C. § 2617 (repealed 2011). With that\n authority, HUD issued the cited regulation. The Dodd-Frank Act transferred HUD’s\n rulemaking authority over RESPA to the Consumer Financial Protection Bureau (CFPB).\n See Pub. L. No. 111–203, § 1098, 124 Stat. 1376, 2104 (2010). Thus, in June 2014, HUD\n rescinded its version of the regulation. See Removal of Regulations Transferred to the\n Consumer Financial Protection Bureau, 79 Fed. Reg. 34,224, 34,224–25 (June 16, 2014), 2014\n WL 2637011. The CFPB promulgated a new regulation resembling the one that HUD had\n established. See 12 C.F.R. § 1024.36(b) (“A servicer may, by written notice provided to a\n borrower, establish an address that a borrower must use to request information in accordance\n with the procedures in this section.” (emphasis added)); see also id. § 1024.35(c) (“If a servicer\n designates a specific address for receiving notices of error, the servicer shall designate the\n same address for receiving information requests pursuant to § 1024.36(b).”). We apply HUD’s\n regulation because Wease’s letters predate the CFPB’s regulation. Neither party has urged\n that HUD’s regulation is inapplicable. Moreover, at least three other circuits have applied\n HUD’s regulation to events occurring before the CFPB issued its new guidance. See Bivens\n v. Bank of Am., N.A., 868 F.3d 915, 919–21 (11th Cir. 2017); Roth v. CitiMortgage Inc., 756\n F.3d 178, 181–83 (2d Cir. 2014); Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1143, 1147–\n 50 (10th Cir. 2013).\n 10\n\f Case: 17-10574 Document: 00514834421 Page: 11 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nthe borrower must deliver its request to that office in order for the inquiry to\nbe a ‘qualified written request.’” Real Estate Settlement Procedures Act,\nSection 6, Transfer of Servicing of Mortgage Loans, 59 Fed. Reg. 65,442, 65,446\n(Dec. 19, 1994), 1994 WL 702481.\n Ignoring an exclusive QWR address carries harsh consequences. Circuit\ncourts consistently conclude that a loan servicer need not answer a\nmisaddressed QWR—and that responding to such a letter does not trigger\nRESPA duties—if the servicer set an exclusive address. See, e.g., Bivens v.\nBank of Am., N.A., 868 F.3d 915, 921 (11th Cir. 2017) (“Because [the borrower]\nfailed to address his QWR to [the servicer]’s designated address for QWR\nreceipt, [the servicer] had no duty to respond to it.”); Roth v. CitiMortgage Inc.,\n756 F.3d 178, 182 (2d Cir. 2014) (“As long as a servicer complies with the notice\nrequirements of 24 C.F.R. § 3500.21 for designating a QWR address, a letter\nsent to a different address is not a QWR, even if an employee at that address .\n. . in fact responds to that letter.”); Berneike v. CitiMortgage, Inc., 708 F.3d\n1141, 1149 (10th Cir. 2013) (“Communication failing to meet the requirements\nof RESPA and its implementing regulation amounts to nothing more than\ngeneral correspondence between a borrower and servicer. Receipt at the\ndesignated address is necessary to trigger RESPA duties . . . .”). 9 Our court has\nfollowed that approach. See Steele v. Green Tree Servicing, LLC, No. 3:09-CV-\n0603-D, 2010 WL 3565415, at 3 (N.D. Tex. Sept. 7, 2010) (“Because . . . Green\nTree established an exclusive location at which it would accept [QWRs], and .\n. . the Steeles never sent a proper request to that address, Green Tree had no\nduty under RESPA to respond . . . .”), aff’d, 453 F. App’x 473, at 1 (5th Cir.\n2011) (“We affirm for essentially the reasons stated by the district court.”).\n\n\n\n 9 While Roth and Berneike applied Chevron deference, Bivens employed Auer\ndeference. That distinction is not at issue here.\n 11\n\f Case: 17-10574 Document: 00514834421 Page: 12 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\n In line with these authorities, the district court granted Ocwen summary\njudgment on the RESPA claim because Wease neglected to send his letters to\nOcwen’s exclusive QWR address. 10\n On appeal, Wease makes two arguments for the first time: (1) even if\nOcwen designated an exclusive QWR address, the company subsequently\nprovided a different QWR address on every monthly statement, and (2) Ocwen\nchanged its exclusive address either through letters to Wease or when an\nOcwen employee verbally gave Wease a different address. “It is well settled in\nthis Circuit that the scope of appellate review on a summary judgment order\nis limited to matters presented to the district court.” Keelan v. Majesco\nSoftware, Inc., 407 F.3d 332, 339 (5th Cir. 2005). “We will consider an issue\nraised for the first time on appeal . . . if it is a purely legal one and if\nconsideration is necessary to avoid a miscarriage of justice.” Langhoff Props.,\nLLC v. BP Prods. N. Am. Inc., 519 F.3d 256, 261 n.12 (5th Cir. 2008). Wease’s\nnew arguments mix fact and law, and their consideration is not necessary to\navoid a miscarriage of justice. Accordingly, we affirm the district court’s grant\nof summary judgment in Ocwen’s favor on the RESPA claim.\nIII. Texas Debt Collection Practices Act (TDCPA)\n Wease’s complaint alleged that Ocwen violated the TDCA, Texas\nFinance Code §§ 392.001 et seq., by, among other actions, calling Wease’s home\nand leaving “numerous harassing messages.” When Ocwen moved for\nsummary judgment on the TDCA claim, Wease’s opposition focused exclusively\non the other actions. Accordingly, the district court properly concluded that\n\n\n\n Wease puzzlingly avers that Ocwen did not designate an exclusive QWR address.\n 10\n\nThat argument plainly fails. Under 24 C.F.R. § 3500.21(e)(1), a servicer may “establish a\nseparate and exclusive office and address for the receipt and handling of qualified written\nrequests” through a “Notice of Transfer.” In a document entitled “Notice of Service Transfer\n(RESPA),” Ocwen wrote: “If you want to send a ‘qualified written request’ regarding the\nservicing of your loan, it must be sent to this address . . . .”\n 12\n\f Case: 17-10574 Document: 00514834421 Page: 13 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\n“Wease elected not to address his TDCA claim based on Ocwen’s alleged\nharassing phone calls” and therefore deemed that claim “abandoned.” 11\n On appeal, Wease contends that his opposition to summary judgment\nincluded reference to his “sworn [d]eclaration that detailed Ocwen’s harassing\nphone calls and messages.” But “[i]t is not our function to scour the record in\nsearch of evidence to defeat a motion for summary judgment; we rely on the\nnonmoving party to identify with reasonable particularity the evidence upon\nwhich he relies.” Buehler v. City of Austin/Austin Police Dept., 824 F.3d 548,\n555 n.7 (5th Cir. 2016) (quotation omitted). A brief’s stray reference to a fact—\nwith no explanation of its import—fails to defeat a summary judgment motion.\nThe district court did not err.\n Wease also argues that the district court improperly granted summary\njudgment because Ocwen never met its initial burden under Celotex Corp v.\nCatrett, 477 U.S. 317 (1986), to show the absence of a genuine issue for trial.\nThat argument reflects a misunderstanding of the summary judgment\nstandard. A movant for summary judgment need not set forth evidence when\nthe nonmovant bears the burden of persuasion at trial. By urging otherwise,\nWease would resuscitate the rule that prompted certiorari in Celotex and was\ntherein rejected. See id. at 323 (“[U]nlike the [D.C.] Court of Appeals, we find\nno express or implied requirement in Rule 56 that the moving party support\nits motion with affidavits or other similar materials negating the opponent’s\nclaim.”) (emphasis in original).\n Indeed, our court has squarely rejected this argument. In Stahl v.\nNovartis Pharmaceuticals Corp., the plaintiff-appellant protested that the trial\ncourt “improperly placed the summary judgment burden on him, the non-\n\n\n 11 The district court granted Ocwen summary judgment on all of Wease’s TDCA\nclaims, including those unrelated to phone calls. On appeal, Wease does not seek to revive\nhis other theories of TDCA liability.\n 13\n\f Case: 17-10574 Document: 00514834421 Page: 14 Date Filed: 02/13/2019\n\n\n\n No. 17-10574\nmoving party, without first requiring [the defendant] to come forward with\ndocumentary proof of the absence of a genuine issue of material fact regarding\n[the plaintiff]’s claim.” 283 F.3d 254, 263 (5th Cir. 2002). We explained that\n“Stahl misread[] both Rule 56 and the Celotex decision. . . . The moving party\nmay meet its burden to demonstrate the absence of a genuine issue of material\nfact by pointing out that the record contains no support for the non-moving\nparty’s claim.” Id.\n Here, Ocwen relied on Wease’s pleadings and pointed out gaps in the\nrecord to demonstrate its entitlement to summary judgment on the TDCA\nclaim. The district court then properly shifted the burden to Wease and found\nthat he failed to carry it.\n CONCLUSION\n We REVERSE summary judgment on the breach-of-contract claim and\nVACATE and REMAND for reconsideration of the foreclosure counterclaim.\nOn all other claims, we AFFIRM.\n\n\n\n\n 14", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367690/", "author_raw": "STEPHEN A. HIGGINSON, Circuit Judge:"}]}	KING	HAYNES	HIGGINSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590437/	Published	1	0	0	2,019	2	[ { "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...
4,590,774	UNITED STATES of America, Plaintiff-Appellee, v. Randy DeWayne PITTMAN, Defendant-Appellant.	United States v. Randy Pittman	2019-02-14	18-10465	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Higginbotham, Smith, Higginson", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-10465 Document: 00514835543 Page: 1 Date Filed: 02/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n No. 18-10465 Fifth Circuit\n\n FILED\n February 14, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff–Appellee,\n\nversus\n\nRANDY DEWAYNE PITTMAN,\n\n Defendant–Appellant.\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Randy Pittman was convicted and sentenced. With his term of incarcer-\nation set to expire, Pittman moved for relocation of his supervised release\n(“SR”) per 18 U.S.C. § 3605 (2012). The district court denied the motion as\npremature because Pittman was not then (and still is not) on SR. Concluding\nthat we lack jurisdiction, we dismiss the appeal.\n\n I.\n Pittman pleaded guilty of being a felon in possession of a firearm, in\n\f Case: 18-10465 Document: 00514835543 Page: 2 Date Filed: 02/14/2019\n\n\n\n No. 18-10465\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced\nhim to fifty-one months imprisonment, followed by three years of SR. Pittman\nseeks to serve his SR in the Northern District of Georgia, where he has familial\nties, including a young son, instead of in the Northern District of Texas, where\nhe has no such ties. Consequently, in April 2018, Pittman moved for relocation\nof his SR.\n\n The district court denied the motion, finding that “[b]ecause Pittman\nremains incarcerated and is not yet ‘on’ [SR], his request for transfer of juris-\ndiction is premature. The [c]ourt cannot transfer jurisdiction of [SR] while a\ndefendant is incarcerated.” 1 Pittman appeals, pro se.\n\n II.\n A.\n Pittman makes two principal arguments. First, he asserts that the\ndistrict court erroneously concluded that his request for transfer was prema-\nture, maintaining that the district court “can transfer jurisdiction to another\ndistrict for supervision” even though he is incarcerated. Pittman faults the\ncourt’s “interpretation” of § 3605 and contends that “[i]f [his] [c]ase [m]anager\ncan file [a] relocation request [for SR] while the Defendant is incarcerated, the\n[d]istrict [c]ourt lacks no jurisdiction.”\n\n\n 1 See, e.g., United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008) (“Because Miller\nremained under BOP custody while he was at Bannock County Jail, his [SR] did not—and\ncould not—commence until he was released from the Work Release Program.”); United States\nv. Bass, 233 F.3d 536, 537–38 (7th Cir. 2000) (“It is true that [28 U.S.C. § 3605] is limited to\ndefendants who are on [SR] . . . .”); United States v. Siegel, No. 1:08-CR-84-jgm-01, 2013 WL\n461217, at *1 (D. Vt. Feb. 7, 2013) (“Because defendant will not be released from his\nimprisonment until January 31, 2014, he is not yet ‘on’ [SR]. Accordingly, the Court may not\ntransfer jurisdiction over his [SR] at this time and his motion requesting that relief must be\ndenied.”); United States v. Fuller, 211 F. Supp. 2d 204, 205–06 (D. Me. 2002) (“Here, Defen-\ndant is not yet on [SR] and will not be so until January 2003. The Court concludes that it is\npremature to determine at this time the district that should have jurisdiction over the exe-\ncution of this Defendant’s term of [SR] . . . .”).\n 2\n\f Case: 18-10465 Document: 00514835543 Page: 3 Date Filed: 02/14/2019\n\n\n\n No. 18-10465\n Second, Pittman avers that forcing him to enter a residential reentry\ncenter (“RRC”) in the Northern District of Texas would undermine his ability\n“to [reintegrate] into society.” He emphasizes that “[t]he primary function of\nthe RRC is to provide [him] with the time needed to attain a stable residence,\ngainful employment[,] and to prepare for his [reentry] into society.” Ulti-\nmately, Pittman asserts that his “chance of criminal recidivism is far less likely\nif he [is] release[d] into an environment where he has support and stability.”\n\n The government contends that we lack jurisdiction because “this appeal\nis not from a final order.” The government maintains that “because—as the\ndistrict court correctly concluded—Pittman’s motion is premature, there is no\nfinal order under 28 U.S.C. § 1291 . . . .”\n\n “Finality as a condition of review is [a] historic characteristic of federal\nappellate procedure.” Cobbledick v. United States, 309 U.S. 323, 324 (1940).\nTherefore, “as courts of limited jurisdiction, we are obliged to examine the basis\nof our own jurisdiction,” Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.\n1985), before reviewing the merits. 2\n\n B.\n Pittman avers that we have jurisdiction under 28 U.S.C. § 1291,\n18 U.S.C. § 3742(a), and Federal Rule of Appellate Procedure 4(b). 3 Section\n\n\n 2 Jurisdiction over criminal appeals has tested even the most distinguished jurists\nsince the early days of the Republic. Compare United States v. Simms, 5 U.S. (1 Cranch) 252,\n253 (1803) (Marshall, C.J.) (assuming, mistakenly, that the Court had jurisdiction in a\ncriminal appeal concerning a writ of error sought by the United States in the circuit court for\nthe District of Columbia), with United States v. More, 7 U.S. (3 Cranch) 159, 172–74 (1805)\n(Marshall, C.J.) (finding that the Court lacked jurisdiction to hear the criminal appeal and\nnoting that “[n]o question was made in [Simms] as to the jurisdiction. It passed sub silentio,\nand the court does not consider itself as bound by that case.”). See also United States v.\nSanges, 144 U.S. 310, 318–22 (1892) (discussing the history of criminal appeals and related\njurisdictional questions).\n 3 This court generally “construe[s] liberally the claims of pro se appellants.” United\n\nStates v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).\n 3\n\f Case: 18-10465 Document: 00514835543 Page: 4 Date Filed: 02/14/2019\n\n\n\n No. 18-10465\n1291 states that “[t]he courts of appeals . . . shall have jurisdiction of appeals\nfrom all final decisions of the district courts of the United States . . . .” Section\n3742(a) permits, in certain circumstances, a defendant to “file a notice of\nappeal in the district court for review of an otherwise final sentence.” Rule 4(b)\ngoverns the filing and timing of criminal appeals.\n\n Unfortunately, none of these provisions provides jurisdiction. 4 With\nrespect to § 1291, “an order is final only when it ends the litigation on the\nmerits and leaves nothing for the court to do but execute the judgment.”\nUnited States v. Branham, 690 F.3d 633, 635 (5th Cir. 2012) (quoting Thomp-\nson, 754 F.3d at 1245). The district court has not yet entered a final order\ndetermining whether to authorize Pittman’s request for a transfer of jurisdic-\ntion. Instead, the court concluded that Pittman’s motion was “premature”\nbecause “[t]he [c]ourt cannot transfer jurisdiction of [SR] while a defendant is\nincarcerated.” Consequently, the best view is that, as in Branham, the denial\nof Pittman’s motion is “simply not a final, appealable order.” Id.\n\n Similarly, § 3742(a) does not provide jurisdiction to hear Pittman’s\nappeal. As the government notes, this statutory provision “applies to sen-\ntences, not transfers of jurisdiction over [SR] terms.” Moreover, in United\nStates v. Fernandez, 379 F.3d 270, 277 n.8 (5th Cir. 2004), we held that “the\nlocation of [SR] jurisdiction is not a condition of the [SR].” Therefore, because\nPittman is not challenging a condition of his sentence, this provision does not\nafford jurisdiction.\n\n One other potential jurisdictional basis—although not expressly cited by\nPittman—is the collateral order doctrine, which allows appeals from a “small\nclass [of orders] which finally determine claims of right separable from, and\n\n\n\n 4 Rule 4(b) is not, itself, an independent basis for jurisdiction. See FED. R. APP. P. 4(b).\n 4\n\f Case: 18-10465 Document: 00514835543 Page: 5 Date Filed: 02/14/2019\n\n\n\n No. 18-10465\ncollateral to, rights asserted in the action, too important to be denied review\nand too independent of the cause itself to require that appellate consideration\nbe deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus.\nLoan Corp., 337 U.S. 541, 546 (1949); cf. Bank of Columbia v. Sweeny, 26 U.S.\n(1 Pet.) 567, 569 (1828) (Marshall, C.J.). “The collateral order doctrine estab-\nlishes that certain decisions of the district court are final in effect although\nthey do not dispose of the litigation.” United States v. Brown, 218 F.3d 415, 420\n(5th Cir. 2000) (quoting Davis v. E. Baton Rouge Par. Sch. Bd., 78 F.3d 920,\n925 (5th Cir. 1996)). To be appealable, an order must “(1) conclusively deter-\nmine the disputed question, (2) resolve an important issue completely separate\nfrom the merits of the action, and (3) be effectively unreviewable on appeal\nfrom a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R.\nAqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).\n“The collateral order doctrine is rarely applied in criminal cases,” In re Grand\nJury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted “with the\nutmost strictness.” 5\n\n The better view is that the collateral order doctrine is not applicable\nhere. The district court did not “conclusively determine the disputed question,”\nfinding only that the motion was “premature,” so long as Pittman remains\n\n\n 5 Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quoting Flanagan\nv. United States, 465 U.S. 259, 265 (1984)); see also Mohawk Indus. v. Carpenter, 558 U.S.\n100, 108–09 (2009) (Sotomayor, J.) (“The crucial question . . . is whether deferring review\nuntil final judgment so imperils the interest as to justify the cost of allowing immediate\nappeal of the entire class of relevant orders. We routinely require litigants to wait until after\nfinal judgment to vindicate valuable rights, including rights central to our adversarial\nsystem.”). In Midland Asphalt, 489 U.S. at 799, the Court noted that “[a]lthough we have\nhad numerous opportunities in the 40 years since Cohen to consider the appealability of\nprejudgment orders in criminal cases, we have found denials of only three types of motions\nto be immediately appealable: motions to reduce bail, Stack v. Boyle, 342 U.S. 1 (1951),\nmotions to dismiss on double jeopardy grounds, Abney v. United States, 431 U.S. 651 (1977),\nand motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S.\n500 (1979).”\n 5\n\f Case: 18-10465 Document: 00514835543 Page: 6 Date Filed: 02/14/2019\n\n\n\n No. 18-10465\nincarcerated. Moreover, it did not “resolve an important issue completely\nseparate from the merits of the action” and instead squarely addressed the\njurisdictional transfer issue. Lastly, the order is not “effectively unreviewable\non appeal from a final judgment” because should Pittman choose to renew his\nmotion once on SR, he would be able to appeal any adverse judgment per\n§ 1291. Consequently, the collateral order doctrine does not confer appellate\njurisdiction here.\n\n The appeal is DISMISSED for want of jurisdiction.\n\n\n\n\n 6", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368027/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]}	HIGGINBOTHAM	SMITH	HIGGINSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590774/	Published	1	0	0	2,019	2	[ { "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...
4,590,777	UNITED STATES of America, Plaintiff-Appellee v. Eduardo NAJERA, Defendant-Appellant	United States v. Eduardo Najera	2019-02-14	17-50802	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Jolly, Dennis, Higginson", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-50802 Document: 00514835322 Page: 1 Date Filed: 02/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-50802 FILED\n February 14, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nEDUARDO NAJERA,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n This appeal challenges two sentencing decisions: a recklessness\nenhancement and a denial of reduction for acceptance of responsibility. On the\nfirst issue, we affirm. On the second, we vacate and remand.\n Background 1\n I. Factual History\n On March 20, 2016, U.S. Border Patrol agent Giovanni Wardlaw was\ndriving southbound near Brackettville, Texas on the lookout for suspicious\nvehicles. Based on his experience as a border patrol agent, Wardlaw knew that\n\n\n 1These are the facts as presented at the suppression hearing. They are undisputed in\nthis appeal.\n\f Case: 17-50802 Document: 00514835322 Page: 2 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nthe road he was on, FM 674, is often used to smuggle undocumented\nimmigrants. But Wardlaw also knew that because FM 674 is the only road\nleading to the Kickapoo State Park, at least some travel on the road is\ninnocuous.\n When Wardlaw was approximately 46 miles south of Brackettville, he\nobserved a black SUV on the other side of the road heading north. According\nto Wardlaw, “The driver appeared nervous, clinching the steering wheel.” The\ndriver “glance[d] at [Wardlaw], then looked straight ahead . . . .” Wardlaw\nobserved that the driver appeared surprised to see him. Wardlaw could also\nsee that the vehicle was “sagging a little bit” in the rear and that the driver\nwas “[l]ooking to see if [the patrol car was] still behind him.” Wardlaw could\nnot see whether there were any other bodies inside the vehicle.\n After approximately ten minutes, the SUV swerved three times, which\nindicated to Wardlaw that the driver was looking for a place to bail off the road.\nWardlaw activated his emergency lights and siren. The vehicle continued for a\nfew moments and then turned sharply onto a gravel road that led up to a gate.\nWardlaw observed the vehicle trying to go through the gate and then stopping.\nNext, Wardlaw saw five individuals quickly exit the vehicle and jump the\nfence.\n Wardlaw called for backup and started running after the individuals who\nhad fled. Then he noticed that the driver was still sitting in the SUV, so\nWardlaw went back and asked him who he had been driving. The driver,\ndefendant Eduardo Najera, said he did not know.\n Other agents arrived and located two of the five individuals who had fled.\nThey were identified as unlawfully present in the United States and taken into\n\n\n\n\n 2\n\f Case: 17-50802 Document: 00514835322 Page: 3 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\ncustody. One of the individuals, Raul Galvan-Arzola (Galvan), became a\nmaterial witness in Najera’s case.\n Ultimately, Najera was placed under arrest for transporting\nundocumented immigrants.\nII. Procedural History\n Najera was charged with conspiring to transport undocumented\nimmigrants and with transporting undocumented immigrants, in violation of\n8 U.S.C. §§ 1324(a)(1)(A)(ii), (A)(v)(I), and (B)(i).\n In a video deposition, Galvan explained that he had paid an individual\nin Mexico to help him enter the United States. Galvan described the group’s\nRio Grande river crossing as a difficult part of the journey because their guide,\nJosé, had attempted to lead them across a part of the river that was very deep\nand some of the immigrants almost drowned. Galvan explained that they made\nit across after José solicited help from a local Mexican man named El Guero.\nNajera was not present for the river crossing; he picked up the immigrants\nwhen they reached the highway.\n Through counsel, Najera moved to suppress all evidence seized as a\nresult of the traffic stop—including Galvan’s testimony—on the grounds that\nWardlaw lacked reasonable suspicion. Najera also requested an evidentiary\nhearing on the matter. The district court granted the hearing and afterwards\ndenied the motion, concluding that Najera’s Fourth Amendment rights had not\nbeen violated. The parties dispute whether this suppression challenge was\nfactual or legal.\n There is no dispute that Najera wanted to appeal the adverse ruling. To\ndo that, Najera requested that the Government consent to a conditional guilty\nplea under Federal Rule of Criminal Procedure 11(a)(2), which would have\nallowed Najera to appeal the denial of his motion to suppress but otherwise\nadmit all guilt. For reasons unknown, the Government refused to accept a\n 3\n\f Case: 17-50802 Document: 00514835322 Page: 4 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nconditional plea. 2 So the parties proceeded to a bench trial.\n At the bench trial, the following exchange took place:\n AUSA KEAGLE: Judge, while this is titled “Stipulated Bench\n Trial,” . . . [i]t appears – it’s not quite as stipulated as the term may\n sound.\n THE COURT: It’s not stipulated at all, actually.\n AUSA KEAGLE: And – and that’s kind of where we’re at at this\n point, Judge. However, they’re – they’re not really contesting the\n facts, they’re just trying to preserve their right to appeal.\n\n After the district court expressed surprise that the Government would\nnot agree to a conditional plea (“I don’t understand why your office believes\nthat there is a protection for the government in not agreeing to a – a conditional\nplea of guilty”), the district court emphasized, “[T]he bottom line is . . . it’s not\nreally stipulated as to the facts, then.”\n The Government then stated its intent to present its case through two\nexhibits—the transcript of the suppression hearing and Galvan’s videotaped\ndeposition—which the Government suggested could be heard “offline” by the\ncourt. But the court disagreed, explaining, “It is evidence in a trial. This\ngentleman has a right to confront all of the evidence.” The court added, “[T]he\nother thing is, if I’m reading a transcript of the depositions or I’m looking at\nthe video, even if it’s outside of court, . . . it’s not an acceptance of responsibility\nsituation.” As the Government expressed understanding, the court remarked\nagain, “I don’t understand why your office would go through all of this and not\ndo a conditional plea.”\n When trial began, the Government gave a brief opening statement\nsummarizing the facts laid out above. When the court asked whether Najera\nhad an opening statement, Najera’s counsel said, “Waive, Your Honor.” The\n\n\n\n 2 At oral argument, the Government offered no explanation for this decision other than\nthat it is entirely discretionary.\n 4\n\f Case: 17-50802 Document: 00514835322 Page: 5 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nGovernment then offered its first exhibit, the transcript of the hearing on the\nmotion to suppress. Najera’s counsel objected “only for [the] sake of preserving\nthe record . . . based on the fact that the stop . . . was unlawful . . . .” Next, the\nGovernment presented its second exhibit, the videotaped deposition of Galvan.\nNajera objected pursuant to the fruit-of-the-poisonous-tree doctrine.\n After the Government played Galvan’s hour-long video deposition, the\nGovernment rested. The court asked Najera’s counsel, “Any evidence by the\ndefense?” and Najera’s counsel responded, “No, Your Honor.” The Government\noffered a three-sentence closing argument and Najera’s counsel declined to\noffer any. Evidence was then closed. Immediately thereafter, the district court\nfound Najera guilty of both charged offenses.\n A probation officer used the 2016 U.S. Sentencing Guidelines (USSG) to\nprepare Najera’s presentence report (PSR). Najera’s base offense level was 12.\nBecause he had committed this offense after a conviction for a felony\nimmigration offense, his base offense level was increased by 2 levels. Neither\nparty disputes those components of the Guidelines calculation.\n The two issues on appeal are: (1) an enhancement under USSG\n§2L1.1(b)(6) for “intentionally or recklessly creating a substantial risk of death\nor serious bodily injury to another person” and (2) a denial of a reduction for\nacceptance of responsibility (AOR) pursuant to USSG §3E1.1. Najera did not\nappeal the denial of his Fourth Amendment motion.\n With respect to the recklessness enhancement, the PSR explains, “The\nmaterial witness stated in his video deposition that when he and 4 other\nindividuals first attempted to cross into the United States, they almost\ndrowned.”\n Under “Acceptance of Responsibility,” the PSR explains that the\nprobation officer conducted an interview with Najera in which Najera reflected\nthat he “regrets every moment” of the offense. The report states that Najera\n 5\n\f Case: 17-50802 Document: 00514835322 Page: 6 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\n“is very remorseful.” Nevertheless, the report concludes:\n The defendant had a bench trial and filed a Motion to Suppress\n alleging there was no reasonable suspicion on the agent’s part to\n conduct the traffic stop. As evidenced by the Motion to Suppress,\n the defendant contested the validity of the facts of the case;\n therefore, the defendant does not qualify for a downward\n adjustment for acceptance of responsibility.\n\nThe district court adopted the legal and factual findings from the PSR,\noverruling Najera’s objections to the recklessness enhancement and denial of\nan AOR reduction. After considering the advisory Guidelines range of 41 to 51\nmonths imprisonment and the § 3553(a) sentencing factors, the district court\nsentenced Najera to 48 months on each count, to run concurrently.\n Analysis\n\n I. Recklessness Enhancement Under USSG §2L1.1(b)(6)\n a. Standard of Review\n We review the district court’s interpretation or application of the\nGuidelines de novo and its factual findings for clear error. United States v.\nCisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). There is no clear error if\na factual finding is plausible in light of the record as a whole. United States v.\nRodriguez, 630 F.3d 377, 380 (5th Cir. 2011). We “will not conclude that a\ndistrict court’s finding of fact was clearly erroneous based only on our belief\nthat had we been sitting as the trier of fact, we would have weighed the\nevidence differently and made a different finding.” Id. (internal quotation\nmarks and citation omitted). And we must “look at the specifics of the\nsituation.” United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008).\n“[W]e will not create . . . per se rules.” Id. (citing United States v. Solis-Garcia,\n420 F.3d 511, 516 (5th Cir. 2005)) (explaining that “our caselaw does not\n\n\n\n\n 6\n\f Case: 17-50802 Document: 00514835322 Page: 7 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nsupport establishing a per se rule that traveling through the South Texas brush\ncreates a ‘substantial risk of death or bodily injury’”).\n b. Analysis\n USSG §2L1.1(b)(6) significantly enhances the offense level of a\ndefendant convicted of smuggling if “the offense involved intentionally or\nrecklessly creating a substantial risk of death or serious bodily injury to\nanother person.” As Najera implicitly concedes, he can be held responsible for\n“all acts and omissions of others that were . . . within the scope of the jointly\nundertaken criminal activity, in furtherance of that criminal activity, and\nreasonably foreseeable in connection with that criminal activity.” USSG\n§1B1.3(a)(1)(B).\n The crux of Najera’s argument is that no co-conspirator created a risk of\ndeath or injury. According to Najera, the relevant co-conspirator, José, only\nacted to diminish a risk that the group encountered (i.e., the deep water of the\nRio Grande) by seeking help from El Guero.\n But José did more than that. According to Galvan’s uncontroverted\ntestimony, José “took [the group] to a place where it was deep,” which prompted\none of the immigrants to confront José later with the question, “Why did you\ncross us if you knew we were almost drowning?”\n With that evidence about José’s conduct and mens rea in the record, we\ndiscern no error in the district court’s factual finding and legal conclusion that\nJosé consciously disregarded a substantial and unjustifiable risk, meriting\napplication of the recklessness enhancement to Najera’s sentence.\nII. Denial of USSG §3E1.1 Acceptance of Responsibility Reduction\n a. Standard of Review\n A district court’s refusal to reduce a sentence for acceptance of\nresponsibility is reviewed under a standard “even more deferential than a pure\nclearly erroneous standard.” United States v. Maldonado, 42 F.3d 906, 913 (5th\n\n 7\n\f Case: 17-50802 Document: 00514835322 Page: 8 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nCir. 1995) (quotation omitted). Such a decision will not be reversed unless it is\n“without foundation.” Id. (quotation omitted).\n b. Analysis\n USSG §3E1.1 reduces a defendant’s offense level by two levels if the\ndefendant “clearly demonstrates acceptance of responsibility for his offense.”\nA comment to the section explains:\n This adjustment is not intended to apply to a defendant who puts\n the government to its burden of proof at trial by denying the\n essential factual elements of guilt, is convicted, and only then\n admits guilt and expresses remorse. Conviction by trial, however,\n does not automatically preclude a defendant from consideration for\n such a reduction. In rare situations a defendant may clearly\n demonstrate an acceptance of responsibility for his criminal\n conduct even though he exercises his constitutional right to a trial.\n This may occur, for example, where a defendant goes to trial to\n assert and preserve issues that do not relate to factual guilt (e.g.,\n to make a constitutional challenge to a statute or a challenge to\n the applicability of a statute to his conduct). In each such instance,\n however, a determination that a defendant has accepted\n responsibility will be based primarily upon pre-trial statements\n and conduct.\n\nUSSG §3E1.1(a) cmt. 2.\n In United States v. Washington, we announced protection of access to the\nAOR reduction for defendants who pursue a motion to suppress. 340 F.3d 222,\n228 (5th Cir. 2003) (holding that pursuing a suppression issue “does not negate\na willingness to accept responsibility under the Guidelines”). In that case,\ndefendant Tony Ray Washington confessed to being a felon in possession of a\nfirearm and moved to suppress evidence seized following a “no-knock” entry.\nId. at 225. The district court denied his motion and the Government refused a\nconditional plea, so Washington proceeded to a bench trial based on a written\nstipulation of all evidence necessary for conviction. Id. at 225, 228. The district\n\n\n\n 8\n\f Case: 17-50802 Document: 00514835322 Page: 9 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\ncourt found him guilty and denied an AOR reduction. Id. We reversed on the\nAOR issue.\n Washington stresses the difference between “denial of factual guilt and\ndenial of legal guilt,” explaining that the Guidelines “allow[] acceptance of\nresponsibility for the latter.” Id. at 229. We reiterated, “A challenge to the\nlegality of the police conduct is completely separate from a challenge to the\nfactual elements of a defendant’s conduct. [A defendant] should not have to\nwaive appeal of a constitutional issue in order to receive a sentence reduction\nfor acceptance of responsibility.” Id. at 229-30. We emphasized that holding\notherwise could “chill the filing of suppression motions by defendants who\nadmit their factual guilt,” which would be problematic because “[s]uppression\nhearings play a vital role in not only protecting the rights of the particular\ndefendant, but also in protecting society from overzealous law enforcement\nignoring proper procedure.” Id. at 230.\n Like Washington, Najera did not contest the factual predicate for the\nallegedly unconstitutional stop; instead, he argued that the facts were legally\ninsufficient to give rise to reasonable suspicion. For example, Najera never\ncontradicted Wardlaw’s description of Najera “driving while holding the\nsteering wheel strongly, staring straight ahead” but rather argued that such\nbehavior was “very innocuous.”\n The key distinction between Washington and the instant case is that\nWashington stipulated to all the facts necessary for his conviction before trial,\nwhereas Najera did not. At issue is whether that supplies foundation for a\ndifferent outcome. 3\n To answer that question, we must consider United States v. Garcia-Ruiz,\na decision published five years after Washington. 546 F.3d 716 (5th Cir. 2008).\n\n 3The government cites United States v. Cordero, 465 F.3d 626, 632 (5th Cir. 2006) for\nthe proposition that the AOR reduction is not intended to apply to a defendant who puts the\n 9\n\f Case: 17-50802 Document: 00514835322 Page: 10 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nIn that case, the defendant appealed the denial of his motion to suppress after\nproceeding through a bench trial on stipulated facts. Id. at 718. When this\ncourt turned to the suppression issue, we stated, “We need not decide whether\nthe court erred . . . because, even if, arguendo, the district court erred in its\n[suppression] ruling, the error is rendered harmless by the fact that Garcia-\nRuiz stipulated to facts that easily established his conviction beyond a\nreasonable doubt, as the district court found.” Id. at 718. We further explained:\n With such stipulations in place, any decision by this court\n regarding the suppression hearing could not affect Garcia-Ruiz’s\n posture in the district court, because he stipulated to the elements\n needed for conviction. Thus, when Garcia-Ruiz and the\n government agreed to the stipulated facts that established all the\n elements of the offense, any error on the suppression issue would\n have no effect on the legal soundness of the conviction. In other\n words, to establish Garcia-Ruiz’s guilt, the government no longer\n needed the evidence he claims should have been suppressed.\n\nId. In the alternative, we added, “Garcia-Ruiz’s decision to go to trial on\nstipulated facts can be viewed as waiver . . . .” Id.\n Were that the extent of the Garcia-Ruiz holding, the Washington\nprotection would be rendered problematically inaccessible to defendants who\nface Government opposition, on any ground, to a conditional guilty plea and\nseek to appeal a suppression ruling. But Garcia-Ruiz contains a safety hatch:\nif a defendant “reserve[s] such a right to appeal when he stipulate[s] to the\n\n\n\n\nGovernment to its burden of proof at trial. Cordero is distinguishable for two reasons. First,\nthe Cordero defendant had rejected a conditional plea of guilty, id., whereas Najera sought\none. Second, in Cordero, the defendant moved for a judgment of acquittal at the end of the\ntrial, id., whereas Najera took no action at trial except to preserve his Fourth Amendment\nobjection.\n 10\n\f Case: 17-50802 Document: 00514835322 Page: 11 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nfacts” necessary for his conviction, the harmlessness and waiver rules above do\nnot apply. Id. at 719.\n Najera’s concern that admitting or stipulating would have rendered his\nsuppression appeal either harmless or waived overlooked Garcia-Ruiz’s\nprotection for defendants who expressly reserve their right to appeal. We\ntherefore take the opportunity to clarify the following: a defendant who\nproceeds to trial on an admission or a stipulation of the facts necessary for\nconviction while expressly reserving the right to appeal from an adverse\nsuppression ruling will not be deemed to have waived the suppression issue,\nnor will the admission or stipulation render the suppression issue harmless,\nand that defendant remains eligible for an AOR reduction.\n Had Najera taken that specific route, he would have undoubtedly\npreserved the suppression issue and remained eligible for the AOR reduction.\nThat is the most precise approach to take. But on the unique facts of this case,\nwe conclude that it is the functional equivalent of what Najera did. He sought\na conditional guilty plea and when the Government refused it, he stood silent\nat trial except to preserve his Fourth Amendment objection. The PSR noted\nthat he was “very remorseful.” And the record suggests that the only reason he\ndid not stipulate was because he was concerned, rightly or wrongly, that\nGarcia-Ruiz would cause such stipulation to waive the suppression issue or\nrender it harmless. Every action Najera took was designed to concede factual\nguilt while challenging the constitutionality of his search and seizure. Thus,\nNajera clearly demonstrated acceptance of responsibility and did not deny the\n\n\n\n\n 11\n\f Case: 17-50802 Document: 00514835322 Page: 12 Date Filed: 02/14/2019\n\n\n\n No. 17-50802\nfactual elements of guilt. The district court’s conclusion otherwise must be\nreversed.\n Because Najera’s situation was unique in its attempt to adhere to\nGarcia-Ruiz, we trust that it may be avoided in the future with our\nhighlighting of the Garcia-Ruiz safety hatch.\n The sentence is vacated, and the case is remanded to the district court\nfor resentencing consistent with this opinion.\n AFFIRMED IN PART; VACATED AND REMANDED IN PART.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368030/", "author_raw": "STEPHEN A. HIGGINSON, Circuit Judge:"}]}	JOLLY	DENNIS	HIGGINSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590777/	Published	1	0	0	2,019	2	[ { "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...
4,590,898		United States v. David Hughes	2019-02-14	18-20015	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before REAVLEY, ELROD, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "REAVLEY, Circuit Judge:", "type": "010combined", "text": "Case: 18-20015 Document: 00514835726 Page: 1 Date Filed: 02/14/2019\n\n\n\n\n REVISED February 14, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-20015 United States Court of Appeals\n Fifth Circuit\n\n FILED\nUNITED STATES OF AMERICA, January 30, 2019\n Lyle W. Cayce\n Plaintiff – Appellee, Clerk\n\nv.\n\nDAVID THOMAS HUGHES,\n\n Defendant – Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nREAVLEY, Circuit Judge:\n David Thomas Hughes pleaded guilty to bank burglary. He was\nsentenced to 240 months in prison and ordered to pay $189,933.31 in\nrestitution, with interest charged. The judgment provided that $100 was “due\nimmediately” and provided the following payment schedule for the remaining\namount:\n Balance due in payments of the greater of $25 per quarter or 50%\n of any wages earned while in prison in accordance with the Bureau\n of Prisons’ Inmate Financial Responsibility Program. Any balance\n remaining after release from imprisonment shall be paid in equal\n\f Case: 18-20015 Document: 00514835726 Page: 2 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\n monthly installments of $500 to commence 60 days after the\n release to a term of supervision.\n\n Several years later the government discovered that Hughes had\naccumulated $3,464.85—largely prison wages—in his inmate trust account.\nPursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved\nfor the immediate turnover of those funds. Hughes opposed the request and\nfiled a cross-motion to release funds, arguing, inter alia, that the district court\n(1) only required him to make payments in installments and (2) “specifically\ndeclined to order immediate payment of the entire amount.” Agreeing with the\ngovernment, however, the district court ordered the immediate turnover of\n“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s\ntelephone and commissary needs. Hughes timely appealed.\n On appeal, Hughes argues that the district court erred in granting the\ngovernment’s motion because his criminal judgment required the restitution\nbalance owed beyond $100 to be paid in quarterly installments and did not\norder that the balance be paid immediately. Because the government does not\nallege that he defaulted on his restitution payments, Hughes argues, the\ngovernment lacked the authority to seek immediate payment of the full\nrestitution amount.\n The parties do not cite, and research has not revealed, any binding\nprecedent from this court analyzing a case similar to Hughes’s, in which the\ncriminal judgment included a repayment schedule that began during the term\nof imprisonment but did not state that the full restitution amount was due\nimmediately. Hughes, however, directs us to United States v. Martinez, in\nwhich the Tenth Circuit confronted a structurally similar payment schedule.\n812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the\ndefendant to pay “$300 immediately,” with the “balance due” in accordance\nwith an installment schedule. Id. at 1203–04. Although the defendant had\n 2\n\f Case: 18-20015 Document: 00514835726 Page: 3 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\ncomplied with his payment plan, the government nevertheless sought\ngarnishment of his retirement accounts. Id. at 1202.\n The Tenth Circuit concluded that the government lacked the authority\nto garnish the defendant’s retirement accounts because doing so would exceed\nthe terms of the restitution order; it reasoned that:\n By statute, it is the district court—not the government—that\n determines how a defendant is to pay restitution. See [18 U.S.C.] §\n 3664(f)(2) (“[T]he court shall . . . specify in the restitution order the\n manner in which, and the schedule according to which, the\n restitution is to be paid . . . .”) (emphasis added)). Thus, the\n government can enforce only what the district court has ordered\n the defendant to pay. See Enforce, Black’s Law Dictionary 645\n (10th ed. 2014) (defining “enforce” primarily as “[t]o give force or\n effect to [a law]; to compel obedience to [a law]”).\nId. The court rejected the government’s argument that it could enforce the full\namount notwithstanding the installment schedule, construing § 3572(d), which\nprovides that “[a] person sentenced to pay . . . restitution . . . shall make such\npayment immediately, unless, in the interest of justice, the court provides for\npayment . . . in installments,” to imply that the full restitution amount is not\ndue immediately when a court orders repayment pursuant to an installment-\nbased plan. Id. at 1205.\n We are persuaded by the Tenth Circuit’s analysis. When a restitution\norder specifies an installment plan, unless there is language directing that the\nfunds are also immediately due, the government cannot attempt to enforce the\njudgment beyond its plain terms absent a modification of the restitution order\nor default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.\nTurning to Hughes’s order, we find no language directing that the full\nrestitution amount was immediately due or owing, and the government does\n\n\n\n\n 3\n\f Case: 18-20015 Document: 00514835726 Page: 4 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\nnot allege he was in default. 1 Like Martinez, Hughes’s criminal judgment\nspecifies that a small amount ($100) was due immediately, and for the\nremaining balance to be paid in installments. The government cannot enforce\nrestitution payments beyond those terms unless Hughes defaults on his\npayments or the district court modifies the payment schedule.\n The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.\n2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in\nsupport of its argument that Hughes’s payment schedule is of no consequence.\nBoth are distinguishable because the judgments in those cases contained\ndifferent language. The payment schedule in Ekong, for example, was\nconditioned on whether a balance remained when the defendant began her\nterm of supervised release. 2 In rejecting the defendant’s argument that the\ngovernment was barred from seeking immediate payment “because the\ncriminal judgment specified that restitution be paid in installments,” we noted\nthat “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,\n518 F.3d at 286. From this, we infer that the full restitution amount was\ncollectible immediately simply because the payment schedule was never\ntriggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus\ndistinguishable.\n\n\n\n\n 1 Although the government argues that it can seek payment beyond the installment\nschedule because the judgment says that “[u]nless the court has expressly ordered\notherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a\ndefault provision and, as explained, the court expressly ordered otherwise. See United States\nv. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default\nprovision is that if the court has expressly ordered otherwise—as this Court did by checking\nbox D—then payment is not due during imprisonment.”).\n 2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised\n\nrelease any part of the restitution remains unpaid, the defendant shall make payments on\nsuch unpaid balance beginning 60 days after the release from custody at the rate of $500 per\nmonth until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at\n6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).\n 4\n\f Case: 18-20015 Document: 00514835726 Page: 5 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\n And the judgment in Diehl did not specify a payment schedule; rather, it\nprovided that “[i]f the defendant is unable to pay this indebtedness at this\ntime, the defendant shall cooperate fully with the [government] to make\npayment in full as so[o]n as possible, including during any period of\nincarceration.” 848 F.3d at 630. The relevant issue there was whether the\ndefendant’s participation in the BOP’s inmate financial responsibility program\nand adherence to its payment schedule barred the government from enforcing\nthe full restitution amount. Id. at 633. Although we agreed with the decisions\nof other courts “determining that an inmate’s compliance with an IFRP\npayment schedule does not change the fact that the Government may collect\non a criminal monetary penalty immediately,” we noted this would only be the\ncase “where the judgment does not specify a payment schedule.” Id. Indeed, we\nheld the government could demand immediate payment in Diehl because the\njudgment “did not . . . specify installment payments for satisfaction of either\nthe fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt\nthe default rule of immediate payment.” Id. at 635. Importantly, we noted that\nthe government’s “enforcement of the order against Diehl’s property, including\nsurplus funds held in his inmate trust account, did not exceed the terms of the\noriginal judgment.” Id. (emphasis added). As discussed, that is not the case\nhere, as the government’s attempt to enforce the full restitution amount\nconflicts with the installment-based directive in Hughes’s original judgment.\n The government argues in the alternative that it is entitled to the funds\nin Hughes’s trust account by virtue of § 3664(n), which provides:\n If a person obligated to provide restitution, or pay a fine, receives\n substantial resources from any source, including inheritance,\n settlement, or other judgment, during a period of incarceration,\n such person shall be required to apply the value of such resources\n to any restitution or fine still owed.\n\n\n\n 5\n\f Case: 18-20015 Document: 00514835726 Page: 6 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\n We do not think the gradual accumulation of prison wages constitutes\n“substantial resources” such that it fits within § 3664(n)’s ambit; rather we\nthink this provision refers to windfalls or sudden financial injections. 3 Indeed,\nin United States v. Scales, we suggested that this provision contemplates\n“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,\n239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.\nApp’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall\nduring imprisonment triggers an automatic payment requirement.”); United\nStates v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at 2 (N.D. Tex. May 28,\n2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial\nresources’ of the type in section 3664(n).”). 4 Put simply, we think the examples\nlisted in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold\nof “substantial resources,” but that prison wages do not. As a result, the\ngovernment is not entitled to the immediate turnover of Hughes’s inmate trust\naccount under § 3664(n).\n The government’s final argument arises under § 3664(k), which grants a\ndistrict court the authority to modify a payment schedule upon receiving\nnotification of a “material change in the defendant’s economic circumstances.”\n§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)\n(per curiam) (“A district court may adjust a restitution-payment schedule when\n\n\n 3 Although the government urges us to follow United States v. Poff, in which the Ninth\nCircuit concluded that veteran disability benefits deposited into an inmate’s trust account\nconstituted “substantial resources,” we note the Supreme Court recently vacated and\nremanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,\njudgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).\n 4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at 1\n\n(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic\nobligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (“Moreover, a defendant’s\nreceipt of a windfall during imprisonment triggers an automatic payment requirement.”). We\nalso note the Supreme Court recently favored a narrower reading of the MVRA. See Lagos v.\nUnited States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute broadly is to invite\ncontroversy on those and other matters; our narrower construction avoids it.”).\n 6\n\f Case: 18-20015 Document: 00514835726 Page: 7 Date Filed: 02/14/2019\n\n\n\n No. 18-20015\nthere has been a ‘material change in the defendant’s economic circumstances\nthat might affect the defendant’s ability to pay restitution.’”). Although it is\ndubious whether the gradual accumulation of prison wages constitutes a\n“material change in the defendant’s economic circumstances,” we note that the\ndistrict court’s turnover order was not based on § 3664(k), and we find no\nlanguage demonstrating that it intended to adjust or modify the payment\nschedule contained in Hughes’s original judgment.\n The district court’s order dated November 27, 2017, is VACATED.\n\n\n\n\n 7", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368151/", "author_raw": "REAVLEY, Circuit Judge:"}]}	REAVLEY	ELROD	WILLETT	1	{"REAVLEY": ", Circuit", "ELROD": ", Circuit", "WILLETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590898/	Published	1	0	0	2,019	2	[ { "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...
4,590,899		Springboards to Education, Inc v. Houston ISD, et	2019-02-14	18-20119	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "Case: 18-20119 Document: 00514836473 Page: 1 Date Filed: 02/14/2019\n\n\n\n\n REVISED February 14, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-20119 United States Court of Appeals\n Fifth Circuit\n\n FILED\n January 8, 2019\nSPRINGBOARDS TO EDUCATION, INCORPORATED,\n Lyle W. Cayce\n Plaintiff - Appellant Clerk\n\n\nv.\n\nHOUSTON INDEPENDENT SCHOOL DISTRICT,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, Chief Judge, KING and OWEN, Circuit Judges.\nKING, Circuit Judge:\n Springboards to Education, Inc., sued Houston Independent School\nDistrict under the Lanham Act for using its marks in the course of operating a\nsummer-reading program. The district court disposed of Springboards’ claims\non summary judgment because it concluded that a reasonable jury could not\nfind that the allegedly infringing use of Springboards’ marks was commercial\nin nature. We AFFIRM, albeit on alternative grounds: as explained herein, a\nreasonable jury could not find that the allegedly infringing use of the marks\ncreated a likelihood of confusion.\n\f Case: 18-20119 Document: 00514836473 Page: 2 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\n I.\n Plaintiff Springboards to Education, Inc., (“Springboards”) is an\neducation-services company that specializes in promoting literacy among low-\nincome and English-as-a-second-language students. In 2005, Springboards\nlaunched a program to motivate students to read that it entitled the “Read a\nMillion Words campaign.” Under that program, students who reach their goals\nto read a certain number of books win the “Millionaire Reader award” and are\ninducted into the “Millionaire’s Reading Club.” To incentivize students to join\nthe Millionaire’s Reading Club, Springboards hosts “red-carpet parties”\nfeaturing rented limousines for the successful students.\n Springboards markets products and services to school districts to\nimplement the program. Springboards’ products include incentive items for\nparticipating students such as certificates, T-shirts, drawstring backpacks,\nand fake money. Between 2011 and 2013, Springboards successfully registered\nfour trademarks with the United States Patent and Trademark Office in\nconnection with the Read a Million Words campaign: “Read a Million Words,”\n“Million Dollar Reader,” “Millionaire Reader,” and “Millionaire’s Reading\nClub.” It also registered “Read a Million Words” as a service mark.\nSpringboards uses these marks on its incentive items and promotional\nmaterials.\n Defendant Houston Independent School District (“HISD”) is the largest\npublic school district in Texas, serving more than 200,000 students. HISD,\nwhich is not a Springboards customer, launched its own monetary-themed\nincentive-based literacy program in 2008 called the “Houston ISD Millionaire\nClub.” The Houston ISD Millionaire Club had a somewhat narrower focus than\nSpringboards’ program: it was a summer-reading program aimed at curbing\nthe so-called summer slide, a phenomenon in which students lose progress\ngained over the academic year during summer vacation. HISD premised the\n 2\n\f Case: 18-20119 Document: 00514836473 Page: 3 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nHouston ISD Millionaire Club on research showing that students can prevent\nthe summer slide by reading five books over the summer. HISD officials\ntestified that they developed the millionaire theme because HISD’s 200,000-\nplus students would read more than one million books over the summer if each\nstudent read the requisite five books. These officials insisted that they were\nnot familiar with Springboards or its marks at the time they developed the\nprogram.\n Like Springboards, HISD encouraged participation in the program by\nrewarding students with items including certificates, T-shirts, drawstring\nbackpacks, and fake money—all labeled “Houston ISD Millionaire Club.” HISD\nalso distributed informational material referencing the name “Houston ISD\nMillionaire Club.” HISD rebranded its summer-reading program in 2014 to\n“Every Summer Has a Story” and ceased using the name “Houston ISD\nMillionaire Club.”\n Springboards sued HISD in federal district court. It alleged that HISD’s\nuse of “Houston ISD Millionaire Club” on its incentive items and informational\nmaterial constituted counterfeiting, trademark infringement, false designation\nof origin, and trademark dilution, all in violation of the Lanham Act. 1 The\nparties filed cross-motions for summary judgment. The district court\ndetermined that Springboards could not prove HISD used its marks in a\ncommercial manner, which, it opined, precluded each of Springboards’ Lanham\nAct claims. The district court did not reach HISD’s several alternative\narguments, including its argument that Springboards could not show that\nHISD created a likelihood of confusion by using its marks. Accordingly, the\n\n\n 1 Springboards additionally asserted analogous state-law claims, which the district\ncourt dismissed for lack of subject-matter jurisdiction. It likewise alleged HISD took its\nproperty without just compensation in violation of the Texas and United States constitutions.\nThe district court dismissed those claims on summary judgment. Springboards only raises\nits Lanham Act claims on appeal.\n 3\n\f Case: 18-20119 Document: 00514836473 Page: 4 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\ndistrict court granted HISD’s motion for summary judgment and denied\nSpringboards’ motion. Springboards subsequently filed a motion for\nreconsideration, which the district court also denied. Springboards appeals.\n II.\n We review the parties’ motions for summary judgment de novo, applying\nthe same standard as the district court. Am. Family Life Assurance Co. of\nColumbus v. Biles, 714 F.3d 887, 895 (5th Cir. 2013) (per curiam). “The court\nshall grant summary judgment if the movant shows that there is no genuine\ndispute as to any material fact and the movant is entitled to judgment as a\nmatter of law.” Fed. R. Civ. P. 56(a). In reviewing the party’s cross-motions for\nsummary judgment, we examine “each party’s motion independently” and view\n“the evidence and inferences in the light most favorable to the nonmoving\nparty.” JP Morgan Chase Bank, N.A. v. Data Treasury Corp., 823 F.3d 1006,\n1011 (5th Cir. 2016) (quoting Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740,\n745 (5th Cir. 2009)). “A genuine issue of material fact exists if a reasonable\njury could enter a verdict for the non-moving party.” Biles, 714 F.3d at 896.\n“Because our review is de novo, our analysis is not limited to that employed by\nthe district court, and we ‘may affirm the district court’s decision on any basis\npresented to the district court.’” Id. (quoting LeMaire v. La. Dep’t of Transp. &\nDev., 480 F.3d 383, 387 (5th Cir. 2007)).\n The Lanham Act is intended, inter alia, “to protect persons engaged in\nsuch commerce against unfair competition[] [and] to prevent fraud and\ndeception in such commerce by the use of reproductions, copies, counterfeits,\nor colorable imitations of registered marks.” 15 U.S.C. § 1127. It does so by\n“making actionable the deceptive and misleading use of marks” through\nvarious causes of action vested in the marks’ owners. Id. Springboards seeks\nto enforce its trademarks and service mark through four such causes of action:\n\n\n 4\n\f Case: 18-20119 Document: 00514836473 Page: 5 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\ntrademark infringement, counterfeiting, false designation of origin, and\ntrademark dilution. We address each in turn.\n A.\n A defendant is liable for Lanham Act infringement if the defendant uses\n“in commerce any reproduction, counterfeit, copy, or colorable imitation of a\nregistered mark in connection with the sale, offering for sale, distribution, or\nadvertising of any goods or services on or in connection with which such use is\nlikely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C.\n§ 1114(1)(a). The district court focused on the requirement that the allegedly\ninfringing use be “in connection with the sale, offering for sale, distribution, or\nadvertising” of goods or services. Relying on out-of-circuit precedent, it\nconcluded that this language requires the allegedly infringing use be\ncommercial in nature, and it concluded that no reasonable jury could find HISD\nused “Houston ISD Millionaire Club” in connection with any commercial\nexchange. We express no opinion on the correctness of the district court’s\nanalysis; instead, we focus on HISD’s alternative argument that its use of\n“Houston ISD Millionaire Club” was not “likely to cause confusion, or to cause\nmistake, or to deceive.” Id.\n To prove infringement, Springboards must show that HISD’s use of\n“Houston ISD Millionaire Club” “create[d] a likelihood of confusion in the\nminds of potential consumers as to the source, affiliation, or sponsorship” of\nHISD’s products or services. Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188,\n193 (5th Cir. 1998). “Likelihood of confusion is synonymous with a probability\nof confusion, which is more than a mere possibility of confusion.” Id. In other\nwords, Springboards must show that potential consumers, when confronted\nwith “Houston ISD Millionaire Club,” would believe Springboards is somehow\naffiliated with HISD’s summer-reading program or the branded incentive\n\n\n 5\n\f Case: 18-20119 Document: 00514836473 Page: 6 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nitems and informational material HISD distributed in connection with its\nsummer-reading program.\n In assessing likelihood of confusion, we examine eight nonexhaustive\n“digits of confusion”:\n ‘(1) the type of mark allegedly infringed, (2) the similarity between\n the two marks, (3) the similarity of the products or services, (4) the\n identity of the retail outlets and purchasers, (5) the identity of the\n advertising media used, (6) the defendant’s intent, . . . (7) any\n evidence of actual confusion[,]’ . . . [and] (8) the degree of care\n exercised by potential purchasers.\n\nStreamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F.3d 440, 453 (5th Cir.\n2017) (alterations and omissions in original) (quoting Bd. of Supervisors for La.\nState Univ. Agricultural & Mech. Coll. v. Smack Apparel Co., 550 F.3d 465,\n478 (5th Cir. 2008)). These digits are flexible: “They do not apply mechanically\nto every case and can serve only as guides, not as an exact calculus.” Scott\nFetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 485 (5th Cir. 2004).\nAccordingly, must keep in mind two important principles while applying these\ndigits: (1) “we must consider the application of each digit in light of the specific\ncircumstances of the case”; and (2) “we must ‘consider the marks in the context\nthat a customer perceives them in the marketplace.’” Id. (quoting Elvis Presley\nEnters., 141 F.3d at 197).\n We will examine each digit in turn. But given the atypical facts of this\ncase, we first digress to consider the context in which this dispute arises. That\ncontext will then help channel our discussion of the eight digits of confusion.\n We begin our detour by stating what is perhaps obvious, though easy to\nlose sight of when considering some of the parties’ arguments: Springboards\n\n\n\n\n 6\n\f Case: 18-20119 Document: 00514836473 Page: 7 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nbrings a trademark claim—not a patent claim. 2 Accordingly, Springboards\ndoes not challenge HISD’s use of a monetary-themed incentive-based literacy\nprogram. HISD could have copied the methodologies used in the Read a Million\nWords campaign step by step, and, whatever other problems that might have\nengendered, as long as it used clearly distinguishable nomenclature,\nSpringboards would have no argument that HISD violated the Lanham Act in\ndoing so. Thus, although the similarity between the parties’ products and\nservices is a digit of confusion relevant to the analysis, the focus of the analysis\nis on whether HISD misappropriated Springboards’ marks, not whether HISD\nmisappropriated Springboards’ literacy-promotion methods.\n Next, we must identify the class of consumers at risk of confusion and\nthe point in the transaction at which the risk of confusion arises. See Astra\nPharm. Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1206 (1st Cir.\n1983) (“If likelihood of confusion exists, it must be based on the confusion of\nsome relevant person; i.e., a customer or purchaser.”); accord Elec. Design &\nSales, Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 716 (Fed. Cir. 1992). In the\ntypical likelihood-of-confusion case, these questions require little inquiry.\nNormally, the alleged infringer appropriates the senior mark user’s goodwill\nby selling a product or service that the consumer might mistake as being in\nsome manner affiliated with the senior mark user. See, e.g., Viacom Int’l v. IJR\nCapital Invs., L.L.C., 891 F.3d 178, 183-84 (5th Cir. 2018). The risk in such a\ncase is that the purchaser will be confused at the point of the sale. See 4\nMcCarthy on Trademarks and Unfair Competition § 23:5 (5th ed. 2018 update)\n(“The most common and widely recognized type of confusion that creates\n\n\n\n\n 2 The record does not indicate whether Springboards holds a utility patent on the\nmethods it uses in its Read a Million Words literacy program. We do not intend to opine on\nwhether such a patent would be available to Springboards.\n 7\n\f Case: 18-20119 Document: 00514836473 Page: 8 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\ninfringement is purchaser confusion of source which occurs at the time of\npurchase: point of sale confusion.”).\n The relevant risk of confusion is not as clear in this case. Springboards’\nbusiness model is premised on marketing the Read a Million Words campaign\nto school districts and selling those districts the products and services needed\nto implement the campaign. But Springboards does not allege that HISD\ndirectly competed with it by marketing the Houston ISD Millionaire Club to\noutside school districts. Rather, Springboards argues that HISD itself would\nhave purchased Springboards’ services were it not infringing on those services.\nSpringboards does not argue—and it would be nonsensical to argue—that\nHISD confused itself into developing its own literacy program thinking that it\nwas instead purchasing Springboards’ program. The archetype therefore does\nnot fit this case. But Springboards alludes to alternative sources of confusion,\nwhich we briefly explore.\n Springboards suggests HISD’s students and their parents might have\nbeen confused into thinking that HISD was using Springboards’ program\ninstead of its own. Regardless of whether that might have been the case,\nHISD’s students and their parents are not the appropriate focus of the\nlikelihood-of-confusion analysis. Although the ultimate recipients of HISD’s\nservices and products, the students and their parents were not purchasers in\nany ordinary sense. 3 They are better characterized as the “users” of the\nallegedly infringing products and services. See 4 McCarthy, supra, at § 23:7\n(discussing circumstances under which “[c]onfusion of users” may be\nactionable). User confusion is actionable in some cases, but as the Federal\nCircuit has cautioned, only confusion in “those users who might influence\n\n\n\n 3 Nor is there evidence that Springboards directly marketed its products and services\nto students or parents.\n 8\n\f Case: 18-20119 Document: 00514836473 Page: 9 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nfuture purchasers” is actionable. Elec. Design & Sales, 954 F.2d at 718. Here,\nabsent any evidence that HISD students or their parents exercise any\ninfluence over HISD’s purchasing decisions, we need not consider the\nlikelihood that HISD students and parents were confused about Springboards’\nrole in the Houston ISD Millionaire Club initiative.\n Next, Springboards suggests there is a risk that third-party educators\nwere confused. Courts call this genus of confusion postsale confusion. 4 See, e.g.,\nYellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1295 (11th\nCir. 2018). See generally 4 McCarthy, supra, at § 23:7. In such cases, the\npurchaser of the infringing product or service understands the product or\nservice is not affiliated with the senior mark user, but there remains a\nlikelihood of confusion in third-party potential purchasers. See Gibson Guitar\nCorp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 552 (6th Cir. 2005). The\nparadigmatic postsale confusion case arises when a consumer knowingly\npurchases a counterfeit of a luxury item—a designer handbag, for example. See\n4 McCarthy, supra, at § 23:7 (collecting cases). Those who later observe the\ncounterfeit item might mistake it as genuine, thus harming the senior mark\nuser’s goodwill by potentially leading the observer to believe the senior mark\nuser’s product is less scarce or of a lower quality than it actually is. See id.\n Although there is no evidence that scarcity is important to Springboards’\nbusiness model, there is some risk that if HISD’s literacy program were\ninferior to Springboards’ literacy program, then Springboards’ potential\ncustomers might be deterred from purchasing Springboards’ products and\nservices by a mistaken association between HISD and Springboards. This\n\n\n\n\n 4We use the term “postsale confusion” to ground the alleged confusion here within the\nconceptual framework, although we recognize there was no actual sale involved.\n 9\n\f Case: 18-20119 Document: 00514836473 Page: 10 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nwould be actionable. 5 We therefore focus our digits-of-confusion analysis on\nwhether there is a probability that HISD’s use of “Houston ISD Millionaire\nClub” would confuse third-party educators into believing that Springboards is\naffiliated with Houston’s summer-reading program.\n 1.\n The first digit of confusion, the type of the mark, “refers to the strength\nof the mark.” Elvis Presley Enters., 141 F.3d at 201. The more distinct and\nrecognizable the senior user’s mark, “the greater the likelihood that consumers\nwill confuse the junior user’s use with that of the senior user.” Id. We analyze\ntwo factors in determining the strength of a mark: (1) the mark’s position along\nthe distinctiveness spectrum, and (2) “the standing of the mark in the\nmarketplace.” Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 330 (5th\nCir. 2008).\n The first factor refers to the five categories of increasing distinctiveness\nthat marks generally fall into: generic, descriptive, suggestive, arbitrary, and\nfanciful. See Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 227\n(5th Cir. 2009). A generic mark is simply the ordinary name of the product. See\nid. A descriptive mark conveys information about the product or service. See\nSun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass’n, 651 F.2d 311, 315 (5th\nCir. July 1981). A suggestive mark “suggests, but does not describe, an\n\n\n\n 5 We note that there is some question about whether Springboards must present\nevidence that HISD’s program is inferior to its own to proceed on a theory of likelihood of\npostsale confusion. The Sixth Circuit has held that when such postsale confusion is at issue,\nthe senior mark user must present evidence that the junior user’s product or service is\n“clearly inferior” to the senior user’s; otherwise, postsale confusion would not deter the senior\nuser’s potential purchasers. Gibson Guitar Corp., 423 F.3d at 552. The Eleventh Circuit has\nexplained “that the quality of a defendant’s product is relevant to the harm suffered by the\nplaintiff” but has declined to “require a threshold showing that the defendant’s product is\ninferior in quality.” Yellowfin Yachts, 898 F.3d at 1295 & n.14. The parties do not address\nthis question, so we do not endeavor to resolve it.\n\n 10\n\f Case: 18-20119 Document: 00514836473 Page: 11 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nattribute of the good; it requires the consumer to exercise his imagination to\napply the trademark to the good.” Xtreme Lashes, 576 F.3d at 227. Arbitrary\nand fanciful marks have no relation to the product or service. See 2 McCarthy,\nsupra, at §§ 11.5, 11.11.\n Springboards argues that its marks are arbitrary. We disagree. “Read a\nMillion Words” is descriptive. It states the goal of Springboards’ campaign in\nplain English; no imagination is needed to understand what the mark is meant\nto convey. Springboards’ other three marks—“Millionaire Reader,” “Million\nDollar Reader,” and “Millionaire’s Reading Club”—are suggestive. It requires\nsome imagination to equate the traditional concept of a millionaire with a\nstudent who has read a million words. But the terms used in the marks are\nnevertheless related to Springboards’ products: items given to students who\nread one million words in a monetary-themed literacy program.\n On the second factor, a reasonable jury could not conclude that\nSpringboards’ marks enjoy strong standing in the market. Springboards cites\nto no evidence in the summary-judgment record showing that its marks are\nwidely recognizable. 6 To the contrary, Springboards’ damages expert conveyed\nthat 87 percent of Springboards’ revenue comes from a single school district in\nEdinburg, Texas.\n Moreover, HISD presented unrebutted evidence of numerous other\nliteracy programs predating Springboards’ “Read a Million Words” campaign\nthat use phrases identical or nearly identical language to Springboards’ marks.\nThese programs include an elementary school’s initiative called “The Reading\nMillionaire’s Project”; two different public libraries’ reading programs called\n\n\n 6 Citing primarily to evidence of HISD’s success with its summer-reading program,\nSpringboards argues that its marks are strong because there is high demand for literacy\nprograms targeted at low-income students. But Springboards cites to no authority, and we\ntherefore express no view, on whether the demand for a generic product has any bearing on\nthe strength of the mark.\n 11\n\f Case: 18-20119 Document: 00514836473 Page: 12 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\n“Who Wants to Be a Million Dollar Reader?”; a Miami high school’s contest\ncalled “the Million Words Campaign”; the Denver public school district’s\n“Million Word Campaign”; and a Texas public school district’s program that\nhonors students as “Millionaire Readers” and inducts them into a “Millionaire’s\nClub.” Extensive third-party use of a term throughout the market suggests\nthat consumers will not associate the junior mark’s use with the senior mark\nuser. See Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 170 (5th Cir. 1986)\n(explaining common use of “XL” mark with various consumer goods “dilute[d]\nthe strength of the mark”); Sun Banks, 651 F.2d at 316 (noting that prolific use\nof “sun” by Florida financial institutions weakened mark); Duluth News–\nTribune, a Div. of Nw. Publ’ns, Inc. v. Mesabi Publ’g Co., 84 F.3d 1093, 1097\n(8th Cir. 1996) (“[T]he widespread use of the words ‘news’ and ‘tribune’\nthroughout the newspaper industry precludes plaintiff from claiming exclusive\nprivilege to use these words.”).\n In sum, although the fact that three of Springboards’ marks are\nsuggestive would normally indicate that the marks are strong, the strength of\nSpringboards’ marks is substantially undercut by their lack of recognition in\nthe market and widespread third-party use. See Sun Banks, 651 F.2d at 315-\n17 (concluding arbitrary mark was weak because of widespread third-party\nuse). Accordingly, the first digit suggests no likelihood of confusion.\n 2.\n The second digit is the similarity of the marks. There is no doubt that\nthere are commonalities between the marks, especially between Springboards’\n“Millionaire Reader Club” and HISD’s “Houston ISD Millionaire Club.” But\n“the use of identical dominant words does not automatically equate to\nsimilarity between marks.” Sensient Techs. Corp. v. SensoryEffects Flavor Co.,\n613 F.3d 754, 765 (8th Cir. 2010). Although we do not entirely discount the\ncommon use of “Millionaire” and “Club” in both marks, viewing the marks as\n 12\n\f Case: 18-20119 Document: 00514836473 Page: 13 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\na whole, a reasonable jury could not conclude these similarities suggest a\nlikelihood of confusion. See Oreck, 803 F.2d at 171. HISD’s use of “Houston\nISD” in the mark especially mitigates the likelihood of confusion. See id.\n(concluding second digit weighed against confusion in part because junior user\nclearly identified itself on advertisement). The second digit favors neither\nparty.\n 3.\n The third digit is the similarity of the products or services. There can be\nlittle dispute that this digit favors Springboards. Both programs involve\nmonetary-themed incentive-based literacy programs, and they distribute many\nof the same branded incentive items, including certificates, T-shirts,\ndrawstring backpacks, and fake money. That Springboards’ program seeks to\nencourage students to read during the academic year while HISD’s program\nseeks to encourage students to read during the summer is not a meaningful\ndifference. Accordingly, the third digit suggests a likelihood of confusion.\n 4.\n The fourth digit is the identity of retail outlets and purchasers. This digit\nis an awkward fit to the facts of the case as HISD did not market the Houston\nISD Millionaire Club and therefore had no retail outlets or purchasers.\nNevertheless, HISD is a school district, and Springboards markets its products\nand services to school districts. Because we are focused on the risk that third-\nparty observers will confuse HISD’s program with Springboards’ program, this\noverlap suggests some likelihood of confusion—an outside observer could have\nseen HISD using its own program and believed it purchased the program from\nSpringboards. The fourth digit does not weigh nearly as strongly in\n\n\n\n\n 13\n\f Case: 18-20119 Document: 00514836473 Page: 14 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nSpringboards’ favor as it would if HISD had marketed the program to third\nparties, but a jury could attribute to it modest weight nonetheless.\n 5.\n The fifth digit is the identity of the advertising media used. This digit\nalso does not fit neatly into this case because HISD did not market the Houston\nISD Millionaire Club and therefore did not advertise. Springboards argues that\nthis digit suggests a likelihood of confusion because “both parties use their\nmarks on printed brochures, branded merchandise, the internet, and materials\nprovided to consumers.” Even to the extent this could be considered advertising\nin some literal sense of the word, it is not relevant to the likelihood-of-confusion\nanalysis. The HISD advertising materials Springboards references were all\neither informational material distributed to parents and students to encourage\nparticipation in the program or incentive items distributed to the students as\npart of the program. Third-party observers who saw such material would not\nhave erroneously believed HISD was marketing its services to outside school\ndistricts. By contrast, Springboards produced marketing material explicitly\ntargeting school districts. This digit suggests no likelihood of confusion.\n 6.\n The sixth digit is intent to confuse. Springboards points to no direct\nevidence of an intent to confuse, but it argues that the similarity of the parties’\nmarks is circumstantial evidence of intent to confuse. Even assuming arguendo\nthe similarity of marks alone could provide evidence of intent to confuse, the\nsimilarity of the marks does not provide such evidence in this case.\nUncontradicted testimony from HISD officials established that HISD\ndeveloped the millionaire theme for its summer reading program because the\nprogram’s goal was for each of HISD’s 200,000-plus students to read five books\nover the summer—exceeding one million books total. Officials who helped\ndevelop the program testified that they had not heard of Springboards or its\n 14\n\f Case: 18-20119 Document: 00514836473 Page: 15 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nmarks at the time. And as discussed above, millionaire-themed literacy\nprograms were prevalent even before Springboards entered the equation, so it\nis not surprising that HISD would have developed the idea for the Houston\nISD Millionaire Club independently of Springboards. Even when viewing the\nevidence in the light most favorable to Springboards, this digit weighs against\na likelihood of confusion.\n 7.\n The seventh digit is evidence of actual confusion. Springboards presents\nfour declarations from witnesses who saw material from HISD discussing or\npromoting the Houston ISD Millionaire Club. But only two of those four\nwitnesses identified themselves as educators. And neither of those two testified\nthat he or she has any authority to purchase Springboards’ products or services\nfor his or her employer or otherwise influences such purchasing decisions.\nFurther, only one of the educators, Raul Soto, attested that he believed the\nHouston ISD Millionaire Club was affiliated with Springboards. The other\neducator, Amy Rocha-Trevino, testified that she saw HISD’s “‘copycat’\nproducts” and that she saw a “Houston ISD Millionaire Club” night at a\nHouston Rockets game that “had nothing to do with Springboards.” There is\nthus no direct evidence of any actual confusion by potential Springboards\ncustomers. A jury could conclude that Springboards’ evidence of actual\nconfusion weighs minimally in favor of finding a likelihood of confusion.\n 8.\n The eighth and final digit is the degree of care exercised by potential\npurchasers. Under this digit, the greater the care potential purchasers\nexercise, the less likely it is they will confuse a junior mark user’s products or\nservices with the senior mark user’s products or services. See Streamline Prod.,\n851 F.3d at 458. We have held that “professional and institutional” purchasers\n“are virtually certain to be informed, deliberative buyers.” Oreck, 803 F.2d at\n 15\n\f Case: 18-20119 Document: 00514836473 Page: 16 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\n173. There is no question this includes public school districts shopping for\noutside literacy programs. Nevertheless, Springboards argues that purchasers\ndo not exercise care because many of its individual products—the incentive\nitems distributed to the students—are low value. Springboards ignores the\nreality of its own program: it markets the program as a whole, not individual\nitems. This digit suggests there is no likelihood of confusion.\n\n\n 9.\n The ultimate question is whether a reasonable jury could conclude that\nit is likely potential purchasers of Springboards’ products would have believed\nthat Springboards was affiliated with HISD’s summer-reading program. See\nScott Fetzer, 381 F.3d at 484-85. Looking to the digits of confusion for guidance,\nwe conclude that no reasonable jury could find a likelihood of confusion.\nSpringboards’ marks are not widely known and are similar or identical to\nmultiple third-party marks. HISD did not market the Houston ISD Millionaire\nClub to Springboards’ potential customers—i.e., third-party school districts.\nThere is no evidence of an intent to confuse. And Springboards’ potential\ncustomers are sophisticated institutional purchasers that are not easily\nconfused. The only digit pointing unwaveringly in Springboards’ favor is the\nsimilarity of the products. But even this does not strongly suggest a likelihood\nof confusion given the popularity of millionaire-themed literacy programs.\nOtherwise, there is some overlap in markets considering that HISD is a school\ndistrict and Springboards markets to school districts, but the importance of\nthis digit is undercut by the fact that HISD did not market the Houston ISD\nMillionaire Club externally.\n Accordingly, the great weight of the digits suggests there is no likelihood\nof confusion. Without being able to show a likelihood of confusion,\n\n\n 16\n\f Case: 18-20119 Document: 00514836473 Page: 17 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nSpringboards cannot succeed on its infringement claim, so the district court\nproperly granted summary judgment to HISD on this issue.\n B.\n Springboards next alleges that HISD counterfeited its marks in violation\nof the Lanham Act. Likelihood of confusion is also an element of counterfeiting.\nSee 15 U.S.C. § 1114(1)(a); cf. 4 McCarthy, supra, at § 25.10 (“[C]ounterfeiting\nis ‘hard core’ or ‘first degree’ trademark infringement . . . .”). Accordingly,\nSpringboards’ counterfeiting claim also fails because a reasonable jury could\nnot find a likelihood of confusion. The district court therefore properly granted\nsummary judgment to HISD on this issue as well.\n C.\n Springboards must also show likelihood of confusion to succeed on its\nfalse-designation-of-origin claim. See King v. Ames, 179 F.3d 370, 374 (5th Cir.\n1999) (explaining that likelihood of confusion is “essential element” for\nLanham Act false designation of origin). Thus, the district court properly\ngranted summary judgment to HISD on this issue.\n D.\n Next, Springboards alleges trademark dilution. To succeed on its\ndilution claim, Springboards must show that its marks are “famous.” 15 U.S.C.\n§ 1125(c)(1); see also Nat’l Bus. Forms & Printing, Inc. v. Ford Motor Co., 671\nF.3d 526, 536 (5th Cir. 2012). For a mark to be famous, it must be “widely\nrecognized by the general consuming public of the United States.”\n§ 1125(c)(2)(A). As discussed above, Springboards cannot make this showing.\nThere is no evidence in the summary-judgment record that Springboards’\nmarks are widely known among educators, never mind the general consuming\npublic. On the contrary, the evidence shows that Springboards conducts 87\npercent of its business in a single Texas school district. Further, Springboards’\nmarks are identical or similar to marks used by several other literacy\n 17\n\f Case: 18-20119 Document: 00514836473 Page: 18 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nprograms. Accordingly, no reasonable jury could find Springboards’ marks are\nfamous and distinct, so the district court properly granted summary judgment\nto HISD on this issue. 7\n\n\n III.\n Lastly, we address Springboards’ challenges to three procedural rulings\nthe district court issued below. First, Springboards argues that the district\ncourt improperly denied its motion to extend the dispositive-motion deadline.\nSecond, Springboards argues the district court improperly denied it leave to\namend its motion for summary judgment. Third, Springboards argues the\ndistrict court improperly denied it leave to amend its complaint. We review\neach of these rulings for abuse of discretion. See Squyres v. Heico Cos., 782 F.3d\n224, 236-37 (5th Cir. 2015).\n The district court originally ordered discovery in this case to conclude by\nSeptember 1, 2017. But Hurricane Harvey hit coastal Texas near the end of\nAugust 2017, disrupting multiple eleventh-hour depositions the parties had\nplanned. The district court accordingly granted a series of extensions,\neventually extending the discovery deadline to September 25, 2017.\nSpringboards then moved to extend the deadline for dispositive motions from\nOctober 1 to October 25. Springboards explained that it would have difficulty\ncomplying with the deadline because Hurricane Harvey delayed the end of\ndiscovery and left it with little time to finalize its summary-judgment motion.\nIt further argued that HISD had failed to produce certain “key documents.”\nThe district court denied that motion. Springboards filed a timely motion for\n\n\n 7 Because no reasonable jury could return a verdict for Springboards on any of its\nclaims, it follows a fortiori that a reasonable jury could return a verdict for HISD.\nAccordingly, the district court properly denied Springboards’ summary-judgment motion.\nLikewise, because we conclude de novo that HISD is entitled to summary judgment, we also\nconclude that the district court properly denied Springboards’ motion for reconsideration.\n 18\n\f Case: 18-20119 Document: 00514836473 Page: 19 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nsummary judgment, then later moved to amend its motion to add certified\ndeposition transcripts it did not receive until after the dispositive-motion\ndeadline.\n A scheduling order “may be modified only for good cause.” Fed. R. Civ. P.\n16(b)(4). As we have expounded:\n There are four relevant factors to consider when determining\n whether there is good cause under Rule 16(b)(4): “(1) the\n explanation for the failure to timely [comply with the scheduling\n order]; (2) the importance of the [modification]; (3) potential\n prejudice in allowing the [modification]; and (4) the availability of\n a continuance to cure such prejudice.”\n\nSquyers, 782 F.3d at 237 (alterations in original) (quoting Meaux Surface Prot.,\nInc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)). Although the difficulty\nHurricane Harvey caused is certainly a sufficient explanation for the delay,\nSpringboards failed to elaborate on its need for the missing evidence in either\nits pre-deadline motion to extend or its post-deadline motion to amend.\nAccordingly, Springboards did not meet its burden to show good cause, and the\ndistrict court did not abuse its discretion in denying those motions.\n We also conclude the district court did not abuse its discretion in denying\nSpringboards’ motion to amend its complaint. Springboards moved to amend\nits complaint after the deadline for amended pleadings had passed.\nSpringboards did not seek to add any claims; rather, it sought to drop its state-\nlaw trademark claims and “clarify” certain factual matters. The district court\ndenied the motion. On appeal, Springboards argues that the district court\nshould have granted the motion because the amended complaint would not\nhave caused any delay below. But Springboards must show more than a lack\nof delay; parties must meet Rule 16(b)(4)’s good-cause standard to amend\npleadings once the deadline to do so has passed. See Filgueira v. U.S. Bank\nNat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam). Springboards failed\n\n 19\n\f Case: 18-20119 Document: 00514836473 Page: 20 Date Filed: 02/14/2019\n\n\n\n No. 18-20119\nto explain below and again fails to explain on appeal the importance of the\namendment to its case. It therefore cannot show good cause. See id.\n IV.\n For the foregoing reasons, we AFFIRM the judgment of the district court.\n\n\n\n\n 20", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368152/", "author_raw": "KING, Circuit Judge:"}]}	STEWART	KING	OWEN	1	{"STEWART": ", Chief", "KING": ", Circuit", "OWEN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590899/	Published	1	0	0	2,019	2	[ { "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...
4,590,901	Delbert JOHNSON, Plaintiff-Appellee v. Jeffrey HALSTEAD, Individually, Defendant-Appellant	Delbert Johnson v. City of Fort Worth	2019-02-14	17-10223	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Higginbotham, Dennis, Costa", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 17-10223 Document: 00514836033 Page: 1 Date Filed: 02/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-10223 February 14, 2019\n Lyle W. Cayce\nDELBERT JOHNSON, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nJEFFREY HALSTEAD, individually,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n ON PETITION FOR REHEARING AND REHEARING EN BANC\nBefore HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The petition for rehearing is DENIED and no member of this panel nor\njudge in active service having requested that the court be polled on rehearing\nen banc, the petition for rehearing en banc is also DENIED. The following is\nsubstituted in place of our opinion.\n Delbert Johnson is a sergeant with the Fort Worth Police Department.\nHe alleges that over a three-year period he was subjected to a campaign of\nisolation, harassment, and ridicule because he is African-American.\nInvestigators hired by the City to look into Johnson’s complaint (and those of\ntwo other officers) agree with the sergeant. Their report found that Johnson\n\f Case: 17-10223 Document: 00514836033 Page: 2 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nwas “repeatedly subjected to behavior that was hostile, intimidating, and[]\nbullying, and it was done publicly over a period of more than three years.” It\nalso concluded that although Johnson reported the harassment to upper\nmanagement, including Chief of Police Jeffrey Halstead, the Department “did\nnot step forward to stop the conflict—allowing the continuation of behavior\ncontributing to ‘hostile work environment’ conditions.” Instead, Halsted\ntransferred Johnson to one of the worst shifts in the department. We decide\nwhether Johnson has alleged enough at the pleading stage to overcome Chief\nHalstead’s qualified immunity defense to claims of hostile work environment\nand retaliation.\n I.\n Johnson has been a police officer in Fort Worth since 1990. 1 He served\nin multiple roles until being promoted to sergeant and assigned to Traffic\nDivision in 2005. Several years later, Johnson—Traffic Division’s only African-\nAmerican supervisor—was approached by an African-American officer about\nan offensive picture found in the office. The picture, taken by Sergeant Mike\nCagle, depicted Sergeant Ann Gates holding a noose around a snowman’s neck.\nAn unspecified officer, not Johnson, reported the picture to Internal Affairs.\nIA determined that Gates and Cagle had violated Department policies and\npunished them with a Commander’s Admonishment.\n Unhappy over the admonishment of his colleagues, Sergeant David\nStamp began to take actions to isolate and undermine Johnson. Stamp\nallegedly gathered a group of supervisors within the Traffic Division and told\nthem that they should “watch out for and avoid [Sergeant] Johnson . . . who\n\n\n\n 1 The factual allegations in this case come from Johnson’s first amended complaint,\nand his Rule 7 reply. The order being appealed is a judgment on the pleadings, thus “all well-\npleaded facts are accepted as true and viewed in the light most favorable to the plaintiff.”\nBosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).\n 2\n\f Case: 17-10223 Document: 00514836033 Page: 3 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nwas now their enemy and could not be trusted.” Stamp also publicly criticized\nJohnson to other supervisors, officers, and civilian employees; conspired with\nothers to boycott certain meetings and assignments overseen by Johnson; and\nattempted to sabotage one of Johnson’s assignments by trying to convince other\nofficers not to work on a federal grant Johnson managed.\n Two years after this conduct began, Stamp sent an anonymous letter to\nChief Halstead accusing Johnson of stealing money from that same grant\nprogram. As a result of Stamp’s letter, three different investigative teams\naudited the federal grant, all of them failing to find any evidence of\nwrongdoing. One of the investigators told Johnson, “S[ergeant] Stamp tried to\ntake you down hard.” Once Johnson was cleared of any wrongdoing, Stamp\nreportedly said that “the only reason that S[ergeant] Johnson was not arrested\nwas because he was black.”\n But Stamp is not a party to this lawsuit; it is against Halstead.\nJohnson’s claims hinge on Halstead’s alleged retaliation and his response to\nthe discriminatory environment. Johnson first met with Halstead after filing\na complaint with human resources in which he alleged “pervasive race\ndiscrimination.” Johnson filed several follow up complaints, and after 37 days,\nhe met with Halstead to discuss the alleged discrimination. Halstead told\nJohnson that he had “failed him” and would “make it right.”\n Three months after they met, Halstead transferred Johnson from the day\nshift in Traffic Division, where Johnson had been for eight years, to Second\nShift West Division, which Johnson describes as “one of the worst shifts in the\nentire police department.” Johnson’s work hours changed from 6:00 am to 2:00\npm, Monday through Friday, to 4:00 p.m. to 2:00 a.m., Friday through Monday.\nJohnson contends that this change to the evening shift had a negative effect\non his social relationships and cost him $50,000 in lost income because it\n\n\n 3\n\f Case: 17-10223 Document: 00514836033 Page: 4 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\ndiminished opportunities for overtime and forced him to leave a part-time job\nthat he had held for 11 years.\n Several weeks before being transferred, Johnson had applied for an open\nposition as Jail Sergeant. The hiring official allegedly wanted to hire Johnson,\nand no one else applied for the position. But Halstead and upper-level officials\nblocked Johnson from the position and removed the job posting even though no\none had filled it.\n During this time, Lieutenant Glenn Edney and the Fort Worth Black\nPolice Officers Association filed complaints with the Department alleging race-\nbased discrimination and retaliatory treatment by supervisory and senior-level\nofficials. Once informed of the complaints, the City of Fort Worth responded\nby hiring Coleman & Associates to perform an independent investigation of the\nthree complaints, including Johnson’s. After ten months of investigation,\nColeman released a report finding that the Department “tolerated and allowed\na hostile work environment over a three year time period that was based on\nrace and retaliation for [Johnson’s] prior complaints of race discrimination and\nharassment.”\n Following the release of the report, Halstead posted a video to the\nDepartment’s YouTube channel in which he recognized that Johnson and\nanother officer had been discriminated against on the basis of race and\napologized for that treatment. Halstead also transferred Johnson back to the\nday shift in Traffic Division.\n The Coleman report cites several examples of statements made by\nHalstead accepting responsibility for the discriminatory behavior. It also\nfound that the discriminatory behavior was “demonstrated with the knowledge\nof supervisors, other employees in the Traffic Division, and the department’s\nChain of Command.” That included “top management,” which “knew of the\nconflict between Complainant 1 [Johnson] and A-One [Stamp] but did not\n 4\n\f Case: 17-10223 Document: 00514836033 Page: 5 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nintercede to successfully mitigate the disruptive and disparaging conflict.” The\nReport concluded that “[t]he insulting, demeaning and offensive behavior from\nA-One directed toward [Johnson] continued, in part because the department\nleadership failed to take directed action as required by” Department policies.\n Johnson sued Halstead in his individual capacity, the City, and\nHalstead’s successor in her official capacity as Police Chief. He asserted civil\nrights claims under sections 1981 and 1983 for race discrimination, hostile\nwork environment, and retaliation. Halstead invoked qualified immunity, and\nthe court ordered Johnson to file a Rule 7 reply to address that defense.\nHalstead then filed a motion for judgment on the pleadings, which the court\ngranted in part and denied in part. It dismissed Johnson’s claims for racial\ndiscrimination “to the extent [they were] based on Halstead’s own alleged acts\nof harassment.” But the court allowed Johnson to move forward with his\nclaims for: (1) hostile work environment based on a theory of supervisory\nliability; (2) retaliation under section 1981 in response to Johnson’s complaint\nabout the discrimination; and (3) First Amendment retaliation.\n II.\n We review the denial of a Rule 12(c) motion for judgment on the\npleadings asserting qualified immunity de novo. Bosarge v. Miss. Bureau of\nNarcotics, 796 F.3d 435, 439 (5th Cir. 2015). A “plausibility” standard\ndetermines whether the plaintiff has pled sufficient facts to defeat a motion to\ndismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When the defendant\nasserts qualified immunity, the court can order the plaintiff to submit a reply,\nrefuting the immunity claim “with factual detail and particularity.” DeLeon\nv. City of Dallas, 141 F. App’x 258, 261 (5th Cir. 2005); see also Schultea v.\nWood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). This reply “must be\ntailored to the assertion of qualified immunity and fairly engage its\nallegations.” Schultea, 47 F.3d at 1433.\n 5\n\f Case: 17-10223 Document: 00514836033 Page: 6 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\n To overcome qualified immunity, a plaintiff must show two things:\n(1) that the allegations make out a constitutional violation, and (2) that the\nviolation of rights was clearly established at the time of the defendant’s\nconduct. Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015).\n III.\n The district court denied Halstead qualified immunity on Johnson’s\nhostile work environment claim but limited the claim to a theory of supervisory\nliability. A supervisor can be liable for the hostile work environment created\nby his subordinates “if that official, by action or inaction, demonstrates a\ndeliberate indifference to a plaintiff’s constitutional rights.” Southard v. Tex.\nBd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997).\n We first address Halstead’s contention that there is a clear legal obstacle\nto this section 1983 claim. He argues that although a hostile work\nenvironment based on sex violates the Equal Protection Clause, it is not clearly\nestablished that one based on race does. This ignores multiple cases in which\nwe have considered race-based hostile work environment claims asserted\nunder section 1983. See Duru v. City of Houston, 1994 WL 399211, at 2 (5th\nCir. Jul. 22, 1994) (denying qualified immunity for creating a racially hostile\nwork environment which violates a clearly established section 1983 right) 2;\nCaldwell v. Lozano, 689 F. App’x 315, 322 (5th Cir. 2017) (evaluating a race-\nbased hostile work environment claim under section 1983 but finding\ninsufficient severity or pervasiveness); Mendoza v. Helicopter, 548 F. App’x\n127, 129 (5th Cir. 2013) (applying Title VII sexual harassment cases to a claim\nof a racially hostile work environment under section 1983). And the reason we\nhave given for allowing constitutional claims of sex-based harassment—that\n\n\n\n 2 “Unpublished opinions issued before January 1, 1996, are precedent.” 5TH CIR. R.\n47.5.3.\n 6\n\f Case: 17-10223 Document: 00514836033 Page: 7 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\n“Section 1983 and [T]itle VII are ‘parallel causes of action,’” Lauderdale v. Tex.\nDep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007)\n(quoting Cervantez v. Bexar Cty. Civil Serv., 99 F.3d 730, 734 (5th Cir. 1996))—\napplies equally to race-based claims. Faragher v. City of Boca Raton, 524 U.S.\n775, 787 n.1 (1998) (“Although racial and sexual harassment will often take\ndifferent forms, and standards may not be entirely interchangeable, we think\nthere is good sense in seeking generally to harmonize the standards of what\namounts to actionable harassment.”). Indeed, the first case recognizing Title\nVII liability for a hostile environment was one from our court involving\ndiscrimination against a Hispanic worker. Rogers v. EEOC, 454 F.2d 234 (5th\nCir. 1971); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)\n(noting that courts applied the Rogers holding to harassment based on race,\nreligion, and national origin before the EEOC issued a Guideline in 1980\nrecognizing a claim for sex-based harassment). Even without all this caselaw,\nit would necessarily follow that if the Constitution makes it unlawful to create\na hostile workplace in response to a public employee’s sex, then it is also\nunlawful to engage in that hostility in response to a worker’s race. After all,\nthe latter category of discrimination is subject to even more exacting\nconstitutional scrutiny than the former. Clark v. Jeter, 486 U.S. 456, 461\n(1988).\n Given that the Equal Protection Clause protects against a racially hostile\nwork environment, the question becomes whether Johnson has sufficiently\nalleged that was what he faced. A hostile work environment exists when the\nworkplace is “permeated with discriminatory intimidation, ridicule, and insult\nthat is sufficiently severe or pervasive to alter the conditions of the victim’s\nemployment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation\nomitted). This last requirement, whether the harassment impacts the “’terms’\n\n\n 7\n\f Case: 17-10223 Document: 00514836033 Page: 8 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nor ‘conditions’ of employment,” is key as it comes from the words of Title VII.\nId. at 25 (Ginsburg, J., concurring) (citing 42 U.S.C. § 2000e-2(a)(1)).\n Johnson sufficiently alleges sustained harassment that undermined his\nability to work. Relying on the Coleman Report, Johnson contends that he was\n“repeatedly subjected to behavior that was hostile, intimidating, and[]\nbullying, and it was done publicly over a period of more than three years.”\nMore specifically, he endured “false accusations of wrong doing, name calling,\ncampaigning to turn others against [him], encouraging [his] peers and direct\nreports not to work with [him], or for [him] thereby marginalizing and\nundermining his supervisory effectiveness.” The Coleman Report recounts\nthat there were occasions when the tension between Johnson and Stamp was\n“so intense that the potential for physical aggression and altercation appeared\nimminent.” It concluded that “race was at the core of the differences” in this\nconflict. And Halstead publicly admitted not only that harassment occurred,\nbut also that it resulted from Johnson’s “skin color.”\n These allegations go well beyond “simple teasing, offhand comments, and\nisolated incidents.” Faragher, 524 U.S. at 788 (cleaned up). They allege a\nlengthier period of harassment than other verbal abuse that we have found\nwas pervasive enough to create a hostile work environment. See E.E.O.C. v.\nWC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (finding genuine issue\nof material fact as to existence of hostile work environment when plaintiff was\n“subjected to verbal harassment on a regular basis for a period of\napproximately one year”); see also Walker v. Thompson, 214 F.3d 615, 626–27\n(5th Cir. 2000) (also finding a fact issue when African-American employees\nwere subjected to a variety of racial slurs over three-year period), abrogated on\nother grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).\nMost of all, Johnson provides concrete examples of how the racial intimidation\n“interfere[d] with [his] work performance.” See Harris, 510 U.S. at 23. The\n 8\n\f Case: 17-10223 Document: 00514836033 Page: 9 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nracial hostility led to officers’ boycotting meetings with Johnson and ignoring\nhis assignments; colleagues’ refusing to assist with the grant program Johnson\noversaw; and Johnson’s being investigated for fraud. Johnson has alleged a\nplausible claim of hostile work environment, and one that is apparent from\nclearly established law. If those allegations are not plausible when they are\ncorroborated by investigators the employer hired, it is tough to imagine when\nthey will ever be.\n But for Halstead to be liable, it is not enough that Johnson was subject\nto a hostile work environment. Halstead must have been deliberately\nindifferent to this racially hostile work environment. Southard, 114 F.3d at\n551 (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994) (en\nbanc)). This is a “stringent standard of fault, requiring proof that a municipal\nactor disregarded a known or obvious consequence of his action.” Id. (quoting\nBd. of the Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 410\n(1997)). Johnson thus must allege that “repeated complaints of civil rights\nviolations” were followed by “no meaningful attempt on the part of the\nmunicipality to investigate or to forestall further incidents.” Vann v. City of\nNew York, 72 F.3d 1040, 1049 (2d Cir. 1995).\n He has done so. There is no dispute that Halstead knew about the\nalleged harassment. Johnson says he met with Halstead soon after he filed\nthe complaint with HR. The subsequent transfer of Johnson and Halstead’s\nlater apology corroborate this. So does the Coleman Report, as it found that a\n“high ranking officer” confirmed Johnson’s account of his interactions with the\nPolice Chief. The investigators also concluded that there was “widespread\nknowledge” of Johnson’s situation, and that the “Chain of Command” knew\nabout the “hostile, intimidating, and bullying” behavior.\n Johnson’s allegations that Halstead did nothing to try and stop the\nharassment even though he knew about it—again corroborated by the outside\n 9\n\f Case: 17-10223 Document: 00514836033 Page: 10 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\ninvestigation—also satisfy the second requirement for deliberate indifference.\nAmong its sharp criticisms of management’s response to the harassment\ncomplaints, the Coleman Report concludes that “upper management was\naware of the ongoing nature of the matter, but did not step forward to stop the\nconflict—allowing the continuation of behavior contributing to a ‘hostile work\nenvironment.’” Addressing Stamp’s harassment of Johnson, it found that “the\ninsulting, demeaning and offensive behavior . . . continued, in part because the\ndepartment leadership failed to take directed action” as required by\nDepartment policy. Although these findings refer to “top” or “upper”\nmanagement rather than Halstead specifically, it is easy to piece together that\nthe very top of management is included among the group that made no attempt\nto stop the harassment. As discussed, Johnson told Halstead about the\nharassment. Halstead admitted to Johnson that he had “failed him” and\npromised to “make it right.” More than a year later, Halstead publicly\nadmitted that he had not made it right and had instead continued in his failure\nto prevent the hostile conduct he had learned about. The corroborated\nallegations of Halstead’s inaction after learning about the unconstitutional\nwork environment is the definition of deliberate indifference and thus would\namount, if proven, to a violation of clearly established law. Of course, they are\njust allegations at this point, and the evidence may end up showing the\nopposite. But the allegations are plausible enough to allow Johnson to engage\nin the full discovery process and find out if there is evidence to back them up.\n IV.\n We next consider the section 1981 claim asserting that Halstead\nretaliated after Johnson complained about discrimination by transferring him\nto the night shift in a different division. Halstead argues he is entitled to\nqualified immunity because it is not established that the transfer was an\n\n\n 10\n\f Case: 17-10223 Document: 00514836033 Page: 11 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nadverse employment action and Johnson has not sufficiently pleaded\ncausation. 3\n The district court seems to have concluded that the transfer amounted\nto an adverse action under the “ultimate employment decision” standard that\ngoverns discrimination claims. But retaliation claims are governed by a less\nstringent standard. Title VII retaliation plaintiffs need only be subject to an\nemployment decision that was “materially adverse,” which means that it “well\nmight have dissuaded a reasonable worker from making or supporting a charge\nof discrimination.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.\n53, 67 (2006) (cleaned up).\n Halstead suggests it is not clear whether this “materially adverse”\nstandard applies to retaliation claims brought under section 1981. We do not\nview that as an open question. For starters, we have repeatedly explained that\n“[r]etalation claims under § 1981 and Title VII . . . are parallel causes of action,”\nwhich means they “require[] proof of the same elements in order to establish\nliability.” Foley v. Univ. of Hous. Sys., 355 F.3d 333, 340 n.8 (5th Cir. 2003);\nsee also Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir.\n2002) (“This Court considers claims of intentional discrimination, which\ninclude racial discrimination and retaliation claims based on Title VII and 42\nU.S.C. § 1981, under the same rubric of analysis.”). Applying that principle,\n\n\n 3 Halstead argues for the first time at the rehearing stage that it is not clearly\nestablished that a section 1981 retaliation claim can be brought against a municipal official\nas opposed to the municipality itself. See Jones v. City of Houston, No. 18-20223, 2018 WL\n6131132, at 5 n.6 (5th Cir. Nov. 20, 2018) (not deciding “whether § 1981 claims are\ncognizable against government officials in their individual capacities” in light of “tension” in\nour caselaw on the question (citing Foley v. Univ. of Hous Sys., 355 F.3d 333, 338 (5th Cir.\n2003)); see also Oden v. Oktibbeha Cty., Miss, 246 F.3d 458, 464 & n.5 (5th Cir. 2001).\nBecause Halstead did not raise this issue in the district court or before the panel, we will not\nconsider it in a petition for rehearing. Halstead’s failure to raise the “individual defendant”\nquestion also means that this opinion is not precedent on that issue. See Webster v. Fall, 266\nU.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither brought to the\nattention of the court nor ruled upon, are not to be considered as having been so decided.”).\n 11\n\f Case: 17-10223 Document: 00514836033 Page: 12 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nwe readily concluded that Burlington Northern’s “materially adverse” standard\ngoverns a section 1981 retaliation claim. See Mendoza, 548 F. App’x at 129–\n30. Granted, Mendoza is not published and was decided a few months after\nJohnson’s transfer. But in viewing application of Burlington Northern to\nsection 1981 as so straightforward—it just took reciting the principle that “the\nlaw regarding his § 1981 retaliation claims tracks the Title VII\njurisprudence”—Mendoza shows that the adverse action standard is an\nobvious consequence of our repeated command to analyze Title VII and section\n1981 retaliation claims in sync. Cf. Hanks v. Rogers, 853 F.3d 738, 747 (5th\nCir. 2017) (recognizing that there is no immunity defense when a\nconstitutional violation is “obvious”). If that is not enough, a robust consensus\nof persuasive authority existed on this question at the time of Johnson’s\ntransfer, as six circuits by then had applied the “materially adverse” standard\nto section 1981. See Douglass v. Rochester City Sch. Dist., 522 F. App’x 5, 8 (2d\nCir. 2013); Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d\nCir. 2010); Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 848–49 (7th\nCir. 2007); Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013);\nTwigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011); Jackson\nv. Hall Cty. Gov’t, 518 F. App’x 771, 773 (11th Cir. 2013).\n We thus need not decide if the transfer was tantamount to a demotion,\nwhich is often needed to treat a transfer as an “ultimate employment decision.”\nTo be actionable when it is a product of retaliation, an employment decision\nneed only “dissuade[] a reasonable worker from making or supporting a charge\nof discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Under\nthis less demanding standard, “a lateral reassignment to a position with equal\npay could amount to a materially adverse action in some circumstances.” See\nAryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 485 (5th Cir. 2008). A shift\nchange in and of itself is probably not sufficient. See Lushute v. Louisiana,\n 12\n\f Case: 17-10223 Document: 00514836033 Page: 13 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nDep’t of Soc. Servs., 479 F. App’x 553, 555 (5th Cir. 2012) (shift change was not\nan adverse employment action when plaintiff was changed from a four-day\nweek to a five-day week with no change in total hours or compensation). But\na retaliatory shift change that places a substantial burden on the plaintiff,\nsuch as significant interference with outside responsibilities or drastically and\nobjectively less desirable hours, can dissuade an employee from reporting\ndiscrimination. See Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C.\nCir. 2008) (finding potential Title VII retaliation when police officers were\nswitched from a permanent shift to a rotating shift because the change\n“severely affected [the officers’] sleep schedules and made it more difficult for\nthem to work overtime and part-time day jobs”); Washington v. Ill. Dep’t of\nRevenue, 420 F.3d 658, 662 (7th Cir. 2005) (finding lateral transfer requiring\nnormal 9-to-5 schedule could be materially adverse when prior flex-time hours\nwere necessary for plaintiff to care for her son with Down syndrome).\n Johnson alleges that substantial burdens flowed from the shift change.\nHe went from a daytime shift during the week to a night shift on the weekend.\nJust in terms of that timing, either hours or days, the shift change could\ndissuade an officer from making a discrimination complaint. But Johnson also\ndescribes his new assignment as “one of the worst shifts in the entire police\ndepartment,” and it is not surprising that weekend evenings might be among\nthe more demanding assignments for a police officer. He also cites a significant\nfinancial loss of $50,000 because he had to quit a part-time job he had held for\n11 years and no longer got the opportunity to work overtime hours. The district\ncourt found these allegations sufficient to show an ultimate employment\ndecision. We have no trouble finding that they could support the lesser\nthreshold of a “materially adverse” action, and that the widely acknowledged\ninferiority of the new shift would have been apparent to any reasonable person\nmaking the decision.\n 13\n\f Case: 17-10223 Document: 00514836033 Page: 14 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\n Johnson must also show it is plausible that he was transferred because\nhe complained about discrimination. He has done so. Shortly after alleging a\npattern and practice of race discrimination to human resources, Johnson\npersonally met with Halstead to discuss his concerns. Three months later,\nHalstead transferred Johnson from the position he had held for eight years.\nThis relatively short time gap between his complaint and the transfer support\nan allegation that the two events were related. See Evans v. City of Houston,\n246 F.3d 344, 354 (5th Cir. 2001) (noting that a “time lapse of up to four\nmonths” may be sufficient to establish a causal connection even at the post-\ndiscovery summary judgment stage (quoting Weeks v. NationsBank, N.A., 2000\nWL 341257, at 3 (N.D. Tex. 2000))). So does Halstead’s decision to return\nJohnson to his old shift immediately after the release of the Coleman Report.\nAnd the report recognized that Johnson’s transfer out of the Traffic Division\nwas part of “the department’s response to [his] complaint of harassment.” 4\n Johnson’s allegations supporting unlawful retaliation, if he later proves\nthem to be true, establish a violation of his constitutional rights, one that a\nreasonable official would know was unlawful. The district court properly\ndenied Halstead’s motion to dismiss this claim.\n\n\n\n\n 4 Halstead’s petition for rehearing en banc argues that this discussion of causation for\nthe section 1981 retaliation claim fails to apply the “clearly established” qualified immunity\nstandard. But that standard asks whether a “right was ‘clearly established’ at the time of\nthe challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (emphasis added). It\ndoes not require that causation be clearly established. Indeed, Halstead cites no case\nrequiring a heightened showing of causation in qualified immunity cases.\n What is more, in challenging causation Halstead relies on cases addressing the\nMcDonnell Douglas prima facie showing used at summary judgment when a plaintiff tries to\nprove retaliation with circumstantial evidence. At the pleading stage, the question is\nwhether the allegation is plausible. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)\n(explaining that the McDonnell Douglas framework used for evaluating circumstantial\nevidence at summary judgment does not apply at the pleading stage).\n 14\n\f Case: 17-10223 Document: 00514836033 Page: 15 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\n V.\n Johnson alleges a second retaliation claim, this one under the First\nAmendment. It is also based on Halstead’s alleged response to Johnson’s\ncomplaint about the racially hostile work environment, which Johnson\ncharacterizes as protected speech. Unlike the claim alleging retaliation for\nreporting discrimination, a claim of retaliation for exercising First Amendment\nrights exists only if Johnson was making the statement as a citizen on a matter\nof public concern. 5 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Gibson v.\nKilpatrick, 838 F.3d 476, 481 (5th Cir. 2016).\n The district court correctly determined that Johnson’s apprehensions\nabout racial hostility within the police department are a matter of public\nconcern. See Markos v. City of Atlanta, Tex., 364 F.3d 567, 574 (5th Cir. 2004)\n(finding that “a public employee speaking out about alleged corruption in the\npolice department” is “a subject undoubtedly of public concern”); Branton v.\nCity of Dallas, 272 F.3d 730, 740 (5th Cir. 2001) (“Exposure of official\nmisconduct, especially within the police department, is generally of great\nconsequence to the public.”).\n But the district court did not consider the second question Garcetti asks:\nwhether Johnson was speaking as a citizen. A public employee’s speech is not\nprotected when he speaks “pursuant to [his] official duties.” Anderson v.\nValdez, 845 F.3d 580, 592 (5th Cir. 2016). The reason is that when the\n\n\n 5 We note that First Amendment retaliation claims also may differ from section 1981\nretaliation over the definition of an “adverse employment action.” It is not clearly established\nwhether Burlington’s “materially adverse” standard applies to retaliation for protected\nspeech. See Gibson v. Kilpatrick, 734 F.3d 395, 401 n.4 (5th Cir. 2013) (“[T]his court has not\nyet decided whether the Burlington standard for adverse employment actions also applies to\nFirst Amendment retaliation cases.”), vacated and remanded on other grounds, 134 S. Ct.\n2874 (2014); DePree v. Saunders, 588 F.3d 282, 288 (5th Cir. 2009) (finding that the\napplication of Burlington to First Amendment retaliation is not “clearly established”).\nBecause our decision is based on whether Johnson spoke as a citizen, we need not address\nwhether his transfer would meet the stricter “ultimate employment action” test.\n 15\n\f Case: 17-10223 Document: 00514836033 Page: 16 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nemployee’s speech merely relates to the employment relationship as might\noccur in a private workplace, the public employer should not face constitutional\nscrutiny for its responses. Garcetti, 547 U.S. at 418, 423 In determining\nwhether an employee was speaking as part of his duties or had stepped outside\nthat role to speak as a citizen and thus receive First Amendment protection,\nwe consider “factors such as job descriptions, whether the employee\ncommunicated with coworkers or with supervisors, whether the speech\nresulted from special knowledge gained as an employee, and whether the\nspeech was directed internally or externally.” Rogers v. City of Yoakum, 660\nF. App’x 279, 283 (5th Cir. 2016) (citing Davis v. McKinney, 518 F.3d 304, 313\n(5th Cir. 2008)).\n One way to determine the role of the speaker is to look to the identity of\nthe listener. Complaints made publicly or to individuals outside the speaker’s\norganization suggest the employee is acting as a citizen. See Anderson, 845\nF.3d at 600 (“By at least 2014, it was clearly established that an employee’s\nspeech made externally concerning an event that was not within his or her job\nrequirements was entitled to First Amendment protection.” (cleaned up));\nCharles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008) (stating that an African-\nAmerican who raised concerns about racial discrimination against himself and\nother minority employees of the Texas Lottery Commission engaged in\nprotected speech because his complaints were made to Texas legislators rather\nthan his supervisors). But complaints made up the chain of command about\nconditions in a workplace are often held be found unprotected. Gibson v.\nKilpatrick, 773 F.3d 661, 670 (5th Cir. 2014) (recognizing that “whether the\nemployee’s complaint [is] made within the chain of command or to an outside\nactor” is an important, but not dispositive, factor); Davis, 518 F.3d at 313\n(“Cases from other circuits are consistent in holding that when a public\nemployee raises complaints or concerns up the chain of command at his\n 16\n\f Case: 17-10223 Document: 00514836033 Page: 17 Date Filed: 02/14/2019\n\n\n\n No. 17-10223\nworkplace about his job duties, that speech is undertaken in the course of\nperforming his job.”). It thus is not clearly established that an internal\ncomplaint of discrimination made only to supervisors, primarily to vindicate\none’s own rights, qualifies as speech made as a “citizen” rather than as an\n“employee.” See Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 471–73\n(5th Cir. 2014) (discussing the Fifth Circuit’s development of First Amendment\nretaliation law for public employees after Garcetti). Halstead is therefore\nentitled to qualified immunity on the First Amendment retaliation claim.\n **\n The district court’s denial of qualified immunity is AFFIRMED on the\nhostile work environment and section 1981 claims, but REVERSED on the\nsection 1983 First Amendment retaliation claim. The case is REMANDED for\nfurther proceedings.\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368154/", "author_raw": "GREGG COSTA, Circuit Judge:"}]}	HIGGINBOTHAM	DENNIS	COSTA	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590901/	Published	1	0	0	2,019	2	[ { "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...
4,591,302	Flora NALL, as Personal Representative of the Estate of Michael Nall, Substituted in Place and Stead of Michael Nall, Deceased, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, Defendant-Appellee.	Michael Nall v. BNSF Railway Company	2019-02-15	17-20113	U.S. Court of Appeals for the Fifth Circuit	{"judges": "James, Elrod, Costa", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888021/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888022/", "author_raw": ""}, {"type": "010combined", "text": "Case: 17-20113 Document: 00514836721 Page: 1 Date Filed: 02/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-20113\n February 15, 2019\n Lyle W. Cayce\n Clerk\nFLORA NALL, as Personal Representative of the Estate of Michael Nall,\nsubstituted in place and stead of Michael Nall, deceased,\n\n Plaintiff – Appellant,\n\nv.\n\nBNSF RAILWAY COMPANY,\n\n Defendant – Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas—Houston\n No. 4:14-CV-2819\n\n\nBefore ELROD, COSTA, and HO, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n The panel opinion, special concurrence, and dissent previously issued in\nthis case are withdrawn, and the following opinions are substituted in their\nplace.\n Michael Nall sued his employer, BNSF Railway Company, for disability\ndiscrimination and retaliation after he was diagnosed with Parkinson’s disease\nand later placed on medical leave by BNSF. Because there is a fact issue as to\nwhether BNSF discriminated against Nall, we REVERSE the grant of\nsummary judgment to BNSF on Nall’s disability discrimination claim and\n\n Case: 17-20113 Document: 00514836721 Page: 2 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nREMAND for further proceedings. Because Nall fails to identify a material\nfact issue regarding his retaliation claim, we AFFIRM the district court’s\njudgment on this claim.\n I.\n Nall started working as a trainman with BNSF in 1973. In 2010, he was\ndiagnosed with Parkinson’s disease. At this time, BNSF provided Nall and his\ndoctor with a medical status form listing the job duties of a trainman, including\nitems such as operating track switches, applying and releasing hand brakes,\nmonitoring track conditions, inspecting train cars and equipment, relaying\nvarious types of signals, and controlling train speed. After Nall’s neurologist\ncleared him to continue working, BNSF’s doctor revised the form to instead\ncontain a list of switchman duties different from the trainman duties on the\nprevious form. The new list added items such as “mak[ing] quick hand and leg\nmovements,” “rid[ing] on moving cars while holding onto a ladder,” and\n“maintaining good balance and steadiness of stance/gait.”\n Nall continued to work with BNSF for the next year and a half without\nincident. Then, in 2012, BNSF gave Nall a letter stating that a co-worker had\nvoiced concern about Nall’s ability to safely perform his job duties. Nall was\nplaced on medical leave and required to obtain a release from the BNSF\nmedical department to return to work.\n To begin the evaluation process, BNSF requested a copy of the results of\na physical examination from Nall’s neurologist that would show the doctor’s\nawareness of BNSF’s concerns and the results of any diagnostic tests\nperformed. Nall complied. He submitted to BNSF a report from his\nneurologist recommending further evaluations by a neuropsychologist and a\nphysical therapist. BNSF requested that Nall complete these evaluations.\nNall again complied. The neuropsychologist reported that he did not see any\nevidence of brain damage after evaluating Nall and placed Nall’s skill level at\n 2\n\n Case: 17-20113 Document: 00514836721 Page: 3 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nthe low end of the average range. The occupational therapist concluded that\nNall was able to meet the demands of his position at BNSF; suggested that\nNall be cautious with balance situations; and added that Nall was able to\nperform balance tasks safely.\n BNSF found some of the statements in these reports “concerning” and\nkept Nall on leave. BNSF emphasized that its rail yard employees “need[ ] to\nbe able to make quick decisions and take quick actions in order to work safely”\nand that “[b]alance is essential to working safely as a\nbrakeman/switchman/conductor.” In addition, BNSF provided Nall with five\npages of photographs depicting some of his job duties and asked for his\nneurologist to review them and return a statement to BNSF regarding Nall’s\nability to complete the depicted tasks.\n Dr. Joseph Jankovic, a neurologist and the director of the Parkinson’s\nDisease Center and Movement Disorders Clinic at the Baylor College of\nMedicine, reviewed the photographs. He concluded that Nall was able to\nperform the job duties shown in the photographs safely and was “in very good\ncondition with balance and concentration in order.” BNSF next requested that\nNall perform a field test. During the test, Nall successfully completed all of\nthe requested tasks, including taking instructions via radio, climbing on and\noff equipment, and walking on uneven surfaces. The physical therapist who\nconducted the test wrote a report in which he noted that Nall had decreased\nbalance when reaching, a resting tremor, and slow and jerky movement\npatterns. Although not mentioned in the report, two BNSF employees later\ntestified in depositions that, during the test, Nall engaged in conduct that\nviolated two of BNSF’s “eight deadly decisions”—BNSF’s most serious safety\nrules. BNSF informed Nall that, based on the results of the field test, he could\nnot return to work.\n\n\n 3\n\n Case: 17-20113 Document: 00514836721 Page: 4 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\n A few months later, Nall filed a discrimination charge with the Equal\nEmployment Opportunity Commission (EEOC). He also sent a new medical\nstatus form to BNSF showing that he could safely return to work. BNSF\nresponded that Nall was unable to return to work because of his field test\nresults. Nall sent another medical status form to BNSF, from another doctor,\nclearing him to return to work, and a new BNSF doctor, Dr. Laura Gillis,\nresponded by classifying him as “permanently medically disqualified.” The\nEEOC concluded its investigation and sent a letter to BNSF stating that it did\nnot agree with BNSF that Nall was a potential harm to himself or others or\nthat he was incapable of doing his job. Indeed, the EEOC investigator\nconcluded that there was a violation of the Americans with Disabilities Act\n(ADA).\n Nall and his wife filed the instant lawsuit. During the litigation process,\nNall kept trying to return to work. BNSF conducted a second field test and\nfound that Nall was still unable to perform his job duties safely. Several\nmonths later, Nall submitted records to BNSF showing that his\nneuropsychological testing results were “essentially the same as they were in\n2012.” BNSF’s decision remained the same.\n Against BNSF, Nall alleged disability discrimination and retaliation\nunder the ADA and Texas Commission on Human Rights Act (TCHRA). 1\nBNSF maintains that it did not discriminate against Nall because Nall was\nunsafe to return to work throughout the relevant time period. The district\ncourt held that Nall presented no direct evidence of discrimination, was not\n\n\n\n 1 Nall also alleged age discrimination and brought a retaliation claim under the Age\nDiscrimination in Employment Act (ADEA). However, on appeal, Nall states that he “no\nlonger wishes to pursue his age discrimination claims.” Thus, he has waived any arguments\nunder the ADEA. See United States v. Conn, 657 F.3d 280, 286 (5th Cir. 2011) (“‘[W]aiver is\nthe intentional relinquishment of a known right,’ and ‘waived errors are entirely\nunreviewable.’” (quoting United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).\n 4\n\n Case: 17-20113 Document: 00514836721 Page: 5 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nqualified for his position as a trainman, failed to present evidence of pretext,\nand was precluded from succeeding on his claims because BNSF is entitled to\na “direct threat” defense. Nall timely appealed.\n II.\n We review de novo a district court’s grant of summary judgment, viewing\nall facts and evidence in the light most favorable to the nonmoving party.\nCannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016).\n“Summary judgment is only appropriate if the movant has shown that there is\nno genuine issue as to any material fact such that the movant is entitled to\njudgment as a matter of law.” Id.\n “An issue of material fact is genuine if a reasonable jury could return a\nverdict for the nonmovant. In reviewing the evidence, we must draw all\nreasonable inferences in favor of the nonmoving party, and avoid credibility\ndeterminations and weighing of the evidence. In so doing, we must disregard\nall evidence favorable to the moving party that the jury is not required to\nbelieve.” Sandstad v. CB Ricard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)\n(citations omitted).\n III.\n “In employment discrimination cases, a plaintiff may present his case by\ndirect or circumstantial evidence, or both.” 2 Id. If the plaintiff produces direct\nevidence that discriminatory animus played a role in the employer’s adverse\nemployment decision, the burden of persuasion shifts to the defendant who\nmust prove that it would have taken the same action despite any\ndiscriminatory animus. Id. If the plaintiff only produces circumstantial\n\n\n 2 “Because TCHRA ‘parallels the language of the ADA,’ Texas courts follow ADA law\nin evaluating TCHRA discrimination claims.” Williams v. Tarrant Cty. Coll. Dist., 717 F.\nApp’x 440, 444–45 (5th Cir. 2018) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 285–87\n(5th Cir. 2004)). Except where we have noted otherwise, the following ADA analysis therefore\napplies equally to Nall’s claims under the TCHRA. See id.\n 5\n\n Case: 17-20113 Document: 00514836721 Page: 6 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nevidence of discrimination, the well-known burden-shifting analysis set forth\nin McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), guides our\ninquiry. Id. The district court held that Nall neither presented direct evidence\nof discrimination nor satisfied the circumstantial-evidence requirements of\nMcDonnell Douglas. We address both determinations.\n A.\n On appeal, Nall presents several comments by BNSF employees as direct\nevidence of discrimination. First, right after the initial field test, Dana Dickey,\nthe BNSF field medical manager, allegedly told Nall that Nall was “never\ncoming back to work” and that “they were just sending [him] paper\nwork . . . to—you know, be nice.” Second, Dr. Gillis and BNSF’s manager of\nclinical services, Carol Wilks, allegedly told Nall’s wife that “people with\nParkinson’s don’t get better.” Third, Dickey e-mailed Dr. Gillis regarding\nNall’s condition and whether BNSF should offer him a second field test and\nsaid that they “have to have it all documented.” In response, Dr. Gillis noted\nthat there was a low likelihood that Nall’s situation would improve but that\nthey have to ask the questions. Fourth, despite Nall’s submission of several\nmedical status forms indicating his ability to work safely, Dr. Gillis and Dickey\nrepeatedly referenced only the first field test.\n The first two statements above—that BNSF was just sending Nall\npaperwork to “be nice” and that “people with Parkinson’s don’t get better”—\nwere the only comments presented as direct evidence of discrimination to the\ndistrict court. As a result, these are the only statements we consider. See\nUnited States v. Mix, 791 F.3d 603, 611–12 (5th Cir. 2015) (holding that\narguments not raised below are forfeited). We agree with the district court\nthat these two statements are insufficient to constitute direct evidence.\n If an inference is required for evidence to be probative as to an employer’s\ndiscriminatory animus, the evidence is circumstantial, not direct. Sandstad,\n 6\n\n Case: 17-20113 Document: 00514836721 Page: 7 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\n309 F.3d at 897–98. Here, the evidence that Nall provides requires an\ninference to be probative as to any discriminatory animus. First, to find that\nDickey’s comments, said after the field test, are evidence of animus requires\nthe inference that Nall was “never coming back to work” because of Nall’s\ndisorder rather than his performance on the field test. Second, Dr. Gillis’s and\nWilks’s statements about people with Parkinson’s disease could simply be an\nobservation about the disorder. To be evidence of animus, the comment\nrequires an inference that the irreversible nature of Parkinson’s disease was\nthe reason why Nall would not be returning to work. These comments do not\nconstitute direct evidence; they are circumstantial evidence which we may\nconsider only under McDonnell Douglas. Having so concluded, we move on to\nthe McDonnell Douglas framework. 3\n B.\n Under the McDonnell Douglas framework, Nall must first make out a\nprima facie case of discrimination by showing that: (1) he has a disability or\nwas regarded as disabled; (2) he was qualified for the job; and (3) he was subject\nto an adverse employment decision because of his disability. Williams v. J.B.\nHunt Transp., Inc., 826 F.3d 806, 811 (5th Cir. 2016). If he does, the burden\nshifts to BNSF to articulate a legitimate, non-discriminatory reason for the\nadverse employment action. Id. If BNSF satisfies its burden, the burden shifts\nback to Nall “to produce evidence from which a jury could conclude that\n[BNSF’s] articulated reason is pretextual.” Cannon, 813 F.3d at 590.\n\n\n\n\n 3 Judge Costa’s observation in his concurrence that the McDonnell Douglas framework\ncan be inefficient and cumbersome is astute. However, as Judge Costa notes, Nall’s attempt\nto prove his case by direct evidence relied only on comments by his supervisors. Beyond these\ncomments, which we have concluded are not direct evidence, Nall attempted to prove his case\nusing circumstantial evidence. Thus, because Nall presented only circumstantial evidence\non summary judgment, it does not appear that we have the liberty to analyze this case in the\nstreamlined manner that Judge Costa describes.\n 7\n\n Case: 17-20113 Document: 00514836721 Page: 8 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\n 1. Prima facie case\n Here, the district court concluded that Nall satisfied the first and third\nelements of a prima facie case of discrimination but failed to show the second\nelement—that Nall was qualified for the job of a trainman. That element is\nthe focus of this appeal.\n “To be a qualified employee, [Nall] must be able to show that he could\neither (1) ‘perform the essential functions of the job in spite of his disability,’\nor (2) that ‘a reasonable accommodation of his disability would have enabled\nhim to perform the essential functions of his job.’” Id. at 592 (quoting EEOC\nv. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014)); see 42 U.S.C. § 12111(8).\nNall argues that he could perform the essential functions of his job. “A function\nis ‘essential’ if it bears ‘more than a marginal relationship’ to the employee’s\njob.” Cannon, 813 F.3d at 592 (quoting Chandler v. City of Dall., 2 F.3d 1385,\n1393 (5th Cir. 1993), holding modified on other grounds as discussed in Kapche\nv. City of San Antonio, 304 F.3d 493 (5th Cir. 2002)). “[C]onsideration shall be\ngiven to the employer’s judgment as to what functions of a job are essential,\nand if an employer has prepared a written description before advertising or\ninterviewing applicants for the job, this description shall be considered\nevidence of the essential functions of the job.” 42 U.S.C. § 12111(8).\n In this case, the parties agree that the question of whether Nall was a\nqualified employee is directly related to the question of whether BNSF is\nentitled to a “direct threat” defense. 4 An employer is entitled to a direct threat\ndefense if an employee poses a “significant risk to the health or safety of others\nthat cannot be eliminated by reasonable accommodation.” EEOC v. E.I. Du\n\n\n\n 4 While the “direct threat” defense controls our analysis of Nall’s ADA claims, the\nTCHRA does not contain analogous statutory language, we have not found any Texas case\nlaw discussing the issue, and the parties did not brief it. Accordingly, the district court will\nneed to address this issue on remand.\n 8\n\n Case: 17-20113 Document: 00514836721 Page: 9 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nPont de Nemours & Co., 480 F.3d 724, 731 (5th Cir. 2007) (quoting 42 U.S.C.\n§ 12111(3)); see also 42 U.S.C. § 12113(b). Whether an employer has properly\ndetermined that a person poses a direct threat depends on “the objective\nreasonableness of [the employer’s] actions.” Bragdon v. Abbott, 524 U.S. 624,\n650 (1998) (“[C]ourts should assess the objective reasonableness of the views\nof health care professionals without deferring to their individual\njudgments[.]”). “The direct threat defense must be ‘based on a reasonable\nmedical judgment that relies on the most current medical knowledge and/or\nthe best available objective evidence,’ and upon an expressly ‘individualized\nassessment of the individual’s present ability to safely perform the essential\nfunctions of the job[.]’” Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 86 (2002)\n(quoting 29 C.F.R. § 1630.2(r)); see also E.I. Du Pont, 480 F.3d at 731 (“The\nemployer must make an ‘individualized assessment of the individual’s present\nability to safely perform the essential function of the job.’” (citations omitted)).\n Nall’s arguments focus on the standard articulated in Echazabal: he\ncontends that BNSF did not consider the best available objective evidence or\nconduct a meaningful individualized assessment because it, inter alia,\ndisqualified him “with no medical basis/analysis,” “kept making him jump\nthrough hoops,” and “search[ed] for reasons to prevent [him] from returning to\nwork.” Thus, the question here is whether a genuine issue of material fact\nexists as to whether BNSF’s direct threat determination was properly made\nunder that standard. 5\n\n\n\n 5 We do not reach the question of which party bears the burden of proof regarding the\ndirect threat defense. BNSF argues that because the direct threat defense is related to the\nsecond element of Nall’s prima facie case, Nall should have the burden to prove that he could\nsafely do his job. In Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209 (5th Cir.\n2000) (en banc), we declined to reach the question of which party bears the burden of\nestablishing that an individual’s disability poses a direct health or safety threat to the\ndisabled employee or others. Id. at 213 & n.4. We do so again here. Even assuming arguendo\nthat the burden is Nall’s, at this stage, he has satisfied it.\n 9\n\n Case: 17-20113 Document: 00514836721 Page: 10 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\n Nall states in his complaint that he worked as a trainman, performing\nthe duties of a conductor, switchman, and brakeman. According to BNSF, the\nduties of a conductor include maneuvering on, off, and around railcars, riding\non railcars with four points of contact, hand signaling, connecting and\ndisconnecting hoses and railcars, and “throwing” switches. Moreover, the\nduties of a switchman include substantially similar tasks, along with the\nability “to make quick hand and leg movements” and “maintain[ ] good balance\nand steadiness of stance/gait.”\n In support of his argument that BNSF did not engage in a proper direct\nthreat analysis, Nall points to a BNSF medical status form provided to Nall\nand his doctor before the list of switchman duties that includes a more limited\nset of trainman duties and does not mention quick movements or balance. The\nmedical status form lists the following: operating track switches and derails,\nusing hand brakes, monitoring track conditions and traffic, inspecting railcars\nand equipment, communicating signals affecting the movement of trains, and\ncontrolling the speed and clearance distance of railcars. After Nall’s\nneurologist recommended a release to full duty for Nall based on this medical\nstatus form back in 2010, shortly after Nall had been diagnosed, a BNSF doctor\nprovided Nall’s doctor with a new list that she said “addresses the duties for\nwhich Parkinson’s symptoms may be of issue.” In addition, Nall cites to the\ntestimony of BNSF’s terminal manager for the yard where Nall worked. The\nmanager testified that it is not essential to work quickly as a conductor,\nswitchman, or brakeman.\n A reasonable jury could conclude that BNSF did not consider the “best\navailable objective evidence” or meaningfully engage in an “individualized\nassessment” of whether Nall could perform the essential duties of a trainman\nsafely—and that, as a result, BNSF’s direct threat determination was not\nobjectively reasonable. First is the issue of identifying those essential duties.\n 10\n\n Case: 17-20113 Document: 00514836721 Page: 11 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nThe district court acknowledged that the job descriptions provided to the court,\nspecifically the original medical status form and the more specific list of\nswitchman duties, contain differences. But the court concluded that these\ndifferences do not affect the question of whether Nall was qualified because\n“the record demonstrated that BNSF repeatedly stated that it deemed\nperforming job tasks safely as essential to Nall’s position” and this was also\nreflected in the original medical status form job description. The question\nremains, however, what the job tasks were that Nall could allegedly not\nperform safely.\n For our analysis, we take guidance from the ADA’s definition of a\n“qualified individual” and consider the list of trainman duties BNSF originally\nprovided to Nall on the medical status form that they gave to his doctor. See\n42 U.S.C. § 12111(8) (stating that a written job description shall be considered\nif it was prepared “before advertising or interviewing applicants for the job”).\nThis list did not include any reference to quick movements, balance, or\nsteadiness. Moreover, BNSF’s terminal manager testified that it was not\nessential to work quickly as a conductor, switchman, or brakeman. Cf. Holly\nv. Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007) (“[W]hen\nconsidering the employer’s judgment regarding what is an essential function,\nwe have previously considered not only the company’s ‘official position,’ but\nalso testimony from the plaintiff’s supervisor.”). Taking the evidence in the\nlight most favorable to Nall, the trainman duties listed on the medical status\nform are the ones we consider. Next, we address the question of whether\nBNSF’s determination that Nall could not safely perform these tasks was\nobjectively reasonable.\n As the Supreme Court and this court have made clear, an employer’s\ndirect threat determination must result from an “individualized assessment”\nof the particular employee based on the “best available objective evidence,” not\n 11\n\n Case: 17-20113 Document: 00514836721 Page: 12 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\na categorical conclusion that an employee with a particular disability cannot\nsafely perform a job. See Echazabal, 536 U.S. at 86; Kapche, 304 F.3d at 499\n(“[T]he City’s failure to assess [the employee’s] abilities on an individual\nbasis . . . stat[ed] a claim of a present and continuing violation of the ADA.”).\nThus, the question on appeal is not whether it was reasonable for BNSF to\nconclude that an employee with Parkinson’s could pose a direct threat; the\nquestion is whether BNSF reasonably concluded that Nall posed a direct\nthreat via an individualized assessment that relied on the best available\nobjective evidence and was not, as Nall alleges, manipulated midstream to\nachieve BNSF’s desired result of disqualifying him. More precisely, the\nquestion is whether there is any evidence in the record that creates a genuine\nissue of material fact as to whether BNSF meaningfully assessed Nall’s ability\nto perform his job safely and reasonably concluded that he posed a direct\nthreat. 6\n On this question, taking into consideration the reports by Nall’s\ndoctors—all of whom concluded that Nall could safely perform the tasks of a\ntrainman listed on the medical status form that BNSF originally provided to\nNall—the fact that Nall successfully completed each of the tasks presented to\nhim during his first field test, and the comments made by BNSF employees\nthat Nall was “never coming back to work” and that “people with Parkinson’s\ndon’t get better,” there is a genuine dispute. See E.I. Du Pont, 480 F.3d at 728,\n\n\n\n 6 The dissent from our original opinion, as well as the petition for rehearing en banc\nand two amicus curiae submissions in support of it, expressed concern that the panel majority\nhad imposed a new requirement for assertion of the direct-threat defense, to-wit: that in\naddition to showing that the employment decision was objectively reasonable, the employer\nmust also establish that the process itself that was utilized in reaching that decision,\nconsidered separately, was objectively reasonable. Without commenting further on the\nefficacy of such an approach or on whether the panel majority actually adopted it, we\nemphasize that nothing in this substitute opinion should be understood as employing that\nreasoning.\n 12\n\n Case: 17-20113 Document: 00514836721 Page: 13 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\n731 (holding that judgment as a matter of law on direct threat defense was\ninappropriate where employee presented evidence she could safely perform\nessential job function but employer relied on disputed field test); Riel v. Elec.\nData Sys. Corp., 99 F.3d 678, 680–81, 683 (5th Cir. 1996) (reversing summary\njudgment where employer terminated employee for inability to perform\nessential function not included on lists of essential functions provided to\nemployee and his doctor, and employee introduced evidence that the function\nwas not essential).\n The district court held that BNSF was entitled to disregard Dr.\nJankovic’s medical releases because they “were based on a limited set of\nobservations and ‘incomplete set of facts.’” Hickman v. Exxon Mobile, 2012 WL\n9100358, at 9 (S.D. Tex. Sept. 27, 2012). Even if it is true that BNSF could\nchoose to credit the opinions of its own doctors over Nall’s, the evidence\nidentified by Nall puts into question the objective reasonableness of those\nopinions.\n The district court supported its decision with citations to our\nunpublished opinion in Hickman v. Exxon Mobil, 540 F. App’x 277 (5th Cir.\n2013). In that case, the plaintiff, Hickman, argued that her employer, Exxon,\nfailed to conduct an adequate individualized assessment of her abilities to\nperform her job in support of a direct threat defense because it discounted the\nopinion of her doctor. See Hickman, 2012 WL 9100358, at 9. The district\ncourt disagreed. Id. It characterized that doctor’s decision as a “last-minute\nwork release” and noted that two of Hickman’s previous neurologists had\nplaced work restrictions on her; that she had worked with two neurologists\nbefore she found one who would release her to return to work with only a\ndriving restriction; and that the doctor who released her orally agreed with\nExxon’s doctor that his concerns regarding Hickman returning to work were\nlegitimate. Id. In a short, unpublished opinion that did not discuss the\n 13\n\n Case: 17-20113 Document: 00514836721 Page: 14 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\ndiffering views of these doctors, we affirmed. See Hickman, 540 F. App’x at\n277. This is a completely different case. And, in any event, we are not bound\nby Hickman.\n Here, Nall provided medical reports from numerous doctors concluding\nthat he could perform his job duties safely. This includes a report from a\nneurologist who said that Nall’s “station and gait were not too abnormal”; a\nreport from an occupational therapist who found that Nall “appeared to be able\nto meet the demands for various positions working for BNSF” and that he could\nperform balance tasks safely; a memo from Baylor College of Medicine\nneurologist Dr. Jankovic that he had reviewed BNSF’s photographs of Nall’s\njob duties and concluded that he was able to perform his job duties safely; a\nmedical status form completed by Dr. Jankovic stating that Nall was able to\nreturn to work without any restrictions; and a medical status form completed\nby a different doctor stating that Nall was able to return to work without any\nrestrictions. 7\n In addition, and importantly, Nall successfully completed each of the\ntasks required of him during his first field test. BNSF nonetheless did not\nreinstate Nall because he committed “[s]everal safety exceptions” during the\nevaluation, including making the “deadly decision” of going between moving\n\n\n\n 7 With respect to timing, Nall argues on appeal that BNSF took adverse actions in:\n(1) April 2012, when BNSF placed him on medical leave; (2) September 2012, when BNSF\ninformed Nall that he could not return to work; (3) December 2012 through January 2013,\nwhen BNSF again said Nall could not return to work; and (4) June through July 2013, when\nBNSF permanently medically disqualified him. At the district court, however, Nall argued\nthat he was subjected to an adverse employment decision only on the last two of these four\ndates: December 2012 and June 2013, when Nall submitted information that he was able to\nreturn to work without restriction and BNSF still denied his requests. All of the doctor\nevaluations listed above were provided to BNSF before December 2012, with the exception of\nthe second medical status form, which was sent to BNSF on December 20, 2012. Moreover,\nbecause he did not present argument regarding the first two actions to the district court, Nall\nhas forfeited the argument that he was also subject to adverse actions in April and September\n2012. See Mix, 791 F.3d at 611.\n 14\n\n Case: 17-20113 Document: 00514836721 Page: 15 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\ncars, failing to give proper hand signals, and demonstrating unsafe behavior\nwhile dismounting equipment. Later, BNSF also claimed that Nall made a\nsecond “deadly decision”—“fouling” the track, which involves walking on a\npart of the track that puts you at risk of being hit. Nall, however, disputes\neach of these allegations. With respect to the “deadly decisions,” Nall testified\nthat the cars were not moving when he started walking between them, and\nthat he was asked to do something during the test that required him to “foul”\nthe track. He also testified that he used a radio during the evaluation, not\nhand signals, and did not agree that he dismounted the railcar in a way that\nwas unsafe.\n Finally, Nall provided evidence that BNSF employees made comments\nthat cast doubt on the propriety of BNSF’s evaluation process, and, as a result,\nthe credibility of its decision to disqualify him. Nall testified in his deposition\nthat BNSF’s field medical manager told him he was “never coming back to\nwork” and that the company was only asking Nall for updated medical\npaperwork to “be nice.” In addition, two BNSF employees—a doctor and the\nmanager of clinical services—allegedly told Nall’s wife that “people with\nParkinson’s don’t get better.”\n Viewing the evidence in the light most favorable to Nall, as we must,\nthere is a genuine dispute as to the objective reasonableness of BNSF’s\nactions. 8 See, e.g., Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1091–92\n(10th Cir. 2008) (holding that a triable issue of material fact existed as to\nwhether the employee actually posed a direct threat to workplace safety where\nthere was a question on whether a physical therapist’s opinion could be\n\n\n 8 We emphasize that a correct conclusion is not required to satisfy the objective\nreasonableness standard. What is required, however, is that BNSF consider the best\navailable objective evidence, not categorically assume that Parkinson’s will disqualify an\nemployee, and not change the disqualification criteria in the middle of the evaluation to\ndictate that outcome.\n 15\n\n Case: 17-20113 Document: 00514836721 Page: 16 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nconsidered objective, evidence indicating that the employee’s restrictions may\nnot have limited his ability to perform safely in his environment, and evidence\nthat his employer’s application of various medical judgments to the workplace\nwas unreasonable); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1030 (9th\nCir. 2003) (holding that medical opinion letters from the employee’s doctors,\ntogether with the employee’s own declaration, raised a material fact issue as\nto the objective reasonableness of the employer’s opinion); Lowe v. Ala. Power\nCo., 244 F.3d 1305, 1309 (11th Cir. 2001) (holding that questions of fact\nremained as to what the essential functions of the employee’s position are, and\nwhether, assuming the disputed function was included, the employee was\nqualified to perform such work).\n The evidence that Nall presented—that BNSF employees (1) disregarded\nNall’s medical release forms; (2) relied on safety violations they later identified\nin Nall’s field test despite his successful completion of the assigned tasks;\n(3) changed the trainman job description to incorporate tasks that an\nindividual with Parkinson’s may have difficulty performing; and (4) made\ncomments indicating a belief that Parkinson’s categorically disqualified an\nindividual from working as a trainman—calls into question the credibility of\nBNSF’s decision to disqualify him. Taken together, this evidence creates a\nmaterial fact issue on the question of whether BNSF considered the best\navailable objective evidence and meaningfully engaged in an individualized\nassessment of Nall. Specifically, it raises a fact dispute as to whether BNSF\nrequested particular objective evidence of Nall’s ability to perform his job, only\nto intentionally disregard that evidence when it indicated that Nall was\nqualified and instead request new evidence on which to base its direct threat\ndetermination.\n As discussed more fully in our pretext analysis below, it is well-accepted\nin employment law—and the law more generally—that inconsistent\n 16\n\n Case: 17-20113 Document: 00514836721 Page: 17 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nexplanations and changing requirements undermine a party’s credibility. See\nCleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193–94 (11th Cir.\n2004) (holding that “shifting reasons allow the jury to question [the employer’s]\ncredibility” and once his “credibility is damaged, the jury could infer that he\ndid not fire [the employee] because of the [proffered reason], but rather because\nof her disability”); Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d\n573, 579 (7th Cir. 2003) (“One can reasonably infer pretext from an employer’s\nshifting or inconsistent explanations for the challenged employment\ndecision.”); cf. United States v. Hale, 422 U.S. 171, 177 (1975) (“A basic rule of\nevidence provides that prior inconsistent statements may be used to impeach\nthe credibility of a witness.”). And when an employer’s credibility is\nundermined, it casts doubt on the reasonableness of that employer’s decisions.\nThus, although there is no requirement under the ADA for the employer to\nfollow certain procedures in making a “direct threat” assessment, the language\nin Echazabal and the related EEOC regulation establishes that intentional\ndisregard for the best available objective evidence, in whatever form it takes,\nundermines an employer’s credibility and renders its direct threat conclusion\nobjectively unreasonable. See Echazabal, 536 U.S. at 86 (“The direct threat\ndefense must be ‘based on a reasonable medical judgment that relies on . . . the\nbest available objective evidence[.]’”); 29 C.F.R. § 1630.2(r). In this instance,\nBNSF’s intentional disregard for the best available objective evidence took the\nform of moving the goalposts during Nall’s evaluation in order to produce\nBNSF’s desired outcome of disqualifying him. As a result, for summary-\njudgment purposes, Nall has established his prima facie case, and we move to\nthe next steps of the McDonnell Douglas analysis—asking whether BNSF has\narticulated a legitimate, non-discriminatory reason for placing Nall on medical\n\n\n\n\n 17\n\n Case: 17-20113 Document: 00514836721 Page: 18 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nleave and, if so, whether Nall has shown that the articulated reason is\npretextual. 9\n 2. Legitimate, non-discriminatory reason and pretext\n “At summary judgment, evidence demonstrating that the employer’s\nexplanation is false or unworthy of credence, taken together with the plaintiff’s\nprima facie case, is likely to support an inference of discrimination even\nwithout further evidence of defendant’s true motive.” Diggs v. Burlington N.\n& Santa Fe Ry. Co., 742 F. App’x 1, 4 (5th Cir. 2018) (quoting LHC Grp., 773\nF.3d at 702). The district court held that the safety concerns emphasized by\nBNSF constituted a legitimate, non-discriminatory reason for BNSF to place\nNall on medical leave. As we have discussed, however, viewing the evidence\nin the light most favorable to Nall, BNSF’s safety concerns were not tied to\nNall’s ability to perform the tasks required of his job. He could perform those\ntasks. Instead, BNSF’s concerns were tied to his physical impairment—his\nParkinson’s symptoms.\n Notably, the job requirements that were added by BNSF to those of a\ntrainman reflect abilities directly impacted by Parkinson’s disease, such as the\n\n\n\n 9 The district court also concluded that BNSF was entitled to a “business necessity”\ndefense. The “direct threat” defense and the “business necessity” defense “require different\ntypes of proof.” EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000). “Direct threat\nfocuses on the individual employee, examining the specific risk posed by the employee’s\ndisability. In contrast, business necessity addresses whether the qualification standard can\nbe justified as an across-the-board requirement.” Id. (citation omitted). The district court\nseemed to consider the qualification standard here to be a requirement that Nall could do his\njob safely. Thus, its analysis regarding the defense mirrored its direct threat analysis.\nSimilarly, BNSF summarily states that the district court’s separate rejection of Nall’s attack\non BNSF’s business necessity defense was correct “[f]or the same reasons” given in support\nof its direct threat defense. Accepting the relevant qualification as the ability to do his job\nsafely, we conclude that Nall has also established a fact issue regarding BNSF’s entitlement\nto the business necessity defense under the ADA.\n As with the direct threat defense, however, the district court did not address the\napplicability of the business necessity defense under the TCHRA, and the parties did not\nbrief it. The district court will need to consider this on remand.\n 18\n\n Case: 17-20113 Document: 00514836721 Page: 19 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nability “to make quick hand and leg movements” and “maintain[ ] good balance\nand steadiness of stance/gait.” This casts doubt on the legitimacy of BNSF’s\nconcerns. See Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (“An\nemployer’s inconsistent explanations for an employment decision ‘cast doubt’\non the truthfulness of those explanations.”); see also Rizzo v. Children’s World\nLearning Ctrs., Inc., 213 F.3d 209, 221 (5th Cir. 2000) (en banc) (Jones, J., and", "author": "JENNIFER WALKER ELROD, Circuit Judge:"}, {"type": "dissent", "author": "Smith", "text": "Smith, J., dissenting) (“[W]e may have special cause for suspicion when an\nemployer justifies discrimination not on the relatively concrete and more\nreadily measurable basis of ability to perform a particular essential job\nfunction safely, but because of a proffered generalized concern about health\nand safety.”).\n Additional evidence that suggests that BNSF’s explanation is false or\nunworthy of credence includes the reports by Nall’s doctors, who concluded\nthat Nall could safely return to work, the “never coming back to work” and\nParkinson’s-related statements made by BNSF employees, and the fact that\nBNSF continued to move the goalposts—to make requests of Nall, even as he\ncompleted the previous ones. Cf. Diggs, 742 F. App’x at 5 (holding that there\nwas no fact issue regarding pretext when an employee failed to timely submit\ninformation requested by his employer, BNSF, and there was “no evidence that\nthe company would create new information demands after [the employee]\ncomplied with previous ones”).\n As a result, even assuming that BNSF’s alleged safety concerns were\nlegitimate and non-discriminatory, the totality of the circumstances creates a\nmaterial fact issue as to whether BNSF’s proffered reasons for refusing to\nreinstate Nall were merely pretextual—that is, that the real reason for BNSF’s\nadverse employment action was Nall’s disability. Accordingly, on Nall’s\ndisability discrimination claims, we reverse the district court’s judgment. Of\ncourse, this holding does not mean that Nall will prevail at trial or that safety\n 19\n\n Case: 17-20113 Document: 00514836721 Page: 20 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nwas not the real reason for BNSF’s decision. It means only that Nall produced\nenough evidence to survive summary judgment.\n IV.\n “To show an unlawful retaliation, a plaintiff must establish a prima facie\ncase of (1) engagement in an activity protected by the ADA, (2) an adverse\nemployment action, and (3) a causal connection between the protected act and\nthe adverse action. Once the plaintiff has established a prima facie case, the\ndefendant must come forward with a legitimate, non-discriminatory reason for\nthe adverse employment action. If such a reason is advanced, the plaintiff\nmust adduce sufficient evidence that the proffered reason is a pretext for\nretaliation. Ultimately, the employee must show that ‘but for’ the protected\nactivity, the adverse employment action would not have occurred.” Seaman v.\nCSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (footnotes omitted); see also Feist\nv. La. Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013).\n Here, Nall claims that the “causal link” element of his prima facie case\nis the only element in dispute. “A ‘causal link’ is established when the evidence\ndemonstrates that ‘the employer’s decision to terminate was based in part on\nknowledge of the employee’s protected activity.’” Medina v. Ramsey Steel Co.,\n238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. Am. Airlines, Inc., 132\nF.3d 1112, 1122 (5th Cir. 1998)).\n Nall satisfies the first element of his retaliation claim by pointing to his\ndecision to file a complaint with the EEOC in December 2012. For the second\nelement, Nall notes that “BNSF consistently refused to reinstate him after that\ndate, including only three weeks later on January 8, 2013.” As to the third\nelement, Nall argues that Dr. Gillis and Dickey were aware of Nall’s EEOC\ncomplaint because they admit that they provided information to the EEOC\nthrough another BNSF employee. Nall argues that there is a fact issue on this\nelement because of how burdensome BNSF made the process for Nall to be\n 20\n\n Case: 17-20113 Document: 00514836721 Page: 21 Date Filed: 02/15/2019\n\n\n\n No. 17-20113\nconsidered “qualified” and misrepresentations BNSF made to the EEOC,\nincluding the fact that BNSF said it had not received additional information\nfrom Nall during a certain time period when it had.\n Nall does not provide evidence creating a genuine issue of material fact\non the “causal link” element of his retaliation claim. Although Nall sets forth\nsome evidence to show that Dr. Gillis and Dickey, individuals involved in the\ndecision-making process regarding Nall, eventually learned that Nall had filed\na claim with the EEOC, he does not cite to any evidence that demonstrates\nthat the subsequent decisions to keep him on leave were at all based on this\nknowledge. Without evidence of a causal link between the filing of his EEOC\nclaim and his continued placement on medical leave, Nall is unable to establish\na prima facie case of an unlawful retaliation and his retaliation claims\nnecessarily fail.\n V.\n For the above reasons, we REVERSE the grant of summary judgment as\nto Nall’s disability discrimination claims and AFFIRM the judgment as to the\nremaining claims. This case is REMANDED for further proceedings consistent\nwith this opinion.\n\n\n\n\n 21\n\n Case: 17-20113 Document: 00514836721 Page: 22 Date Filed: 02/15/2019\n\n\n\n No. 17-20113"}, {"author": "GREGG COSTA, Circuit Judge, specially concurring", "type": "concurrence", "text": "GREGG COSTA, Circuit Judge, specially concurring:\n The question that divides the panel—whether the railroad had good\nreason to believe Nall posed a safety risk—should be the only issue in this case.\nThere is no doubt the railroad fired Nall because of those alleged safety\nconcerns and that those concerns resulted from Nall’s Parkinson’s. So that\ndisability is the reason Nall was fired. See Cannon v. Jacob Field Servs. N.\nAmerica, Inc., 813 F.3d 586, 594 (5th Cir. 2016) (finding causation “easily\nresolve[d]” when a company revoked a job offer because of concerns that the\napplicant’s shoulder injury would prevent him from climbing a ladder).\n We might be uncomfortable with so readily calling the railroad’s action\n“discrimination.” Today that word is usually equated with something\ninvidious. 1 That is for understandable, indeed laudable, reasons given our\nhistory of pernicious, pervasive, and persistent prejudice against members of\ncertain groups. But the reality is that employers lawfully discriminate all the\ntime in making hiring and promotion decisions. Employers discriminate based\non employees’ education, work experience, intelligence, and work ethic to name\na few common examples. So the question often is not whether discrimination\nis occurring, but whether it is the type of discrimination that society, through\nits laws, has condemned.\n\n\n\n\n 1 That instinct led an employer to recently argue in the Sixth Circuit that an ADA\nplaintiff had to show animus. E.E.O.C. v. Dolgencorp, LLC, 899 F.3d 428, 436 (6th Cir. 2018).\nIn rejecting that challenge to a verdict, Judge Sutton explained that:\n the Act speaks in terms of causation, not animus. An employer violates the Act\n whenever it discharges an employee ‘on the basis of disability’ (a necessary\n requirement for liability), not only when it harbors ill will (a sufficient way of\n establishing liability). Imagine a company that fired a visually impaired employee to\n save itself the minimal expense of buying special software for her. Without more, that\n would constitute termination ‘on the basis of disability,’ even if all of the evidence\n showed that cost-savings, not animus towards the blind, motivated the company.\nId. at 436 (internal citations omitted).\n 22\n\n Case: 17-20113 Document: 00514836721 Page: 23 Date Filed: 02/15/2019\n\n\n No. 17-20113\n\n The Americans with Disabilities Act was a long overdue recognition that\ndiscrimination against the disabled belongs in the unlawful category. That\ndiscrimination is unjust to the disabled and deprives the economy of\nindividuals who usually can fully and effectively perform their jobs. But\nCongress decided that not all disability discrimination should be unlawful.\nBecause some disabilities may prevent some people from performing some jobs\nsafely, the ADA provides a defense if the disabled employee will pose a safety\nthreat to himself or others. 42 U.S.C. § 12112(b)(6), 12113(b); see also 42\nU.S.C. § 12111(8) (defining a “qualified individual” under the ADA as a person\n“who, with or without reasonable accommodation, can perform the essential\nfunctions of the employment position”). This “direct threat” defense draws a\nline not between discrimination and its absence, but between unlawful and\nlawful discrimination.\n For cases like this one that turn on whether the disability renders the\nemployee a safety risk (or the sometimes related statutory question whether\nthe employee is unable to perform the essential functions of the job), there thus\nshould not be a dispute about discriminatory intent. An employer cannot have\nit both ways by arguing that the termination was justified because the\ndisability was dangerous while also maintaining that the safety-threatening\ndisability was not the reason for the firing. When a concern about the\ndisability’s negative impact on workplace safety is the reason for the adverse\naction, the “causation” element of an ADA discrimination claim should be\nstraightforward. See Cannon, 813 F.3d at 594; Rizzo v. Children’s World\nLearning Centers, Inc., 84 F.3d 758, 762 (5th Cir. 1996); E.E.O.C. v.\nDolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018); McMillan v. City of New\nYork, 711 F.3d 120, 129 (2d Cir. 2013).\n\n\n\n\n 23\n\n Case: 17-20113 Document: 00514836721 Page: 24 Date Filed: 02/15/2019\n\n\n No. 17-20113\n\n Yet courts and employment lawyers are conditioned to thinking of\ncausation as the difficult element to prove in discrimination cases; it often is\nthe contested one in Title VII disparate treatment cases alleging race or sex\ndiscrimination. And when causation is disputed, courts and lawyers\nreflexively apply the burden shifting framework of McDonnell Douglas Corp.\nv. Green, 411 U.S. 792 (1973).\n McDonnell Douglas is the “kudzu” of employment law. Cf. Zadeh v.\nRobinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring) (describing\nthe “kudzu-like creep” of qualified immunity law). More than 57,000 court\nopinions have cited it. That’s more than 3 cases a day (including weekends and\nholidays!) since the opinion was issued 45 years ago. Although courts keep\ntrying to trim back its invasion of those parts of employment law where it does\nnot belong—pleading standards, 2 jury instructions, 3 or appellate review of jury\nverdicts, 4 for example—its dominance continues. 5 As the judge-created\ndoctrine has been widely criticized for its inefficiency and unfairness even in\nthe space it is supposed to occupy 6—a tool for evaluating the sufficiency of\ncircumstantial evidence—we should not expand it beyond those bounds. 7\n\n\n 2 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (reversing a district court’s\nrequirement that plaintiffs plead facts sufficient to raise an inference of discrimination under\nMcDonnell Douglas).\n 3 Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (explaining that a\n\njury should not be instructed using the McDonnell Douglas standard).\n 4 Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 993 (5th Cir. 2008) (noting that\n\nin an appeal from a jury verdict, the appellate court’s focus is on whether the record supports\nthe jury’s finding of discrimination, “not on the plaintiff’s prima facie case or the McDonnell\nDouglas framework”).\n 5 See generally Sandra F. Sperino, MCDONNELL DOUGLAS: THE MOST IMPORTANT\n\nCASE IN EMPLOYMENT DISCRIMINATION LAW (2018).\n 6 See Coleman v. Donahoe, 667 F.3d 835, 862–63 (7th Cir. 2012) (Wood, J., concurring);\n\nBrady v. Office of Sergeant at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008) (Kavanaugh, J.);\nD. Brock Hornby, Over Ruled, 21 GREEN BAG 2d 17, 22–26 (2017) (collecting extensive\njudicial and academic criticism of McDonnell Douglas); Sperino, supra note 6, at 317–27.\n 7 McDonnell Douglas created the three-part framework to evaluate the evidence for a\n\nbench trial, see Hornby, 21 GREEN BAG 2d. at 22–23 (citing 411 U.S. at 802), as the original\n\n 24\n\n Case: 17-20113 Document: 00514836721 Page: 25 Date Filed: 02/15/2019\n\n\n No. 17-20113\n\n I fear that is what is happening with the use of McDonnell Douglas to\nprove discrimination in Nall’s case. To be sure, Nall also tried to prove\ndiscrimination with direct evidence. But in doing so, he relied on the comments\nof certain supervisors, which itself requires recourse to another complicated\nmultipart test. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996).\n There is a simpler and more convincing direct evidence route. To use a\nmodern phrase, the firing “is what it is”: the railroad has all along\nacknowledged that it fired Nall because of concerns about his Parkinson’s.\nThat’s discrimination on the basis of a disability. See Rizzo, 84 F.3d at 762\n(explaining that the court did not need to “engage in the McDonnell Douglas\npresumptions in order to infer discrimination” because the employer did “not\ndeny that [the employee] was removed from driving duties because of her\nhearing impairment”); cf. Dolgencorp, LLC, 899 F.3d at 435 (explaining that\nan employer’s neutral justification does not come into play when there is direct\nevidence of disability discrimination). So, like many ADA cases, the hard issue\nin this one is not whether there was discrimination but whether that\ndiscrimination was justified.\n\n\n\n\nTitle VII did not grant a jury right (the 1991 Civil Rights Act added one, see 42 U.S.C.\n§ 1981a(c)). See generally Beesley v. Hartford Fire Ins. Co., 717 F. Supp. 781, 782 (N.D. Ala.\n1989) (explaining that after Title VII’s passage, judges in the South denied jury requests for\nfear that juries would ignore the Civil Rights Act’s mandate); Vincenza G. Aversano, et al.,\nJury Trial Right Under Title VII: The Need for Judicial Reinterpretation, 6 CARDOZO L. REV.\n613, 632–37 (1985) (suggesting that the drafters of Title VII omitted a jury right for fear that\njuries in the South would not give black plaintiffs a fair hearing). The Supreme Court has\nsince endorsed its use in evaluating circumstantial evidence at the summary judgment stage\nto decide whether a case gets to the jury. See, e.g., Young v. United Parcel Serv., Inc., 135 S.\nCt. 1338, 1355 (2015). At the same time, it has repeatedly admonished that the test was\n“‘never intended to be rigid, mechanized, or ritualistic.’” Swierkiewicz, 534 U.S. at 512 (2002)\n(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); St. Mary's Honor Ctr. v.\nHicks, 509 U.S. 502, 519, (1993) (quoting same); U.S. Postal Serv. Bd. Of Governors v. Aikens,\n460 U.S. 711, 715 (1983) (quoting same).\n\n 25\n\n Case: 17-20113 Document: 00514836721 Page: 26 Date Filed: 02/15/2019\n\n\n No. 17-20113\n\n This case should be an example of why McDonnell Douglas is not the be-\nall and end-all of proving discrimination. There are other ways, including that\nthe discrimination is obvious.\n\n\n\n\n 26\n\n Case: 17-20113 Document: 00514836721 Page: 27 Date Filed: 02/15/2019\n\n\n No. 17-20113", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368555/", "author_raw": "GREGG COSTA, Circuit Judge, specially concurring"}, {"author": "JAMES C. HO, Circuit Judge, dissenting", "type": "dissent", "text": "JAMES C. HO, Circuit Judge, dissenting:\n I applaud the panel majority for withdrawing its earlier opinion in this\nmatter (912 F.3d 263), for the reasons stated in footnote 6 of its revised opinion.\nAlthough I would still affirm the district court for the case-specific evidentiary\nreasons specified in my original dissent (but which are not independently\nworthy of en banc review) (see id. at 279–83), the panel majority has now wisely\nobviated the need for en banc rehearing in this case, by removing the process-\nbased theory of liability that animated its earlier opinion. There is no basis for\nsuch a legal theory under the ADA, for reasons that need not be repeated\nhere—but are well articulated in the petition for en banc rehearing and the\npersuasive amicus briefs filed by the Association of American Railroads, the\nCenter for Workplace Compliance, and the National Federation of Independent\nBusiness (see also id. at 283–84).\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368555/", "author_raw": "JAMES C. HO, Circuit Judge, dissenting"}]}	JAMES	ELROD	COSTA	1	{}	6	3	1	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4591302/	Published	1	1	1	2,019	2	[ { "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...
4,591,405	XITRONIX CORPORATION, Plaintiff-Appellant v. KLA-TENCOR CORPORATION, Doing Business as KLA-Tencor, Incorporated, a Delaware Corporation, Defendant-Appellee	Xitronix Corporation v. KLA-Tencor Corporation	2019-02-15	18-50114	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Jolly, Dennis, Higginson", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 18-50114 Document: 00514838084 Page: 1 Date Filed: 02/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50114 FILED\n February 15, 2019\n Lyle W. Cayce\nXITRONIX CORPORATION, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nKLA-TENCOR CORPORATION, doing business as KLA-Tencor,\nIncorporated, a Delaware Corporation,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n The substantive issue in this appeal is whether a jury should hear\nXitronix Corporation’s claim that KLA-Tencor Corporation violated the\nSherman Act’s prohibition of monopolies by obtaining a patent through a fraud\non the U.S. Patent and Trademark Office (“PTO”). What must first be decided,\nhowever, is whether we can reach that issue despite the Federal Circuit’s\nexclusive jurisdiction over cases arising under federal patent law. That court\ntransferred this case to us, but we find it implausible that we are the proper\ncourt to decide this appeal. With respect, therefore, we transfer it to the U.S.\nCourt of Appeals for the Federal Circuit.\n\f Case: 18-50114 Document: 00514838084 Page: 2 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n I\n This is the third round of litigation between Plaintiff–Appellant Xitronix\nCorporation and Defendant–Appellee KLA-Tencor Corporation (“KLA”),\ncompetitors in the “semiconductor wafer optical inspection market.” Optical\ninspection technology is used for quality control in the production of\nsemiconductor wafers, which are essential components of circuits in computers\nand other electronic devices. We understand from the parties that an optical\ninspection device employs two lasers, a “pump” beam and a “probe” beam, in\ntandem. The pump beam heats the surface of a semiconductor sample. The\nprobe beam, in turn, detects changes in the semiconductor surface. The device\nconverts the changes detected by the probe beam into an electrical signal,\nwhich it then measures. The device can thereby precisely observe the\ncomposition of the semiconductor sample, helping manufacturers ensure that\ntheir processes are working as intended.\n A\n Litigation began in 2008 with Xitronix seeking a declaratory judgment\nagainst KLA. According to Xitronix, KLA was and is the dominant player in\nthe semiconductor optical inspection market, with approximately eighty-\npercent market share. KLA had examined the technology that Xitronix was\nthen bringing to market and amended a pending patent application to cover\nXitronix’s technology. This application resulted in the issuance of U.S. Patent\n7,362,441 (“the ’441 patent”). In this first lawsuit, Xitronix sought a declaration\nof non-infringement and of the ’441 patent’s invalidity.\n In November 2010, a jury entered a verdict in Xitronix’s favor. When the\ndistrict court entered final judgment in January 2011, it explained that the\ncentral issue at trial was the wavelength of the probe beam used by Xitronix.\nThe claims of the ’441 patent at issue in the case specified a wavelength\nbetween 335 and 410 nanometers (nm) and said that such wavelength “is\n 2\n\f Case: 18-50114 Document: 00514838084 Page: 3 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nselected to substantially maximize the strength of the output signals\ncorresponding to the modulated optical reflectivity response.” 1 The probe beam\nin Xitronix’s device was fixed at a wavelength of 373 nm, putting it and KLA’s\npatent squarely in conflict. The jury found that Xitronix’s technology infringed\none claim of KLA’s ’441 patent but that this claim was anticipated by prior art:\nthe “Therma-Probe” device and an earlier patent, the ’611 or “Alpern” patent.\nThe jury also found three other claims of KLA’s ’441 patent invalid due to\nobviousness. The district court ruled that ample evidence supported the jury’s\nfindings. It identified two additional pieces of prior art, Batista and\nMansanares: “[E]ach and every element of the asserted claims were present in\nthe combination of prior art Therma-Probe, Batista, Mansanares, and the ’611\n[Alpern] patent.” The district court also ruled one of the claims invalid as\nindefinite. KLA did not appeal the judgment in the ’441 litigation.\n In March 2011, Xitronix commenced the second suit, bringing business\ntort claims against KLA for publicly accusing Xitronix of patent infringement.\nThe district court, which remanded the case to Texas state court, later\nexplained that the state district court ruled in favor of KLA “for unspecified\nreasons.” Neither party advises that this second litigation has any bearing on\nthe present appeal.\n B\n The present case began in December 2014. Xitronix alleged a single\nWalker Process claim: monopolization through use of a patent obtained by\nfraud on the PTO. 2 The patent purportedly resulting from KLA’s fraud on the\n\n\n\n 1 U.S. Patent No. 7,362,441 (issued April 22, 2008).\n 2 Walker Process Equip., Inc. v. Food Machinery & Chem. Corp., 382 U.S. 172, 174\n(1965) (“[T]he enforcement of a patent procured by fraud on the Patent Office may be violative\nof § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present.”)\nA showing of fraud on the PTO requires “(1) a false representation or deliberate omission of\na fact material to patentability, (2) made with the intent to deceive the patent examiner, (3)\n 3\n\f Case: 18-50114 Document: 00514838084 Page: 4 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nPTO is U.S. Patent No. 8,817,260 (“the ’260 patent”). It is a continuation of an\nearlier patent, the ’486 patent, which was itself a continuation of the ’441\npatent at issue in the parties’ first litigation. KLA filed the application that\nyielded the ’260 patent in November 2009, U.S. Application No. 12/616,710, 3 a\nyear before the jury entered its verdict invalidating the ’441 patent. The\nlitigation of ’441 and the prosecution of ’260 unfolded in tandem. It is KLA’s\nrepresentations to the PTO concerning the ’441 litigation while conducting the\n’260 prosecution that are at issue here.\n In February 2010, KLA submitted an Informational Disclosure\nStatement (“IDS”) with sixty works potentially containing relevant prior art.\nThis IDS included the key sources on which the jury would invalidate the ’441\npatent later that year as well as summary judgment briefing from the\nlitigation. In August 2010, the PTO examiner, Layla Lauchman, initialed and\nsigned the IDS, thereby acknowledging these sources. On November 5, 2010,\nthe jury returned its verdict invalidating the ’441 patent. On November 18,\nMichael Stallman, KLA’s patent prosecution attorney, submitted the jury’s\nverdict in the ’441 litigation to the PTO and sought to explain its meaning. He\nacknowledged an Office Action of August 18 that rejected the claims in the ’260\napplication on the grounds of “non-statutory obviousness-type double\npatenting” in view of the ’441 patent. 4 This means that, as of 2010, the PTO\n\n\non which the examiner justifiably relied in granting the patent, and (4) but for which\nmisrepresentation or deliberate omission the patent would not have been granted.” C.R.\nBard, Inc. v. M3 Systems, Inc., 157 F.3d 1340, 1364 (Fed. Cir. 1998). “To establish the\nantitrust portion of a Walker Process allegation, a plaintiff must show that the defendant\nheld monopoly power in the relevant market and willfully acquired or maintained that power\nby anticompetitive means.” Delano Farms Co. v. Calif. Table Grape Comm’n, 655 F.3d 1337,\n1351 (Fed. Cir. 2011) (citing C.R. Bard, 157 F.3d at 1367–68).\n 3 For simplicity’s sake, we use “260” to identify this application.\n 4 Patent law guards against attempts to obtain multiple patents for the same\n\ninvention. To that end, the PTO issues “double patenting rejections” in two forms. One is a\n“statutory” rejection, which reflects a judgment that a patent holder is trying to patent the\nsame invention again. The other is a “non-statutory” rejection, which is “based on a judicially\n 4\n\f Case: 18-50114 Document: 00514838084 Page: 5 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nsaw claims in the ’260 application as obvious in light of claims later invalidated\nin the ’441 litigation. Stallman responded to this rejection by agreeing to a\n“terminal disclaimer” of the claims in the pending ’260 application. 5\n The district court entered final judgment in the ’441 litigation on\nJanuary 31, 2011. On February 2, Lauchman issued a Notice of Allowability\nas to the ’260 patent application predicated on the terminal disclaimer to which\nKLA had agreed. On February 10, Stallman filed another IDS, bringing the\nfinal judgment in the ’441 litigation and the district court’s accompanying\norder to the PTO’s attention. He submitted a Request for Continued\nExamination as well.\n The PTO did not act on the application again for two years, by which\ntime a new examiner, Willie Merrell, was handling it. His initials, dated July\n12, 2013, appear on the IDS from February 2011 containing the final judgment\nand related documents, suggesting he had seen and considered the references.\nIn an Office Action dated July 25, 2013, Merrell rejected much of the ’260\napplication. He did so without reference to the final judgment in the ’441\nlitigation, to the PTO’s prior non-statutory double patenting rejection, or to the\nmaterials on which the judgment in the ’441 litigation was based. Instead, he\nconducted a novel analysis based on other prior art further afield.\n\n\n\ncreated doctrine grounded in public policy and which is primarily intended to prevent\nprolongation of the patent term by prohibiting claims in a second patent not patentably\ndistinct from claims in a first patent.” Manual of Patent Examination Procedure § 804\n(emphasis added). “A rejection for obvious-type double patenting means that the claims of a\nlater patent application are deemed obvious from the claims of an earlier patent.” Quad\nEnvtl. Techs. Corp. v. Union Sanitary Dist., 946 F.2d 870, 873 (Fed. Cir. 1991).\n 5 A terminal disclaimer “relinquishes a terminal part of the time span of the patent\n\nright in the patent as a whole.” 1 Moy’s Walker on Patents § 3:68 (4th ed., 2017). “[A] terminal\ndisclaimer is a strong clue that a patent examiner and, by concession, the applicant, thought\nthe claims in the continuation lacked a patentable distinction over the parent.” SimpleAir,\nInc. v. Google LLC, 884 F.3d 1160, 1168 (Fed. Cir. 2018). That said, the Federal Circuit’s\ncases “foreclose the inference that filing a terminal disclaimer functions as an admission\nregarding the patentability of the resulting claims.” Id. at 1167.\n 5\n\f Case: 18-50114 Document: 00514838084 Page: 6 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n Despite this rejection, the ’260 patent did eventually issue. Xitronix’s\nclaims concern the actions by KLA making that possible. Stallman filed a\nresponse to Merrell in October 2013. The remarks in that filing are one basis\nfor the fraud element of Xitronix’s Walker Process claim. Merrell responded in\nJanuary 2014, standing by his previous rejection. Stallman responded in\nMarch 2014 with more remarks––another filing central to Xitronix’s Walker\nProcess claim. A Notice of Allowability soon issued, in which Merrell briefly\nexplained that KLA’s arguments “have been fully considered and are\npersuasive.” The ’260 patent issued in August 2014, and Xitronix’s Walker\nProcess suit followed that December.\n Xitronix alleged that KLA’s procurement of the ’260 patent impeded its\nability to finance its entrance into the market for optical inspection technology.\nAt summary judgment, the litigation focused on whether Xitronix had created\nissues of material fact as to two elements of fraud on the PTO: whether KLA\nhad made material misrepresentations or omissions to the PTO, and whether\nthose were a but-for cause of the ’260 patent’s issuance. The district court\nfound that Stallman’s remarks in his October 2013 and March 2014 filings\nwere confined to those pieces of prior art specifically addressed by Merrell in\nprevious Office Actions and contained no broader misrepresentations. To the\nextent Stallman mischaracterized the prior art, the district court reasoned,\nthis was permissible attorney argument, not fraud. Stallman was free to make\nsuch argument, and the examiner was free to reject it, because Stallman had\nsubmitted all relevant materials from the ’441 litigation already.\n The district court also found no but-for causation. Notably, it was not\nbecause the court viewed the ’441 and ’260 patents as dissimilar, such that the\nformer would not control the latter. Indeed, the court saw them as similar.\nRather, it saw the PTO as making a fully conscious and informed choice.\nGranting summary judgment to KLA, the district court wrote:\n 6\n\f Case: 18-50114 Document: 00514838084 Page: 7 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n Although Xitronix has repeatedly argued that the examiner was\n unaware of the jury verdict and final judgment invalidating the\n claims at issue, the Court suspects the examiner was in fact aware\n of the Court’s holding but chose to ignore it. It would not be the\n first time the PTO, an administrative agency, overrode a final\n judgment of an Article III court, and it will likely not be the last.\n\nThat is, according to the district court, it could not be said that the PTO relied\nupon, and was thus defrauded by, KLA’s alleged misrepresentations; rather,\nthe PTO had a mind of its own. The district court’s grant of summary judgment\nto KLA brought the case to a close, precipitating this appeal.\n C\n Xitronix’s appeal went originally to the Federal Circuit. Before oral\nargument in the case, the panel of that court ordered briefing on transferring\nthe case to our court for lack of jurisdiction. Xitronix Corp. v. KLA-Tencor\nCorp., 882 F.3d 1075, 1076 (Fed. Cir. 2018). The parties, who agreed that the\ncase belonged in the Federal Circuit, spent the bulk of oral argument on the\nsubject and briefed the issue further afterwards. 6 Despite the parties’\nconsensus, the panel was not persuaded, ruling based on Gunn v. Minton, 568\nU.S. 251 (2013), that it lacked jurisdiction. Following the transfer order, KLA\npetitioned for en banc rehearing, 7 which the Federal Circuit rejected by a vote\nof ten to two. Xitronix Corp. v. KLA-Tencor Corp., 892 F.3d 1194 (Fed. Cir.\n2018). Judge Pauline Newman dissented from that ruling, taking the panel to\ntask for initiating “a vast jurisdictional change for the regional circuits as well\nas the Federal Circuit.” Id. at 1196.\n\n\n\n 6 Oral Argument, Xitronix Corp. v. KLA-Tencor Corp., 882 F.3d 1075 (Fed. Cir. 2018)\n(No. 16-2746).\n 7 Notwithstanding its initial position, Xitronix opposed KLA’s en banc petition, now\n\nagreeing with the panel that the case did not implicate the Federal Circuit’s exclusive\njurisdiction. Response of Plaintiff-Appellant Xitronix Corporation to Petition for Panel\nRehearing and Rehearing En Banc, Xitronix Corp. v. KLA-Tencor Corp., 892 F.3d 1194 (Fed.\nCir. 2018) (No. 16-2746).\n 7\n\f Case: 18-50114 Document: 00514838084 Page: 8 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n II\n “Federal courts are courts of limited jurisdiction,” possessing “only that\npower authorized by Constitution and statute.” Kokonnen v. Guardian Life Ins.\nCo. of Am., 511 U.S. 375, 377 (1994). “The requirement that jurisdiction be\nestablished as a threshold matter ‘spring[s] from the nature and limits of the\njudicial power of the United States’ and is ‘inflexible and without exception.’”\nSteel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (quoting\nMansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). Consequently,\n“[w]e must always be sure of our appellate jurisdiction and, if there is doubt,\nwe must address it, sua sponte if necessary.” Casteneda v. Falcon, Jr., 166 F.3d\n799, 801 (5th Cir. 1999).\n III\n Under the law that prevailed for many years, it was clear that a\nstandalone Walker Process claim such as this would belong in the Federal\nCircuit. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 809\n(1988); Ritz Camera & Image, LLC v. SanDisk Corp., 700 F.3d 503 (Fed. Cir.\n2012). The parties have not identified any case that involved solely Walker\nProcess claims and that was decided by a circuit court other than the Federal\nCircuit. Indeed, the last Walker Process case decided by the Fifth Circuit was\nin 1975, before the Federal Circuit was created. See Becton, Dickinson, & Co.\nv. Sherwood Med. Indus., Inc., 516 F.2d 514 (5th Cir. 1975); Federal Courts\nImprovement Act of 1982, Pub. L. No. 97-164, § 127(a), 96 Stat. 25, 37 (1982).\n The Federal Circuit nevertheless transferred the case to us, based on a\njurisdictional analysis that we must accept if it is at least “plausible.” See\nChristianson, 486 U.S. at 819. The Federal Circuit transferred the case\nbecause it understood Gunn v. Minton, 568 U.S. 251 (2013), to change the law\ngoverning the allocation of cases between it and the regional circuits. There\nare compelling reasons to think that Gunn did not, but the answer to this\n 8\n\f Case: 18-50114 Document: 00514838084 Page: 9 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nquestion is not determinative here. Under any reading of Gunn, we deem it\nimplausible that we can decide this appeal.\n A\n The Federal Circuit has “exclusive jurisdiction of an appeal from a final\ndecision of a district court of the United States . . . in any civil action arising\nunder . . . any Act of Congress relating to patents or plant variety protection.”\n28 U.S.C. § 1295(a)(1). Before 2011, the statute read differently, conferring\nexclusive jurisdiction “of an appeal from a final decision of a district court of\nthe United States . . . if the jurisdiction of that court was based, in whole or in\npart, on section 1338 of this title.” Section 1338(a), in turn, gave district courts\n“original jurisdiction of any civil action arising under any Act of Congress\nrelating to patents,” among other subjects. Id. § 1338(a).\n The Supreme Court construed the earlier version of the statute in\nChristianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988).\nChristianson is the primary guide to our decision here because it furnished\nseveral rules that control the present case. Christianson was a former\nemployee of Colt, the famous gunmaker, and had gone into business selling M-\n16 replacement parts. Id. at 804. Colt was telling customers that Christianson\nwas illegally misappropriating its trade secrets, leading Christianson to sue\nboth for tortious inference with business relations and for violations of the\nSherman Act. Id. at 805. Christianson argued that Colt could not claim trade-\nsecret protection because its patents were invalid, and indeed, the district\ncourt invalidated nine Colt patents. Id. at 806.\n The Supreme Court had to decide whether the appeal belonged in the\nSeventh Circuit or the Federal Circuit. Id. at 806–07. Appeal had been taken\nto the Federal Circuit, which transferred it to the Seventh Circuit, and that\ncourt then transferred it back. Id. Under protest, the Federal Circuit then\ndecided the case in the “interest of justice.” Id. at 807.\n 9\n\f Case: 18-50114 Document: 00514838084 Page: 10 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n With the Federal Circuit’s jurisdictional statute, § 1295, tied to § 1338,\nthe Court had to construe the latter provision. 486 U.S. at 807. It noted that §\n1338 contained an “arising under” formulation quite like the federal-question\nstatute, § 1331, and was therefore susceptible to a complication that has\nbedeviled the latter statute: what to do with causes of action not created by\nfederal law that nevertheless turn on substantial questions of federal law? The\nFederal Circuit’s equivalent dilemma was deciding what to do with causes of\naction not created by federal patent law that nevertheless implicate it.\n The Court noted that federal-question jurisdiction had long included\nstate claims turning on substantial federal questions. 486 U.S. at 808; see\nMerrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Bd.\nof Cal. v. Constrn. Laborers Vacation Trust, 463 U.S. 1 (1983); Gully v. First\nNat’l Bank in Meridian, 299 U.S. 109 (1936). The Court then announced the\nfollowing rule:\n Linguistic consistency, to which we have historically adhered,\n demands that § 1338(a) jurisdiction likewise extend only to those\n cases in which a well-pleaded complaint establishes either that\n federal patent law creates the cause of action or that the plaintiff’s\n right to relief necessarily depends on resolution of a substantial\n question of federal patent law, in that patent law is a necessary\n element of one of the well-pleaded claims.\n\n486 U.S. at 809.\n That did not resolve the case before it, however, because not all of\nChristianson’s claims depended on resolving substantial questions of patent\nlaw. 486 U.S. at 810–11. Consequently, the Court held that lower courts should\ndetermine whether all claims in the plaintiff’s well-pleaded complaint\nnecessarily depended on the resolution of a substantial question of federal\npatent law. Id. “[A] claim supported by alternative theories in the complaint\nmay not form the basis for § 1338(a) jurisdiction unless patent law is essential\n\n\n 10\n\f Case: 18-50114 Document: 00514838084 Page: 11 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nto each of those theories.” Id. at 810. Accordingly, Christianson’s case did not\nbelong in the Federal Circuit.\n The Court also addressed the “peculiar jurisdictional battle” between the\nSeventh and Federal Circuits. 486 U.S. at 803. As noted, the Federal Circuit\nhad the case first but transferred it. Id. at 817. This ruling was the law of the\ncase, from which the Seventh Circuit departed. Id. This was not impermissible:\n“A court has the power to revisit prior decisions of its own or of a coordinate\ncourt in any circumstance, although as a rule courts should be loath to do so in\nthe absence of extraordinary circumstances, such as where the initial decision\nwas clearly erroneous and would work a manifest injustice.” Id. (quotation\nomitted). Receiving the case again, the Federal Circuit disputed it had\njurisdiction but decided the case anyway. The Court ruled that this was error.\nId. at 818. But if the Federal Circuit erred by deciding the case, how then to\nbring this interminable “game of jurisdictional ping-pong,” id., to a close? The\nCourt gave the following guidance: “Under law-of-the-case principles, if the\ntransferee court can find the transfer decision plausible, its jurisdictional\ninquiry is at an end.” Id. at 819 (emphasis added).\n Following Christianson, the Federal Circuit has regularly exercised\njurisdiction over Walker Process claims. See, e.g., Ritz Camera & Image, 700\nF.3d at 506; Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059,\n1072–73 (Fed. Cir. 1998). In so doing, and vital to our analysis here, the\nFederal Circuit has been clear in its view that “the determination of fraud\nbefore the PTO necessarily involves a substantial question of patent law.” In\nre Ciprofloxacin Hydrochloride Antitrust Litig., 544 F.3d 1323, 1330 n.8 (Fed.\nCir. 2008) (“Cipro”) (citing Christianson, 486 U.S. at 808), abrogated on other\ngrounds by F.T.C. v. Actavis, Inc., 570 U.S. 136 (2013).\n Other circuits have decided Walker Process cases, it should be said. Such\ncases have ended up in the regional circuits because of the line drawn in\n 11\n\f Case: 18-50114 Document: 00514838084 Page: 12 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nChristianson: cases depending solely on patent theories go to the Federal\nCircuit; cases not so dependent stay in the regional circuits. See, e.g., In re\nLipitor Antitrust Litig., 855 F.3d 126, 146 (3rd Cir. 2017); In re DDAVP, 585\nF.3d 677, 685 (2nd Cir. 2009); Kaiser Found. Health Plan, Inc. v. Abbott Labs.,\nInc., 552 F.3d 1033, 1041–42 (9th Cir. 2009).\n B\n The foregoing is the backdrop to Gunn v. Minton, on which the Federal\nCircuit relied here. See Xitronix, 882 F.3d at 1077. The present question is\nwhether, and how, Gunn altered the landscape just described.\n Gunn called for the Supreme Court to decide whether a state-law legal\nmalpractice case arising from a patent infringement suit could be brought only\nin federal court. 568 U.S. at 253–56. Minton, a developer of software for trading\nsecurities, had hired Gunn, a patent lawyer, to sue NASDAQ and others for\ninfringing Minton’s patent. Id. at 253–54. In the infringement case, the federal\ncourt had granted summary judgment against Minton, declaring his patent\ninvalid. Id. at 254. Minton then sued Gunn for legal malpractice, arguing that\nGunn had failed to raise a key argument in a timely manner. Id at 255. The\nstate district court ruled for the lawyer. Id. On appeal, Minton made a novel\nargument: though he had filed the suit in state court, federal courts had\nexclusive jurisdiction because the suit raised a substantial question of federal\npatent law. Id. A divided Texas court of appeals disagreed, but a divided Texas\nSupreme Court ruled that Minton was right. Id. at 255–56.\n The United States Supreme Court reversed, holding that the case could\nbe brought in state court. The Court noted that both the federal-question\nstatute, § 1331, and the district courts’ patent jurisdiction statute, § 1338, were\nimplicated. 568 U.S. at 257. The Court then applied a four-factor test that it\nhad developed over the years to decide federal-question issues. “[F]ederal\njurisdiction over a state law claim will lie if a federal issue is: (1) necessarily\n 12\n\f Case: 18-50114 Document: 00514838084 Page: 13 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nraised, (2) actually disputed, (3) substantial, and (4) capable of resolution in\nfederal court without disrupting the federal-state balance approved by\nCongress.” Id. at 258 (citing Grable & Sons Metal Prods. Inc. v. Darue Eng. &\nManuf., 545 U.S. 308, 314 (2005)).\n The Court acknowledged that Minton’s lawsuit against Gunn necessarily\nraised the disputed issue of Gunn’s handling of a patent case. 568 U.S. at 259.\nIt focused on the third and fourth parts of the test, and there it found the case\nlacking. “The substantiality inquiry under Grable looks . . . to the importance\nof the issue to the federal system as a whole.” Id. at 260. The patent issue in\nGunn and Minton’s case was “backward-looking,” “merely hypothetical,” and\nnot likely to “change the real-world result of the prior federal patent litigation.”\nId. at 261. As such, it had no importance for the federal system writ large. 8 The\nCourt emphasized that it would upset the balance between state and federal\njudiciaries to move such legal malpractice cases exclusively into federal court,\ngiven the states’ “special responsibility for maintaining standards among\nmembers of the licensed professions.” Id. at 264 (quotation omitted).\n Gunn gave no indication that it meant to alter Christianson or the\nallocation of cases among the circuit courts. There was no occasion for it,\nbecause the case was appealed from a state’s highest court. On the contrary,\nthe centrality of the Federal Circuit to patent adjudication was a premise of\nGunn’s reasoning. 568 U.S. at 261–62. Against the argument that state-court\nadjudication of the patent issue in Gunn would undermine the uniformity of\nfederal patent law, the Court said that “Congress ensured such uniformity” by\nvesting exclusive appellate jurisdiction in the Federal Circuit. Id.\n\n\n 8 In Grable, by contrast, a state quiet-title action turned on the Internal Revenue Code\nprovision governing the notice that the IRS must provide to delinquent taxpayers before\nseizing their property. 545 U.S. at 310–11. This implicated “the Government’s ‘strong\ninterest’ in being able to recover delinquent taxes through seizure and sale of property,”\nmaking the case suitable for resolution in a federal forum. Gunn, 568 U.S. at 260–61.\n 13\n\f Case: 18-50114 Document: 00514838084 Page: 14 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n C\n Since Gunn, the Federal Circuit has incorporated a substantiality\ninquiry into determinations of its own jurisdiction. See, e.g., Neurorepair, Inc.\nv. The Nath Law Group, 781 F.3d 1340, 1345–49 (Fed. Cir. 2015); Jang v.\nBoston Sci. Corp., 767 F.3d 1334, 1336–38 (Fed. Cir. 2014). In this case, the\ncourt acknowledged that the case would require applying patent law but\ndisputed the case’s substantiality. 882 F.3d at 1078. “Patent claims will not be\ninvalidated or revived based on the result of this case,” and “the result [of the\ncase] is limited to the parties and the patent involved in this matter.” Id. at\n1078. It viewed any threat to the uniformity of patent law as insubstantial. Id.\n The court’s reasoning depended on several premises that we find\nimplausible. First, the court said that there was no dispute about the validity\nof the patent at issue. 882 F.3d at 1078. In her dissent from denial of rehearing,\nJudge Newman responded that this was “a puzzling statement, for that is the\ndispute.” 892 F.3d at 1199. A finding of fraud on the PTO would render KLA’s\n’260 patent effectively unenforceable in future cases. See C.R. Bard, 157 F.3d\nat 1367 (“Fraud in obtaining a United States patent is a classical ground of\ninvalidity or unenforceability of the patent.”). Inequitable conduct is a defense\nto a claim of patent infringement that bars enforcement of the patent.\nTherasense Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1285 (Fed. Cir.\n2011) (en banc). Inequitable conduct resembles the fraud element of Walker\nProcess, in that it requires proof of misrepresentation, scienter, and a showing\nof materiality or causation. Id. at 1290. Over time, it has evolved to be\n“virtually congruent with intentional fraud under Walker Process.” J. Thomas\nRoesch, Patent Law and Antitrust Law: Neither Friend nor Foe, but Business\nPartners, 13 Sedona Conf. J. 95, 100 (2012). Consequently, if this litigation\ndetermines that KLA defrauded the PTO in obtaining the ’260 patent,\ncollateral estoppel principles would furnish a readymade inequitable conduct\n 14\n\f Case: 18-50114 Document: 00514838084 Page: 15 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\ndefense to any potential infringer whom KLA might sue. See Blonder-Tongue\nLabs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 330–34 (1971).\n Next, the Federal Circuit read its precedent predating Gunn in a manner\nat odds with our reading of that caselaw. In Nobelpharma, a Walker Process\ncase, the en banc Federal Circuit said that “[w]hether conduct in the\nprosecution of a patent is sufficient to strip a patentee of its immunity from the\nantitrust laws is one of those issues that clearly involves our exclusive\njurisdiction over patent cases.” 141 F.3d at 1067. The Federal Circuit\ndistinguished Nobelpharma here, reasoning that Nobelpharma was not\ndeciding the venue of the appeal, but whether to apply regional circuit or\nFederal Circuit precedent to various issues. 882 F.3d at 1078–79. This\ndistinction strikes us as immaterial. The tests for both questions turn on the\nFederal Circuit’s exclusive jurisdiction over a given issue. It does not matter\nthat Nobelpharma analyzed its jurisdiction for one purpose rather than the\nother.\n The court also sought to distinguish Cipro, a Walker Process case\ntransferred from the Second to the Federal Circuit. 544 F.3d at 1323. Accepting\nthe transfer, the Federal Circuit observed that “the determination of fraud\nbefore the PTO necessarily involves a substantial question of patent law.” Id.\nat 1330 n.8 (citing Christianson, 468 U.S. at 808). The court distinguished\nCipro here because, as a transferred case, the Second Circuit’s jurisdictional\nanalysis had only to meet the Christianson plausibility standard. But the\nFederal Circuit in Cipro stated its unqualified agreement with the Second\nCircuit’s analysis, making no reference to plausibility.\n We note one more case indicating that, before Gunn, the Federal Circuit\nunderstood fraud on the PTO to present a substantial question of federal\npatent law implicating its exclusive jurisdiction. In Ritz Camera & Image, an\ninterlocutory appeal arose from a suit in the Northern District of California\n 15\n\f Case: 18-50114 Document: 00514838084 Page: 16 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nabout the standing of certain plaintiffs to bring a Walker Process action. 700\nF.3d at 505. Like the present case, this appeal presented solely a Walker\nProcess issue, and the Federal Circuit did not even pause to consider its\njurisdiction.\n Another basis for the Federal Circuit’s transfer decision is its\ninterpretation of post-Gunn decisions from other circuit courts. The court cited\nIn re Lipitor from the Third Circuit, which resolved a Walker Process claim in\n2017. 882 F.3d at 1079 (citing In re Lipitor, 885 F.3d at 146). That case involved\nnon-patent antitrust theories, however, so the Christianson rule clearly\nallocated it to the regional circuit. 855 F.3d at 146. Another case was Seed Co.\nLtd. v. Westerman, 832 F.3d 325 (D.C. Cir. 2016), a legal malpractice case\nconcerning the unsuccessful prosecution of a patent. Not being a Walker\nProcess case, Seed Co. sheds no light on whether cases solely alleging fraud on\nthe PTO no longer belong in the Federal Circuit. The court also cited one of our\ndecisions, in which the court understood us to hold that we “had\nappellate jurisdiction in a case involving a state law claim based on fraud on\nthe PTO.” 882 F.3d at 1080 (citing USPPS, Ltd. v. Avery Dennison Corp., 541\nF. App’x 386, 390 (5th Cir. 2013)). On the contrary, USPPS involved fraud\nclaims against a business and its lawyers following a failed patent prosecution,\nbut it did not involve fraud on the PTO itself. 541 F. App’x at 388–90.\n Finally, the panel relied on an Eleventh Circuit case, MDS (Canada) Inc.\nv. Rad Source Techs., Inc., 720 F.3d 833 (11th Cir. 2013), that provides perhaps\nthe strongest support for its decision to transfer this case to us. MDS was a\nbreach of contract action concerning a licensing agreement between Nordion\nand Rad Source. Rad Source had three patents for blood irradiation devices,\nwhich it licensed to Nordion, such that Nordion would market and sell Rad\nSource’s RS 3000 device. Id. at 838. After a falling out, Rad Source began to\ndevelop a new product based on the same patents, the RS 3400, which it would\n 16\n\f Case: 18-50114 Document: 00514838084 Page: 17 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nsell independently of Nordion. Id. at 840. Litigation ensued, with Nordion\nalleging that Rad Source had breached their agreement by independently\ndeveloping a product covered by one of the patents subject to the license\nagreement. Id. at 840. This injected an infringement issue into the case.\nDuring the litigation, Nordion learned that Rad Source had allowed that\npatent to lapse. Id. at 840–41. This gave Nordion an additional breach of\ncontract theory. Id.\n The Eleventh Circuit ruled that it, and not the Federal Circuit, had\njurisdiction over the appeal. 720 F.3d at 841. It reasoned that the case\npresented claims under state contract law and thus that the district court had\nexercised diversity jurisdiction, not original jurisdiction by virtue of a federal\nquestion or a federal patent issue. Id. There was a question of patent\ninfringement in the case, but, like the patent issues in Gunn, it was backward-\nlooking and insubstantial because it indisputably concerned a since-expired\npatent. Id at 842–43. Therefore, the issue was not substantial enough to\nimplicate the district court’s “arising under” patent jurisdiction. Id. The court\nthen proceeded to resolve the patent infringement issue. Id. at 846–48.\n In the present case, the Federal Circuit noted the Eleventh Circuit’s\nsubstantiality analysis in MDS and said that it “confirm[ed] the correctness of\n[their] decision” to transfer the case. 882 F.3d at 1079–80. Judge Newman\npointed out two distinctions: first, that the patent at issue in MDS was expired,\nwhereas KLA’s patent in the present case remains operative; and second, that\nMDS did not address whether the Walker Process element of fraud on the PTO\nimplicates federal patent law. 892 F.3d at 1201. As such, it is only so helpful\nin figuring out whether Gunn requires the present case to be transferred away\nfrom the Federal Circuit.\n\n\n\n\n 17\n\f Case: 18-50114 Document: 00514838084 Page: 18 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n D\n To reject the Federal Circuit’s transfer decision, we must not only\ndisagree with its reasoning; we must find it implausible. We do not take this\nstep lightly. With due regard for our colleagues on a coordinate court, we\nnevertheless conclude that it is implausible for us to resolve this appeal.\n The initial question is whether Gunn meant to change the Federal\nCircuit’s jurisdiction, in addition to changing district courts’ jurisdiction.\nAssuming that it did, we think that this appeal presents a substantial question\nin the sense that the Supreme Court has articulated. Under Gunn, “[t]he\nsubstantiality inquiry. . . [looks] to the importance of the issue to the federal\nsystem as a whole.” 568 U.S. at 260. The Court in Gunn relied on two examples:\nGrable, 545 U.S. 308, and Smith v. Kansas City Title & Trust Co., 255 U.S. 180\n(1921). Grable concerned the validity of a foreclosure and sale by the IRS of a\ndelinquent taxpayer’s property. 545 U.S. at 315. Smith concerned the\nconstitutionality of certain federal bonds, challenged by a shareholder seeking\nto block a company from buying them. 255 U.S. at 201. Both cases put the\nlegality of a federal action in question, in a manner that would have broader\nramifications for the legal system. By contrast, Gunn, as a legal malpractice\ncase, entailed a “merely hypothetical,” “backward-looking” review of a lawyer’s\nconduct regarding a now-invalid patent. 568 U.S. at 261. Nothing broader was\nat stake. Gunn also perceived no precedential or preclusive implications if a\nstate court resolved the case.\n This case concerns a patent that is currently valid and enforceable,\nissued following a PTO proceeding heretofore viewed as lawful. This litigation\nhas the potential to render that patent effectively unenforceable and to declare\nthe PTO proceeding tainted by illegality. This alone distinguishes the present\n\n\n\n\n 18\n\f Case: 18-50114 Document: 00514838084 Page: 19 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\ncase from Gunn. 9 The adjudication of this Walker Process claim also implicates\nthe interaction between the PTO and Article III courts. The district court’s\nacerbic statements about the PTO at summary judgment point to the\ncomplexity of relations between proceedings in federal court and before the\nPTO.\n Moreover, the fraud element of Xitronix’s claim can be adjudicated only\nwith reference to patent law. Walker Process requires showing that a given\nstatement or omission was “material to patentability.” C.R. Bard, Inc., 157\nF.3d at 1364. Here, that requires reference to the bases of the ’441 patent’s\ninvalidation (anticipation, obviousness, and indefiniteness), the significance of\nnon-statutory double patenting rejections, the nature of prior art analysis by\npatent examiners, and more. Xitronix’s theories of fraud also put certain rules\nin issue. For example, Xitronix bases some of its theories on the regulations\ngoverning patent practitioners’ duties of candor to the PTO. See 37 C.F.R. §§\n1.56, 10.85 (2013), 11.301. This case therefore has the potential to set\nprecedent on the precise scope of those duties. Compare KangaROOS U.S.A.,\nInc. v. Caldor, Inc., 778 F.2d 1571, 1576 (Fed. Cir. 1985), with Young v.\nLumenis, Inc., 492 F.3d 1336, 1349 (Fed. Cir. 2007). Such precedent can\nprofoundly affect the future conduct of practitioners before the PTO. Cf.\nTherasense, 649 F.3d at 1289–90 (explaining the ways that the inequitable\nconduct doctrine had altered patent practitioners’ behavior in PTO\nproceedings). To the extent we or other circuit courts differ from the Federal\nCircuit on these matters, we risk confusion for current practitioners and\nforum-shopping by future litigants.\n\n\n 9 The Federal Circuit reasoned that any result would be “limited to the parties and\npatent involved in this matter.” 882 F.3d at 1078. That may prove to be true, but it is also\nlikely true of many patent cases. If this consideration alone sufficed to remove a case from\nthe Federal Circuit’s exclusive jurisdiction, there is no telling where the line should properly\nbe drawn.\n 19\n\f Case: 18-50114 Document: 00514838084 Page: 20 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\n The foregoing assumes that Gunn changed the scope of the Federal\nCircuit’s jurisdiction, but there are compelling reasons to think that it did not.\nGunn concerned the district courts’ jurisdictional statute, § 1338, not the\nFederal Circuit’s jurisdictional statute, § 1295. The Supreme Court never said\nit was changing the Federal Circuit’s caseload. It spoke only to the allocation\nof cases between the state and federal systems, not to the allocation of cases\nbetween the circuit courts. The Court has said elsewhere of Congress that it\ndoes not “hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’n, 531\nU.S. 457, 468 (2001). We may say the same of the Court. The elephant in the\nroom, as it were, is the propensity of this jurisdictional issue, if left variable,\nto consume time, expense, judicial resources, and legal certainty. This\npropensity is well known from the history of federal-question jurisprudence,\nand excising it has been the Court’s aim in Gunn, Grable, and other decisions. 10\nGiven that history, we therefore disagree that the Supreme Court inserted sub\nsilentio such a nettlesome issue into more cases than before.\n The four-factor test applied in Gunn was developed to sort cases between\nstate and federal courts, and it is not a tool for the task of sorting cases between\nthe circuits. See Gunn, 568 U.S. at 258 (“[F]ederal jurisdiction over a state law\nclaim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed,\n(3) substantial, and (4) capable of resolution in federal court without disrupting\n\n\n\n 10 The Wright & Miller treatise describes the “centrality” requirement––“the\nrequirement that the federal law injected by the plaintiff’s well-pleaded complaint be\nsufficiently central to the dispute to support federal question jurisdiction”––as “the most\ndifficult problem in determining whether a case arises under federal law for statutory\npurposes.” Wright, Miller, et al., Federal Practice & Procedure § 3562 (3d ed., 2018). “This\nproblem has attracted the attention of such giants of the bench as Marshall, Waite, Bradley,\nthe first Harlan, Holmes, Cardozo, Frankfurter, and Brennan. It has been the subject of\nvoluminous scholarly writing. Despite this significant attention, however, no single\nrationalizing principle will explain all of the decisions on centrality.” Id. See also Grable, 545\nU.S. at 321 (Thomas, J., concurring) (wondering if this inquiry “may not be worth the effort\nit entails”).\n 20\n\f Case: 18-50114 Document: 00514838084 Page: 21 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nthe federal-state balance approved by Congress.”) (citing Grable, 545 U.S. at\n314). As noted, substantiality concerns “the importance of the issue to the\nfederal system as a whole.” Gunn, 568 U.S. at 260. That concern, however, does\nnot exist once the choice is between two federal circuit courts. The formulation\ncould be tweaked to reflect the patent-specific context, but Gunn did not tell us\nto do so and thereby displace Christianson’s time-tested rule. The fourth\nelement is even less suited to the task of sorting cases between the circuits.\nThe choice between circuits for a given appeal is irrelevant to the\ncongressionally-approved balance of state and federal judiciaries. This is not\nto say that the Gunn–Grable framework could not be adapted to the present\ntask, but the fact that adaptation would be necessary militates against\noverreading Gunn.\n Perhaps the strongest point in favor of incorporating Gunn into cases\nlike this one is that Christianson linked § 1295 to § 1338 and § 1331. Gunn\nconstrued the latter two statutes together, so, under Christianson, Gunn’s\nholdings arguably are automatically incorporated into § 1295. When\nChristianson was decided, § 1295 referred to § 1338 expressly. By the time of\nGunn, § 1295 had been amended to stand on its own; the phrase “any civil\naction arising under . . . any Act of Congress relating to patents” replaced the\nreference to § 1338. It is therefore not automatic that a change to § 1338 entails\na change to § 1295.\n To be sure, § 1295 retains the “arising under” formulation in common\nwith the other two statutes, and the Supreme Court prefers to construe like\ntext alike. It has refused to give identical terms the same meaning, however,\nwhen contexts and considerations differ. See, e.g., Wachovia Bank v. Schmidt,\n546 U.S. 303, 315–17 (2006) (declining to read the term “located” in venue and\nsubject-matter jurisdiction rules in pari materia because the rules serve\npurposes that are too different). Different considerations, including\n 21\n\f Case: 18-50114 Document: 00514838084 Page: 22 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nconstitutional and statutory imperatives, attend the sorting of cases between\nstate and federal systems and among the federal circuits. All the federalism\nconcerns associated with the former have no bearing on the latter, as\nexplained. With those set aside, the interests of uniformity and competent\napplication of the law, which failed to carry the day in Gunn, 568 U.S. at 261–\n63, are left as determinative concerns. 11\n It would be quite reasonable to have a system that imposes different\nrestrictions at the entrance to the federal system and at the fork in the road\nleading to different circuits. The exclusionary Gunn–Grable test, screening out\nmost potential cases at the entrance, protects federal district courts from\noverload and reflects constitutional respect for state courts and state\nprerogatives. As to those cases that do make it into the federal system,\npreservation of uniformity comes to the fore, furthered by Christianson’s\ninclusionary test for routing appeals to the Federal Circuit. Such a test also\npromotes judicial economy by simplifying the jurisdictional inquiry and\navoiding the jurisdictional ping-pong that Christianson aimed to end.\n Supposing Gunn did not change the inquiry, the answer to the present\nquestion is simple and settled. According to Christianson, the Federal Circuit’s\njurisdiction includes “cases in which a well-pleaded complaint establishes . . .\nthat the plaintiff’s right to relief necessarily depends on resolution of a\n\n\n 11 We recognize that not all view these interests as worthwhile or as achieved in\npractice by exclusive Federal Circuit jurisdiction. For instance, uniformity maintained by a\nsingle court is the inverse of percolation across multiple courts, a feature of our judiciary we\nvenerate. See Hon. Diane P. Wood, Keynote Address: Is It Time to Abolish the Federal Circuit’s\nExclusive Jurisdiction in Patent Cases? 13 Chi.-Kent J. Intell. Prop. 1, 10 (2013) (advocating\n“‘wide open spaces’ for development of patent law, allowing new ideas to percolate and grow”);\nsee also Paul R. Gugliuzza, Patent Law Federalism, 2014 Wisc. L. Rev. 11, 37–42 (questioning\n“the assumption that exclusive patent jurisdiction, coupled with the centralization of appeals\nin the Federal Circuit, provides legal uniformity”); id at 49 (suggesting “legal uniformity may\nnot be as critical to the patent system as is assumed”). But we take uniformity and\ncompetence through specialization to be Congress’s aims in centralizing exclusive jurisdiction\nin the Federal Circuit, hence we must adhere to that choice in our analysis here.\n 22\n\f Case: 18-50114 Document: 00514838084 Page: 23 Date Filed: 02/15/2019\n\n\n\n No. 18-50114\nsubstantial question of federal patent law, in that patent law is a necessary\nelement of one of the well-pleaded claims.” 486 U.S. at 809. Patent law is a\nnecessary element of Walker Process claims. See Ritz Camera & Image, 700\nF.3d at 506; Cipro, 544 F.3d at 1330 n.8. Because this case presents a\nstandalone Walker Process claim, there are no non-patent theories in the case\nthat would divert it to our court. Consequently, it belongs in the Federal\nCircuit.\n IV\n We undertake the preceding analysis with respect for our judicial\ncolleagues and gratitude for the litigants’ patience over the long pendency of\nthis appeal. We nevertheless cannot conclude that the Federal Circuit’s\ndecision to transfer this case to us was plausible, given the Supreme Court’s\nand Congress’s decisions to the contrary. Accordingly, IT IS ORDERED that\nthis case is TRANSFERRED to the United States Court of Appeals for the\nFederal Circuit.\n\n\n\n\n 23", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368658/", "author_raw": "STEPHEN A. HIGGINSON, Circuit Judge:"}]}	JOLLY	DENNIS	HIGGINSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591405/	Published	1	0	0	2,019	2	[ { "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...
4,591,407	UNITED STATES of America, Plaintiff-Appellee v. Michael A. LORD; Randall B. Lord, Defendants-Appellants	United States v. Michael Lord	2019-02-15	17-30486	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Stewart, Dennis, Willett", "parties": "", "opinions": [{"author": "CARL E. STEWART, Chief Judge", "type": "010combined", "text": "Case: 17-30486 Document: 00514837233 Page: 1 Date Filed: 02/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-30486 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 15, 2019\nUNITED STATES OF AMERICA,\n Lyle W. Cayce\n Plaintiff - Appellee Clerk\n\n\nv.\n\nMICHAEL A. LORD; RANDALL B. LORD,\n\n Defendants - Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Louisiana\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n Michael A. Lord and his father, Randall B. Lord, (collectively, “the\nLords”) pleaded guilty, pursuant to written agreements, to conspiracy to\noperate an unlicensed money servicing business (“MSB”) (Count One). Michael\nalso pleaded guilty to conspiracy to distribute and possess Alprazolam, a\nSchedule IV controlled substance, with the intent to distribute (Count Fifteen).\nAfter entering into their guilty pleas, the Lords filed a joint motion to withdraw\ntheir guilty pleas. They stated that after they entered their guilty pleas, they\n\f Case: 17-30486 Document: 00514837233 Page: 2 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nlearned from other bitcoin 1 dealers and from the State of Louisiana Office of\nFinancial Institutions (“OFI”) that they did not need an MSB license. The\ndistrict court denied the Lords’ motion to withdraw their guilty pleas as to\nCount One. The court found that the Lords’ motion contained no argument\nrelative to Michael’s plea to Count Fifteen and that, in any event, he was not\nentitled to withdraw his plea. The Lords appeal the district court’s denial of\ntheir motion to withdraw their guilty pleas, as well as their sentences. For the\nreasons below, we AFFIRM the district court’s judgment as to Michael Lord\nand Randall Lord, with the exception that we REVERSE and REMAND for\nresentencing as to Michael Lord’s maintaining a premises for the purpose of\nmanufacturing or distributing a controlled substance enhancement and special\nskills enhancement.\n\n I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY\n The Lords were charged in a single indictment with 14 counts relating\nto their bitcoin business. Michael was charged with one count for a drug\noffense. The Lords pleaded guilty, pursuant to written agreements, to\nconspiracy to operate an MSB (Count One). Michael also pleaded guilty to\nconspiracy to distribute and possess Alprazolam, a Schedule IV controlled\nsubstance, with the intent to distribute (Count Fifteen).\n MSBs are subject to 18 U.S.C. § 1960, which criminalizes the failure to\nobtain a state license, when required, and to comply with federal registration\nrequirements. The statute provides that an MSB is unlicensed if it:\n (A) is operated without an appropriate money transmitting license\n in a State where such operation is punishable as a misdemeanor\n or a felony under State law, whether or not the defendant knew\n\n\n\n\n 1 Bitcoin is a decentralized form of electronic or digital currency that exists only on\nthe Internet.\n 2\n\f Case: 17-30486 Document: 00514837233 Page: 3 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n that the operation was required to be licensed or that the operation\n was so punishable;\n (B) fails to comply with the money transmitting business\n registration requirements under section 5330 of title 31, United\n States Code, or regulations prescribed under such section; or\n (C) otherwise involves the transportation or transmission of funds\n that are known to the defendant to have been derived from a\n criminal offense or are intended to be used to promote or support\n unlawful activity.\n18 U.S.C. § 1960. Other regulations require MSBs to register with the\nFinancial Crimes Enforcement Network (“FinCEN”) within 180 days of the\ndate the business is established. 31 C.F.R. § 1022.380(b)(3).\n The indictment charged that the Lords, as part of their conspiracy, began\noperating a bitcoin exchange business in 2013; the Lords and their companies\ndid not obtain licenses to engage in the business of money transmission by the\nState of Louisiana; between 2013 and November 10, 2014, they did not register\nwith the United States Treasury Department; and they did not register as an\nMSB with FinCEN until November 2014, by which time they had exchanged\napproximately $2.6 million for bitcoin.\n The Lords entered their guilty pleas on April 19, 2016. The initial\npresentence reports (“PSRs”) were prepared on June 16, 2016. The Lords filed\nobjections to their PSRs in July 2016, asserting, inter alia, that they believed\nthat they were not required to obtain a Louisiana license. In support, they\nattached a February 17, 2016 letter from the OFI stating the same to an\napplicant whose business involved “cryptocurrency.” On August 29, 2016, the\nLords filed a joint sentencing memorandum arguing that their guilty pleas\nwere not knowing because the law surrounding bitcoin was confusing and had\nstymied their efforts to comply with the law. On February 21, 2017, the Lords\nfiled a joint motion to withdraw their guilty pleas. The Government opposed\nthe motion, conceding that the State of Louisiana does not require virtual\n 3\n\f Case: 17-30486 Document: 00514837233 Page: 4 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\ncurrency exchangers to have a state license, but arguing that they could be\nconvicted on the alternative basis that they had failed to register timely with\nFinCEN.\n The district court denied the Lords’ motion to withdraw their guilty\npleas. The district court sentenced Randall below the guidelines range to 46\nmonths of imprisonment and three years of supervised release. It sentenced\nMichael within the guidelines range to 46 months on Count One, 60\nconsecutive months on Count Fifteen, and three years of supervised release.\n II. DISCUSSION\nA. Withdrawal of Guilty Pleas\n 1. Standard of Review\n A district court’s denial of a motion to withdraw a guilty plea is reviewed\nfor abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir.\n2003). “[A] district court abuses its discretion if it bases its decision on an error\nof law or a clearly erroneous assessment of the evidence.” Id. (quotation\nomitted) (brackets in original).\n 2. Applicable Law\n A defendant does not have an absolute right to withdraw his guilty plea.\nId. (citation omitted). Instead, the district court may, in its discretion, permit\nwithdrawal before sentencing if the defendant can show a “fair and just\nreason.” Id. at 370. The burden of establishing a “fair and just reason” for\nwithdrawing a guilty plea remains at all times with the defendant. United\nStates v. Still, 102 F.3d 118, 124 (5th Cir. 1996).\n In considering whether to permit withdrawal of a plea, the district court\nshould address the seven factors set forth in this court’s opinion in United\nStates v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984). These include: (1) whether\nthe defendant asserted his actual innocence; (2) whether withdrawal would\nprejudice the Government; (3) the extent of the delay, if any, in filing the\n 4\n\f Case: 17-30486 Document: 00514837233 Page: 5 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nmotion to withdraw; (4) whether withdrawal would substantially\ninconvenience the court; (5) whether the defendant had the benefit of close\nassistance of counsel; (6) whether the guilty plea was knowing and voluntary;\nand (7) the extent to which withdrawal would waste judicial resources. Id.\n“[N]o single factor or combination of factors mandates a particular result,” and\n“the district court should make its determination based on the totality of the\ncircumstances.” Still, 102 F.3d at 124. The district court is not required to\nmake explicit findings as to each of the Carr factors. Powell, 354 F.3d at 370.\n 3. Analysis\n a. Assertion of Innocence\n The Lords argue they asserted their innocence by stating that while they\nwere operating their bitcoin business, they believed that they did not have to\nobtain a Louisiana license. They acknowledge that § 1960 allows the\nGovernment to convict if an MSB fails to register but argue that they\nregistered with FinCEN in November 2014 and “have defenses available to\nthem with respect to this element.”\n The district court found that the Lords did not assert their actual\ninnocence. The court reasoned that the failure to obtain a state license was but\none theory on which Count One was based and that the evidence presented at\nthe Lords’ re-arraignment was sufficient to prove that they were an MSB and\nthat they failed to register timely with FinCEN.\n The Lords’ arguments do not go to their factual innocence; rather, they\namount to an assertion of their legal innocence based on perceived potential\ndefenses to the offense. In Carr, the defendant argued his legal innocence,\nasserting that he was entitled to withdraw his guilty plea because trial counsel\nfailed to inform him that he could use an “advice of counsel” defense to the\nconspiracy charge he faced. 740 F.2d at 343. The court found that, although\nthe defendant had asserted his innocence, “this claim alone is far from being\n 5\n\f Case: 17-30486 Document: 00514837233 Page: 6 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nsufficient to overturn denial of a withdrawal motion. Otherwise, the mere\nassertion of legal innocence would always be a sufficient condition for\nwithdrawal, and withdrawal would effectively be an automatic right.” Id. at\n344. Likewise, the Lords’ proffered legal innocence, realized after their pleas,\nis not grounds to withdraw their pleas. See id.; United States v. McKnight, 570\nF.3d 641, 649 (5th Cir. 2009) (finding that an assertion of innocence was not\nsupported by claims of “legal innocence based on insanity and entrapment”);\nUnited States v. Meza-Jacquez, 671 F. App’x 340, 341 (5th Cir. 2016) (per\ncuriam) (unpublished) (finding no abuse of discretion where innocence claim\nwas based on “a ‘colorable defense’ to the charged offense”).\n b. Prejudice to the Government\n The Lords argue that “it is difficult to understand” how the Government\nwould be prejudiced by their plea withdrawal because the Government is\nrequired to prove the indictment’s allegations in every trial. The district court\nfound that the Government would suffer “some” prejudice if the Lords’ motion\nwere granted because it would require the Government to prove the indictment\nallegations at trial. Regardless of whether the Government would suffer\nprejudice, “Carr made clear that the absence of prejudice to the Government\ndoes not necessarily justify reversing the district court’s decision to deny a\nmotion to withdraw a guilty plea.” McKnight, 570 F.3d at 649 (citing Carr, 740\nF.2d at 344).\n c. Delay\n The Lords maintain that “there were significant discussions” before they\nfiled their motion to withdraw “to examine the options available” to them and\nthat the delay was “appropriate.” The district court found that the Lords were\naware in August 2016 that Louisiana does not require a license for operating\na bitcoin exchange business but delayed filing their motion to withdraw their\npleas for six months.\n 6\n\f Case: 17-30486 Document: 00514837233 Page: 7 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n “[T]he longer a defendant delays in filing a withdrawal motion, the more\nsubstantial reasons he must proffer in support of his motion.” Carr, 740 F.2d\nat 344. The Lords’ assertion that the delay was “appropriate” is non-specific\nand conclusory. Moreover, the record supports the district court’s finding that\nthe Lords waited almost six months from learning they did not need a license\nto file the motion to withdraw. Much shorter delays have been deemed\nunacceptable. See, e.g., United States v. Thomas, 13 F.3d 151, 153 (5th Cir.\n1994) (describing a six-week delay as “significant”); United States v. Rinard,\n956 F.2d 85, 88–89 (5th Cir. 1992) (holding that a 69-day delay weighed against\ndefendant); United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988)\n(holding that a seven-week delay weighed against withdrawal); Carr, 740 F.2d\nat 345 (finding that the motion “was not promptly filed” 22 days after the plea).\n d. Inconvenience to the Court\n The Lords rely on the court’s statement that withdrawal would not\nsubstantially inconvenience the court. The district court also stated, however,\nthat withdrawal would require the court to hold a multi-day trial on 15\nseparate counts. When, as here, the district court has already reviewed the\nPSR and other materials, a motion to withdraw is disruptive to the trial docket\nand inconveniences the court. See, e.g., United States v. Grant, 117 F.3d 788,\n790 (5th Cir. 1997); see also United States v. Adams, 275 F. App’x 298, 300 (5th\nCir. 2008) (per curiam) (unpublished).\n e. Close Assistance of Counsel\n The Lords deem whether they had close assistance of counsel “irrelevant”\nin their case “because no legal authority could be obtained by counsel prior to\nthe guilty hearing to support the Lords[’] defense.” The district court found\nthat the close assistance of counsel was available to the Lords throughout the\nproceeding.\n\n\n 7\n\f Case: 17-30486 Document: 00514837233 Page: 8 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n The Lords’ treatment of this Carr factor is more theoretical than it is\nprobative—whether a defendant had close assistance of counsel does not turn\non whether counsel found legal authority to support a viable defense. In\nweighing this factor, we look to whether counsel was available to the defendant\nthroughout the proceedings, see, e.g., United States v. Benavides, 793 F.2d 612,\n617–18 (5th Cir. 1986), including whether counsel negotiated the defendant’s\nplea agreement, McKnight, 570 F.3d at 646–47, and whether a defendant was\nsatisfied with his defense counsel, United States v. Herrod, 595 F. App’x 402,\n411 (5th Cir. 2015) (unpublished). Whether a defendant received close\nassistance of counsel is “a fact-intensive inquiry.” United States v. Urias-\nMarrufo, 744 F.3d 361, 365 (5th Cir. 2014) (quotation omitted).\n The Lords received the quintessential type of assistance that this factor\ncontemplates. They were represented by retained counsel throughout the\nproceedings, including their initial appearance, their plea agreements, and at\nre-arraignment. At re-arraignment, they confirmed that they were satisfied\nwith counsel’s representation. As such, the Lords had the benefit of close\nassistance of counsel.\n f. Knowing and Voluntary Nature of the Pleas\n The Lords assert that it was “impossible” for them to have made a\nknowing plea because at the time of the plea, all parties and the district court\nbelieved that Louisiana required money transmitters to obtain a license.\n Because a guilty plea involves the waiver of constitutional rights, it must\nbe voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742,\n748 (1970). To enter a knowing and voluntary guilty plea, a defendant must\nhave full knowledge of what the plea connoted and of its consequences. Boykin\nv. Alabama, 395 U.S. 238, 244 (1969). “A guilty plea is invalid if the defendant\ndoes not understand the nature of the constitutional protection that he is\nwaiving or if he has such an incomplete understanding of the charges against\n 8\n\f Case: 17-30486 Document: 00514837233 Page: 9 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nhim that his plea cannot stand as an admission of guilt.” James v. Cain, 56\nF.3d 662, 666 (5th Cir. 1995) (citation omitted).\n In addition, the district court must “determine that the factual conduct\nto which the defendant admits is sufficient as a matter of law to constitute a\nviolation of the statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir.\n2001) (en banc) (emphasis omitted). The district court must compare “(1) the\nconduct to which the defendant admits with (2) the elements of the offense\ncharged in the indictment or information” to ensure that the defendant\nunderstands not only the nature of the charge but also that his conduct falls\nwithin the charge. Id. at 315; see also United States v. Castro-Trevino, 464 F.3d\n536, 540 (5th Cir. 2006) (“The factual basis for the guilty plea must appear in\nthe record . . . and must be sufficiently specific to allow the court to determine\nthat the defendant’s conduct was within the ambit of that defined as criminal.”\n(quotation omitted) (alteration in original)). The underlying purpose of the rule\n“is to protect a defendant who may plead with an understanding of the nature\nof the charge, but without realizing that his conduct does not actually fall\nwithin the definition of the crime charged.” United States v. Reasor, 418 F.3d\n466, 470 (5th Cir. 2005) (quotation omitted).\n The district court found that the Lords’ guilty pleas were knowing and\nvoluntary based on the colloquy at re-arraignment. The indictment against the\nLords charged both means of violating the statute. While the Government\ncould not prove a § 1960 violation by relying on a state licensing requirement,\nthe evidence supporting the guilty plea established the Lords’ guilt under the\nsecond method, a premise they do not dispute on appeal. At the guilty plea\nhearing, an IRS agent testified that a regulation issued in March of 2013\nrequired bitcoin exchangers to register with FinCEN. The agent further\ntestified that the Lords did not register with FinCEN until November of 2014,\nby which time they had already exchanged $2.6 million dollars for bitcoins.\n 9\n\f Case: 17-30486 Document: 00514837233 Page: 10 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nAfter the witness testified, the court asked both Randall and Michael if either\nhad “any substantial disagreement with [that testimony].” Both stated they\ndid not. Given that § 1960 is disjunctive, the Lords’ admissions with respect to\nFinCEN registration were sufficient for the district court to determine that\nthey knowingly and voluntarily entered their pleas.\n g. Waste of Judicial Resources\n The Lords admit that some time may be considered wasted, but that such\nwaste cannot be avoided when the Government’s allegations in the complaint\nare based on an incorrect knowledge of the law. They add that the prejudice\nresulting from the district court’s denial of their motion substantially\noutweighs any inconveniences to the court or the Government.\n The district court found that allowing the Lords to withdraw their guilty\npleas would waste “some” judicial resources. However, this court in Carr\nexplained that the district court is in the best position to know the effect that\nwithdrawal has on its resources. 740 F.2d at 345; see also McKnight, 570 F.3d\nat 650 (noting the same). We find no reason to dispute the district court’s\nfinding on this factor.\n Based on the totality of circumstances, the evidence presented weighs\nagainst the withdrawal of the Lords’ guilty pleas. We affirm the district court’s\njudgment on this issue.\nB. Sentencing Calculations\n 1. Standard of Review\n\n In considering the procedural reasonableness of a sentence, we review\nthe district court’s interpretation and application of the sentencing guidelines\nde novo and its findings of fact for clear error. United States v. Cisneros-\nGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Findings are not clearly erroneous\nif they are plausible based on the record as a whole. United States v. Ochoa-\nGomez, 777 F.3d 278, 282 (5th Cir. 2015) (per curiam).\n 10\n\f Case: 17-30486 Document: 00514837233 Page: 11 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n However, determinations regarding whether the defendant is entitled to\na reduction for acceptance of responsibility are reviewed with particular\ndeference. The court of appeals will affirm the denial of a reduction for\nacceptance of responsibility unless it is “without foundation, a standard of\nreview more deferential than the clearly erroneous standard.” United States v.\nJuarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam).\n 2. Relevant Facts\n Between 2013 and November of 2014, the Lords deposited $2,656,491.37\ninto their MSB accounts for the exchange of bitcoin. While the Lords were\nbeing investigated, Michael was implicated in the shipment of a controlled\nsubstance from China to Alhasnat Laghari (“Laghari”) in Springhill,\nLouisiana. After a controlled delivery to Laghari, Laghari stated he accepted\nthe package for Michael. Further investigation revealed that Laghari was\ninvolved in online drug purchases and met Michael in the fall of 2014 to\npurchase bitcoin, which he used to buy drugs online.\n According to Laghari, Michael told him that he wanted to create a Xanax\nmanufacturing operation and become a vendor on the black market and\nLaghari agreed. They planned to manufacture hundreds and thousands of\nXanax pills, stockpile them, sell them for bitcoin through an internet shop as\nquickly as possible, and split the profits. Michael bought a pill press and\nshipped it to Laghari. Michael and Laghari used a locked storage room in a tire\nshop Laghari’s father owned to produce at least 10,000 Xanax tablets over a\nperiod of two to three weeks. In May 2015, Michael delivered between 8,000\nand 10,000 Xanax tablets to an acquaintance of Laghari’s for distribution.\n 3. Offense Levels\n The probation officer assigned Michael and Randall each a base offense\nlevel of six for the bitcoin conspiracy. Sixteen levels were added under\n§ 2S1.3(b)(1) and the table at § 2B1.1 based on the Lords’ deposits of more than\n 11\n\f Case: 17-30486 Document: 00514837233 Page: 12 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n$1,500,000 but less than $3,500,000. Two more levels were added under\n§ 2S1.3(b)(1) because the Lords knowingly exchanged monetary proceeds from\nthe distribution of a controlled substance, steroids, for bitcoin. Randall and\nMichael each had adjusted offense levels of 24 for the bitcoin conspiracy\noffense. Each defendant had a level I criminal history category.\n On the drug count, Michael’s base offense level of 24 for the Xanax\ntablets was based on a drug quantity between 100 and 400 kilograms of\nmarijuana. Two levels were added under § 2D1.1(b)(12), based on Michael\nmaintaining a premises for the purpose of manufacturing or distributing a\ncontrolled substance, for an adjusted offense level of 26. A multiple count\nadjustment was made to reach a combined adjusted offense level of 28. The\nGovernment objected, arguing, inter alia, that Michael’s offense level should\nbe enhanced another two levels under § 3B1.3 because he used a special skill\nto commit his drug offense.\n 4. Sentencing Hearing\n Laghari testified for the Government at sentencing as follows. He met\nMichael after using a website called “localbitcoins” and purchased bitcoin from\nhim. After he was arrested for drug activity, Laghari cooperated with law\nenforcement in recorded communications with Michael. Michael and Laghari\ncommunicated in “encrypted chats” on their laptop computers. The\nGovernment’s exhibits reflected other special applications that Laghari and\nMichael communicated over other applications, that Michael had working\nknowledge of several sites on the “darknet marketplace,” and that Michael and\nLaghari discussed which of those sites was the best place to advertise their\nmanufactured Xanax. Laghari told the court that Michael’s skill set included\nthe “[t]ech work” with respect to the “darknet” and encryption and that Michael\nintended to train Laghari. Laghari described Michael as “a very intelligent\ncomputer skills set-type person.”\n 12\n\f Case: 17-30486 Document: 00514837233 Page: 13 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n Laghari also identified in a photograph the substances he and Michael\nused to manufacture Xanax and the pill press that Michael bought. Laghari\nexplained that the drugs and the pill press were hidden in his father’s business\nin Arkansas because Laghari and Michael needed a location for their\noperation. At one point, after Laghari began cooperating with law enforcement,\nMichael became concerned that they were under investigation in Arkansas and\ndirected Laghari to move the pill press, unbeknownst to Randall, to Randall’s\noffice in Shreveport. Michael assured Laghari that his father would accept\ncash, would not make Laghari sign anything, and that Laghari could use the\npill press undisturbed at night when the building was empty.\n Laghari told the court that he used the pill press in Arkansas only twice,\nonce with Michael and once while alone. Laghari nevertheless confirmed that\nhe and Michael actually manufactured Xanax pills at Laghari’s father’s place\nof business in Arkansas.\n 5. District Court Ruling\n The district court overruled the Lords’ objection that the absence of an\n“actual loss” precluded the 16-level enhancement under §§ 2S1.3(b)(1) and\n2B1.1. The district court declined to award either defendant a deduction for\nacceptance of responsibility. The court overruled Michael’s objection to his\n§ 2D1.1(b)(1) enhancement, finding that he and Laghari exercised a form of\ndominion and control over the premises where the pill press and the raw\nmaterials for the pills were stored. The court also sustained the Government’s\nobjection to the lack of a § 3B1.1 enhancement, agreeing that Michael used\nself-taught computer skills to commit his drug offense.\nC. Use of the Value of Exchanged Funds\n 1. Applicable Law\n The guideline governing violations of 18 U.S.C. §§ 1960(a), (b)(1), and\n(b)(2) is U.S.S.G. § 2S1.3. This section provides that the base offense level is “6\n 13\n\f Case: 17-30486 Document: 00514837233 Page: 14 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nplus the number of offense levels from the table in § 2B1.1 . . . corresponding\nto the value of the funds.” U.S.S.G. § 2S1.3(a)(2). The Application Notes provide\nthat “‘value of the funds’ means the amount of the funds involved in the\nstructuring or reporting conduct,” U.S.S.G. § 2S1.3, cmt n.1, because “[t]he\nrelevant statutes require monetary reporting without regard to whether the\nfunds were lawfully or unlawfully obtained.” Id.\n 2. Analysis\n The Lords argue that their base offense levels were incorrect because\nthey did not cause the requisite “actual loss” for § 2B1.1 to apply. They point\nto § 2B1.1’s commentary, which states that “‘[a]ctual loss’ means the\nreasonably foreseeable pecuniary harm that resulted from the offense.”\nU.S.S.G. § 2B1.1, cmt. n.3(A)(i). They also point to its definition of “pecuniary\nharm” as “harm that is monetary or that otherwise is readily measurable in\nmoney,” but which does not include “emotional distress, harm to reputation, or\nother non-economic harm.” Id. at cmt. n.3(A)(iii). The Lords assert that none\nof their clients lost money, there is no evidence that the Lords intended for any\nmoney to be lost, stolen or defrauded, and their business, except for the\nFinCEN registration violation, was lawful. The Lords also suggest that the\ndistrict court should have departed below the guidelines range of\nimprisonment that resulted from applying § 2S1.3.\n The district court’s calculation represents a straightforward application\nof § 2S1.3(a)(2) and its commentary. See United States v. Caro, 454 F. App’x\n817, 879 (11th Cir. 2012) (unpublished) (“Insofar as Caro alleged that his\nsentence was procedurally unreasonable due to the application of U.S.S.G. §\n2S1.3 and the corresponding [§ 2B1.1] loss calculation, that guideline explicitly\ncontemplated his offense of conviction, and the District Court calculated the\nloss according to its plain language.”). Nowhere does § 2S1.3 suggest that there\nmust be a “loss” associated with the structuring or reporting offense. The\n 14\n\f Case: 17-30486 Document: 00514837233 Page: 15 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\ndistrict court duly noted that it is “not necessary under the guidelines for a\nspecific person or business entity to lose money for the calculation to apply,” as\n“the process itself and the failure to register properly are so-called societal-type\ncrimes with harm resulting from transactions which are not adequately\ntracked and registered in accordance with law.” The First Circuit has explicitly\nrejected the argument that an enhancement under § 2S1.3 is inappropriate if\nthere was no “loss” in the crime. See United States v. Beras, 183 F.3d 22, 27\n(1st Cir. 1999). Consequently, the enhancement was proper.\n The district court also did not err in declining to depart below the\nguidelines range of imprisonment. The district court assured the Lords at\nsentencing that it was open to downward departures but indicated that in light\nof the evidence presented at the sentencing hearing, it was not inclined to do\nso. Because the district court knew it could depart downwardly but chose not\nto, this court lacks jurisdiction to review the Lords’ argument that they were\nentitled to a downward departure. See United States v. Fillmore, 889 F.3d 249,\n255 (5th Cir. 2018).\nD. Acceptance of Responsibility\n 1. Applicable Law\n A defendant who “clearly demonstrates acceptance of responsibility for\nhis offense” receives a two-level reduction in his offense level. U.S.S.G. §\n3E1.1(a). Such a defendant can receive an additional one-level reduction if his\noffense level prior to any acceptance-of-responsibility reduction is 16 or\ngreater, and the United States so moves, representing “the defendant has\nassisted authorities in the investigation or prosecution of his own misconduct\nby timely notifying authorities of his intention to enter a plea of guilty, thereby\npermitting the government to avoid preparing for trial and permitting the\ngovernment and the court to allocate their resources efficiently. ” Id. § 3E1.1(b).\n\n\n 15\n\f Case: 17-30486 Document: 00514837233 Page: 16 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n“The defendant bears the burden of demonstrating that he is entitled to the [§\n3E1.1] reduction.” United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996).\n A defendant who “falsely denies, or frivolously contests, relevant conduct\nthat the court determines to be true has acted in a manner inconsistent with\nacceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n.1(A). Further, a\ndefendant who pleads guilty, initially admitting the conduct underlying his\nguilty plea, but then later attempts to withdraw his plea, asserting innocence,\ndoes not demonstrate “sincere contrition” for purposes of § 3E1.1. United States\nv. Espinoza, 62 F. App’x 557, 557 (5th Cir. 2003) (per curiam) (unpublished);\nsee also United States v. Bastian, 603 F.3d 460, 465 (8th Cir. 2010) (“A\ndefendant’s attempt to withdraw his guilty plea may be evidence that he did\nnot accept responsibility for his offense.”).\n 2. Analysis\n The Lords argue that the district court erred when it denied them\nreductions for acceptance of responsibility. In denying the Lords any reduction\nfor acceptance of responsibility, the district court cited Randall’s erroneous\ncontention that he never actually operated the exchange business and did not\nprofit from it. The court also pointed to the Lords’ objections to the\ndetermination that they exchanged $2.6 million for bitcoin; their objections to\ntheir base offense levels based on their assertion that there were no victims;\nand their attempt to withdraw their guilty pleas.\n The record supports the district court’s assessment that the Lords had\nnot accepted responsibility for their bitcoin conspiracy offense. As such, the\nLords fail to show that the district court’s denial of a reduction for acceptance\nof responsibility was without foundation. See United States v. Anderson, 174\nF.3d 515, 525 (5th Cir. 1999).\n\n\n\n\n 16\n\f Case: 17-30486 Document: 00514837233 Page: 17 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nE. Maintaining a Premises for the Purpose of Manufacturing or\nDistributing Controlled Substances\n\n 1. Applicable Law\n Section 2D1.1(b)(12) of the guidelines provides a two-level enhancement\nif the defendant “maintained a premises for the purpose of manufacturing or\ndistributing a controlled substance.” According to the commentary,\n“[m]anufacturing or distributing a controlled substance need not be the sole\npurpose for which the premises was maintained, but must be one of the\ndefendant’s primary or principal uses for the premises, rather than one of the\ndefendant’s incidental or collateral uses for the premises.” U.S.S.G. § 2D1.1,\ncmt. n.17. In making our determination, we consider whether the defendant\nheld a possessory interest in the property and “the extent to which [he]\ncontrolled access to, or activities at, the premises.” Id.\n 2. Analysis\n Michael argues that the district court erred by enhancing his sentence\nunder § 2D1.1(b)(12) because he lacked an ownership interest in Laghari’s\nfather’s tire shop, he had no access to the shop or control over the activities,\nand was only on the premises one time.\n The Government relies on the following undisputed evidence to support\nthe enhancement: (1) Michael and Laghari acquired a pill press and the raw\nmaterials needed to manufacture Xanax pills; (2) they stored the pill press and\nthe materials in a locked storage room in Laghari’s father’s business in\nArkansas; and (3) they met on one occasion in that room, spent ten to twelve\nhours calibrating the pill press, and produced a batch of “dummy” pills to test\nthe machine. The Government adds that in furtherance of their agreement to\nproduce pills for sale, Laghari used that room to produce 10,000 pills\ncontaining Alprazolam, a controlled substance. Finally, the Government\nmaintains that when Michael grew concerned that law enforcement was\n 17\n\f Case: 17-30486 Document: 00514837233 Page: 18 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\ninvestigating them, he directed Laghari to move the pill press to a new\nlocation—his father’s business.\n While it is true Michael neither personally owned nor rented the building\nor room where the pill press was stored and the pills were produced, formal\nownership is not dispositive. See United States v. Guzman-Reyes, 853 F.3d 260,\n265 (5th Cir. 2017) (“Although Guzman’s name may not have been on a formal\nlease agreement or ownership documents . . . it would defy reason for a drug\ndealer to be able to evade application of the enhancement by the simple\nexpedient of maintaining his stash house under someone else’s name.”\n(quotation omitted)); United States v. Rodney, 532 F. App’x 465, 472–73 (5th\nCir. 2013) (per curiam) (unpublished) (upholding application of the\nenhancement where the defendant neither rented nor owned the shed that\nstored his drugs).\n In Guzman-Reyes, the defendant gave the shop owner about one ounce\nof methamphetamine per month, a value of approximately $1,000, in exchange\nfor storage of his drugs at the shop. 853 F.3d at 263. Guzman-Reyes did not\nhave keys to the shop, but contacted his co-conspirator whenever he needed\naccess. Id. This court upheld the application of the enhancement, relying on\nGuzman-Reyes’ “unrestricted access to the premises” through his co-\nconspirator. Id. at 264–65. Most of the cases that Guzman-Reyes cites concern\ndefendants who occupied or paid the rent for premises, United States v.\nRoberts, 913 F.2d 211, 221 (5th Cir. 1990), coordinated the acquisition and\nfinancial management of the property, United States v. Carter, 834 F.3d 259,\n263 (3d Cir. 2016), or were at least frequently present at a relative’s place and\nhad coordinated drug activities there over a considerable period of time, United\nStates v. Morgan, 117 F.3d 849, 855–57 (5th Cir. 1997).\n In this case, it is undisputed that Michael and Laghari were to split the\nprofits of whatever drugs were sold after manufacturing was complete at the\n 18\n\f Case: 17-30486 Document: 00514837233 Page: 19 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\ntire shop. However, we do not have any evidence that Michael could have\ngained or did gain “unrestricted access to the premises” through Laghari.\nGuzman-Reyes, 853 F.3d at 265. The storage room here was explicitly owned\nby Laghari’s father. Though Laghari had his own key and could open and use\nthe room without his father’s permission, Michael did not. There is no\nindication that Michael was able to access the storage room without Laghari’s\nexpress permission and physical assistance unlocking the door. In fact, Michael\nwent there only once, when Laghari permitted him access and worked in there\nwith him.\n In Rodney, this court reasoned that the defendant had “unimpeded\naccess to the shed and used it as he wished.” 532 F. App’x at 473. Again, there\nis no evidence that Michael exercised control over the “access to, or activities\nat, the premises.” U.S.S.G. § 2D1.1, cmt. n.17. Michael’s control appears to be\ndemonstrated more so through his possessory interest in the pill press than\nthe premises itself. Consequently, the enhancement is improper.\nF. Use of a Special Skill\n 1. Applicable Law\n Section 3B1.3 of the guidelines provides a two-level enhancement if the\ndefendant “used a special skill, in a manner that significantly facilitated the\ncommission or concealment of the offense.” U.S.S.G. § 3B1.3. According to the\ncommentary, a “special skill” is one “not possessed by members of the general\npublic and usually requiring substantial education, training, or licensing.\nExamples would include pilots, lawyers, doctors, accountants, chemists, and\ndemolition experts.” 2 Id. § 3B1.3, cmt. n.4.\n\n\n\n\n 2 The sentencing guidelines do not provide any advisory or explanatory information\nbeyond this commentary.\n 19\n\f Case: 17-30486 Document: 00514837233 Page: 20 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\n 2. Analysis\n Michael argues that the district court erred when it enhanced his\nsentence under § 3B1.3 because he had no formal education, training, or\nlicensing in regard to his computer skills, and there was no evidence as to any\nself-taught education. He asserts that people his age (31) possess extensive\ncomputer skills. Michael maintains that the ability to download a “special\nsoftware” and install it on one’s computer to access the “dark web” can be\ncompleted with “a simple Google search and requires average computer\ncompetency.”\n In applying § 3B1.3, the district court relied on an Eleventh Circuit case\nupholding the enhancement where, in furtherance of a drug conspiracy, the\ndefendant used his self-taught skills as an advanced-level radio operator to\ncontact the source of cocaine in Colombia. See United States v. Malgoza, 2 F.3d\n1107, 1108–09, 1111–12 (11th Cir. 1993). The PSR in that case indicated that\nthe defendant had used a radio to Colombia so many times that he had become\nan expert. Id. at 1109.\n While this circuit has applied the enhancement to skills obtained outside\nof college-level or other formal education, these cases do not provide analogous\nfacts. Two of the most relevant cases both concerned defendants who obtained\nspecialized credentials requiring at least an informal course of study. See, e.g.,\nUnited States v. Villafranca, 844 F.3d 199, 199–200 (5th Cir. 2016) (per\ncuriam), cert. denied, 137 S. Ct. 1393 (2017) (finding “the ability to drive a\ntractor trailer truck as evidenced by the possession of a commercial driver’s\nlicense constitutes a special skill for purposes of § 3B1.3”); United States v.\nRorex, 16 F.3d 1214, 1214 (5th Cir. 1994) (per curiam) (unpublished) (affirming\napplication of the enhancement to a defendant who never finished high school\nand learned tax preparation skills in a three month program at H & R Block).\nThe record does not indicate Michael ever engaged in any course of study with\n 20\n\f Case: 17-30486 Document: 00514837233 Page: 21 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nregard to computers, nor was he certified in this pursuit. This suggests the\nenhancement does not apply, and case law out of our sister circuits that have\ndealt with similar computer skills issues confirms this result.\n In United States v. Green, 962 F.2d 938 (9th Cir. 1992), the Ninth Circuit\nreversed a special skills enhancement. Green took graphic design classes,\nlearned from an instructor about paper that could be used for currency and\nabout how it could be properly cut, ordered the special paper, and took\nnumerous photographs of currency in the course of his counterfeiting scheme.\nId. at 940. The Ninth Circuit held that the printing and photographic skills\nwere not so “special” as to permit the district court to impose the enhancement,\nstating it’s not enough that “the offense was difficult to commit.” Id. at 944.\n The Ninth Circuit in United States v. Petersen, 98 F.3d 502 (9th Cir.\n1996) distinguished Green and applied the enhancement to an expert hacker,\nproviding helpful guidance on the application of the enhancement to computer\nskills. Petersen hacked into a national credit reporting agency’s computer\nsystem and stole personal information that he used to order fraudulent credit\ncards. Id. at 504. Then he hacked into a telephone company’s computers, seized\ncontrol of the telephone lines to a radio station, and arranged for himself and\nhis confederates to be the callers who “won” two Porsches, $40,000, and two\ntrips to Hawaii in a radio call-in contest. Id. Then he hacked into a national\ncommercial lender’s computer and had it wire $150,000 to him through two\nother banks. Id. at 505. “This goes far beyond the computer skills of a clever\nhigh school youth or even many people who earn their livings as computer\ntechnicians and software engineers.” United States v. Lee, 296 F.3d 792, 796\n(9th Cir. 2002) (holding that developing a basic website does not require\n“special skills” as established in Petersen).\n The district court found that Petersen had “extraordinary knowledge of\nhow computers work and how information is stored, how information is\n 21\n\f Case: 17-30486 Document: 00514837233 Page: 22 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nretrieved, and how the security of those systems can be preserved or invaded,”\nand imposed the special skills enhancement. Petersen, 98 F.3d at 506. The\nNinth Circuit affirmed, holding that “[d]espite Petersen’s lack of formal\ntraining or licensing, his sophisticated computer skills reasonably can be\nequated to the skills possessed by pilots, lawyers, chemists, and demolition\nexperts” for purposes of the special skills enhancement. Id. at 507. In a\nfootnote, the Ninth Circuit went out of its way to caution against routine\napplication of the special skills enhancement to people with computer skills:\n We do not intend to suggest that the ability to use or access\n computers would support a “special skill” adjustment under all\n circumstances. Computer skills cover a wide spectrum of ability.\n Only where a defendant’s computer skills are particularly\n sophisticated do they correspond to the Sentencing Commission’s\n examples of “special skills”—lawyer, doctor, pilot, etc. Courts\n should be particularly cautious in imposing special skills\n adjustments where substantial education, training, or licensing is\n not involved.\nId. at 507 n.5; see also Lee, 296 F.3d at 798 (“[T]his adjustment becomes open-\nended to the point of meaninglessness if the phrase ‘special skill’ is taken out\nof its context.”).\n In United States v. Godman, 223 F.3d 320 (6th Cir. 2000), the Sixth\nCircuit considered Petersen and quoted and followed the limiting footnote. Id.\nat 322–23. Like Green, Godman was a counterfeiter, but Godman used an off-\nthe-shelf professional page publishing program, Adobe PageMaker, with a\nscanner and a color inkjet printer. Id. at 322. He had learned PageMaker in a\nweek, and had specialized computer experience preparing and repeatedly\nupdating a color catalog. Id. Godman held that the special skills enhancement\ncould not properly be imposed because Godman’s level of computer skills was\nnot analogous to the level of skill possessed by lawyers, doctors, pilots, and\nother specialized professionals. Id. at 323. The Sixth Circuit held that the\ndistrict court erred by stressing “overmuch” that Godman’s skills were not\n 22\n\f Case: 17-30486 Document: 00514837233 Page: 23 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\nshared by the general public: “As the Application Note’s reference to the\nsubstantial training of such professionals as doctors and accountants suggests,\nemphasis is better placed on the difficulty with which a particular skill is\nacquired.” Id. at 322. The Sixth Circuit emphasized that “[s]uch skills are\nacquired through months (or years) of training, or the equivalent in self-\ntutelage.” Id. at 323. A defendant’s self-taught skills must be “particularly\nsophisticated.” Id.\n The Sixth Circuit later expanded on the self-taught skills discussed in\nGodman and applied the special skills enhancement to a defendant’s sentence\nfor trafficking circumvention technology. See United States v. Reichert, 747\nF.3d 445 (6th Cir. 2014). Although Reichert argued that he was a truck driver\nwith only a high school diploma, building on skills learned in a high school\nvocational program that taught him how to build his own computer systems\nfrom components, he continued to modify consoles for almost half of a decade.\nId. at 455. Reichert was lauded within the gaming community as one of a very\nfew individuals who knew the work-around for one of the most complicated\nmodifications. Id. His expert assistance was actively sought out and paid for\nby gamers who had attempted to modify consoles but were unable to do so or\nwho were trying to prevent manufacturers from detecting that consoles had\nbeen modified. Id.\n As set forth above, Laghari’s testimony established that Michael was\nadept at using the darknet in connection with selling illicit drugs and that he\npersonally believed that Michael was skilled at using computers. Michael’s\nPSR reflects, however, that he withdrew from high school in the tenth grade\nand obtained his Graduate Equivalency Diploma in 2008. Further, his\nemployment history included only the bitcoin exchange business at issue here\nand working as a movie extra from 2008 to 2010. Michael did not have a\ncollege-level or higher education, did not possess a license or certificate\n 23\n\f Case: 17-30486 Document: 00514837233 Page: 24 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\npertaining to computers, and had never worked in a field that even\ntangentially related to computers. Accordingly, Michael’s background does not\ndemonstrate any education, training or licensing in the skills at issue. See\nUnited States v. Gill, 642 F. App’x 323, 326 (5th Cir. 2016) (finding defendant’s\ncommercial driver’s license provided him a special skill for transporting\nundocumented aliens); United States v. Stalnaker, 571 F.3d 428, 441 (5th Cir.\n2009) (holding defendant attorney performing mortgage closing possessed\nspecial skill warranting enhancement for convictions arising out of mortgage\nfraud); United States v. Olis, 429 F.3d 540, 549 (5th Cir. 2005) (affirming\ndefendant accountant’s enhancement for use of his special skills in accounting\nand tax matters to advance “extremely sophisticated, but fraudulent, scheme”).\n Neither Michael’s skills nor their results come close to the “expert\nhacker” in Peterson or the technology trafficker in Reichert. Petersen and\nReichert had acquired extraordinary knowledge that allowed them to\ncircumvent sophisticated systems. Michael’s self-taught skills were more like\nGreen’s or Godman’s, and not in the class of “pilots, lawyers, doctors,\naccountants, chemists, and demolition experts.” 3 Thus, the district court’s\nimposition of the special skills enhancement was not supported by the findings.\nWe reverse and remand for resentencing solely on this issue.\n III. CONCLUSION\n For the foregoing reasons, we AFFIRM the district court’s judgment as\nto Michael Lord and Randall Lord, with the exception that we REVERSE and\nREMAND for resentencing as to Michael Lord’s maintaining a premises for the\n\n\n\n\n 3 We stress that our holding here is limited to the specific facts and circumstances of\nthis case and should in no way be interpreted to routinely apply to every case in which\ninternet searches are used to aid in the perpetration of a crime.\n\n 24\n\f Case: 17-30486 Document: 00514837233 Page: 25 Date Filed: 02/15/2019\n\n\n\n No. 17-30486\npurpose of manufacturing or distributing a controlled substance enhancement\nand special skills enhancement.\n\n\n\n\n 25", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368660/", "author_raw": "CARL E. STEWART, Chief Judge"}]}	STEWART	DENNIS	WILLETT	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591407/	Published	1	0	0	2,019	2	[ { "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...
4,591,410	Obie D. WEATHERS, III, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee	Obie Weathers, III v. Lorie Davis, Director	2019-02-15	15-70030	U.S. Court of Appeals for the Fifth Circuit	{"judges": "King, Jones, Haynes", "parties": "", "opinions": [{"author": "EDITH H. JONES, Circuit Judge:", "type": "010combined", "text": "Case: 15-70030 Document: 00514838227 Page: 1 Date Filed: 02/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 15-70030 February 15, 2019\n Lyle W. Cayce\nOBIE D. WEATHERS, III, Clerk\n\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\nON REMAND FROM THE SUPREME COURT OF THE UNITED STATES\n\n\nBefore KING, JONES, and HAYNES, Circuit Judges.\nEDITH H. JONES, Circuit Judge:\n This case was remanded from the Supreme Court of the United States\nfor reconsideration in light of its decision in Moore v. Texas, 137 S. Ct. 1039\n(2017). There, on direct appeal, the Supreme Court held that the Briseño\nfactors “may not be used . . . to restrict qualification of an individual as\nintellectually disabled.” Moore, 137 S. Ct. at 1044; see Ex parte Briseño,\n135 S.W.3d 1, 3 (Tex. Crim. App. 2004), abrogated by Moore v. Texas, 137 S. Ct.\n1039 (2017). Because applying Moore retroactively to this case contradicts the\n\f Case: 15-70030 Document: 00514838227 Page: 2 Date Filed: 02/15/2019\n\n\n\n No. 15-70030\nCourt’s recent decision in Shoop v. Hill, ___ S. Ct. ___ (Jan. 7, 2019), we affirm\nthe district’s court’s judgment\n BACKGROUND\n Obie Weathers III was convicted of the 2000 capital murder of Ted\nChurch and was sentenced to death for that crime. His conviction and sentence\nwere affirmed on direct appeal, Weathers v. State, 2003 WL 22410067 (Tex.\nCrim. App. Oct. 22, 2003). Then followed two rounds of state habeas review,\nthe last of which concerned his Atkins claim and was resolved against him in\n2014. In Weathers v. Davis, 659 F. App’x 778 (5th Cir. 2016), cert. granted,\njudgment vacated, 138 S. Ct. 315 (2018), this court denied a COA to appeal the\nfederal district court’s rejection of habeas relief on his Atkins claim.\n Weathers sought certiorari from the Supreme Court, urging for the first\ntime that Texas’s Briseño factors used as an adjunct to clinical findings of\nmental retardation were unconstitutional. In light of Moore, the Supreme\nCourt granted his petition and remanded the case to this court for further\nconsideration. We granted a COA and obtained additional briefing from both\nparties to consider whether the state courts’ rejection of Weathers’s Atkins\nclaim was reasonable in light of Moore.\n In 2016, this court summarized the facts of this case:\n After a crime spree involving a string of burglaries,\n theft, one murder, and one sexual assault of an elderly\n man over the course of just a few months, one evening\n in February, 2000, Weathers entered Pierce’s Ice\n House, a tavern in San Antonio, Texas, wielding a\n handgun and concealing his face with a pillowcase\n with eyeholes cut out. Weathers informed the patrons\n that he intended to rob the ice house, but he told the\n three black men present to remain calm because he\n only wanted to rob the white individuals. Weathers\n robbed the white patrons, then ordered a waitress at\n gun point to empty the cash register. While the\n waitress was carrying the till to Weathers, she\n 2\n\f Case: 15-70030 Document: 00514838227 Page: 3 Date Filed: 02/15/2019\n\n\n\n No. 15-70030\n stumbled and Weathers pointed his gun at her head.\n At this time, one of the bar patrons, Ted Church . . .\n swung at and grabbed Weathers. In the ensuing\n struggle, Weathers shot Church twice in the head and\n once in the abdomen. Weathers fled with over two-\n hundred dollars, but he was apprehended eleven days\n later and confessed to this and other crimes. Church\n was rushed to the hospital and underwent multiple\n surgeries, but he died weeks later from irreparable\n damages to his pancreas caused by the gunshot\n wound.\n\nWeathers, 659 F. App’x at 779-80.\n This court’s 2016 opinion discusses at length Weathers’s various appeals\nand concluded that reasonable jurists could not debate the district court’s\ndenial of his Atkins-claim. That opinion also examines the facts underlying his\ncontention that the state court inappropriately credited the State’s medical\nexpert while discrediting Weathers’s expert. This court also noted “the dearth\nof evidence concerning the third prong of Briseño (adopting the AAMR),\nwhether any intellectual disability and adaptive deficits were evident before\nage 18.” Weathers, 659 F. App’x at 789. 1\n DISCUSSION\n We granted a COA on remand from the Supreme Court, received further\nbriefing, and reviewed the district court’s findings of fact for clear error and its\nconclusions of law de novo. Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.\n2001). To obtain federal habeas relief from state custody, AEDPA requires the\n\n\n\n 1 This court observed that “[t]here was no IQ evidence before Weathers turned 18, and\nthe anecdotal evidence about his pre-adult years was decidedly mixed.” Weathers,\n659 F. App’x at 789. While some teachers testified that Weathers struggled in school, others\nwrote in school reports that Weathers was capable but instead chose not to complete his work.\nId. One teacher testifying in support of Weathers was unable to explain why he had received\nsuch high grades from her. Id. Further, while Weathers was placed in special education\nclasses when he was younger, the record did not provide a reason for the placement (whether\nintellectual, emotional, or behavioral). Id.\n 3\n\f Case: 15-70030 Document: 00514838227 Page: 4 Date Filed: 02/15/2019\n\n\n\n No. 15-70030\npetitioner to demonstrate that the state court’s adjudication of the claim\n“resulted in a decision that was contrary to, or involved an unreasonable\napplication of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or\n“resulted in a decision that was based on an unreasonable determination of the\nfacts in light of the evidence presented in the State court proceeding,” id.\n§ 2254(d)(2). Williams v. Stephens, 761 F.3d 561, 566 (5th Cir. 2014). Events\nfollowing the remand have rendered further discussion of many of the parties’\narguments unnecessary.\n We adhere to this court’s previous decision because the Supreme Court\nhas just affirmed that lower courts may not properly apply Moore retroactively\nin habeas corpus to state court decisions that preceded it. Shoop v. Hill,\n__ S. Ct. at ___ (holding that Moore was not “clearly established law” under\nAEDPA regarding execution of the mentally disabled in 2008 when the Ohio\nCourt of Appeals rejected a petitioner’s Atkins claim).\n Shoop resolved a circuit split between Cain v. Chappell, 870 F.3d 1003,\n1024 n.9 (9th Cir. 2017) (“Moore itself cannot serve as ‘clearly established’ law\nat the time the state court decided Cain’s claim.”), pet. for cert. filed, No. 17-\n9218 (June 5, 2018); Davis v. Kelley, 854 F.3d 967, 970 (8th Cir. 2017) (same),\nand Hill v. Anderson, 881 F.3d 483, 492 (6th Cir. 2018), vacated and remanded\nsub nom. Shoop v. Hill.\n Moore and Hall 2 (on which Weathers also places some weight) were both\ndecided after the Texas courts rejected Weathers’s Atkins claim. Compare Ex\nparte Weathers, 2014 WL 1758977 (April 30, 2014), with Moore, 137 S. Ct. 1039\n(2017), and Hall, 134 S. Ct. 1986 (May 27, 2014). As with Moore, it cannot be\ncontended that Hall, which overturned a formulaic IQ standard that had been\nused by the state of Florida but never in Texas, simply enunciated “clearly\n\n\n 2 Hall v. Florida, 134 S. Ct. 1986 (2014).\n 4\n\f Case: 15-70030 Document: 00514838227 Page: 5 Date Filed: 02/15/2019\n\n\n\n No. 15-70030\nestablished Federal law” made retroactive as required by AEDPA. Kilgore v.\nSec’y., Fla. Dep’t. of Corr., 805 F.3d 1301, 1315 (11th Cir. 2015), cert. denied,\n138 S. Ct. 446 (2017). Hall even acknowledged it was extending Supreme\nCourt precedent based on the Court’s independent judgment. Hall, 134 S. Ct.\nat 1999-2000; Kilgore, id.\n Consequently, Shoop bars our considering the applicability of Moore to\nWeathers’s earlier-rejected claim of mental disability. The judgment of the\ndistrict court is AFFIRMED.\n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368663/", "author_raw": "EDITH H. JONES, Circuit Judge:"}]}	KING	JONES	HAYNES	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591410/	Published	1	0	0	2,019	2	[ { "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...
4,591,411	Kevin WALLACE, Plaintiff - Appellant v. ANDEAVOR CORPORATION, Defendant - Appellee	Kevin Wallace v. Tesoro Corporation	2019-02-15	17-50927	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Jones, Clement, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-50927 Document: 00514837986 Page: 1 Date Filed: 02/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 17-50927\n Fifth Circuit\n\n FILED\n February 15, 2019\n\nKEVIN WALLACE, Lyle W. Cayce\n Clerk\n Plaintiff - Appellant\n\nv.\n\nANDEAVOR CORPORATION,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for theWestern District of Texas\n\n\nBefore JONES, CLEMENT, and SOUTHWICK, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n This suit concerns the federal Sarbanes-Oxley Act, which protects those\nwho blow the whistle on their employer’s failure to comply with Securities and\nExchange Commission reporting requirements. The district court found that\nthe employer’s decision to fire the plaintiff was not prohibited retaliation and\nthat the plaintiff did not have an objectively reasonable belief that a violation\nof reporting requirements had occurred. We AFFIRM.\n\n\n FACTS AND PROCEDURAL HISTORY\n Plaintiff Kevin Wallace worked for Tesoro Corporation from June 2004\nuntil his termination in March 2010. In 2009 and 2010, Wallace was a Vice\n\f Case: 17-50927 Document: 00514837986 Page: 2 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\nPresident of Pricing and Commercial Analysis. Wallace reported to Claude\nMoreau, who reported to Everett Lewis. At some point in late 2009 or early\n2010, Lewis tasked Wallace with investigating financial performance in\nvarious industry segments. Through the investigation, Wallace came to\nbelieve that Tesoro misunderstood the comparative profitability of certain\nregions. Wallace also determined that Tesoro improperly booked taxes as\nrevenues in certain internal reporting channels. 1\n On February 8, 2010, Wallace sent an email to Moreau and Tracy\nJackson, Tesoro’s Vice President of Internal Audits, explaining that Pacific\nNorthwest intracompany profit calculations were erroneous in part due to the\naccounting for taxes. Wallace wrote that “external retail could be ok because\nit is treated differently in the intracompany process.” After sending that email,\nWallace met with Jackson on either February 8 or 9. According to Wallace,\nJackson was concerned that a footnote in Tesoro’s SEC disclosures might have\nbeen incorrect.\n On February 9, Wallace sent another email discussing Tesoro’s practice\nof booking taxes as revenues and stated that he did not think “there is any\nchance that at the corporate level this is not properly accounted for.”\nInferences from Wallace’s testimony could be drawn that after the February 9\nemail he changed his mind, became concerned that Tesoro did not properly\naccount for sales taxes in Tesoro’s SEC disclosures, and spoke to Moreau about\nthe issue.\n\n\n\n\n 1We were notified in the appellee’s briefing that in 2017, Tesoro changed its name to\nAndeavor Corporation. Appellant moved in November 2018 to substitute Marathon\nPetroleum Corporation as the appellee, as Marathon allegedly had acquired all the shares of\nAndeavor. We agree to substitute Andeavor as the appellee in the caption of this case but\nsee no basis to make Marathon the party. We will, nonetheless, refer to the appellee in the\nopinion as Tesoro, as it was the name of the party at the time of these events.\n 2\n\f Case: 17-50927 Document: 00514837986 Page: 3 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\n Wallace was also a sub-certifier of Tesoro’s financial statements. In early\n2010, Wallace certified that he knew of no reason why the 2009 Form 10-K\ncould not be certified. The filing expressly included the following:\n Federal excise and state motor fuel taxes, which are remitted\n to governmental agencies through our refining segment and\n collected from customers in our retail segment, are included in\n both “Revenues” and “Costs of sales and operating expenses.”\n These taxes, primarily related to sales of gasoline and diesel fuel,\n totaled $283 million, $278 million and $240 million in 2009, 2008\n and 2007, respectively.\nTesoro also disclosed in its 10-K that “[f]ederal and state motor fuel taxes on\nsales by our retail segment are included in both ‘Revenues’ and ‘Costs of sales\nand operating expenses.’” Jackson testified that the disclosures included both\nexcise and sales taxes. On March 12, 2010, the day of Wallace’s termination,\nWallace certified that he was unaware of any “business or financial transaction\nthat may not have been properly authorized, negotiated, or recorded” for 2009.\n While Wallace was investigating internal comparative profitability and\naccounting for taxes, the Tesoro human resources department began\ninvestigating Wallace. It found a pattern of unacceptable behavior, including\nfavoritism and fostering a hostile work environment. Tesoro terminated\nWallace and asserts it was for his poor performance. Wallace claims he was\nterminated in retaliation for reporting Tesoro’s practice of booking sales taxes\nas revenues, which he claims was not properly disclosed in Tesoro’s public\nfilings.\n Wallace brings his claim under the anti-retaliation provision of the\nSarbanes-Oxley Act (“SOX”). 18 U.S.C. § 1514A(a). He claims he personally\ntold Moreau that Tesoro “puffed” revenue figures in SEC filings. Tesoro moved\nfor summary judgment. Wallace responded with briefing and a declaration\nfrom Douglas Rule. Tesoro moved to strike the declaration. The magistrate\njudge struck only those portions that it determined were expert testimony, and\n 3\n\f Case: 17-50927 Document: 00514837986 Page: 4 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\nthe district court adopted those recommendations. The magistrate judge also\nrecommended that summary judgment be granted to Tesoro. The district court\ndid so. Wallace appeals, claiming error in granting summary judgment and in\nstriking portions of Rule’s declaration.\n\n\n DISCUSSION\n We review the grant of summary judgment de novo. Morris v. Powell,\n449 F.3d 682, 684 (5th Cir. 2006). All inferences “must be viewed in the light\nmost favorable to the nonmoving party.” Bolton v. City of Dallas, 472 F.3d 261,\n263 (5th Cir. 2006). A movant is entitled to summary judgment if it “shows\nthat there is no genuine dispute as to any material fact and the movant is\nentitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).\n Wallace’s retaliation claim is brought under the whistleblower\nprotections of SOX. Registered companies are prohibited from\n discharg[ing] . . . an employee . . . because of any lawful act done\n by the employee to provide information . . . regarding any conduct\n which the employee reasonably believes constitutes a violation of\n . . . any rule or regulation of the Securities and Exchange\n Commission . . . when the information . . . is provided to . . . a\n person with supervisory authority over the employee.\n18 U.S.C. § 1514A(a). A retaliation claim under that provision requires an\nemployee prove “by a preponderance of the evidence, that (1) he engaged in\nprotected whistleblowing activity, (2) the employer knew that he engaged in\nthe protected activity, (3) he suffered an ‘adverse action,’ and (4) the protected\nactivity was a ‘contributing factor’ in the ‘adverse action.’” Halliburton, Inc. v.\nAdmin. Review Bd., 771 F.3d 254, 259 (5th Cir. 2014) (footnote omitted)\n(quoting Allen v. Admin. Review. Bd., 514 F.3d 468, 475-76 (5th Cir. 2008)).\nWallace must also show that his belief that Tesoro committed a covered\nviolation was both objectively and subjectively reasonable. Wallace v. Tesoro\nCorp., 796 F.3d 468, 474-75 (5th Cir. 2015). “The objective standard examines\n 4\n\f Case: 17-50927 Document: 00514837986 Page: 5 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\nwhether the belief would be held by ‘a reasonable person in the same factual\ncircumstances with the same training and experience as the aggrieved\nemployee.’” Id. (quoting Allen, 514 F.3d at 477).\n Wallace claims that the covered conduct he reported was that Tesoro\nreported “puffed” revenue figures “to the SEC and the public.” Wallace points\nto a statement by a “Tesoro pricing official,” who “confirmed” that the\n“misallocations found by Wallace’s investigation overstated profits by $30\nmillion.” Wallace’s claim centers on his purported belief that the inclusion of\nsales taxes in revenues for the retail segment was not properly disclosed in\nSEC filings. Wallace acknowledges that excise taxes were disclosed, but he\nbelieved Tesoro was not accurately reporting its treatment of sales taxes.\nWallace claimed that “revenues were not being recognized appropriately,\naffected consolidated numbers[,] and were misreported in the 10-K and 10-Q\nfilings . . . . violat[ing] the SEC rules requiring compliance with GAAP, keeping\naccurate books, maintaining internal controls[,] and filing correct reports.”\n This case turns on whether Wallace’s purported belief that his employer\nwas misreporting its revenue was objectively reasonable in light of the\nundisputed facts. If Wallace’s belief was not objectively reasonable, his SOX\nretaliation claim fails. See id. In answering that question, we must also\nresolve an evidentiary dispute.\n\n\n A. Objective Reasonableness of Wallace’s Claimed Belief\n We start with examining Wallace’s training and experience that forms\nthe basis of his belief. See id. Wallace had extensive business experience that\nincluded “implementing best business practices,” performance and market\nanalysis, oversight of accounting services, asset valuation, and experience with\nTesoro’s internal accounting system, which Wallace refers to as a “SAP\nsystem.” As a sub-certifier at Tesoro, Wallace had specific expertise in its SEC\n 5\n\f Case: 17-50927 Document: 00514837986 Page: 6 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\nfinancial reporting practices. Given Wallace’s background and experience with\naccounting and SEC reporting, he should be capable of understanding\ndisclosures in SEC filings.\n We next turn to the facts underlying Wallace’s claim. Wallace testified\nhe reviewed the 2009 10-K, which was filed March 1, 2010, shortly before his\ntermination on March 12, 2010. As a certifier, he was required to state\nwhether he knew of any reason why the 2009 10-K could not be certified.\nWallace testified that he knew of no reason why the 2009 10-K could not be\ncertified. Notably, the 2009 10-K included the following language:\n Federal excise and state motor fuel taxes, which are remitted\n to governmental agencies through our refining segment and\n collected from customers in our retail segment, are included in\n both “Revenues” and “Costs of sales and operating expenses.”\n These taxes, primarily related to sales of gasoline and diesel fuel,\n totaled $283 million . . . in 2009.”\n\nWhen discussing its retail segment in its 2009 10-K, Tesoro also disclosed that\n“[f]ederal and state motor fuel taxes on sales by our retail segment are included\nin both ‘Revenues’ and ‘Costs of sales and operating expenses’.” Wallace\nspecifically mentioned sales taxes on fuel in Hawaii as an example of sales tax\nrevenues that he believed were improperly accounted.\n Wallace attempts to create fact issues on the question of whether his\nbelief in a covered SOX violation was reasonable by pointing to the timing of\nhis certifications, noting that he certified the 2009 10-K, “and did not include\nthe period in 2010 when he discovered and reported his concerns.” He also\nspecifically testified that his certification on the day of his termination applied\nonly to 2009.\n Wallace’s factual argument fails because the same accounting issues he\nfound in 2010 also existed in 2009. Wallace specifically blames the “antiquated\nSAP system” and a “lack of controls on [Tesoro’s] transfer prices” for the\n\n 6\n\f Case: 17-50927 Document: 00514837986 Page: 7 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\ninclusion of taxes as revenues and internal profitability reporting issues, which\nwere identified in 2008 and known to Wallace at the end of 2009 or beginning\nof 2010. That means there is no reasonable dispute that Wallace was aware\nthat the inclusion of sales taxes as revenues would have occurred in 2009\nbecause nothing indicated to Wallace that the procedure for internal revenue\nreporting changed in the beginning of 2010. Furthermore, a reporting\nindividual who is a sub-certifier with accounting oversight experience should\nconduct a reasonable investigation to ensure the reasonableness of his\nconclusion that the public disclosures contained a reporting violation. See\nAllen, 514 F.3d at 479. Had Wallace conducted a limited investigation, he\nwould have determined that the same footnote present in the 2009 10-K was\npresent in the 2008 10-K. A brief look at the retail segment of the 10-K, which\nWallace alleges was the source of the sales-taxes-as-revenues problem, would\nshow that Tesoro disclosed that fuel sales taxes were included in revenues.\n Jackson also testified that Tesoro’s SEC disclosures include sales taxes,\nnot just excise taxes. Wallace attempts to discount the certainty with which\nJackson testified, but he does not offer any conflicting evidence on that point\nother than a portion of Rule’s declaration that was struck. Thus, whether there\nis a dispute of fact turns on whether the district court erred when it struck\nportions of Rule’s declaration.\n\n\n B. Striking of Portions of Douglas Rule’s Declaration\n This court reviews evidentiary rulings for abuse of discretion. Seatrax,\nInc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 370 (5th Cir. 2000). “A trial court\nabuses its discretion when it bases its decision on an erroneous view of the law\nor a clearly erroneous assessment of the evidence.” United States v. Caldwell,\n586 F.3d 338, 341 (5th Cir. 2009).\n\n\n 7\n\f Case: 17-50927 Document: 00514837986 Page: 8 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\n We review only the district court’s decision to strike paragraph 22 of\nRule’s declaration. There Rule opined on the differences between sales and\nexcise taxes and whether Tesoro accurately disclosed sales taxes in its SEC\nfilings. A party is required to disclose the identity of expert witnesses it plans\nto use at trial to present evidence under Federal Rules of Evidence 702, 703,\nor 705. FED R. CIV. P. 26(a)(2)(A). In disclosing the identity of the expert\nwitness, a party is also required to submit a written report. Id. at 26(a)(2)(B).\nWallace does not dispute that he failed to make a timely disclosure of Rule as\nan expert or provide a report. At issue here is whether paragraph 22 of Rule’s\ndeclaration constitutes expert or lay opinion testimony.\n Lay opinion testimony is limited to that which is “rationally based on the\nwitness’s perception” and “not based on scientific, technical, or other\nspecialized knowledge within the scope of Rule 702.” FED. R. EVID. 701.\nWallace argues that Rule’s explanation of the difference between excise taxes\nand sales taxes is based on his perceptions from working at Tesoro for several\nyears. Wallace argues that even if Rule’s declaration is based upon “some\nspecialized knowledge, it is admissible so long as the lay witness offers\nstraightforward conclusions from observations informed by his or her\nexperience.” United States v. Sanjar, 876 F.3d 725, 738 (5th Cir. 2017).\n Rule’s training, education, and experience included “‘refinery economics,\nstrategy management for commercial crude oil, business development,’ and . . .\n‘transfer pric[ing] between operating segments.’” Notably, Rule did not deal\nexplicitly with tax calculations, SEC reporting requirements, or investor\nrelations. We conclude that Rule’s declaration as to paragraph 22 could not\nhave been based on his lay experience as a Tesoro employee but rather on\nspecialized accounting knowledge. Rule’s opinion on the application of tax\naccounting definitions to the SEC disclosures is an example of Rule applying\n\n\n 8\n\f Case: 17-50927 Document: 00514837986 Page: 9 Date Filed: 02/15/2019\n\n\n\n No. 17-50927\nhis “specialized knowledge” to “help the trier of fact . . . understand the\nevidence.” FED. R. EVID. 702(a).\n The district court did not abuse its discretion in finding that paragraph\n22 of Rule’s declaration was impermissible expert testimony. 2 AFFIRMED.\n\n\n\n\n 2We express no view on the admissibility of any of the remainder of Rule’s declaration,\nas those sections are not applicable to the question of Wallace’s reasonable belief.\n 9", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368664/", "author_raw": "LESLIE H. SOUTHWICK, Circuit Judge:"}]}	JONES	CLEMENT	SOUTHWICK	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591411/	Published	1	0	0	2,019	2	[ { "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...
4,591,565	Eunice J. WINZER, Individually and on Behalf of the Statutory Beneficiaries of Gabriel A. Winzer; Sohelia Winzer; Henry Winzer, Plaintiffs-Appellants v. KAUFMAN COUNTY; Bill Cuellar; Garry Huddleston; Matthew Hinds, Defendants-Appellees Henry Andree Winzer, Also Known as Henry A. Winzer, Plaintiff-Appellant v. Matthew Hinds, Individually and in His Capacity as Member of Kaufman County Sheriff Department; Unknown State Troopers, Individually and in Their Capacity as Member of Texas Department of Public Safety; Unknown Paramedics, Individually and in Their Capacity as Emergency Responders of the East Texas EMS; Sergeant Forrest Friesen, Defendants-Appellees	Eunice Winzer v. Kaufman County	2019-02-18	16-11482	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Dennis, Clement, Graves", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 16-11482 Document: 00514838622 Page: 1 Date Filed: 02/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 18, 2019\n No. 16-11482\n Lyle W. Cayce\n Clerk\nEUNICE J. WINZER, Individually and on behalf of the statutory\nbeneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER,\n\n Plaintiffs - Appellants\n\nv.\n\nKAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON;\nMATTHEW HINDS,\n Defendants - Appellees\n\n-------------------------------\n\nHENRY ANDREE WINZER, also known as Henry A. Winzer,\n\n Plaintiff - Appellant\n\nv.\n\nMATTHEW HINDS, Individually and in his capacity as member of Kaufman\nCounty Sheriff Department; UNKNOWN STATE TROOPERS, Individually\nand in their capacity as member of Texas Department of Public Safety;\nUNKNOWN PARAMEDICS, Individually and in their capacity as emergency\nresponders of the East Texas EMS; SERGEANT FORREST FRIESEN,\n\n Defendants - Appellees\n\n\n\n\n Appeals from the United States District Court for the\n Northern District of Texas\n\n Case: 16-11482 Document: 00514838622 Page: 2 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nBefore DENNIS, CLEMENT, and GRAVES, Circuit Judges.\nPER CURIAM:\n This case is a § 1983 action arising from the deadly shooting of a young\nman by Kaufman County law enforcement officers responding to a 911 call.\nThe district court dismissed all claims against the individual officers and the\ncounty. We now AFFIRM in part and REVERSE in part.\n BACKGROUND\nI. The use of force.\n On April 27, 2013, 911 dispatchers received multiple calls of a man\nstanding in a rural street shooting a pistol. The man reportedly was kicking at\nmailboxes and pointed a gun at a house. The man further appeared agitated,\nspeaking to himself and yelling “everyone’s going to get theirs” and “I’m just\ntrying to get back what’s mine.” Callers described the suspect as a black male\nwearing a brown shirt and jeans.\n At approximately 10:30 am, dispatch relayed these details to law\nenforcement units in the area. Pertinent here, dispatch specifically informed\nthe officers that the suspect was a “black male wearing blue jeans and a brown\nshirt.” Officers Matthew Hinds, Gerardo Hinojosa, Gary Huddleston, William\nCuellar, Brad Brewer, and Keith Wheeler responded immediately to the area.\n Hinds and Hinojosa arrived at the scene first and observed a suspect\nmatching dispatch’s description in the road 150 yards away. Both officers\nangled their vehicles to provide cover and took up defensive positions. The\nsuspect then raised his hand and fired directly at Hinds and Hinojosa. 1\n\n\n\n\n 1 It is not clear if Appellants dispute whether this shot was in fact fired. For purposes\nof this appeal, we assume that a suspect did fire a shot at Hinds and Hinojosa. Appellees\nhave presented contemporaneous video and radio records from police dashboard cameras\nindicating “shots fired.” We cannot and do not assume, however, that Gabriel Winzer was the\nsuspect who fired the shot.\n 2\n\n Case: 16-11482 Document: 00514838622 Page: 3 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n Neither officer returned fire because there were multiple civilians in the\narea. Hinds “relayed to dispatch that shots had been fired by the suspect.” The\nofficers did not report that the suspect was in possession of a bicycle. The\nsuspect then disappeared into the trees and the officers lost visual contact.\nAppellants’ summary judgment evidence indicates that at the time of this\nshooting, Gabriel Winzer, the decedent, was inside his father’s house and did\nnot fire this shot at the officers.\n Shortly thereafter, Huddleston, Cuellar, and Wheeler arrived. Hinds\ninformed Cuellar and Wheeler that a suspect had fired shots at him and\nHinojosa. Hinds told at least Cuellar that the suspect was “wearing a brown\nshirt.”\n The suspect then re-appeared at a distance between 100 to 500 yards\nfrom the officers. Because there were civilians in the area between the officers\nand the suspect, the officers decided to “move down [the road] to keep the public\nsafe and attempt to move them inside their homes.” At this point, the officers\nagain confirmed several times that the suspect was wearing a brown shirt. The\nofficers advanced down the road in a defensive position secured by three\nvehicles. As they advanced, the officers directed civilians into their homes.\nDuring the approach, the officers lost sight of the suspect. Accordingly, upon\nreaching the suspect’s last known location, the officers set up a defensive\nposition “for better cover.” Hinds “angled [his] vehicle near the southwest\ncorner [of the street], Trooper Hinojosa angled his vehicle near the northwest\ncorner, and Deputy Wheeler positioned his marked Chevy Tahoe behind and\ncentered between those vehicles.”\n Huddleston was on the Tahoe’s driver’s side. Cuellar was kneeling down\non the driver’s side by the front tire. Wheeler was away from the Tahoe in a\nditch. Hinds and Hinojosa were near the passenger rear of the Tahoe. Four of\nthe law enforcement officers had semi-automatic rifles and one had a shotgun.\n 3\n\n Case: 16-11482 Document: 00514838622 Page: 4 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nThe officers began giving verbal commands for the suspect to drop his weapon\nand “come out.”\n “After a few minutes,” the officers spotted a figure on a bicycle enter the\nroad. The rider was wearing a blue jacket instead of the brown shirt the suspect\nhad been wearing, and was over 100 yards away. What happened next is highly\ndisputed 2 and central to the resolution of this appeal. All of the officers claim\nthe rider was armed, raised a pistol to a firing position, and they feared for\ntheir lives.\n As it turned out, the person on the bicycle was Gabriel Winzer, and not\nthe suspect who had fired at Hinds and Hinojosa. According to Appellants,\nGabriel was on an innocent mission to show the officers his toy pistol. Gabriel’s\nfather claims that when Gabriel rode off toward the officers “[he] did not have\nanything in his hands,” “had both hands on the handle bar of his bike,” and\n“did not reach for anything nor did he have anything in his hands when he was\nshot.” Moreover, Mr. Winzer claims that Gabriel was “unarmed,” “did not fire\nany shots,” and “did not point anything towards the deputies.” Indeed, Mr.\nWinzer states that “Gabriel did not move his hands in any way that might have\nsuggested that he was reaching for something.”\n While Gabriel’s actions on the bike are disputed, it is beyond dispute that\nan officer yelled “put that down!” The officers then fired within six seconds of\nspotting Gabriel on his bike. Three officers fired Bushmaster AR-15s, one\nofficer fired an M4 patrol rifle, and the fifth fired a Remington 870 shotgun. In\ntotal, seventeen shots were fired. Four bullets struck Gabriel, who was still\nover 100 yards from the officers. Upon being hit, Gabriel fell off his bike and\n\n\n\n 2“Because this case comes to us on appeal from a summary judgment, we are obliged\nto review the record and construe the facts in the light most favorable to [Appellants], the\nnonmoving part[ies] in the court below.” See Sanders v. English, 950 F.2d 1152, 1154 (5th\nCir. 1992); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).\n 4\n\n Case: 16-11482 Document: 00514838622 Page: 5 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nfled out of view. The officers remained in their positions before fanning out to\nset up a perimeter around Gabriel’s house.\n Meanwhile, Henry Winzer, Gabriel’s father, was attempting to provide\nassistance to Gabriel in their back yard. After some time, the officers\nsurrounded the yard and advanced on Gabriel and Henry. Henry told Hinojosa\nthat Gabriel had been shot. As they approached, the officers asked Henry\nwhere the gun was. Henry informed the officers that the only gun they had was\na toy cap gun. Henry then tossed a toy gun towards the officers and said “there\nis your gun.” Nonetheless, the officers approached with caution because the\n“suspect had his arms underneath his body and no one knew whether he still\nhad a weapon.”\n When the officers attempted to cuff Henry and Gabriel, both resisted.\nHuddleston and Brewer both tased Gabriel during this encounter. “About 10\nseconds after the last Taser deployment, [Gabriel] went limp and [the officers]\nwere able to handcuff” him. EMS later pronounced Gabriel dead at the scene.\nII. The Procedural History\n On April 22, 2015, Henry filed cause number 15-cv-01295, in the\nNorthern District of Texas. In a pro se complaint, Henry asserted claims\nagainst Hinds, “unknown state troopers,” and “unknown paramedics.” Compl.\nat 1, Winzer v. Hinds et al., No. 15-cv-01295 (N.D. Tex. 2015), ECF No. 1\n(“Henry Complaint”).\n Separately, on April 27, 2015, Eunice Winzer, Gabriel’s mother, filed\ncause number 15-cv-01284, in the Northern District of Texas against\n“Kaufman County,” “City of Kaufman,” and “City of Terrell.” 3 None of the\nofficers involved in the incident were named defendants. See Eunice\n\n\n\n\n 3 Appellants later voluntarily dismissed the City of Terrell and the City of Kaufman.\n 5\n\n Case: 16-11482 Document: 00514838622 Page: 6 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nsubsequently filed an amended complaint and a second amended complaint,\nagain failing to list any of the officers as named defendants.\n On September 18, 2015, Eunice filed a third amended complaint in 15-\ncv-01284 individually and “on behalf of” Henry. 4 The Third Amended\nComplaint alleged violations of Gabriel’s Fourth Amendment right against\nexcessive force and failure to train against several defendants. Relevant here,\nAppellants listed Cuellar and Huddleston as named defendants for the first\ntime. Appellants additionally formally added Hinds as a named defendant in\ncause number 15-cv-01284. This essentially consolidated the parties from the\ntwo pending lawsuits and, on September 21, 2015, the Court formally\nconsolidated the cases.\n On January 15, 2016, Hinds, Cuellar, and Huddleston filed a motion for\nsummary judgment. Cuellar and Huddleston argued that the claims against\nthem were time-barred. All three of these officers also asserted that they were\nentitled to qualified immunity.\n While the motion for summary judgment was pending, Appellants\nsought leave to file a fourth amended complaint to add Hinojosa and Wheeler\nas defendants. The district court denied the motion for leave to amend. The\ncourt ultimately granted summary judgment on both the limitations and\nqualified immunity defenses. Kaufman County then promptly sought\nsummary judgment, arguing that there could be no county liability if there was\nno constitutional violation by its officers. The court granted Kaufman County\nsummary judgment. The district court denied a motion for reconsideration, and\nthis appeal followed.\n\n\n\n\n 4 Appellants had retained counsel and were no longer pro se as of May 12, 2015.\n 6\n\n Case: 16-11482 Document: 00514838622 Page: 7 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n DISCUSSION\n Appellants argue that the district court erred in four ways. First, that\nthe district court erred in granting summary judgment to Cuellar and\nHuddleston based on limitations. Second, that the district court erred in\ndenying leave to add Hinojosa and Wheeler as defendants. Third, that the court\nerred in granting summary judgment to Hinds based on qualified immunity.\nFourth, that the court erred in granting summary judgment to Kaufman\nCounty. We address each in turn.\nI. Claims Against Cuellar and Huddleston Are Time-Barred\n The district court ruled that Appellants’ claims against Cuellar and\nHuddleston were barred by a two-year statute of limitations. Appellants argue\nthat the court should have related the claims back to the date of the original\ncomplaints. The district court did not err.\n The limitations period for a § 1983 action is determined by the state’s\npersonal injury limitations period. Whitt v. Stephens Cnty., 529 F.3d 278, 282\n(5th Cir. 2008). In Texas, that period is two years. Id. When a plaintiff adds a\ndefendant after the limitations period has run, Rule 15(c) allows the plaintiff\nto relate the claims filed against the new defendant back to the date of the\noriginal filing. See Fed. R. Civ. P. 15(c). To do so, the plaintiff must show both\nthat the added defendant received adequate notice of the original lawsuit and\nthat the defendant knew that, but for a mistake concerning the identity of the\ndefendant, the action would have originally been brought against the\ndefendant. Jacobsen v. Osborne, 133 F.3d 315, 319-22 (5th Cir. 1998). Rule\n15(c) is meant to “correct a mistake concerning the identity of the party.” Id. at\n321. ‘“Rule 15(c) does not allow an amended complaint adding new defendants\nto relate back if the newly-added defendants were not named originally\nbecause the plaintiff did not know their identities.”’ Id. (quoting Barrow v.\n\n\n 7\n\n Case: 16-11482 Document: 00514838622 Page: 8 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nWethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995)). We review a grant\nof summary judgment de novo. Whitt, 529 F.3d at 282.\n The incident at issue occurred on April 27, 2013. Accordingly, Appellants\nhad to file suit by April 27, 2015. See Whitt, 529 F.3d at 282. Appellants did\nnot add Cuellar or Huddleston as named defendants until their Third\nAmended Complaint on September 21, 2015. Appellants added Cuellar and\nHuddleston, therefore, after the two-year limitations period had expired.\n Nonetheless, Appellants argue that their claims against Cuellar and\nHuddleston should “relate back” to the filing of the original complaint under\nRule 15(c). Appellants assert two primary grounds for that argument: (1) the\noriginal complaint listed “unknown officers” that clearly gave the defendants\nnotice; and (2) Appellants diligently tried to identify the officers and added\nthem as soon as they did. Neither argument has merit.\n First, this court has clearly held that “an amendment to substitute a\nnamed party for a John Doe does not relate back under Rule 15(c).” Whitt, 529\nF.3d at 282-83. Thus, to the extent Appellants sued “unknown officers,” they\ncannot use these “John Doe” claims to now substitute in Cuellar and\nHuddleston after the limitations period. Id.\n Second, even if Appellants were diligent in trying to identify Cuellar and\nHuddleston, such failures to identify do not relate back. Rule 15(c) requires a\n“mistake concerning the identity of a party.” 5 See Jacobsen, 133 F.3d at 321.\n\n\n\n 5Appellants further cite to Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), for the\nproposition that an “identity of interest” “exception” to Rule 15(c) saves their claims.\nHowever, this doctrine only applies to Rule 15(c)’s requirement that the substituted party\nmust have received notice of the suit. Jacobsen, 133 F.3d at 320. It does not relate to 15(c)’s\nsecond requirement that there also be a mistake of identity. See id. at 319. It is on the second\nrequirement that Appellants’ argument fails and the “identity of interest” exception does not\ncure that fault. See id. at 320-21 (applying “identity of interest” exception to imply notice\nwhere plaintiff mistakenly named individual officer, but not applying “identify of interest”\nexception to claims against unnamed John Doe deputies).\n 8\n\n Case: 16-11482 Document: 00514838622 Page: 9 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n“[F]ailing to identify individual defendants cannot be characterized as a\nmistake.” Id.\n The district court did not err in granting summary judgment to Cuellar\nand Huddleston based on the statute of limitations.\nII. Claims Against Hinojosa and Wheeler Were Futile\n The district court denied leave to amend to add Hinojosa and Wheeler on\nthe grounds that the claims would be futile as barred by the statute of\nlimitations. Appellants again assert that the claims against Wheeler and\nHuddleston should relate back under Rule 15(c). Appellants’ argument lacks\nmerit.\n “A district court’s denial of leave to amend is reviewed for an abuse of\ndiscretion.” Simmons v. Sabine River Auth. La., 732 F.3d 469, 478 (5th Cir.\n2013). “Although leave to amend under Rule 15(a) is to be freely given, that\ngenerous standard is tempered by the necessary power of a district court to\nmanage a case.” Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 566 (5th\nCir. 2003). A district court does not abuse its discretion in denying leave where\nclaims against new defendants are barred by the statute of limitations. See\nWhitt, 529 F.3d at 282-83.\n Appellants’ argument lacks merit for the same reason their claims\nagainst Cuellar and Huddleston are untimely. Appellants had to add Hinojosa\nand Wheeler by April 27, 2015. See id. Appellants did not seek leave to add\nHinojosa and Wheeler until February 18, 2016. The only grounds Appellants\ngave for their failure to do so is that Appellants “did not know the identities”\nof Wheeler or Hinojosa until conducting discovery. Again, Rule 15(c) requires\na “mistake concerning the identity of a party.” See Jacobsen, 133 F.3d at 321.\n“[F]ailing to identify individual defendants cannot be characterized as a\nmistake.” Id.\n\n\n 9\n\n Case: 16-11482 Document: 00514838622 Page: 10 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n The district court did not abuse its discretion in denying leave to amend\nbecause those claims were futile as barred by the statute of limitations.\nIII. A Material Fact Issue Exists as to Hinds’s Qualified Immunity\n The district court determined that Hinds was entitled to qualified\nimmunity because he had “probable cause” to believe that Gabriel “posed a\nthreat of serious bodily harm.” Appellants argue that in reaching that\nconclusion, the district court “improperly gave greater credence to Hinds’s\nevidence regarding the reasonableness of the force that he used.” We agree.\nBefore addressing the merits of Hinds’s qualified immunity claim, we first\naddress the district court’s refusal to consider Henry’s affidavit testimony.\n A. Henry Winzer’s Affidavit\n The district court disregarded Henry’s affidavit under the “sham\naffidavit” doctrine, concluding it contradicted statements in Henry’s original\ncomplaint. This was an abuse of discretion. See Williams v. Manitowoc Cranes,\nL.L.C., 898 F.3d 607, 615 (5th Cir. 2018) (“A district court abuses its discretion\nwhen its [evidentiary] ruling is based on an erroneous view of the law or a\nclearly erroneous assessment of the evidence.”).\n Under the sham affidavit doctrine, a district court may refuse to consider\nstatements made in an affidavit that are “so markedly inconsistent” with a\nprior statement as to “constitute an obvious sham.” Clark v. Resistoflex Co., A\nDiv. of Unidynamics Corp., 854 F.2d 762, 766 (5th Cir. 1988); see also Aerel,\nS.R.L. v. PCC Airfolis, L.L.C., 448 F.3d 899, 907 (6th Cir. 2006) (stating that\nthe sham affidavit rule is only appropriate where an affidavit “directly\ncontradicts” prior testimony); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894\n(5th Cir. 1980) (finding that the sham affidavit rule was inappropriate because\nthe affidavit was not “inherently inconsistent” with prior testimony). However,\nnot “every discrepancy” in an affidavit justifies a district court’s refusal to give\ncredence to competent summary judgment evidence. Kennett-Murray, 622 F.2d\n 10\n\n Case: 16-11482 Document: 00514838622 Page: 11 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nat 893. Generally, “[i]n considering a motion for summary judgment, a district\ncourt must consider all the evidence before it and cannot disregard a party’s\naffidavit merely because it conflicts to some degree with an earlier” statement.\nId. “In light of the jury’s role in resolving questions of credibility, a district\ncourt should not reject the content of an affidavit even if it is at odds with\nstatements made” earlier. Id.\n There is nothing inherently inconsistent between Henry’s original\ncomplaint and the summary judgment affidavit. 6 The complaint stated that\nGabriel “had” a plastic toy gun and that he “rode out on a 10 speed bicycle to\nshow [the officers] the toy gun,” but contained no factual allegation regarding\nwhere Gabriel “had” the gun as he rode the bike. Henry Compl. 4. Meanwhile,\nthe affidavit says that Gabriel was “playing with a bright orange toy gun,” but\nfurther explains that “Gabriel did not have anything in his hands, including\nthe toy gun, while he was on the bike.” Instead, Gabriel “had both hands on\nthe handle bars of his bike” and “did not move his hands in any way that might\nhave suggested he was reaching for something.” It is entirely possible that\nGabriel rode out on his bicycle with the toy gun in his waistband (or elsewhere\non his person) and had his hands on the handlebars of his bicycle at all relevant\ntimes. 7 Because these statements can be “reconciled,” there is no sham. See\n\n\n\n 6 We cannot join with the dissent’s accusation that Henry “[c]onveniently” altered\ndetails to “create the key factual dispute.” Henry’s original “complaint” was a five sentence,\nhand-written statement placed into the limited space of a form-petition for pro se litigants.\nSee Henry Compl. 4. Thus, it is no surprise that Henry failed to include every pertinent\nfactual detail to his claims. We will not punish Henry for the clear, non-conflicting benefit he\nreceived by attaining competent counsel. Indeed, the affidavit is entirely consistent with the\nthird amended complaint, which was drafted with the assistance of counsel and was the live\npleading at the time of Hinds’s motion.\n 7 It is not a “clear implication” from the complaint, as the dissent asserts, that Gabriel\n\n“was holding [the gun] out” as he rode his bike to show the toy gun to the officers. One does\nnot necessarily, nor even normally, “hold out” an object in front of them as they traverse over\n100 yards, on a bicycle, to show an object to another. Especially when that object is a toy gun\n\n 11\n\n Case: 16-11482 Document: 00514838622 Page: 12 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nRobinson v. Nexion Health at Terrell, Inc., 671 F. App’x 344, 344 (5th Cir. 2016)\n(reconcilable affidavits cannot be sham).\n Moreover, while the affidavit significantly supplements the complaint\nfactually, it contradicts nothing. We have held that the sham affidavit doctrine\nis inappropriate where an “affidavit supplements, rather than contradicts” an\nearlier statement. Clark, 854 F.2d at 766. At most, the affidavit creates a\ncredibility issue for Henry’s version of the facts. Such credibility\ndeterminations, however, are for the trier of fact, not the district court. See\nKennett-Murray, 622 F.2d at 894; Tarver v. City of Edna, 410 F.3d 745, 753\n(5th Cir. 2005) (“Any credibility determination made between the officers’ and\n[Henry’s] version of events is inappropriate for summary judgment.”).\n Thus, the district court abused its discretion in applying the sham\naffidavit doctrine to exclude Henry’s competent summary judgment evidence.\nSee Williams, 898 F.3d at 615; Clark, 854 F.2d at 766; Kennett-Murray, 622\nF.2d at 894. “The harmless error doctrine applies to the review of evidentiary\nrulings, so even if a district court has abused its discretion, [this court] will not\nreverse unless the error affected ‘the substantial rights of the parties.’” See\nWilliams, 898 F.3d at 615 (internal citations and quotation marks omitted).\nHowever, an error is not harmless where, as here, it affected Appellants’\nsubstantial rights by “tipp[ing] the balance” of the outcome at summary\njudgment and thereby severely inhibiting their ability to assert their claim.\nSee Dartez v. Fibreboard Corp., 765 F.2d 456, 469 (5th Cir. 1985) (finding an\nevidentiary ruling affected substantial rights where it “tipped the balance in\nfavor of finding liability”); see also E.E.O.C. v. Manville Sales Corp., 27 F.3d\n1089, 1094–95 (5th Cir. 1994) (finding an evidentiary ruling affected\n\n\nand the individual is approaching a group of armed police officers. Perhaps more\nsignificantly, that “clear implication” is directly contrary to the complaint’s allegation that\nGabriel was “an unarmed man.” Henry Compl. 3.\n 12\n\n Case: 16-11482 Document: 00514838622 Page: 13 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nsubstantial rights where it “directly impact[ed] the ability of [the plaintiff] to\nenforce his rights”). We conclude that the district court’s exclusion of Henry’s\naffidavit was an abuse of discretion that affected the Winzers’ substantial\nrights. Accordingly, in analyzing the qualified immunity issue below, we\nconsider the facts as stated in Henry’s affidavit.\n B. Qualified Immunity\n “To determine whether qualified immunity applies, [we] engage[] in a\ntwo-part inquiry asking: first, whether ‘[t]aken in the light most favorable to\nthe party asserting the injury, . . . the facts alleged show the officer’s conduct\nviolated a constitutional right;’ and second, ‘whether the right was clearly\nestablished.’” Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (quoting\nSaucier v. Katz, 533 U.S. 194, 201 (2001)). We have discretion to address either\nprong of the qualified-immunity inquiry first. See Pearson v. Callahan, 555\nU.S. 223, 236 (2009) (noting that “the two-step procedure promotes the\ndevelopment of constitutional precedent and is especially valuable with respect\nto questions that do not frequently arise in cases in which a qualified immunity\ndefense is unavailable”). “[U]nder either prong, [we] may not resolve genuine\ndisputes of fact in favor of the party seeking summary judgment.” Tolan v.\nCotton, 134 S. Ct. 1861, 1866 (2014). “[We] must view the evidence ‘in the light\nmost favorable to the opposing party.’” Id. (quoting Adickes v. S.H. Kress & Co.,\n398 U.S. 144, 157 (1970)).\n 1. Violation of A Constitutional Right\n In the first prong of a qualified immunity analysis, we must “answer the\nconstitutional violation question by determining whether the officer’s conduct\nmet the Fourth Amendment’s reasonableness requirement.” Lytle v. Bexar\nCnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009).\n Under the Fourth Amendment, “it is unreasonable for an officer to ‘seize\nan unarmed, nondangerous suspect by shooting him dead.’” Brosseau v.\n 13\n\n Case: 16-11482 Document: 00514838622 Page: 14 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nHaugen, 543 U.S. 194, 197 (2004) (quoting Tennessee v. Garner, 471 U.S. 1, 11\n(1985)). “It is not, however, unconstitutional on its face.” Garner, 471 U.S. at\n11. “Where the officer has probable cause to believe that the suspect poses a\nthreat of serious physical harm, either to the officer or to others, it is not\nconstitutionally unreasonable to prevent escape by using deadly force.” Id.\n “The ‘reasonableness’ of a particular use of force must be judged from the\nperspective of a reasonable officer on the scene, rather than with the 20/20\nvision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “[I]ts proper\napplication requires careful attention to the facts and circumstances of each\nparticular case, including the severity of the crime at issue, whether the\nsuspect poses an immediate threat to the safety of the officers or others, and\nwhether he is actively resisting arrest or attempting to evade arrest by flight.”\nId. This reasonableness inquiry is an objective one. Id. at 397. “[T]he question\nis whether the officers’ actions are ‘objectively reasonable’ in light of the facts\nand circumstances confronting them, without regard to their underlying intent\nor motivation.” Id. We only consider facts that were “knowable” to Hinds. See\nWhite v. Pauly, 137 S. Ct. 548, 550 (2017).\n The district court concluded that “a reasonable officer on the scene . . .\ncould have easily drawn the inference that the black man cycling towards five\narmed police officers, disregarding their orders to drop his weapon, and raising\nhis arm in their direction was the same black man who had so brazenly fired\nupon them just around the corner.” The errors in the district court’s analysis\nare myriad.\n First, as discussed above, the central error is the district court’s failure\nto credit Henry’s testimony, instead adopting the officers’ characterization of\nthe events preceding the shooting. This alone is reversible error. See Tolan,\n134 S. Ct. at 1866 (reversing qualified immunity analysis at summary\n\n\n 14\n\n Case: 16-11482 Document: 00514838622 Page: 15 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\njudgment stage where this court failed to view the evidence in the light most\nfavorable to the non-moving party).\n Second, the district court improperly concluded that Gabriel was “raising\nhis arm” towards the police. This is directly contrary to Appellants’ summary\njudgment affidavit, which claims that “Gabriel had both hands on the handle\nbar of his bike.” Further, Henry claims that “Gabriel did not point anything\ntowards the deputies” and “did not move his hands in any way that might have\nsuggested that he was reaching for something.” The district court should have\nviewed these statements “in the light most favorable” to Appellants in\ndetermining whether an objectively reasonable officer would have concluded\nthat Gabriel posed an “immediate threat” to the safety of the officers or others.\nSee Tolan, 134 S. Ct. at 1866; Graham, 490 U.S. at 396; Bazan v. Hidalgo Cty.,\n246 F.3d 481, 493 (5th Cir. 2001) (stating that the excessive force inquiry is\nconfined to whether the officer “was in danger at the moment of the threat that\nresulted in the [officer’s] shooting [the victim]”).\n Third, the district court ignored facts in the record casting doubt on\nwhether a reasonable officer would have concluded that the “black man cycling\ntowards [the officers] . . . was the same black man who had so brazenly fired\nupon them” earlier. For instance, Hinds had informed Cuellar that the suspect\nwho fired the shots was “wearing a brown shirt.” In fact, the officers repeatedly\ninformed each other that the suspect was in a “brown shirt.” The man on the\nbike, however, was wearing a blue jacket. 8 Further, the officers had no\nindication at all that the dangerous suspect, who had fired a shot at Hinds and\nHinojosa earlier, had a bicycle. Moreover, the man on the bike was over 100\nyards away and there had been numerous civilians in the area throughout the\n\n\n\n 8 After the shooting, one of the officers stated that “he was in blue, that’s what threw\nme off.”\n 15\n\n Case: 16-11482 Document: 00514838622 Page: 16 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nencounter. A jury could conclude that a reasonable officer would not have\ndetermined that Gabriel was the dangerous suspect. See Lytle, 560 F.3d at 412-\n13 (finding genuine fact issues as to whether an officer’s firing at approaching\nvehicle was unreasonable, even if vehicle posed a threat to officer, where shots\nfired in residential area could pose risk to civilians).\n Fourth, the district court’s conclusion that Gabriel “disregard[ed] their\norders to drop his weapon,” aside from improperly concluding on summary\njudgment that Gabriel had a weapon, is contradicted by the video evidence,\nwhich shows the officers fired on Gabriel within a second of shouting to “put\nthat down!” The video further shows that Gabriel turned a tree-lined corner on\nhis bicycle (that could possibly have obstructed his view of the officers), made\na child-like “figure 3,” and then only momentarily headed towards the officers\nbefore being shot. It is far from clear that Gabriel had the opportunity to be\ndeterred by the officers’ warnings or to even register their commands. See\nTrammell, 868 F.3d at 342 (“[T]he quickness with which the officers resorted\nto” deadly force “militates against a finding of reasonableness.”).\n Statements audible in the video further demonstrate Hinds’s lack of\nreasonableness. Seconds prior to the shooting, an officer appears to state that\nGabriel “had that gun,” 9 while another shouts to “put that down!” Though these\nstatements weigh in Hinds’s favor, they must be balanced against competing\nevidence that Gabriel did not match the suspect’s description, did not have\nanything in his hands, had both hands on the handlebar of his bike, and did\n\n\n\n 9 We note that there are conflicting facts regarding the gun Gabriel “had” at the time\nof the shooting. Henry claims that Gabriel had a “bright orange toy gun.” The officers,\nhowever, claim the gun was “dull colored,” “dark colored,” or “silver,” depending on whose\naffidavit you consult. Henry later tossed a toy gun towards the officers when the officers\nentered the Winzer’s backyard to secure Gabriel. There is no evidence that any real firearm\nwas ever found in Gabriel’s possession or anywhere in his path.\n\n 16\n\n Case: 16-11482 Document: 00514838622 Page: 17 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nnot reach for anything. They must further be balanced with the undisputed\nfacts that Gabriel was over 100 yards away, on a bicycle, and slowly\napproaching five officers barricaded behind three vehicles and with high\npowered rifles drawn and ready. 10 It is for a jury to determine whether a\nreasonable officer on the scene, when confronted with these facts, would have\ndetermined that Gabriel posed such an imminent risk to the officers that use\nof deadly force was justified within seconds of his appearance.\n Given the district court’s multifarious errors, and that we must consider\nthe facts in the light most favorable to Appellants, we conclude that it is proper\nto consider only the following facts in determining whether an objectively\nreasonable officer would have believed that Gabriel posed an imminent threat\nand whether Hinds’s use of force was constitutional. Hinds responded to a 911\ncall of a man with a gun. The suspect was a black male, afoot and wearing a\nbrown shirt. Upon Hinds’s arrival, the suspect fired a shot at Hinds and\nHinojosa. Hinds then lost sight of the suspect. The officers encountered\nnumerous civilians along the road as they searched for the suspect. The officers\neventually set up a defensive barrier complete with three vehicles, five officers,\nfour semiautomatic rifles, and a shotgun on a road in the vicinity of the\nsuspect’s last known location. Minutes later, Gabriel, on his bike and dressed\nin blue, not brown, appeared on the same street as the last known location of\nthe suspect. Gabriel was riding his bicycle more than 100 yards away. Further,\n\n\n\n 10 The dissent would likewise violate Tolan, stating that Hinds acted reasonably\nbecause Gabriel was “riding headlong” at the officers. Yet, there is no evidence that Gabriel\nwas “riding headlong” at the officers. Henry claims that Gabriel was “on his bike.” The\nofficers, for their part, state only that Gabriel was “coming” towards them while “riding” a\nbicycle. The video likewise shows that Gabriel dawdled slightly before turning toward the\nofficers. In fact, accepting Henry’s claim that Gabriel did not raise his arm towards the\nofficers, as we must, there is no evidence indicating that the officers reasonably believed that\nGabriel made any aggressive movements whatsoever prior to the shooting.\n\n 17\n\n Case: 16-11482 Document: 00514838622 Page: 18 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nGabriel did not have anything in his hands, had both hands on the handlebar\nof his bike, did not reach for anything, did not point anything towards the\ndeputies, and was unarmed. Nonetheless, an officer stated that Gabriel “had\nthat gun,” while another screamed “put that down!” Hinds opened fire on\nGabriel within seconds of spotting him. 11\n While “[w]e are loath to second-guess the decisions made by police\nofficers in the field,” see Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003)\n(citing Graham, 490 U.S. at 396–97), we conclude that a jury could find that\nthe use of deadly force was unreasonable if it credited and drew reasonable\ninferences from the Winzers’ account. Accordingly, Hinds was not entitled to\nqualified immunity under the first prong.\n 2. Clearly-Established Law\n Having determined that there are genuine issues of material fact with\nrespect to whether Hinds’s use of deadly force was objectively reasonable, the\nquestion remains “whether the right was clearly established at the time of the\nconduct.” Lytle, 560 F.3d at 410. The Supreme Court has held that we cannot\n“define clearly established law at a high level of generality.” Ashcroft v. al-\nKidd, 563 U.S. 732, 742 (2011). This inquiry “‘must be undertaken in light of\nthe specific context of the case, not as a broad general proposition.’” Mullenix\nv. Luna, 136 S. Ct. 305, 308 (2015) (quoting Brosseau, 543 U.S. at 198–99). The\nSupreme Court does “not require a case directly on point, but existing\nprecedent must have placed the statutory or constitutional question beyond\ndebate.” Ashcroft, 563 U.S. at 741. Under this exacting standard, we cannot\n\n\n\n\n 11 Contrary to the dissent’s claim that we impose a 20/20 hindsight analysis, these\nfacts are construed from Hinds’s perspective at the time of the shooting, while also taking\ninto account our duty to construe the evidence in the light most favorable to the non-moving\nparty.\n 18\n\n Case: 16-11482 Document: 00514838622 Page: 19 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nconclude that Gabriel’s right to be free from excessive force was clearly\nestablished here.\nIV. Summary Judgment Premature for Kaufman County\n The district court granted summary judgment in favor of Kaufman\nCounty based on its ruling that there was no constitutional violation and the\nofficers were entitled to qualified immunity. See Hicks-Fields v. Harris Cty.,\nTexas, 860 F.3d 803, 808 (5th Cir. 2017) (“[T]o establish municipal liability\nunder § 1983, a plaintiff must show that (1) an official policy (2) promulgated\nby the municipal policymaker (3) was the moving force behind the violation of\na constitutional right.”). Because we determine that there are genuine issues\nof fact as to whether there was a constitutional violation, we reverse the\ndistrict court’s grant of summary judgment to the county as premature and\nremand to the district court for reconsideration.\n CONCLUSION\n For these reasons, we REVERSE the district court’s grant of summary\njudgment to the county and REMAND for consideration in light of this opinion.\nWe otherwise AFFIRM.\n\n\n\n\n 19\n\n Case: 16-11482 Document: 00514838622 Page: 20 Date Filed: 02/18/2019\n\n\n\n No. 16-11482", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368818/", "author_raw": "PER CURIAM"}, {"author": "EDITH BROWN CLEMENT, Circuit Judge, dissenting", "type": "dissent", "text": "EDITH BROWN CLEMENT, Circuit Judge, dissenting in part.\n The majority has correctly concluded that Officer Hinds is entitled to\nqualified immunity due to the lack of clearly established law. But en route to\nthis decision, it has taken an unnecessarily difficult path, disregarding the\ndeference long afforded to district courts’ evidentiary rulings and misapplying\nwell-worn qualified immunity standards. In light of these significant errors, I\ndissent from sections III(A), III(B)(1), and IV of the opinion.\n I.\n As to the evidentiary error, the majority seems to concede that if Gabriel\nwas pointing the gun (or toy gun) at the officers, Officer Hinds’s decision to\nshoot should be protected. But it concludes that the district court erred when\nit rejected an affidavit from Gabriel’s father, Henry, which stated that no gun\nwas in view. This failure to admit the affidavit and credit its version of the\nincident was apparently the “central error” of the court’s analysis. The majority\nthus bases its conclusion that a constitutional violation may have occurred on\na five-page document—submitted one month after Officer Hinds’s motion for\nsummary judgment—that contravenes the unanimous observation of the\nwitnessing officers recorded in their sworn statements and in video-recorded\nutterances prior to the shooting, and, as addressed more thoroughly below,\nHenry’s own initial complaint. 1\n The problems with the majority’s analysis stem from an unfaithful\napplication of the standard of review. We are told that the applicable\n\n\n\n 1 Note that in framing the dispute over the affidavit, the majority opinion errs by\npresenting certain facts from the affidavit as if they are beyond dispute. For example, the\nmajority baldly asserts that Gabriel “was inside his father’s house and did not fire” at the\npolice officers during their initial encounter with the suspect. But the sole source for this fact\nis the contested affidavit. It therefore belongs among the “highly disputed” facts which come\nlater in the opinion.\n 20\n\n Case: 16-11482 Document: 00514838622 Page: 21 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nstandard—review for abuse of discretion—requires the court to find a “clearly\nerroneous assessment of the evidence” that affected substantial rights.\nAccordingly, as the majority concedes, the key question here is not whether the\ndistrict court merely erred when it concluded Henry Winzer’s affidavit was a\nsham; rather, it is whether the district court abused its discretion in doing so.\nThe answer: No, it obviously did not.\n “It is well settled that this court does not allow a party to defeat a motion\nfor summary judgment using an affidavit that impeaches, without explanation,\nsworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.\n1996); see also Vincent v. Coll. of Mainland, 703 F. App’x 233, 238 (5th Cir.\n2017) (“Conclusory, self-serving affidavits are insufficient to create a fact issue\nwhen they contradict prior testimony.”). Accordingly, the district court may\nappropriately reject such statements that create a clear discrepancy with prior\naccounts—especially when no explanation for the conflict is offered. See\nAlbertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984).\n Henry Winzer’s initial, pro se complaint—challenging the officers’ use of\nforce—stated that Gabriel “had a plastic toy cap gun” and “rode out on a 10\nspeed bicycle to show [the officers] the toy gun.” A clear implication of this\nobservation is that Gabriel was holding out the object “to show them” the toy,\nor at a minimum that the toy would have been visible to the officers. The\nmajority’s suggested interpretation to the contrary (leaving open the\npossibility that the gun was concealed) may be an acceptable one, but it does\nnot follow that the district court’s similarly reasonable interpretation of the\n\n\n\n\n 21\n\n Case: 16-11482 Document: 00514838622 Page: 22 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\ncomplaint was wrong. At the very least, it was not an abuse of discretion for\nthe district court to interpret the statement as it did. 2\n Henry Winzer’s first account was compatible with the unanimous\ntestimony of the police officers on the scene. Then, one month after defendants’\nsummary judgment motion and after Henry Winzer obtained counsel, the court\nreceived a new affidavit that told a different story. As it turns out, Henry\nWinzer’s initial account was mistaken: Gabriel’s hands were on the bike’s\nhandlebars at the time of the shooting, and the gun was not otherwise visible. 3\nNo explanation for this new version of the story was offered.\n This case presents the appropriate circumstances for an application of\nthe sham affidavit doctrine. In response to a summary judgment motion and\nwith the aid of counsel, Henry added material details in an affidavit that\nsignificantly changed the story he described in his original complaint.\nConveniently, every altered detail served to create the key factual dispute that,\naccording to the majority, could result in a finding of a constitutional violation.\nThe district court correctly disregarded the affidavit as a sham. The majority’s\nconclusion—after a lengthy discussion relying on a strained reading of the\ncomplaint—that it was an abuse of discretion for the district court to so\n\n\n 2 The majority suggests that it would be abnormal for someone to hold out an object\nin front of them as they ride a bicycle towards a group of individuals to show them the object.\nThey say that is especially true “when that object is a toy gun” and the group being\napproached is formed of armed police officers. But riding a bicycle toward a group of police\nofficers with any type of gun is abnormal when gunshots had just been fired, the officers were\nobviously in a defensive posture, and the officers had just told all civilians to return to their\nhomes. Yet that is indisputably what occurred. The majority does not seem to appreciate the\ntragic reality that Gabriel’s actions—even accepting Henry’s version as true—were strange\nand dangerous. Officer Hinds’s reaction to Gabriel’s unusual behavior, on the other hand,\nwas reasonable.\n 3 Notably, the affidavit also includes facts that would have no significance unless it\n\nwere possible for the police officers to see the gun. For example, it notes that “[i]t was clearly\napparent that the gun Gabriel had in his hand was not real, based on the color and make of\nit.” (Emphasis added.)\n 22\n\n Case: 16-11482 Document: 00514838622 Page: 23 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nconclude is puzzling. After all, even if the district court’s assessment of the\ninconsistency between the complaint and the affidavit was wrong, we cannot\nsay that its assessment was “clearly erroneous.”\n II.\n If the district court is correct about the affidavit, then the record evidence\nsuggests Gabriel had a gun (or toy gun) in his hand as he rode towards the\nofficers. In that case, it should be beyond dispute that Officer Hinds rightfully\nreceived immunity for his decision to shoot. But suppose this is wrong. Suppose\ninstead that the court was required to accept Henry’s affidavit and to credit his\nobservation that Gabriel rode out to the police officers with both hands on his\nbike. What then?\n The result should be the same: Officer Hinds was still entitled to this\ncourt’s recognition that his behavior was reasonable. In concluding otherwise,\nthe majority misapprehends qualified immunity—both its first principles and\nspecific legal standards—and has endangered Officer Hinds’s (and future law\nenforcement officers’) rightful claim to it. See White v. Pauly, 137 S. Ct. 548,\n551–52 (2017) (explaining that, because qualified immunity is “an immunity\nfrom suit,” the protection “is effectively lost if a case is erroneously permitted\nto go to trial” (internal quotation marks omitted)).\n A. Reviewing the Qualified Immunity Standard\n Before turning to a specific critique of the majority’s conclusions, it is\nworth highlighting the fundamental tenets of qualified immunity, since those\ntenets recede to the background of the opinion. Qualified immunity is grounded\nin the acknowledgment that officers must make split-second judgments about\nthe appropriate use of force in chaotic, highly dangerous situations. Graham v.\nConnor, 490 U.S. 386, 397 (1989). It is designed to protect “officials from\nharassment, distraction, and liability when they perform their duties\n 23\n\n Case: 16-11482 Document: 00514838622 Page: 24 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nreasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (noting that this\nprotection was “the driving force” behind the doctrine’s creation), and to allow\nthem “breathing room to make reasonable but mistaken judgments about open\nlegal questions,” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). Accordingly,\n“once properly raised by the [officer], the ‘plaintiff has the burden to negate the\nassertion of qualified immunity.’” King v. Handorf, 821 F.3d 650, 653 (5th Cir.\n2016) (quoting Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)). 4\n Both prongs of the qualified immunity standard are imbued with this\ndeference and respect. First, “[a]n officer’s use of deadly force is presumptively\nreasonable when the officer has reason to believe that the suspect poses a\nthreat of serious harm to the officer or to others.” Ontiveros v. City of\nRosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Notably, “[t]he reasonableness of\nthe use of deadly force must be judged from the perspective of a reasonable\nofficer on the scene, rather than with the 20/20 vision of hindsight.” Id.\n(internal quotation omitted). The focus is only on what was “knowable” to the\nindividual officer at the time. White, 137 S. Ct. at 550. And, most importantly,\nour definition of “reasonableness” cannot be grounded on what, upon reflection\n“in the peace of a judge’s chambers,” seems necessary; rather, it is defined by\nthe chaotic circumstances into which officers are thrust. Graham, 490 U.S. at\n396–97 (internal quotation omitted). As the Supreme Court has long\nemphasized, “[t]he calculus of reasonableness must embody allowance for the\nfact that police officers are often forced to make split-second judgments—in\ncircumstances that are tense, uncertain, and rapidly evolving—about the\namount of force that is necessary in a particular situation.” Id.\n\n\n\n\n 4 Notably, the majority opinion fails to even acknowledge this burden.\n 24\n\n Case: 16-11482 Document: 00514838622 Page: 25 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n Similarly, the “clearly established” prong protects officers from having to\nparse nuances in case law from various courts and jurisdictions to discover the\nbounds of their conduct. Accordingly, our “inquiry . . . is whether, under the\nlaw in effect at the time [of the shooting], no reasonable officer could have\nbelieved deadly force was lawful.” Manis v. Lawson, 585 F.3d 839, 846 (5th Cir.\n2009). The officer loses protection only if his conduct violates “controlling\nauthority” or “a robust consensus of cases of persuasive authority.” al-Kidd,\n563 U.S. at 741–42 (internal quotation marks omitted). Notably, that guidance\nmust be finely tuned to the specific “circumstances with which [the officer] was\nconfronted.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). An unreasonable\nmistake of law regarding the excessive use of force requires “existing precedent\n[that] squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct.\n1148, 1153 (2018) (emphasis added) (internal quotation marks omitted). We\nhave “repeatedly” been told we are not permitted “to define clearly established\nlaw at a high level of generality.” City & County of San Francisco v. Sheehan,\n135 S. Ct. 1765, 1775–76 (2015) (quoting al-Kidd, 563 U.S. at 742).\n Having set forth these principles, the specific problems in the majority’s\nconclusions become obvious. The majority fundamentally misapprehends this\nguidance and has reached a result on the reasonableness prong that is, simply\nput, wrong.\n B. Officer Hinds committed no constitutional violation\n The majority failed to give due weight to the tense circumstances\nsurrounding Officer Hinds at the time of his decision to shoot. Instead, the\nmajority argues that Officer Hinds unreasonably misdiagnosed the danger he\nfaced by highlighting certain “competing evidence” to show that the officer\ncould have—should have—known that Gabriel was not a threat. Notably, the\nmajority uses the accelerated timeline of events against Officer Hinds when\n 25\n\n Case: 16-11482 Document: 00514838622 Page: 26 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\ndiscussing evidence that suggests he behaved reasonably, but then repeatedly\nfaults Officer Hinds for insufficiently considering other factors that existed\nonly fleetingly before the shooting began. The majority’s implicit suggestion\nthat Officer Hinds could not reasonably have relied on video-recorded\nutterances immediately prior to the shooting in making his decision is just one\nexample. In other words, the majority imposes the sort of 20/20 hindsight\nanalysis that we have forbidden. Cf. Ontiveros, 564 F.3d at 384–85\n(circumstantial evidence that provided an innocuous explanation for a\nsuspect’s actions did not override a reasonable interpretation to the contrary\nby an officer).\n Here is Officer Hinds’s position based on the uncontroverted facts: He\nwas responding to a dispatch that a man was recklessly shooting his firearm\nin a residential area, threatening the lives of innocent civilians in their homes.\nUpon Officer Hinds’s arrival, the individual shot his gun at him without\nprovocation from a distance of 100–150 yards. The suspect then ran from\nOfficer Hinds, darting into private property for cover. In other words, an\nextremely dangerous individual with a gun was at large in a residential\nneighborhood, posing an immediate and serious threat to the lives of civilians\nand police officers.\n Officer Hinds and his fellow officers rightfully proceeded with caution.\nThey slowly moved up the road with guns drawn, using their vehicles for\nprotection. They directed the innocent civilians they passed to remain in their\nhomes while they pursued the suspect. Using their PA system, the officers also\ncommanded the suspect to come out of hiding and surrender. No response.\n\n\n\n\n 26\n\n Case: 16-11482 Document: 00514838622 Page: 27 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n Suddenly, an individual appeared on a bike close to where the suspect\nhad last been seen, riding headlong at the police officers. 5 The individual\ncontinued towards the officers, undeterred both by their prior warnings to\ninnocent civilians to stay in their homes and by their commands to the suspect\nto come out and surrender. He was also undeterred by the fact that Officer\nHinds and his fellow officers were in a defensive position with their guns\ndrawn. Gabriel was approximately 100 yards from Officer Hinds at the time—\na similar distance from which the suspect had just shot at him. As Gabriel got\ncloser, one of the officers warned his colleagues that Gabriel had a gun.\nAnother screamed, “Put that down!” Then shots were fired.\n Words are imperfect vessels for capturing the chaos of such moments\n(the video recording does a better job of conveying the tension). But all of this\nhappened. The events are undisputed.\n It should come as no surprise that all of the officers on the scene,\nincluding Officer Hinds, stated that they feared for their safety and the safety\nof others at that critical moment. And there was nothing unreasonable about\nOfficer Hinds’s decision to shoot. In that split second, Officer Hinds was\njustified in concluding that the individual riding at them while their guns were\ndrawn was the armed suspect. He had just heard that Gabriel was holding a\ngun. And his own experience with the suspect, as well as his knowledge that\nthe suspect had been shooting at his neighbors’ mailboxes, justified his thought\n\n\n\n 5 The majority takes issue with this account of the facts, claiming it unfairly favors\nOfficer Hinds. But its arguments in support are unpersuasive. The majority claims that the\ndissent mischaracterizes Gabriel’s actions to say he rode headlong at the officers. According\nto my colleagues, the record supports only the inference that Gabriel was “coming” towards\nthe officers “while ‘riding’ a bicycle.” There is no meaningful distinction between these\naccounts, let alone one that unfairly favors Officer Hinds.\n\n 27\n\n Case: 16-11482 Document: 00514838622 Page: 28 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nthat Gabriel posed a serious threat to his own, his fellow officers’, and other\ncivilians’ safety. 6 Regardless of any factual dispute regarding the visibility of\nthe gun Gabriel possessed or the color of his shirt, Officer Hinds cannot be\nfaulted for acting out of a reasonable desire to protect himself and the\nneighborhood by pulling the trigger. None of the countervailing concerns noted\nby the majority undercuts this conclusion. Officer Hinds clearly “ha[d] reason\nto believe that the suspect pose[d] a threat of serious harm to [him] or to\nothers.” Ontiveros, 564 F.3d at 382. He acted on that reasonable belief. There\nwas no constitutional violation.\n Critically, the majority’s counternarrative of the pivotal moment\nincludes subjective evaluations that could only be discerned after a nuanced,\nrepeated review of the video evidence. For example, we are told that Gabriel\n“made a child-like ‘figure 3’”—instead of a more mature straight line,\napparently— and “dawdled slightly” before turning toward the officers. These\ndetails regarding direction, posture, and speed are not obvious from a review\nof the footage in the quiet of an office. But the majority’s imputation of such\nfine distinctions into its analysis of what a reasonable officer should do when\nfaced with a split-second, life-or-death decision in real time is particularly\nmisguided. See Graham, 490 U.S. at 396–97.\n In short, this dissent has simply looked at all of the knowable—and\nuncontroverted—facts available to Officer Hinds. And, after using the\n\n\n\n\n 6 The majority seems to think that innocent civilians were at risk by the officers’\nactions, relying on Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009) for support. Its analogy\nto this case is forced. The court in Lytle found that it would be unreasonable for an officer to\nfire at the back of a car four houses down a residential block that was travelling away from\nhim in part due to the risk “that the shots might strike an unintended target.” Id. at 412–13.\nThe circumstances here are very different: the officers took extensive precautions to ensure\nall innocent civilians were out of harm’s way.\n 28\n\n Case: 16-11482 Document: 00514838622 Page: 29 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\nappropriate sensitivity required to analyze such decisions, it has concluded\nthat the plaintiffs failed to meet their burden to show his actions were\nobjectively unreasonable. By contrast, despite the majority’s assurance that it\nis “loath to second-guess the decisions made by police officers in the field” from\na privileged position of comfort, see Graham, 490 U.S. at 396–97, this is\nprecisely what it has done.\n The majority’s analysis flouts well-established legal guideposts and\nomits applicable burdens. Its conclusion that Officer Hinds may have behaved\nunreasonably is not persuasive. Fortunately, the majority at least gets the\nsecond prong of the qualified immunity analysis right. But its failure to accord\nappropriate deference to Officer Hinds on the first prong is not only\nmisguided—it invites future error. And because the majority errs on the\nreasonableness prong, Kaufman County is also denied the summary judgment\nwhich is clearly appropriate.\n * * *\n The implications of the majority’s mistakes cannot be minimized. The\nmajority decides that qualified immunity can be endangered by an affidavit\nfiled at summary judgment that creates a fact issue nowhere else supported by\nrecord evidence.\n Worse still, it seriously undermines officers’ ability to trust their\njudgment during those split seconds when they must decide whether to use\nlethal force. Qualified immunity is designed to respect that judgment,\nrequiring us to second-guess only when it clearly violates the law. The\nstandard acknowledges that we judges—mercifully—never face that split\nsecond. Indeed, we never have to decide anything without deliberation—let\nalone whether we must end one person’s life to preserve our own or the lives of\nthose around us.\n 29\n\n Case: 16-11482 Document: 00514838622 Page: 30 Date Filed: 02/18/2019\n\n\n\n No. 16-11482\n The qualified immunity standard stops this privilege from blinding our\njudgment, preventing us from pretending we can place ourselves in the officers’\nposition based on a cold appellate record. It prevents us from hubristically\ndeclaring what an officer should have done—as if we can expect calm\ncalculation in the midst of chaos.\n The majority opinion, written from the comfort of courthouse chambers,\nignores that deference. Instead, it warns officers that they cannot trust what\nthey see; they cannot trust what their fellow officers observe; they cannot trust\nthemselves when posed with a credible threat. It instructs them, in that pivotal\nsplit second, to wait. But when a split second is all you have, waiting itself is a\ndecision—one that may bring disastrous consequences.\n Hopefully, these errors will be corrected before we face their effects. In\nthe meantime, I dissent.\n\n\n\n\n 30", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368818/", "author_raw": "EDITH BROWN CLEMENT, Circuit Judge, dissenting"}]}	DENNIS	CLEMENT	GRAVES	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591565/	Published	1	0	0	2,019	2	[ { "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...
4,591,566	Charles Victor THOMPSON, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee	Charles Thompson v. Lorie Davis, Director	2019-02-18	17-70008	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Higginbotham, Haynes, Graves", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 17-70008 Document: 00514838385 Page: 1 Date Filed: 02/18/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-70008 FILED\n February 18, 2019\n Lyle W. Cayce\nCHARLES VICTOR THOMPSON, Clerk\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n Charles Victor Thompson was convicted by a Texas jury of capital\nmurder and sentenced to death. After direct appeal and collateral review in\nstate court, he petitioned the federal district court for a writ of habeas corpus,\nchallenging the constitutionality of his conviction and sentence. The district\ncourt denied relief. Thompson now seeks a certificate of appealability (COA).\nWe grant a COA on Thompson’s second claim concerning the testimony of a\nstate witness during his retrial on punishment. We otherwise deny his\napplication for COAs on all other claims and affirm the district court’s denial\nof an evidentiary hearing.\n\f Case: 17-70008 Document: 00514838385 Page: 2 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\n I.\n In the early hours of April 30, 1998, responding to a call, police arrived\nat the apartment of Glenda Dennise Hayslip to find Hayslip’s boyfriend,\nDarren Cain, arguing with Thompson, Hayslip’s ex-boyfriend. 1 After calming\nthe situation, the police let Thompson leave the scene. 2 Three hours later,\nhowever, Thompson returned with a gun. After kicking down the door to the\napartment, Thompson confronted Cain and shot him four times in the neck\nand chest, killing him. Thompson then turned to Hayslip. After reloading the\ngun, he told Hayslip “I can shoot you too, bitch,” and fired into her cheek. 3 The\nbullet passed through Hayslip’s face, blowing the dentures out of her mouth\nand nearly severing her tongue. 4 Thompson left the apartment, threw the gun\ninto a creek, and went to the house of a friend, Diane Zernia, where he fell\nasleep. 5\n Hayslip was alive, but bleeding profusely, and sought help from\nneighbors. 6 Emergency responders arrived at the apartment and airlifted\nHayslip to a hospital. During surgery, doctors were unable to secure an airway\nfor Hayslip’s breathing, and, while they were preparing for emergency surgery,\nshe fell into a coma. 7 A few days later, Hayslip’s family took her off of life\n\n\n\n\n 1 Thompson v. State, No. AP-73,431, 2007 WL 3208755, at 1 (Tex. Crim. App. Oct.\n31, 2007).\n 2 Id.\n 3 Thompson v. State, 93 S.W.3d 16, 19–20 (Tex. Crim. App. 2001).\n 4 Id. at 20.\n 5 Id. at 19.\n 6 Id.\n 7 Id. at 20.\n\n\n 2\n\f Case: 17-70008 Document: 00514838385 Page: 3 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nsupport, and she died. 8 Hayslip’s autopsy report describes her cause of death\nas a gunshot wound to the face.\n Awaking later in the morning, Thompson described the shootings to\nZernia, including how he had disposed of the murder weapon. 9 He then called\nhis father, who brought him to the police station where he turned himself in. 10\nThe State indicted Thompson for capital murder for intentionally or knowingly\ncausing Cain and Hayslip’s deaths. The state court appointed counsel on May\n19, 1998.\n Thompson was active during his pretrial detention at the Harris County\nJail. A few days after the shooting, he called Zernia asking what she had told\nthe police. Thompson called again a few weeks later, again seeking details on\nwhat Zernia had told investigators, and clarifying that she was the only\nwitness who could link him to Cain and Hayslip’s murders. During this second\ncall, Thompson asked Zernia for her home address, purportedly so that his\nattorney “could send her some documents and talk with her.” Weeks later,\nZernia told investigators that she “ha[d] not heard from his attorney as of yet.”\n During the same period, Thompson also discussed his case with fellow\ninmates Jack Reid and Max Humphrey, contemplating Zernia’s status as a\npotential state witness and looking to arrange for her death. 11 According to\nReid, Thompson engaged Humphrey, an Aryan Brotherhood gang member, to\nmurder Zernia after his release on June 30th. Thompson also arranged\nretrieval of the murder weapon for delivery to Humphrey, to be used to\n\n\n\n\n 8 Id.\n 9 Id.\n 10 Id.\n 11 Id. at 22.\n\n\n 3\n\f Case: 17-70008 Document: 00514838385 Page: 4 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\ndispatch Zernia. 12 Thompson drew a map of the weapon’s location, and asked\nReid to pass the information to a contact outside the Jail for retrieval of the\nweapon.\n Reid instead relayed the information to the police, 13 who attempted to\nrecover the weapon. But their divers were unable to locate it. Although\nThompson’s right to counsel had attached, officers instructed the informant\nReid to tell Thompson his contact had been unable to find the weapon, and\nwould visit for better directions. 14 Posing as Reid’s outside contact,\nInvestigator Gary Johnson visited Thompson at the Jail, wearing a wire to\nrecord their conversation. 15 Thompson told Johnson he believed Humphrey\nhad betrayed him, and offered Johnson $1,500 to retrieve the weapon and\nmurder Zernia. 16 During the meeting, Thompson pressed a hand-drawn map\nagainst the glass of the visitor’s booth, one similar to the map the police already\nheld, depicting the weapon’s location, as well as Zernia’s address. Thompson\nthen described Zernia’s husband, daughter, her home and vehicles, and\ndiscussed the best times to carry out the murder. 17\n Relying on the recording of Johnson’s meeting, the district attorney\ncharged Thompson with solicitation of capital murder. Police visited Thompson\nin his cell and notified him of the charge; they searched his cell but were unable\nto recover the map displayed to Johnson. Police also apprehended Humphrey,\nwho corroborated Reid’s account of the murder arrangement, but denied that\n\n\n 12 Id.\n 13 Id.\n 14 Id.\n 15 Id. at 22–23.\n 16 Id. at 23.\n 17 Id.\n\n\n 4\n\f Case: 17-70008 Document: 00514838385 Page: 5 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nhe agreed to carry out the hit on Zernia. The police recovered the murder\nweapon on July 18, 1998 in Cypress Creek.\n Undeterred by the solicitation charge, on August 21, 1998, Thompson\nspoke with another inmate, Robin Rhodes, again seeking help in persuading\n“some people not to [come] or be able not to come” to testify at his trial. 18\nThompson provided a list of names including Zernia’s, 19 advising that Rhodes\n“either kill them or persuade them not to be there.” Rhodes, it turned out, was\na long time police informant. He gave the list to the police and expressed his\nwillingness to testify against Thompson. 20\n Thompson was tried for capital murder in 1999. The guilt stage of the\ntrial centered on Hayslip’s injuries, and whether Thompson’s shooting—as\nopposed to medical malpractice—caused her death. Thompson called an expert\nwitness, Dr. Pat Radalat, who initially testified Hayslip would have survived\nthe gunshot had she received proper medical care. Radalat opined that\nHayslip’s medical team failed to correctly place a nasotracheal tube, and then\nfailed to monitor Hayslip’s breathing while preparing for surgery, allowing her\nto experience bradycardia, a condition in which the heart slows due to low\noxygen. On cross examination, however, Radalat backtracked, conceding\nHayslip would have died in the absence of medical intervention. The State\nintroduced the murder weapon and called a firearms expert to explain that,\ngiven the weapon’s capacity and the number of shots fired, Thompson must\nhave reloaded during the shooting. 21 The State also introduced the autopsy\n\n\n\n\n 18 Thompson v. Stephens, 2014 WL 2765666, at 1 (S.D. Tex. June 18, 2014).\n 19 Id.\n 20 Id.\n 21 Thompson, 93 S.W.3d at 20.\n\n\n 5\n\f Case: 17-70008 Document: 00514838385 Page: 6 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nreport certified by Dr. Paul Shrode, describing Hayslip’s cause of death as a\ngunshot wound to the face. The jury found Thompson guilty of capital\nmurder. 22\n During the punishment phase of the trial, the State introduced\nJohnson’s recording of his jailhouse meeting with Thompson, and Johnson\nhimself took the stand. 23 Based on the jury’s answers to the questions\nregarding punishment—whether Thompson would be a future danger to\nsociety and whether there were sufficient circumstances mitigating against a\ndeath sentence—the court imposed the death penalty. 24\n In 2001, on direct appeal, the Texas Court of Criminal Appeals affirmed\nThompson’s conviction, 25 but found the punishment phase of the trial tainted\nby the admission of Johnson’s testimony, solicited after Thompson’s right to\ncounsel had attached, in violation of the Sixth Amendment. 26 It vacated and\nremanded for a retrial on punishment. 27 The court also denied Thompson’s pro\nse motion for rehearing, which argued the entirety of his trial was tainted by\nthe Sixth Amendment violation and that his conviction should be vacated and\nremanded for retrial. 28\n In 2005, Thompson’s case returned to the trial court for a retrial on\npunishment before a new jury. 29 During a pre-trial hearing, the State disclosed\n\n\n 22 Id. at 18.\n 23 Id. at 23.\n 24 Thompson, 2007 WL 3208755, at 1.\n 25 Thompson, 93 S.W.3d at 29.\n 26 Id.\n 27 Id.\n 28 Thompson v. State, 108 S.W.3d 269, 270 (Tex. Crim. App. 2003).\n Thompson’s application makes no claim of error that the retrial on punishment was\n 29\n\nimpermissibly presented to a new jury different than that which decided guilt. See Powell v.\n\n 6\n\f Case: 17-70008 Document: 00514838385 Page: 7 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nthat it would call Robin Rhodes to testify, and that the prosecution had reached\nan agreement with Rhodes involving dismissal of outstanding “hot check cases”\nand a misdemeanor in exchange for his testimony. Four days before the start\nof testimony, however, Thompson’s counsel overheard a conversation\ndisclosing Rhodes’s extensive history as an informant for the State. The trial\ncourt ordered the prosecution to turn over all information required under\nBrady v. Maryland by 5 p.m. the day before testimony was to begin, and denied\nThompson’s request for a continuance. The State committed on the record to\n“mak[ing] sure [Thompson’s] counsel has everything.”\n On retrial, the State presented evidence of Thompson’s past criminality,\nbeginning in his childhood. 30 The State called Rhodes, who recounted his\njailhouse discussions with Thompson. On cross examination, Rhodes explained\nthat he had a longstanding working relationship with the State and had\npreviously served as a paid informant. The trial court denied Thompson’s\nmotion to strike Rhodes’s testimony. The jury answered the two-part inquiry\non punishment as before, and the court again imposed the death penalty. 31 In\n2007, on direct appeal of the retrial, the Texas Court of Criminal Appeals\naffirmed. 32\n Thompson had originally filed a state habeas petition in 2000 following\nhis first trial presenting seventeen grounds for relief, and amended this\napplication in 2007 following the retrial on punishment to raise fourteen\n\n\n\n\nQuarterman, 536 F.3d 325, 334 (5th Cir. 2008) (holding that “no clearly established law\ndecided by the Supreme Court” requires “the same jury to determine guilt and punishment”).\n 30 Thompson, 2007 WL 3208755, at 2.\n 31 Id. at 1.\n 32 Id. at 6.\n\n\n 7\n\f Case: 17-70008 Document: 00514838385 Page: 8 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\ngrounds. 33 In 2013, the state trial court entered findings of fact and conclusions\nof law recommending denial of all relief. 34 In April 2013, the Texas Court of\nCriminal Appeals adopted the trial court’s findings and conclusions, denying\nrelief. 35\n Thompson first filed a habeas petition with the federal district court in\n2014, fifteen years after his conviction. During this same period, Rhodes’s\ncounsel submitted a Public Information Act request to the Harris County\nDistrict Attorney’s office for information related to Robin Rhodes. The State’s\nresponsive disclosures indicated that Rhodes went by several pseudonyms in\nhis transactions with the State, and that there was a signed contract from 1993\nbetween Rhodes and Assistant District Attorney Joan Huffman. Citing these\nnew sources—undisclosed in the state trial court—Thompson moved\nunopposed in federal court for limited discovery from Harris County, the\nHouston Police Department and the City of Baytown regarding Rhodes’s status\nas an informant. The district court granted the motion, and also ordered the\nDistrict Attorney’s office to produce its files relating to Rhodes for in camera\nreview. Thompson moved to stay and abet proceedings while the state habeas\ncourt resolved a third application for post-conviction relief, and the district\ncourt granted the stay. After the Texas Court of Criminal Appeals dismissed\nThompson’s third application as an abuse of the writ in March 2016, Thompson\nfiled an amended petition with the federal district court raising fourteen\ngrounds for relief, and requested an evidentiary hearing. On March 23, 2017,\n\n\n\n\n 33 Ex Parte Thompson, No. WR-78,135-01, 2013 WL 1655676 (Tex. Crim. App. Apr. 17,\n2013).\n 34 Id.\n 35 Id.\n 8\n\f Case: 17-70008 Document: 00514838385 Page: 9 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nthe district court denied Thompson relief on all claims and denied the motion\nfor a hearing. This application followed.\n II.\n We have jurisdiction over the district court’s final decision denying post-\nconviction relief and a hearing under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a).\n A state prisoner does not have “an absolute right to appeal” from a\nfederal district court decision denying a petition for a writ of habeas corpus. 36\nInstead, the prisoner must obtain a COA. 37 We issue a COA upon a\n“substantial showing of the denial of a constitutional right” 38—that “jurists of\nreason could disagree with the district court’s resolution of [the applicant’s]\nconstitutional claims or that jurists could conclude the issues presented are\nadequate to deserve encouragement to proceed further.” 39 This determination\nis a threshold inquiry, not a full-fledged merits analysis. 40 Any doubts as to\nwhether a COA should issue must be resolved in the applicant’s favor. 41\n Thompson’s petition is “also subject to the deferential standards of\nAEDPA.” 42 Where Thompson seeks a COA on claims denied on the merits by\nthe state habeas court, he must show that the state court’s decision was\n“contrary to” or “involved an unreasonable application of” clearly established\nfederal law, or that it “was based on an unreasonable determination of the\n\n\n\n\n 36 Buck v. Davis, 137 S. Ct. 759, 773 (2017).\n 37 28 U.S.C. § 2253(c); Miller–El v. Cockrell, 537 U.S. 322, 335 (2003).\n 38 28 U.S.C. § 2253(c)(2).\n 39 Buck, 137 S. Ct. at 773 (quoting Miller-El, 537 U.S. at 327).\n 40 See id. at 773–74.\n 41 Young v. Davis, 835 F.3d 520, 523–24 (5th Cir. 2016).\n 42 Charles v. Stephens, 736 F.3d 380, 387 (5th Cir. 2013) (per curiam).\n\n\n 9\n\f Case: 17-70008 Document: 00514838385 Page: 10 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nfacts” given the record before the state court. 43 Where Thompson seeks a COA\non claims that the state court deemed procedurally defaulted, he must show\ncause to excuse his failure to comply with the state procedural rule, as well as\nactual prejudice resulting from the alleged constitutional violation. 44\n A.\n Thompson first seeks a COA arguing that the guilt phase of his trial was\ntainted by the State’s introduction of the murder weapon in violation of right\nto counsel. Massiah v. United States held that the Government violated a\ncriminal defendant’s Sixth Amendment right to counsel “when there was used\nagainst him at his trial evidence of his own incriminating words, which federal\nagents had deliberately elicited from him after he had been indicted and in the\nabsence of his counsel.” 45 The rule from Massiah applies not only to\ninterrogation by identified officials, but also to “indirect and surreptitious”\nmeetings during which the indicted individual may not “even know that he was\nunder interrogation by a government agent.” 46 Where state actors have\nobtained incriminating statements in violation of individual’s right to counsel,\n“the defendant’s own incriminating statements, obtained by federal agents\nunder the circumstances here disclosed, could not constitutionally be used by\nthe prosecution as evidence against him at his trial.” 47 To bring a Massiah\nclaim, the claimant must establish that his Sixth Amendment right to counsel\n\n\n\n 43 Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)–(2)).\n 44 Davila v. Davis, 137 S. Ct. 2058, 2064–65 (2017) (“A state prisoner may overcome\nthe prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his\nfailure to comply with the state procedural rule and actual prejudice resulting from the\nalleged constitutional violation.” (internal quotation marks omitted)).\n 45 377 U.S. 201, 206 (1964).\n 46 Id.\n 47 Id. at 207.\n\n\n 10\n\f Case: 17-70008 Document: 00514838385 Page: 11 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nhad attached when a government agent sought information from the defendant\nwithout his counsel’s presence, and deliberately elicited incriminating\nstatements from the defendant. 48 Massiah claims are subject to harmless error\nanalysis. 49\n At the outset, Thompson argues the district court erred in treating the\nissue as resolved by the Texas Court of Criminal Appeals and thus entitled to\nAEDPA deference. Jurists of reason would not debate the district court's\ngranting of deference to the Court of Criminal Appeals’ opinion on this issue.\nWhen Thompson raised the issue on direct appeal, the Court of Criminal\nAppeals granted a retrial on punishment, but, without stating its reasons,\ndenied retrial on guilt. “When a federal claim has been presented to a state\ncourt and the state court has denied relief, it may be presumed that the state\ncourt adjudicated the claim on the merits in the absence of any indication or\nstate-law procedural principles to the contrary.” 50 We presume that the state\ncourt adjudicated the claim on the merits, and Thompson has presented no\nindication or state-law procedural principles to overcome that presumption.\nJurists of reasons would not debate the district court’s application of AEDPA\ndeference to this claim.\n Thompson’s argument hinges on the assertion that “the police only\nrecovered the gun based on statements illegally obtained.” Given the\ndeferential AEDPA review standards, jurists of reason would not debate the\nstate court’s denial of relief in light of the lack of factual support for this\n\n\n\n 48 United States v. Bates, 850 F.3d 807, 810 (5th Cir. 2017).\n 49 Arizona v. Fulminante, 499 U.S. 279, 307 (1991); Satterwhite v. Texas, 486 U.S. 249,\n257 (1988) (“We have permitted harmless error analysis in both capital and noncapital cases\nwhere the evil caused by a Sixth Amendment violation is limited to the erroneous admission\nof particular evidence at trial.”).\n 50 Richter, 562 U.S. at 99.\n 11\n\f Case: 17-70008 Document: 00514838385 Page: 12 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\ncontention. There is only a tenuous inference drawn from the timing of the\nmeeting and discovery of the weapon: that police recovered the weapon two\nweeks after the meeting with Johnson does not attribute the gun’s discovery to\nthe meeting. According to the State, information regarding the gun conveyed\nduring Johnson’s jailhouse meeting was duplicative of the police’s existing\nknowledge, namely the hand-drawn map provided to Reid and Zernia’s account\nof Thompson’s confession. Thompson does not dispute these contentions.\n Moreover, even if the murder weapon was recovered based on Johnson’s\nmeeting, jurists of reason would not debate the harmlessness of its\nintroduction during the guilt phase of Thompson’s trial. 51 The murder weapon\nwas introduced during testimony of a firearms expert, who explained that\nThompson had reloaded during the shooting. 52 Thompson argues that but for\nthe Massiah violation, the State would have introduced no evidence of\nreloading, vitiating its showing that Thompson intentionally killed Hayslip.\nThis is farfetched. Taken together with the evidence properly before the jury—\nnot least facts showing Thompson shot Zernia in the face and left her drowning\nin her own blood and suffocating on the swollen remnants of her severed\ntongue—the introduction of the murder weapon was not crucially important,\nlet alone dispositive. The district court thus found that the state habeas court\nwas not unreasonable to reject this claim. We agree that jurists of reason could\nnot debate this conclusion, and that the claim does not deserve encouragement\nto proceed further. We deny a COA on this claim.\n \\\n\n\n\n 51 Milton v. Wainwright, 407 U.S. 371, 377–78 (1972) (“[W]e do not close our eyes to\nthe reality of overwhelming evidence of guilt fairly established in the state court years ago\nby use of evidence not challenged here; the use of the additional evidence challenged in this\nproceeding and arguably open to challenge was, beyond reasonable doubt, harmless.”).\n 52 Thompson, 93 S.W.3d at 20.\n 12\n\f Case: 17-70008 Document: 00514838385 Page: 13 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\n B.\n Second, Thompson seeks a COA arguing the State violated his rights to\ndue process and counsel when it introduced the testimony of fellow inmate\nRobin Rhodes during the retrial on punishment. Though these claims were\nprocedurally defaulted, Thompson argues he overcomes the procedural bar.\nThompson also appeals the district court’s denial of an evidentiary hearing on\nthe Rhodes-related claims, which we review for an abuse of discretion. 53\n A Brady violation can provide cause and prejudice to overcome a\nprocedural bar on a habeas claim. 54 Under Brady, a defendant is denied due\nprocess where the State fails to disclose evidence favorable to the accused and\nthat evidence is material, meaning there is a reasonable probability that, had\nthe evidence been disclosed, the outcome of the trial would be different. 55 To\ndetermine whether an informant was a government agent for purposes of a\nMassiah claim, the court asks whether the informant was promised,\nreasonably led to believe, or actually received a benefit in exchange for\nsoliciting information from the defendant; and whether he acted pursuant to\ninstructions from the State, or otherwise submitted to the State’s control. 56\n 1.\n Thompson raised this claim in his third state habeas petition, which the\nCourt of Criminal Appeals dismissed as an abuse of the writ. 57 The district\ncourt found the claim procedurally defaulted. Thompson argues, however, that\nthe State’s Brady violation in failing to disclose the full nature of Rhodes’s\n\n\n 53 Hall v. Quarterman, 534 F.3d 365, 367 (5th Cir. 2008).\n 54 Banks v. Dretke, 540 U.S. 668, 691 (2004).\n 55 Id.\n 56 Creel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998).\n 57 Ex Parte Thompson, No. WR-78,135-03, 2016 WL 922131, at 1 (Tex. Crim. App.\nMar. 9, 2016).\n 13\n\f Case: 17-70008 Document: 00514838385 Page: 14 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nrelationship with the State until 2014 provides cause and prejudice, allowing\nhim to overcome the procedural bar.\n Days before his 2005 retrial on punishment, Thompson’s trial counsel\noverheard a conversation suggesting Rhodes had previously worked as an\ninformant. Thompson then probed Rhodes’s relationship with the State during\nthe retrial: specifically, during his cross examination, Rhodes self-described as\na “full time informant” for the State at the time of his encounter with\nThompson. The meaning of this description is not self-evident. While during\nthe same testimony Rhodes explained that he had not solicited Thompson on\nthe instructions of any state official, this does not preclude the possibility of\nmore general open-ended instruction or guidance from his government\n“handler,” nor even the possibility that Rhodes was performing general\ninformation-gathering duties. Thompson learned further that Rhodes not only\nserved repeatedly as an informant for the State—in some cases paid tens of\nthousands of dollars for his services—but was even at some point an employee\nof the Harris County Organized Crime Task Force. 58 Aspects of Rhodes’s\nhistory with the State were discoverable in public records, specifically the\nTexas Court of Appeals’ published decision in Stephens v. State. That opinion\ndescribes Rhodes as an employee of the Organized Crime Task Force and\n“confidential informant in over 50 cases.” 59 But that opinion does not\nnecessarily describe the State’s relationship with Rhodes exhaustively,\nparticularly with respect to his status at the time he engaged Thompson in the\nHarris County Jail.\n\n\n\n\n 58 Thompson, 2014 WL 2765666, at 2.\n 59 59 S.W.3d 377, 381–82 (Tex. App. 2001).\n\n\n 14\n\f Case: 17-70008 Document: 00514838385 Page: 15 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\n Thompson learned more of Rhodes’s history with the State in mid-2014,\nafter the Court of Criminal Appeals had denied post-conviction relief, 60 and he\nwas before the district court. Pursuant to the district court’s discovery order,\nthe State produced a 1993 contract executed by Rhodes (under his pseudonym\n“Robert Lee”), his handler Floyd Winkler, and Harris County Assistant District\nAttorney Joan Huffman. Under the agreement, in exchange for dismissal of\none theft charge and probation on another, Rhodes agreed to “cooperate with\nOfficer Winkler . . . in the investigation of narcotics trafficking in the Harris\nCounty area of which he has knowledge,” and to “follow the directions and\ninstructions of Winkler or his fellow law enforcement officers.” Thompson\nlearned during retrial that Rhodes previously served as an informant. But the\n1993 contract at least arguably clarifies the nature of his past work: Rhodes’s\nduties to the State at times involved an open-ended information-gathering\nenterprise, in which the State would compensate Rhodes with without ex ante\nknowledge of the specific targets or subjects of his gathering. The agreement\nterminated in November 1993, and therefore does not cover the period during\nwhich Rhodes encountered Thompson in the Harris County Jail. But it does\nraise the possibility that, even if Rhodes had no specific instruction to solicit\ninformation from Thompson, he might have acted pursuant to a reasonable\nunderstanding that when he relayed the murder solicitation information to\nWinkler he would receive a benefit, such as payment or leniency on pending\ncharges. Although the question is close, 61 jurists of reason could debate\nwhether the State’s delay in disclosing the 1993 contract suppressed material\ninformation regarding its history with Rhodes and caused Thompson’s\n\n\n\n 60 Ex Parte Thompson, 2013 WL 1655676, at 1.\n 61Young, 835 F.3d at 523–24 (5th Cir. 2016) (any doubts as to whether a COA should\nissue must be resolved in the applicant’s favor).\n 15\n\f Case: 17-70008 Document: 00514838385 Page: 16 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nprocedural default. Jurists of reason could also debate whether the\nintroduction of Rhodes’s testimony was a Massiah violation that prejudiced the\nretrial. Here, jurists of reason might debate whether on the basis of repeated\ntransactions and the 1993 contract the State “reasonably led” Rhodes to believe\nthat “benefits would follow” from a successful solicitation of useful information\nfrom Thompson. 62\n We therefore grant COAs on two questions arising from this claim: first,\nwhether Thompson has established a Brady violation in the State’s non-\ndisclosure of its past relationship with Rhodes that would allow Thompson to\novercome the procedural bar and entitle him to habeas relief; second, if the\nprocedural bar is overcome, whether the introduction of Rhodes’s testimony at\nthe retrial on punishment constituted a Massiah violation under which\nThompson is entitled to habeas relief.\n 2.\n Thompson was unable to develop the facts underlying the Rhodes-\nrelated Brady and Massiah claims in state habeas court. When he got to federal\ndistrict court, Thompson moved for limited discovery—which was granted—\nand then for an evidentiary hearing—which was not. Considering documents\nturned over by the State pursuant to its discovery order, including privileged\ndocuments reviewed in camera, the district court found an evidentiary hearing\nnot “necessary to a full and fair adjudication of [Thompson’s] claims.” In so\ndeciding, the district court downplayed the toll of time. By 2014, the Harris\nCounty Organized Crime Task Force, the government entity with which\nRhodes had interacted, had dissolved, and Rhodes’s handler Floyd Winkler no\nlonger worked with the State. In response to the subpoena for Rhodes-related\ndocuments, the City of Baytown, which had taken possession of the Task\n\n\n 62 Creel, 162 F.3d at 393.\n 16\n\f Case: 17-70008 Document: 00514838385 Page: 17 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nForce’s files, disclosed that relevant retention periods had expired, and it had\ndestroyed relevant documents from that time. As a result, no records exist from\nthe time to document the nature of Rhodes’s relationship to the State in July\nand August 1998. For this reason, Thompson sought to question witnesses,\nspecifically, Gary E. Patterson, Rhodes’s attorney and intermediary with the\nTask Force; former Assistant District Attorney Joan Huffman, with whom\nRhodes had executed the 1993 agreement; Rhodes’s handler, Officer Floyd\nWinkler; Vic Wisner and Kelley Sigler, the prosecutors at Thompson’s retrial;\nand Investigator Mike Kelley, who investigated Thompson’s solicitation of\nmurder in 1998. Thompson’s factual development of these claims has been\npotentially hampered by the State’s nine-year delay in disclosing key aspects\nof its history with Rhodes. As a result, the district court may not have been\nprovided sufficient facts to make an informed decision as to the merits of the\nRhodes-related claims. 63\n Even so, the district court did not err in denying Thompson an\nevidentiary hearing. Under 28 U.S.C. § 2254(e)(2), an applicant who has failed\nto develop the factual basis of a claim in the state habeas court may not obtain\nan evidentiary hearing in federal habeas proceedings unless two conditions are\nmet. First, the petitioner’s claim must rely on a new rule of constitutional law,\nor on a factual predicate that could not have been previously discovered\nthrough the exercise of due diligence. 64 Second, the facts underlying the claim\nmust be “sufficient to establish by clear and convincing evidence that, but for\nconstitutional error, no reasonable factfinder would have found the applicant\n\n\n\n\n 63 See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).\n 64 28 U.S.C. § 2254(e)(2)(A)(ii).\n\n\n 17\n\f Case: 17-70008 Document: 00514838385 Page: 18 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nguilty of the underlying offense.” 65 Here, the disputed factual predicate\nconcerns potential error during Thompson’s punishment retrial. Even if\nThompson were to prevail on the claim, his guilty verdict would remain\nuntouched. Under the statute, the district court did not have discretion to\ngrant him a hearing. We affirm the district court’s denial of the motion for an\nevidentiary hearing.\n C.\n Third, Thompson seeks a COA arguing that the guilt phase of his trial\nwas tainted by the State’s failure to disclose that the Hayslip autopsy report\nwas false and improperly certified by an incompetent, unqualified medical\nexaminer. This claim was only raised in Thompson’s third state habeas\napplication, which the state habeas court deemed an abuse of the writ. 66 To\novercome the procedural default, Thompson must establish cause and\nprejudice. 67\n Thompson argues that the State committed a Brady violation that allows\nhim to overcome the procedural default. We need not proceed past the first\nBrady element. Thompson begins from the premise that the autopsy report\nmischaracterized Hayslip’s cause of death, and that the medical examiner, Dr.\nPaul Shrode, and by imputation the State, knew this was so. In support,\nThompson relies on the opinion of another expert, pathologist Dr. Lloyd White,\n\n\n\n 65 Id. § 2254(e)(2)(B); Oliver v. Quarterman, 254 F. App’x 381, 390 n.6 (5th Cir. 2007)\n(unpublished) (noting in dicta “subsection (B) requires the habeas applicant to show that ‘no\nreasonable factfinder would have found the applicant guilty of the underlying offense,’ not\nthat no reasonable factfinder would have imposed the same sentence.” (emphasis in the\noriginal)); see also In re Webster, 605 F.3d 256, 258 (5th Cir. 2010) (holding that the plain\nmeaning of similar language governing successive motions in 28 U.S.C. § 2255(h)(1) is limited\nto determinations of guilt, and not the petitioner’s eligibility for a death sentence); Hope v.\nUnited States, 108 F.3d 119, 120 (7th Cir. 1997) (same).\n 66 Ex Parte Thompson, 2016 WL 922131, at 1.\n 67 Davila, 137 S. Ct. at 2064–65.\n 18\n\f Case: 17-70008 Document: 00514838385 Page: 19 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nattributing Hayslip’s death to “therapeutic misadventure” rather than to the\nshot she sustained. Assuming arguendo White is correct, an inaccurate report\nis not enough to sustain Thompson’s claim. Rather Thompson must show that\nthe State suppressed the inaccuracy. Here, Thompson resorts to speculation.\nHe invokes instances in which the State medical examiner, Dr. Shrode lied.\nWith this past, he insists Shrode “had to know” he was unqualified to certify\nthe autopsy report. By imputation, the State “must have known” about\nShrode’s shortcomings as a medical examiner and inferred that the report was\nunreliable. These inferences are unsubstantiated. Perhaps medical\nprofessionals could debate which of the two opinions—White’s or Shrode’s—is\nmore accurate. But Thompson has not established that jurists of reason could\ndebate whether there was evidence of the State’s suppression of exculpatory or\nimpeaching facts. Additionally, Thompson assumes rather than establishing\nthat the nondisclosure was material. He mentions that the jury specifically\nrequested the autopsy report during its deliberations, and infers the report was\ndispositive in the verdict. Given the plethora of other evidence probative of\nThompson’s role in Hayslip’s death—not least testimony from Dr. Radalat that\nthe gunshot wound would have been fatal—he has not shown a basis for jurists\nof reason to debate whether he established a reasonable probability that more\ninformation on Shrode would have turned the verdict. We agree that jurists of\nreason could not debate the district court’s conclusion that Thompson fails to\nestablish cause and prejudice and does not overcome the procedural default.\nWe deny a COA on this claim.\n D.\n Fourth, Thompson seeks a COA arguing he received ineffective\nassistance of counsel during the guilt stage of his trial, describing five separate\ndeficiencies. To prevail on such a claim, Thompson must establish that\n“counsel's representation fell below an objective standard of reasonableness”\n 19\n\f Case: 17-70008 Document: 00514838385 Page: 20 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nand that the deficient representation caused prejudice, meaning “there is a\nreasonable probability that, but for counsel’s unprofessional errors, the result\nof the proceeding would have been different.” 68 Our scrutiny of counsel’s\nperformance is “highly deferential” 69—“doubly” so when the ineffective-\nassistance claim is raised on federal review of a state-court decision rejecting\nthe claim on the merits. 70 With these standards in mind, we must assess\nwhether Thompson has established that jurists of reason would debate his\nineffective assistance of counsel claims.\n 1.\n Thompson argues his trial counsel provided ineffective assistance by\nfailing thoroughly to question potential jurors about their reactions to his\npotential parole eligibility if sentenced to life imprisonment and about their\nlikely reactions to victim-impact evidence. He also faulted trial counsel for\nfailing to exercise preemptory strikes of jurors Harrell Rogers and Maria\nBlassingame. The state habeas court found that trial counsel acted “to select\njurors that would give the defense the best possible chance at trial,” and that\n“counsel strategically conducted voir dire, including the use of peremptory\nstrikes, to achieve that goal.” With some potential jurors, counsel did not ask\nabout parole eligibility because the State had already touched on the subject.\nWith respect to victim-impact evidence, no such evidence was presented during\nthe guilt phase of the trial (the only phase subject to this claim) and so\nThompson could show no prejudice. The decisions not to strike Rogers and\nBlassingame were “reasonable strategic decision[s],” taken considering their\ncircumstances and attitudes relative to other potential jurors’.\n\n\n\n 68 Richter, 562 U.S. at 104.\n 69 Id.\n 70 See id. at 105.\n 20\n\f Case: 17-70008 Document: 00514838385 Page: 21 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\n The district court did not find these conclusions unreasonable. With\nrespect to the parole and victim-impact evidence questioning, the district court\npointed out that these questions pertained to jurors’ attitudes towards\npunishment—but the punishment phase of the first trial was overturned.\nThompson cannot establish prejudice from the lack of such questions with\nrespect to the guilt phase of his trial. Moreover, Thompson’s reliance on trial\ncounsel’s statements that the ability to ask such questions was “necessary” for\nintelligent evaluation of potential jurors concerns trial counsel’s thoughts on\nthe option of pursuing such questioning, not his detailed views on questioning\nas applied to any particular potential juror. Viewing trial counsel’s choices with\nthe benefit of hindsight, the district court noted that Thompson might have\nprovided reasons why another attorney might have questioned and exercised\npreemptory strikes. But the district court found it not unreasonable for the\nstate habeas court to conclude that trial counsel’s performance did not fall\nbelow the objective standard of reasonableness. We agree that jurists of reason\ncould not debate this conclusion, and that this claim does not deserve\nencouragement to proceed further. We deny a COA on this claim.\n 2.\n Thompson argues his trial counsel failed to object to a state witness’s\nreferences to his prior bad acts—namely instances in which Thompson lost his\ntemper and destroyed property at Hayslip’s house. Under Texas law, evidence\nof these bad acts was admissible as probative of the previous relationship\nbetween the accused and the deceased. Thompson argues that because the\nState had not provided notice of these prior bad acts, they were clearly\ninadmissible under state law. This argument does not appear to have been\n\n\n\n\n 21\n\f Case: 17-70008 Document: 00514838385 Page: 22 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nraised in the district court, and is waived. 71 Moreover, while we have suggested\nthat a failure to object to prejudicial and clearly inadmissible evidence cannot\nbe attributed to a strategic decision, 72 we are offered no plausible argument\nthat the evidence of these violent outbursts was prejudicial to Thompson. 73\nThere was no shortage of other evidence indicating Thompson’s violent\nrelationship with Hayslip, not least evidence showing that Thompson shot\nHayslip in the face and left her bleeding profusely. The state habeas court\nconcluded that trial counsel’s choice was sound because Thompson’s\nhypothetical objection would have been meritless. The district court did not\nfind this conclusion unreasonable. We agree that jurists of reason could not\ndebate the district court’s conclusion, and that the claim does not deserve\nencouragement to proceed further. We deny a COA on this claim.\n 3.\n Thompson argues that his trial counsel failed to object to the\nprosecution’s mischaracterization of Dr. Radalat’s testimony. The parties\nagree on the substance of Radalat’s testimony: he initially described Hayslip’s\nwound as survivable, attributing her death to inadequate medical\nintervention, but later conceded on cross examination that Hayslip would have\ndied in the absence of intervention. In its argument, the prosecution told the\njury that Radalat “finally admitted to you that [Hayslip’s] wounds would be\nfatal if left untreated.” Thompson argues this statement mischaracterized\nRadalat’s testimony, such that trial counsel’s failure to object falls below the\n\n\n\n 71Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999) (“[A] contention not raised by\na habeas petitioner in the district court cannot be considered for the first time on appeal from\nthat court's denial of habeas relief.”).\n 72 Lyons v. McCotter, 770 F. 2d 529, 534 (5th Cir. 1985).\n 73 Strickland v. Washington, 466 U.S. 668, 687 (1984).\n\n\n 22\n\f Case: 17-70008 Document: 00514838385 Page: 23 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nobjective standard of reasonableness. Thompson’s trial counsel had broad\ndiscretion in choosing whether to object during closing arguments, 74 and\ndecided not to object here—rightly so, because the objection would have had no\nmerit. The prosecution’s characterization was not inaccurate considering the\ntotality of Radalat’s testimony. The state habeas court concluded that trial\ncounsel was not deficient in choosing not to object, because the prosecution had\nproperly summarized Radalat’s testimony and did not prejudice Thompson.\nThe district court did not find this conclusion unreasonable. We agree jurists\nof reason could not debate the district court’s conclusion, and that this claim\ndoes not deserve encouragement to proceed further. We deny a COA on this\nclaim.\n 4.\n Thompson argues that his trial counsel failed to request the inclusion of\nlesser included offenses with respect to Hayslip in the jury charge, even though\nThompson had presented evidence suggesting he had not intended to shoot\nHayslip. According to Thompson, the limited set of lesser included offenses\nnarrowed the jury’s options in the event jurors were determined to convict\nThompson in some way for Hayslip’s death, leaving a capital murder conviction\nas their only option. His argument is premised on possibility that jurors would\nhave found that Hayslip’s shooting was an accident—but the state court found\nthat there was no evidence that could have supported such a conclusion. Trial\ncounsel’s decision as to which lesser included offenses to include in instructions\nis tactical, and the choice reached here was within the bounds of counsel’s\ndiscretion. Once again, Thompson offers ex post evaluation of how these\nstrategic decisions could have been better, but this cannot carry his claim. The\nstate habeas court concluded that trial counsel was not deficient in not\n\n\n 74 Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011).\n 23\n\f Case: 17-70008 Document: 00514838385 Page: 24 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nrequesting additional instructions, because the evidence did not support the\nsubmission of lesser-included offense instructions. The district court did not\nfind this conclusion unreasonable. We agree jurists of reason could not debate\nthis conclusion, and that this claim does not deserve encouragement to proceed\nfurther. We deny a COA on this claim.\n 5.\n Thompson argues that his trial counsel failed to object to the admission\nof the murder weapon even though it was discovered as a result of Investigator\nJohnson’s unlawful jailhouse interrogation. This claim does not appear to have\nbeen raised before the state habeas court, and therefore is procedurally\ndefaulted. But even had it not faced the procedural bar, it would fail. We have\nalready rejected Thompson’s arguments attributing the recovery of the weapon\nto the Johnson meeting. Since that attribution is without merit, as the district\ncourt held, counsel’s decision not to object on that basis was sound. We agree\njurists of reason could not debate this conclusion, and that this claim does not\ndeserve encouragement to proceed further. We deny a COA on this claim.\n E.\n Fifth, Thompson seeks a COA arguing the Texas capital murder scheme\nunder which he was sentenced violates his rights under the Fifth, Sixth, and\nFourteenth Amendments. In the punishment phase, the State has the burden\nto prove beyond a reasonable doubt that “there is a probability that the\ndefendant would commit criminal acts of violence that would constitute a\ncontinuing threat to society.” 75 If the jury finds future dangerousness, the jury\nmust then consider whether there are sufficient mitigating circumstances to\n\n\n\n\n 75 TEX. CRIM. P. CODE §§ 37.071(2)(b)(1), 37.071(2)(c).\n\n\n 24\n\f Case: 17-70008 Document: 00514838385 Page: 25 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nwarrant a sentence of life imprisonment rather than a death sentence. 76 Unless\nthe jury returns an affirmative answer to question one and a negative answer\nto question two, the court must sentence the defendant to life imprisonment. 77\n Thompson’s challenge addresses the second question. He argues that the\ntrial court’s death sentence is impermissible where the jury does not find the\nabsence of sufficient mitigating circumstances beyond a reasonable doubt. The\nstate habeas court denied relief, finding that the Court of Criminal Appeals\nhad already rejected the same argument. The district court did not find this\nconclusion unreasonable, agreeing that settled precedent foreclosed relief on\nthe claim.\n We agree jurists of reason could not debate the district court’s conclusion,\nand that this claim does not deserve encouragement to proceed further. We\nhave addressed similar constitutional challenges, concluding that they\n“ignore[] the distinction . . . between facts in aggravation of punishment and\nfacts in mitigation.” 78 As we have stated, “not asking the jury to find an absence\nof mitigating circumstances beyond a reasonable doubt is perfectly consistent\nwith Ring and Apprendi because a finding of mitigating circumstances reduces\na sentence from death, rather than increasing it to death.” 79 Thompson\nconcedes that this court has already answered the question, but argues that\nthe situation has changed in light of the Supreme Court’s 2016 decision in\n\n\n\n 76 Id. § 37.071(2)(e)(1).\n 77 Id. § 37.0712(g).\n 78Blue v. Thaler, 665 F.3d 647, 668 (5th Cir. 2011) (quoting Apprendi v. New Jersey,\n530 U.S. 466, 490 n. 16 (2000)); see also, Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011)\n(“This court has held that ‘[n]o Supreme Court or Circuit precedent constitutionally requires\nthat Texas’s mitigation special issue be assigned a burden of proof.’” (quoting Rowell v.\nDretke, 398 F.3d 370, 378 (5th Cir. 2005)).\n 79 Blue, 665 F.3d at 669 (internal quotation marks omitted).\n\n\n 25\n\f Case: 17-70008 Document: 00514838385 Page: 26 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nHurst v. Florida. 80 Hurst addressed the constitutionality of Florida’s capital\npunishment scheme in which the jury rendered an advisory verdict on\nsentencing, and then, considering this advice, a judge made the critical factual\nfindings necessary to impose the death penalty. 81 The Court held that this\nprocedure violated the Sixth Amendment, which requires that a jury—not a\njudge—make all findings that increase a defendant’s punishment. 82 As the\ndistrict court noted, the Hurst Court’s holding does not bear on the Texas\nprocedure, in which a jury reaches findings regarding whether to reduce a\nsentence from death. 83 We deny a COA on this claim.\n F.\n Sixth, Thompson seeks a COA arguing the trial court’s denial of his\nmotion for a continuance before the start of the retrial on punishment violated\nhis right to due process. The state habeas court found no error in the denials\nof Thompson’s motions for continuance in connection with his retrial on\npunishment. It also rejected Thompson’s premise that he was prejudiced by the\nlack of preparation time, and that his trial counsel failed to develop an\nadequate mitigation case as a result. The district court observed that “trial\njudges enjoy ‘a great deal of latitude in scheduling trials[’] and ‘only an\nunreasoning and arbitrary insistence upon expeditiousness in the face of a\njustifiable request for delay’ poses constitutional concern.” Additionally, it\nagreed that Thompson had not shown that the denials of continuance resulted\n\n\n\n 80 136 S. Ct. 616 (2016).\n 81 Id. at 620.\n 82 Id. at 621–22.\n 83 See also Davila v. Davis, 650 F. App’x 860, 873 (5th Cir. 2016)\n(unpublished), aff'd, 137 S. Ct. 2058 (2017) (addressing the same argument and concluding\n“[o]ur precedent precludes this claim. Reasonable jurists would not debate the district court’s\nresolution, even after Hurst.” (internal citation omitted)).\n 26\n\f Case: 17-70008 Document: 00514838385 Page: 27 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\nin prejudice: he could not cite specific evidence that “remained unpresented,”\nnor demonstrate that trial counsel was in fact unprepared. The district court\nheld it was not unreasonable for the state habeas court to conclude that there\nwas no constitutional violation in the denials of continuance.\n On remand for a retrial on punishment, the state trial court appointed\nThompson’s previous trial counsel, Ellis McCullough, as first chair, and in\nJanuary 2005 appointed Terrence Gaiser second chair. In June, Thompson\nmoved pro se to remove McCullough as appointed counsel; the trial court\ngranted this motion on September 15, 2005. In that interval, Gaiser was active\nin Thompson’s representation, including development of a mitigation case for\nthe upcoming retrial on punishment. That retrial commenced on October 24,\n2005. Thompson argues that Gaiser required more time to prepare because of\nthe transition; he argues Gaiser discovered new information—new evidence\npertaining to Thompson’s treatments, closed head injuries, and documentation\nof substance abuse. Also, Gaiser had newly discovered a potential Brady\nviolation in the State’s plans to call Rhodes to testify. Without a continuance,\nhe argues, Gaiser was unable adequately to prepare for the retrial in light of\ntime lost after Hurricane Katrina.\n Gaiser represented Thompson for almost ten months before the retrial,\nduring which time he investigated and developed a mitigation case for his\nclient. Thompson provides only conclusory assertions—no specific examples—\nin response to the state habeas court’s question regarding specific evidence\nthat went unpresented or specific instances in which Gaiser was in fact\nunprepared during the retrial. While Thompson is correct that denial of a\ncontinuance can violate a defendant’s constitutional rights, the district court\nfound the state habeas court was not unreasonable to conclude there was no\nviolation in Thompson’s case. We agree jurists of reason could not debate the\n\n\n 27\n\f Case: 17-70008 Document: 00514838385 Page: 28 Date Filed: 02/18/2019\n\n\n\n No. 17-70008\ndistrict court’s determination, and that this claim does not deserve\nencouragement to proceed further. We deny a COA on this claim.\n III.\n We GRANT a COA as to whether Thompson has established a Brady\nviolation in the State’s non-disclosure of a past relationship with Rhodes,\nsufficient to overcome the procedural default of Thompson’s second claim; and,\nif so, whether Thompson is entitled to habeas relief on the grounds of the Brady\nviolation or a Massiah violation in the introduction of Rhodes’s testimony\nduring the retrial on punishment. We otherwise DENY Thompson’s\napplication for COAs on all other claims and AFFIRM the district court’s denial\nof an evidentiary hearing.\n\n\n\n\n 28", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368819/", "author_raw": "PATRICK E. HIGGINBOTHAM, Circuit Judge:"}]}	HIGGINBOTHAM	HAYNES	GRAVES	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591566/	Published	1	0	0	2,019	2	[ { "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...
4,591,850	EXPRESS OIL CHANGE, L.L.C.; TE, L.L.C., Doing Business as Tire Engineers, Plaintiffs-Appellants, v. MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS & SURVEYORS; Terrell Temple, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Rick Turner, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph Franklin Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joseph E. Lauderdale, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Bennie J. Sellers, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Dr. Dennis D. Truax, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; James Matthew Rankin, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Joe W. Byrd, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors; Shannon D. Tidwell, in Their Individual and Official Capacities as the Members of the Mississippi Board of Licensure for Professional Engineers & Surveyors, Defendants-Appellees.	Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Prof'l Eng'rs & Surveyors	2019-02-19	18-60144	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before SMITH, BARKSDALE, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-60144 Document: 00514841512 Page: 1 Date Filed: 02/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-60144 FILED\n February 19, 2019\n Lyle W. Cayce\n Clerk\n\nEXPRESS OIL CHANGE, L.L.C.; TE, L.L.C.,\ndoing business as Tire Engineers,\n\n Plaintiffs–Appellants,\n\nversus\n\nMISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL\nENGINEERS & SURVEYORS; TERRELL TEMPLE, in their individual and\nofficial capacities as the members of the Mississippi Board of Licensure for\nProfessional Engineers & Surveyors; RICK TURNER, in their individual and\nofficial capacities as the members of the Mississippi Board of Licensure for\nProfessional Engineers & Surveyors; JOSEPH FRANKLIN LAUDERDALE,\nin their individual and official capacities as the members of the Mississippi\nBoard of Licensure for Professional Engineers & Surveyors; JOSEPH E.\nLAUDERDALE, in their individual and official capacities as the members of\nthe Mississippi Board of Licensure for Professional Engineers & Surveyors;\nBENNIE J. SELLERS, in their individual and official capacities as the\nmembers of the Mississippi Board of Licensure for Professional Engineers &\nSurveyors; DR. DENNIS D. TRUAX, in their individual and official capacities\nas the members of the Mississippi Board of Licensure for Professional\nEngineers & Surveyors; JAMES MATTHEW RANKIN, in their individual\nand official capacities as the members of the Mississippi Board of Licensure\nfor Professional Engineers & Surveyors; JOE W. BYRD, in their individual\nand official capacities as the members of the Mississippi Board of Licensure\nfor Professional Engineers & Surveyors; SHANNON D. TIDWELL, in their\nindividual and official capacities as the members of the Mississippi Board of\nLicensure for Professional Engineers & Surveyors,\n\n Defendants–Appellees.\n\f Case: 18-60144 Document: 00514841512 Page: 2 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\n\n\nBefore SMITH, BARKSDALE, and HO, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Mississippi regulates the practice of engineering and restricts the use of\nthe term “engineer.” Express Oil Change (“Express”) operates several automo-\ntive service centers in Mississippi under the name “Tire Engineers.” In 2015,\nthe Mississippi Board of Licensure for Professional Engineers & Surveyors\n(“the Board”) determined that the name “Tire Engineers” violated the pertin-\nent statutes and requested that Express cease using it. Following protracted\ncorrespondence, the parties could not reach a compromise, and Express sued\nfor a declaratory judgment and related relief. The company contended, inter\nalia, that the relevant statutory provisions violate the First Amendment as\nincorporated through the Due Process Clause of the Fourteenth Amendment.\nAfter discovery, the district court granted the Board’s motion for summary\njudgment and dismissed. Because the Board’s decision violates the First\nAmendment’s commercial speech protections, we reverse and render judgment\nfor Express.\n\n I.\n Mississippi regulates several professions and the use of certain terms\nand phrases associated with those occupations. See, e.g., MISS. CODE ANN.\n§ 73-1-1 et seq. (West 2018). Relevant here, the state regulates the practice of\nengineering, id. §§ 73-13-1 to -45, and restricts, inter alia, the use of the term\n“engineer.” Id. § 73-13-39. Violating the statute is punishable by civil and\ncriminal penalties, including fines and imprisonment. Id. §§ 73-13-37 to -39.\n 2\n\f Case: 18-60144 Document: 00514841512 Page: 3 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\n Express operates a number of automotive service centers in Mississippi\nunder the Tire Engineers mark. According to Express, Tire Engineers provides\n“oil changes, car repairs, and tire services—repair, maintenance, and\nreplacement—to customers in fifteen states, including Mississippi.”\n\n In February 2015, the Board informed Express that the name Tire\nEngineers violated § 73-13-39 and “respectfully request[ed] that Tire Engin-\neers change its company advertisement name in Mississippi and use an alter-\nnate title such as ‘technicians’ or ‘experts’ and that the engineer title be\nomitted.” In June 2016, after the parties were unable to agree, Express sued,\nseeking a declaratory judgment and related relief on three theories: first, that\nthe Board’s decision concerning the use of the term engineer violated Missis-\nsippi law; second, that it violated Express’s “rights of commercial free speech\nguaranteed by the First Amendment”; and third, that the decision violated\nExpress’s “rights under preemptive federal trademark law [pursuant to] the\nLanham Trademark Act of 1946, 15 U.S.C. §§ 1051–1127.”\n\n Following discovery, the parties filed cross-motions for summary judg-\nment. The district court granted the Board’s motion and denied as moot all\nother pending motions. Express raises only its constitutional claim on appeal.\n\n II.\n EOC appeals the summary judgment in favor of the Board. A “court\nshall grant summary judgment if the movant shows that there is no genuine\ndispute as to any material fact and the movant is entitled to judgment as a\nmatter of law.” FED. R. CIV. P. 56(a). We review a summary judgment de novo.\nPub. Citizen, Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir.\n2011). Where “the evidentiary facts are not disputed, a court in a nonjury case\nmay grant summary judgment if trial would not enhance its ability to draw\n\n\n 3\n\f Case: 18-60144 Document: 00514841512 Page: 4 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\ninferences and conclusions.” 1 In cases involving cross-motions for summary\njudgment, “the motions are reviewed independently, with evidence and infer-\nences taken in the light most favorable to the nonmoving party.” White Buffalo\nVentures, LLC v. Univ. of Tex. at Austin, 420 F.3d 366, 370 (5th Cir. 2005).\n\n A.\n “In order to safeguard life, health, and property, and to promote the pub-\nlic welfare,” MISS. CODE ANN. § 73-13-1, the state regulates the engineering\nprofession. Id. §§ 73-13-1 to -45. Consequently, no “person or firm [is permit-\nted to] practice, or offer to practice, engineering in [Mississippi] without being\nlicensed in accordance with” state law. Id. § 73-13-39.\n Unless licensed in accordance with the provisions of\n [§§ 73-13-1 to -45], no person shall . . . [d]irectly or indirectly\n employ, use, cause to be used or make use of any of the following\n terms . . . as a professional, business or commercial identification,\n title, [or] name . . . : ‘engineer,’ . . . .\nId. In challenging that language, Express contends that the Tire Engineers\ntrademark is protected by the First Amendment.\n\n Although the Constitution protects commercial speech, 2 that protection\nis more limited than for most other speech. Ohralik v. Ohio State Bar Ass’n,\n436 U.S. 447, 456 (1978). The test for when a government actor may regulate\ncommercial speech is as follows:\n\n\n\n 1 In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991) (quoting Nunez v. Superior Oil\nCo., 572 F.2d 1119, 1124 (5th Cir. 1978)). This court has previously treated the dismissal of\na cross motion for summary judgment on mootness grounds as a denial. See, e.g., Browdy v.\nHartford Life & Accident Ins. Co., 630 F. App’x 278, 285 (5th Cir. 2015); Gulf Underwriters\nIns. Co. v. Great W. Cas. Co., 278 F. App’x 454, 456–57 (5th Cir. 2008); see also Norman v.\nApache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).\n 2 See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.\n748, 770 (1976); Bigelow v. Virginia, 421 U.S. 809, 818 (1975). Commercial speech is\n“[e]xpression related solely to the economic interests of the speaker and its audience.” Cent.\nHudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).\n 4\n\f Case: 18-60144 Document: 00514841512 Page: 5 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\n At the outset, [a court] must determine whether the expression is\n protected by the First Amendment. For commercial speech to come\n within that provision, it at least must concern lawful activity and\n not be misleading. Next, [a court] ask[s] whether the asserted gov-\n ernmental interest is substantial. If both inquiries yield positive\n answers, [a court] must determine whether the regulation directly\n advances the governmental interest asserted, and whether it is not\n more extensive than is necessary to serve that interest.\nCent. Hudson, 447 U.S. at 566. “The party seeking to uphold a restriction on\ncommercial speech carries the burden of justifying it.” Bolger v. Youngs Drug\nProds. Corp., 463 U.S. 60, 71 n.20 (1983). This “burden is a ‘heavy’ one,” Pub.\nCitizen, Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011)\n(quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996)), and\nmay not be “satisfied ‘by mere speculation or conjecture,’” id. (quoting Eden-\nfield v. Fane, 507 U.S. 761, 770 (1993)).\n\n B.\n “In order for commercial speech to be protected under the First Amend-\nment, ‘it at least must concern lawful activity and not be misleading.’” Am.\nAcad. of Implant Dentistry v. Parker, 860 F.3d 300, 306 (5th Cir. 2017) (quoting\nCent. Hudson, 447 U.S. at 566). Commercial statements that are actually or\ninherently misleading do not enjoy the protections of the First Amendment. 3\n“[A] statement is actually or inherently misleading when it deceives or is inher-\nently likely to deceive.” Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm’n,\n24 F.3d 754, 756 (5th Cir. 1994). Statements that are only potentially mislead-\ning, however, are safeguarded by the First Amendment. 4 In such a case, a\n\n\n 3 See, e.g., Peel v. Att’y Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100\n(1990) (plurality opinion); In re R.M.J., 455 U.S. 191, 203 (1982) (“Misleading advertising\nmay be prohibited entirely.”).\n 4 R.M.J., 455 U.S. at 203 (“States may not place an absolute prohibition on certain\ntypes of potentially misleading information . . . if the information also may be presented in a\nway that is not deceptive.”).\n 5\n\f Case: 18-60144 Document: 00514841512 Page: 6 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nstate actor must “‘show[] that the restriction directly and materially advances\na substantial state interest in a manner no more extensive than necessary to\nserve that interest.’” Am. Acad., 860 F.3d at 308–09 (alteration in original)\n(quoting Ibanez v. Fla. Dep’t of Bus. & Prof’l Reg., Bd. of Accountancy, 512 U.S.\n136, 142 (1994)).\n\n 1. Inherently Misleading\n The district court found that “[Express’s] use of the name ‘Tire Engin-\neers’ is ‘inherently likely to deceive’ Mississippi consumers to believe that the\nservices performed at Tire Engineers are performed by tire engineers or under\nthe supervision of tire engineers.” The court ruled for the Board based on “sub-\nstantial evidence” that tended to show “the term ‘tire engineers’ is used by\ncourts, universities, tire manufacturers, tire manufacturers, general periodi-\ncals, specialized periodicals, and the general public to refer to actual engineers\nwho have expertise in the manufacture, selection, and repair of tires.”\n\n Express asserts that the Tire Engineers trademark is “capable of being\nemployed in a non-deceptive manner” and thus “cannot be deemed ‘inherently’\nmisleading.” 5 Express also contends that “[t]he term ‘engineer’ is commonly\nused to describe jobs and trades other than professional engineering.” 6 In\n\n\n\n 5 Express contends that the trademark Tire Engineers may be distinguished from the\nadvertisement in Joe Conte Toyota, in which this court determined that an advertisement\nusing the phrase “$49.00 over invoice,” 24 F.3d at 757, was inherently misleading because it\nwas “calculated to confuse the consumer.” Id. (quoting Joe Conte Toyota, Inc. v. Benson,\nNo. 92–0993, 1993 WL 114507 at 2 (E.D. La. Apr. 6, 1993)). Express asserts, in contrast to\nthe advertisement in Joe Conte Toyota, that its “trade name and service mark . . . brands all\nof Tire Engineers’ automotive services uniformly”; Express contends that “the Tire Engineers\ntrade name and service mark are not ‘useless’ information. . . . [T]he mark tells consumers\nthat the business provides some level of technical services for tires and other automotive\nmaintenance and repair.”\n 6 In support of this second point, Express asserts that we have rejected the “circular”\nreasoning that a term “is inherently misleading because it does not conform to [a state actor’s]\ndefinition . . . of the term.” See Am. Acad., 860 F.3d at 308 (discussing the use of “specialist”\n 6\n\f Case: 18-60144 Document: 00514841512 Page: 7 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nresponse, the Board avers that the name Tire Engineers is “demonstratively\nfalse” and “likely to deceive the public into believing that the work performed\nat Tire Engineers is either done by tire engineers or under the supervision of\ntire engineers” (internal quotation marks omitted). 7 The Board also points to\nevidence from a survey conducted by the Center for Research and Public Policy\nin which “[s]ixty-six percent of the respondents expected that Tire Engineers\n‘has professional engineers on staff,’” and “[f]ifty-eight percent [of respondents]\nexpected Tire Engineers to use engineers to service tires.” Additionally, the\nBoard highlights an Express advertisement claiming that “[a]ll of our Express\nOil Change & Tire Engineers have tire engineers who are qualified to [ser-\nvice] . . . tires . . . .” 8 The Board contends that that advertisement is further\nevidence that “[t]he overlap between the public’s knowledge of the work of\nactual tire engineers and the services provided by Tire Engineers is actively,\neasily, and inherently exploited by its name and the manner it uses its name\nin advertisements.” As we explain, the better view is that the district court\nerred in concluding that Express’s use of Tire Engineers is inherently\nmisleading.\n\n “Engineer” is defined, inter alia, as “a person who carries through an\nenterprise or brings about a result esp[ecially] by skillful or artful contrivance”\nor “a person who is trained or skilled in the technicalities of some field ([such]\nas sociology or insurance) not usu[ally] considered to fall within the scope of\n\n\n\nin the context of dentistry); Byrum v. Landreth, 566 F.3d 442, 447–48 (5th Cir. 2009) (exam-\nining “interior designer” and “interior design”).\n 7 The Board highlights evidence demonstrating that there is a distinct category of\nengineers known as “tire engineers,” with expertise in topics such as “how to choose the right\ntire for your car,” “using tires for better gas mileage,” and “when a tire must be replaced\nrather than repaired.”\n Express discontinued use of the line “Tire Engineers have tire engineers” in\n 8\n\nSeptember 2017.\n 7\n\f Case: 18-60144 Document: 00514841512 Page: 8 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nengineering and who is engaged in using such training or skill in the solution\nof technical problems.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY,\nUNABRIDGED 752 (1986). “Inherent” is defined as “involved in the . . . essential\ncharacter of something . . . .” Id. at 1163. 9\n\n Because its essential character is not deceptive, Tire Engineers is not\ninherently misleading. The name, first trademarked in 1948, apparently\nrefers to the work of mechanics using their skills “not usu[ally] considered to\nfall within the scope of engineering” to solve “technical problems” related to\nselecting, rotating, balancing, and aligning tires. Id. at 752. That this defini-\ntion of “engineer” does not meet the Board’s preferred definition does not make\nits use inherently misleading. 10 The term “engineer” can mean many things\nin different contexts, and it is certainly not limited to those professionals\nlicensed by Mississippi to practice engineering. It is not, therefore, “devoid of\nintrinsic meaning.” Joe Conte Toyota, 24 F.3d at 756 (quoting Peel, 496 U.S.\nat 112 (Marshall, J., concurring)). Additionally, as Express explains, “[t]he\ndistrict court’s analysis failed to account for the manner in which the [Tire\nEngineers] mark is transmitted—on the company’s website, which describes\n\n\n\n 9 “Engineer” is elsewhere similarly defined, inter alia, as “a person who designs or\nbuilds engines or other machinery, . . . a person who uses specialized knowledge or skills to\ndesign, build, and maintain complicated equipment, systems, processes” or “a person\nconsidered to have specialized knowledge or skills in a particular field, esp. one who attempts\nto influence or manipulate human affairs according to scientific or technical principles.”\nOxford English Dictionary (online ed.) http://www.oed.com/view/Entry/62225?result=\n1&rskey=Lbxzu5&#contentWrapper. “Inherent” is defined as “fixed, situated, or contained\nin something” or “existing in something as a permanent attribute or quality; forming an\nelement.” Id. (online ed.) http://www.oed.com/view/Entry/95945?redirectedFrom=\ninherent#eid.\n 10 Am. Acad., 860 F.3d at 307–08 (“The problem here is the absence of any group\nimprimatur behind the label ‘specialist.’ Nonetheless, the term ‘specialist’ is not rendered\ndevoid of intrinsic meaning, and thereby inherently misleading, simply because the organi-\nzation responsible for conferring specialist credentials on a particular dentist is not identified\nin the advertisement.”); see also Byrum, 566 F.3d at 447.\n 8\n\f Case: 18-60144 Document: 00514841512 Page: 9 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nits automotive services (not any professional engineering services), and at its\nretail stores, which appear like any other store that performs automotive\nservices . . . .” Consequently, viewing the evidence in a light most favorable to\nthe non-moving party 11—here, Express—the use of Tire Engineers is not\ninherently misleading under our precedent. 12\n\n 2. Actually Misleading\n The district court separately determined that “[Express’s] use of ‘Tire\nEngineers’ is also actually misleading to Mississippi consumers and is not pro-\ntected by the First Amendment.” The court pointed to evidence from the tele-\nphonic public opinion poll commissioned by the Board, including that “[a]lmost\nhalf of the respondents (47.8%) believed that a company [using] the name ‘Tire\nEngineers’ performs engineering services for tires.” The court ultimately con-\ncluded that this “survey confirmed that Mississippi consumers are actually\ndeceived by the business name ‘Tire Engineers.’”\n\n Express maintains that Tire Engineers is not actually misleading\n\n\n\n 11 The Board’s survey cuts both ways with respect to this court’s analysis of the term\n“inherently misleading.” For example, researchers asked the following: “The company ‘Tire\nEngineers’ advertises that it has ‘qualified personnel’ to repair tires. As a result of this adver-\ntising how strongly do you expect the following[:] . . . That the company, Tire Engineers, is\nperforming engineering services.” Forty-four percent of those surveyed responded that they\n“[n]ot [v]ery [s]trongly or [n]ot at all [e]xpect[ed]” Tire Engineers to perform such services or\nthat they were “unsure.” Additionally, though “[j]ust over one-half of all respondents with\nan opinion, [fifty-five percent], suggested they believed a company that uses the name ‘Tire\nEngineers’ performs engineering services for tires,” nearly forty-five percent of respondents\nstated that they did not share this belief. While this suggests that the name is potentially\nmisleading, it also suggests that the name is not inherently—that is, its essential character\nis not—misleading.\n 12Conversely, because we review cross-motions for summary judgment independently,\nwe must also analyze this issue in a light most favorable to the Board. Such an exercise\ninvolves dismissing, as the district court did, the findings of the Alabama, Florida, Georgia,\nNorth Carolina, South Carolina, Tennessee, and Virginia agencies that “Tire Engineers” is\nnot inherently misleading. Even in such a case, however, the evidence is insufficient to sup-\nport a conclusion that the name at issue is inherently misleading.\n 9\n\f Case: 18-60144 Document: 00514841512 Page: 10 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nbecause the Board failed to submit evidence of “any actual consumer being\nmisled by the Tire Engineers trademark.” Express highlights a case that found\nthe use of the trade name “Cajun Boy” was not actually misleading because\n“[t]he record contain[ed] no evidence of actual deception.” Piazza’s Seafood\nWorld, LLC v. Odom, No. Civ. A. 04-690, 2004 WL 2998575, at 5 (E.D. La.\nDec. 23, 2004). We affirmed “the district court’s decision as to the Cajun\nStatute essentially for the reasons stated by the district court.” Piazza’s\nSeafood World, LLC v. Odom, 448 F.3d 744, 753 (5th Cir. 2006).\n\n In response, the Board asserts that “[a]mple and uncontradicted sum-\nmary judgment evidence establishes that the name Tire Engineers actually\nmisleads Mississippi consumers into believing that the work done by Tire\nEngineers is either performed by engineers or under the supervision of engin-\neers.” The Board contends that the survey evidence it submitted was sufficient\nto sustain a finding that the public was actually misled by this commercial\nspeech. It defends, at some length, the survey methodology, ultimately con-\ncluding that “[u]nder no evaluation of the record would [Express] be entitled to\nsummary judgment.”\n\n A review of Supreme Court and Fifth Circuit precedent shows that the\ndistrict court erred in deciding that the Tire Engineers name is actually mis-\nleading. In Peel, a four-Justice plurality suggested that evidence of deception\nis necessary to sustain a finding that commercial speech is actually\nmisleading—a conclusion that the concurring and dissenting justices did not\ndispute. 13 Based on Peel, as well as our own precedent, Joe Conte Toyota,\n\n\n\n 13 Peel, 496 U.S. at 106 (plurality opinion) (“Given the complete absence of any evi-\ndence of deception in the present case, we must reject the contention that petitioner’s letter-\nhead is actually misleading.”). Additionally, three Justices in dissent appeared to adopt the\nplurality’s “actually misleading” standard, although they took issue with other parts of the\nplurality opinion. Id. at 120 (O’Connor, J., dissenting) (“The plurality in this case correctly\n 10\n\f Case: 18-60144 Document: 00514841512 Page: 11 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\n24 F.3d at 756, the Board was required to present evidence of deception.\nBecause it did not, the district court erred in concluding that the Tire Engin-\neers mark was actually misleading. 14 Given that the name is neither actually\nnor inherently misleading, it enjoys limited First Amendment protections, as\ndiscussed in Central Hudson.\n\n 3. Potentially Misleading\n The district court also determined that the name is potentially mislead-\ning, even under Central Hudson. Finding that the evidence in the record satis-\nfied Central Hudson scrutiny, the court emphasized two harms remedied by\n“[p]rohibiting [Express] from promoting itself as ‘Tire Engineers.’” “First, a\nmajority of Mississippians believe that the work performed by [Express] is of\nthe same skill, judgment, and quality associated with licensed, professional\nengineers.” Second, “[Express’s] use of the name ‘Tire Engineers’ and its de-\nscription of its employees as ‘tire engineers’ leads to confusion about the qual-\nifications and skill of actual licensed engineers.”\n\n Express contends that Tire Engineers is not potentially misleading\nbecause “[i]t is apparent to all reasonable consumers who encounter the Tire\nEngineers trademark in [the context of the company’s website and retail\nstores] that the company provides routine automotive maintenance and\nrepair.” Additionally, even if the name is potentially misleading, Express\nmaintains that “a complete ban on the Tire Engineers name and mark is ‘more\n\n\n\nnotes that the statements in petitioner’s letterhead have not been shown actually to deceive\nconsumers . . . .”). In a concurring opinion, two other justices suggested that the “actually\nmisleading” standard requires proof that someone was actually misled by the speech.\nId. at 112 (Marshall, J., concurring).\n 14Again, even when the evidence is independently viewed in a light most favorable to\nthe Board, there is no evidence in the record, including the affidavits of Josh Henderson, the\ndecisions of the other state agencies, the news articles and website captures, and the survey,\nto support a holding of actual deception.\n 11\n\f Case: 18-60144 Document: 00514841512 Page: 12 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nextensive than is necessary to serve [the Board’s] interest’” (quoting Am. Acad.,\n860 F.3d at 306). Express instead asserts that “a simple point-of-sale dis-\nclaimer that ‘Tire Engineers does not employ professionally-licensed engineers\nor provide engineering services’” (similar to that required by the state board in\nTexas) would be “sufficient to serve the Board’s interest without suppressing\nTire Engineers’ speech.”\n\n Conversely, the Board avers that “[t]he district court correctly found the\nname Tire Engineers to be potentially misleading and the State’s restriction to\nbe constitutional . . . .” The Board objects to Express’s claim that the name\nTire Engineers is not potentially misleading, pointing to evidence in the\nrecord—including the telephonic survey and the extensive “use of the phrase\n‘tire engineer’ to refer to actual engineers”—that seemingly indicates\notherwise.\n\n “Under Central Hudson, a restriction on commercial speech survives\nFirst Amendment scrutiny if: (1) ‘the asserted governmental interest is sub-\nstantial,’ (2) the regulation ‘directly advances’ that interest, and (3) the regu-\nlation ‘is not more extensive than is necessary to serve that interest.’” Pub.\nCitizen, 632 F.3d at 219 (quoting Thompson v. W. States Med. Ctr., 535 U.S.\n357, 367 (2002)). “Each of these latter three inquiries must be answered in the\naffirmative for the regulation to be found constitutional.” Thompson, 535 U.S.\nat 367.\n\n As a threshold matter, the evidence in the record, particularly the tele-\nphonic survey, is more than sufficient to support a determination that the Tire\nEngineers trademark is potentially misleading. Turning, then, to the first\ninquiry, the district court correctly held that the Board has a substantial\ninterest in “ensuring the accuracy of commercial information in the market-\nplace” (quoting Pub. Citizen, 632 F.3d at 220). The court also determined that\n\n 12\n\f Case: 18-60144 Document: 00514841512 Page: 13 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nthe Board has a substantial interest in “‘maintaining standards of ethical\nconduct in the licensed professions’ and in the trust placed in those standards\nby the public” (quoting Pub. Citizen, 632 F.3d at 220).\n\n Express does not appear to take issue with those conclusions. Accord-\ningly, the evidence in the record establishes that the asserted interests of the\nBoard are substantial.\n\n The district court noted that to satisfy the “directly advances” inquiry,\nthe Board was required to “demonstrate that the harms it recites are real and\nthat its restriction will in fact alleviate them to a material degree” (quoting\nPub. Citizen, 632 F.3d at 221). In determining that the restriction did directly\nadvance the substantial interests of the Board, the court pointed to evidence\nfrom the public opinion survey showing that Mississippians are misled con-\ncerning whether Tire Engineers “(1) uses actual tire engineers to perform its\nservices, (2) is offering engineering services, and/or (3) performs its work with\nthe level of skill and training of an actual engineer.” The court concluded that\n“[p]rohibiting [Express] from advertising itself as ‘Tire Engineers’ would allevi-\nate each of these three separate harms to a material degree.” Because Express\ndoes not dispute the court’s determination on this point, the evidence supports\na holding that the ban directly advances the Board’s asserted interest.\n\n The final inquiry is whether the regulation is “‘more extensive than is\nnecessary to serve’” the identified interest. Pub. Citizen, 632 F.3d at 219 (quot-\ning Thompson, 535 U.S. at 367). “‘[T]he free flow of commercial information is\nvaluable enough to justify imposing on would-be regulators the costs of dis-\ntinguishing . . . the harmless from the harmful . . . .’” Bd. of Trs. of State Univ.\nof N.Y. v. Fox, 492 U.S. 469, 480 (1989) (quoting Shapero v. Ky. Bar Ass’n,\n486 U.S. 466, 478 (1988)). The means employed by the government actor need\nnot be the “least restrictive means,” but it must be “narrowly tailored to achieve\n\n 13\n\f Case: 18-60144 Document: 00514841512 Page: 14 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nthe desired objective.” Id.\n\n In Byrum, 566 F.3d at 449, concerning the terms “interior design” and\n“interior designer,” we held that “the State could have eliminated any consti-\ntutional challenge here by not limiting use of the terms ‘interior design’ and\n‘interior designer’ but by allowing only designers who satisfy its licensing qual-\nifications to represent themselves as ‘licensed’ interior designers.” See also\nAm. Acad., 860 F.3d at 311–12. Further, this court and others have identified\n“[s]ufficient disclaimers [as] a means to address consumer deception.” 15 This\nremedy seemingly derives from Peel, Bates, and earlier Supreme Court cases\nthat “described various regulatory safeguards which the state may impose in\nplace of [a] total ban on commercial speech.” Abramson, 949 F.2d at 1577.\n\n The record does not support the need for a total ban on the use of Tire\nEngineers. Evidence offered by both parties, particularly when viewed in the\nlight most favorable to Express as the non-moving party, demonstrates that\nother states with similar statutes have not challenged the use of the trade-\nmark. 16 Thus, despite claims to the contrary, the Board is an outlier in this\nrespect, and it fails to address why alternative, less-restrictive means, such as\na disclaimer, would not accomplish its stated goal of protecting the public. The\nBoard thereby fails to satisfy the required burden of demonstrating a reasona-\nble fit between its regulation and the constitutionally-protected speech.\n\n Accordingly, the district court erred in ruling for the Board. 17 The\n\n\n 15 Am. Acad., 860 F.3d at 311; Abramson v. Gonzalez, 949 F.2d 1567, 1575–78 (11th\nCir. 1992) (finding unconstitutional a Florida law regulating the use of the term “psycholo-\ngist”); see also Peel, 496 U.S. at 110; Bates v. State Bar of Ariz., 433 U.S. 350, 384 (1977).\n 16These states include Alabama, Georgia, Florida, North Carolina, South Carolina,\nTennessee, and Virginia. Texas permitted Express to use the Tire Engineers name and mark\nprovided it “affix[es] a physical disclaimer on each Texas location indicating it neither offers\nnor provides engineering services in the state of Texas.”\n 17 Moreover, an independent review of the record—this time considering the evidence\n 14\n\f Case: 18-60144 Document: 00514841512 Page: 15 Date Filed: 02/19/2019\n\n\n\n No. 18-60144\nsummary judgment is REVERSED, and judgment is RENDERED for\nExpress. 18\n\n\n\n\nin a light most favorable to the Board—still yields the conclusion that the means employed\nwere more restrictive than necessary to achieve the Board’s desired ends. We are not, how-\never, “suggest[ing] that the Board may not impose appropriate restrictions in [this] area.”\nAm. Acad., 860 F.3d at 312. “A regulation that fails Central Hudson because of a lack of\nsufficient evidence may be enacted validly in the future on a record containing more or dif-\nferent evidence.” Pub. Citizen, 632 F.3d at 221.\n 18We do not reach the issue of whether Sorrell v. IMS Health Inc., 564 U.S. 552 (2011),\naltered the commercial speech analysis because the Board’s ban fails to meet the traditional\nscrutiny test outlined in Central Hudson.\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369103/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]}	SMITH	BARKSDALE	HO	1	{"SMITH": ", Circuit", "BARKSDALE": ", Circuit", "HO": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591850/	Published	1	0	0	2,019	2	[ { "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...
4,591,851	Bruce M. ANDERSON, Plaintiff-Appellee v. Rogelio VALDEZ, in His Individual and Official Capacities, Defendant-Appellant	Bruce Anderson v. State of Texas	2019-02-19	17-41243	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Higginbotham, Graves, Willett", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-41243 February 19, 2019\n Lyle W. Cayce\nBRUCE M. ANDERSON, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nROGELIO VALDEZ, In his Individual and Official Capacities,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\n ON PETITION FOR REHEARING\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\nPER CURIAM:\n Anderson notes that after we issued our decision, Gregory Perkes was\nnominated by the Governor to once again serve as a justice on the Thirteenth\nCourt of Appeals. This relates “to changed circumstances since the case was\ndecided by the district court” and by our panel, which do not provide grounds\nfor panel rehearing. 1 Our decision and denial of rehearing are “[w]ithout\n\n\n\n 1 Anastasiadis v. S.S. Little John, 347 F.2d 823 (5th Cir. 1965) (mem.); see also\nArmster v. U.S. Dist. Court, 806 F.2d 1347, 1356 (9th Cir. 1986) (“A panel is simply not\ncapable of having overlooked or misapprehended ‘points of . . . fact’ occurring subsequent to\nits initial decision.”); 16AA Fed. Prac. & Proc. Juris. § 3986.1 (4th ed.) (“New factual material,\n\f No. 17-41243\nprejudice to [the] pursuit of any appropriate remedies which may be available\nin the district court.” 2 We express no opinion on the availability of further relief\nin the context of the close professional relationship between judge and staff\nattorney.\n The petition for panel rehearing is denied.\n\n\n\n\nincluding material concerning events occurring after the initial decision, is not likely to be\nconsidered [in a petition for panel rehearing].”).\n 2 Anastasiadis, 347 F.2d at 823.\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369104/", "author_raw": "PER CURIAM"}]}	HIGGINBOTHAM	GRAVES	WILLETT	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591851/	Published	1	0	0	2,019	2	[ { "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...
4,592,369	UNITED STATES of America, Plaintiff-Appellee, v. Viju MATHEW, Defendant-Appellant.	United States v. Viju Mathew	2019-02-21	17-10863	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Smith, Duncan, Engelhardt", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-10863 Document: 00514843839 Page: 1 Date Filed: 02/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-10863 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 21, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff–Appellee,\n\nversus\n\nVIJU MATHEW,\n\n Defendant–Appellant.\n\n\n\n\n On Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Viju Mathew pleaded guilty of knowingly possessing, with the intent to\nuse unlawfully or transfer unlawfully, five or more authentication features\n(health insurance claim numbers) issued by or under the authority of the\nUnited States, in violation of 18 U.S.C. § 1028(a)(3), (b)(2)(B), and (c)(1). The\ndistrict court sentenced Mathew to thirty months’ imprisonment and\n$277,957.89 in restitution payable to Medicare. He appeals the sentence,\n\f Case: 17-10863 Document: 00514843839 Page: 2 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nchallenging the assessment of restitution and the calculation of the loss\namount. We vacate and remand for resentencing.\n\n I.\n Mathew worked at Parkland Health and Hospital System (“Parkland”)\nas a registration specialist, where his duties required him to access confidential\npatient information. He also owned a business called Dallas Home Health\nCare, Inc. (“DHH”). Mathew stole confidential patient information from Park-\nland and gave it to DHH employees to call the individuals and solicit them as\npatients. Mathew did not make the calls himself but instructed three of his\nemployees to use the information to solicit prospective patients for DHH.\n\n Based on information from a former DHH employee, authorities obtained\na search warrant for DHH’s office and determined DHH to be in the possession\nof approximately 1,300 Parkland patients’ identifying information, including\ntheir health insurance claim numbers (“HICNs”). The government charged\nMathew with “[o]n or about September 23, 2011,” “knowingly possess[ing] with\nintent to use unlawfully or transfer unlawfully five or more authentication fea-\ntures, to wit, [HICNs], and the authentication features were or appeared to\nhave been issued by or under the authority of the United States.” See 18 U.S.C.\n§ 1028(a)(3), (b)(2)(B), (c)(1) (2012).\n\n Mathew pleaded guilty per a factual resume, without a plea agreement,\nand admitted that “he knowingly removed from Parkland confidential informa-\ntion, and intended to use the information to gain an economic benefit by con-\ntacting prospective patients by telephone that might need home health ser-\nvices.” The government did not sign the factual resume because it disagreed\nwith Mathew’s contention that the phone calls did not successfully solicit any\npatients for DHH.\n\n\n 2\n\f Case: 17-10863 Document: 00514843839 Page: 3 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\n The following exchange occurred at rearraignment:\n\n THE COURT: I’ll call upon the Assistant United States\n Attorney to state the potential penalties\n for and consequences of pleading guilty.\n MR. PORTUGAL: Your Honor, the maximum penalties the\n Court can impose include: . . . [r]estitution\n to victims or to the community which may\n be mandatory under the law and which\n Mr. Mathew agrees may include restitu-\n tion arising from all relevant conduct, not\n limited to that arising from the offense of\n conviction alone.\n THE COURT: Mr. Mathew, do you understand that if\n you plead guilty to Count One, you are\n subject to all those consequences and pen-\n alties just explained to you, sir?\n MATHEW: Yes, ma’am.\n THE COURT: Do you have any questions about anything\n at all we’ve covered up to this point?\n MATHEW: No, not at this time.\nMathew then pleaded guilty.\n\n In preparing the presentence investigation report (“PSR”), investigators\ndetermined that of the approximately 1300 Parkland patients whose informa-\ntion DHH possessed illegally, sixteen received home health services from DHH,\nand “Medicare paid DHH a total of $311,445.57 relative to” the sixteen\npatients. The probation officer determined that the $311,445.57 was the\n“actual loss” and used that amount to enhance Mathew’s offense level under\nU.S.S.G. § 2B1.1(b)(1)(G) and to assess restitution under 18 U.S.C. § 3663A\nand U.S.S.G. § 5E1.1.\n\n Mathew objected to the PSR’s calculation of the loss amount, claiming\nthat “the loss amount was zero.” He also asserted that there were no victims\nof his conduct because “all patients were properly referred by Parkland\n 3\n\f Case: 17-10863 Document: 00514843839 Page: 4 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nHospital,” “the stolen list of patients from Parkland was . . . never used,” and\nDHH never secured any patients “from the use of the Parkland Hospital list.”\nIn response, the government contended that “anything that [DHH] billed to\nMedicare . . . for beneficiaries whose identifiers Mathew stole is counted as\nloss.” Because Mathew had admitted to stealing Parkland patient information\nto gain an economic benefit through his business DHH, the amounts that DHH\n“billed for those beneficiaries is tainted by that criminality and is properly\nincluded as loss.” Furthermore, there were victims of Mathew’s crime because\nMathew unlawfully transferred the patients’ information to DHH.\n\n The probation officer rejected Mathew’s objections and accepted the gov-\nernment’s positions. She adopted the government’s theory of loss, affirming\nthe $311,445.57 loss amount, and determined that sixteen of the 1300 Park-\nland patients whose information DHH possessed were properly classified as\nvictims because Mathew used their information “without permission to solicit\nand recruit [them] to receive home health care from his company and he billed\nMedicare for these services.”\n\n Mathew filed supplemental objections to the PSR, asserting that he\n“must be credited with the fair market value of legitimate services provided in\ncalculating the loss amount.” First, he stated that the prosecution had main-\ntained that only five of the sixteen identified victims did not qualify for home\nhealth services, but had not extended that contention to the other eleven vic-\ntims. Second, those eleven victims “undisputedly qualified for home healthcare\nservices,” DHH provided “legitimate services” to them, and Medicare “would\nhave paid for those services absent Mathew’s compromising their identities.”\nConsequently, Mathew was entitled to credit for the fair market value of those\nservices in both the loss and restitution calculations. He also contended that\nthe total actual loss amount was $105,369.86, or the amount paid by Medicare\n\n 4\n\f Case: 17-10863 Document: 00514843839 Page: 5 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nfor the five patients the government asserted were not qualified for home\nhealth services.\n\n The government responded, asserting that Mathew had failed to meet\nhis burden of establishing that he was entitled to a credit against the\n$311,445.57 loss because he failed to show that DHH provided legitimate ser-\nvices to the sixteen victims and that Medicare would have paid for the services\nprovided but for Mathew’s fraud. The government continued to claim that\nbecause any services DHH provided “to the victims of his identity theft were\ntainted by his criminal conduct from day-one, the entire amounts associated\nwith those [sixteen victims] should be included in the loss amount.”\n\n The probation officer again rejected Mathew’s supplemental objections\nand did not alter the loss amount. She determined that Mathew was not enti-\ntled to a credit against the loss because “the services provided by DHH [to]\npatients were not legitimate” and “the patients were not homebound and did\nnot require skilled nursing services.”\n\n II.\n The district court held a four-day sentencing hearing. The parties pre-\nsented evidence focusing on the sixteen DHH patients whose Medicare bills\nthe government asserted should be used to calculate actual loss for purposes of\nsentencing and restitution. Mathew asserted that those patients had qualified\nfor home health care and received legitimate services, so he was entitled to a\ncredit against the $311,445.57. Conversely, the prosecution claimed that\nMathew’s identity theft caused the entirety of Medicare’s loss because Medi-\ncare would not have paid any of the sixteen patients’ claims had it known that\nMathew had compromised their identities. Furthermore, fifteen of the sixteen\ndid not qualify for Medicare-covered home health care or did not receive\nMedicare-reimbursable services.\n 5\n\f Case: 17-10863 Document: 00514843839 Page: 6 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\n The district court determined that Mathew’s taking of the sixteen\npatients’ information from Parkland “wrongfully constitut[ed] identity theft”\nand that Mathew had failed to satisfy his burden to establish that he was\nentitled to a credit for legitimate services that Medicare would have paid for\nbut for his fraud. To determine the total restitution, the court reduced the\n$311,445.57 loss amount by $33,487.68, the sum Medicare had paid for two\npatients’ care, because the government had inadvertently produced their rec-\nords to Mathew late. Thus, the court found that the net amount of loss was\n$277,957.89; the court used that amount to apply a twelve-level enhancement\nto the base offense level per U.S.S.G. § 2B1.1(b)(1)(G); it calculated Mathew’s\nguideline range to be 30−37 months and sentenced him to 30 months’\nimprisonment.\n\n The court also ordered Mathew to pay $277,957.89 in restitution to Medi-\ncare for all the care DHH had rendered to fourteen of the sixteen Parkland\npatients. Mathew objected to the imposition of restitution because his offense\n“did not include a scheme to defraud,” so “any restitution award would exceed\nthe scope of the conviction.”\n\n On appeal, Mathew challenges the district court’s assessment of restitu-\ntion and its calculation of the loss amount. First, he contends, the court im-\nproperly assessed restitution because the award included amounts for conduct\nbeyond the offense of conviction and for conduct that occurred before the tem-\nporal scope of the indictment. Second, the court improperly calculated the loss\namount because Mathew introduced evidence that Medicare received value for\nthe services DHH provided to the sixteen patients, and, thus, he was entitled\nto a credit, and because “[t]he district court’s finding that fraud was endemic\nas to the [sixteen] patients at issue and resulted from Mr. Mathew’s possession\nof the authentication features was based on insufficient evidence.”\n\n 6\n\f Case: 17-10863 Document: 00514843839 Page: 7 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\n III.\n “We review a restitution order’s legality de novo and its amount for abuse\nof discretion.” United States v. Villalobos, 879 F.3d 169, 171 (5th Cir. 2018).\n“[W]e review the district court’s application of the guidelines de novo and its\nfindings of fact at sentencing for clear error.” United States v. Klein, 543 F.3d\n206, 213 (5th Cir. 2008). The finding regarding the amount of loss is a factual\nfinding that we review for clear error. Id. at 214. “There is no clear error if\nthe district court’s finding is plausible in light of the record as a whole.” United\nStates v. Harris, 597 F.3d 242, 250 (5th Cir. 2010) (citation omitted). We\nreview “de novo how the court calculated the loss, because that is an applica-\ntion of the guidelines, which is a question of law.” Klein, 543 F.3d at 214.\n\n IV.\n Mathew asserts that the restitution order was unlawful because it in-\ncluded amounts for Medicare payments that preceded the temporal scope of\nhis offense of conviction. We agree.\n\n The Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A,\n“limits restitution to the actual loss directly and proximately caused by the\ndefendant’s offense of conviction. An award of restitution cannot compensate\na victim for losses caused by conduct not charged in the indictment or specified\nin a guilty plea.” United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012).\nTherefore, “when the subject offense involves a scheme, conspiracy, or pattern\nof criminal activity,” United States v. Hughey, 147 F.3d 423, 437 (5th Cir.\n1998), that is, “where [the] fraudulent scheme is an element of the conviction,”\nUnited States v. Maturin, 488 F.3d 657, 661 (5th Cir. 2007) (emphasis and\ncitation omitted), “restitution may be awarded to any person who is directly\nharmed by the defendant’s course of criminal conduct,” Hughey, 147 F.3d\n\n\n 7\n\f Case: 17-10863 Document: 00514843839 Page: 8 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nat 437. 1 But “[w]hen the count of conviction does not require proof of a scheme,\nconspiracy, or pattern, . . . the defendant is only responsible to pay restitution\nfor the conduct underlying the offense for which he has been convicted.”\nMaturin, 488 F.3d at 661 (citation and internal quotation marks omitted). In\nthat event, restitution cannot include “losses caused by conduct that falls\noutside the temporal scope of the acts of conviction.” Sharma, 703 F.3d at 323.\nThe district court must support “every dollar” of a restitution order with record\nevidence. Id.\n\n Mathew’s offense does not involve a scheme, conspiracy, or pattern. The\nindictment charged him with violating 18 U.S.C. § 1028(a)(3), (b)(2)(B), and\n(c)(1), which make it a crime “knowingly [to] possess[] with intent to use un-\nlawfully or transfer unlawfully five or more . . . authentication features\n. . . issued by or under the authority of the United States.” The statute does\nnot include a fraudulent scheme as an element of the offense, either in its plain\nlanguage or as a judicial interpretation. Moreover, the charge in Mathew’s\nindictment, his factual resume’s description of the elements of the offense, and\nthe government’s description of the elements of the offense at his rearraign-\nment proceeding all mirror the language of the statute and thus do not state\nthat Mathew’s offense of conviction included a fraudulent scheme as an\nelement of his offense.\n\n Mathew also did not agree to enlarge the scope of restitution beyond the\noffense of conviction to include relevant conduct. Though “when a defendant\npleads guilty to fraud, the scope of the requisite scheme to defraud, for resti-\ntution purposes, is defined by the mutual understanding of the parties rather\n\n\n\n 1Though the Hughey court was interpreting the Victim and Witness Protection Act,\n18 U.S.C. § 3663, Hughey’s reasoning “also applies to cases arising under the MVRA.”\nMaturin, 488 F.3d at 661 n.2.\n 8\n\f Case: 17-10863 Document: 00514843839 Page: 9 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nthan the strict letter of the charging document,” United States v. Adams,\n363 F.3d 363, 364 (5th Cir. 2004), there was no mutual understanding between\nMathew and the prosecution. There is no plea agreement broadening the crim-\ninal offense to encompass conduct not stated in the indictment. In the factual\nresume that accompanied his guilty plea, Mathew admitted only that he\n(1) “used his position to obtain confidential patient information, including\n[HICNs] that were issued by and under the authority of the United States,”\n(2) “intended to use the information to gain an economic benefit by contacting\nprospective patients by telephone that might need home health services,” and\n(3) knowingly possessed the HICNs “on or about September 23, 2011,” with the\nintent to use them unlawfully.\n\n Neither does Mathew’s rearraignment evince an agreement between him\nand the government to enlarge the scope of restitution. During the rearraign-\nment, the prosecutors explained that the maximum penalties included restitu-\ntion, which “may include restitution arising from all relevant conduct, not lim-\nited to that arising from the offense of conviction alone.” Mathew stated that\nhe understood that he was subject to that penalty if he pleaded guilty, and then\nproceeded to plead guilty. That “relevant conduct,” however, was never defined\nby a mutual understanding between Mathew and the prosecution, and we will\nnot speculate as to what it could have been. 2 Thus, Mathew’s statements at\nrearraignment cannot serve as the justification for broadening restitution to\ninclude conduct not contained in the indictment or factual resume.\n\n\n 2 See United States v. Shelton, 694 F. App’x 220, 224–25 (5th Cir. 2017) (per curiam)\n(explaining that “[a]bsent evidence of a mutual understanding as to the scope of the con-\nspiracy,” we will not look beyond the charging document); United States v. Ashford,\n337 F. App’x 404, 405 (5th Cir. 2009) (per curiam) (“Because there is no written plea agree-\nment in this case and no plea terms are contained in the record, we must look to the actions\nalleged in the charging document, rather than speculating upon the mutual understanding\nof the parties, to determine the scope of [the defendant’s] fraudulent scheme.”); Adams,\n363 F.3d at 366–68.\n 9\n\f Case: 17-10863 Document: 00514843839 Page: 10 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\n Accordingly, because Mathew’s offense of conviction does not involve a\nscheme, conspiracy, or pattern of criminal activity, and because he did not\nagree to enlarge the scope of restitution to include conduct not included in his\nindictment and factual resume, the MVRA required the district court to limit\nrestitution to the actual loss directly and proximately caused by Mathew’s\noffense of conviction. The restitution order, therefore, is lawful under the\nMVRA only if Medicare’s losses were directly and proximately caused by\nMathew’s knowing possession of the HICNs, on or about September 23, 2011,\nwith the intent to use them unlawfully or transfer them unlawfully.\n\n Two cases are instructive: United States v. Hayes, 32 F.3d 171 (5th Cir.\n1994), and United States v. Mancillas, 172 F.3d 341 (5th Cir. 1999) (per cur-\niam). In Hayes, the defendant pleaded guilty of possession of stolen mail,\nnamely, three credit cards, on or about a certain date. The district court\nordered him to pay restitution to the credit card companies for charges he had\nmade in the months preceding that date. We vacated, explaining that the\ndefendant “pleaded guilty to an indictment charging him with mere possession\non one day, not with conduct or a scheme that resulted in losses to any victims.”\nHayes, 32 F.3d at 172. The companies’ losses arose from the unauthorized\ncharges made using the cards, “which [the defendant] was not charged with\nand not convicted of.” Id. at 172−73. Thus, because “restitution under the\n[MVRA] is limited to losses caused by the specific conduct that is the basis of\nthe offense of conviction,” and because “[t]he credit card companies’ losses were\nnot caused by the conduct for which [the defendant] was convicted[,] . . . the\nrestitution . . . [was] not authorized under [the MVRA].” Id.\n\n In Mancillas, the defendant pleaded guilty of “knowingly possessing\ncounterfeited securities” and “knowingly possessing implements designed to\nmake counterfeited securities with the intent that they be so used.” Mancillas,\n\n 10\n\f Case: 17-10863 Document: 00514843839 Page: 11 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\n172 F.3d at 341. The district court ordered the defendant to pay restitution to\nfive different check-cashing entities to whom he had passed fraudulent checks.\nId. at 341–42. We vacated the restitution, determining that the defendant’s\n“possession of the implements with the intent to use them in the future can in\nno way be said to directly and proximately have caused a previous harm, speci-\nfically, the harm to the check-cashing companies.” Id. at 343. The restitution\nwas therefore unlawful under the MVRA because it included losses not result-\ning from the conduct underlying the offense for which the defendant was con-\nvicted. Passing a fraudulent check before the date alleged in the indictment\ncould not form the basis for the restitution award. Id.\n\n Hayes and Mancillas thus counsel that, because the MVRA limits resti-\ntution to the actual loss directly and proximately caused by the offense of con-\nviction, absent a mutual understanding between the parties to enlarge the\nscope of the relevant conduct, losses that occurred before the conduct contained\nwithin the offense of conviction cannot lawfully be included in a restitution\norder. The restitution component of Mathew’s sentence included amounts for\nMedicare payments for claims DHH submitted both before and after Septem-\nber 23, 2011, the date specified in the indictment for when Mathew knowingly\npossessed, with the intent to use unlawfully or transfer unlawfully, the HICNs.\nTherefore, the restitution order included amounts for losses that were not dir-\nectly or proximately caused by the conduct of which Mathew was convicted,\nnamely, knowingly possessing, on September 23, 2011, HICNs with the intent\nto unlawfully use or unlawfully transfer them. It follows that under the\nMVRA, the court erred in including Medicare’s losses incurred before then.\n\n V.\n Mathew contends that the restitution order was unlawful because it\nexceeded the losses directly and proximately caused by the conduct underlying\n\n 11\n\f Case: 17-10863 Document: 00514843839 Page: 12 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nthe offense of conviction. Conversely, the government maintains that the con-\nduct underlying the offense of conviction both directly and proximately caused\nMedicare’s losses. It directly caused Medicare’s losses because “[b]ut-for\nMathew’s possession of the stolen names and Medicare numbers, none of the\n16 individuals would have become patients of [DHH] and Medicare would not\nhave paid any of the claims submitted on their behalves.” Furthermore, it\nproximately caused Medicare’s losses because “[t]here can be no more reasona-\nbly foreseeable consequence of possessing stolen identities with the intent to\ngain an economic advantage than actually gaining an economic advantage by\nimproperly using those identities as Mathew did.”\n\n The government reaches the correct result: The conduct underlying\nMathew’s offense of conviction directly and proximately caused Medicare’s\nlosses. Thus, restitution was lawful under the MVRA.\n\n Before analyzing direct and proximate causation between Mathew’s\noffense of conviction and Medicare’s losses, we precisely define to what each\nterm refers. Mathew was convicted of, on or about September 23, 2011, know-\ningly possessing with the intent to use unlawfully or transfer unlawfully five\nor more HICNs that were issued by or under the authority of the United States.\nMedicare’s losses consisted of the amounts it paid for claims DHH submitted\non or after September 23, 2011, for care rendered to the sixteen Parkland\npatients whose information Mathew stole from Parkland.\n\n First, Mathew’s offense of conviction directly caused Medicare’s losses.\n“A person is directly harmed by the commission of a[n] . . . offense where that\noffense is a but-for cause of the harm.” In re Fisher, 640 F.3d 645, 648 (5th Cir.\n2011). Without Mathew’s knowingly possessing with the intent to use un-\nlawfully or transfer unlawfully the sixteen patients’ HICNs, DHH would not\nhave been able to submit payment claims, and Medicare would not have\n\n 12\n\f Case: 17-10863 Document: 00514843839 Page: 13 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nsuffered losses related to those patients’ care. 3 Thus, but-for Mathew’s offense\nof conviction, Medicare would not have suffered losses.\n\n Second, the offense of conviction proximately caused Medicare’s losses.\n“A person is proximately harmed when the harm is a reasonably foreseeable\nconsequence of the criminal conduct.” Id. Mathew knowingly possessed the\nsixteen patients’ HICNs with the intent to use them unlawfully or transfer\nthem unlawfully. He further admitted, in the factual resume accompanying\nhis guilty plea, that he “intended to use the information to gain an economic\nbenefit.” It is reasonably foreseeable that Medicare would suffer losses in the\nform of paying claims for the sixteen Parkland patients as a result of Mathew’s\nknowingly possessing their HICNs with the intent to use those HICNs unlaw-\nfully (to gain an economic benefit). After all, the very purpose of a health\ninsurance claim number is to identify an individual as a Medicare beneficiary,\nso it is unsurprising that Mathew would fraudulently use them for that pur-\npose. Therefore, because Medicare’s losses were a reasonably foreseeable\nconsequence of Mathew’s offense of conviction, that offense of conviction proxi-\nmately caused those losses.\n\n This court has addressed direct and proximate causation in the context\nof a restitution order. In United States v. Espinoza, 677 F.3d 730 (5th Cir.\n2012), the defendant pleaded guilty of being a felon in possession of a firearm.\nId. at 731. The district court ordered the defendant to pay restitution to a\npawn shop to which he had sold stolen firearms that he unlawfully possessed.\n\n\n 3If Mathew lawfully possessed the patients’ information on September 23, 2011, then\nany legitimate claims submitted by him using that information would have been lawful and\nwould not have caused Medicare loss. The district court, however, determined that the six-\nteen Parkland patients became DHH patients “only because of the theft o[f] their identities\nfrom Parkland.” Therefore, Mathew’s possession of the patients’ information was tainted\nfrom the time he stole it from Parkland, and the fact that those patients became DHH\npatients did not make Mathew’s possession lawful.\n 13\n\f Case: 17-10863 Document: 00514843839 Page: 14 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nId. We vacated the sentence, in part because the defendant’s possession of the\nfirearms, without more, was not a but-for cause of the pawn shop’s harm. Id.\nat 733–34. There was nothing inherent in the unlawful possession that would\nmake one foresee the financial harm to the pawn shop. Id.\n\n Espinoza is distinguishable because the defendant was convicted of mere\npossession with no additional element of an intent to use or transfer. Con-\nversely, Mathew was convicted of knowing possession of the patients’ HICNs\nwith the intent unlawfully to use or transfer them. Thus, Espinoza’s holding\nregarding mere possession does not foreclose the conclusion that Mathew’s\nknowingly possessing with the intent unlawfully to use or transfer the HICNs\ndirectly and proximately caused Medicare’s losses. It follows that the restitu-\ntion component of Mathew’s sentence was lawful under the MVRA. 4\n\n VI.\n Mathew asserts that the government failed to meet its burden of estab-\nlishing Medicare’s loss amount because the prosecution’s evidence was insuffi-\ncient. The government points to its witness at sentencing, who showed that\nMedicare would not have paid the claims DHH submitted for the sixteen\nParkland patients had it known that Mathew had compromised their identi-\nties. Mathew’s claim is unavailing. The government satisfied its burden to\nestablish Medicare’s loss amount by proffering evidence demonstrating that\nMedicare paid claims DHH submitted for the sixteen Parkland patients and\nwould not have done so had it known that Mathew had compromised their\nidentities. The government established an actual loss to Medicare.\n\n Under U.S.S.G. § 2B1.1(b)(1), “[t]he amount of loss resulting from [a]\n\n\n 4 Though imposition of restitution was lawful, as explained in part IV, the district\ncourt on remand must limit the restitution amount to Medicare’s actual losses incurred on or\nafter September 23, 2011.\n 14\n\f Case: 17-10863 Document: 00514843839 Page: 15 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nfraud offense is a specific offense characteristic that increases the base offense\nlevel.” United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011). “Generally,\nit is the government’s burden to show by a preponderance of the evidence the\namount of loss attributable to fraudulent conduct.” United States v. Nelson,\n732 F.3d 504, 521 (5th Cir. 2013). The district court “need only make a rea-\nsonable estimate of the loss,” U.S.S.G. § 2B1.1 cmt. 3(C), based on available\ninformation, United States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007). Fur-\nthermore, given the district court’s “unique position to assess the evidence and\nestimate the loss” amount, its “loss determination is entitled to appropriate\ndeference.” U.S.S.G. § 2B1.1 cmt. 3(C); see also United States v. Hebron,\n684 F.3d 554, 560 (5th Cir. 2012).\n\n The loss resulting from an offense is “the greater of actual loss or\nintended loss.” U.S.S.G. § 2B1.1 cmt. 3(A). An “actual loss” is “the reasonably\nforeseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt.\n3(A)(i). “Reasonably foreseeable pecuniary harm,” in turn, is “pecuniary harm\nthat the defendant knew or, under the circumstances, reasonably should have\nknown, was a potential result of the offense.” Id. § 2B1.1 cmt. 3(A)(iv). An\n“intended loss” is “the pecuniary harm that the defendant purposely sought to\ninflict.” Id. § 2B1.1 cmt. 3(A)(ii). Whether the loss is actual or intended, the\ncourt must reduce that loss by “the fair market value of the property returned\nand the services rendered . . . to the victim before the offense was detected.”\nId. § 2B1.1 cmt. 3(E)(i).\n\n The government sought to establish that Medicare suffered an actual\nloss. Therefore, to have met its burden to demonstrate that actual loss, the\nprosecution must have shown that Medicare suffered pecuniary harm 5 that\n\n\n 5Pecuniary harm is “harm that is monetary or that otherwise is readily measurable\nin money.” U.S.S.G. § 2B1.1 cmt. 3(A)(iii).\n 15\n\f Case: 17-10863 Document: 00514843839 Page: 16 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nMathew knew or, under the circumstances, reasonably should have known was\na potential result of his knowingly possessing with the intent to use unlawfully\nor transfer unlawfully the sixteen Parkland patients’ HICNs. The government\nsatisfied that burden.\n\n First, the government established that Medicare suffered pecuniary\nharm. It proffered evidence that Medicare paid claims that DHH submitted\nfor the sixteen patients, thereby suffering a monetary loss.\n\n Second, the government proved that Mathew knew, or under the circum-\nstances reasonably should have known, that Medicare’s pecuniary harm was a\npotential result of his knowingly possessing with the intent to use unlawfully\nor transfer unlawfully the sixteen patients’ HICNs. The government proffered\nevidence that Medicare would not have paid the claims of the sixteen patients\nhad it known that Mathew had compromised their identities. That evidence\nshowed that Medicare’s loss was a potential result of Mathew’s offense of con-\nviction. Mathew’s knowingly possessing with the intent to use unlawfully or\ntransfer unlawfully the patients’ HICNs meant that their identities were com-\npromised, and, therefore, that Medicare would not have paid for claims DHH\nsubmitted to Medicare for those patients if Medicare had known of the\ncompromise.\n\n The evidence also showed that Mathew reasonably should have known,\nunder the circumstances, that Medicare’s harm was a potential result of his\noffense of conviction. Again, Medicare would not have paid for the sixteen\npatients’ claims had it known that Mathew had compromised their identities,\nand Mathew reasonably should have known that his intent to use unlawfully\nor transfer unlawfully the patients’ HICNs could cause Medicare to pay for\nclaims it otherwise would not have. Mathew reasonably should have known\nthat his unlawfully knowingly possessing with the intent to use unlawfully or\n\n 16\n\f Case: 17-10863 Document: 00514843839 Page: 17 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\ntransfer unlawfully the HICNs, whose purpose is to identify an individual as\na legitimate Medicare beneficiary, could cause pecuniary harm to Medicare,\nthe issuer of those HICNs.\n\n The government therefore established an actual loss to Medicare. It pre-\nsented evidence to demonstrate each facet of an actual loss, so restitution in\nthat amount (less the actual losses incurred before September 23, 2011) is\nappropriate under the MVRA.\n\n VII.\n Mathew claims that the district court’s findings regarding Medicare’s\nactual loss amount were erroneous because he was entitled to an offset for pro-\nviding legitimate services. He asserts that he presented evidence establishing\nthat DHH provided legitimate services to the sixteen Parkland patients and\nthat Medicare received value for those services. Conversely, the government\nmaintains that Mathew was not entitled to an offset because he failed to dem-\nonstrate both that DHH “provided legitimate services to the 16 patients at\nissue” and “that Medicare would have paid for those services ‘but for’ Mathew’s\nfraud.” Mathew’s contention is unpersuasive. Because the district court’s find-\ning is plausible in light of the record as a whole, it did not clearly err in denying\nMathew an offset against the actual loss amount for providing legitimate\nservices.\n\n In the context of health care fraud, a defendant, to be entitled to an offset\nagainst an actual loss amount for purposes of restitution, must establish\n(1) “that the services [he provided to Medicare beneficiaries] were legitimate”\nand (2) “that Medicare would have paid for those services but for his fraud.”\nUnited States v. Mahmood, 820 F.3d 177, 194 (5th Cir. 2016). The defendant\nhas the burden of proof to establish each of these factors. Id. If he satisfies\n\n\n 17\n\f Case: 17-10863 Document: 00514843839 Page: 18 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nthat burden, the government can rebut with additional evidence. See id. Con-\nsequently, to have satisfied the Mahmood two-factor test, Mathew must have\npresented unrebutted evidence demonstrating (1) that DHH provided legiti-\nmate services to the sixteen Parkland patients and (2) that Medicare would\nhave paid for those services but for Mathew’s fraud. Mathew fails at the first\nfactor.\n\n Mathew presented medical documents, patient interviews, and witness\ntestimony to establish that DHH provided services to the sixteen patients, that\ndoctors had referred them for home health care, and that the patients were\nhomebound. For example, the transcript of one patient interview stated that\nDHH provided “home health services.” Other documents showed that some\npatients, at some point, had received home health care referrals from physi-\ncians who were not under suspicion for health care fraud.\n\n The government presented evidence that discredited Mathew’s claims\nand significantly weakened his attempt to satisfy his burden of proving that\nDHH had provided legitimate services to the sixteen patients. The government\nexplained that the claims DHH submitted for fifteen of the sixteen were fraud-\nulent as a result of a combination of (1) those patients’ not being eligible for\nMedicare-covered home health care, (2) their not receiving Medicare-covered\nservices as billed, (3) home health care’s not being initiated by a physician,\nand/or (4) DHH’s exaggerating the patient’s health problems to increase the\namount that Medicare would pay for that patient’s care. For example, for one\npatient, DHH did not provide her skilled nursing services covered by Medicare\nbut merely checked her vital signs. Another patient rode the bus to some of\nher doctor appointments, strongly indicating that she was not homebound. For\neach of Mathew’s points regarding legitimate services, the prosecution method-\nically proffered evidence for each of the fifteen patients at issue that undercuts\n\n 18\n\f Case: 17-10863 Document: 00514843839 Page: 19 Date Filed: 02/21/2019\n\n\n\n No. 17-10863\nMathew’s contentions and supports the opposite.\n\n With both Mathew’s and the government’s evidence before it, the district\ncourt found that Mathew had not met his burden to demonstrate that DHH\nprovided legitimate services to the sixteen Parkland patients, and, therefore,\nthat he was not entitled to an offset against the actual loss amount for purposes\nof restitution. Mathew could not satisfy the first factor of Mahmood. Because\nthe court’s finding is plausible in light of the record as a whole, especially con-\nsidering the detailed evidence the government presented regarding the ille-\ngitimacy of the services DHH rendered to the sixteen patients, the court did\nnot clearly err in denying an offset against the actual loss amount for restitu-\ntion purposes.\n\n The judgment of sentence is VACATED and REMANDED for resentenc-\ning. We make no suggestion as to what decisions the district court should make\non remand.\n\n\n\n\n 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369622/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]}	SMITH	DUNCAN	ENGELHARDT	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592369/	Published	1	0	0	2,019	2	[ { "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...
8,443,891	IN RE: JPMORGAN CHASE & COMPANY	In re JPMorgan Chase & Co.	2019-02-21	No. 18-20825	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Duncan, Higginson, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415321/", "author_raw": ""}]}	DUNCAN	HIGGINSON	SMITH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443891/	Published	0	1	0	2,019	2	[ { "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...
8,443,892	Teresa Ann JOHNSON v. OCWEN LOAN SERVICING, L.L.C. Wells Fargo Bank National Association, as Trustee for Park Place Securities Incorporated, Asset-Backed Pass-Through Certificates, Series 2005-WLLI	Johnson v. Ocwen Loan Servicing, L.L.C.	2019-02-21	No. 18-10257	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Costa, Higginson, King", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415322/", "author_raw": ""}]}	COSTA	HIGGINSON	KING	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443892/	Published	0	1	0	2,019	2	[ { "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...
4,593,083		Teresa Johnson v. Ocwen Loan Servicing, L.L.C., et	2019-02-22	18-10257	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before KING, HIGGINSON, and COSTA, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-10257 Document: 00514845793 Page: 1 Date Filed: 02/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-10257 February 21, 2019\n Lyle W. Cayce\nTERESA ANN JOHNSON, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nOCWEN LOAN SERVICING, L.L.C.; WELLS FARGO BANK NATIONAL\nASSOCIATION, as Trustee for Park Place Securities Incorporated, Asset-\nBacked Pass-Through Certificates, Series 2005-WLLI,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n For the Northern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n Parties typically may appeal only after a court has entered final\njudgment resolving all claims. But the growth of multiclaim and multiparty\nlitigation led to Federal Rule of Civil Procedure 54(b), which allows entry of an\nappealable judgment on one or more claims even when trial court litigation\nremains for other claims. 10 Charles Alan Wright et al., FED. PRAC. & PROC.\n§§ 2653, 2654 (4th ed. 2014) (chronicling the history and purpose of Rule 54(b)).\nA partial final judgment is meant to prevent the “hardship and denial of justice\nthrough delay if each issue must await the determination of all issues as to all\n\f Case: 18-10257 Document: 00514845793 Page: 2 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\nparties before a final judgment can be had.” Dickinson v. Petroleum Conversion\nCorp., 338 U.S. 507, 511 (1950).\n This rule that is supposed to promote efficiency turned out to be a pitfall\nfor the plaintiff in this mortgage foreclosure case. After the district court\nrejected all but one claim, it entered a Rule 54(b) judgment allowing an appeal\nbefore the final claim was resolved. But thirty days passed without an appeal.\nOnly after the district court resolved the lingering claim and entered final\njudgment did the plaintiff appeal rulings from both judgments. We decide\nwhether the missed deadline for appealing the Rule 54(b) judgment prevents\nthe appellant from challenging those rulings in a later appeal from the final\njudgment.\n I.\n This case is about Teresa Johnson’s home equity loan. Ocwen Loan\nServicing began servicing the loan in 2011, and Wells Fargo owns the loan.\nSometime in 2014, Johnson’s husband lost his job and she fell behind in her\nloan payments. Johnson wanted a loan modification, but either she never\ncompleted the application or Ocwen failed to act on it. Eventually Ocwen\nsought an expedited foreclosure order in state court. Johnson filed this federal\nsuit in response, which led to the dismissal of the foreclosure action.\n Johnson originally asserted five claims against Ocwen: three under the\nTexas Debt Collection Act and two under the federal Real Estate Settlement\nProcedures Act. 1 After receiving recommendations from the magistrate judge,\nthe district court granted summary judgment for Ocwen on both federal claims\nand the two state claims that alleged misrepresentations in connection with\n\n\n\n 1 Johnson does not make any allegations about Wells Fargo’s conduct, but seeks to\n\nhold it vicariously liable under RESPA for Ocwen’s activities. We recently held that the\nRESPA’s duties at issue here do not impose vicarious liability. Christiana Trust v. Riddle,\n911 F.3d 799, 804–05 (5th Cir. 2018).\n 2\n\f Case: 18-10257 Document: 00514845793 Page: 3 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\ndebt collection. But it sent the remaining state claim, which relied on Texas’s\ngeneral prohibition on “threatening to take an action prohibited by law,” TEX.\nFIN. CODE § 392.301(a)(8), back to the magistrate judge for further scrutiny.\n On January 4, 2018, with the final claim still pending, the district court\nentered a Rule 54(b) judgment on the four dismissed claims.\n The remaining debt collection claim did not take long to resolve. By the\nend of the month, with the new magistrate report in hand, the district court\ngranted summary judgment on that claim and entered final judgment on\nJanuary 31.\n Johnson appealed on March 1, within 30 days of the January 31st final\njudgment but more than 30 days after entry of the Rule 54(b) judgment.\n II.\n Johnson’s appeal focuses on the federal claims that were dismissed in\nthat Rule 54(b) judgment. That partial final judgment started its own clock\nfor filing a notice of appeal. Smith v. Mine Safety Appliances Co., 691 F.2d 724,\n725 (5th Cir. 1982). Because Johnson filed her notice more than thirty days\nafter entry of the Rule 54(b) judgment dismissing the Real Estate Settlement\nProcedures Act claims, her appeal of those rulings is untimely. Id.; see also\nBowles v. Russell, 551 U.S. 205, 209 (2007) (noting that the time limit for\nappealing in civil cases is mandatory and jurisdictional).\n To try and avoid the time bar, Johnson argues that the Rule 54(b)\njudgment was unauthorized because: (1) the rule applies to cases with multiple\nclaims but she only brought one, and (2) the district court failed to explain why\nit found “that there is no just reason for delay.” FED. R. CIV. P. 54(b). As a\npreliminary matter, we have doubts that an appeal of the final judgment\nallows a collateral attack on the propriety of a Rule 54(b) judgment from which\nan appeal was not taken. When dismissing untimely appeals of Rule 54(b)\njudgments, we have never evaluated a judgment’s validity. See, e.g., Udeiwe\n 3\n\f Case: 18-10257 Document: 00514845793 Page: 4 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\nv. Texas Tech Univ., 733 F. App’x 788, 791–92 (5th Cir. 2018); Martin v. Zoley,\n603 F. App’x 349, 350 (5th Cir. 2015); Smith, 691 F.2d at 725. That said, at\nleast two circuits have allowed collateral attacks on the validity of a partial\njudgment when the appellant waits to appeal until after the final judgment.\nSee Granack v. Continental Cas. Co., 977 F.2d 1143, 1145 (7th Cir. 1992)\n(holding that a Rule 54(b) judgment lacking the statement that there is “no\njust reason for delay” is defective and does not start the appellate clock); Page\nv. Pressier, 585 F.2d 336, 338 (8th Cir. 1978) (allowing a party appealing the\nfinal judgment to challenge a Rule 54(b) judgment on the ground that it\n“incorrectly categorized’ the case as one involving multiple claims). The\nleading federal procedure treatise suggests that litigants facing an invalid Rule\n54(b) judgment pursue another route for fixing it: file a timely notice of appeal\nfrom the judgment that argues, in addition to challenging the merits of the\nrulings, that the partial judgment is defective. 15A Wright et al., FED. PRAC.\n& PROC. § 3914.7, at 565 (2d ed. 1992). If the appellate court disagrees on the\nprocedural point, the appellant has still preserved a timely appeal. And there\nis an even more direct path for litigants who believe a Rule 54(b) judgment\nshould not have been entered: ask the court that entered it to undo it. See FED.\nR. CIV. P. 59(e) (allowing a party to file a “motion to alter or amend the\njudgment” within 28 days of its entry).\n But we need not resolve whether an appellant who fails to timely appeal\na Rule 54(b) judgment may attack the validity of that partial judgment in an\nappeal of the final judgment. Even assuming that Johnson’s appeal of the final\njudgment is a vehicle for examining the Rule 54(b) judgment’s validity, she has\nnot demonstrated an error in the district court’s use of the procedure.\n Johnson argues that she only brought one claim, which would mean Rule\n54(b) does not apply. Our caselaw, like that of other circuits, has not\nannounced a single test for determining what is a “claim” for Rule 54(b)\n 4\n\f Case: 18-10257 Document: 00514845793 Page: 5 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\npurposes. See Tubos de Acero de Mexico, S.A. v. Am. Intern. Inv. Corp., 292\nF.3d 471, 485 (5th Cir. 2002); see also Andrew S. Polis, Civil Rule 54(b):\nSeventy-Five and Ready for Retirement, 65 FLA. L. REV. 711, 741–49 (2013)\n(explaining tests used in different cases). But under any standard we have\nconsidered, this lawsuit alleges multiple claims. Johnson’s federal claims\nallege, among other things, that Ocwen did not follow requirements for loss\nmitigation applications. See 12 U.S.C. § 2601 et seq.; 12 CFR § 1024.41(d), (g).\nThe state debt collection claims focus on what Ocwen said during\ncommunications with Johnson. The claims thus do not depend on the same\nfacts, the focus of one common test. See Tubos, 292 F.3d at 486. Nor would\nrecovery on the federal claim prevent a recovery on the state claim, another\nstandard we have used. See Samaad v. City of Dallas, 940 F.2d 925, 931–32\n(5th Cir. 1991). Federal regulation of real estate transactions protects different\ninterests than state laws that generally prohibit deceptive debt collection\npractices. Johnson brought separate claims, so that threshold requirement of\nRule 54(b) was met.\n Johnson’s second attack on the Rule 54(b) judgment is that it lacked an\nexplanation for its finding that there was “no just reason for delay.” Although\nproviding such an explanation might be the better course (among other things,\nit facilitates appellate review of whether the finding was an abuse of\ndiscretion), we do not require it. See Rothenberg v. Sec. Mgmt. Co., 617 F.2d\n1149, 1150 (5th Cir. 1980). Even the Third Circuit cases that Johnson relies\non have since been reconsidered. Compare Allis-Chalmers Corp. v.\nPhiladelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975), with Elliot v.\nArchdiocese of New York, 682 F.3d 213, 221 (3d Cir. 2012) (noting that Allis-\nChalmers’ requirement that a district court set forth a statement of reasons\n“stands not as a jurisdictional prerequisite but as a prophylactic means of\n\n\n 5\n\f Case: 18-10257 Document: 00514845793 Page: 6 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\nenabling the appellate court” to evaluate the use of Rule 54(b) (cleaned up)).\nJohnson has not identified a defect in the Rule 54(b) judgment.\n In hindsight, this turned out to be a case in which waiting to enter\njudgment on all claims would not have resulted in meaningful delay. Only 27\ndays after issuing the Rule 54(b) judgment, the court resolved the final claim.\nOf course, at the time the court entered the partial judgment it did not know\nhow quickly the magistrate would turnaround a report on the final claim or\nthat the remaining claim would be dismissed. And regardless how events\nturned out, what matters is that Johnson missed the deadline for appealing\nthe Rule 54(b) judgment. As a result, her appeal of its dismissal of the federal\nclaims is untimely.\n III.\n As we have noted, the appeal of the one state claim that was addressed\nin the final judgment is timely. But that ruling was correct on the merits.\nJohnson did not connect her alleged damages to the letters threatening\nforeclosure that are the basis for this particular claim. For proof of her\ndamages she points us to her declaration, which describes the “severe mental\nanguish and emotional distress” she has experienced. But Johnson has not\nindicated that emotional toll was caused by receipt of the April 2016 letters, as\nopposed to the natural consequence of the unfortunate string of events she\nrelates that began with the loss of her husband’s job and culminated in the\nfiling of this lawsuit. The same is true for her loss of time and inconvenience—\nshe does not assert that the time it took to fill out the total loss forms and loan\nmodification applications is attributable to receipt of the letters that are the\nbasis for this claim. Summary judgment was warranted. 2\n\n\n\n 2 Johnson also argues that Ocwen did not adequately contest causation in its summary\n\njudgment papers. But Ocwen put Johnson on notice that it challenged causation while\n 6\n\f Case: 18-10257 Document: 00514845793 Page: 7 Date Filed: 02/21/2019\n\n\n\n No. 18-10257\n ***\n We DISMISS the appeal of the federal claims for lack of jurisdiction and\nAFFIRM the judgment in favor of Defendants on the state law claim.\n\n\n\n\ndiscussing her other state law claims—just two paragraphs before discussing Section\n392.301(a)(8) under the same heading—and she responded with evidence of her damages.\n 7", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370336/", "author_raw": "GREGG COSTA, Circuit Judge:"}]}	KING	HIGGINSON	COSTA	1	{"KING": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593083/	Published	1	0	0	2,019	2	[ { "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...
4,593,086		In Re: JPMorgan Chase & Company	2019-02-22	18-20825	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-20825 Document: 00514844999 Page: 1 Date Filed: 02/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 18-20825 FILED\n February 21, 2019\n Lyle W. Cayce\n Clerk\nIn re:\n\nJPMORGAN CHASE & COMPANY,\n\n Petitioner.\n\n\n\n Petition for Writ of Mandamus to\n the United States District Court\n for the Southern District of Texas\n\n\n\n\nBefore SMITH, HIGGINSON, and DUNCAN, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n JPMorgan Chase Bank N.A. (“Chase”) 1 petitions for a writ of mandamus 2\nafter the district court conditionally certified a Fair Labor Standards Act\n(“FLSA”) collective action and directed that approximately 42,000 current and\nformer Chase employees receive notice of the litigation. Chase contends that\nabout 35,000 (or 85%) of those individuals signed arbitration agreements\n\n\n\n 1 The complaint inaccurately names the defendant “JP Morgan Chase & Co.,” but that\n\nremains the official caption.\n 2 Because Chase petitions for an order that restricts the district court, the petition\n\nmight better be called a petition for writ of prohibition. See Pulliam v. Allen, 466 U.S. 522,\n533−34 (1984). We use the more customary term, mandamus.\n\f Case: 18-20825 Document: 00514844999 Page: 2 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nwaiving their right to proceed collectively against Chase and that those agree-\nments should be enforced per their terms.\n\n We have reviewed the petition, the response in opposition, petitioner’s\nreply in support, the respondent’s sur-reply, the exhibits attached to those sub-\nmissions, and the applicable law. We also heard full oral argument and com-\nmend the attorneys for their excellent briefing and advocacy on a contracted\nbriefing schedule.\n\n Chase has shown that the issue presented is irremediable on ordinary\nappeal and that the writ of mandamus is appropriate under the circumstances,\nbut Chase has not shown a clear and indisputable right to the writ. We thus\ndeny the petition. We hold, however, that the district court appears to have\nerred by ordering that notice be sent to employees who signed arbitration\nagreements (the “Arbitration Employees”) and by requiring Chase to provide\npersonal contact information for the Arbitration Employees. We continue the\nstay of the district court’s December 10, 2018, order for thirty days to give the\ncourt full opportunity to reconsider that order.\n\n I.\n The FLSA permits collective actions in which “any one or more employ-\nees” may bring an action against their employer “for and on behalf of himself\nor themselves and other employees similarly situated.” 29 U.S.C. § 216(b)\n(2012). This petition arises from an FLSA action that began when Shannon\nRivenbark sued Chase, alleging that it had violated the FLSA by failing to\ncompensate her and other employees at Chase’s call centers for tasks they com-\npleted “off-the-clock.”\n\n Plaintiffs moved to certify conditionally a collective action that would\ninclude about 42,000 current and former call-center employees, and plaintiffs\n\n 2\n\f Case: 18-20825 Document: 00514844999 Page: 3 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nasked the district court to send notice of the action to all putative collective\nmembers. Chase responded that approximately 35,000 (or 85%) of the putative\ncollective members had waived their right to proceed collectively by signing\nbinding arbitration agreements. 3 Chase averred that including those Arbitra-\ntion Employees in the collective action and giving them notice of it “would be\ninconsistent” with the agreements and the Federal Arbitration Act (“FAA”).\nPlaintiffs did not contest that at least some employees had signed arbitration\nagreements containing waivers of class and collective action; moreover, plain-\ntiffs represented that they did not intend to contest the validity or enforce-\nability of those agreements. Instead, they maintained that employees who had\nvalid arbitration agreements would arbitrate, and those who did not would\nproceed in court.\n\n Over Chase’s objections, the district court, on December 10, 2018, condi-\ntionally certified the collective action, including the 35,000 Arbitration Em-\nployees. The court reasoned that even if Chase was correct that notice may not\nbe sent to individuals who signed arbitration agreements and thus might be\ncompelled to arbitrate, “the Court cannot determine that there is no possibility\nthat putative class members will be able to join the suit until Defendant files\na motion to compel arbitration against specific individuals.” Because Chase\nhad not moved to compel arbitration, the court conditionally certified the\ncollective and directed that notice “be sent to all putative class members via\nFirst Class Mail and e-mail.” The court also ordered Chase to produce contact\ninformation for all 42,000 putative collective members (including of course the\nArbitration Employees) within two weeks, i.e., by Christmas Eve 2018.\n\n\n 3 Chase maintains that one of the named plaintiffs, Kaylah Casuccio, who was added\n\nto the complaint in February 2018, is subject to a binding arbitration agreement, which pro-\nvides that “[n]o claims may be arbitrated on a class or collective basis unless required by\napplicable law.”\n 3\n\f Case: 18-20825 Document: 00514844999 Page: 4 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\n Chase moved for the district court to certify its order for interlocutory\nappeal under 28 U.S.C. § 1292(b) and to enter an emergency stay to allow for\norderly appellate review. The court denied both motions. Chase filed this\nmandamus petition on December 20, asking this court to “direct[] the district\ncourt to exclude from notice of the collective action any employees who signed\narbitration agreements waiving their rights to participate in this collective\naction.” Accompanying the petition was a motion for stay pending appeal,\nwhich we granted on December 21, “subject to further order.”\n\n II.\n A writ of mandamus is “a drastic and extraordinary remedy reserved for\nreally extraordinary cases,” In re Depuy Orthopaedics, Inc., 870 F.3d 345, 350\n(5th Cir. 2017), and we may issue the writ only if three conditions are met.\nFirst, the petitioner must have “no other adequate means to attain the relief\nhe desires.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004). Second, this\ncourt “must be satisfied that the writ is appropriate under the circumstances.”\nId. at 381. Third, the petitioner must demonstrate a “clear and indisputable\nright to the writ.” Id.\n\n A.\n The first requirement is that the error presented “is truly ‘irremediable\non ordinary appeal.’” Depuy, 870 F.3d at 352−53 (citation omitted). Though\n“[t]hat is a high bar,” id., Chase has met it. Orders of conditional certification\ncannot be appealed under the collateral order doctrine. See Baldridge v. SBC\nCommc’ns, Inc., 404 F.3d 930, 931–33 (5th Cir. 2005). And as stated, the court\ndeclined to certify an interlocutory appeal. Moreover, Chase will have no\nremedy after a final judgment because the notice issue will be moot once Chase\nhas provided the required contact information and notice has been sent to\nputative collective members. Chase has easily met the first requirement for\n\n 4\n\f Case: 18-20825 Document: 00514844999 Page: 5 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nthe writ.\n\n B.\n Second, this court “must be satisfied that the writ is appropriate under\nthe circumstances.” Cheney, 542 U.S. at 381. Issuing the writ is “especially\nappropriate,” In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 294 (5th Cir.\n2015), where the issues implicated have “importance beyond the immediate\ncase,” In re Volkswagen of Am., Inc., 545 F.3d 304, 319 (5th Cir. 2008)\n(en banc). 4\n\n Mandamus relief would be especially appropriate here. Whether notice\nof a collective action may be sent to Arbitration Employees is an increasingly\nrecurring issue. 5 Federal district courts have splintered over it, 6 and no court\n\n\n 4 The Supreme Court recognizes “use [of] the writ as a one-time device to ‘settle new\n\nand important problems’ that might have otherwise evaded expeditious review.” In re EEOC,\n709 F.2d 392, 394 (5th Cir. 1983) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)).\nSome commentators refer to this as “supervisory or advisory mandamus.” 16 CHARLES ALAN\nWRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3934.1 (3d ed. 2012) (internal quotation\nmarks omitted).\n 5 Federal district courts, in at least 210 decisions, have wrestled with the applicability\n\nof arbitration agreements at the conditional-certification stage of FLSA suits. But only six\nof those decisions issued before 2009; ninety-nine were in the past three years.\n 6 This court has previously found mandamus appropriate where, among other things,\n\n“the district courts have developed their own tests.” Volkswagen, 545 F.3d at 319. District\ncourts have resolved the issue in at least three ways.\n Some courts exclude employees who signed arbitration agreements from the condi-\ntionally certified collective and thus from receiving notice. See, e.g., Hudgins v. Total Quality\nLogistics, LLC, No. 16 C 7331, 2017 WL 514191, at 4 (N.D. Ill. Feb. 8, 2017) (“The Court\nconcludes that notice should be limited to only those potential members who have not signed\narbitration agreements.”). Others notify plaintiffs who signed arbitration agreements, based\non a theory that plaintiffs have a “right to receive notice” of potential FLSA claims. See, e.g.,\nWilliams v. Omainsky, No. 15-0123-WS-N, 2016 WL 297718, at 8 (S.D. Ala. Jan. 21, 2016).\nA final group has certified collective actions and sent notice to employees who signed arbitra-\ntion agreements, based on the proposition that the agreements might be unenforceable. See,\ne.g., Weckesser v. Knight Enters. S.E., LLC, No. 2:16-CV-02053, 2018 WL 4087931, at 3\n(D.S.C. Aug. 27, 2018) (“The potential opt-in plaintiffs allegedly subject to arbitration agree-\nments have not yet joined this action, and the Court therefore has no ability to determine\nwhether any potential arbitration agreement are enforceable against them.”). District courts\n 5\n\f Case: 18-20825 Document: 00514844999 Page: 6 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nof appeals has weighed in. The issue thus has importance well beyond this\ncase, so mandamus relief would be appropriate.\n\n C.\n Finally, the writ may issue only if Chase has demonstrated a “clear and\nindisputable right to the writ.” Satisfying this condition “require[s] more than\nshowing that the district court misinterpreted the law, misapplied it to the\nfacts, or otherwise engaged in an abuse of discretion.” Lloyd’s Register,\n780 F.3d at 290. Instead, Chase must demonstrate a “clear abuse[] of discre-\ntion that produce[s] patently erroneous results” 7 or that “there has been a usur-\npation of judicial power.” 8 Put another way, Chase “must show not only that\nthe district court erred” “but that it clearly and indisputably erred” in ordering\nthat Arbitration Employees receive notice. In re Occidental Petroleum Corp.,\n217 F.3d 293, 295 (5th Cir. 2000).\n\n 1.\n Unlike members in Rule 23 class actions, putative collective members\nmust affirmatively opt in to FLSA actions. Sandoz v. Cingular Wireless LLC,\n553 F.3d 913, 919 (5th Cir. 2008). To keep the opt-in process efficient, district\ncourts “have discretion” to “facilitat[e] notice to potential plaintiffs.”\nHoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). Permitting the\ncourt to facilitate notice helps ensure both “efficient resolution in one pro-\nceeding of common issues” and that “employees [will] receiv[e] accurate and\n\n\n\nin the Fifth Circuit diverge. Compare, e.g., Villatoro v. Kim Son Rest., L.P., 286 F. Supp. 2d\n807, 811 (S.D. Tex. 2003) (employing the notice-of rights-theory), with, e.g., Hanson v. Gamin\nCargo Control, Inc., No. 4:13-CV-0027, 2013 WL 12107666, at 2 (S.D. Tex. Aug. 9, 2013)\n(giving notice because the agreements might be unenforceable).\n 7 Lloyd’s Register, 780 F.3d at 290 (quoting Volkswagen, 545 F.3d at 310 (5th Cir.\n\n2008)).\n 8 Will v. United States, 389 U.S. 90, 95 (1967) (internal quotation marks omitted).\n\n 6\n\f Case: 18-20825 Document: 00514844999 Page: 7 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\ntimely notice concerning the pendency of the collective action, so that they can\nmake informed decisions about whether to participate.” Id. at 170.\n\n Although Hoffmann-La Roche gave district courts discretion to send\nnotice of pending FLSA actions to potential opt-in plaintiffs, it did not explain\nwhether Arbitration Employees waiving their right to proceed collectively\ncount as “potential plaintiffs.” That lack of clarity has produced conflicting\nresults from district courts, especially where they use the popular two-stage\nLusardi method to certify a collective action. 9\n\n Under Lusardi, stage one “begins when the plaintiff moves for condi-\ntional certification of the collective action.” Reyna v. Int’l Bank of Commerce,\n839 F.3d 373, 374–75 (5th Cir. 2016). The district court then considers\nwhether, “based on the pleadings and affidavits of the parties,” Sandoz,\n553 F.3d at 915 n.2, the putative collective members are “similarly situated”\nand may thus proceed collectively. If they are, the court conditionally certifies\nthe collective action. Reyna, 839 F.3d at 374–75 (cleaned up). At this point,\ndistrict courts typically exercise their discretion under Hoffmann-La Roche to\ndecide “whether to provide notice to fellow employees who may be similarly\nsituated to the named plaintiff.” Sandoz, 553 U.S. at 915 n.2.\n\n The second stage “usually occurs after discovery is complete . . . when\nthe employer moves to decertify the collective.” Reyna, 839 F.3d at 375 n.2.\nThe district court then makes “a final determination of whether all plaintiffs\nare sufficiently similarly situated to proceed together in a single action.” Id.\n(internal quotation marks omitted).\n\n\n 9 See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)), overruled on other grounds\n\nby Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Though it is frequently employed by dis-\ntrict courts, this court has carefully avoided adopting the two-stage “Lusardi” method of cer-\ntifying a collective action. See, e.g., Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th\nCir. 1995) (citing Lusardi). Nothing in this opinion should be construed to do so now.\n 7\n\f Case: 18-20825 Document: 00514844999 Page: 8 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\n The standard for satisfying step one is “fairly lenient.” Mooney, 54 F.3d\nat 1214. Most discovery happens after the first stage, so the district court,\nbased on “minimal evidence,” makes the initial determination whether the\nputative collective members are sufficiently similarly situated to the named\nplaintiff to proceed collectively. Id. Accordingly, many district courts, includ-\ning some in this circuit, wait until the second stage, when discovery is com-\nplete, to determine the applicability of arbitration agreements. 10 Similarly,\nsome district courts characterize the existence vel non of arbitration agree-\nments as a merits-based issue. Because Hoffmann-La Roche strictly forbids\ndistrict courts from appearing to endorse the merits of the litigation by means\nof facilitating notice, those district courts conclude that the existence of arbi-\ntration agreements—as a merits-based issue—must not be addressed until the\ndecertification stage. 11\n\n 2.\n Though some district courts have read the Lusardi framework as encour-\naging courts to wait until stage two to consider the existence of arbitration\nagreements, we hold that district courts may not send notice to an employee\nwith a valid arbitration agreement unless the record shows that nothing in the\nagreement would prohibit that employee from participating in the collective\naction. 12 Hoffmann-La Roche confines district courts’ notice-sending authority\n\n\n\n 10 See generally, e.g., Campbell v. City of L.A., 903 F.3d 1090 at 1109–10 (9th Cir. 2018)\n\n(explaining that review of the collective is more “exacting” at the second stage because more\nevidence is available).\n 11 See, e.g., Esparza v. C&J Energy Servs., Inc., No. 15-850, 2016 WL 1737147, at 3\n\n(W.D. Tex. May 2, 2016); Green v. Plantation of La., LLC, No. 10-0364, 2010 WL 5256348,\nat 1 (W.D. La. Dec. 15, 2010); Villatoro v. Kim Son Rest., LP, 286 F. Supp. 2d 807, 811 (S.D.\nTex. 2003).\n 12 This is no criticism of the well-intended efforts of the various district courts\n\n(including the court a quo), in the absence of guidance from any court of appeals, to follow\nthe law in the light of the challenging practicalities of collective actions. As stated above, we\n 8\n\f Case: 18-20825 Document: 00514844999 Page: 9 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nto notifying potential plaintiffs; it directs judges “to avoid even the appearance\nof judicial endorsement of the merits of the action” 13; and it nowhere suggests\nthat employees have a right to receive notice of potential FLSA claims. The\nDecember 10 order is incompatible with Hoffmann-La Roche and with what we\nhold in this opinion regarding notice.\n\n (i)\n As noted above, Hoffmann-La Roche does not define the “potential plain-\ntiffs” whom a district court may notify about a pending FLSA action. Chase\nunderstands “potential plaintiffs” to mean “potential participants,” asserting\nthat Hoffmann-La Roche gives district courts discretion to facilitate notice to\npersons who will be eligible to participate in the pending suit. Chase continues\nthat courts must treat any Arbitration Employee as ineligible to opt in to a\nFLSA collective action. That is because, Chase explains, the FAA makes arbi-\ntration agreements “valid, irrevocable, and enforceable, save upon such\ngrounds as exist at law or in equity for the revocation of any contract.”\n9 U.S.C. § 2 (2012). Chase insists that the district court effectively treated the\narbitration agreements as invalid by certifying a collective that includes\nArbitration Employees. 14 The district court, Chase concludes, thus exercised\ndiscretion beyond what Hoffmann-La Roche allows in ordering that 35,000\nemployees who are not “potential participants” in this suit receive notice of it.\n\n We agree that district courts do not “have unbridled discretion” to send\n\n\n\ndecide this issue as part of our supervisory authority to “settle [a] new and important\nproblem[ ].” Schlagenhauf, 379 U.S. at 111.\n 13 Hoffmann-La Roche,493 U.S. at 174 (emphasis added).\n\n 14 The court stated that it included Arbitration Employees in the class because it could\n\nnot “determine that there is no possibility that putative class members will be able to join\nthe suit until Defendant files a motion to compel arbitration against specific individuals.” We\nexplain later why Chase’s failure to move to compel arbitration is of no moment.\n 9\n\f Case: 18-20825 Document: 00514844999 Page: 10 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nnotice to potential opt-in plaintiffs. Hoffmann-La Roche, 493 U.S. at 174.\nInstead, the purpose of giving discretion to facilitate notice is because of the\nneed for “efficient resolution in one proceeding of common issues.” Id. at 170,\n172–73. Notifying Arbitration Employees reaches into disputes beyond the\n“one proceeding.” 15 And alerting those who cannot ultimately participate in\nthe collective “merely stirs up litigation,” which is what Hoffmann-La Roche\nflatly proscribes. Id. at 174. 16\n\n Identifying Arbitration Employees among the full workforce first\nrequires the court to decide which employees have entered into valid arbitra-\ntion agreements. “Determining whether there is a valid arbitration agreement\nis a question of state contract law and is for the court.” Huckaba v. Ref-Chem,\nL.P., 892 F.3d 686, 688 (5th Cir. 2018) (citation omitted). It follows that the\nparty that intends to rely on arbitration instead of a collective action “must\nshow that the agreement meets all of the requisite contract elements.” Id.\n“[B]ecause the validity of the agreement is a matter of contract, at this stage,\nthe strong federal policy favoring arbitration does not apply.” Id. at 688−89\n(footnote and citation omitted).\n\n It is only logical to conclude, from this, that if there is a genuine dispute\nas to the existence or validity of an arbitration agreement, an employer that\nseeks to avoid a collective action, as to a particular employee, has the burden\nto show, by a preponderance of the evidence, the existence of a valid arbitration\n\n\n 15 Indeed, plaintiffs have acknowledged the multiplicity of potential proceedings that\n\nthis case implicates in district court. They averred that “[t]he Plaintiffs who have valid arbi-\ntration agreements will go the route of arbitration and the remaining Plaintiffs will proceed\nbefore this Court.”\n 16 Hoffmann-La Roche also roots the discretion afforded district courts to facilitate\n\n“joining multiple parties” so it can “ascertain[] the contours of the action at the outset.”\nHoffmann-La Roche, 493 U.S. at 170, 172. That language suggests that the notice is sup-\nposed to help facilitate the current lawsuit, not to affect individual arbitrations that might\ninvolve similar claims.\n 10\n\f Case: 18-20825 Document: 00514844999 Page: 11 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nagreement for that employee. 17 The court should permit submission of addi-\ntional evidence, carefully limited to the disputed facts, at the conditional-\ncertification stage. Where a preponderance of the evidence shows that the em-\nployee has entered into a valid arbitration agreement, it is error for a district\ncourt to order notice to be sent to that employee as part of any sort of certifi-\ncation. 18 But if the employer fails to establish the existence of a valid arbitra-\ntion agreement as to an employee, that employee would receive the same notice\nas others.\n\n Plaintiffs insist, to the contrary, that all putative collective members—\nincluding Arbitration Employees—have a right to be given notice of any FLSA\nclaims that they might have, even if they cannot join the current collective\naction. Not so. Neither FLSA’s text nor Hoffmann-La Roche offers any support\nwhatsoever for that notion. 19\n\n\n\n\n 17 We assume that in the ordinary case, as here, the party or parties seeking the col-\n\nlective action would not raise a genuine dispute as to the existence of an arbitration agree-\nment, thus obviating the need for a preponderance determination as to that employee.\n 18 This holding is consistent with this court’s requirement that before conditionally\n\ncertifying a collective action, a district court must decide whether a named plaintiff is bound\nby an arbitration agreement. See Edwards v. Doordash, Inc., 888 F.3d 738, 743 (5th Cir.\n2018); Reyna, 839 F.3d at 377.\n 19 Hoffmann-La Roche, for example, states only that district courts have the discretion\n\nto facilitate notice—not that they must. Moreover, this “notice of rights” theory looks a lot\nlike “solicitation of claims,” which Hoffmann-La Roche forbids, instead of permissibly facili-\ntating notice “for case management purposes.” Hoffmann-La Roche, 493 U.S. at 174.\n Nor does Chase’s failure to move to compel arbitration doom its petition, as plaintiffs\nmaintain. It is true that courts cannot compel individuals to arbitrate when they are yet to\nbe identified and have not joined the suit. But to stay within the discretion authorized in\nHoffmann-La Roche, district courts must respect the existence of arbitration agreements and\nmust decline to notify Arbitration Employees, who waived their right to proceed collectively,\nof the pending action.\n This does not keep Arbitration Employees from attempting to opt-in to the collective\naction. Once they do, however, the employer can move to compel them to arbitrate. None-\ntheless, under Hoffmann-La Roche, district courts do not have the discretion to order that\nArbitration Employees receive notice of the action.\n 11\n\f Case: 18-20825 Document: 00514844999 Page: 12 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\n (ii)\n The district court’s error was compounded by its transgression of the\nSupreme Court’s explicit warning “to avoid even the appearance of judicial\nendorsement on the merits of the action.” Hoffmann-La Roche, 493 U.S. at 174\n(emphasis added). During the hearing on plaintiffs’ motion for conditional cer-\ntification, the court suggested that not providing notice to putative opt-in plain-\ntiffs would “further disenfranchise” the employees even beyond the “huge com-\npromise of individual’s [sic] rights” effected when they signed arbitration\nagreements. The court opined that it “doesn’t seem to me unfair to give plain-\ntiffs notice that they may have been victims of this illegality.” “Now we are\ngoing to further disenfranchise them,” the district court added, “by not telling\nthem there may have been something illegal about the practice they were\nsubject to.” (Emphasis added.)\n\n Far from “avoid[ing] even the appearance of judicial endorsement on the\nmerits of the action,” the district court—by referring to the “victims of this\nillegality”—appeared to say that Chase had violated the FLSA. That dis-\nregards Hoffmann-La Roche’s stern command that “courts must be scrupulous\nto respect judicial neutrality” and may not use their discretion to facilitate the\nnotice process “merely [to] stir[] up litigation,” id., which is precisely what this\ndistrict judge did. 20\n\n\n\n\n 20 As the case progresses, the district judge should make every reasonable effort to\n\navoid the perception that he has pre-judged any aspect of this proceeding. The court’s\nstatements can be read as saying that Chase is guilty of an “illegality,” presumably in regard\nto the FLSA. That would be a violation of the prohibition in Hoffmann-La Roche, 493 U.S.\nat 174, of endorsing the merits of the action. The judge also obviously has a jaundiced view\nof Supreme Court decisions such as Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018),\nwhich requires enforcement of arbitration agreements that waive collective-action\nprocedures for employees. The court apparently views such rulings as a “further disenfran-\nchise[ment]” of employees even beyond the “huge compromise of individual’s [sic] rights” that,\nin the court’s view, occurred when they signed arbitration agreements.\n 12\n\f Case: 18-20825 Document: 00514844999 Page: 13 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\n 3.\n In spite of our holding that the district court erred in ordering notice to\nArbitration Employees, the court did not “clearly and indisputably” err, as is\nrequired for a writ of mandamus. Occidental Petroleum, 217 F.3d at 295.\nEvery decision from district courts in this circuit had either adopted the notice-\nof-rights theory pressed by plaintiffs—and endorsed by the district court in the\ncase a quo—or certified collective actions that include Arbitration Employees.\nThat this district court followed numerous others in errantly applying\nHoffmann-La Roche suggests that its order did not meet the test for a “clear\nabuse[] of discretion that produce[s] patently erroneous results.” 21\n\n Additionally, although ordering that 35,000 employees, who cannot par-\nticipate in the litigation, receive notice of its pendency comes close to the “soli-\ncitation of claims” forbidden by Hoffmann-La Roche, 493 U.S. at 174, other\ndistrict courts have done the same. Under these circumstances, there is no\n“usurpation of judicial power” 22 justifying deployment of “one of the most\npotent weapons in the judicial arsenal.” Cheney, 542 U.S. at 380 (internal quo-\ntation marks omitted).\n\n III.\n In sum, Hoffmann-La Roche does not give district courts discretion to\nsend or require notice of a pending FLSA collective action to employees who\nare unable to join the action because of binding arbitration agreements. 23 The\ndistrict court erred in ordering that notice be given to them. But that error, in\nthe context of the facts and circumstances of this case, does not establish that\n\n\n\n 21 Lloyd’s Register, 780 F.3d at 290 (quoting Volkswagen, 545 F.3d at 310).\n\n 22 Will, 389 U.S. at 95 (internal quotation marks omitted).\n\n 23 The same applies to requiring the employer to provide contact information.\n\n 13\n\f Case: 18-20825 Document: 00514844999 Page: 14 Date Filed: 02/21/2019\n\n\n\n No. 18-20825\nChase has a clear and indisputable right to a writ of mandamus.\n\n We issue this published opinion as a holding on these legal issues, which\nare squarely presented for decision. We do so in part under our supervisory\nauthority to correct errant caselaw from district courts under our jurisdiction.\nThe district court should revisit its decision in light of this opinion, which is\nnow binding precedent throughout the Fifth Circuit. 24\n\n To facilitate that review, the stay entered on December 21, 2018, is\nEXTENDED for thirty days from the date of this opinion. 25 The petition for\nwrit of mandamus is DENIED.\n\n\n\n\n 24 This follows the procedure we utilized in Depuy.There, although denying the peti-\ntion for writ of mandamus, we nonetheless “request[ed] the district court to vacate its ruling.”\nDepuy, 870 F.3d at 348. We explained this approach as follows:\n In anticipation of any suggestion that a court of appeals exceeds its proper\n role in ruling on pending issues but nonetheless denying mandamus, we note\n that this court has routinely held, sometimes in published opinions, that a\n district court erred, despite stopping short of issuing a writ of mandamus. E.g.,\n In re Dean, 527 F.3d 391 (5th Cir. 2008) (per curiam) (holding that district\n court had “violated” a federal statute); In re United States, No. 07-40629, 2007\n U.S. App. LEXIS 30793 (5th Cir. July 19, 2007) (per curiam) (holding that\n district court “abused its discretion”); In re U.S. Dep’t of Homeland Sec.,\n 459 F.3d 565 (5th Cir. 2006) (holding that district court “erred in declaring that\n no law enforcement privilege exists”); In re Kleberg Cty., 86 F. App’x 29 (5th\n Cir. 2004) (holding that district court “impermissibly violated the County’s\n privilege not to reveal its confidential informants” and ran “afoul of controlling\n law”); In re Avantel, S.A., 343 F.3d 311 (5th Cir. 2003) (holding that district\n court erred in compelling production of allegedly privileged documents); In re\n Stone, 986 F.2d 898 (5th Cir. 1993) (per curiam) (holding that district court\n abused its discretion in ordering who must be present at settlement confer-\n ence); In re Office of Thrift Supervision, 948 F.2d 910 (5th Cir. 1991) (holding\n that district court erred as a matter of law in attempting to transfer the pro-\n ceeding, but noting that petitioner “has not made an adequate showing . . . of\n harm that cannot be undone if the order is reversed on appeal”).\nId. at 347 n.4.\n 25 Under the rule for weekends, the extension runs through Monday, March 25, 2019.\n\nSee FED. R. CIV. P. 6(a)(1)(C).\n 14", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370339/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]}	SMITH	HIGGINSON	DUNCAN	1	{"SMITH": ", Circuit", "HIGGINSON": ", Circuit", "DUNCAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593086/	Published	1	0	0	2,019	2	[ { "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...
4,593,293	UNITED STATES of America, Plaintiff-Appellee v. Saul GARCIA-SANCHEZ, Also Known as Enrique Bardales-Montano, Defendant-Appellant	United States v. Saul Garcia-Sanchez	2019-02-22	18-40088	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Stewart, King, Owen", "parties": "", "opinions": [{"author": "CARL E. STEWART, Chief Judge", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 18-40088 Fifth Circuit\n\n FILED\n February 21, 2019\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nSAUL GARCIA-SANCHEZ, also known as Enrique Bardales-Montano,\n\n Defendant - Appellant\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, Chief Judge, and KING and OWEN, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n Defendant-Appellant Saul Garcia-Sanchez appeals his 37-month\nsentence of imprisonment following his guilty plea conviction of illegal reentry\nafter deportation. We affirm.\n I. Facts & Procedural History\n Garcia-Sanchez is a citizen of El Salvador not authorized to live in the\nUnited States. He was apprehended by Customs and Border Protection agents\nin Texas in July 2017. Prior to this incident, Garcia-Sanchez had been deported\non six different occasions between 2000 and 2017 and was also convicted of\nillegal reentry as a previously removed alien in July of 2007. He also has a\nhistory of committing non-immigration related crimes in the United States.\n\f No. 18-40088\n In October of 2017, Garcia-Sanchez pled guilty to one count of illegal\nreentry following deportation. The presentence report (PSR) assessed a four-\nlevel enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(D) because Garcia-\nSanchez was convicted of “any other felony offense (other than an illegal\nreentry offense)” after he was first ordered deported or removed from the\nUnited States. The enhancement was based on a prior 2011 felony conviction\nfor second degree commercial burglary in the Superior Court of California for\nthe County of Ventura, Case No. 2011024399. After re-classification of his\nthree convictions from that case, the PSR provided that Garcia-Sanchez was\nactually convicted of two felonies: burglary (Count Two) and second degree\ncommercial burglary (Count Three). 1 He was initially sentenced to 36 months\nof probation with 365 days of custody as to both felony counts but on December\n6, 2012, the sentences were modified to concurrent terms of 16 months of\nimprisonment on each count. Then on June 12, 2013, the sentences were again\namended to consecutive terms of 16 months of imprisonment on Count Two\nand eight months of imprisonment on Count Three, for a total of 24 months of\nimprisonment.\n Here, because the aggregate total sentence imposed for the two prior\nfelonies was two years or more, the probation officer reasoned that, pursuant\nto § 2L1.2(b)(3)(B), an eight-level enhancement was warranted. Garcia-\nSanchez objected to the enhancement at sentencing. He argued that because\nthe convictions were for different counts and the sentences were ordered to run\n\n\n\n\n 1 As to Case No. 2011024399, the PSR provided that although Garcia-Sanchez was\ninitially convicted of three counts of second degree commercial burglary, Counts Two and\nFour were reclassified as misdemeanor burglaries on March 27, 2017. Then, prior to\nsentencing, the probation officer issued a supplemental addendum to the PSR explaining\nthat, upon further review, Garcia-Sanchez’s burglary conviction in Count Two constituted a\nfelony offense. Consequently, Garcia-Sanchez was convicted of two felonies in that case: (1)\nburglary (Count Two) and (2) second degree commercial burglary (Count Three).\n 2\n\f No. 18-40088\nconsecutively, the enhancement should have been based on the greatest single\nsentence, i.e., 16 months of imprisonment, rather than the aggregate sentence\nfor both felonies of 24 months. The probation officer explained that because\nthere was no intervening arrest, Garcia-Sanchez’s consecutive sentences were\nadded together and treated as a single sentence. The probation officer also\nnoted that she had contacted the Sentencing Commission and confirmed that\nthe eight-level enhancement applied. Garcia-Sanchez challenged the\napplication of § 4A1.2(a)(2)’s “single sentence rule” to offense-level\nenhancements under § 2L1.2(b)(3), arguing that the rule was limited to the\ncalculation of a defendant’s criminal history points.\n The district court overruled Garcia-Sanchez’s objection. Garcia-\nSanchez’s total offense level of 17, combined with his criminal history category\nof IV, resulted in a Guidelines imprisonment range of 37 to 46 months. The\ndistrict court sentenced him at the bottom of that range to 37 months of\nimprisonment and issued a $100 special assessment. This appeal ensued.\n II. Standard of Review\n Garcia-Sanchez objected to the § 2L1.2(b)(3)(B) enhancement at\nsentencing so “[we] review the district court’s interpretation and application of\nthe sentencing guidelines de novo and its findings of fact for clear error.” See\nUnited States v. Martinez-Lugo, 782 F.3d 198, 201 (5th Cir. 2015) (citation\nomitted).\n III. Discussion\n On appeal, Garcia-Sanchez argues that the district court erred in\nassessing the 8-level enhancement under § 2L1.2(b)(3)(B). More specifically, he\ncontends that the district court erroneously applied the § 2L1.2(b)(3)(B)\nenhancement after aggregating his prior sentences resulting from his two prior\nCalifornia felony convictions—16 months for Count Two plus 8 months for\nCount Three—rather than using the greatest single sentence imposed for his\n 3\n\f No. 18-40088\nhighest prior individual felony offense—16 months for Count Two. The\ngovernment responds that the district court properly aggregated Garcia-\nSanchez’s sentences for his two prior felony convictions under the single\nsentence rule of U.S.S.G. § 4A1.2(a)(2), thereby warranting the 8-level\nenhancement.\n At oral argument, the government raised the issue of the effect of\nAmendment 802 to § 2L1.2 of the Guidelines and Garcia-Sanchez was afforded\nan opportunity to respond at that time. U.S.S.G. § 2L1.2, Amend. 802\n(Supplement to Appendix C (November 1, 2016)). Thereafter, in response to\nthis court’s directive, the parties submitted post-oral argument supplemental\nletter briefs discussing the implications of Amendment 802 to U.S.S.G. § 2L1.2.\nConsidering the parties’ responses, the applicable case law, and the record\nevidence, we now turn to the issue on appeal—whether the single sentence rule\nof § 4A1.2(a)(2) applies to offense-level enhancements under § 2L1.2(b)(3).\n U.S.S.G. § 2L1.2(b)(3) provides:\n (Apply the Greatest) If, at any time after the defendant\n was ordered deported or ordered removed from the\n United States for the first time, the defendant engaged\n in criminal conduct resulting in—\n\n (A) a conviction for a felony offense (other than an\n illegal reentry offense) for which the sentence imposed\n was five years or more, increase by 10 levels;\n\n (B) a conviction for a felony offense (other than\n an illegal reentry offense) for which the\n sentence imposed was two years or more,\n increase by 8 levels;\n\n (C) a conviction for a felony offense (other than\n an illegal reentry offense) for which the\n sentence imposed exceeded one year and one\n month, increase by 6 levels;\n\n 4\n\f No. 18-40088\n (D) a conviction for any other felony offense (other\n than an illegal reentry offense), increase by 4 levels; or\n\n (E) three or more convictions for misdemeanors that\n are crimes of violence or drug trafficking offenses,\n increase by 2 levels.\n\nId. (emphasis added). The commentary to § 2L1.2 states that “sentence\nimposed” has the same meaning as “sentence of imprisonment” in Application\nNote 2 and subsection (b) of § 4A1.2. See U.S.S.G. § 2L1.2 cmt. n.2. In turn, §\n4A1.2(b)(1) states that the term “sentence of imprisonment” means a sentence\nof incarceration and refers to the maximum sentence imposed. Application\nNote 2 to § 4A1.2 provides that “[t]o qualify as a sentence of imprisonment, the\ndefendant must have actually served a period of imprisonment on such\nsentence.” We observe that Application Note 2 specifically cross-references §\n4A1.2(a)(3) & (b)(1)-(2) and § 4A1.1(a),(b),(c) but does not specifically cross-\nreference the single sentence rule in § 4A1.2(a)(2). The single sentence rule in\n§ 4A1.2(a)(2) provides:\n If the defendant has multiple prior sentences,\n determine whether those sentences are counted\n separately or treated as a single sentence. Prior\n sentences always are counted separately if the\n sentences were imposed for offenses that were\n separated by an intervening arrest (i.e., the defendant\n is arrested for the first offense prior to committing the\n second offense). If there is no intervening arrest, prior\n sentences are counted separately unless (A) the\n sentences resulted from offenses contained in the\n same charging instrument; or (B) the sentences were\n imposed on the same day. Treat any prior sentence\n covered by (A) or (B) as a single sentence. See also §\n 4A1.1(e).\n\n For purposes of applying § 4A1.1(a), (b), and (c),\n if prior sentences are treated as a single\n sentence, use the longest sentence of\n 5\n\f No. 18-40088\n imprisonment if concurrent sentences were\n imposed. If consecutive sentences were\n imposed, use the aggregate sentence of\n imprisonment.\n\nId. (emphasis added). The primary dispute in this appeal is whether the\ndistrict court properly applied the single sentence rule of § 4A1.2(a)(2) to\nGarcia-Sanchez’s prior California felony convictions resulting in an 8-level\nenhancement under § 2L1.2(b)(3)(B). Garcia-Sanchez argues that the district\ncourt should not have aggregated the two felony sentences and instead should\nhave used the longest of the two which would have resulted in a 6-level\nenhancement under § 2L1.2(b)(3)(C). The government argues that the district\ncourt’s use of the § 4A1.2(a)(2) single sentence rule to aggregate Garcia-\nSanchez’s prior felony sentences was correct, thereby warranting the 8-level\nenhancement under § 2L1.2(b)(3)(B). We agree for several reasons.\n There is little controlling case law in this circuit on whether the single\nsentence rule in § 4A1.2(a)(2) applies to a sentencing court’s application of\noffense-level enhancements under § 2L1.2(b)(3) so we begin by reviewing the\ncases that do speak to this issue. In United States v. Ponce-Flores, 900 F.3d\n215, 216–17 (5th Cir. 2018), this court dealt with a factual and procedural\nbackground similar to those set forth herein, except that the standard of review\nin Ponce-Flores was plain-error whereas here, we are conducting a de novo\nreview of the district court’s application of the Guidelines. See Martinez-Lugo,\n782 F.3d at 201. In Ponce-Flores’s case, his three sentences were imposed on\nthe same day and resulted from offenses listed in the same charging\ninstrument. Id. at 216. Ponce-Flores’s two-year and four-year sentences were\nto be served concurrently while his one-year and four-year sentences were to\nbe served consecutively. Id. The district judge aggregated the one-year and\nfour-year consecutive sentences under § 4A1.2(a)(2)’s single sentence rule and\n\n 6\n\f No. 18-40088\nassessed a 10-level enhancement under § 2L1.2(b)(2)(A). Id. at 217. The issue\nin Ponce-Flores was whether the district court plainly erred when it applied\nthe enhancement after aggregating Ponce-Flores’s prior felony sentences\nunder § 4A1.2(a)(2)’s single sentence rule. Id. at 216. We concluded that the\ndistrict court did not plainly err, based on “the absence of binding precedent,\nthe lack of an uncomplicated resolution based on the language of the\nGuidelines, and the persuasive authority from the Fourth Circuit [in Martinez-\nVarela, 531 F.3d 298 (4th Cir. 2008)]. Id. at 219.\n As we did in Ponce-Flores, we again find the Fourth Circuit’s opinion in\nMartinez-Varela instructive here. In that case, the sentencing court applied a\n16-level enhancement under a prior version of the Guidelines after aggregating\nthe defendant’s three prior drug trafficking sentences under the single\nsentence rule. See 531 F.3d at 298–99; U.S.S.G. §§ 4A1.2(a)(2); 2L1.2(b)(1).\nReviewing for abuse of discretion, id. at 299, the Fourth Circuit affirmed,\nexplaining as follows:\n While the cross-referenced provisions do not\n address aggregation, § 4A1.1’s Commentary\n states that “[t]he definitions and instructions in\n § 4A1.2 govern the computation of the criminal\n history points. Therefore, §§ 4A1.1 and 4A1.2\n must be read together.” This Commentary provides\n us with strong evidence that these two provisions\n should be read together in determining [the\n defendant’s] criminal history points. Thus, based on\n the instructions from the guidelines themselves,\n guidance from the relevant provisions in question, and\n the lack of any persuasive or direct precedent to the\n contrary, we conclude that the district court properly\n aggregated [the defendant’s] sentences.\n\nId. at 301–02 (emphasis added). The Fourth Circuit’s holding appears to be\nsupported by § 2L1.2 Application Note 2’s cross-reference to § 4A1.1. To clarify,\nif §§ 4A1.1 and 4A1.2 must be read together, and § 2L1.2 cross-references §\n 7\n\f No. 18-40088\n4A1.1, then 4A1.2 is implicitly included in that cross-reference. 2 The result\nfrom this inclusion is that § 4A1.2(a)(2)’s single sentence rule is applicable to\noffense-level enhancements analyzed under § 2L1.2(b)(3). We find the Fourth\nCircuit’s reasoning in Martinez-Varela persuasive. We acknowledge that\nChapter Four of the Guidelines addresses criminal history rules whereas here,\nwe are reviewing offense-level enhancements under § 2L1.2. We are not\npersuaded, however, that the Chapter Four criminal history rules should not\nguide the calculation of offense-level enhancements under § 2L1.2(b)(3).\n Amendment 802 to U.S.S.G. § 2L1.2 becomes enlightening at this point.\nU.S.S.G. § 2L1.2, Amend. 802 (Supplement to Appendix C (November 1, 2016)).\nAmendment 802’s section titled “Reason for Amendment,” subsection\n“Accounting for Other Prior Convictions,” states in part that:\n The Commission concluded that the length of sentence\n imposed by a sentencing court is a strong indicator of\n the court’s assessment of the seriousness of the\n predicate offense at the time, and this approach is\n consistent with how criminal history is generally\n scored in the Chapter Four of the Guidelines Manual.\n\n ...\n\n The Commission determined that a sentence-imposed\n approach is consistent with the Chapter Four criminal\n history rules, easily applied, and appropriately\n calibrated to account for the seriousness of prior\n offenses.\n\nId. at 157–58. Later, the Amendment contains a section titled “Excluding Stale\nConvictions” which states that:\n For all three specific offense characteristics, the\n amendment considers prior convictions only if the\n\n\n 2 This conclusion is further underscored by the fact that Application Note 2 of § 2L1.2\nalso cross-references parts of § 4A1.2.\n 8\n\f No. 18-40088\n convictions receive criminal history points under the\n rules in Chapter Four. Counting only convictions that\n receive criminal history points addresses concerns\n that the existing guideline sometimes has provided for\n an unduly severe enhancement based on a single\n offense so old it did not receive criminal history points.\n The Commission’s research has found that a\n defendant’s criminal history score is a strong\n indicator of recidivism risk, and it is therefore\n appropriate to employ the criminal history rules\n in this context. See U.S. Sent. Comm’n, Recidivism\n Among Federal Offenders: A Comprehensive\n Overview (2016). The limitation to offenses\n receiving criminal history points also promotes\n ease of application and uniformity throughout\n the guidelines. See 28 U.S.C. § 994(c)(2) (directing\n the Commission to establish categories of offenses\n based on appropriate mitigating and aggravating\n factors); cf. USSG §2K2.1, comment. (n.10) (imposing\n enhancements based on a defendant’s predicate\n convictions only if they received criminal history\n points).\n\nId. at 159 (emphasis added). 3 The language in these sections supports the\nFourth Circuit’s determination that Chapter 4’s criminal history rules are\nproperly used to guide the calculation of offense-level enhancements under §\n2L1.2(b)(3). This conclusion is further bolstered by the Guidelines’ own\nacknowledgment that they are to “be applied as a ‘cohesive and integrated\nwhole’ rather than in a piecemeal fashion.” U.S.S.G. § 1B.11, background (U.S.\nSENTENCING COMM’N 2004) (citing United States v. Stephenson, 921 F.2d 438\n(2d Cir. 1990)).\n For these reasons, we hold that the district court did not err in applying\nthe single sentence rule of § 4A1.2(a)(2) to aggregate Garcia-Sanchez’s prior\n\n\n\n 3 Amendment 802 also features a section titled “Application of the ‘Single Sentence\nRule.” Unfortunately, it is not instructive as to the issue on appeal here. Id. at 159.\n 9\n\f No. 18-40088\nfelony convictions. Consequently, the district court’s assessment of an 8-level\nenhancement under § 2L1.2(b)(3)(B) was warranted.\n IV. Conclusion\n Garcia-Sanchez’s sentence is affirmed.\n\n\n\n\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370546/", "author_raw": "CARL E. STEWART, Chief Judge"}]}	STEWART	KING	OWEN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593293/	Published	1	0	0	2,019	2	[ { "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...
4,593,296	UNITED STATES of America, Plaintiff - Appellee, v. John Martin CABELLO, Also Known as Chinaman, Defendant - Appellant.	United States v. John Cabello	2019-02-22	18-10001	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-10001 Document: 00514847546 Page: 1 Date Filed: 02/22/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-10001\n Fifth Circuit\n\n FILED\n February 22, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff – Appellee,\n\nv.\n\nJOHN MARTIN CABELLO, also known as Chinaman,\n\n Defendant – Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n No. 3:16-CR-415-2\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nPER CURIAM:\n John Martin Cabello appeals the imposition of a “standard” condition of\nsupervised release that requires him to “permit a probation officer to visit\n[him] at any time at home or elsewhere and . . . permit confiscation of any\ncontraband observed in plain view by the probation officer.” In his view, this\nstandard visitation condition is substantively unreasonable and at least\nrequires the district court to explain the reasons for its imposition.\n Because Cabello did not object in the district court, we review for plain\nerror. United States v. Ponce-Flores, 900 F.3d 215, 217 (5th Cir. 2018). To\ndemonstrate plain error, Cabello must show that: “(1) there was an error; (2)\n\n Case: 18-10001 Document: 00514847546 Page: 2 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\nthe error was clear or obvious; (3) the error affected [his] substantial rights;\nand (4) the error seriously affects the fairness, integrity, or public reputation\nof judicial proceedings such that we should exercise our discretion to reverse.”\nUnited States v. Oti, 872 F.3d 678, 690 (5th Cir. 2017).\n We have “not addressed the constitutionality or substantive\nreasonableness of the challenged standard [visitation] condition or whether a\ndistrict court must explain its reasons for imposing a standard condition of\nsupervised release.” United States v. Ferrari, 743 F. App’x 560, 561 (5th Cir.\n2018). As Cabello concedes, “[w]e ordinarily do not find plain error when we\n‘have not previously addressed’ an issue.” United States v. Evans, 587 F.3d\n667, 671 (5th Cir. 2009) (quoting United States v. Lomas, 304 F. App’x 300, 301\n(5th Cir. 2008)). Because Cabello failed to show plain error, we AFFIRM the\nimposition of the visitation condition as part of Cabello’s supervised release.\n\n\n\n\n 2\n\n Case: 18-10001 Document: 00514847546 Page: 3 Date Filed: 02/22/2019\n\n\n\n No. 18-10001", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370549/", "author_raw": "PER CURIAM"}, {"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring", "type": "concurrence", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:\n\n I concur fully in the affirmance of the district court’s sentence. With great\nrespect to the best intentions of my colleague, faithful adherence to the statute\ndoes not require an explanation of each standard condition from the lips of\ndistrict judges and insisting on such a requirement can produce a robotic\ndelivery and perverse consequences in busy districts. Ticking off a laundry list\nof explanations for thirteen additional standard conditions—most of which are\nself-evident and administrative—constrains the district judge’s ability to\ncommunicate directly with a defendant during this critical juncture of the\ncriminal proceeding. District judges are in the best position to tailor the\nnecessary process to ensure that defendants fully understand the constraints\nimposed. Defendants are provided qualified counsel for sentencing—often\nFederal Public Defenders—counsel who are keenly aware of these conditions\nand can give assurances in open court of having explained the conditions to\ntheir clients and can lodge any objections counsel may have. As the plain\nlanguage of 18 U.S.C. § 3583(d) does not require explanation of each standard\ncondition by the district judge, declining to do so is not unfaithful adherence to\nthis statute.\n\n\n\n\n 3\n\n Case: 18-10001 Document: 00514847546 Page: 4 Date Filed: 02/22/2019\n\n\n\n No. 18-10001", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370549/", "author_raw": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring"}, {"author": "JENNIFER WALKER ELROD, Circuit Judge, concurring", "type": "concurrence", "text": "JENNIFER WALKER ELROD, Circuit Judge, concurring:\n\n I concur in the panel opinion as it correctly holds that Cabello cannot\nprevail under the plain-error standard of review. However, I write separately\nto emphasize that it may be more faithful to the statutory text for sentencing\ncourts to explain the reasons for imposing “standard” conditions of supervised\nrelease. Although the Sentencing Guidelines label certain conditions as\nstandard conditions, they are nonetheless discretionary—not mandatory—\nconditions under 18 U.S.C. § 3583(d) that typically require an explanation.\n I.\n “In the Sentencing Reform Act of 1984, Congress eliminated most forms\nof parole in favor of supervised release, a form of [post-confinement] monitoring\noverseen by the sentencing court . . . .” Johnson v. United States, 529 U.S. 694,\n696–97 (2000) (citation omitted). 18 U.S.C. § 3583 governs a sentencing court’s\ndiscretion in deciding whether to impose supervised release and which\nconditions to impose. 18 U.S.C. § 3583. Section 3583(d) classifies supervised\nrelease conditions as either “mandatory” or “discretionary.” Id. § 3583(d). As\nmandatory conditions, a sentencing court “shall” require that the defendant\nnot commit a crime, make restitution, not unlawfully possess or use a\ncontrolled substance, and submit to drug tests. Id. In addition, § 3583(d) also\nstates that:\n The court may order, as a further condition of supervised release,\n to the extent that such condition –\n (1) is reasonably related to the factors set forth in\n [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);\n (2) involves no greater deprivation of liberty than is\n reasonably necessary for the purposes set forth in\n [18 U.S.C. §] 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and\n (3) is consistent with any pertinent policy statements issued\n by the Sentencing Commission pursuant to 28 U.S.C. 994(a);\n\n\n\n 4\n\n Case: 18-10001 Document: 00514847546 Page: 5 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\n any condition set forth as a discretionary condition of probation in\n [18 U.S.C. § 3563(b)] and any other condition it considers to be\n appropriate . . . .\n\nId. Section 3563(b), in turn, lists 23 conditions that the sentencing court may\nimpose as discretionary conditions. 18 U.S.C. § 3563(b).\n The divide between mandatory and discretionary conditions under\n§ 3583(d) is clear. Mandatory conditions are those specifically listed in\n§ 3583(d) that a sentencing court “shall” impose with no room for discretion.\nId. § 3583(d). Discretionary conditions include everything else: those\nconditions specifically set forth in § 3563(b), as well as any other conditions\nthat a sentencing court considers to be appropriate, that the court “may”\nimpose, only “to the extent that such condition[s]” can satisfy the three\nprerequisites. Id.\n Although § 3583(d) divides supervised release conditions into only two\ncategories, courts are more familiar with four different types of conditions:\nmandatory, discretionary, standard, and special. This four-part categorization\nis nowhere to be found in the statutory text of § 3583(d). This instead is largely\na product of the Sentencing Guidelines. See U.S.S.G. § 5D1.3; see also United\nStates v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014) (“[S]tandard conditions are\nfound in the sentencing guidelines rather than in the Sentencing Reform Act”).\nThe Guidelines recommend 13 standard conditions, many of which are\nidentical to or expand on some of the statutory discretionary conditions.\nCompare 18 U.S.C. § 3563(b)(16) (“[The defendant shall] permit a probation\nofficer to visit him at his home or elsewhere as specified by the court”), with\nU.S.S.G. § 5D1.3(c)(6) (“The defendant shall allow the probation officer to visit\nthe defendant at any time at his or her home or elsewhere . . . ”).\n The Administrative Office of the United States Courts (AO), which has\nprovided guidance for sentencing courts, has similarly observed that\n\n 5\n\n Case: 18-10001 Document: 00514847546 Page: 6 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\n“[d]iscretionary conditions of supervision are differentiated into ‘standard’ and\n‘special’ conditions.” 1 To further aid sentencing courts, the AO developed and\ndistributed AO Form 245B, “Judgment in a Criminal Case,” which incorporates\nall 13 standard conditions recommended by the Guidelines. 2 In turn, many\ndistrict courts—including every district court in Texas—have adopted or\nincorporated the standard conditions listed in AO Form 245B as their own\nstandard conditions. 3\n Notwithstanding the fact that the Sentencing Commission and the AO\nhave categorized these conditions as standard conditions, these conditions are\ndiscretionary conditions under § 3583(d), the statute given to us by Congress.\n II.\n All discretionary conditions under § 3583(d)—regardless of whether they\nare standard or special conditions under the Guidelines—typically require an\nexplanation by the sentencing court. Congress has required sentencing courts\nto “state in open court the reasons for its imposition of the particular sentence.”\n18 U.S.C. § 3553(c); see also United States v. Alvarez, 880 F.3d 236, 240 (5th\nCir. 2018); cf. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th\nCir. 2009) (“The district court must adequately explain the sentence ‘to allow\nfor meaningful appellate review and to promote the perception of fair\n\n\n 1 Overview of Probation and Supervised Release Conditions, Administrative Office of\nthe U.S. Courts 8 (Nov. 2016), https://www.uscourts.gov/sites/default/files/\noverview_of_probation_and_supervised_release_conditions_0.pdf (“Standard conditions are\napplicable to all defendants. Special conditions provide for additional . . . monitoring tools as\nnecessary to achieve the purposes of sentencing in the individual case.”).\n 2AO Form 245B can be accessed through the following link:\nhttps://www.uscourts.gov/sites/default/files/ao245b.pdf.\n 3E.D. Tex. General Order 17-3, General Order Adopting the Standard Conditions of\n\nSupervision (Jan. 27, 2017), http://www.txed.uscourts.gov/sites/default/files/goFiles/17-\n03_0.pdf; N.D. Tex. Probation and Pretrial Services, Conditions of Supervision,\nhttps://www.txnp.uscourts.gov/content/conditions-supervision (last visited Jan. 29, 2019);\nS.D. Tex. General Order No. 2017-01 (Jan. 6, 2017), https://www.txs.uscourts.gov/\ndistrict/genord; W.D. Tex. Standing Order, Conditions of Probation and Supervised Release\n(Nov. 28, 2016), https://www.txwd.uscourts.gov/judges-information/standing-orders/.\n 6\n\n Case: 18-10001 Document: 00514847546 Page: 7 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\nsentencing.’ ” (quoting Gall v. United States, 552 U.S. 38, 50 (2007))). Applying\n§ 3553(c) and § 3583(d) to the Guidelines’ special conditions, a subset of\nstatutory discretionary conditions, “courts of appeals”—including this court—\n“have consistently required district courts to set forth factual findings to justify\nspecial . . . conditions.” United States v. Salazar, 743 F.3d 445, 451 (5th Cir.\n2014) (quoting United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).\n“Even without factual finding by the district court, we may still affirm a special\ncondition if we can infer the district court’s reasoning after an examination of\nthe record.” Alvarez, 880 F.3d at 240. However, if neither the district court’s\nstated reasoning nor the record supports the imposition of the special\ncondition, then “we must vacate and remand for resentencing.” United States\nv. Caravayo, 809 F.3d 269, 276 (5th Cir. 2015).\n We have not yet adopted a similar understanding of § 3553(c) and\n§ 3583(d) for the Guidelines’ standard conditions, another subset of statutory\ndiscretionary conditions. Although we have observed that standard conditions\nfound in written judgment need not be orally pronounced because they are\n“[i]mplicit in the very nature of supervised release,” United States v. Torres-\nAguilar, 352 F.3d 934, 936 (5th Cir. 2003) (alteration in original) (quoting\nUnited States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)), we have not directly\n“addressed . . . whether a district court must explain its reasons for imposing\na standard condition of supervised release,” United States v. Ferrari, 743 F.\nApp’x 560, 561 (5th Cir. 2018). Our sister circuits that have examined the issue\nhave expressed differing views. Some of our sister circuits have treated\nstandard conditions to be implicit in supervised release like mandatory\nconditions—thus not requiring any explanation—because the Guidelines have\nrecommended those conditions as standard. See, e.g., United States v. Munoz,\n812 F.3d 809, 823 (10th Cir. 2016); United States v. Tulloch, 380 F.3d 8, 13 (1st\n\n\n 7\n\n Case: 18-10001 Document: 00514847546 Page: 8 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\nCir. 2004) (“The Guidelines flatly recommend the standard conditions, without\nqualification or prerequisite.”).\n This approach seems fraught with potential problems. At threshold, the\nGuidelines do not state that a sentencing court should impose the\nrecommended standard conditions without explaining the reasons for imposing\nthem. The Guidelines simply recommend them as options. See U.S.S.G.\n§ 5D1.3(c). And regardless of what the Guidelines say, the Guidelines cannot\nnegate § 3553(c)’s statutory requirement that a court explain the reasons for\nimposing a particular sentence. Moreover, that the Guidelines have labeled\ncertain conditions as standard conditions does not change the fact that\nCongress has classified those conditions as discretionary conditions under\n§ 3583(d). And if they are discretionary conditions under § 3583(d), then they\nshould be justified under the factors laid out in § 3583(d). In sum, failure to\nprovide reasons for standard conditions runs the risk of blurring the clear\ndivide between mandatory and discretionary conditions in § 3583(d) by\nconflating them.\n In my view, the Seventh Circuit’s approach is more faithful to § 3553(c)\nand § 3583(d). The Seventh Circuit requires its district courts to explain why\nthey are imposing standard conditions. United States v. Kappes, 782 F.3d 828,\n846 (7th Cir. 2015). As the Seventh Circuit observed, “a condition’s label in\nthe guidelines is ultimately irrelevant. All discretionary conditions, whether\nstandard, special or of the judge’s own invention, require findings.” Id.\n One may contend that the more textually faithful approach may create\nmore work for sentencing courts. However, I do not think that requiring\nsentencing courts to explain the imposition of standard conditions would be\noverly cumbersome. Like in other sentencing contexts, a sentencing court\nwould not necessarily need to make a lengthy explanation to justify imposing\nstandard conditions. See United States v. Sanchez, 667 F.3d 555, 567 (5th Cir.\n 8\n\n Case: 18-10001 Document: 00514847546 Page: 9 Date Filed: 02/22/2019\n\n\n\n No. 18-10001\n2012) (“[W]hether a lengthy explanation of the sentencing judge’s reasoning is\nnecessary is a case-specific inquiry.”). The explanations can be brief as long as\nthey are legally sufficient. See id.; see also Rita v. United States, 551 U.S. 338,\n358 (2007). Also, standard conditions only need to be reasonable under\n§ 3583(d)—a relatively low threshold—which we review under a highly\ndeferential abuse-of-discretion standard. Salazar, 743 F.3d at 451.\nFurthermore, we may determine that a sentencing court’s failure to make\nfindings was harmless if the record adequately supports such findings. Id.\n In any event, I encourage courts to give reasons at sentencing for\ndiscretionary conditions to be faithful to the text of § 3553(c) and § 3583(d).\nAlthough a sentencing court’s interest in streamlining its docket is an\nimportant one, we have previously rejected a sentencing court’s effort to\nstreamline the imposition of the Guidelines’ special conditions “based on\nboilerplate conditions imposed as a matter of course.” Caravayo, 809 F.3d at\n276. I see no express permission under § 3553(c) and § 3583(d) to similarly\nstreamline the imposition of the Guidelines’ standard conditions. Accordingly,\nthe more textually faithful practice for sentencing courts under § 3553(c) and\n§ 3583(d) is to explain the reasons for imposing all statutory discretionary\nconditions—both standard and special conditions under the Guidelines.\n\n\n\n\n 9", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370549/", "author_raw": "JENNIFER WALKER ELROD, Circuit Judge, concurring"}]}	HIGGINBOTHAM	ELROD	HO	1	{"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"}	3	0	2	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593296/	Published	1	0	0	2,019	2	[ { "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...
4,593,299	In the MATTER OF: LIVING BENEFITS ASSET MANAGEMENT, L.L.C., Debtor Living Benefits Asset Management, L.L.C., Appellant v. Kestrel Aircraft Company, Inc Orporated, Appellee	Living Benefits Asset Mgmt., L.L.C. v. Kestrel Aircraft Co. (In Re Living Benefits Asset Mgmt., L.L.C.)	2019-02-22	18-10510	U.S. Court of Appeals for the Fifth Circuit	{"judges": "King, Higginson, Costa", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "Case: 18-10510 Document: 00514847021 Page: 1 Date Filed: 02/22/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 22, 2019\n No. 18-10510\n Lyle W. Cayce\n Clerk\nIn the Matter of: LIVING BENEFITS ASSET MANAGEMENT, L.L.C.,\n\n Debtor\n\n------------------------------------------------------------------------------------------\n\n\nLIVING BENEFITS ASSET MANAGEMENT, L.L.C.,\n\n Appellant\n\nv.\n\nKESTREL AIRCRAFT COMPANY, INCORPORATED,\n\n Appellee\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nKING, Circuit Judge:\n Debtor–plaintiff Living Benefits Asset Management, L.L.C., brought\nthis adversary proceeding against Kestrel Aircraft Co. for breach of contract.\nLiving Benefits alleges that Kestrel failed to pay almost $900,000 owed for\nservices that Living Benefits provided Kestrel to help it collateralize a\ncorporate debt offering with life settlements. Following a bench trial, the\nbankruptcy court held that the contract was voidable because Living Benefits\n\f Case: 18-10510 Document: 00514847021 Page: 2 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nfailed to register as an investment adviser in violation of the Investment\nAdvisers Act of 1940. The district court affirmed the bankruptcy court’s\njudgment. Living Benefits now appeals the district court’s judgment. For the\nreasons stated herein, we AFFIRM.\n I.\n Much of this dispute centers on the treatment under federal securities\nlaws of so-called life settlements, which are financial instruments involving\nthe sale of insureds’ rights under life-insurance policies to third-party\ninvestors. In a typical life settlement, a buyer pays the insured more than the\npolicy’s surrender value (i.e., the amount of money the insurer would pay the\ninsured to cancel the policy) but less than the death benefit. Thus, in selling a\nlife settlement, the insured transfers some of the policy’s value along with the\nrisk that the value will diminish if the insured lives beyond his or her life\nexpectancy. To put it bluntly, a life settlement is a bet on the length of the\ninsured’s life.\n Although life settlements are fairly simple instruments at their core, a\ncomplex market has developed around them over the past three decades.\nGenerally, the sale of a life settlement involves multiple intermediaries. A\nbroker identifies and works on behalf of an insured to solicit offers or negotiate\na sale. A provider then locates one or more investors, who buy either\nfractionalized or whole interests in the life settlement under terms negotiated\nbetween the provider and broker. The provider will typically arrange for a\nthird-party agent to pay the policy’s premiums out of escrow. In the event the\ninsured survives longer than expected, the escrow account could deplete, and\nthe investor might become responsible to pay the premiums to prevent the\npolicy from lapsing.\n The return on a life settlement diminishes with each premium payment;\nthus, the longer the insured lives, the lower the return on the investment. The\n 2\n\f Case: 18-10510 Document: 00514847021 Page: 3 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nactuarial estimate of the insured’s lifespan therefore dictates the purchase\nvalue of a life settlement. And the return on investment depends on the\naccuracy of that estimate. 1 Accordingly, whether an investment in a life\nsettlement is successful depends primarily on the provider’s assessment—\nusually through a third-party underwriter—of the insured’s life expectancy\nand the price the provider negotiates based on that assessment. See Joy D.\nKosiewicz, Death for Sale: A Call to Regulate the Viatical Settlement Industry,\n48 Case Western Res. L. Rev. 701, 704 (1998).\n The specifics of this case involve an unfulfilled plan by defendant Kestrel\nAircraft Co. (“Kestrel”) to purchase life settlements to use as collateral in a\ncorporate debt offering. Kestrel hoped to raise $135 million to develop a\nprototype of an aircraft it sought to manufacture and to purchase most of the\nassets of a competing aircraft manufacturer. As part of its financing scheme,\nKestrel planned to offer investors the option of taking a security interest in life\nsettlements that it would purchase. Kestrel retained debtor–plaintiff Living\nBenefits Asset Management, L.L.C., (“Living Benefits”) to help develop and\nultimately execute this proposal.\n Living Benefits and Kestrel entered into an engagement letter, which set\nout the terms of Living Benefits’ services. Living Benefits promised to provide\nKestrel with “consulting and advisory services” in connection with Kestrel’s\nfinancing plan. These services included helping Kestrel structure its financing\nplan, preparing a memorandum for investors, advising Kestrel “in structuring\nof the evaluation, acquisition and ownership of the Life Settlements,” and\n“selecting and retaining strategic partners for [Kestrel], including a suitable\n\n\n\n 1 The other primary risk is the insurer’s refusal to pay the benefit because of the\ninsured’s failure to pay a premium, the insured’s fraud, a no-assignment clause, or some other\nfactor that could void the policy. This risk can be all but eliminated through proper\nadministration and due diligence.\n 3\n\f Case: 18-10510 Document: 00514847021 Page: 4 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\ncustodian for the Life Settlements.” Kestrel agreed to pay Living Benefits\n$950,000 for these services.\n Kestrel did not commit itself in the engagement letter to purchasing any\nlife settlements. But it agreed that to the extent it did acquire any life\nsettlements within the two following years, it would “engage[] [Living Benefits]\nto originate such Life Settlements” pursuant to a separate agreement attached\nas an exhibit to the engagement letter.\n The attached agreement, which the parties refer to as the “origination\nagreement,” specified Living Benefits’ contemplated role in assisting Kestrel\nto acquire life settlements. Living Benefits would first identify life settlements\navailable for purchase and relay certain information to Kestrel about the\ninsured and the policy, including the value of the death benefit and an estimate\nof the insured’s life expectancy. Kestrel would then let Living Benefits know\nwhether it wanted to purchase the identified life settlement and the price it\nwas willing to pay. Once Kestrel decided to purchase a specific life settlement,\nLiving Benefits would, “to the extent requested by [Kestrel],” assist Kestrel in\nevaluating the terms of the offer and communicating with the seller. Upon\nreaching a sale agreement, Living Benefits would then conduct due diligence\nto ensure, among other things, that the policy was valid and transferable, and\nthe seller was the policy’s lawful owner. In exchange for the services set out in\nthe origination agreement, Kestrel would pay Living Benefits an initial\n$50,000 engagement fee and a commission equal to 1.25% of the aggregate\ndeath benefits of the purchased policies.\n Living Benefits performed its obligations under the engagement letter.\nBut Kestrel’s fundraising efforts were ultimately unsuccessful; thus, Kestrel\ndid not purchase any life settlements, and the parties never entered into the\norigination agreement. Kestrel subsequently failed to pay almost $900,000\nowed to Living Benefits under the engagement letter.\n 4\n\f Case: 18-10510 Document: 00514847021 Page: 5 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\n Living Benefits subsequently filed for Chapter 11 bankruptcy. It\ninitiated the present suit against Kestrel as an adversary proceeding in the\nbankruptcy court to collect the money owed under the engagement letter.\nFollowing a bench trial, the bankruptcy court found that Kestrel breached the\nengagement letter by failing to pay the agreed-upon fee. But it also found that\nLiving Benefits was required to register as an investment adviser under the\nInvestment Advisers Act of 1940 (“IAA”) yet failed to do so. Accordingly, it\nconcluded that the engagement letter was voidable and Living Benefits was\nnot entitled to collect any of the funds due under the letter. Living Benefits\nappealed to the district court. It argued that the bankruptcy court erred in\nconcluding that it was an investment adviser. The district court affirmed.\nLiving Benefits now appeals to this court. 2\n II.\n In reviewing an appeal from a district court’s review of a bankruptcy\ncourt’s ruling, “this court applies ‘the same standard of review to the\nbankruptcy court decision that the district court applied.’” Galaz v. Galaz (In\nre Galaz), 765 F.3d 426, 429 (5th Cir. 2014) (quoting Frazin v. Haynes & Boone,\nL.L.P. (In re Frazin), 723 F.3d 313, 317 (5th Cir. 2013)). “Thus, this court\nreviews factual findings for clear error and legal conclusions de novo.” Id.\n The IAA prohibits unregistered investment advisers from using the\ninstrumentalities of interstate commerce “in connection with” their businesses.\n15 U.S.C. § 80b-3(a). A contract made in violation of the IAA is void as to the\nunregistered adviser. Id. § 80b-15(b); see also Transamerica Mortg. Advisors,\nInc. (TAMA) v. Lewis, 444 U.S. 11, 16 (1979) (“At the very least Congress must\nhave assumed that § [80b-15] could be raised defensively in private litigation\n\n\n 2 Kestrel failed to file a response brief or otherwise enter an appearance in this appeal.\nIt participated fully in this litigation in the bankruptcy court and district court, however. We\nthus look to its filings below to aid our analysis.\n 5\n\f Case: 18-10510 Document: 00514847021 Page: 6 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nto preclude the enforcement of an investment advisers [sic] contract.”). Living\nBenefits does not dispute that to the extent the bankruptcy court correctly\nconcluded Living Benefits was an investment adviser, it cannot recover the\nbalance owed on the engagement letter. The sole question in this appeal is thus\nwhether Living Benefits was an investment adviser within the meaning of the\nIAA.\n Subject to certain exceptions not relevant here, the IAA defines\ninvestment adviser as:\n any person who, for compensation, engages in the business of\n advising others, either directly or through publications or writings,\n as to the value of securities or as to the advisability of investing in,\n purchasing, or selling securities, or who, for compensation and as\n part of a regular business, issues or promulgates analyses or\n reports concerning securities.\n\n15 U.S.C. § 80b-2(a)(11).\n Living Benefits argues that it is not an investment adviser because (1) it\nis not in the business of advising others “as to the value of . . . or as to the\nadvisability of investing in, purchasing, or selling” life settlements and, in any\nevent, (2) life settlements are not securities. We address each argument in\nturn.\n A.\n In arguing that it is not in the business of advising others about the value\nof life settlements, Living Benefits focuses on the fact that it never entered into\nthe origination agreement with Kestrel. It asserts that the services it rendered\nunder the engagement letter did not constitute advice as to the value of life\nsettlements or the advisability of transacting in life settlements. Living\nBenefits concedes that it advised Kestrel about transacting in life settlements\ngenerally, but it insists that it did not render any advice about the value or\n\n\n\n 6\n\f Case: 18-10510 Document: 00514847021 Page: 7 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nadvisability of investing in specific life settlements. And it says the IAA only\nextends to those rendering advice about specific securities.\n We disagree. Living Benefits cites to no caselaw holding that the IAA\nrequires advice about a specific security before a person or entity must register\nas an investment adviser. Rather, it rests its entire argument on Lowe v. SEC,\n472 U.S. 181 (1985). In that case, the Supreme Court held that the publisher\nof a newsletter about securities, though meeting the prima facie definition of\nan investment adviser, fell within an exception for publishers. Id. at 203-04,\n211. In reaching this conclusion, the Court extensively surveyed the IAA’s\nlegislative history to ascertain the species of advisers and advice Congress\nsought to regulate. See id. at 190-201.\n Living Benefits insists that this same legislative history shows Congress\nintended to exclude the generalized advice it provided Kestrel under the\nengagement letter. But Lowe looked to this legislative history to interpret a\nspecific exception to the IAA. Living Benefits does not claim the benefit of any\nsuch exception. See id. at 208-09. And even if we were to overlook this\ndistinction, Living Benefits comes away from Lowe with the wrong lesson. In\nLowe, the Court concluded that Congress did not mean to cover generalized\nadvice not “attuned to any specific portfolio or to any client’s particular needs.”\nId. at 208 (emphasis added). Living Benefits might not have attuned its advice\nto any specific life-settlement portfolio, but it certainly attuned its advice to\nKestrel’s particular needs.\n Living Benefits’ argument directly contradicts the SEC’s position on this\nmatter. The SEC has interpreted the IAA to cover “persons who advise clients\nconcerning the relative advantages and disadvantages of investing in\nsecurities in general as compared to other investments.” Applicability of the\nInvestment Advisers Act, 52 Fed. Reg. 38400, 38402 (Oct. 16, 1987). And it has\nsaid that “a person who, in the course of developing a financial program for a\n 7\n\f Case: 18-10510 Document: 00514847021 Page: 8 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nclient, advises a client as to the desirability of investing in, purchasing or\nselling securities, as opposed to, or in relation to, any non-securities\ninvestment or financial vehicle would . . . be ‘advising’ others within the\nmeaning of” the IAA. Id. Although the SEC’s interpretation does not bind us,\nwe defer to it here in the absence of contrary authority. See SEC v. Cont’l\nCommodities Corp., 497 F.2d 516, 525 (5th Cir. 1974) (holding that an “SEC\nrelease is entitled to great weight” although “it is not dispositive”).\n There is a similar dearth of authority to support Living Benefits’\nassertion that Kestrel’s failure to act on its advice somehow carries it beyond\nthe IAA’s purview. Living Benefits cites a series of out-of-circuit cases in which\ncourts found IAA violations in situations in which the clients acted upon the\nadvisers’ suggestions. But none of these cases supports the negative\nimplication that absent such action, there would have been no IAA violation.\nSee United States v. Miller, 833 F.3d 274, 282 (3d Cir. 2016); SEC v. Wash. Inv.\nNetwork, 475 F.3d 392, 399-400 (D.C. Cir. 2007); United States v. Elliott, 62\nF.3d 1304, 1311 (11th Cir. 1995); Abrahamson v. Fleschner, 568 F.2d 862, 870-\n71 (2d Cir. 1977).\n Living Benefits’ argument runs counter to the plain language of the IAA,\nwhich prohibits unregistered agents from “advising others . . . as to the\nadvisability of investing” in securities. § 80b-2(a)(11) (emphasis added). This\nlanguage encompasses both positive and negative advice. See Advisable,\nWebster’s New International Dictionary of the English Language (2d ed. 1934)\n(“Proper to be advised or done; expedient; prudent.”). Reading it otherwise\nwould rest the IAA’s application on the fortuity of the client’s actions and would\ncategorically exclude those who advise against trading in securities, which\nwould make little policy sense.\n Living Benefits also argues that regardless of whatever advice it might\nhave provided Kestrel, it falls outside the IAA’s gamut because such advice\n 8\n\f Case: 18-10510 Document: 00514847021 Page: 9 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nwas merely incidental to its business. The bankruptcy court found otherwise,\nconcluding that “the evidence established that [Living Benefits] was in the\nbusiness . . . of advising others, including Kestrel, as to the advisability of\ninvesting in life settlements.” This finding is not clearly erroneous. The\nengagement letter makes clear that Kestrel retained Living Benefits for the\nspecific purpose of receiving advice about investing in life settlements. Indeed,\nit lists within the scope of Living Benefits’ services, “advising [Kestrel] in\nstructuring of the . . . acquisition . . . of the Life Settlements.”\n These findings distinguish this case from Zinn v. Parrish, 644 F.2d 360\n(7th Cir. 1981). In that case, the Seventh Circuit held that a sports agent who\nprovided a client with investment advice was not in the business of being an\ninvestment adviser. Id. at 364. The agent in that case occasionally gave his\nclient investment advice, but the court held that “isolated transactions with a\nclient as an incident to the main purpose of his management contract to\nnegotiate football contracts do not constitute engaging in the business of\nadvising others on investment securities.” Id. Here, Living Benefits did not\ngive Kestrel advice about life settlements “as an incident to the main purpose”\nof the engagement letter—such advice was the main purpose of the\nengagement letter.\n Accordingly, we conclude that Living Benefits contracted with Kestrel to\nadvise it about life settlements within the meaning of the IAA.\n B.\n We now address Living Benefits’ second proposition: that it did not need\nto register as an investment adviser because the life settlements at issue were\nnot securities. The IAA defines security as:\n any note, stock, treasury stock, security future, bond, debenture,\n evidence of indebtedness, certificate of interest or participation in\n any profit-sharing agreement, collateral-trust certificate,\n preorganization certificate or subscription, transferable share,\n 9\n\f Case: 18-10510 Document: 00514847021 Page: 10 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\n investment contract, voting-trust certificate, certificate of deposit\n for a security, fractional undivided interest in oil, gas, or other\n mineral rights, any put, call, straddle, option, or privilege on any\n security (including a certificate of deposit) or on any group or index\n of securities (including any interest therein or based on the value\n thereof), or any put, call, straddle, option, or privilege entered into\n on a national securities exchange relating to foreign currency, or,\n in general, any interest or instrument commonly known as a\n “security”, or any certificate of interest or participation in,\n temporary or interim certificate for, receipt for, guaranty of, or\n warrant or right to subscribe to or purchase any of the foregoing.\n\n\n15 U.S.C. § 80b-2(a)(18). This definition is substantively identical to the\ndefinition of security found in the Securities Act of 1933 (the “Securities Act”).\nCompare id. § 77b(a)(1), with § 80b-2(a)(18). Accordingly, the parties agree\nthat caselaw interpreting the Securities Act informs whether an instrument is\na security for purposes of the IAA. Cf. SEC v. Capital Gains Research Bureau,\nInc., 375 U.S. 180, 195 (1963) (“Congress intended the Investment Advisers\nAct of 1940 to be construed like other securities legislation . . . .”).\n Further, both parties agree that to the extent the life settlements at issue\nare securities under the IAA, it is because they are investment contracts. And\nthey agree the test that the Supreme Court set forth in SEC v. W.J. Howey Co.,\n328 U.S. 293 (1946), governs whether an instrument is an investment contract.\nThe Court in Howey explained that “an investment contract for purposes of the\nSecurities Act means a contract, transaction or scheme whereby a person\ninvests his money in a common enterprise and is led to expect profits solely\nfrom the efforts of the promoter or a third party.” Id. at 298-99. We have\nelaborated that “[t]his test subsumes within it three elements: first, that there\nis an investment of money; second, that the scheme in which an investment is\nmade functions as a common enterprise; and third, that under the scheme,\nprofits are derived solely from the efforts of individuals other than the\n\n 10\n\f Case: 18-10510 Document: 00514847021 Page: 11 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\ninvestors.” SEC v. Koscot Interplanetary, Inc., 497 F.2d 473, 477 (5th Cir.\n1974). We interpret the Howey test broadly. See id. at 481.\n This and other courts have clarified two important aspects of the Howey\ntest. Uncontroversially, “the word ‘solely’ in the third prong of the Howey test\nhas not been construed literally.” Long v. Shultz Cattle Co., Inc., 881 F.2d 129,\n133 (5th Cir. 1989). Rather, we apply “a more realistic test, whether the efforts\nmade by those other than the investor are the undeniably significant ones,\nthose essential managerial efforts which affect the failure or success of the\nenterprise.” Williamson v. Tucker, 645 F.2d 404, 418 (5th Cir. May 1981) (en\nbanc) (quoting SEC v. Glen W. Turner Enters., Inc., 474 F.2d 476, 482 (9th Cir.\n1973)).\n More controversial is the meaning of “common enterprise” in Howey’s\nsecond prong. This circuit, along with the Eleventh Circuit, applies so-called\nbroad vertical commonality, under which a common enterprise exists when\n“the fortuity of the investments collectively is essentially dependent upon\npromoter expertise.” SEC v. Cont’l Commodities Corp., 497 F.2d 516, 522 (5th\nCir. 1974); see also Eberhardt v. Waters, 901 F.2d 1578, 1580-81 (11th Cir.\n1990). Other circuits apply one or both of two more restrictive tests: horizontal\ncommonality, under which a class of investors must share equally in the risk\nsuch that their investments rise and fall together, or strict vertical\ncommonality, under which the investor and the promoter must share equally\nin the risk. 3\n\n\n\n 3 Compare Goldberg v. 401 N. Wabash Venture LLC, 755 F.3d 456, 465 (7th Cir. 2014)\n(applying horizontal commonality); SEC v. SG Ltd., 265 F.3d 42, 50 (1st Cir. 2001) (same);\nSEC v. Infinity Grp. Co., 212 F.3d 180, 187-88 (3d Cir. 2000) (same); SEC v. Banner Fund\nInt’l, 211 F.3d 602, 614-15 (D.C. Cir. 2000) (same); Teague v. Bakker, 35 F.3d 978, 986 n.8\n(4th Cir. 1994) (same); Revak v. SEC Realty Corp., 18 F.3d 81, 87 (2d Cir. 1994) (same);\nHocking v. Dubois, 885 F.2d 1449, 1459 (9th Cir. 1989) (en banc) (same); and Deckebach v.\nLa Vida Charters, Inc. of Fla., 867 F.2d 278, 281 (6th Cir. 1989) (same), with SEC v. Eurobond\nExch., Ltd., 13 F.3d 1334, 1339-40 (9th Cir. 1994) (applying strict vertical commonality as\n 11\n\f Case: 18-10510 Document: 00514847021 Page: 12 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\n We developed the strict vertical commonality approach in Koscot. In\nfinding a pyramid scheme operated as an investment contract, we rejected the\nargument that the scheme was not a common enterprise because a\nparticipant’s return from his or her investment in the scheme was independent\nof other investors. See Koscot, 497 F.2d at 474, 479. “Rather,” we explained,\n“the requisite commonality is evidenced by the fact that the fortunes of all\ninvestors are inextricably tied to the efficacy of the [defendant’s] meetings and\nguidelines on recruiting prospects and consummating a sale.” Id. at 479. In\ndistinguishing the Koscot broad vertical commonality test from the strict\nvertical commonality test followed by the Ninth Circuit, we later elaborated:\n While our standard requires interdependence between the\n investors and the promoter, it does not define that\n interdependence narrowly in terms of shared profits or losses.\n Rather, the necessary interdependence may be demonstrated by\n the investors’ collective reliance on the promoter’s expertise even\n where the promoter receives only a flat fee or commission rather\n than a share in the profits of the venture.\n\n\nLong, 881 F.2d at 140-41.\n Under this circuit’s broad vertical commonality approach, “the second\nand third prongs of the Howey test may in some cases overlap to a significant\ndegree.” Id. at 141; see also Monaghan, supra n.3, at 2161-62 (“Whenever there\nis an investment of money with the expectation of profits to come solely from\nthe efforts of others, the investor probably also relies on the expertise of the\npromoter.”). Accordingly, absent the unusual case in which an investor relies\non the promoter’s expertise but does not expect profits to come from the\n\n\n\n\nalternative to horizontal commonality). See generally Maura K. Monaghan, Note, An\nUncommon State of Confusion: The Common Enterprise Element of Investment Contract\nAnalysis, 63 Fordham L. Rev. 2135, 2152-63 (1995) (discussing circuit split).\n 12\n\f Case: 18-10510 Document: 00514847021 Page: 13 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\npromoter’s efforts, an investment contract exists if there is an investment of\nmoney in reliance on the promoter’s expertise.\n 1.\n Before turning to the parties’ specific arguments, we survey the existing\ncases examining whether life settlements are investment contracts. It is\nimportant to keep in mind that agreements involving sales of life settlements\ncan have myriad structures; thus, because the Howey analysis is fact\ndependent, the question of whether life settlements are investment contracts\nis not amenable to a universal answer. Nevertheless, to the extent life\nsettlements share certain features in common, the caselaw is instructive.\n The D.C. Circuit and the Eleventh Circuit are split on how to analyze life\nsettlements 4 under the Howey test. In SEC v. Life Partners, Inc., 87 F.3d 536\n(D.C. Cir. 1996), the SEC sought to enjoin a firm from arranging life-settlement\ntransactions without registering the life settlements as securities. Id. at 537-\n38. Before locating investors, the defendant in that case would evaluate the\ninsured’s medical condition, review the insurance policy, and negotiate the\npurchase price with the insured. Id. at 539. The defendant would then locate\ninvestors to purchase fractionalized interests in the life settlement. Id. After\nthe sale, the defendant would continue to administer the policy through a\nthird-party escrow agent, although the defendant eventually ceased its post-\npurchase administrative functions in a fruitless attempt to appease the SEC\nand the district court. Id. at 539-40.\n Applying the Howey test, the D.C. Circuit found the presence of an\ninvestment of money and horizontal commonality, satisfying Howey’s first two\nprongs. Id. at 543-44. But the court found that the third Howey prong was\n\n\n 4These cases dealt specifically with viatical settlements, a subset of life settlements\nin which the insureds are terminally ill. This distinction makes no difference for present\npurposes.\n 13\n\f Case: 18-10510 Document: 00514847021 Page: 14 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nlacking. In reaching this conclusion, the court divided the efforts that made the\nlife settlements profitable into categories of managerial or ministerial, and pre-\npurchase or post-purchase. Id. at 545. It then opined that the third prong’s\nfocus was on whether the investment’s profitability depended on post-purchase\nmanagerial efforts of someone other than the investor. Id. at 548. Pre-purchase\nmanagerial efforts, the court explained, were relevant but could not satisfy the\nthird prong in the absence of post-purchase managerial efforts; ministerial\nefforts did not affect the equation. Id. at 546, 548; see also SEC v. Life Partners,\nInc., 102 F.3d 587, 588 (D.C. Cir. 1996) (Ginsburg, J., concurring in denial of\nrehearing) (explaining that pre-purchase efforts could be relevant, but are\ninsufficient on their own, to demonstrate that profits arose primarily from the\nefforts of others). Formulated in this manner, the court found that all of the\ndefendant’s managerial efforts—finding the life settlements, obtaining\nactuarial estimates, appraising the life settlements, and negotiating the\npurchase price—occurred pre-purchase. Life Partners, 87 F.3d at 547. Its post-\npurchase efforts in administering the life settlements were ministerial. Id. at\n546. Accordingly, the court concluded that the life settlements did not meet\nHowey’s third prong. Id. at 548.\n The dissent rejected the court’s pre- and post-purchase distinction. Id. at\n551 (Wald, J., dissenting). The dissent accused the court of elevating form over\nsubstance in violation of the Securities Act’s remedial purpose. See id. The\nbetter inquiry, it insisted, was into “the kind and degree of dependence\nbetween the investors’ profits and the promoter’s activities,” with the third\nprong being met “when it is the success of these activities, either entirely or\npredominantly, that determines whether profits are eventually realized.” Id.\nAnd the dissent noted that the three variables affecting whether a life\nsettlement is profitable are the accuracy of the actuarial estimate, the sale\n\n\n 14\n\f Case: 18-10510 Document: 00514847021 Page: 15 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nprice, and the enforceability of the policy—for each of which investors\ndepended on the defendant. Id. at 555.\n Faced with a similar dispute, the Eleventh Circuit sided with the Life\nPartners dissent. See SEC v. Mut. Benefits Corp., 408 F.3d 737, 743 (11th Cir.\n2005). As in Life Partners, the defendant in Mutual Benefits arranged the sales\nof life settlements from insureds to investors and performed many of the same\npre-purchase activities, including evaluating the insured’s medical condition,\nproducing an actuarial estimate, and negotiating a purchase price. Id. at 738.\nIt also administered the policies after the sale to investors. Id. at 738-39.\nApplying the Howey test, the court first found it undisputed that the life\nsettlements at issue met Howey’s first two prongs. Id. at 742-43. In response\nto the defendant’s “passing objection,” it observed in a footnote that broad\nvertical commonality existed (satisfying the second prong) because “any profits\nwere tied to the efforts of the promoters.” Id. at 743 n.4. In finding the third\nHowey prong present, the court expressly rejected Life Partners’ analysis and\nfocused instead on the investors’ reliance on the defendant’s pre-purchase\nactivities. It explained:\n MBC selected the insurance policies in which the investors’ money\n would be placed. MBC bid on policies and negotiated purchase\n prices with the insureds. MBC determined how much money would\n be placed in escrow to cover payment of future premiums. MBC\n undertook to evaluate the life expectancy of the insureds—\n evaluations critical to the success of the venture. If MBC\n underestimated the insureds’ life expectancy, the chances\n increased that the investors would realize less of a profit, or no\n profit at all. And, investors had no ability to assess the accuracy of\n representations being made by MBC or the accuracy of the life-\n expectancy evaluations. They could not, by reference to market\n trends, independently assess the prospective value of their\n investments in MBC’s viatical settlement contracts.\n\n\n\n\n 15\n\f Case: 18-10510 Document: 00514847021 Page: 16 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nId. at 744. Accordingly, the court concluded, the defendant “offered what\namounts to a classic investment contract. Investors were offered and sold an\ninvestment in a common enterprise in which they were promised profits that\nwere dependent on the efforts of the promoters.” Id.\n With rare exceptions, federal district courts and state courts 5 have sided\nwith the Eleventh Circuit’s analysis over the D.C. Circuit’s analysis. See, e.g.,\nGiger v. Ahmann, No. 09-c-4060, 2013 WL 6730108, at 4-5 (N.D. Ill. Dec. 20,\n2013); SEC v. Life Partners Holdings, Inc., 41 F. Supp. 3d 550, 555-56 (W.D.\nTex. 2013); Wuliger v. Eberle, 414 F. Supp. 2d 814, 821-22 (N.D. Ohio 2006);\nSiporin v. Carrington, 23 P.3d 92, 99 (Ariz. Ct. App. 2001); Poyser v. Flora, 780\nN.E.2d 1191, 1197 (Ind. Ct. App. 2003); Life Partners, Inc. v. Arnold, 464\nS.W.3d 660, 681 (Tex. 2015). But cf. SEC v. Pac. W. Capital Grp., No. 15-cv-\n2563, 2015 WL 9694808, at 8 (C.D. Cal. June 16, 2015) (unpublished)\n(explaining SEC failed to show life settlements were investment contracts\nbecause record was insufficient to show whether investors relied on\ndefendant’s significant efforts); Glick v. Sokol, 777 N.E.2d 315, 319 (Ohio Ct.\nApp. 2002) (finding life-settlement investors were not dependent on promoter’s\nefforts without looking to federal law and without considering pre-purchase\nactivity). Legal commentators have also been critical of the D.C. Circuit’s\napproach. See, e.g., Miriam R. Albert, The Death of Death Futures: Why Viatical\nSettlements Must Be Classified as Securities, 19 Pace L. Rev. 345, 383-424\n(1999) (“The D.C. Circuit had an opportunity to advance the goals of the\nSecurities Laws, while adhering to sound precedent. Instead, the court chose\n\n\n\n 5 To the extent state courts have weighed in, they have done so while interpreting\nstate statutes analogous to the Securities Act. But these state courts have noted the\nsimilarity between the state and federal statutes and have looked to federal law to interpret\nthe state statutes. Siporin v. Carrington, 23 P.3d 92, 96 (Ariz. Ct. App. 2001); Poyser v. Flora,\n780 N.E.2d 1191, 1194-95 (Ind. Ct. App. 2003); Life Partners, Inc. v. Arnold, 464 S.W.3d 660,\n666-67 (Tex. 2015).\n 16\n\f Case: 18-10510 Document: 00514847021 Page: 17 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nto create a new bright-line test, with no explicit precedential support, at the\ncost of ignoring over fifty years of thoughtful case law.”).\n There are a few key similarities and differences between the life\nsettlements at issue in the present case and those discussed in Life Partners\nand Mutual Benefits. Perhaps the most significant similarity is that under the\norigination agreement, Kestrel would have been dependent upon Living\nBenefits to obtain actuarial analyses of the insureds. As even the Life Partners\nmajority recognized, the accuracy of the actuarial analysis is one of the most\nimportant factors in the success or failure of a life settlement. See 87 F.3d at\n548. Also akin to the life settlements discussed in the cases, the origination\nagreement here tasks Living Benefits with identifying the life settlements,\nappraising them, conducting due diligence, and finding a custodian to\nadminister the policies upon Kestrel’s purchase. The origination agreement\nhere is unusual in two respects, however: it grants Kestrel at least nominal\nauthority to negotiate the life settlements’ purchase price itself, and it\ncontemplates the purchase of nonfractionalized life settlements. 6\n 2.\n Turning now to the parties’ specific arguments, we conclude that the life\nsettlements Living Benefits offered to procure for Kestrel are investment\ncontracts.\n a.\n Initially, Living Benefits argues that the life settlements at issue in this\ncase do not meet any of Howey’s three prongs because Kestrel never actually\npurchased any life settlements and the engagement letter did not require it to\n\n\n\n 6 Although the origination agreement does not specify whether the life settlements\nwould have been fractionalized or nonfractionalized, Living Benefits’ managing director\ntestified at trial that the life settlements all would have been nonfractionalized. Kestrel has\nnot disputed this.\n 17\n\f Case: 18-10510 Document: 00514847021 Page: 18 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\ndo so. Thus, Living Benefits argues there was no investment of money, Kestrel\nnever relied on its expertise, and Kestrel never expected profits from the efforts\nof another. But as explained above, the inquiry is whether Living Benefits\nadvised Kestrel about an investment contract, and we conclude that it advised\nKestrel about life settlements regardless of whether Kestrel purchased any.\nTherefore, we focus on whether the contemplated life settlements were\ninvestment contracts; that Kestrel did not in fact purchase any life settlements\nis beside the point.\n b.\n Next, Living Benefits argues that the life settlements did not meet\nHowey’s second and third prongs because Kestrel was a sophisticated investor\nthat did not rely on Living Benefits’ expertise. As Life Partners and Mutual\nBenefits instruct, the most important factors bearing on life settlements’\nprofitability are the accuracy of the actuarial estimates and the life\nsettlements’ purchase prices. See Mut. Benefits, 408 F.3d at 744; Life Partners,\n87 F.3d at 548. The bankruptcy court found that Kestrel would have depended\non Living Benefits to ascertain the life settlements’ value. And it found that\nalthough “the duties assigned to Kestrel included the duty to negotiate\n. . . Kestrel had no background in life settlements so Kestrel’s negotiations\nwould rely heavily if not exclusively on [Living Benefits].”\n Living Benefits disputes the bankruptcy courts’ factual conclusions. It\nargues that whatever inexperience Kestrel might have had with life\nsettlements when it first retained Living Benefits, Living Benefits’ consulting\nservices gave Kestrel the level of expertise it needed to successfully invest in\nlife settlements without Living Benefits’ continued assistance. As a legal\nmatter, we have previously rejected a similar argument that “investors may\nbecome knowledgeable within the meaning of Howey through the educative\nefforts of the promoters.” Long, 881 F.2d at 135. As a factual matter, the\n 18\n\f Case: 18-10510 Document: 00514847021 Page: 19 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nbankruptcy court did not clearly err in finding that Kestrel would have relied\non Living Benefits for these services, whatever the de novo merit of the\nargument to the contrary.\n Living Benefits’ own managing director, Mark Freitag, testified to the\nimportance of expertise when transacting in life settlements. Freitag also\ntestified that Living Benefits had proprietary software to model life\nsettlements. Thus, even if Kestrel attained an exceptional level of\nsophistication in life settlements, there is nothing in the record to suggest that\nKestrel could have evaluated life settlements with the same degree of\nsophistication as Living Benefits. Nor does it matter, as Living Benefits\nsuggests, that Kestrel’s executives possessed general business acumen. See\nLong, 881 F.2d at 134-35 (“Howey itself establishes that an investor’s\ngeneralized business experience does not preclude a finding that the investor\nlacked the knowledge or ability to exercise meaningful control over the\nventure.”).\n Moreover, although the bankruptcy court did not make any specific\nfindings about the extent to which Kestrel would have relied on Living Benefits\nfor actuarial estimates, it is clear from the record that Kestrel would have\nrelied on Living Benefits substantially, if not exclusively, for these estimates.\nThe origination agreement made Living Benefits responsible for obtaining the\nactuarial estimates. And although Kestrel would have had access to the\ninsureds’ medical records underlying these actuarial estimates, Living\nBenefits points to no evidence showing—nor is there reason to believe—that\nKestrel would have had the intent or ability to conduct its own analyses.\n Living Benefits also points out that Kestrel retained key decision-\nmaking powers under the origination agreement such as whether to purchase\na particular life settlement and the price it was willing to pay. These powers\ndo not undermine Kestrel’s reliance on Living Benefits. Even the Life Partners\n 19\n\f Case: 18-10510 Document: 00514847021 Page: 20 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\ncourt found it irrelevant that the investors retained such functions when they\nwere otherwise reliant on the promoter to evaluate the policy and negotiate a\nworthwhile purchase price. See 87 F.3d at 547. Further, even to the extent\nKestrel would have nominally determined the price it was willing to pay, its\ndetermination could not be untethered from the valuation Living Benefits\nwould have provided it.\n Therefore, under the origination agreement, Kestrel would have relied\non Living Benefits’ substantial pre-purchase efforts for the success of its\ninvestments. Under the Life Partners rule, however, this would not be enough;\nKestrel would have additionally needed to rely on at least some managerial\npost-purchase efforts. See 87 F.3d at 548. At most, Kestrel would have relied\non Living Benefits to help it find a custodian to administer the life settlements.\nBut as even the dissent recognized in Life Partners, the ministerial actions\nrequired to administer a life settlement—typically paying premiums and\nmonitoring the insured’s health—are insufficient to satisfy Howey. See id. at\n550-51, 550 n.1 (Wald, J., dissenting).\n Were we to follow the Life Partners majority, we would thus conclude\nthat the life settlements at issue here are not investment contracts. But we\nbelieve the Eleventh Circuit’s opinion in Mutual Benefits propounds the better\napproach. As alluded to above, the majority opinion in Life Partners has been\nwidely criticized by both courts and commentators. Those criticisms are well\nfounded: Life Partners takes an overly rigid approach considering the remedial\naim of federal securities law. See SEC v. Edwards, 540 U.S. 389, 393 (2004)\n(discussing Securities Act’s broad reach); Howey, 328 U.S. at 299 (explaining\nSecurities Act’s definition of security “embodies a flexible rather than a static\nprinciple, one that is capable of adaptation to meet the countless and variable\nschemes devised by those who seek the use of the money of others on the\npromise of profits”); Long, 881 F.2d at 133 (“It is axiomatic in federal securities\n 20\n\f Case: 18-10510 Document: 00514847021 Page: 21 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nlaw that in order to give effect to the remedial purposes of the Acts, substantive\n‘economic realities’ must govern over form.”). In fact, perhaps realizing Life\nPartners’ weakness, Living Benefits does not argue that we should focus solely\non its post-purchase efforts.\n Following Mutual Benefits, we thus conclude that Kestrel would have\nrelied on Living Benefits’ expertise and managerial efforts to realize a profit\non the life settlements.\n c.\n Regardless of whether Kestrel would have relied on Living Benefits’\nexpertise, Living Benefits argues that there can be no common enterprise here\nbecause the origination agreement contemplated one-to-one transactions with\na single investor. For this argument, Living Benefits relies primarily on the\nSupreme Court’s decision in Marine Bank v. Weaver, 455 U.S. 551 (1982), and\nthis court’s decision in Youmans v. Simon, 791 F.2d 341 (5th Cir. 1986). In\nMarine Bank, the Court held that the plaintiff did not enter into an investment\ncontract by agreeing to provide collateral for the defendants’ business loan in\nexchange for 50% of the business’s net profits, $100 per month, use of the\nbusiness’s property, and veto rights over the business’s future borrowing. 455\nU.S. at 553. In two paragraphs of analysis, the Court held that the\narrangement was not an investment contract because it was “not the type of\ninstrument that comes to mind when the term ‘security’ is used.” Id. at 559. In\nreaching this conclusion, the Court cited the one-on-one nature of the\narrangement, the provisions giving the plaintiff use of the defendants’\nproperty, and the control the defendants gave the plaintiff over future\nborrowing. See id. at 560.\n Seizing on Marine Bank’s language about the one-on-one nature of the\ntransaction, Living Benefits argues that a common enterprise requires\nmultiple investors. We have not read Marine Bank quite so restrictively. In\n 21\n\f Case: 18-10510 Document: 00514847021 Page: 22 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nYoumans, this court cited Marine Bank for the proposition that “[a]greements\nnegotiated one-on-one creating enterprises in which investors are actively\ninvolved, knowledgeable, and able to protect their interests are not within the\nambit of the federal securities laws.” 791 F.2d at 346. Accordingly, in that case,\nthe court found a joint venture was not an investment contract when the\ninvestors exercised significant control over the venture and the promoters\n“possessed no unique ability that could not be replaced by the investors.” Id. at\n346-47. As already explained, the facts of this case are otherwise.\n Moreover, in Long, we read Marine Bank as a “narrow holding that a\nunique agreement, negotiated on a one-on-one basis, is not a security.” Long,\n881 F.2d at 140 n.11 (emphasis added). We concluded this narrow holding did\nnot abrogate our broad vertical commonality test. Id. And in denying rehearing\nin Long, we acknowledged that broad vertical commonality was subject to\ncriticism specifically because it applied to transactions involving lone\ninvestors. See Long v. Shultz Cattle Co., Inc., 896 F.2d 85, 86-87 (5th Cir. 1990)\n(per curiam). Marine Bank thus does not prevent a transaction involving a\nsingle investor from being an investment contract. To the extent Living\nBenefits asks this panel to depart from Koscot, the rule of orderliness prevents\nit from doing so. See, e.g., Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016).\n d.\n Lastly, Living Benefits argues that transactions of nonfractionalized life\nsettlements are not investment contracts, but it does not explain why this is so\napart from noting that the nonfractionalized life settlements in this case\ndistinguish it from Mutual Benefits. The Life Partners court speculated that\nthere may be some distinction between fractionalized and nonfractionalized\nlife settlements. 87 F.3d at 539. An SEC taskforce likewise noted that no court\nhas ruled on nonfractionalized life settlements and expressed uncertainty\nabout how a court would approach such a case. See Life Settlements Task\n 22\n\f Case: 18-10510 Document: 00514847021 Page: 23 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nForce, Staff Report to the United States Securities and Exchange Commission\n24 (2010).\n We agree there is a distinction between fractionalized and\nnonfractionalized life settlements, but it is not one that changes the outcome\nof this case. Recall that the decisive fact under Howey’s second and third prongs\n(as interpreted by this circuit) is Kestrel’s reliance on Living Benefits to\nappraise the life settlements and help Kestrel negotiate a favorable price.\nKestrel’s reliance on Living Benefits is unaffected by whether the life\nsettlements are fractionalized. Although we do not speculate how our sister\ncircuits would resolve the issue, there is an argument that nonfractionalized\nlife settlements would not meet the horizontal commonality test applied in\nother circuits: the Life Partners court found horizontal commonality\nspecifically because the investors relied on sales of the fractionalized\nremainder of the life settlement for the transfer to take effect. See 87 F.3d at\n310. But this has no bearing on the broad vertical commonality test that we\napply.\n To summarize, the facts of this case show that if it had entered into the\norigination agreement, Kestrel would have invested money in life settlements,\nsatisfying Howey’s first prong. In doing so, it would have relied on Living\nBenefits’ substantial expertise and pre-purchase efforts to profit on its\ninvestments in life settlements, satisfying Howey’s second and third prongs.\nAccordingly, the life settlements contemplated in the origination agreement\nare investment contracts within the meaning of the IAA.\n III.\n Under the engagement letter, Living Benefits promised to advise Kestrel\nabout life settlements. Because the district court did not clearly err in finding\nthat Living Benefits was in the business of rendering such advice, and because\nwe conclude that the contemplated life settlements were investment contracts\n 23\n\f Case: 18-10510 Document: 00514847021 Page: 24 Date Filed: 02/22/2019\n\n\n\n No. 18-10510\nwithin the meaning of the IAA, Living Benefits was required to register as an\ninvestment adviser. Having failed to do so, it cannot now collect the balance\nKestrel owes it under the engagement letter. Accordingly, we AFFIRM the\njudgment of the district court.\n\n\n\n\n 24", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370552/", "author_raw": "KING, Circuit Judge:"}]}	KING	HIGGINSON	COSTA	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593299/	Published	1	0	0	2,019	2	[ { "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...
4,594,281		United States v. Alan Gomez Gomez	2019-02-26	17-20526	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before CLEMENT, HIGGINSON, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-20526 FILED\n February 25, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nALAN VICTOR GOMEZ GOMEZ,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore CLEMENT, HIGGINSON, and HO, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n Appellant Alan Victor Gomez Gomez pled guilty to illegally reentering\nthe United States after deportation. He appeals from the sentence and\njudgment imposed under 8 U.S.C. § 1326(b)(2), which took into account his\nprior conviction for bodily-injury aggravated assault under Tex. Penal Code\n§ 22.02. We affirm the sentence and judgment imposed.\n Gomez Gomez argues that he is not subject to § 1326(b)(2) because Texas\naggravated assault does not qualify as a “crime of violence” under 18 U.S.C.\n§ 16. Specifically, he contends that Texas aggravated assault does not fall\n\f No. 17-20526\nunder the “elements clause” at § 16(a) or the “residual clause” at § 16(b). 1\nGomez Gomez argues that Texas aggravated assault lacks the “use of force” as\nan element because aggravated assault can be accomplished through indirect\nuse of force. The issue has been properly preserved, so we review de novo.\nUnited States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir. 2016).\n This court’s recent en banc decision in United States v. Reyes-Contreras,\n910 F.3d 169 (5th Cir. 2018) (en banc), abrogated the previous Fifth Circuit\ndistinction between direct and indirect use of force. Id. at 180–81. Instead, it\napplied United States v. Castleman, which held that the “use of force”\nencompassed the common-law definition of force—including offensive touching\nand indirect applications of force. 572 U.S. 157, 162–68 (2014).\n As a preliminary matter, Gomez Gomez argues Reyes-Contreras should\nnot apply because it is a change in the law after his arrest. He argues the Ex\nPost Facto Clause should preclude the retroactive application of Reyes-\nContreras. See U.S. CONST. art I, §§ 9–10. The Ex Post Facto Clause does not\napply to the judiciary. Rogers v. Tennessee, 532 U.S. 451, 460 (2001). But a\nretroactively applied judicial decision can, in theory, violate the Due Process\nClause. Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964). In Bouie, the\nSupreme Court held that a defendant’s due process rights could be violated by\na retroactive application of an unexpected and indefensible expansion of\nsubstantive criminal liability. Id. at 353–54. But Reyes-Contreras did not\nmake previously innocent activities criminal. It simply applied Castleman in\na way that put the circuit back into compliance with the precedents of other\ncircuits. Reyes-Contreras, 910 F.3d at 180–81 (“The Fifth Circuit stands alone\n\n\n\n 1Gomez Gomez points out that, under the Supreme Court’s recent decision in Sessions\nv. Dimaya, 138 S. Ct. 1204, 1210 (2018), 18 U.S.C. § 16(b) has been deemed unconstitutionally\nvague. As the offense at issue qualifies as a crime of violence under § 16(a), however, Dimaya\ndoes not constrain our holding here.\n 2\n\f No. 17-20526\nin restricting the reasoning of Castleman on direct versus indirect force to\nmisdemeanor crimes of domestic violence.”). Reyes-Contreras was neither\nunexpected nor indefensible.\n Gomez Gomez’s objections to his sentencing fail because Reyes-Contreras\nheld that Castleman “is not limited to cases of domestic violence and that for\npurposes of identifying a conviction as a [crime of violence], there is no valid\ndistinction between direct and indirect force.” Id. at 182. This holding\nforecloses Gomez Gomez’s argument that aggravated assault does not require\nthe use of force. See id. at 181–82 (overruling United States v. Villegas-\nHernandez, 468 F.3d 874 (5th Cir. 2006), which held that Texas simple bodily\nassault did not require the use of force and was not a crime of violence).\n Therefore, the district court’s decision is affirmed.\n\n\n\n\n 3", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371534/", "author_raw": "JAMES C. HO, Circuit Judge:"}]}	CLEMENT	HIGGINSON	HO	1	{"CLEMENT": ", Circuit", "HIGGINSON": ", Circuit", "HO": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594281/	Published	1	0	0	2,019	2	[ { "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...
4,594,282	MID-CONTINENT CASUALTY COMPANY, Plaintiff - Appellee Cross-Appellant v. PETROLEUM SOLUTIONS, INCORPORATED, Defendant - Appellant Cross-Appellee	Mid-Continent Cas. Co. v. Petroleum Solutions, Inc.	2019-02-26	17-20652	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Jones, Haynes, Oldham", "parties": "", "opinions": [{"author": "HAYNES, Circuit Judge:", "type": "010combined", "text": "Case: 17-20652 Document: 00514851963 Page: 1 Date Filed: 02/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-20652 FILED\n February 26, 2019\n Lyle W. Cayce\nMID-CONTINENT CASUALTY COMPANY, Clerk\n\n Plaintiff - Appellee Cross-Appellant\n\nv.\n\nPETROLEUM SOLUTIONS, INCORPORATED,\n\n Defendant - Appellant Cross-Appellee\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore JONES, HAYNES, and OLDHAM, Circuit Judges.\nHAYNES, Circuit Judge:\n This is an insurance coverage dispute. Mid-Continent Casualty\nCompany (“Mid-Continent”) filed a declaratory judgment action seeking a\ndeclaration that it did not owe coverage for a judgment assessed against its\ninsured, Petroleum Solutions, Incorporated (“PSI”). Mid-Continent claimed it\ndid not owe coverage because PSI breached the Cooperation Clause in its policy\nby refusing to dismiss its claim against a third party in the underlying lawsuit\nand because the judgment was not covered under the policy. At summary\njudgment, the district court ruled that the Cooperation Clause applied to PSI’s\nthird-party claim and that only parts of the judgment were covered. The case\nproceeded to trial on whether PSI complied with the Cooperation Clause and\n\f Case: 17-20652 Document: 00514851963 Page: 2 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nwhether Mid-Continent waived reliance on the Cooperation Clause. The jury\nfound for PSI. Both parties appealed. For the reasons set forth below, we\nAFFIRM in part, REVERSE in part, and REMAND to enter judgment\nconsistent with this opinion.\n I. Factual and Procedural Background\n This case arises from a leak in an underground fuel storage tank. In\n1997, PSI constructed and installed an underground fuel tank system for Bill\nHead Enterprises (“Head”) underneath its truck stop. In 2001, Head\ndiscovered fuel had leaked from the system. PSI notified Mid-Continent, with\nwhom it had a commercial general liability policy (the “Policy”), of Head’s\npotential claim against PSI. Mid-Continent retained counsel to investigate the\nclaim. Mid-Continent and PSI believed that the cause of the leak was a faulty\nflex connector manufactured by Titeflex Corporation (“Titeflex”).\n Head sued PSI in February 2006, arguing that PSI was responsible for\nthe faulty flex connector and the leak. Mid-Continent assumed PSI’s defense\nbut reserved its rights as to coverage obligations under the Policy. PSI brought\na third-party claim against Titeflex, arguing that Titeflex was strictly liable\nunder Texas Civil Practice and Remedies Code § 82.002 and seeking\ncontribution and indemnity. Titeflex then filed a counterclaim against PSI\nunder § 82.002.\n In June 2008, Mid-Continent told PSI that Titeflex had offered to dismiss\nits counterclaim if PSI would dismiss its third-party claim. PSI dismissed\nwithout prejudice its claim against Titeflex. The following day, Titeflex\nadvised that it would dismiss its counterclaim only if PSI dismissed its claim\nwith prejudice. Mid-Continent urged PSI to accept the settlement offer, but\nPSI was concerned that doing so would leave it without recourse against\n\n\n\n\n 2\n\f Case: 17-20652 Document: 00514851963 Page: 3 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nTiteflex. So PSI rejected the settlement offer. The case proceeded to trial and\nthe jury returned a verdict in favor of Head and Titeflex. 1\n Mid-Continent then filed a declaratory judgment action in the district\ncourt seeking a determination of the parties’ rights under the Policy. It alerted\nPSI that it was denying coverage for the Titeflex judgment because PSI\nbreached the Cooperation Clause by “fail[ing] to cooperate with Mid-Continent\nin the investigation and settlement of the Titeflex counterclaim.” Mid-\nContinent also told PSI that although the Professional Liability Endorsement\n(“PLE”) in the Policy potentially provided coverage for the Titeflex judgment,\nExclusion q of the Endorsement precluded coverage.\n The district court ruled on cross motions for summary judgment, holding\nthat the PLE did not provide coverage for the Titeflex judgment but that if it\nhad, Exclusion q would not apply. It concluded that without the PLE, the\nPolicy provided coverage for only part of the Titeflex judgment. It also\nconcluded that the Cooperation Clause applied to PSI’s claim against Titeflex\nbut genuine issues of material fact existed about whether PSI complied with\nthe Cooperation Clause. The case proceeded to trial on this issue and whether\nMid-Continent waived its right to assert the Cooperation Clause. The jury\nentered a verdict in PSI’s favor. The district court then entered judgment\npartially in PSI’s favor pursuant to its conclusion that only some of the Titeflex\njudgment was covered. PSI appealed and Mid-Continent cross appealed.\n II. Discussion\n On appeal, PSI argues that the district court erred in refusing to hold\nthat, as a matter of law, the Cooperation Clause cannot require PSI to settle\n\n\n\n 1 PSI appealed the judgments. The Texas Supreme Court reversed and remanded the\nHead judgment. Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 496 (Tex. 2014). On remand,\nPSI ultimately prevailed against Head. Thus, only the Titeflex judgment is at issue here.\n\n 3\n\f Case: 17-20652 Document: 00514851963 Page: 4 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nits affirmative third-party claim. Mid-Continent argues that there was no\nevidence to support the jury’s finding that it waived reliance on the\nCooperation Clause and that the jury instruction about the Cooperation Clause\nwas an abuse of discretion. 2 Regarding the Titeflex judgment, PSI argues that\nthe PLE provides coverage for the entire Titeflex judgment and Mid-Continent\nchallenges the district court’s ruling that Exclusion q of the PLE does not\napply. We address the Cooperation-Clause claims first, followed by the claims\nrelated to the PLE.\n A. Regardless of whether the Cooperation Clause applies to\n affirmative claims, the Cooperation-Clause jury instruction was\n not an abuse of discretion.\n PSI’s Policy contains a Cooperation Clause that requires PSI to\n“cooperate with [Mid-Continent] in the investigation or settlement of the claim\nor defense against the ‘suit’”. 3 Mid-Continent claimed PSI breached this clause\nby refusing to dismiss its claim against Titeflex. The district court refused to\nfind as a matter of law that the Cooperation Clause does not apply to the\ncircumstance of an insurer requiring an insured to give up a right against a\nthird party. At trial, the district court instructed the jury that “PSI complied\nwith the Cooperation Clause if PSI’s conduct was reasonable and justified\nunder all the circumstances that existed.” The jury found that PSI complied.\n Mid-Continent offers no law to support its novel and dubious concept\nthat the Cooperation Clause applies to an insured’s affirmative claims against\n\n\n\n 2 Because we conclude the district court’s Cooperation-Clause jury instruction was not\nan abuse of discretion, we do not reach Mid-Continent’s waiver argument. We note, however,\nthat simply sending an insured generic reservation of rights letters such as the ones sent\nhere is likely insufficient. See Duke v. Hoch, 468 F.2d 973, 979 (5th Cir. 1972) (noting that a\nreservation of rights letter was “no more than a general warning”).\n 3 The Policy defines “Suit” as a “civil proceeding in which damages because of ‘bodily\ninjury,’ ‘property damage,’ or ‘personal and advertising injury’ to which this insurance applies\nare alleged.” It does not define “Claim.”\n 4\n\f Case: 17-20652 Document: 00514851963 Page: 5 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\na third party, and the direction of the law in this area is against such a\nconclusion. 4 We thus do not endorse that holding by the district court.\nHowever, given that PSI prevailed at trial on this issue, it is unnecessary to\naddress the legal question further. Even assuming arguendo that the\nCooperation Clause could apply to affirmative claims in some theoretical\ncircumstances, we reject Mid-Continent’s argument that the Cooperation-\nClause jury instruction was an abuse of discretion. See Janvey v. Dillon Gage,\nInc. of Dall., 856 F.3d 377, 388 (5th Cir. 2017) (“Jury instructions are reviewed\nfor abuse of discretion.”)\n “Reversal is appropriate when the ‘charge as a whole leaves [the court]\nwith substantial and ineradicable doubt whether the jury [was] properly\nguided in its deliberations’ and the challenged instructions, separately or\ncollectively, ‘affected the outcome of the case.’” Id. (brackets in original)\n(quoting Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir. 2010)). In\nTexas, an insured’s cooperation-clause duties are generally tethered to a\nreasonableness standard, and compliance with the clause depends on the\ncircumstances of a particular case. Am. Nat’l Cty. Mut. Ins. Co. v. Medina, No.\n05-16-01062-CV, 2018 WL 4037357, at *3 (Tex. App.—Dallas Aug. 22, 2018, no\npet.) (mem. op.); Frazier v. Glens Falls Indem. Co., 278 S.W.2d 388, 391–92\n\n\n 4 See, e.g., Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 397 (5th Cir. 1995)\n(suggesting that the insurer cannot use the Cooperation Clause to require the insured to\ncooperate in the coverage litigation), overruled on other grounds by Grapevine Excavation,\nInc. v. Md. Lloyds, 35 S.W.3d 1, 5 (Tex. 2000); Bituminous Cas. Corp. v. Tonka Corp., 140\nF.R.D. 381, 386 (D. Minn. 1992) (“This court rejects the conclusion that because an insured\nagrees to cooperate with the insurance company, in the event he is sued or otherwise makes\na claim under the policy, that the insured has thereby forever contractually waived the\nattorney-client privilege.”); Barney v. Aetna Cas. & Sur. Co., 185 Cal. App. 3d 966, 978 (1986)\n(“The derogation of plaintiff’s collateral right to counterclaim against Yoakum deprived her\nof the policy’s benefits as surely as if Aetna unreasonably had refused to indemnify, defend\nor settle at all . . . .”); Rick Virnig, The Insured’s Duty to Cooperate, 6 J. TEX. INS. L. 11, 12\n(2005) (“While the Cooperation Clause surely precludes an insured from sabotaging the\ninsurance company’s interests, the clause does not require the insured to subjugate its own\nbest interests.”).\n 5\n\f Case: 17-20652 Document: 00514851963 Page: 6 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\n(Tex. Civ. App.—Fort Worth 1955, writ ref’d n.r.e.). Therefore, the “reasonable\nand justified” language in the Cooperation-Clause jury instruction did not\nimproperly guide the jury. Thus, Mid-Continent’s Cooperation Clause\nargument fails.\n B. The PLE covers the entire Titeflex judgment.\n The PLE provides that a subsection (d) should be added to the Insuring\nAgreement in the Policy. Subsection (a) of the Insuring Agreement determines\nthe scope of coverage. It states that Mid-Continent “will pay those sums that\n[PSI] becomes obligated to pay as damages because of ‘bodily injury’ or\n‘property damage’ to which this insurance applies.” Subsection (d), added by\nthe PLE, states that “‘Bodily Injury’, ‘Property Damage’ or ‘Money Damages’\narising out of the rendering or failure to render professional services shall be\ndeemed to be caused by an ‘occurrence.’” The PLE also adds a definition of\n“Money Damages” to the “Definition” section of the Policy. It defines “Money\nDamages” as “a monetary judgment, award, or settlement.” Finally, the PLE\nadds four exclusions to the Policy. Relevant here, the PLE adds “Exclusion q”\nfor losses caused intentionally by the insured.\n PSI argues that the PLE provides coverage for the Titeflex judgment\nbecause the Titeflex judgment is a monetary judgment arising out of PSI’s\nprofessional services: installation of the fuel tank system at Head’s truck stop.\nMid-Continent disagrees for two reasons. First, it argues that the PLE does\nnot expand coverage beyond the damages covered under the Insuring\nAgreement; instead, it simply creates another definition of “occurrence” by\nclarifying that damages “arising out of the rendering or failure to render\nprofessional services” are considered accidental. 5 Second, it argues that the\n\n\n\n 5 The Policy defines “occurrence” as “an accident, including continuous or repeated\nexposure to substantially the same general harmful conditions.”\n 6\n\f Case: 17-20652 Document: 00514851963 Page: 7 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nTiteflex judgment did not arise out of PSI’s installation of the fuel tank system\nbut from PSI’s refusal to dismiss its claim against Titeflex. 6 Mid-Continent’s\narguments are unavailing. 7\n We construe the PLE in conjunction with the rest of the Policy. Am. Fid.\n& Cas. Co. v. Bayshore Bus Lines, 201 F.2d 148, 149 (5th Cir. 1953); see Mid-\nContinent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 115 (5th Cir.\n2010). Applying this principle to Mid-Continent’s interpretation of the PLE is\nproblematic because, as the district court noted, it “renders superfluous the\ndefinition of ‘occurrence’ based on Money Damages and the addition of Money\nDamages to the ‘Definitions’ section of the Policy.” “A basic rule of contract\nconstruction is that the preferred interpretation is one that provides meaning\nto every provision and does not read any term out of the contract.” Mesa\nOperating Co. v. Cal. Union Ins. Co., 986 S.W.2d 749, 753 (Tex. App.—Dallas\n1999, pet. denied). This is particularly important in the insurance context\nwhere, if there is ambiguity, the construction favoring coverage must be\nadopted. Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 491 (5th\nCir. 2000) (“In Texas, when an insurance policy is ambiguous or inconsistent,\nthe construction that would afford coverage to the insured must govern.”). In\naddition, under Mid-Continent’s interpretation, the endorsement creates no\nadditional coverage. But the purpose of the PLE must be to add coverage.\nIndeed, we have previously concluded that a Mid-Continent PLE “extend[s]\n\n\n 6 PSI sought coverage for the Titeflex judgment under its 2001 Policy because the\nproperty damage to Head’s truck stop occurred in 2001. In its briefing, Mid-Continent argued\nthat because the 2009 Titeflex judgment arose out of PSI’s refusal in 2008 to dismiss its claim\nagainst Titeflex, PSI should have sought coverage under its 2008 or 2009 policy. But Mid-\nContinent conceded at oral argument that the policy year does not matter. We conclude the\napplicable policy is the 2001 Policy because that is when the property damage occurred, and\nthe Policy requires that the property damage occur during the policy period.\n 7 We review a grant of summary judgment de novo, “using the same standards as the\ndistrict court.” K.P. v. LeBlanc, 729 F.3d 427, 435 (5th Cir. 2013) (quoting Sossamon v. Lone\nStar State of Tex., 560 F.3d 316, 326 (5th Cir. 2009)).\n 7\n\f Case: 17-20652 Document: 00514851963 Page: 8 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\ncoverage to claims related to . . . . professional services.” Davis-Ruiz Corp. v.\nMid-Continent Cas. Co., 281 F. App’x 267, 273 (5th Cir. 2008). Thus, we reject\nMid-Continent’s interpretation of the PLE.\n PSI argues that the “PLE provides coverage for ‘Money Damages’\n[(subsection (d))] if there is ‘property damage’ [(subsection (a))] during the\npolicy period . . . arising out of ‘professional services’ that are deemed to be an\n‘occurrence’ [(subsection (d))].” We do not need to decide whether PSI’s\ninterpretation is correct or even reasonable. If it is neither, then we would\nhave to conclude that the PLE and the Policy are in conflict. In that case, the\nPLE and its more specific provisions must control. See JAW The Pointe, L.L.C.\nv. Lexington Ins. Co., 460 S.W.3d 597, 605 n.7 (Tex. 2015) (noting that an\nendorsement “that provides specific coverage” trumps an exclusion in the\npolicy); see also Bay Rock Operating Co., 614 F.3d at 115. Thus, regardless of\nwhether PSI’s interpretation is correct or the PLE and the Policy conflict, the\nPLE provides coverage for the entire Titeflex judgment.\n Examining the PLE, we conclude that it extends coverage when PSI has\nrendered professional services (or failed to do so) that result in “Bodily Injury,”\n“Property Damage,” or “Money Damages.” “Money Damages” is defined as a\n“monetary judgment, award, or settlement.” This is a broader definition than\nthat contained in subsection (a): “damages because of ‘bodily injury’ or\n‘property damage.’” Thus, we conclude that the PLE provides for a broader\nrange of damages than the common-law definition of “damages” when those\ndamages arise out of professional services. Mid-Continent does not\nmeaningfully challenge that the entire Titeflex judgment 8 is a monetary\n\n\n 8 As we noted above, Titeflex’s claim against PSI in the underlying lawsuit was for\nindemnification under Texas Civil Practice and Remedies Code § 82.002(a). Titeflex also\nsought attorney’s fees under § 82.002(g). When Titeflex won its suit against PSI, the\njudgment included damages under § 82.002(a) and attorney’s fees under § 82.002(g), but it\ndid not segregate the one from the other. The district court concluded that § 82.002(a)\n 8\n\f Case: 17-20652 Document: 00514851963 Page: 9 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\njudgment, or that installation of the fuel tank system qualifies as PSI’s\nprofessional services.\n Mid-Continent’s second argument, that the Titeflex judgment arose out\nof PSI’s refusal to dismiss its claim rather than its professional services, lacks\nmerit. We do not need to reach the boundaries of “arising out of” in the PLE\nbecause the Titeflex judgment is directly related to the leak in the fuel tank\nsystem that PSI installed; if there had been no leak, Head would not have sued\nand there would have been no need for PSI and Titeflex to assert claims against\neach other. Therefore, we conclude that the PLE provides coverage for the\nentire Titeflex judgment and the district court erred in its summary judgment\nholding that it does not.\n Even if the PLE covers the Titeflex judgment, Mid-Continent urges us to\nconclude that Exclusion q in the PLE precludes coverage. Exclusion q denies\ncoverage for “[l]oss caused intentionally by or at the direction of the insured\n. . . .” Mid-Continent bears the burden of establishing that the exclusion\napplies. See Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 204\n(Tex. 2004). We conclude Exclusion q does not apply.\n The parties agree that Exclusion q concerns the underlying conduct\ngiving rise to the claim but dispute the relevant conduct: Mid-Continent argues\nit is PSI’s refusal to settle the Titeflex claim, and PSI argues it is the fuel leak.\nMid-Continent never argues that PSI intended the fuel leak, but even if Mid-\nContinent is correct that the relevant underlying conduct is PSI’s refusal to\n\n\n\ndamages were covered under the Policy (not the PLE) but § 82.002(g) attorney’s fees were not\n“damages,” utilizing the district court’s perception of that term as generally applied under\nTexas law, rather than a policy-specific definition. PSI appeals this ruling, but we do not\nreach its arguments since we conclude that the PLE covers the entire Titeflex judgment, as\na “monetary judgment” under the broader definition provided by the Policy itself. We thus\ndo not need to decide whether the term “damages,” by itself, would encompass the entire\nTiteflex judgment.\n\n 9\n\f Case: 17-20652 Document: 00514851963 Page: 10 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nsettle the Titeflex claim, there is no genuine issue of material fact as to whether\nPSI caused the Titeflex judgment intentionally.\n The Texas Supreme Court has held under a substantially similar\nexclusion that “[t]he exclusion requires intentional damage, not just\nintentional conduct.” Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828,\n829 (Tex. 2009). Thus, “the dispositive inquiry is whether the insured intended\nto inflict damage or injury. To forfeit coverage, the insured must intend to\nharm, not merely intend to act.” Id. at 833; see State Farm Fire & Cas. Co. v.\nS.S., 858 S.W.2d 374, 378 (Tex. 1993) (“[A]n insured intends to injure or harm\nanother if he intends the consequences of his act, or believes that they are\nsubstantially certain to follow.” (citing RESTATEMENT (SECOND) OF TORTS § 8A\n(1965))).\n “Ordinarily, whether an insured intended harm or injury to result from\nan intentional act is a question of fact.” S.S., 858 S.W.2d at 378. But here,\nthere are no genuine issues of material fact as to whether PSI intended a\njudgment to be entered against it or whether PSI believed it was substantially\ncertain a judgment would be entered against it if it refused the Titeflex\nsettlement. “[T]he mere knowledge and appreciation of a risk—something\nshort of substantial certainly—is not intent.” Id. (quoting W. PAGE KEETON ET\nAL., PROSSER AND KEETON ON THE LAW OF TORTS § 8, at 35–36 (5th ed. 1984)).\n PSI claims that, far from being substantially certain that a judgment\nwould be entered against it if it refused the Titeflex settlement, PSI’s appellate\ncounsel repeatedly advised it that Titeflex likely would not succeed on its\ncounterclaim. Mid-Continent points to the fact that PSI knew its claim against\nTiteflex was unlikely to succeed. But the issues with PSI’s claim are due to\nMid-Continent’s actions, not PSI’s; Mid-Continent’s expert lost the alleged\nfaulty flex connector that Titeflex manufactured and yet it was Mid-Continent\nthat decided to assert a claim against Titeflex. Regardless, these problems\n 10\n\f Case: 17-20652 Document: 00514851963 Page: 11 Date Filed: 02/26/2019\n\n\n\n No. 17-20652\nlargely concern the viability of PSI’s claim against Titeflex, not Titeflex’s\ncounterclaim. Thus, the district court did not err in concluding that Exclusion\nq does not apply. Because Exclusion q does not bar coverage, Mid-Continent\nowes PSI coverage for the entire Titeflex judgment. We thus reverse the\ndistrict court’s conclusion that the PLE does not cover the entire Titeflex\njudgment and hold that it does. 9\n III. Conclusion\n For the reasons stated above, we AFFIRM in part, REVERSE in part,\nand REMAND to the district court to enter judgment consistent with this\nopinion.\n\n\n\n\n 9 Because PSI prevailed below, the district court awarded PSI attorney’s fees pursuant\nto § 38.001 of the Texas Civil Practice and Remedies Code. Mid-Continent argues this was\nerror because PSI should not have prevailed. Because we agree PSI is the prevailing party,\nMid-Continent’s argument fails.\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371535/", "author_raw": "HAYNES, Circuit Judge:"}]}	JONES	HAYNES	OLDHAM	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594282/	Published	1	0	0	2,019	2	[ { "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...
4,595,068		United States v. Martin Araiza-Jacobo	2019-02-28	17-40958	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "STUART KYLE DUNCAN, Circuit Judge:", "type": "010combined", "text": "Case: 17-40958 Document: 00514854945 Page: 1 Date Filed: 02/28/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 17-40958\n Fifth Circuit\n\n FILED\n February 28, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nMARTIN ARAIZA-JACOBO,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n Martin Araiza-Jacobo was caught attempting to cross the United States\nborder carrying two bags of hard candies impregnated with over 5.1 kilograms\nof methamphetamine. The central issue at Araiza-Jacobo’s criminal trial was\nwhether he knew what he was really carrying. The district court instructed the\njury it could find Araiza-Jacobo had culpable knowledge if he had been\n“deliberately ignorant” of the disguised drugs. “We have often cautioned\nagainst the use of the deliberate ignorance instruction,” United States v. Oti,\n872 F.3d 678, 697 (5th Cir. 2017), because it can lead juries to dilute the mens\nrea requirement in criminal statutes. We conclude it was error to give the\ninstruction here. But we also conclude it was harmless error, given the\n\f Case: 17-40958 Document: 00514854945 Page: 2 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nsubstantial evidence that Araiza-Jacobo actually knew he was carrying illicit\ncandy. We therefore affirm his conviction.\n I.\n A.\n Araiza-Jacobo worked as a cruzador (“crosser” in Spanish), carrying\ngoods back and forth, on foot, over the Gateway Bridge connecting Brownsville,\nTexas to Matamoros, Mexico. He commonly delivered food and groceries,\nearning five or six dollars per trip. Though not a citizen, Araiza-Jacobo is a\nlawful permanent resident of the United States. As a regular cruzador who\nmade multiple trips across the border every working day, Araiza-Jacobo was\nknown to the U.S. border patrol agents who guarded the bridge.\n On one of these trips, when crossing the bridge from Mexico into the\nUnited States, Araiza-Jacobo was inspected by Oscar Garcia, a border agent\nwith over ten years of experience. Araiza-Jacobo told Garcia that he was going\nhome and that he was crossing with two bags of candy and two tortas\n(sandwiches). By all accounts, Araiza-Jacobo did not appear excessively\nnervous as he approached Garcia. The two bags looked identical and were\nlabeled “El Piñatero Mega, Piñata Party Candy Mix.” The bags were partly\ntransparent, revealing the candy inside. Araiza-Jacobo attempted to divert the\nagents’ attention away from the candy bags with the sandwiches—which\napparently smelled especially delicious because it was around lunchtime.\n Despite the distraction, within twelve seconds Garcia suspected there\nwas something “wrong” with the bags. The “weight” of the bags and their\n“texture” felt “kind of odd.” He could see “through the clear [part of the bags],\nwhere you [could] see what was inside, that the specific contents wasn’t [sic]\nwhat was … said to be outside.” Upon closer inspection, Garcia detected two\ndistinct types of candies, one that matched the graphics on the bags and one\nthat did not. Garcia sent the bags through an x-ray machine and noticed that\n 2\n\f Case: 17-40958 Document: 00514854945 Page: 3 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nthe two types of candies appeared different in the x-ray images. Garcia and his\npartner agent, Eliodoro Ozuña, observed that the mismatched candies were\nunusually hard. Araiza-Jacobo became “really nervous” only after officials\nbegan a closer inspection of the bags. When asked why the candies were so\nhard, Araiza-Jacobo suggested they were “old candy.” Although the packaging\nstated the candies were lollipops, some of the candies had no sticks.\n The irregular candies, when opened with a knife, spilled out a crystalized\n“white powdery substance.” Araiza-Jacobo suggested the substance was “Sal-\nLimon”—a salty and sour powder sometimes sold as candy. Garcia and Ozuña\ndid not believe Araiza-Jacobo and handcuffed him. The agents called in a\ncanine officer, whose dog alerted to the substance. A narcotics test kit yielded\npositive for methamphetamine. As it turned out, there were just over five\nkilograms of 98% pure methamphetamine inside the candies. Besides the\nsandwiches and bags, Araiza-Jacobo also had $440 and a battered Resident\nCard in his possession.\n After the drugs were discovered, two Homeland Security Investigations\nagents, George Lopez and Javier Mata, interrogated Araiza-Jacobo for several\nhours. Araiza-Jacobo waived his Miranda rights and willingly participated.\nAlthough Araiza-Jacobo answered the officers’ questions without hesitation,\nhe contradicted himself and altered his story several times.\n During the interview, Araiza-Jacobo stated he met a vendor selling\ncandy next to the bridge, who introduced him to a man who needed two bags\nof candy brought into the United States for a payment of seven dollars. Araiza-\nJacobo thought the man “looked trustworthy.” He observed the bags, saw “they\nwere candies,” and thought they “looked okay.” He also claimed the man said\nhe would later call Araiza-Jacobo with the name and description of a woman\nwho would receive the candy.\n\n\n 3\n\f Case: 17-40958 Document: 00514854945 Page: 4 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\n Araiza-Jacobo pointed out a phone number in his contacts belonging to\nthe unknown man, and he allowed Lopez to examine his phone. Lopez noted\nseveral calls between Araiza-Jacobo’s phone and the unknown man’s number.\nUpon this revelation, Araiza-Jacobo began to change his story and continued\nto do so as more phone data came to light. Araiza-Jacobo had not mentioned\nthese additional calls in his original story. Instead, he had suggested that his\ncontact with the man had been more limited and that he did not know the\nman’s name and had never seen him before. According to Lopez, Araiza-Jacobo\nwas often evasive, answering questions not actually asked him. Finally,\nAraiza-Jacobo admitted he had been “ignorant” and “a dumbass.”\n Araiza-Jacobo stated that he had $440 in his possession because he was\nsaving all the money he could from his odd jobs to get a new Resident Card,\nwhich was worn down through constant use. He was able to save all his\nearnings because his wife gave him money. Araiza-Jacobo later changed this\nstory to say that his wife had not given him money in two years, but he still\nlived in a small house next to her house.\n B.\n The government charged Araiza-Jacobo with four crimes: Possessing a\nSchedule II controlled substance (methamphetamine) with intent to distribute,\nconspiring to do so, importing methamphetamine, and conspiring to do so. See\n21 U.S.C. §§ 841, 846, 952, 960, 963. Each crime has a mens rea requirement,\nmeaning the government must prove the defendant committed the offense\n“knowingly and intentionally.” Id.; see also United States v. Moreno-Gonzalez,\n662 F.3d 369, 372–74 (5th Cir. 2011); United States v. Morin, 627 F.3d 985, 989\n(5th Cir. 2010) (applying mens rea requirement). Araiza-Jacobo pleaded not\nguilty, contending he was unaware of the drug’s presence in the candy bags.\n At trial, because it was undisputed that Araiza-Jacobo brought\nmethamphetamine into the United States from Mexico, the only issue was\n 4\n\f Case: 17-40958 Document: 00514854945 Page: 5 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nwhether he acted knowingly and intentionally. The government proceeded on\ntwo alternative theories of guilt: (1) Araiza-Jacobo had actual knowledge that\nhe was carrying a controlled substance; or (2) he had remained deliberately\nignorant of the drugs and of the schemes to import and distribute them.\n Jesus Estrada Gerrero, a cruzador and friend of Araiza-Jacobo, testified\nat trial that he and Araiza-Jacobo had spent time together a few days before\nthe arrest. While together, Estrada received a phone call from an unknown\nman in Matamoros, asking whether Estrada “could cross a piñata and a box of\ncandy” and then, once in the United States, ship those items to Atlanta.\nEstrada declined because he did not know how to read, write, or ship things.\nAraiza-Jacobo, who had been listening, asked what the call had been about.\nAfter learning the details of the job, he requested the number, saying, “I’ll do\nit.” After calling the number and speaking with the anonymous man, Araiza-\nJacobo told Estrada he had agreed to bring the goods across the bridge. Estrada\ntestified that such random requests are not unusual for cruzadores. He also\ntestified, however, that if someone wanted goods from Mexico, he would ask for\ncash and then purchase the items in Mexico himself. Estrada explained he was\nvery careful about what he brought across the border because he feared\ntransporting something illegal: “You don’t know what they might have\ninside[.]” He cautioned Araiza-Jacobo about bringing goods from Mexico.\n Dora Torres, who worked at a store near the Gateway Bridge in\nBrownsville, also testified. She explained she would occasionally ask Araiza-\nJacobo to bring her a torta or candy from Mexico, including on the day of his\narrest. Araiza-Jacobo had confided to Torres he was struggling to make ends\nmeet, and she recommended he go north to find a better job. Araiza-Jacobo’s\nestranged wife, Christina Araiza, also testified. She described Araiza-Jacobo\nas “street savvy” and a “very smart man” who knew “what’s right and …\nwrong.” She said his arrest surprised her: She “never thought he would do\n 5\n\f Case: 17-40958 Document: 00514854945 Page: 6 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nsomething like that” because “he was always against everything illegal.”\nAgents Garcia and Ozuña testified, relating the facts of their encounter with\nAraiza-Jacobo and their discovery of the drugs. Defense counsel introduced\nvideo evidence of the interrogation conducted by Lopez to establish that\nAraiza-Jacobo consistently maintained he knew nothing about the drugs.\n After both sides had rested, the parties and the trial judge had a\npreliminary jury charge conference. The prosecution and the defense debated\nat length whether to include a deliberate ignorance instruction. Over defense\ncounsel’s objection, the district court decided that the instruction would be\nappropriate. The district court explained its reasoning as follows:\n [T]he video that was introduced by the defense consistently had\n the Defendant stating on numerous occasions that he had no\n knowledge of the transaction nor the individuals. But the\n inconsistencies that have been brought up by the Government,\n including the scenario as testified by his friend Mr. Estrada as to\n how the transaction was initiated in terms of Mr. Araiza knowing\n of the details and Mr. Estrada denying the transaction because of\n the uncertainty of the … product and the shipping to Atlanta, all\n raise significant fact issues that this court believes warrant the\n deliberate ignorance charge.\n\nThe jury ultimately received this instruction: “You may find that a Defendant\nhad knowledge of a fact if you find that the Defendant was deliberately\nignorant. Ignorant meaning that the Defendant deliberately closed his eyes to\nwhat otherwise would have been obvious to him.” But the district judge warned\nthe jury that it could not convict Araiza-Jacobo merely because he was\n“negligent, careless, or foolish” when transporting the methamphetamine\nacross the border. The judge also gave a cautionary instruction, clarifying that\n“[d]eliberate ignorance does not lessen the Government’s burden to show\nbeyond a reasonable doubt that the knowledge elements of the crimes have\nbeen satisfied.” In closing arguments, the prosecutor expressly referenced the\ndeliberate ignorance theory, along with the actual knowledge theory.\n 6\n\f Case: 17-40958 Document: 00514854945 Page: 7 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\n The jury convicted Araiza-Jacobo on all four counts. The district court\nsentenced him to the statutory minimum of 10 years’ imprisonment for each\ncount—to be served concurrently—representing a downward variance from the\nsentencing guidelines.\n Araiza-Jacobo appeals, contending the district court reversibly erred by\ninstructing the jury on deliberate ignorance.\n II.\n Because Araiza-Jacobo objected to the deliberate ignorance instruction,\nwe review the district court’s giving of that instruction for abuse of discretion.\nUnited States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002). “The standard of\nreview of a defendant’s claim that a jury instruction was inappropriate is\n‘whether the court’s charge, as a whole, is a correct statement of the law and\nwhether it clearly instructs jurors as to the principles of law applicable to the\nfactual issues confronting them.’” United States v. Lara-Velasquez, 919 F.2d\n946, 950 (5th Cir. 1990) (quoting United States v. Stacey, 896 F.2d 75, 77 (5th\nCir. 1990)). The court “may not instruct the jury on a charge that is not\nsupported by evidence.” Id. “In assessing whether evidence sufficiently\nsupports a particular jury instruction, this Court views the evidence and all\nreasonable inferences that may be drawn from the evidence in the light most\nfavorable to the Government.” United States v. Cessa, 785 F.3d 165, 185 (5th\nCir. 2015) (internal quotation marks omitted). Review of a deliberate ignorance\ninstruction is “a fact-intensive endeavor” based on “the totality of the\nevidence.” United States v. St. Junius, 739 F.3d 193, 204 (5th Cir. 2013).\n III.\n A.\n We have stressed that a deliberate ignorance instruction “should rarely\nbe given.” United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007); see also,\ne.g., United States v. Oti, 872 F.3d 678, 697 (5th Cir. 2017) (observing “‘[w]e\n 7\n\f Case: 17-40958 Document: 00514854945 Page: 8 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nhave often cautioned against the use of the deliberate ignorance instruction’”)\n(quoting United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003));\nsee also, e.g., United States v. Bieganowski, 313 F.3d 264, 289 (5th Cir. 2002);\nUnited States v. Peterson, 244 F.3d 385, 395 (5th Cir. 2001). The instruction is\nappropriate only when “the evidence shows (1) [the defendant’s] subjective\nawareness of a high probability of the existence of illegal conduct and\n(2) purposeful contrivance to avoid learning of the illegal conduct.” Nguyen,\n493 F.3d at 619. The first prong often overlaps with an inquiry into a\ndefendant’s actual knowledge, because “the same evidence that will raise an\ninference that the defendant had actual knowledge of the illegal conduct\nordinarily will also raise the inference that the defendant was subjectively\naware of a high probability of the existence of illegal conduct.” Lara-Velasquez,\n919 F.2d at 952. “Thus, in many cases, the propriety of a deliberate ignorance\ninstruction depends upon evidence that the defendant purposely contrived to\navoid learning of the illegal conduct—the second prong of the deliberate\nignorance test.” Id. “The defendant’s purposeful contrivance to avoid guilty\nknowledge may be established by direct or circumstantial evidence.” Id.\n We reiterate our reservations about deliberate ignorance instructions:\n“The concern is that once a jury learns that it can convict a defendant despite\nevidence of a lack of knowledge, it will be misled into thinking that it can\nconvict based on negligent or reckless ignorance rather than intentional\nignorance.” Oti, 872 F.3d at 697 (internal quotation marks omitted). This\nwould dilute the mens rea requirement to a weak “should have known”\nstandard, which eviscerates the law’s requirement that the defendant acted\n“knowingly.” Id. “[T]he district court should not instruct the jury on deliberate\nignorance when the evidence raises only the inferences that the defendant had\nactual knowledge or no knowledge at all of the facts in question.” Id.\n\n\n 8\n\f Case: 17-40958 Document: 00514854945 Page: 9 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\n After reviewing the totality of the evidence, we conclude that the district\ncourt erred by giving a deliberate ignorance instruction. To begin, we agree\nwith the government there was sufficient evidence on prong one—that Araiza-\nJacobo had “subjective awareness of a high probability of the existence of\nillegal conduct.” Nguyen, 493 F.3d at 619. For example, Araiza-Jacobo’s\nestranged wife described him as “street savvy” and a man who knew right from\nwrong. Araiza-Jacobo’s friend Estrada testified he had cautioned Araiza-\nJacobo many times about bringing goods from Mexico. When Lopez commented\nupon the several calls between Araiza-Jacobo’s phone and the unknown man’s\nphone, Araiza-Jacobo began to change his story about the events leading up to\nhis arrest. His attempts to misdirect the agents with the sandwiches and the\nage and identity of the candy also suggest he knew there was more than just\ncandy in the bags. Together these facts support the inference that Araiza-\nJacobo had the required subjective awareness. See id. (first prong is met when\n“‘the Government presents facts that support an inference that the particular\ndefendant subjectively knew his act to be illegal,’” including evidence of\ndefendant’s “[s]uspicious and erratic behavior”) (quoting Lara-Velasquez, 919\nF.2d at 952) (emphasis in original).\n But there is virtually no evidence to support the second prong of the\ninquiry—whether Araiza-Jacobo engaged in a “‘purposeful contrivance to avoid\nlearning of the illegal conduct.’” Peterson, 244 F.3d at 395 (quoting United\nStates v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999)). The evidence points\nthe other way: for instance, there is evidence that Araiza-Jacobo observed the\nbags and thought they looked fine, and also that he thought the unnamed man\n“looked trustworthy.” Nor do we find evidence that the circumstances were “‘so\noverwhelmingly suspicious that [Araiza-Jacobo’s] failure to conduct further\ninspection or inquiry suggests a conscious effort to avoid incriminating\nknowledge.’” Nguyen, 493 F.3d at 621 (quoting United States v. Daniel, 957\n 9\n\f Case: 17-40958 Document: 00514854945 Page: 10 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nF.2d 162, 169–70 (5th Cir. 1992)). Neither the district court’s explanation for\ngiving the instruction nor the government’s arguments on appeal grapple with\nthe lack of evidence supporting the second prong of the test. See, e.g., Oti, 872\nF.3d at 697 (concluding deliberate ignorance instruction was inappropriate\nwhen “[t]he government failed to cite … specific evidence in the record that\ndemonstrates that [defendants] purposely contrived to avoid learning of the\n[illegal] activities”).\n The government’s argument on appeal demonstrates confusion on this\npoint. Its principal brief contends that, “[a]s an experienced crosser, [Araiza-\nJacobo] should have noted the same things [Garcia] noted: the bags were too\nheavy, some of the candies were rock-hard, some of the candies were not\ndepicted on the outside of the bags, and the bags had been opened and\nresealed.” (Emphasis added). This argument is improper. We will not water\ndown the mens rea requirement of the charged crimes. The government cannot\nconvict Araiza-Jacobo for what he should have known—that is, for negligence,\ncarelessness, or foolishness—but only by proving beyond a reasonable doubt\nthat he “knowingly and intentionally” committed the proscribed conduct. See,\ne.g., Lara-Velasquez, 919 F.3d at 951 (“If the choice is simply between a version\nof the facts in which the defendant had actual knowledge, and one in which the\ndefendant was no more than negligent or stupid, the deliberate ignorance\ninstruction is inappropriate.”); United States v. Kuhrt, 788 F.3d 403, 417 (5th\nCir. 2015) (“The proper role of the deliberate ignorance instruction is not as a\nbackup or supplement in a case that hinges on a defendant’s actual\nknowledge.”).\n Because the instruction was not supported by evidence showing Araiza-\nJacobo engaged in any purposeful contrivance to avoid learning of the illegal\nconduct, the district court erred.\n\n\n 10\n\f Case: 17-40958 Document: 00514854945 Page: 11 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\n B.\n Even when an erroneous deliberate ignorance instruction is given, the\nerror “is harmless where there is substantial evidence of [the defendant’s]\nactual knowledge.” Oti, 872 F.3d at 698; see also, e.g., St. Junius, 739 F.3d at\n204–05; Mendoza-Medina, 346 F.3d at 134. “Substantial evidence means\nrelevant evidence acceptable to a reasonable mind as adequate to support a\nconclusion.” Simmons v. United States, 406 F.2d 456, 464 (5th Cir. 1969)\n(citations omitted).\n Araiza-Jacobo’s credibility problems play a significant role in the\nharmless error analysis. He initially told the agents he had spoken to the\nunknown man only once on the phone—but the phone records revealed\nnumerous calls between them. He also gave conflicting accounts of whether his\nestranged wife gave him money, leading to justified suspicion about how he\nactually earned an income and the $440 he was carrying. It is clear from the\nrecord that Araiza-Jacobo, though appearing to cooperate with investigators,\nwas not interested in telling them the whole story. We have held that “less\nthan credible stories,” including inconsistent stories, can show knowledge.\nUnited States v. Casilla, 20 F.3d 600, 606 (5th Cir. 1994); see also, e.g., United\nStates v. Lopez-Monzon, 850 F.3d 202, 208 (5th Cir. 2017) (“An ‘implausible\naccount provides persuasive circumstantial evidence of the defendant’s\nconsciousness of guilt.’”) (quoting United States v. Diez-Carreron, 915 F.2d 951,\n955 (5th Cir. 1990)); United States v. Moreno, 185 F.3d 465, 471–72 (5th Cir.\n1999) (explaining that “inconsistent statements” can “indicate guilty\nknowledge”) (citations omitted). Araiza-Jacobo argues these inconsistencies\nwere not “substantial.” We disagree. They related not only to minor details and\npersonal background information, but also to the extent and nature of his\ncontacts with the unknown man who gave him the drugs. That information\nwas central to the question of his knowledge.\n 11\n\f Case: 17-40958 Document: 00514854945 Page: 12 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\n Moreover, the large quantity of drugs seized counts as circumstantial\nevidence of Araiza-Jacobo’s actual knowledge of illegal activity. A high value\nor quantity of drugs can provide circumstantial evidence of knowledge. See\nLopez-Monzon, 850 F.3d at 208 (explaining a “particularly high value of drugs”\nmay be “probative of knowledge”); United States v. Garcia-Flores, 246 F.3d 451,\n454-55 (5th Cir. 2001) (large “quantity of drugs” provides evidence for requisite\n“knowledge element”). The quantity of drugs in this case—5.1 kilograms—was\nsignificant and suggests that a drug trafficker would not have entrusted the\nshipment to an untested courier. Araiza-Jacobo counters that no competent\nevidence shows the value of the drugs. It is true that the dollar figure thrown\nout as part of a question by Lopez during the interrogation—$500,000—was a\nhypothetical and not a statement of fact. But the agents seized more than five\nkilograms of methamphetamine, and that amount cannot be characterized as\nsmall or insignificant.\n Finally, other evidence suggests Araiza-Jacobo had actual knowledge of\nthe drugs. The agents testified at trial that, when approaching them at the\ncheckpoint, he tried to distract their attention from the bags with the\nsandwiches. He also sought to explain away the candy’s unusual texture\nbecause it was “old.” And when the agents discovered the powdery substance\nin the mismatched candies, he told the agents it was likely “Sal-Limon.” These\nattempts to misdirect the agents suggest that Araiza-Jacobo had actual\nknowledge of the candy bags’ illicit contents.\n We therefore conclude that the government introduced substantial\nevidence showing Araiza-Jacobo had actual knowledge that the candy bags\ncontained controlled substances. See, e.g., United States v. Wofford, 560 F.3d\n341, 354 (5th Cir. 2009) (explaining “[t]he evidence supporting the inference\nthat [the defendant] was subjectively aware that his conduct was unauthorized\n\n\n 12\n\f Case: 17-40958 Document: 00514854945 Page: 13 Date Filed: 02/28/2019\n\n\n\n No. 17-40958\nand illegal also supports the inference that he had actual knowledge”).\nAccordingly, we find the error in the jury instruction was harmless.\n AFFIRMED.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372321/", "author_raw": "STUART KYLE DUNCAN, Circuit Judge:"}]}	SMITH	DUNCAN	ENGELHARDT	1	{"SMITH": ", Circuit", "DUNCAN": ", Circuit", "ENGELHARDT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595068/	Published	1	0	0	2,019	2	[ { "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...
4,595,267	William PARRISH; Joshua D. Ellestad; Mario Alfaro; Thomas J. Beckett; Matthew S. Robbins, Plaintiffs - Appellees v. PREMIER DIRECTIONAL DRILLING, L.P., Defendant - Appellant	Parrish v. Premier Directional Drilling, L.P.	2019-02-28	17-51089	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Before SMITH, BARKSDALE, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "RHESA HAWKINS BARKSDALE, Circuit Judge:", "type": "010combined", "text": "Case: 17-51089 Document: 00514856215 Page: 1 Date Filed: 02/28/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 28, 2019\n No. 17-51089 Lyle W. Cayce\n Clerk\n\nWILLIAM PARRISH; JOSHUA D. ELLESTAD; MARIO ALFARO; THOMAS\nJ. BECKETT; MATTHEW S. ROBBINS,\n\n Plaintiffs - Appellees\n\nv.\n\nPREMIER DIRECTIONAL DRILLING, L.P.,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore SMITH, BARKSDALE, and HO, Circuit Judges.\nRHESA HAWKINS BARKSDALE, Circuit Judge:\n Premier Directional Drilling, L.P., challenges the summary judgment\nawarded William Parrish, Joshua D. Ellestad, Mario Alfaro, Thomas J.\nBeckett, and Matthew S. Robbins pursuant to the Fair Labor Standards Act\n(FLSA), 29 U.S.C. §§ 201–19. At issue are the district court’s determining, as\na matter of law: plaintiffs were employees, not independent contractors; and\na three, instead of two, year limitations period for awarding damages was\napplicable, but without ruling Premier acted willfully. VACATED and\nRENDERED.\n\f Case: 17-51089 Document: 00514856215 Page: 2 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n I.\n Premier, which specializes in directional drilling for oil, is headquartered\nin Houston, Texas. As described by Premier’s vice president: “Directional\ndrilling is the process of drilling a well . . . down a path that begins vertical to\nthe surface and, then, at the ‘kickoff point’ drills at an angle horizontal to the\nsurface”. And, as noted by one of Premier’s employees, sometimes the target\noil is “thousands of yards below ground and up to several miles distant from\nthe drilling rig location”.\n Directional drilling is useful in avoiding obstructing subterranean\nobjects, and can lead to efficient oil extraction. As part of the directional-\ndrilling process, Premier utilizes directional-driller-consultants (DD) and\nmeasurement-while-drilling-consultants (MWD).\n DDs and MWDs have different jobs. A DD advises the oil company’s\ndriller how best to effectuate the well plan—provided to the DD—that involves\na directional drill. As indicated, oil companies perform the drilling themselves.\nBeing contrary to Premier’s policy to do so, DDs generally do not operate the\ndrill.\n A MWD takes measurements during the directional drill that are\nprovided to the DD and provide a basis for the DD’s opinion. An error in the\ndirectional-drilling advice by the DD can lead to Premier’s losing a significant\namount of money—sometimes hundreds of thousands of dollars.\n Plaintiffs are DDs. Some DDs are classified by Premier as employees;\nsome, independent contractors (IC). Plaintiffs claim they were mis-classified\nas ICs, and are, instead, employees to whom the FLSA applies.\n Premier utilizes unrelated staffing companies to hire ICs. Those\ncompanies enter into arrangements with ICs, which may include non-\ndisclosure agreements, and are also the entities through which Premier paid\n\n\n 2\n\f Case: 17-51089 Document: 00514856215 Page: 3 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nplaintiffs’ consulting businesses. (Plaintiffs created consulting businesses\nthrough which they operate as putative ICs.)\n Again, Premier’s DDs advise it how to perform a directional drill, which\nit undertakes. Premier, formed in 2012, has always used ICs to some extent.\nBut, according to Premier’s CFO, “[i]n 2015 there was a drastic downturn in\nthe oilfield industry and Premier was forced to significantly reduce its\nworkforce from 150 employees to just 30”. Then-Premier employees, plaintiffs\nAlfaro and Robbins were laid-off that year. But Premier did not let them go,\nentirely. Both Alfaro’s and Robbins’ termination paperwork show Premier was\n“[s]wapping” or “mov[ing]” them to become ICs. Plaintiffs Parrish, Beckett,\nand Ellestad worked as putative ICs for Premier, but it does not appear they\nwere subject to the 2015 transition.\n Not surprisingly, IC DDs and employee DDs have essentially the same\njob duties. Premier’s vice president agreed that “the only difference between\nan [IC DD] and an employee [DD] . . . is their ability to turn down work” “[a]nd\nnegotiate their pay”.\n All DDs are supervised by a coordinator, but also perform their task with\nlittle to no intervention. And, all DDs undergo mandatory safety training.\nPremier has a drug-and-alcohol policy, and ICs must comply with drug testing\nif required by Premier. All DDs have to use the same WinSERVE program\n(computer program used during directional drilling), which has an annual cost\nsomewhere between $4,000 to $5,000. Regardless if an IC had WinSERVE on\nhis own computer, Premier would have a copy of the WinSERVE program\navailable at the job-site for use by employees and ICs.\n Employees, as salaried workers, could not decline to work a project. ICs\ncould decline to do so, but accept others. For example, Parrish would turn\ndown jobs when he was out of town, and Premier would offer him other jobs\nlater. Additionally, ICs would coordinate with each other or Premier when\n 3\n\f Case: 17-51089 Document: 00514856215 Page: 4 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nthey left a rig site. For an employee to request vacation time, he had to\ncomplete a form; ICs, to call Premier.\n IC DDs often bring their own tools, but not always. For example,\nPremier ensured its drill sites had a laptop with the appropriate software\navailable for use. Parrish was one putative IC who used a Premier-provided\nlaptop. Premier also ensured its DDs had fire-retardant clothing, if they did\nnot have it already. It is unclear the extent to which this clothing featured\nPremier’s logo or designated who was an IC.\n Premier also provides the MWDs to the DDs; according to Premier’s\nCEO, MWDs are “traditionally” paid by Premier. As noted earlier, MWDs\nprovide the DDs the measurement information often crucial to the DDs’ ability\nto perform their job. While MWDs are not needed on some drills, they are\nessential on others. MWD services were present on most of Premier’s\ndirectional-drilling projects. The equipment used by MWDs is very expensive,\nand not provided by DDs. For example, the EVO tool (utilized by MWDs to\nobtain data from the well) cost around $800,000.\n Premier’s ICs are paid differently from its employees. According to\nPremier’s CFO, “[e]mployee [DDs] are paid a salary plus a day bonus for each\nday they’re on the job”, “car allowance”, “per diem” and “benefits”. On the other\nhand, IC DDs are paid by the job, but receive mileage for travel. According to\nPremier’s CFO, they are “covered by Premier’s general liability insurance\nwhile they’re on the job”.\n While employees could be promoted within Premier, plaintiffs could not.\nNevertheless, plaintiffs, as putative ICs, could be elevated to a higher pay\nclassification based on experience. For example, if an IC advanced from\nContract-DD2 to Contract-DD3, on the pay chart effective 20 January 2015,\nthe IC would receive $1,170, instead of $1,080, per day. The decision whether\nto move an IC up the pay scale was made by a Premier manager. While\n 4\n\f Case: 17-51089 Document: 00514856215 Page: 5 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nplaintiffs could hypothetically negotiate for higher pay, it is unclear how often\nthey did so.\n Similarly, Premier’s DD employees’ pay scale was listed in the same\nformat, even on the same page, as the ICs’ pay scale. Employees could\nsimilarly be upgraded from DD-2 to DD-3 and receive a higher base salary and\ndaily bonus. These pay scales were amended over time.\n Premier did not use a bidding system to hire ICs. Instead, it would select\nwhich IC it wished to use for the job, and a coordinator would call to offer the\nproject. Occasionally, ICs would call Premier when “hungry” and request\nwork, even if paid less.\n In May 2016, Parrish filed this FLSA collective action against Premier,\nclaiming it “misclassified [him and all others similarly situated] as\nindependent contractors” and failed to properly compensate them for overtime,\nas required by 29 U.S.C. §§ 206, 207, 215(a)(2), and alleging Premier did this\n“knowingly, willfully, or in reckless disregard”. The complaint requested relief\nin the form of, inter alia, unpaid compensation.\n Plaintiff was granted leave to seek additional similarly-situated opt-in\nplaintiffs. But, as of the court’s awarding summary judgment, there were only\nfour opt-in plaintiffs; it appears approximately 90 received notice. (Seven other\nopt-in plaintiffs withdrew their consent.)\n The parties in July 2017 filed cross-motions for summary judgment.\nThat November, the district court, inter alia, granted plaintiffs’ motion and\ndenied Premier’s. Parrish v. Premier Directional Drilling, L.P., 280 F. Supp.\n3d 954, 975 (W.D. Tex. 2017).\n In its comprehensive and detailed opinion, the district court used the\nstandard format—as is done in this opinion—for evaluating five factors\nrelating to the employment-status determination, as provided in United States\nv. Silk, 331 U.S. 704 (1947). Parrish, 280 F. Supp. 3d at 961–70. As discussed\n 5\n\f Case: 17-51089 Document: 00514856215 Page: 6 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\ninfra, the court concluded one factor supported IC status; two, employee status;\nand two were neutral. Id. And, as is standard, it also considered factors not\nexplicitly part of the Silk test. Id. at 968–69.\n Based on its analysis of all of the factors, the court concluded plaintiffs\nwere employees: “While there are certainly facts supporting the classification\nof [p]laintiffs as [ICs], the fact that employee DDs and IC DDs were treated the\nsame, and supervised in the same manner, with no appreciable differences\nother than how they were compensated, factors most heavily in the [c]ourt’s\nanalysis here”. Id. at 969. Using a three-year limitations period, the court\nawarded plaintiffs $363,422.00: $181,711.00 in compensatory, and\n$181,711.00 in liquidated, damages. Id. at 975. (The court did not make a\nwillfulness finding for applying the three-year period. See generally id. FLSA\nclaims are “subject to a two-year [limitations] period for ordinary, but a three-\nyear period for willful, violations”. Mohammadi v. Nwabuisi, 605 F. App’x 329,\n332 (5th Cir. 2015) (citing 29 U.S.C. § 255(a)).)\n II.\n As addressed infra, whether a worker is an employee for FLSA purposes\nis a question of law. E.g., Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1045\n(5th Cir. 1987). And, our court “review[s] de novo a district court’s legal\nconclusion as to employment status in a grant of summary judgment”. Hopkins\nv. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008) (citing Carrell v. Sunland\nConstr., Inc., 998 F.2d 330, 332 (5th Cir. 1993)).\n “The court shall grant summary judgment if the movant shows that\nthere is no genuine dispute as to any material fact and the movant is entitled\nto judgment as a matter of law.” Fed. R. Civ. P. 56(a). In evaluating such a\nmotion, “[t]he evidence should be viewed in the light most favorable to the non-\nmoving party, and this court should ‘refrain from making credibility\n\n\n 6\n\f Case: 17-51089 Document: 00514856215 Page: 7 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\ndeterminations or from weighing the evidence’”. Gray v. Powers, 673 F.3d 352,\n354 (5th Cir. 2012) (citation omitted).\n Importantly, “the mere existence of some alleged factual dispute between\nthe parties will not defeat an otherwise properly supported motion for\nsummary judgment; the requirement is that there be no genuine [dispute] of\nmaterial fact”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)\n(emphasis in original).\n “As to materiality, the substantive law will identify which facts are\nmaterial.” Id. at 248. This means “[o]nly disputes over facts that might affect\nthe outcome of the suit under the governing law will properly preclude the\nentry of summary judgment”. Id. As for whether a dispute is genuine, “the\ndispute about a material fact is ‘genuine[ ]’ . . . if the evidence is such that a\nreasonable jury could return a verdict for the nonmoving party”. Id. “If the\nevidence is merely colorable, or is not significantly probative, summary\njudgment may be granted.” Id. at 249–50 (internal citations omitted).\n Our court has addressed the various fact and legal questions present in\nan FLSA action. Brock, 814 F.2d at 1044–45. Unlike the summary judgment\nat issue, the appeal in Brock was from a bench trial. Id. at 1043. The issue\npresented was “whether the operators of [the company’s] fireworks stands\n[were] ‘employees’ within the meaning of the FLSA”. Id.\n In Brock, our court noted: “There are . . . three types of findings involved\nin determining whether one is an employee within the meaning of the Act”. Id.\nat 1044. “First, there are historical findings of fact that underlie a finding as\nto one of the five Silk factors”. Id. Next, “there are those findings as to the\nSilk factors themselves”. Id. This means “[f]indings as to [the Silk factors] are\nplainly and simply based on inferences from facts and thus are questions of\nfact that we may set aside only if clearly erroneous”. Id. (citations omitted).\n(This step, of course, is not used in deciding whether a party is entitled to\n 7\n\f Case: 17-51089 Document: 00514856215 Page: 8 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nsummary judgment, as discussed infra.) Finally, “[t]he ultimate finding as to\nemployee status is not simply a factual inference drawn from historical facts,\nbut more accurately is a legal conclusion based on factual inferences drawn\nfrom historical facts”. Id. at 1045. Accordingly, “the ultimate determination\nof employee status is a finding of law subject to de novo consideration by this\ncourt”. Id. (citation omitted).\n Based on finding “labor conditions detrimental to the maintenance of the\nminimum standard of living necessary for health, efficiency, and general well-\nbeing of workers”, Congress enacted the FLSA in 1938. 29 U.S.C. § 202(a).\nSubject to exceptions, the statute defines “employee” as “any individual\nemployed by an employer”. Id. § 203(e)(1).\n “Given the remedial purposes of the legislation, an expansive definition\nof ‘employee’ has been adopted by the courts.” Usery v. Pilgrim Equip. Co.,\nInc., 527 F.2d 1308, 1311 (5th Cir. 1976); see also McLaughlin v. Seafood, Inc.,\n867 F.2d 875, 877 (5th Cir. 1989). And, it is well-established that “[t]he\ncommon law concepts of ‘employee’ and ‘[IC]’ have been specifically rejected as\ndeterminants of who is protected by the [FLSA]”. Usery, 527 F.2d at 1311\n(footnote omitted).\n The FLSA requires overtime pay when “a workweek [is] longer than forty\nhours”. 29 U.S.C. § 207(a)(1). If an employer violates the overtime-\ncompensation requirement, it is “liable to the employee or employees affected\nin the amount of their unpaid minimum wages, or their unpaid overtime\ncompensation, as the case may be, and in an additional equal amount as\nliquidated damages”. Id. § 216(b).\n “Generally, FLSA claims are subject to a two-year statute of limitations,\nhowever the limitations period is three years for willful violations.” Steele v.\nLeasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (footnote omitted)\n(citing 29 U.S.C. § 255(a)). As discussed, the district court awarded damages\n 8\n\f Case: 17-51089 Document: 00514856215 Page: 9 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nusing the three-year limitations period, but did not make a willfulness finding.\nPremier challenges the damages on that basis. Because, as discussed infra,\nplaintiffs were ICs, it is not necessary to reach the damages issue.\n Plaintiffs must prove four elements to make their prima facie case: “(1)\nthat there existed an employer-employee relationship during the unpaid\novertime periods claimed; (2) that the employee engaged in activities within\nthe coverage of the FLSA; (3) that the employer violated the FLSA’s overtime\nwage requirements; and (4) the amount of overtime compensation due”.\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014)\n(citations omitted). Each element must be proven by a preponderance of the\nevidence. Id. If “the employee establishes a prima facie case, the burden then\nshifts to the employer to ‘come forward with evidence of the precise amount of\nwork performed or with evidence to negative the reasonableness of the\ninference to be drawn from the employee’s evidence’”. Id. (citation omitted).\n Other than challenging the above-discussed three-year limitations\nperiod used for awarding damages, which, as discussed, we need not reach,\nPremier’s appeal focuses solely on the first of the above elements: whether\n“there existed an employer-employee relationship”. Id. (citations omitted). In\nthat regard, the pertinent question is “whether the alleged employees, as a\nmatter of ‘economic reality,’ are ‘economically dependent’ on the business to\nwhich they supply their labor and services”. Brock, 814 F.2d at 1043. This\n“diagnosis is not always easy to perform”. Id. Needless to say, it can be “very\nfact dependent”, with “facts pointing in both directions”. Carrell, 998 F.2d at\n334. “Essentially, our task is to determine whether the individual is, as a\nmatter of economic reality, in business for himself.” Id. at 332 (citing Donovan\nv. Tehco, Inc., 642 F.2d 141, 143 (5th Cir. Unit A Apr. 1981)).\n In FLSA actions, our court primarily uses the earlier-referenced Silk\nfactors to guide the employee vel non analysis. See generally Silk, 331 U.S.\n 9\n\f Case: 17-51089 Document: 00514856215 Page: 10 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n704. Those “five non-exhaustive factors” include: “(1) the degree of control\nexercised by the alleged employer; (2) the extent of the relative investments of\nthe worker and the alleged employer; (3) the degree to which the worker’s\nopportunity for profit or loss is determined by the alleged employer; (4) the skill\nand initiative required in performing the job; and (5) the permanency of the\nrelationship”. Hopkins, 545 F.3d at 343 (citing Herman v. Express Sixty–\nMinutes Delivery Serv., Inc., 161 F.3d 299, 303 (5th Cir. 1998)).\n As noted, “[n]o single factor is determinative”. Id. (citing Brock, 814 F.2d\nat 1043–44). And, obviously, the factors should not “be applied mechanically”.\nBrock, 814 F.2d at 1043; see also Hickey v. Arkla Indus., Inc., 699 F.2d 748, 752\n(5th Cir. 1983) (applying the “economic reality” test in the ADEA context while\nnoting “the test cannot be rigidly applied” and “[i]t is impossible to assign to\neach of these factors a specific and invariably applied weight”).\n Instead, the focus is on “an assessment of the ‘economic dependence’ of\nthe putative employees, the touchstone for this totality of the circumstances\ntest”. Brock, 814 F.2d at 1043–44 (citations omitted); Usery, 527 F.2d at 1311\n(“It is dependence that indicates employee status. Each test must be applied\nwith that ultimate notion in mind.” (emphasis added)). Therefore, “facile labels\nand subjective factors are only relevant to the extent that they mirror\n‘economic reality’”. Brock, 814 F.2d at 1044 (citing Goldberg v. Whitaker House\nCoop., Inc., 366 U.S. 28, 33 (1961)). Stated differently, “it is not what\n[plaintiffs] could have done that counts, but as a matter of economic reality\nwhat they actually do that is dispositive”. Id. at 1047 (emphasis in original)\n(citations omitted); see also id. at 1053 (“[O]nly the economic realities are\nlegally relevant”. (citation omitted)); Usery, 527 F.2d at 1312 (“The controlling\neconomic realities are reflected by the way one actually acts.” (emphasis added)\n(footnote omitted)).\n\n\n 10\n\f Case: 17-51089 Document: 00514856215 Page: 11 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n A.\n First considered is whether, in the light of the summary-judgment record\nat hand, this action is appropriate to be decided by summary judgment. See\ngenerally Anderson, 477 U.S. 242. Along that line, Premier not only challenges\nthe summary judgment awarded plaintiffs, but also requests judgment be\nrendered in its favor. “When parties file cross-motions for summary judgment,\n‘we review each party’s motion independently, viewing the evidence and\ninferences in the light most favorable to the nonmoving party.’” Duval v. N.\nAssurance Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013) (quoting Ford Motor\nCo. v. Tex. Dept. of Transp., 264 F.3d 493, 498 (5th Cir. 2001)). Our inquiry in\nevaluating a summary-judgment motion is “whether the evidence presents a\nsufficient disagreement to require submission to a [fact-finder] or whether it is\nso one-sided that one party must prevail as a matter of law”. Anderson, 477\nU.S. at 251–52.\n As noted, Premier urges our vacating the judgment for plaintiffs and\nrendering judgment in its favor. In the alternative, it urges remand for trial.\nPlaintiffs, likewise, assert this action is appropriate for a summary judgment,\nwhich they maintain, should be affirmed.\n Like every FLSA action in a similar posture, the instant cross-motions\nfor summary judgment are “very fact dependent”. E.g., Carrell, 998 F.2d at\n334; Thibault v. Bellsouth Telecomm., 612 F.3d 843, 848 (5th Cir. 2010)\n(describing this analysis as “highly dependent on the particular situation\npresented” (citing Carrell, 998 F.2d at 334)). As discussed, awarding summary\njudgment requires, inter alia, no “genuine dispute as to any material fact”.\nFed. R. Civ. P. 56(a). Accordingly, as in this instance, summary judgment on\nFLSA employee status can be granted when “there are facts pointing in both\ndirections”, Carrell, 998 F.2d at 334, so long as they do not generate a genuine\ndispute of material fact. That is the situation at hand.\n 11\n\f Case: 17-51089 Document: 00514856215 Page: 12 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n In other words, after reviewing the record, we cannot discern any fact\nthat is both genuinely disputed and could change the outcome of this\nproceeding (no genuine dispute of material fact, as defined supra). There being\nno genuine dispute of material fact, we turn to the second prong for summary-\njudgment review: whether plaintiffs are, or Premier is, “entitled to judgment\nas a matter of law”. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(a).\n B.\n Each of the five, non-exhaustive Silk factors is evaluated, followed by\nconsideration of other factors.\n 1.\n Again, the five Silk factors are: “degree[ ] of control, opportunities for\nprofit or loss, investment in facilities, permanency of relation[,] and skill\nrequired in the claimed independent operation”. Silk, 331 U.S. at 716. Again,\nconsistent with the requisite de novo review for summary judgment, and, in\nthe process, only issues of law being decided, no clear-error analysis is made in\nevaluating the factors.\n a.\n First considered is “the degree of control exercised by” Premier over\nplaintiffs. Hopkins, 545 F.3d at 343 (citing Herman, 161 F.3d at 303). The\ndistrict court concluded this factor was neutral. 280 F. Supp. 3d at 963\n(balancing the control exerted via the work schedules and personnel policies\nwith the lack of control over training and lack of “significant direct supervision\nat the work site”). Based on our de novo review, the control factor favors IC\nstatus.\n “Control is only significant when it shows an individual exerts such a\ncontrol over a meaningful part of the business that [the individual] stands as\na separate economic entity.” Usery, 527 F.2d at 1312–13; Hopkins, 545 F.3d at\n343 (determining whether the employer “controlled the ‘meaningful’ economic\n 12\n\f Case: 17-51089 Document: 00514856215 Page: 13 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\naspects of the business” (citing Brock, 814 F.2d at 1049)). This means we\ndetermine whether the worker has a “viable economic status that can be traded\nto other . . . companies”, keeping in mind that “lack of supervision [of the\nindividual] over minor regular tasks cannot be bootstrapped into an\nappearance of real independence”. Usery, 527 F.2d at 1312. “It is not\nsignificant how one ‘could have’ acted under the contract terms”. Id.; but see\nHerman, 161 F.3d at 303 (considering the contract did “not contain a covenant-\nnot-to-compete”).\n Premier relies upon plaintiffs’ being “free to accept or reject any project”\nand “controll[ing] the manner and method of their work”. Plaintiffs respond:\n“Premier demanded [they] comply with its company policies and procedures”,\nincluding requiring “special permission” to simply leave the workplace and\nmandating certain reports be filed “in Premier’s preferred format”.\nAdditionally, plaintiffs assert a Premier employee instructs them “where their\nassigned job is and when they need to report for duty”, what the well plan is,\nwhat equipment will be at the drill, who can operate the drill, and determines\nwhen a pay raise is in order.\n As stated, the control factor leans in favor of IC status. Premier did not\ndictate how plaintiffs completed the directional-drilling calculations. This is\nsimilar to the situation in Thibault, in which the worker’s supervisors “never\nspecified how [he] should do [his primary task:] splicing” high-voltage cables.\nThibault, 612 F.3d at 847.\n Additionally, although plaintiffs were provided an already-designed well\nplan, they made that plan work. In Thibault, the company provided the\n“blueprints”, yet the worker was not held to be an employee. Id. at 847, 851.\n Nor are we persuaded by the mandated format of reports. At the very\nleast, turning in reports in the way a client wants them is good-client service.\nIn any event, “meeting clients’ specifications and keeping clients informed of\n 13\n\f Case: 17-51089 Document: 00514856215 Page: 14 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\njob progress is consistent with the ‘usual path’ of an [IC]”. Scantland v. Jeffry\nKnight, Inc., 721 F.3d 1308, 1315 (11th Cir. 2013).\n The district court concluded this factor was neutral for primarily three\nreasons. 280 F. Supp. 3d at 963 (citing control over “work schedules”,\n“personnel policies” like “drug testing and safety trainings”, and the “non-\ndisclosure agreements”). None of them reflects the requisite control in\ndetermining employee status.\n Regarding the work schedule, plaintiffs did have certain assigned shifts;\nbut, they did not have to accept a project. On occasion, Premier’s ICs turned\ndown projects without negative repercussion.\n Further, it is quite understandable why Premier would need to know\nwhich DDs were working at any given time. DDs had to work in concert with\nthe rest of the drilling operation. According to a declaration from Premier’s\nvice president, DDs have to “make adjustments to the well plan given what the\ndrill experiences in real time”. Clearly, they could not show up at the drill site\nwhenever they pleased. Given the cooperation required between DDs and drill\noperators, Premier had to know when DDs would be on-site.\n Nor were plaintiffs employees because of safety training and drug\ntesting. To the contrary, requiring everyone working at an oil-drilling site to\nbe educated on safety protocol, and not be under the influence of illegal drugs,\nis required for safe operations. This is consistent with the Occupational Safety\nand Health Act: Premier had a duty to “furnish . . . a place of employment . . .\nfree from recognized hazards that are causing or are likely to cause death or\nserious physical harm to [its] employees”. 29 U.S.C. § 654. In that sense, an\nIC could be a hazard.\n Although requiring safety training and drug testing is an exercise of\ncontrol in the most basic sense of the word, see Control, Black’s Law Dictionary\n(10th ed. 2014) (defining control as, inter alia, “the power or authority to\n 14\n\f Case: 17-51089 Document: 00514856215 Page: 15 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nmanage, direct, or oversee”), and something our court has considered\npreviously, see Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522, 526 (5th Cir.\n2001) (considering employer’s required “drug testing”), it is not dispositive in\nthis action because of the nature of the employment. Requiring plaintiffs to\nundergo safety training and drug testing, when working at an oil-drilling site,\nis not the type of control that counsels in favor of employee status.\n Neither does the existence of the non-disclosure agreement. Talbert v.\nAm. Risk Ins. Co., 405 F. App’x 848, 856 (5th Cir. 2010) (noting existence of a\nconfidentiality agreement, but stating “there is nothing in the confidentiality\nagreement that would have precluded . . . working for other . . . companies so\nlong as . . . the terms of the agreement” were not violated). The non-disclosure\nagreement does not require exclusive employment. Usery, 527 F.2d at 1312–\n13.\n b.\n The second factor evaluated is “the extent of the relative investments of\nthe worker and the alleged employer”. Hopkins, 545 F.3d at 343 (citing\nHerman, 161 F.3d at 303). The district court concluded “this factor favors . . .\nemployee status” in this instance. 280 F. Supp. 3d at 965. We reach the same\nconclusion, but, in this instance accord this factor little weight, in the light of\nthe nature of the industry and the work involved.\n Our court uses a side-by-side comparison method in evaluating this\nfactor. Hopkins, 545 F.3d at 344. To do so, “we compare each worker’s\nindividual investment to that of the alleged employer.” Id. (emphasis in\noriginal) (citing Herman, 161 F.3d at 304). Accordingly, plaintiffs’ investments\nare not aggregated. Id. In other words, “the amount the alleged employer and\n[each worker] each contribute to the specific job the [worker] undertakes” is\ncompared. Thibault, 612 F.3d at 847 (citing Carrell, 998 F.2d at 333).\n\n\n 15\n\f Case: 17-51089 Document: 00514856215 Page: 16 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n Premier urges our circuit to abandon the side-by-side comparison of the\nworker’s investments to the employer’s investments, contending the\ncomparison method was never mentioned in Silk. In Silk, the Court simply\nreferenced “investment in facilities”. Silk, 331 U.S. at 716.\n We need not decide whether we even have the option to abandon the\ncomparison, with doing so arguably being violative of our court’s rule of\norderliness: an earlier decision by our court cannot be overturned absent a\nchange in law or Supreme Court or en-banc decision. E.g., Vaughan v.\nAnderson Reg’l Med. Ctr., 849 F.3d 588, 591 (5th Cir. 2017). The well-\nestablished side-by-side comparison is beneficial to our analysis. Usery, 527\nF.2d at 1313–14.\n In the 1976 Usery opinion, the investments of the employer and the\nlaundry workers were compared. Id. at 1313–14. The opinion noted the\nemployer supplied “[a]ll investment or risk capital”. Id. at 1314. (And our\ncourt did so while faithfully citing the Silk opinion. Id. at 1311 & n.9.)\n More recent precedent has continued this long-accepted methodology.\nSee, e.g., Hopkins, 545 F.3d at 344 (holding “[the employer’s] greater overall\ninvestment in the business scheme convinces us that the relative-investment\nfactor weighs in favor of employee status” (citation omitted)); Brock, 814 F.2d\nat 1052 (“The [workers’] relative investment must be compared with the\ninvestment of [the employer] in order to determine the degree of economic\ndependence.” (citations omitted)).\n Nonetheless, the side-by-side comparison approach does not always\nnecessitate a holding of employee status. In Carrell, our court held plaintiffs\nwere ICs despite the company’s “obviously significant” “overall investment in\neach pipeline construction project”. 998 F.2d at 333. Again, the evaluation of\neach Silk factor must be linked to the overall inquiry of “whether the alleged\nemployees, as a matter of ‘economic reality,’ are ‘economically dependent’ on\n 16\n\f Case: 17-51089 Document: 00514856215 Page: 17 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nthe business to which they supply their labor and services”. Brock, 814 F.2d\nat 1043.\n Obviously, Premier invested more money at a drill site compared to each\nplaintiff’s investments. 280 F. Supp. 3d at 964–65. Premier’s provision of\nMWDs, and the attendant costs, were also critical to plaintiffs’ being able to\ncomplete the job. As previously stated, MWDs provide DDs with the required\ndata to effectuate the well plan. Further, the investment surrounding the\nMWDs was significant. Usery, 527 F.2d at 1314 (“But for [the employer’s]\nprovision of all costly necessities, these [workers] could not operate.”).\n As stated, this factor merits little weight in the light of the other\nsummary-judgment-record evidence supporting IC-status.\n c.\n The third determination is “the degree to which the worker’s opportunity\nfor profit or loss is determined by the alleged employer”. Hopkins, 545 F.3d at\n343 (citing Herman, 161 F.3d at 303). The district court concluded “this factor\nweighs in favor of employee status”. 280 F. Supp. 3d at 966. We hold\notherwise.\n In evaluating this factor, it is important to determine how the workers’\n“profits [depend] on their ability to control their own costs”. Carrell, 998 F.2d\nat 334. For that purpose, evidence gleaned from tax returns can be useful. Id.\n(The limited utility of such returns is described below.)\n Premier relies heavily on plaintiffs’ tax returns, in which they reported\nbusiness profits and attendant expenses. As detailed below, some of the\nclaimed expenses, as well as the profits, were quite significant. (Premier\nconceded at oral argument that no plaintiff lost money when considering solely\nthe profits and expenses stemming from work with Premier.)\n Premier has also emphasized plaintiff Ellestad’s goat farm, which offset\n$190,000 in profits earned from Premier. Citing Thibault, Premier contends\n 17\n\f Case: 17-51089 Document: 00514856215 Page: 18 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nplaintiffs’ additional income and losses from other business ventures is\nrelevant. In Thibault, our court considered plaintiff’s professional-racing\nbusiness venture, sales company, and commercial rental property when\nevaluating whether plaintiff was employed by defendant as a splicer. 612 F.3d\nat 849. Those entities and splicing are obviously different enterprises. See id.\nOur court emphasized that, “[w]hen he worked as a splicer, he also oversaw\n[his other businesses]”. Id. (emphasis in original). Similarly, between jobs\nwith Premier, Ellestad was able to work on his goat farm.\n Plaintiffs respond by referring to Brock. There, our court determined the\nminimal income gained by plaintiffs from selling items in addition to their\nemployer’s product (fireworks) was irrelevant. Brock, 814 F.2d at 1049 (“The\nsale of such incidental items simply is irrelevant as a matter of law.”).\n On this record, Thibault is more on-point. Accordingly, we consider the\nlosses sustained by plaintiffs’ enterprises, such as the goat farm, as a part of\nthe overall analysis of how dependent plaintiffs were on Premier.\n In short, plaintiffs did have enough control over their profits and losses\nto have this factor support IC status. Although Premier had a set pay schedule\nfor ICs based on their experience, plaintiffs made decisions affecting their\nexpenses. Thibault, 612 F.3d at 848 (noting a nonemployee could “increase[ ]\nprofits by controlling costs”); Carrell, 998 F.2d at 333–34.\n And, they did not receive any pay from Premier when they were not\nworking on one of its projects. This is unlike Premier’s employees, who were\npaid even if they were not working on a project. The employees also received\n“a day bonus for each day they[ ] [were] on the job”, a “car allowance”, a “per\ndiem”, and benefits. On the other hand, Premier’s ICs (including plaintiffs as\nputative ICs) were “reimbursed mileage to and from the job” and received a\ndaily rate for pay. (Parrish’s payment records, generated by one of the staffing\n\n\n 18\n\f Case: 17-51089 Document: 00514856215 Page: 19 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\ncompanies used by Premier, indicate his consulting company also received\nbonuses stemming from his work done at Premier.)\n The rate of daily pay for an IC working for Premier could be quite high.\nWhile the range of pay varied, based on the time period, it could well exceed\n$1,000 per day, depending on the IC’s level of classification. For example,\nParrish’s consulting firm, Parrish Consulting LLC, earned $230,033.30 in\n2013. This figure included the per-day pay, a bonus, and mileage. In 2014,\nParrish Consulting LLC earned even more—$279,777.31. In 2015, Parrish\nConsulting LLC reported a little over $40,000 in gross receipts and took over\n$30,000 in deductions.\n Three other plaintiffs show a similar story (Robbins’ tax returns are not\nin the record). In 2014, JD Ellestad Inc. reported almost $190,000 in gross\nreceipts while also taking thousands of dollars in deductions through, inter\nalia, repairs/maintenance, depreciation, and employee-benefit programs. In\n2015, Beckett’s business, Beckett Energy Services LLC, reported over $120,000\nin gross income with total expenses exceeding $30,000 covering deductions for,\ninter alia, travel, meals, and entertainment. Alfaro’s 2015 taxes showed he\nearned over $130,000 in wages while also claiming losses in excess of $26,000\n(such as depreciation, insurance, and travel).\n For this factor, plaintiffs also point to their inability to subcontract as\nevidence of employee status. In support, they cite Hopkins, where our court\nnoted the employer “controlled the hiring, firing, and assignment of\nsubordinate agents”, in ruling this “factor weigh[ed] in favor of employee\nstatus”. Hopkins, 545 F.3d at 344–45. Preventing subcontracting is an\nexercise of control, but it is not dispositive here. Many times, as is the situation\nhere, it is not unreasonable for a company to want to hire a specific person.\nThis is especially the situation when the IC is being hired for his advanced skill\nand specialized expertise.\n 19\n\f Case: 17-51089 Document: 00514856215 Page: 20 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n d.\n Fourth considered are “the skill and initiative required in performing the\njob”. Hopkins, 545 F.3d at 343 (citing Herman, 161 F.3d at 303). The district\ncourt concluded “this factor [was] neutral”. 280 F. Supp. 3d at 967. We hold it\nfavors IC status.\n As a part of this inquiry, whether plaintiffs have “some unique skill set,\nor some ability to exercise significant initiative within the business” is, for\nobvious reasons, evaluated. Hopkins, 545 F.3d at 345 (internal citations\nomitted); see also Usery, 527 F.2d at 1314 (ruling workers showed insufficient\ninitiative when “[a]ll major components open to initiative . . . [were] controlled\nby [the employer]”); Eberline v. Media Net, L.L.C., 636 F. App’x 225, 229 (5th\nCir. 2016) (ruling “a reasonable jury could conclude that [plaintiff] ‘exercise[d]\nsignificant initiative’ as an installer” when “installers could receive more\ninstallation jobs, and thus more profits, based on their efficiency; that they\ncould profit from performing custom work; that they could perform additional\nservices for customers; and that they could control the days that they worked”\n(second alteration in original) (citation omitted)); Thibault, 612 F.3d at 847,\n851 (holding “there [was] no summary judgment evidence sufficient to sustain\na finding [plaintiff] was an employee” when splicers learned via “an informal\napprenticeship” and their “success depended on their ability to find consistent\nwork by moving from job-to-job”). Greater skill and more demonstrated\ninitiative counsel in favor of IC status. Carrell, 998 F.2d at 333 (noting plaintiff\nexercised great skill in pipe welding and initiative in generating business, but\ninitiative was more limited “once on a job”).\n But, “[r]outine work which requires industry and efficiency is not\nindicative of independence and nonemployee status”. Usery, 527 F.2d at 1314\n(footnote omitted). Further, skills that are not “specialized” but rather are\n“common” to all employees in that position counsel against IC status. Hopkins,\n 20\n\f Case: 17-51089 Document: 00514856215 Page: 21 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n545 F.3d at 345 (citation omitted). Additionally, whether the worker has\n“customer rapport” is not germane to the analysis. Brock, 814 F.2d at 1053.\nAgain, the focus of this factor is linked to whether the worker was\neconomically-dependent. Usery, 527 F.2d at 1315.\n i.\n First considered is plaintiffs’ skill. The district court correctly noted\nplaintiffs “are highly skilled individuals who performed their directional\ndrilling tasks using their own discretion”. 280 F. Supp. 3d at 966. But, the\ncourt then concluded there were no “appreciable differences between IC DDs\nand those DDs employed by Premier”. Id. at 967.\n We detail throughout this opinion, however, the numerous differences\nbetween employees and plaintiffs, and decline to require plaintiffs, as putative\nICs, be more skilled than their employee counterparts. By analogy, Premier\ncontends “[a] company with a highly-skilled general counsel can still hire an\noutside lawyer as an [IC], even if the general counsel is a more skilled lawyer”.\nThe same principle applies here. Plaintiffs’ high-skill level, understood in the\nlight of their complicated work, weighs heavily in favor of IC status.\n ii.\n Next considered is initiative. Plaintiffs contend: “Premier eliminated all\nmeaningful avenues for exercising initiative by using a no-bid project\nassignment system, supplying all necessary personnel and equipment, paying\ndrillers using a fixed, experience-based pay scale, tying that day rate to a fixed\n12-hour workday, and preventing [p]laintiffs from subcontracting their work”.\n Additionally, plaintiffs point to Rutherford Food Corp. v. McComb, 331\nU.S. 722 (1947). There, the Court stated: “Where the work done, in its essence,\nfollows the usual path of an employee, putting on an ‘[IC]’ label does not take\nthe worker from the protection of the [FLSA].” Id. at 729. In Rutherford, the\nworkers “work[ed] alongside admitted employees of the plant operator at their\n 21\n\f Case: 17-51089 Document: 00514856215 Page: 22 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\ntasks”. Id. at 726. That an employer utilizes employees and ICs to do\nessentially the same job (as is the situation here) is relevant to the FLSA\nanalysis. But, this simply weighs in overall analysis. Examples of using both\nemployees and ICs to perform essentially the same task are so ubiquitous, it is\nunnecessary to recite here.\n Premier contends plaintiffs did show initiative because they: “could ask\nfor more money”; could “advertise their businesses to and work for Premier’s\ncompetitors”; invested “in trucks, computers, clothing, and equipment”; and\nmanaged their own finances efficiently. On balance, we are less persuaded\nplaintiffs demonstrate the sort of initiative compelling nonemployee status.\nAfter all, at issue is not what plaintiffs could do, only what they did. Brock,\n814 F.2d at 1047. And the other evidence is not very strong.\n Nonetheless, this is viewed by the totality of the circumstances. Brock,\n814 F.2d at 1043–44. Plaintiffs’ specialized skill weighs heavily in our analysis\nand persuades us to hold this factor leans in favor of IC status.\n e.\n The fifth, and final Silk factor to be evaluated is “the permanency of the\nrelationship”. Hopkins, 545 F.3d at 343 (citing Herman, 161 F.3d at 303). The\ndistrict court concluded the “factor weighs in favor of [IC] status”. 280 F. Supp.\n3d at 968. Based on our de novo review, we reach the same conclusion.\n In evaluating this factor in Carrell, 998 F.2d at 332, our court provided\nseveral relevant considerations. First, whether any plaintiff “worked\nexclusively” for Premier should be determined. Id. Although Premier contends\nplaintiffs could have worked for other directional-drilling companies, that is\nnot a relevant concern. Again, the analysis is focused on economic reality, not\neconomic hypotheticals. See Hopkins, 545 F.3d at 346. And plaintiffs generally\ndid not contract with other directional-drilling companies.\n\n\n 22\n\f Case: 17-51089 Document: 00514856215 Page: 23 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n Next, the total length of the relationship between Premier and plaintiffs\nis considered. Carrell, 998 F.2d at 332. In discussing circuit precedent, the\ndistrict court stated: “where a plaintiff works for a defendant for ten months,\nthe engagement begins to resemble an employment relationship”. 280 F. Supp.\n3d at 967–68 (collecting opinions). Although the court seemed to rely on a ten-\nmonth rule, it did not establish ten-months as a bright-line rule, and neither\ndo we. See id. The inferences gained from the length of time of the relationship\ndepend on the surrounding circumstances.\n Plaintiffs contend the court erred by giving some of them credit for time\nspent as Premier employees (in addition to time spent as Premier’s putative\nICs), but not giving that same credit to the other plaintiffs. But even under\nplaintiffs’ calculations, only three of the five worked for Premier for ten months\nor longer. In the past, our court has noted whether workers have “previously\nserved as . . . employees and are performing essentially the same functions as\n[ICs]” in considering the permanency of the relationship. Usery, 527 F.2d at\n1314 (footnote omitted). Accordingly, in evaluating this factor, the time\nplaintiffs spent as employees for the company is properly included as part of\nthe overall analysis.\n Finally, our court considers whether the work was on a “project-by-\nproject basis”. Carrell, 998 F.2d at 332. Here, the work was. This counsels\nheavily in favor of IC status; and, in this instance, it persuasively counsels in\nfavor of it.\n Plaintiffs contend the up-and-down nature of the oil business supports\nshowing the relationship was more, than less, permanent. But, plaintiffs were\nnot paid during the down-period, and there was no guarantee they would\nreceive more work.\n Nevertheless, even if more work did come for plaintiffs, both sides have\nnoted plaintiffs’ skillset. Such a valuable skillset shows how the permanency\n 23\n\f Case: 17-51089 Document: 00514856215 Page: 24 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nof the relationship may, in reality, be not all that permanent. Cf. Usery, 527\nF.2d at 1314–15 (evaluating whether the laundry-operator plaintiffs were able\nto leave their work and transfer to new employment when they had “nothing\nto transfer but their own labor”); McLaughlin, 867 F.2d at 877 (noting how\n“specialized and widely-demanded skills” can lead to more “economic\nindependence”).\n 2.\n The Silk factors being “non-exhaustive”, other relevant factors may be in\nplay in an employee vel non analysis. Hopkins, 545 F.3d at 343 (citing Herman,\n161 F.3d at 303). For summary-judgment purposes, the district court\nevaluated three additional factors: (1) the presence of an express agreement;\n(2) what the industry standard is for DDs; and, (3) the purpose of the FLSA.\n280 F. Supp. 3d at 968–69. We consider them as well, as urged by plaintiffs.\nAnd, for the reasons stated supra, we reach the same conclusions as did the\ndistrict court.\n a.\n First, it considered how the existence of an express agreement\ncontemplating IC status factored into the employee vel non analysis. Id. at\n968. Citing well-established precedent from our circuit, the court, correctly,\nchose not to rely on any contractual agreement. Id.\n In Hopkins, 545 F.3d at 346, our court considered how those agreements\nfactor into the analysis. There, the employer contended “the [employees]\ncontractually agreed to be, and actually believed themselves to be, [ICs]”. Id.\nBut, our court responded by re-stating how “[s]ubjective beliefs cannot\ntransmogrify objective economic realities. A person’s subjective opinion that\nhe is a businessman rather than an employee does not change his status”. Id.\n(alteration supplied by Hopkins) (quoting Brock, 814 F.2d at 1049). Again, the\nfocus is on economic reality, not contractual language. Id. at 345–46.\n 24\n\f Case: 17-51089 Document: 00514856215 Page: 25 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\nOtherwise, an employer could easily evade the FLSA by simply confecting such\nagreements.\n Similarly, how plaintiffs file tax returns has limited relevance in the\neconomic-reality test. See Brock, 814 F.2d at 1044 (citation omitted) (noting\nthe limited utility of subjective labels); Hopkins, 545 F.3d at 346 (same); but\nsee Carrell, 998 F.2d at 334 (noting how plaintiff was classified on “income tax\nreturns”). On the other hand, as discussed supra, what those tax returns\ncontain may prove useful in evaluating certain Silk factors, such as profit and\nloss. Carrell, 998 F.2d at 333–34 (discussing plaintiff’s tax returns’ profits and\nlosses).\n b.\n Next, the district court considered the industry standard (“due to the\nnature of oilfield work, it may be industry standard to employ some workers\nas [ICs]”), ultimately concluding it did not support IC status. 280 F. Supp. 3d\nat 968–69. Plaintiffs contend this item is “subsumed” in the Silk factors. To\nthe extent the industry standard affects the objective economic reality of\nworkers, as opposed to merely subjective viewpoints, it is relevant. Brock, 814\nF.2d at 1043–44.\n For the industry standard to be relevant in that fashion, it is best\nconsidered as a part of the other Silk factors. That is the manner in which it\nis analyzed in this opinion—as a part of the totality of the circumstances. Id.\n(noting the “totality of the circumstances” test). For example, in Brock, our\ncourt considered the “operational characteristics that are unique or intrinsic to\nthe particular business or industry, and to the workers they employ” as part of\nits discussion of the permanency factor. Id. at 1054 (citations omitted).\n(Moreover, considering the industry standard as a separate factor tempts\nimproperly allowing subjective opinions of employment status to creep into the\nanalysis.)\n 25\n\f Case: 17-51089 Document: 00514856215 Page: 26 Date Filed: 02/28/2019\n\n\n\n No. 17-51089\n c.\n Finally, the district court considered the purpose of the FLSA and\nwhether it was intended to cover well-paid, well-trained workers like plaintiffs.\n280 F. Supp. 3d at 969. The court noted, and correctly rejected, Premier’s\nassertion “that [p]laintiffs are not the sort of low-wage employees the FLSA is\ndesigned to protect”. Id. The Supreme Court cautioned litigants over 70 years\nago that “employees are not to be deprived of the benefits of the [FLSA] simply\nbecause they are well paid”. Jewell Ridge Coal Corp. v. Local No. 6167, United\nMine Workers of Am., 325 U.S. 161, 167 (1945).\n III.\n For the foregoing reasons, the judgment is VACATED, and judgment is\nRENDERED for Premier.\n\n\n\n\n 26", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372520/", "author_raw": "RHESA HAWKINS BARKSDALE, Circuit Judge:"}]}	SMITH	BARKSDALE	HO	1	{"SMITH": ", Circuit", "BARKSDALE": ", Circuit", "HO": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595267/	Published	1	0	0	2,019	2	[ { "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...
4,595,268	LOUISIANA REAL ESTATE APPRAISERS BOARD, Petitioner v. FEDERAL TRADE COMMISSION, Respondent	La. Real Estate Appraisers Bd. v. Fed. Trade Comm'n	2019-02-28	18-60291	U.S. Court of Appeals for the Fifth Circuit	{"judges": "King, Higginson, Costa", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-60291 Document: 00514855761 Page: 1 Date Filed: 02/28/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-60291\n FILED\n February 28, 2019\n Lyle W. Cayce\nLOUISIANA REAL ESTATE APPRAISERS BOARD, Clerk\n\n Petitioner\n\nv.\n\nFEDERAL TRADE COMMISSION,\n\n Respondent\n\n\n\n On Petition for Review of an Order of the\n Federal Trade Commission\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nPER CURIAM:\n The Louisiana Real Estate Appraisers Board asks the court to review an\norder of the Federal Trade Commission, arguing that the Commission erred in\nconcluding that the Board could not assert its state-action immunity defense\nin the underlying administrative proceeding. This appeal is premature.\nAccordingly, we DISMISS the petition for review for lack of jurisdiction.\n I.\n The Louisiana Real Estate Appraisers Board (the “Board”) is a state\nagency tasked with licensing and regulating commercial and residential real\nestate appraisers and appraisal management companies. La. Stat. Ann.\n§§ 37:3395, 37:3415.21. Each of the Board’s ten members is appointed by the\nGovernor and confirmed by the state senate, and members are removable by\n\f Case: 18-60291 Document: 00514855761 Page: 2 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\nthe Governor for cause. Id. § 37:3394. Of the ten members, four must be general\nappraisers, and two must be residential appraisers. § 37:3394(B)(2).\n After Congress passed the Dodd–Frank Wall Street Reform and\nConsumer Protection Act (“Dodd–Frank”), requiring lenders to compensate fee\nappraisers “at a rate that is customary and reasonable for appraisal services\nperformed in the market area of the property being appraised,” 15 U.S.C.\n§ 1639e(i)(1), the Louisiana legislature amended its own laws. Specifically, the\nLouisiana legislature amended its Appraisal Management Company Licensing\nand Regulation Act (the “AMC Act”) to require that appraisal rates be\nconsistent with § 1639e and its implementing regulations. La. Stat. Ann.\n§ 37:3415.15(A). The legislature also gave the Board authority to “adopt any\nrules and regulations in accordance with the [Louisiana] Administrative\nProcedure Act necessary for the enforcement of [the AMC Act].” § 37:3415.21.\n In the exercise of this power, the Board adopted Rule 31101, requiring\nthat licensees “compensate fee appraisers at a rate that is customary and\nreasonable for appraisal services performed in the market area of the property\nbeing appraised and as prescribed by La. Stat. Ann. § 34:3415.15(A).” La.\nAdmin. Code. tit. 46, § 31101. Unlike the federal regulations, which instruct\nthat appraisal fees are “presumptively” customary and reasonable if they meet\ncertain conditions, Rule 31101 prescribed three ways by which a licensed\nappraisal management company can establish that a rate is customary and\nreasonable. Compare id., with 12 C.F.R. § 226.42(f)(2), (3).\n The Board published Rule 31101 in the Louisiana Register, solicited\ncomments from the public, and submitted the Rule to the Louisiana House and\nSenate Commerce Committees for review. Neither chamber conducted a\nhearing. Therefore, under Louisiana law at the time, the Rule took effect 45\ndays after submission to the legislature. The Governor did not exercise his\nauthority to veto the Rule.\n 2\n\f Case: 18-60291 Document: 00514855761 Page: 3 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\n In May 2017, the Federal Trade Commission (“FTC”) issued an\nadministrative complaint against the Board, alleging that it had\n“unreasonably restrain[ed] competition by displacing a marketplace\ndetermination of appraisal fees.” Because Rule 31101 established an exclusive\nlist of ways by which appraisal management companies could determine\ncompensation for appraisers, the FTC alleged that the Rule “prevents\n[appraisal management companies] and appraisers from arriving at appraisal\nfees through bona fide negotiation and through the operation of the free\nmarket.” Additionally, the FTC alleged that the Board’s enforcement of the\nRule unlawfully restrained price competition. In its answer, the Board argued,\ninter alia, that it was immune from federal antitrust liability.\n After the FTC filed its complaint, the Governor of Louisiana issued an\nexecutive order adding oversight to the Board. Pursuant to the order, the Board\nmust now submit any new customary-and-reasonable-fee regulation to the\nLouisiana Commissioner of Administration or the Commissioner’s designee for\napproval, rejection, or modification. In addition, the Division of Administrative\nLaw must preapprove certain Board enforcement activities. The Board\nthereafter re-issued a revised Rule 31101, following the same procedures it had\nundertaken in 2013 as well as the new procedures outlined in the Governor’s\nexecutive order.\n After the Board repromulgated its revised Rule 31101, it moved to\ndismiss the FTC’s complaint. The Board argued that its postcomplaint\nmeasures eliminated the prior effects of the old Rule and provided for active\nsupervision going forward. Thus, it argued, the complaint was moot. The same\nday, the FTC moved for partial summary decision on the Board’s state-action\ndefenses, arguing that the Board is controlled by active market participants\nand the state’s supervision was still inadequate.\n\n\n 3\n\f Case: 18-60291 Document: 00514855761 Page: 4 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\n The Commission 1 denied the motion to dismiss and granted the FTC’s\nmotion. The Commission has not issued a final cease-and-desist order. The\nBoard petitions us for review, arguing that it is immune from the\nadministrative action pursuant to the state-action doctrine.\n II.\n Although the Board urges us to reach the merits of its appeal, we must\nfirst “assure ourselves of our own federal subject matter jurisdiction.” Keyes v.\nGunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018). “Federal courts are courts of\nlimited jurisdiction, and absent jurisdiction conferred by statute, lack the\npower to adjudicate claims.” Texas v. Travis Cty., Tex., 910 F.3d 809, 811 (5th\nCir. 2018) (quoting Stockman v. FEC, 138 F.3d 144, 151 (5th Cir. 1998)).\nTherefore, to adjudicate this appeal, there must be a statute allowing us to\nreview the Commission’s order on a motion to dismiss or motion for partial\nsummary decision.\n The Board seemingly concedes that the Federal Trade Commission Act\n(“FTCA”) does not expressly authorize us to hear this appeal. Title 15 of the\nUnited States Code, Section 45 provides: “Any person, partnership, or\ncorporation required by an order of the Commission to cease and desist from\nusing any method of competition or act or practice may obtain a review of such\norder in the court of appeals of the United States . . . .” Accordingly, we have\nnoted that “[t]he jurisdiction of this Court to review an order of the Federal\nTrade Commission . . . . arises only from a cease and desist order entered by\nthe Commission.” Texaco, Inc. v. FTC, 301 F.2d 662, 663 (5th Cir. 1962)\n(emphasis added). Therefore, because the Commission’s order denying the\nBoard’s motion to dismiss and granting the FTC’s motion for partial summary\n\n\n\n 1 We refer to the FTC acting in its role as complaint counsel as “the FTC” and the FTC\nacting in its adjudicatory role as the “Commission.”\n 4\n\f Case: 18-60291 Document: 00514855761 Page: 5 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\ndecision is not a cease-and-desist order, the statute does not expressly\nauthorize us to exercise jurisdiction here.\n Nonetheless, the Board argues that we have jurisdiction under the\ncollateral-order doctrine. The collateral-order doctrine first emerged in Cohen\nv. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), in which the Supreme\nCourt considered the application of 28 U.S.C. § 1291. Section 1291 instructs\nthat the courts of appeals “shall have jurisdiction of appeals from all final\ndecisions from the district courts.” § 1291 (emphasis added). The Court rejected\nthe argument that the statute only allows appeals from final judgments. See\nCohen, 337 U.S. at 545-46. Instead, the Court held that there is a “small class\n[of decisions] which finally determine claims of right separable from, and\ncollateral to, rights asserted in the action, too important to be denied review\nand too independent of the cause itself to require that appellate consideration\nbe deferred until the whole case is adjudicated.” Id. at 546-47. Thus, a district\ncourt’s order is reviewable if it “(1) conclusively determine[s] the disputed\nquestion, (2) resolve[s] an important issue completely separate from the merits\nof the action, and (3) [is] effectively unreviewable on appeal from a final\njudgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R. Aqueduct &\nSewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). 2\n In concluding that some intermediate orders are immediately\nappealable, the Cohen Court reasoned that “[t]he effect of [§ 1291] is to disallow\nappeal from any decision which is tentative, informal or incomplete.” 337 U.S.\nat 546. Therefore, when a district court’s decision is final, a court of appeals\nmay undertake review of that decision, even if that decision does not end the\n\n\n 2The Board notes that we have held that a district court’s rejection of a state-action\ndefense is a collateral order. See Martin v. Mem’l Hosp. at Gulfport, 86 F.3d 1391, 1393-97\n(5th Cir. 1996). The FTC disputes the vitality of Martin, but we need not address that\nquestion because we conclude that the FTCA provision allowing direct appeals to the court\nof appeals does not include collateral orders.\n 5\n\f Case: 18-60291 Document: 00514855761 Page: 6 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\nlitigation. Id. But the Court emphasized that § 1291 only permits review of\nfinal decisions; when a district court’s decision is “but steps towards final\njudgment,” the statute does not permit an appeal. Id. In subsequent cases, the\nCourt has explained that the collateral-order doctrine is “best understood not\nas an exception to the ‘final decision’ rule laid down by Congress in § 1291, but\nas a ‘practical construction’ of it.” Dig. Equip. Corp. v. Desktop Direct, Inc., 511\nU.S. 863, 867 (1994) (quoting Cohen, 337 U.S. at 546).\n But Cohen does not resolve this case. Cohen only holds that § 1291\npermits collateral review of district court decisions. Here, we must determine\nwhether the FTCA permits collateral review of the Commission’s decisions. As\nan initial matter, we note that Cohen’s rationale can be applied to\nadministrative decisions, and courts have applied Cohen’s “practical\nconstruction” reasoning to other statutes with similar language. For example,\ncourts have recognized that the Administrative Procedure Act’s (“APA”) “final\nagency action” requirement is analogous to § 1291’s “final decision”\nrequirement. See Chehazeh v. Attorney Gen., 666 F.3d 118, 135 (3d Cir. 2012)\n(“A provision analogous to Section 704’s ‘final agency action’ requirement is\nfound in 28 U.S.C. § 1291, which permits appellate review only of ‘final\ndecisions’ of a district court.”). Therefore, the APA can reasonably be\ninterpreted as permitting courts to undertake collateral review of agency\ndecisions that are conclusive, but do not end the agency proceeding. Likewise,\ncourts have applied Cohen’s reasoning to the Mine Act, which gives courts of\nappeals jurisdiction to review “an order of the” Federal Mine Safety and Health\nReview Commission. Meredith v. Fed. Mine Safety & Health Review Comm’n,\n177 F.3d 1042, 1047-51 (D.C. Cir. 1999) (quoting 30 U.S.C. § 816(a)(1)).\n We thus consider whether the language of the FTCA can be interpreted\nto allow appellate review of collateral orders. The FTCA’s language is narrower\nthan the above examples, only authorizing the courts of appeals to review\n 6\n\f Case: 18-60291 Document: 00514855761 Page: 7 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\n“cease and desist” orders. 15 U.S.C. § 45(c). This language is plainly more\nrestrictive than those statutes authorizing judicial review of “final decisions,”\n“final agency action,” or “an order.” Given that Congress has expressly limited\nour jurisdiction to review of cease-and-desist orders, we cannot consider the\nBoard’s petition for review of the Commission’s denial of its motion to dismiss\nand granting of the FTC’s motion for partial summary decision.\n Admittedly, other circuits have taken a different approach when\nconsidering whether the collateral-order doctrine applies to similarly\nrestrictive statutes. For example, in Rhode Island v. EPA, 378 F.3d 19 (1st Cir.\n2004), the First Circuit exercised jurisdiction to hear an appeal of a collateral\norder rendered under the Clean Water Act. In doing so, the court held that the\ncollateral-order doctrine is “generally applicable” to administrative decisions\nfor three reasons. First, the court noted that “the Supreme Court has strongly\nsignaled . . . that Cohen’s rationale carries over to administrative\ndeterminations.” 378 F.3d at 24. Second, the court found “no overriding policy\nreason to apply a wholly different rule of finality to review of agency\ndeterminations.” Id. And finally, the court found that “every circuit to have\nconsidered the question to date has determined (often with little or no analysis)\nthat the collateral order doctrine applies to judicial review of administrative\ndeterminations.” Id. at 25. The court acknowledged that the plain text of the\nrelevant Clean Water Act provision allowed appeals only from the “issuance or\ndenial” of a pollution-discharge permit. Id. at 22-23; see 33 U.S.C. §\n1369(b)(1)(F). Though this text is not amenable to Cohen’s “practical\nconstruction,” the court did not think the text foreclosed application of the\ncollateral-order doctrine.\n We decline to adopt the First Circuit’s reasoning. We agree that the\ncollateral-order doctrine may apply to judicial review of some administrative\ndecisions, as illustrated above in our discussion of the APA and the Mine Act.\n 7\n\f Case: 18-60291 Document: 00514855761 Page: 8 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\nBut we disagree that courts of appeals may intervene in administrative\nproceedings as a general matter. This approach conflicts with Cohen, which\nrelied on a “practical construction” of § 1291’s statutory language; we must look\nto the text of the statute at hand to determine whether Congress has\nauthorized us to review the agency’s decision.\n Thus, the argument that “every circuit” has applied the collateral-order\ndoctrine to administrative determinations is overly broad. Although courts of\nappeals have found the collateral-order doctrine to apply to some\nadministrative proceedings, the cases do not prove that the collateral-order\ndoctrine will necessarily apply to every administrative proceeding. As the First\nCircuit pointed out, most circuits have applied the collateral-order doctrine in\nthe administrative context with “little or no analysis.” Rhode Island, 378 F.3d\nat 25. Some of the cases the First Circuit cited concerned the Mine Act which,\nas discussed above, contains language that mirrors § 1291’s “final decision”\nlanguage. E.g., Meredith, 177 F.3d at 1050-51; Jim Walter Res., Inc. v. Fed.\nMine Safety & Health Review Comm’n, 920 F.2d 738, 744 (11th Cir. 1990). The\nother decisions the First Circuit cited have language more specific than the\nAPA or the Mine Act, but still broader than the FTCA. E.g., Osage Tribal\nCouncil ex rel. Osage Tribe of Indians v. U.S. Dep’t of Labor, 187 F.3d 1174,\n1179-80 (10th Cir. 1999) (applying collateral-order doctrine to statute allowing\njudicial review of “order[s] issued under paragraph (2),” 42 U.S.C. § 300j-\n9(i)(3)(A), which in turn details procedures for entire administrative\nproceeding); Carolina Power & Light Co. v. U.S. Dep’t of Labor, 43 F.3d 912,\n916 (4th Cir. 1995) (similar); Donovan v. Oil, Chem., & Atom. Workers Int’l\nUnion & Its Local 4-23, 718 F.2d 1341, 1344-45 (5th Cir. 1983) (similar). But\nnone of the cases the First Circuit cited concerns the FTCA’s specific language\nexpressly restricting judicial review to “an order of the Commission to cease\n\n\n 8\n\f Case: 18-60291 Document: 00514855761 Page: 9 Date Filed: 02/28/2019\n\n\n\n No. 18-60291\nand desist.” § 45(c). We need not comment therefore on the approaches taken\nin prior decisions to other statutes.\n Although the First Circuit, the Board, and amici writing in support of\nthe Board identify practical reasons for permitting collateral-order review in\nthe administrative context, these arguments do not resolve our lack of\njurisdiction. Even when faced with compelling reasons to intervene, we cannot\nact without authority from Congress or the Constitution. Kokkonen v.\nGuardian Life Ins. Co. of Am., 511 U.S. 375, 378 (1994) (“Federal courts are\ncourts of limited jurisdiction. They possess only that power authorized by the\nConstitution and statute, which is not to be expanded by judicial decree.”\n(internal citations omitted)).\n In sum, Cohen held that § 1291’s use of “final decision” could be\n“practically construed” to give a court of appeals authority to hear an appeal\nfrom a district court’s final decision on an issue, even if the decision did not\nresolve the entire case. But Cohen’s reasoning cannot be used to stretch the\nlimitations of the FTCA, in which Congress authorized us to hear appeals only\nfrom the Commission’s cease-and-desist orders. The Board does not argue that\nwe have jurisdiction under another statute, and we are aware of no statute\nthat allows direct appeal to the court of appeals at this stage of the case. 3\nTherefore, we are without jurisdiction to hear this appeal.\n III.\n For the foregoing reasons, the petition is DISMISSED for lack of\njurisdiction.\n\n\n\n 3The Board does not argue that it seeks review under the APA, nor could it; it brought\nthis appeal directly in this court, bypassing the district court. See 5 U.S.C. § 704. Unlike the\nFTCA, § 704 does not allow direct appeals from agency proceedings to the courts of appeals.\nTherefore, if the Board were to appeal the Commission’s decision under the APA, that action\nwould have to originate in the district court under its federal-question jurisdiction. See 28\nU.S.C. § 1331.\n 9", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372521/", "author_raw": "PER CURIAM"}]}	KING	HIGGINSON	COSTA	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595268/	Published	1	0	0	2,019	2	[ { "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...
8,443,907	United States v. Martin ARAIZA-JACOBO	United States v. Araiza-Jacobo	2019-02-28	No. 17-40958	U.S. Court of Appeals for the Fifth Circuit	{"judges": "Duncan, Engelhardt, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415338/", "author_raw": ""}]}	DUNCAN	ENGELHARDT	SMITH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443907/	Published	0	1	0	2,019	2	[ { "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...
4,586,672	UNITED STATES of America, Plaintiff-Appellee, v. Dalen KING, Defendant-Appellant.	United States v. Dalen King	2019-02-01	18-3416/3417	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Clay, McKEAGUE, White", "parties": "", "opinions": [{"author": "McKEAGUE", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0014p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > Nos. 18-3416/3417\n v. │\n │\n │\n DALEN KING, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Northern District of Ohio at Cleveland.\n No. 1:11-cr-00381-1—Solomon Oliver, Jr., District Judge.\n\n Decided and Filed: February 1, 2019\n\n Before: CLAY, McKEAGUE, and WHITE, Circuit Judges.\n _________________\n\n COUNSEL\n\nON BRIEF: Catherine J. Adinaro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nCleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S\nOFFICE, Cleveland, Ohio, for Appellee.\n _________________\n\n OPINION\n _________________\n\n McKEAGUE, Circuit Judge. Dalen King faced the possibility of serving sixty-one\nmonths in prison for multiple drug-possession convictions and violations of supervised release.\nBut after considering all the circumstances surrounding King’s offenses, the district judge\nordered him to serve only thirty-six months in prison. The first thirty months were punishment\nfor King’s drug convictions and the final six months for the violations of supervised release. The\njudge called the sentence “a blessing.” King argues that it was procedurally unreasonable.\n\f Nos. 18-3416/3417 United States v. King Page 2\n\n\nSpecifically, King asserts that the district judge failed to sufficiently explain why he ordered that\nthe six-month prison sentence for the supervised release violations run consecutively to, rather\nthan concurrently with, the thirty-month prison sentence for the drug convictions. Finding no\nerror in the adequacy of the district judge’s explanation, we AFFIRM.\n\n I.\n\n In 2011, King pleaded guilty to being a felon in possession of ammunition, in violation of\n18 U.S.C. § 922(g)(1). He received a sentence of forty-six months’ imprisonment followed by\nthree years of supervised release. Supervision began on September 25, 2015.\n\n King struggled to comply with the terms of his supervision. Two years after it began, the\nU.S. Probation Department filed a notice with the district court detailing multiple supervised\nrelease violations, including unauthorized use of drugs and failure to comply with substance\nabuse treatment. King was also suspected of moving to a new residence without informing his\nprobation officer, possessing a firearm, and selling cocaine from his new residence. Federal\nofficers obtained a warrant to search King’s residence, which they executed in September 2017.\n\n In the course of the search, officers discovered various contraband, including airsoft\npistols, baggies of marijuana, scales, and a cell phone. They also found King—hiding in a closet\nwith his hands down the back of his shorts. King’s behavior made officers suspicious that he\nwas attempting to hide drugs on his person. King, however, repeatedly denied possessing\nanything illegal. Officers arrested King and transported him to the U.S. Marshal’s facility in the\nAkron Federal Courthouse. During their strip search of King at the federal facility, officers\ndiscovered a plastic baggie containing cocaine and cocaine base.\n\n A federal grand jury subsequently indicted King for three drug offenses: possessing with\nintent to distribute cocaine (Count 1) and possessing with intent to distribute cocaine base (Count\n2), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possessing cocaine and cocaine base\nwhile a prison inmate1 (Count 3), in violation of 18 U.S.C. § 1791(a)(2). King pleaded guilty to\nall charges.\n\n 1This charge was based on the officers’ discovery of cocaine and cocaine base during\ntheir strip-search of King at the federal facility.\n\f Nos. 18-3416/3417 United States v. King Page 3\n\n\n King’s probation officer thereafter filed an updated supervised release violation report\nwith the district court, adding new allegations based on King’s drug convictions and his failure to\nreport a residence change. The report also reiterated the earlier report’s allegations that King\nfailed to comply with substance abuse treatment and had tested positive for drug use. King later\nadmitted to committing all alleged violations.\n\n On April 20, 2018, the district court held a combined sentencing and supervised release\nviolation hearing. At the hearing, the court addressed the recommended term of imprisonment\nfor the drug convictions and the supervised release violations in turn. The U.S. Sentencing\nGuidelines recommended a thirty- to thirty-seven-month prison sentence for the drug convictions\nand a twenty-four- to thirty-month prison sentence for the supervised release violations. The\napplicable statute, however, placed the maximum term of imprisonment for the supervised\nrelease violations at twenty-four months. See 18 U.S.C. 3583(e)(3). The Government urged the\ncourt to impose a prison “sentence within the Guidelines range” for the drug convictions and a\nconsecutive prison sentence of twenty-four months for the supervised release violations. King\nrequested a total combined sentence falling below the Guidelines range. In his sentencing\nmemorandum, but not at the hearing, King had also argued that the sentences should run\nconcurrently.\n\n After considering the parties’ arguments, the court sentenced King to an aggregate term\nof thirty-six months in prison—a thirty-month term for King’s drug convictions and a\nconsecutive six-month term for his supervised release violations. The court then asked counsel if\nthere were any objections. Defense counsel replied, “No, your Honor.”\n\n II.\n\n King’s sole argument on appeal is that his sentence was procedurally unreasonable\nbecause the district court failed to explain its rationale for ordering that the sentences run\nconsecutively. Normally, we review sentences “under a deferential abuse-of-discretion\nstandard.” United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (quoting Gall v. United\nStates, 552 U.S. 38, 41 (2007)). But “[w]here a party has failed to object to a procedural defect”\nat the sentencing hearing, “we review claims of procedural unreasonableness for plain error.” Id.\n\f Nos. 18-3416/3417 United States v. King Page 4\n\n\n(citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc)). As King\nconcedes, he did not raise any objections at his hearing. Accordingly, we apply the plain-error\nstandard of review. To satisfy that standard, King must show “(1) error (2) that was obvious or\nclear, (3) that affected [King’s] substantial rights and (4) that affected the fairness, integrity, or\npublic reputation of the judicial proceedings.” Id. (citation omitted). This is a demanding\nstandard. As we have observed, a “plain error” is an error that is “so plain that the trial judge\nwas derelict in countenancing it.” Vonner, 516 F.3d at 386 (citation and alterations omitted).\nKing fails to show that the district judge committed any error at all, let alone a “plain” one.\n\n When imposing multiple sentences of imprisonment at the same time, a district judge has\ndiscretion to order that they run concurrently or consecutively. 18 U.S.C. § 3584(a). The\nexercise of that discretion, however, is predicated on the judge’s “consideration of the factors\nlisted in 18 U.S.C. § 3553(a)”2 and “any applicable Guidelines or policy statements issued by the\nSentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011) (citing\n18 U.S.C. § 3584(b)). The policy statement applicable here, U.S.S.G. § 7B1.3(f), provides:\n\n Any term of imprisonment imposed upon the revocation of . . . supervised release\n shall be ordered to be served consecutively to any sentence of imprisonment that\n the defendant is serving, whether or not the sentence of imprisonment being\n served resulted from the conduct that is the basis of the revocation of . . .\n supervised release.\n\nThis policy statement “is not binding on the district court”—indeed, construing it as binding\n“would be reversible error.” Johnson, 640 F.3d at 208 (citation omitted). Nonetheless, the\ndistrict court “must consider § 7B1.3(f) when it is applicable . . . .” Id. (emphasis added)\n(citations omitted). Normally, evidence that the court considered § 7B1.3(f) (or any other policy\nstatement) comes in the form of an “explicit reference” to the provision at the sentencing\nhearing. United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011) (citation omitted). “But a\n\n\n 2The § 3553(a) factors include: the nature and circumstances of the offense and the\nhistory and characteristics of the defendant; the need to reflect the seriousness of the offense,\ndeter criminal conduct, protect the public, and provide the defendant appropriate treatment;\nsentencing ranges and other considerations set forth by pertinent Guidelines or policy statements;\navoiding unwarranted sentencing disparities; and providing restitution to victims. 18 U.S.C.\n§ 3553(a).\n\f Nos. 18-3416/3417 United States v. King Page 5\n\n\nsentencing court need not” make such an explicit reference “if there is some other evidence in\nthe record that it considered the section” and the court makes “generally clear the rationale under\nwhich it has imposed the consecutive sentence . . . .” Id. at 335–36 (citations omitted).\n\n King asserts that the district judge erred by failing to explicitly mention the applicable\npolicy statement3 and by inadequately explaining the reasons for imposing a consecutive\nsentence. Both arguments fail. First, while the district judge did not explicitly reference\n§ 7B1.3(f) during the sentencing proceedings, the record nonetheless demonstrates that he\nconsidered it. The judge indicated that he read the information presented in the supervised\nrelease violation report, which contained a lengthy explanation of the relevant statutory and\nGuidelines provisions, including U.S.S.G. § 7B1.3(f). Additionally, the judge responded to the\nGovernment’s argument that King should receive a consecutive sentence of twenty-four to thirty\nmonths for the supervised release violation with the clarification, “You think I should give him\n24 months on top of the Guideline range [for the drug convictions]?” (emphasis added). The\nGovernment affirmed, “Yes, your Honor. That’s what the Government is requesting.” Finally,\nafter the district judge announced King’s sentence, he explained that the sentence for the\nsupervised release violation was “recommended to go on top of” the Guidelines-range sentence\nfor the underlying drug convictions. These statements all demonstrate that the district judge\nconsidered, without explicitly mentioning, the relevant Guidelines provisions and policy\nstatements, and that he understood that he had discretion to run the sentences either\nconsecutively or concurrently.\n\n Additionally, the record does not demonstrate any error in the adequacy of the district\njudge’s explanation for imposing a consecutive sentence. Before announcing King’s sentence,\nthe district judge explained that he considered “the purposes of [§ 3553(a)], . . . the Guideline\nrange, . . . the nature and circumstances of the . . . crime that [King] pled guilty to, [and his]\n\n\n 3King argues that the district court was required to consider U.S.S.G. § 5G1.3(d), but\n“that provision does not apply to sentences imposed for violations of supervised release”;\ninstead, it “applies to sentences for convictions that occur while a defendant is on supervised\nrelease, not a supervised release violation itself.” United States v. Cochrane, 702 F.3d 334, 347\nn.1 (6th Cir. 2012) (internal citations omitted). The relevant policy statement in this case is\nU.S.S.G. § 7B1.3(f). See id.; Johnson, 640 F.3d at 208 n.8.\n\f Nos. 18-3416/3417 United States v. King Page 6\n\n\nhistory and characteristics . . . .” The judge told King that he had a “significant history of drug\npossession and drug use,” which demonstrated that he was “not learning much in the drug area,”\nand emphasized that King needed “to come to a point where [he] [could] kind of get a handle on\n[his] life and . . . find a way to move forward in a positive way.” And although the judge looked\nfavorably on the fact that King earned his GED while previously incarcerated and explained that\nKing could not “be blamed” for his difficult upbringing, the judge nonetheless concluded that\nKing had “to be held responsible for what” he had done. Finally, after announcing King’s terms\nof imprisonment, the district judge elaborated further. He told King:\n\n So you’re going to have a total of 36 months total. And that’s a blessing.\n You may not know it. But, you—you were facing the possibility of having the\n two years of supervised release, which is recommended to go on top of your [30-\n month sentence for the drug convictions] . . . . So you’ve tried to fashion it so it’s\n not as onerous as it could be.\n ...\n So the overall sentence is going to be 36 months custody . . . . I’m\n confident that this sentence meets the requirements of 3553(a) . . . .\n ...\n And so I feel comfortable that this sentence is enough. It’s sufficient.\n\nThis explanation makes adequately clear that the judge believed an aggregate thirty-six-month\nsentence satisfied the goals of § 3553(a). And it demonstrates that the judge’s discussion of the\nlength of King’s aggregate sentence was, permissibly, “intertwined” with the determination that\nthe terms of imprisonment should run consecutively. Johnson, 640 F.3d at 208; see also United\nStates v. Berry, 565 F.3d 332, 343 (6th Cir. 2009) (“Requiring district courts to conduct a\nseparate Section 3553(a) analysis for the concurrent or consecutive nature of the sentence would\nbe repetitious and unwarranted, and we hold that district courts have no such distinct\nobligation.”). King fails to show that the lack of further explanation specific to the consecutive\nnature of his sentences was error at all, let alone a “plain” one.\n\n Still, despite the district judge’s lengthy commentary, King suggests that the district\njudge’s explanation was plainly erroneous because the judge did not explicitly respond to a one-\nsentence argument King raised in his sentencing memorandum. In his memorandum, King\npointed out that the Sentencing Guidelines assigned him two additional criminal history points\n\f Nos. 18-3416/3417 United States v. King Page 7\n\n\nfor violating the law while on supervised release, which increased the sentencing range for his\ndrug convictions. He asserted that, due to the additional criminal history points on his drug\nconvictions, a concurrent term of imprisonment for the supervised release violation would satisfy\nthe § 3553(a) factors. But the district judge’s failure to expressly respond to this brief and\n“conceptually simple” argument was not plain error. Rita v. United States, 551 U.S. 338, 358\n(2007). “[A] sentencing judge is not required to explicitly address every mitigating argument\nthat a defendant makes, particularly when those arguments are raised only in passing.” United\nStates v. Madden, 515 F.3d 601, 611 (6th Cir. 2008) (citations omitted). This argument likewise\nfails to show any error in the judge’s explanation.\n\n III.\n\n For these reasons, we AFFIRM the district court’s sentence.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363925/", "author_raw": "McKEAGUE"}]}	CLAY	MCKEAGUE	WHITE	1	{"McKEAGUE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586672/	Published	1	0	0	2,019	2	[ { "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...
4,587,477	Darrell Rashard EWING, Petitioner-Appellee, v. Connie HORTON, Warden, Respondent-Appellant.	Darrell Ewing v. Connie Horton	2019-02-05	17-2485	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Before: SILER, MOORE, and ROGERS, Circuit Judges _________________ COUNSEL ARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant.", "parties": "", "opinions": [{"author": "ROGERS, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0015p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n DARRELL RASHARD EWING, ┐\n Petitioner-Appellee, │\n │\n > No. 17-2485\n v. │\n │\n │\n CONNIE HORTON, Warden, │\n Respondent-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:15-cv-10523—Denise Page Hood, Chief District Judge.\n\n Argued: October 2, 2018\n\n Decided and Filed: February 5, 2019\n\n Before: SILER, MOORE, and ROGERS, Circuit Judges\n\n _________________\n\n COUNSEL\n\nARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,\nLansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for Appellee.\nON BRIEF: Andrea M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY\nGENERAL, Lansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for\nAppellee.\n\n ROGERS, J., delivered the opinion of the court in which SILER, J., joined. MOORE, J.\n(pp. 11–14), delivered a separate dissenting opinion.\n\n No. 17-2485 Ewing v. Horton Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n ROGERS, Circuit Judge. Two months after Darrell Ewing was convicted of murder, a\njuror filed an affidavit accusing two fellow jurors of conducting after-hours internet research\nabout the case and discussing their findings during deliberations. Without holding an evidentiary\nhearing to determine what, if any, prejudicial impact that extracurricular fact-finding had on the\njury, the state trial and appellate courts considered the information duplicative of the evidence at\ntrial and the incident harmless. That was constitutional error, as everyone now agrees. The\nquestion is how best to remedy that constitutional injury on habeas review. The district court\nconditionally granted Ewing’s release from prison unless the State acts within ninety days to\nafford him a new trial. The appropriate remedy in such a case, however, is generally to order\nrelease unless the State provides—instead of a new trial—a hearing to consider whether a new\ntrial is warranted. Such an order should have been entered by the district court in this case.\n\n In October 2010, Ewing stood trial for first-degree murder and other charges arising from\nan apparently gang-related shooting at a Detroit intersection. J.B. Watson and three others were\nwaiting at a red light at the intersection of Harper and Van Dyke when Derrico Searcy drove up a\nfew car lengths behind them and pulled over to the curb. With the light still red, Ewing allegedly\nexited Searcy’s car with his gun drawn, walked the rest of the way to the intersection, and fired\nseveral shots into the back of the van before retreating to his getaway car and speeding off in the\nother direction. One passenger was injured after taking a bullet to the hand, and Watson was\nkilled. Watson and two other passengers were members of a gang known as the Knock Out\nBoys; Searcy and Ewing allegedly belonged to the rival Hustle Boys.\n\n The prosecution framed the shooting as part of an ongoing feud between the Knock Out\nBoys and the Hustle Boys, and relied on witness testimony identifying Ewing as the shooter.\nEwing’s defense was that they had the wrong guy—that he was attending a funeral when the\nshooting happened and that the real shooter was another Hustle Boy, Tyree Washington. Ewing\nput on alibi witnesses and even a jailhouse informant who testified that Washington had\nconfessed to the shooting—and had bragged about it to other inmates—while Washington and\n\n No. 17-2485 Ewing v. Horton Page 3\n\n\nthe informant were in jail on federal carjacking charges. On the second day of deliberations, the\njury asked the court to declare that the jury was deadlocked, but the court refused and charged\nthem to press on. On the fourth day of deliberations the jury returned a verdict against Ewing of\nguilty on all counts, including first-degree murder, which carried a mandatory life sentence.\n\n About two months after the verdict, Kathleen Frances Byrnes (Juror #4) filed an affidavit\nstating that two fellow jurors had “brought up information that was not part of the evidence\nintroduced into court.” Byrnes swore the following:\n\n 5. [Juror #13] discussed Facebook look up information during deliberations.\n [Juror #13] brought up information regarding Mr. Ewing’s and\n Mr. Searcy’s past. [Juror #13] said she saw on Facebook a picture of\n Mr. Ewing and a girl with the caption “Mr. and Mrs. Nasty” and had\n brought to the juror’s attention that she had read an [sic] eulogy online for\n J.B. Watson.\n 6. [Juror #5] bought up during juror deliberations that she had googled gang\n information and knew about gang codes and that gang activity involved\n killing people.\n 7. [Juror #5] also said during deliberations that gangs have a pecking order\n according to information she googled at home. She went on to say that\n Darrell Ewing was at the top of the pecking order. That would put Tyree\n Washington at the bottom and the gang decided to sacrifice Tyree\n Washington by setting him up as the fall guy for the murder. According to\n [Juror #5], the above information was based on what she had read on line\n [sic] regarding the history of gangs on the goggle web site [sic].\n\n Based on the Byrnes affidavit, Ewing filed a motion for a new trial on the ground that the\njury was tainted by the extraneous information. Although the motion was styled as one for a new\ntrial, Ewing alternatively requested an evidentiary hearing to elicit testimony from Byrnes and\nfurther develop the facts surrounding the allegedly tainted jury deliberations. The State argued\nin response that, while the affidavit alone did not warrant a new trial, the State would have no\nobjection if the court determined that an adequate showing was made to hold an evidentiary\nhearing. Despite the State’s amenability, the court held that Ewing had not shown that the jury\nwas exposed to extraneous information “that was not already presented to it as evidence in the\ntrial,” and denied the motion outright. In other words, the court found that the jury was not\n\n No. 17-2485 Ewing v. Horton Page 4\n\n\nexposed to any extraneous influences because the internet information was duplicative of what\nthe jury had learned from the evidence at trial.\n\n The Michigan Court of Appeals affirmed and held that the extraneous information was\nduplicative of evidence produced at trial and thus harmless. See People v. Searcy, 2013 WL\n4609125, at 9–10 (Mich. Ct. App. Aug. 29, 2013). According to the court, the Facebook\npicture of Ewing was innocuous and similar to many photos that were shown at trial; Watson’s\neulogy contained no new, relevant information and presumably was discussed only in passing;\nand the information about gang activity and hierarchy was either patently obvious or easily\ninferred from witness testimony. See id. at 9. The court therefore held that Ewing had not\nshown a real and substantial possibility that the information could have affected the verdict. See\nid. at 10. The Michigan Supreme Court denied Ewing’s petition for leave to appeal. See\nPeople v. Ewing, 843 N.W.2d 200 (Mich. 2014).\n\n Having exhausted his state remedies, Ewing filed a timely petition for a writ of habeas\ncorpus under 28 U.S.C. § 2254. Ewing raised several claims,1 including that he was denied his\nconstitutional rights to a fair trial and an impartial jury because of the jury’s consideration of\nextraneous facts, as recounted in the Byrnes affidavit. As for relief, Ewing argued that he was\n“entitled to a new trial or at least a proper hearing to determine the impact of the extraneous\ninfluences on the jurors.” Over the State’s opposition, the district court held that the state court’s\ndetermination was contrary to clearly established law. The district court concluded that Ewing\nhad “shown that the internet information may have tainted the jury” and that the “effect of the\nextraneous information on the jury does not appear to be harmless,” but the court reiterated that\nthe actual effect of the extraneous information was unknowable without an evidentiary hearing.\nBased on these findings, the district court conditionally granted Ewing’s petition and ordered the\nState to afford Ewing a new trial within ninety days or release him.\n\n\n\n\n 1In addition to his claim of extraneous influence, Ewing argued that he was denied due process of law\nwhen the trial court failed to give a deadlocked jury instruction and that a signed confession by Washington\nconstituted new evidence of innocence that required his release or at least an evidentiary hearing. Because the\ndistrict court granted relief on Ewing’s claim of extraneous influence, it held that Ewing’s other two claims were\nmoot.\n\n No. 17-2485 Ewing v. Horton Page 5\n\n\n The parties now agree that Ewing was unconstitutionally denied an opportunity to prove\nthat he was actually prejudiced by the use of outside internet research. “When a trial court is\npresented with evidence that an extrinsic influence has reached the jury which has a reasonable\npotential for tainting that jury, due process requires that the trial court take steps to determine\nwhat the effect of such extraneous information actually was on that jury.” Nevers v. Killinger,\n169 F.3d 352, 373 (6th Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d\n940 (6th Cir. 2000); see also Smith v. Phillips, 455 U.S. 209, 217–18 (1982). In other words,\n“[w]here a colorable claim of extraneous influence has been raised, [an evidentiary hearing] must\nbe held to afford the defendant an opportunity to establish actual bias.” See United States v.\nDavis, 177 F.3d 552, 557 (6th Cir. 1999). These cases apply the Supreme Court’s holding in\nRemmer v. United States, 347 U.S. 227, 229–30 (1954), and the required hearing is often referred\nto as a Remmer hearing.\n\n Here, the Byrnes affidavit states that the jury learned of and discussed outside\ninformation about the defendant, the murder victim, and the activities and internal power-\ndynamics of gangs. Such information had a clear potential for tainting the jury. The State has\naccordingly made the reasonable concession on this appeal that it was contrary to established law\nfor the state court to deny Ewing an opportunity to show the actual effect that the information\nhad on the jury.\n\n Ewing has not, however, proven a Sixth Amendment violation of his underlying rights to\na fair trial and an impartial jury, because to do that he must demonstrate actual prejudice. See\nLang v. Bobby, 889 F.3d 803, 811 (6th Cir. 2018). The district court’s own findings compel the\nconclusion that, without a hearing, there is too much that is unknown about the deliberations to\nhold that Ewing has proven such prejudice. The court found that the Byrnes affidavit is “void of\ninformation pertaining to the extent of the discussions regarding the eulogy,” and could only\n“infer” that the contents were discussed at all. Regarding the gang-code information, the court\ncould conclude only that it “may have been discussed in order to break the jury deadlock.” As to\nJuror #5’s theory about gang pecking-orders and the Hustle Boys’ scapegoating Williams, the\ncourt found that “[t]he details of the information itself and the source of this information are\nunknown,” and that “[w]ithout an evidentiary hearing, the specifics of this information, and the\n\n No. 17-2485 Ewing v. Horton Page 6\n\n\nextent of other extraneous information, is unknown.” These findings certainly suggest, in the\ncourt’s words, “that the internet information may have tainted the jury,” but by their own terms,\nthey fall short of actual prejudice.\n\n This, of course, is not Ewing’s fault. He was denied an opportunity to develop these facts\nat a Remmer hearing. But that does not relieve Ewing of the burden to show actual prejudice\nonce he has been provided an opportunity to do so. When a petitioner shows that extraneous\ninformation may have tainted the jury, due process requires the opportunity to show that the\ninformation did taint the jury to his detriment. See, e.g., Remmer, 347 U.S. at 229–30. “[D]ue\nprocess does not require a new trial every time a juror has been placed in a potentially\ncompromising situation.” Smith, 455 U.S. at 217. Thus, where a petitioner has shown a\ncolorable claim of juror bias but has been denied an opportunity to prove actual prejudice, the\nproper remedy is to remand for a Remmer hearing to determine what, if any, actual impact the\noutside information had on the jury’s verdict. That is the relief the Supreme Court and our court\nhave repeatedly ordered. See, e.g., Remmer, 347 U.S. at 230; Smith, 455 U.S. at 217–18;\nWilliams v. Taylor, 529 U.S. 420, 442 (2000); United States v. Harris, 881 F.3d 945, 953 (6th\nCir. 2018); United States v. Corrado, 227 F.3d 528, 536–37 (6th Cir. 2000); United States v.\nHernden, 156 F.3d 629, 637–38 (6th Cir. 1998). As the Supreme Court ruled in Remmer itself:\n\n The trial court should not decide and take final action ex parte on information\n such as was received in this case, but should determine the circumstances, the\n impact thereof upon the juror, and whether or not it was prejudicial, in a hearing\n with all interested parties permitted to participate.\n We therefore vacate the judgment of the Court of Appeals and remand the case to\n the District Court with directions to hold a hearing to determine whether the\n incident complained of was harmful to the petitioner, and if after hearing it is\n found to have been harmful, to grant a new trial.\n\nRemmer, 347 U.S. at 229–30.\n\n Ewing concedes that the Supreme Court “has long held that the remedy for allegations of\njuror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”2 In\n\n\n 2At one point in his brief Ewing even states that “[t]he case should be reversed or remanded for an\nevidentiary hearing.”\n\n No. 17-2485 Ewing v. Horton Page 7\n\n\nthe face of this substantial caselaw, Ewing points to Nevers as his sole support for conditioning\nrelease on a new trial rather than a Remmer hearing. 169 F.3d 352. Depending on your reading,\nthat case is either an outlier or the exception that proves the rule. In Nevers, this court affirmed\nthe district court’s unconditional grant of habeas relief without any explanation as to why that\nrelief should not be conditioned on a Remmer hearing. That lack of explanation is especially\ncurious in light of the Nevers court’s express recognition that “[w]hen a trial court is presented\nwith evidence that an extrinsic influence has reached the jury which has a reasonable potential\nfor tainting that jury, due process requires that the trial court take steps to determine what the\neffect of such extraneous information actually was on that jury.” Id. at 373. One possible\nexplanation is that the parties may not have litigated the propriety of the remedy because the\ndistrict court below had vacated Nevers’s conviction and ordered his unconditional release based\non two constitutional violations, the extrinsic-influence claim and a pre-trial publicity claim that\nwas reversed on appeal. To the extent that the propriety of the remedy was not litigated in\nNevers, or was overlooked because of the scope of the district court’s original grant, that case is\nuninstructive here.\n\n Perhaps the best explanation for the remedy in Nevers, however, is that Nevers did show\nwhat Ewing has not—actual prejudice. In Nevers, the Michigan Supreme Court had denied an\nevidentiary hearing but accepted as true the substance of three juror affidavits and conceded that\nthe extraneous information was not duplicative of evidence at trial and had a substantial\npossibility of affecting the verdict. See id. at 373. The state court denied Nevers’s claim only\nafter concluding that the evidence of guilt was so overwhelming that the admittedly prejudicial\ninformation was harmless. See id. On habeas review, this court held that\n\n under the circumstances, Nevers need point to nothing more than the juror’s\n sworn statement that the [extraneous information] set the tone for the jury’s\n deliberations and the Michigan Supreme Court’s acknowledgement that this was\n the kind of material that has a direct and rational connection between it and an\n adverse verdict to demonstrate that the jury’s possession of the extraneous\n information had a substantial and injurious effect or influence in determining the\n jury’s verdict, and resulted in actual prejudice.\n\n No. 17-2485 Ewing v. Horton Page 8\n\n\nId. (internal citations and quotation marks omitted) (emphasis added). That is, Nevers\ndemonstrated actual prejudice, which obviated any need for a Remmer hearing. Here, by\ncontrast, the state court found the information to be duplicative and without the potential to affect\nthe verdict; even crediting the Byrnes affidavit, one is left to guess what, if any, effect the outside\ninformation had on deliberations. In fact, not even Byrnes has said that the outside information\naffected her vote. Read this way, Nevers is the exception (where actual prejudice was shown\nwithout a hearing) that proves the rule (that the normal remedy for a colorable claim of\nextraneous influence is for a hearing to show actual prejudice).\n\n Because the only demonstrated constitutional injury is the failure to grant Ewing a\nRemmer hearing, the proper relief was to condition his release on a suitable evidentiary hearing,\nrather than a new trial.3 Courts typically have broad discretion in fashioning habeas relief, but\nthe relief granted must be tailored to cure the constitutional injury without unnecessarily\ninfringing on competing interests of comity, federalism, and finality. See United States v.\nMorrison, 449 U.S. 361, 364 (1981); see also Hilton v. Braunskill, 481 U.S. 770, 775 (1987).\nConsistent with Morrison, the appropriate “remedy is the one that as much as possible restores\nthe defendant to the circumstances that would have existed had there been no constitutional\nerror.” See United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000). Until Ewing shows\nactual prejudice, he has shown only a due process violation—for denial of an opportunity to\nprove prejudice—and not yet a violation of his Sixth Amendment right to an impartial jury. To\nremedy the constitutional violation, then, is to afford Ewing the opportunity he was denied, but\nto skip that step and grant a new trial is to cure a constitutional violation that has not been shown\nto exist.\n\n Short-circuiting the remedial process in this way risks offending principles of federalism\nand comity that govern federal habeas review of state court convictions. As the Court explained\nin Jackson v. Denno, in the context of a potentially involuntary confession, to impose a trial on\nthe state before the outcome of the constitutionally-required hearing is known “would not\n\n 3Ewing argues cursorily and without citation that the State has waived its ability to challenge the district\ncourt’s remedy by conceding that Ewing is entitled to a Remmer hearing after opposing any relief below. The\nState’s admirable concession regarding the need for a Remmer hearing hardly amounts to a waiver of its argument\nregarding the proper remedy in this case. Ruling otherwise in this context would deter reasonable concessions.\n\n No. 17-2485 Ewing v. Horton Page 9\n\n\ncomport with the interests of sound judicial administration and the proper relationship between\nfederal and state courts.” 378 U.S. 368, 395 (1964). The entire habeas regime as it exists today\nreflects the deference and respect owed to state courts as part of this delicate balance. Federal\nhabeas review “intrudes on state sovereignty to a degree matched by few exercises of federal\njudicial authority.” See Harrington v. Richter, 562 U.S. 86, 103 (2011) (quoting Harris v. Reed,\n489 U.S. 255, 282 (1989) (Kennedy, J., dissenting)). To condition Ewing’s release on a new\ntrial, without first allowing the State to conduct a Remmer hearing, intrudes on that sovereignty\nmore severely than is necessary or appropriate. Thus, it was an abuse of discretion to do so.\n\n We are mindful that the passing of time since Ewing’s conviction eight years ago may\nmake it difficult to conduct a suitable Remmer hearing at this stage. Jurors move and memories\nfade. But that has not stopped the Supreme Court from remanding for a Remmer hearing years\nafter an initial conviction. See, e.g., Williams v. Taylor, 529 U.S. 420, 442 (2000) (six-year\ndelay). Indeed, Ewing does not argue that an evidentiary hearing would be futile at this point;\njust the opposite, he requested a hearing as alternative relief. In any event, the Michigan courts\nare well equipped to provide appropriate relief should the passage of time prevent the court from\naffording Ewing a constitutionally-meaningful Remmer hearing, and Ewing is free to seek\nhabeas relief if he finds the State’s process constitutionally inadequate.4\n\n\n\n\n 4At oral argument, counsel for the State agreed that to the extent juror testimony has become unavailable, a\nburden or presumption “might well” be placed against the State:\n Q: Do you know if those jurors are alive?\n A: I don’t know your honor, I don’t know, and if they’re not, I mean these are things the court\n can take into account, and can say you know we’ve tried to have a hearing, we couldn’t get\n these jurors here because they’re missing or they’re dead and we can make inferences and\n we can hold that against the State perhaps and we can say, you know…\n Q: That’s the question, suppose hypothetically that these jurors are inaccessible, either dead or\n can’t be found, so against whom would any burden or presumption be placed? You just said\n it would be placed against the Government, the State.\n A: I think it would depend and I think it might well be placed against the State.\n Q: What would it depend on?\n A: I think it might depend on whose fault it is. I think unfortunately the fault lies mainly with\n the Wayne Circuit Court because in the Wayne Circuit Court, both parties agreed let’s have a\n hearing, it’s fresh, let’s do it now, and the Wayne Circuit Court said we don’t need a hearing\n . . . .”\n\n No. 17-2485 Ewing v. Horton Page 10\n\n\n For these reasons, we reverse and remand to the district court with instructions to issue an\namended order conditionally granting habeas relief unless the State takes steps to conduct a\nproper evidentiary hearing on Ewing’s claim of juror misconduct within a reasonable period set\nby the district court’s order. We leave it for the district court to determine whether the two\nadditional claims presented in Ewing’s petition should be resolved before ordering relief on this\nclaim. See supra note 1.\n\n No. 17-2485 Ewing v. Horton Page 11\n\n\n _________________\n\n DISSENT\n _________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364730/", "author_raw": "ROGERS, Circuit Judge"}, {"author": "KAREN NELSON MOORE, Circuit Judge, dissenting", "type": "dissent", "text": "KAREN NELSON MOORE, Circuit Judge, dissenting. This is a case about a district\ncourt’s discretion to fashion an equitable remedy. The facts are not complicated: Michigan\nviolated Ewing’s due process rights when it denied him a Remmer hearing. As to this all agree.\nThe only question that remains is whether the district court’s chosen remedy—a new trial—was\nproper. The standard of review is abuse of discretion.51 The district court’s chosen remedy was\nwithin its discretion, and so I respectfully dissent.\n\n A defendant who musters evidence that “an extrinsic influence has reached the jury\nwhich has a reasonable potential for tainting that jury” is owed an opportunity to prove the effect\nof that extrinsic influence on the jury—namely, an evidentiary hearing (also called a “Remmer\nhearing”). Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999), abrogated on other grounds\nby Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Ewing was denied such a hearing in state\ncourt, despite having presented an affidavit showing extrinsic influence on the jury, and the\ndistrict court found that this violated Ewing’s constitutional rights. Ewing v. Horton, No. 2:15-\nCV-10523, 2017 WL 5564603, at 3 (E.D. Mich. Nov. 20, 2017). The State now concedes this\nviolation. Appellant Br. at 11. Having found a violation of a right, the district court then\nfashioned a remedy: a new trial.\n\n Guidance on habeas remedies is minimal; the law leaves much to the district court’s\ndiscretion. Courts must “dispose of the matter as law and justice require.” 28 U.S.C. § 2243.\nAnd, as is always the case when reviewing state-court decisions, courts must “respect the proper\nrelationship between federal and state courts.” Jackson v. Denno, 378 U.S. 368, 395 (1964).\n\n 1We have not held until today that the standard of review for habeas remedies is abuse of discretion, but\nother circuits have suggested as much. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1202 (10th Cir. 1999) (“Finally,\nwe hold that the district court did not abuse its discretion in remanding the matter to state court for further\nsentencing proceedings.” (emphasis added)). In addition, the standard of review for equitable remedies is generally\nabuse of discretion. See, e.g., eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“The decision to grant\nor deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for\nabuse of discretion.”); Oakley v. City of Memphis, 566 F. App’x 425, 429 (6th Cir. 2014) (stating that “[b]ackpay is\nan equitable remedy” and “[w]e review a district court’s decision to award backpay . . . for abuse of discretion”).\nFinally, the State concedes that the proper standard of review is abuse of discretion. Appellant Reply Br. at 4.\n\n No. 17-2485 Ewing v. Horton Page 12\n\n\n In this case, the district court decided that what law and justice required was a new trial.\nThis is not beyond the pale, nor is it an unnecessary intrusion on state sovereignty. Due process\nrequires a “sound[]” and “adequate” hearing, id. at 394, 395, and it is entirely appropriate for the\ndistrict court to have concluded that an evidentiary hearing on highly fact-specific issues\nconducted seven years later would have been neither sound nor adequate—assuming the\nnecessary parties were available at all. Cf. Smith v. Phillips, 455 U.S. 209, 243 (1982)\n(“[D]eference to state-court factfinding is not required where the evidentiary hearing on which\nthe factfinding is based is inherently unreliable.” (Marshall, J., dissenting)). I fail to see how it is\nrespectful of the state court to order it to conduct an inadequate hearing.\n\n The majority points to Williams v. Taylor as evidence that a Remmer hearing conducted\nyears after the violation is sound and what is required by principles of federalism. 529 U.S. 420\n(2000); Maj. Op. at 9. But Williams is less helpful than the majority suggests.\n\n First, in Williams the district court denied the petitioner an evidentiary hearing. Thus,\nunlike the situation in which we find ourselves, the Supreme Court was not reviewing a chosen\nremedy. Williams, 529 U.S. at 427–29.\n\n Next, the issue in Williams involved one juror’s failure fully to answer voir dire questions\ngoing to bias and a prosecutor’s failure to reveal his knowledge of the juror’s bias. Id. at 427.\nThus the evidentiary hearing required the calling of a few witnesses only: the juror and the\nprosecutor. In contrast, here, to prove prejudice, a substantial portion or likely all of the jurors\nmay need to be called. In addition, the facts at issue in the evidentiary hearing in Williams were\nof a different sort than those at issue here. In Williams, a juror did not respond in the affirmative\nwhen asked whether she was related to the Deputy Sheriff, who was identified by name as a\npotential trial witness. Id. at 440. But in fact the juror had once been married to the Deputy\nSheriff. Id. at 441. In addition, that juror failed to reveal at voir dire that one of the prosecutors\nhad been her divorce attorney, despite having been asked whether any of the named\nprosecutors—including her former divorce attorney—had represented her. Id. at 440–41. The\nprosecutor of course knew of the juror’s marriage to the Deputy Sheriff, just as he of course\nknew that he had represented the juror, although he claimed otherwise. Id.\n\n No. 17-2485 Ewing v. Horton Page 13\n\n\n The evidentiary hearing in Williams revealed the length of the juror’s marriage to the\nDeputy Sherriff, that they shared children, and and that they had an ongoing relationship in the\nform of child-support payments. Williams v. Netherland, 181 F. Supp. 2d 604, 608–09 (E.D. Va.\n2002). It revealed also that the prosecutor drew up the juror’s divorce papers and that his name\nwas on the deed to her house as an attorney. Id. at 609. The Williams evidentiary hearing dealt\nprimarily in factual, historical information, and in most instances this information would have\nbeen recorded on paper. That the hearing would have been so delimited was apparent from the\nissues.\n\n Here, however, the evidentiary hearing will require exploration of the effects of extrinsic\ninfluence on the jury, including jurors’ knowledge of certain pieces of information, the effects of\nthe extrinsic influence on the jurors, and the relative weight they gave to proper and improper\nmatters during deliberations. This is exactly the sort of information that is likely to be lost to\ntime. Therefore, the fact that a hearing was granted in Williams despite a six-year gap does not\nmean the district court was wrong to conclude that, in this case, a hearing seven years later\nwould have been an ineffective remedy.\n\n Undeterred, the majority argues that ordering a new trial would be to “cure a\nconstitutional violation that has not been shown to exist” and is “more severe[] than is necessary\nor appropriate.” Maj. Op. at 8–9. In essence, the majority seems to believe that a remedy must\nmirror exactly the violation—a new evidentiary hearing if an evidentiary hearing was denied; a\nnew trial if a fair trial was denied. For support, the majority points to a series of cases in which\nan evidentiary hearing was ordered to remedy the denial thereof, starting with Remmer itself.\nMaj. Op. at 6.\n\n At least as to Remmer, the majority is mistaken. Granted, in Remmer the Supreme Court\nheld initially that the defendant was owed an evidentiary hearing to determine whether his jury\nwas prejudiced by extrinsic information and remanded the case to the trial court for such a\nhearing. Remmer v. United States, 347 U.S. 227, 230 (1954). Of course, unlike this case, the\ntrial court in Remmer did not know of its obligation to conduct a Remmer hearing. In addition,\nthe remand order was issued less than two and a half years after the underlying trial. See United\nStates v. Remmer, 122 F. Supp. 673, 674 (D. Nev. 1954). Most importantly, the fact that a\n\n No. 17-2485 Ewing v. Horton Page 14\n\n\nhearing was the initial remedy chosen does not mean that the only appropriate remedy for a\ndenied hearing or defective hearing is remand for a new hearing—Remmer’s subsequent history\nshows that other remedies are available.\n\n In Remmer, after the Supreme Court’s initial remand, the trial court conducted a limited\nhearing using an “unduly restrictive interpretation” of the Court’s order. Remmer v. United\nStates, 350 U.S. 377, 382 (1956). Another appeal to the Supreme Court followed. Rather than\nremand for the more fulsome evidentiary hearing its mandate required, the Supreme Court used\nwhat facts were available and determined that the extrinsic influence “may have influenced and\ndisturbed” the juror at issue and ordered a new trial. Id. (emphasis added). The Supreme Court’s\nconclusion in the second iteration of Remmer perfectly demonstrates the discretion inherent in\nremedy crafting. The Supreme Court could have remanded for another evidentiary hearing, and,\nunder the majority’s view, ought to have. Instead given the circumstances, it found a new trial\nwas appropriate. Here too, the district court could have remanded for an evidentiary hearing, but\ninstead exercised its discretion to order a new trial.\n\n Granted, unlike Remmer, here considerations of federalism weigh against a broader\nremedy. But federalism is not a trump card, and in some circumstances other considerations\npredominate. A district “court has broad discretion in conditioning a judgment granting habeas\nrelief.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987); Van Tran v. Colson, 764 F.3d 594, 619\n(6th Cir. 2014). Habeas corpus is ultimately an equitable remedy. Schlup v. Delo, 513 U.S. 298,\n319 (1995). The district court, guided by considerations of law and justice as well as federalism,\ncrafted what it thought an appropriate remedy. In these circumstances a new trial was a\nreasonable balancing of the petitioner’s rights and the State’s interests. Therefore I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364730/", "author_raw": "KAREN NELSON MOORE, Circuit Judge, dissenting"}]}	SILER	MOORE	ROGERS	1	{"SILER": ", Circuit", "MOORE": ", Circuit", "ROGERS": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587477/	Published	1	0	0	2,019	2	[ { "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...
4,587,846		Darrell Ewing v. Connie Horton	2019-02-05	17-2485	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Before: SILER, MOORE, and ROGERS, Circuit Judges _________________ COUNSEL ARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant.", "parties": "", "opinions": [{"author": "ROGERS, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0015p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n DARRELL RASHARD EWING, ┐\n Petitioner-Appellee, │\n │\n > No. 17-2485\n v. │\n │\n │\n CONNIE HORTON, Warden, │\n Respondent-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:15-cv-10523—Denise Page Hood, Chief District Judge.\n\n Argued: October 2, 2018\n\n Decided and Filed: February 5, 2019\n\n Before: SILER, MOORE, and ROGERS, Circuit Judges\n\n _________________\n\n COUNSEL\n\nARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,\nLansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for Appellee.\nON BRIEF: Andrea M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY\nGENERAL, Lansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for\nAppellee.\n\n ROGERS, J., delivered the opinion of the court in which SILER, J., joined. MOORE, J.\n(pp. 11–14), delivered a separate dissenting opinion.\n\n No. 17-2485 Ewing v. Horton Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n ROGERS, Circuit Judge. Two months after Darrell Ewing was convicted of murder, a\njuror filed an affidavit accusing two fellow jurors of conducting after-hours internet research\nabout the case and discussing their findings during deliberations. Without holding an evidentiary\nhearing to determine what, if any, prejudicial impact that extracurricular fact-finding had on the\njury, the state trial and appellate courts considered the information duplicative of the evidence at\ntrial and the incident harmless. That was constitutional error, as everyone now agrees. The\nquestion is how best to remedy that constitutional injury on habeas review. The district court\nconditionally granted Ewing’s release from prison unless the State acts within ninety days to\nafford him a new trial. The appropriate remedy in such a case, however, is generally to order\nrelease unless the State provides—instead of a new trial—a hearing to consider whether a new\ntrial is warranted. Such an order should have been entered by the district court in this case.\n\n In October 2010, Ewing stood trial for first-degree murder and other charges arising from\nan apparently gang-related shooting at a Detroit intersection. J.B. Watson and three others were\nwaiting at a red light at the intersection of Harper and Van Dyke when Derrico Searcy drove up a\nfew car lengths behind them and pulled over to the curb. With the light still red, Ewing allegedly\nexited Searcy’s car with his gun drawn, walked the rest of the way to the intersection, and fired\nseveral shots into the back of the van before retreating to his getaway car and speeding off in the\nother direction. One passenger was injured after taking a bullet to the hand, and Watson was\nkilled. Watson and two other passengers were members of a gang known as the Knock Out\nBoys; Searcy and Ewing allegedly belonged to the rival Hustle Boys.\n\n The prosecution framed the shooting as part of an ongoing feud between the Knock Out\nBoys and the Hustle Boys, and relied on witness testimony identifying Ewing as the shooter.\nEwing’s defense was that they had the wrong guy—that he was attending a funeral when the\nshooting happened and that the real shooter was another Hustle Boy, Tyree Washington. Ewing\nput on alibi witnesses and even a jailhouse informant who testified that Washington had\nconfessed to the shooting—and had bragged about it to other inmates—while Washington and\n\n No. 17-2485 Ewing v. Horton Page 3\n\n\nthe informant were in jail on federal carjacking charges. On the second day of deliberations, the\njury asked the court to declare that the jury was deadlocked, but the court refused and charged\nthem to press on. On the fourth day of deliberations the jury returned a verdict against Ewing of\nguilty on all counts, including first-degree murder, which carried a mandatory life sentence.\n\n About two months after the verdict, Kathleen Frances Byrnes (Juror #4) filed an affidavit\nstating that two fellow jurors had “brought up information that was not part of the evidence\nintroduced into court.” Byrnes swore the following:\n\n 5. [Juror #13] discussed Facebook look up information during deliberations.\n [Juror #13] brought up information regarding Mr. Ewing’s and\n Mr. Searcy’s past. [Juror #13] said she saw on Facebook a picture of\n Mr. Ewing and a girl with the caption “Mr. and Mrs. Nasty” and had\n brought to the juror’s attention that she had read an [sic] eulogy online for\n J.B. Watson.\n 6. [Juror #5] bought up during juror deliberations that she had googled gang\n information and knew about gang codes and that gang activity involved\n killing people.\n 7. [Juror #5] also said during deliberations that gangs have a pecking order\n according to information she googled at home. She went on to say that\n Darrell Ewing was at the top of the pecking order. That would put Tyree\n Washington at the bottom and the gang decided to sacrifice Tyree\n Washington by setting him up as the fall guy for the murder. According to\n [Juror #5], the above information was based on what she had read on line\n [sic] regarding the history of gangs on the goggle web site [sic].\n\n Based on the Byrnes affidavit, Ewing filed a motion for a new trial on the ground that the\njury was tainted by the extraneous information. Although the motion was styled as one for a new\ntrial, Ewing alternatively requested an evidentiary hearing to elicit testimony from Byrnes and\nfurther develop the facts surrounding the allegedly tainted jury deliberations. The State argued\nin response that, while the affidavit alone did not warrant a new trial, the State would have no\nobjection if the court determined that an adequate showing was made to hold an evidentiary\nhearing. Despite the State’s amenability, the court held that Ewing had not shown that the jury\nwas exposed to extraneous information “that was not already presented to it as evidence in the\ntrial,” and denied the motion outright. In other words, the court found that the jury was not\n\n No. 17-2485 Ewing v. Horton Page 4\n\n\nexposed to any extraneous influences because the internet information was duplicative of what\nthe jury had learned from the evidence at trial.\n\n The Michigan Court of Appeals affirmed and held that the extraneous information was\nduplicative of evidence produced at trial and thus harmless. See People v. Searcy, 2013 WL\n4609125, at 9–10 (Mich. Ct. App. Aug. 29, 2013). According to the court, the Facebook\npicture of Ewing was innocuous and similar to many photos that were shown at trial; Watson’s\neulogy contained no new, relevant information and presumably was discussed only in passing;\nand the information about gang activity and hierarchy was either patently obvious or easily\ninferred from witness testimony. See id. at 9. The court therefore held that Ewing had not\nshown a real and substantial possibility that the information could have affected the verdict. See\nid. at 10. The Michigan Supreme Court denied Ewing’s petition for leave to appeal. See\nPeople v. Ewing, 843 N.W.2d 200 (Mich. 2014).\n\n Having exhausted his state remedies, Ewing filed a timely petition for a writ of habeas\ncorpus under 28 U.S.C. § 2254. Ewing raised several claims,1 including that he was denied his\nconstitutional rights to a fair trial and an impartial jury because of the jury’s consideration of\nextraneous facts, as recounted in the Byrnes affidavit. As for relief, Ewing argued that he was\n“entitled to a new trial or at least a proper hearing to determine the impact of the extraneous\ninfluences on the jurors.” Over the State’s opposition, the district court held that the state court’s\ndetermination was contrary to clearly established law. The district court concluded that Ewing\nhad “shown that the internet information may have tainted the jury” and that the “effect of the\nextraneous information on the jury does not appear to be harmless,” but the court reiterated that\nthe actual effect of the extraneous information was unknowable without an evidentiary hearing.\nBased on these findings, the district court conditionally granted Ewing’s petition and ordered the\nState to afford Ewing a new trial within ninety days or release him.\n\n\n\n\n 1\n In addition to his claim of extraneous influence, Ewing argued that he was denied due process of law\nwhen the trial court failed to give a deadlocked jury instruction and that a signed confession by Washington\nconstituted new evidence of innocence that required his release or at least an evidentiary hearing. Because the\ndistrict court granted relief on Ewing’s claim of extraneous influence, it held that Ewing’s other two claims were\nmoot.\n\n No. 17-2485 Ewing v. Horton Page 5\n\n\n The parties now agree that Ewing was unconstitutionally denied an opportunity to prove\nthat he was actually prejudiced by the use of outside internet research. “When a trial court is\npresented with evidence that an extrinsic influence has reached the jury which has a reasonable\npotential for tainting that jury, due process requires that the trial court take steps to determine\nwhat the effect of such extraneous information actually was on that jury.” Nevers v. Killinger,\n169 F.3d 352, 373 (6th Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d\n940 (6th Cir. 2000); see also Smith v. Phillips, 455 U.S. 209, 217–18 (1982). In other words,\n“[w]here a colorable claim of extraneous influence has been raised, [an evidentiary hearing] must\nbe held to afford the defendant an opportunity to establish actual bias.” See United States v.\nDavis, 177 F.3d 552, 557 (6th Cir. 1999). These cases apply the Supreme Court’s holding in\nRemmer v. United States, 347 U.S. 227, 229–30 (1954), and the required hearing is often referred\nto as a Remmer hearing.\n\n Here, the Byrnes affidavit states that the jury learned of and discussed outside\ninformation about the defendant, the murder victim, and the activities and internal power-\ndynamics of gangs. Such information had a clear potential for tainting the jury. The State has\naccordingly made the reasonable concession on this appeal that it was contrary to established law\nfor the state court to deny Ewing an opportunity to show the actual effect that the information\nhad on the jury.\n\n Ewing has not, however, proven a Sixth Amendment violation of his underlying rights to\na fair trial and an impartial jury, because to do that he must demonstrate actual prejudice. See\nLang v. Bobby, 889 F.3d 803, 811 (6th Cir. 2018). The district court’s own findings compel the\nconclusion that, without a hearing, there is too much that is unknown about the deliberations to\nhold that Ewing has proven such prejudice. The court found that the Byrnes affidavit is “void of\ninformation pertaining to the extent of the discussions regarding the eulogy,” and could only\n“infer” that the contents were discussed at all. Regarding the gang-code information, the court\ncould conclude only that it “may have been discussed in order to break the jury deadlock.” As to\nJuror #5’s theory about gang pecking-orders and the Hustle Boys’ scapegoating Williams, the\ncourt found that “[t]he details of the information itself and the source of this information are\nunknown,” and that “[w]ithout an evidentiary hearing, the specifics of this information, and the\n\n No. 17-2485 Ewing v. Horton Page 6\n\n\nextent of other extraneous information, is unknown.” These findings certainly suggest, in the\ncourt’s words, “that the internet information may have tainted the jury,” but by their own terms,\nthey fall short of actual prejudice.\n\n This, of course, is not Ewing’s fault. He was denied an opportunity to develop these facts\nat a Remmer hearing. But that does not relieve Ewing of the burden to show actual prejudice\nonce he has been provided an opportunity to do so. When a petitioner shows that extraneous\ninformation may have tainted the jury, due process requires the opportunity to show that the\ninformation did taint the jury to his detriment. See, e.g., Remmer, 347 U.S. at 229–30. “[D]ue\nprocess does not require a new trial every time a juror has been placed in a potentially\ncompromising situation.” Smith, 455 U.S. at 217. Thus, where a petitioner has shown a\ncolorable claim of juror bias but has been denied an opportunity to prove actual prejudice, the\nproper remedy is to remand for a Remmer hearing to determine what, if any, actual impact the\noutside information had on the jury’s verdict. That is the relief the Supreme Court and our court\nhave repeatedly ordered. See, e.g., Remmer, 347 U.S. at 230; Smith, 455 U.S. at 217–18;\nWilliams v. Taylor, 529 U.S. 420, 442 (2000); United States v. Harris, 881 F.3d 945, 953 (6th\nCir. 2018); United States v. Corrado, 227 F.3d 528, 536–37 (6th Cir. 2000); United States v.\nHernden, 156 F.3d 629, 637–38 (6th Cir. 1998). As the Supreme Court ruled in Remmer itself:\n\n The trial court should not decide and take final action ex parte on information\n such as was received in this case, but should determine the circumstances, the\n impact thereof upon the juror, and whether or not it was prejudicial, in a hearing\n with all interested parties permitted to participate.\n We therefore vacate the judgment of the Court of Appeals and remand the case to\n the District Court with directions to hold a hearing to determine whether the\n incident complained of was harmful to the petitioner, and if after hearing it is\n found to have been harmful, to grant a new trial.\n\nRemmer, 347 U.S. at 229–30.\n\n Ewing concedes that the Supreme Court “has long held that the remedy for allegations of\njuror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”2 In\n\n\n 2\n At one point in his brief Ewing even states that “[t]he case should be reversed or remanded for an\nevidentiary hearing.”\n\n No. 17-2485 Ewing v. Horton Page 7\n\n\nthe face of this substantial caselaw, Ewing points to Nevers as his sole support for conditioning\nrelease on a new trial rather than a Remmer hearing. 169 F.3d 352. Depending on your reading,\nthat case is either an outlier or the exception that proves the rule. In Nevers, this court affirmed\nthe district court’s unconditional grant of habeas relief without any explanation as to why that\nrelief should not be conditioned on a Remmer hearing. That lack of explanation is especially\ncurious in light of the Nevers court’s express recognition that “[w]hen a trial court is presented\nwith evidence that an extrinsic influence has reached the jury which has a reasonable potential\nfor tainting that jury, due process requires that the trial court take steps to determine what the\neffect of such extraneous information actually was on that jury.” Id. at 373. One possible\nexplanation is that the parties may not have litigated the propriety of the remedy because the\ndistrict court below had vacated Nevers’s conviction and ordered his unconditional release based\non two constitutional violations, the extrinsic-influence claim and a pre-trial publicity claim that\nwas reversed on appeal. To the extent that the propriety of the remedy was not litigated in\nNevers, or was overlooked because of the scope of the district court’s original grant, that case is\nuninstructive here.\n\n Perhaps the best explanation for the remedy in Nevers, however, is that Nevers did show\nwhat Ewing has not—actual prejudice. In Nevers, the Michigan Supreme Court had denied an\nevidentiary hearing but accepted as true the substance of three juror affidavits and conceded that\nthe extraneous information was not duplicative of evidence at trial and had a substantial\npossibility of affecting the verdict. See id. at 373. The state court denied Nevers’s claim only\nafter concluding that the evidence of guilt was so overwhelming that the admittedly prejudicial\ninformation was harmless. See id. On habeas review, this court held that\n\n under the circumstances, Nevers need point to nothing more than the juror’s\n sworn statement that the [extraneous information] set the tone for the jury’s\n deliberations and the Michigan Supreme Court’s acknowledgement that this was\n the kind of material that has a direct and rational connection between it and an\n adverse verdict to demonstrate that the jury’s possession of the extraneous\n information had a substantial and injurious effect or influence in determining the\n jury’s verdict, and resulted in actual prejudice.\n\n No. 17-2485 Ewing v. Horton Page 8\n\n\nId. (internal citations and quotation marks omitted) (emphasis added). That is, Nevers\ndemonstrated actual prejudice, which obviated any need for a Remmer hearing. Here, by\ncontrast, the state court found the information to be duplicative and without the potential to affect\nthe verdict; even crediting the Byrnes affidavit, one is left to guess what, if any, effect the outside\ninformation had on deliberations. In fact, not even Byrnes has said that the outside information\naffected her vote. Read this way, Nevers is the exception (where actual prejudice was shown\nwithout a hearing) that proves the rule (that the normal remedy for a colorable claim of\nextraneous influence is for a hearing to show actual prejudice).\n\n Because the only demonstrated constitutional injury is the failure to grant Ewing a\nRemmer hearing, the proper relief was to condition his release on a suitable evidentiary hearing,\nrather than a new trial.3 Courts typically have broad discretion in fashioning habeas relief, but\nthe relief granted must be tailored to cure the constitutional injury without unnecessarily\ninfringing on competing interests of comity, federalism, and finality. See United States v.\nMorrison, 449 U.S. 361, 364 (1981); see also Hilton v. Braunskill, 481 U.S. 770, 775 (1987).\nConsistent with Morrison, the appropriate “remedy is the one that as much as possible restores\nthe defendant to the circumstances that would have existed had there been no constitutional\nerror.” See United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000). Until Ewing shows\nactual prejudice, he has shown only a due process violation—for denial of an opportunity to\nprove prejudice—and not yet a violation of his Sixth Amendment right to an impartial jury. To\nremedy the constitutional violation, then, is to afford Ewing the opportunity he was denied, but\nto skip that step and grant a new trial is to cure a constitutional violation that has not been shown\nto exist.\n\n Short-circuiting the remedial process in this way risks offending principles of federalism\nand comity that govern federal habeas review of state court convictions. As the Court explained\nin Jackson v. Denno, in the context of a potentially involuntary confession, to impose a trial on\nthe state before the outcome of the constitutionally-required hearing is known “would not\n\n 3\n Ewing argues cursorily and without citation that the State has waived its ability to challenge the district\ncourt’s remedy by conceding that Ewing is entitled to a Remmer hearing after opposing any relief below. The\nState’s admirable concession regarding the need for a Remmer hearing hardly amounts to a waiver of its argument\nregarding the proper remedy in this case. Ruling otherwise in this context would deter reasonable concessions.\n\n No. 17-2485 Ewing v. Horton Page 9\n\n\ncomport with the interests of sound judicial administration and the proper relationship between\nfederal and state courts.” 378 U.S. 368, 395 (1964). The entire habeas regime as it exists today\nreflects the deference and respect owed to state courts as part of this delicate balance. Federal\nhabeas review “intrudes on state sovereignty to a degree matched by few exercises of federal\njudicial authority.” See Harrington v. Richter, 562 U.S. 86, 103 (2011) (quoting Harris v. Reed,\n489 U.S. 255, 282 (1989) (Kennedy, J., dissenting)). To condition Ewing’s release on a new\ntrial, without first allowing the State to conduct a Remmer hearing, intrudes on that sovereignty\nmore severely than is necessary or appropriate. Thus, it was an abuse of discretion to do so.\n\n We are mindful that the passing of time since Ewing’s conviction eight years ago may\nmake it difficult to conduct a suitable Remmer hearing at this stage. Jurors move and memories\nfade. But that has not stopped the Supreme Court from remanding for a Remmer hearing years\nafter an initial conviction. See, e.g., Williams v. Taylor, 529 U.S. 420, 442 (2000) (six-year\ndelay). Indeed, Ewing does not argue that an evidentiary hearing would be futile at this point;\njust the opposite, he requested a hearing as alternative relief. In any event, the Michigan courts\nare well equipped to provide appropriate relief should the passage of time prevent the court from\naffording Ewing a constitutionally-meaningful Remmer hearing, and Ewing is free to seek\nhabeas relief if he finds the State’s process constitutionally inadequate.4\n\n\n\n\n 4\n At oral argument, counsel for the State agreed that to the extent juror testimony has become unavailable, a\nburden or presumption “might well” be placed against the State:\n Q: Do you know if those jurors are alive?\n A: I don’t know your honor, I don’t know, and if they’re not, I mean these are things the court\n can take into account, and can say you know we’ve tried to have a hearing, we couldn’t get\n these jurors here because they’re missing or they’re dead and we can make inferences and\n we can hold that against the State perhaps and we can say, you know…\n Q: That’s the question, suppose hypothetically that these jurors are inaccessible, either dead or\n can’t be found, so against whom would any burden or presumption be placed? You just said\n it would be placed against the Government, the State.\n A: I think it would depend and I think it might well be placed against the State.\n Q: What would it depend on?\n A: I think it might depend on whose fault it is. I think unfortunately the fault lies mainly with\n the Wayne Circuit Court because in the Wayne Circuit Court, both parties agreed let’s have a\n hearing, it’s fresh, let’s do it now, and the Wayne Circuit Court said we don’t need a hearing\n . . . .”\n\n No. 17-2485 Ewing v. Horton Page 10\n\n\n For these reasons, we reverse and remand to the district court with instructions to issue an\namended order conditionally granting habeas relief unless the State takes steps to conduct a\nproper evidentiary hearing on Ewing’s claim of juror misconduct within a reasonable period set\nby the district court’s order. We leave it for the district court to determine whether the two\nadditional claims presented in Ewing’s petition should be resolved before ordering relief on this\nclaim. See supra note 1.\n\n No. 17-2485 Ewing v. Horton Page 11\n\n\n _________________\n\n DISSENT\n _________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365099/", "author_raw": "ROGERS, Circuit Judge"}, {"author": "KAREN NELSON MOORE, Circuit Judge, dissenting", "type": "dissent", "text": "KAREN NELSON MOORE, Circuit Judge, dissenting. This is a case about a district\ncourt’s discretion to fashion an equitable remedy. The facts are not complicated: Michigan\nviolated Ewing’s due process rights when it denied him a Remmer hearing. As to this all agree.\nThe only question that remains is whether the district court’s chosen remedy—a new trial—was\nproper. The standard of review is abuse of discretion.1 The district court’s chosen remedy was\nwithin its discretion, and so I respectfully dissent.\n\n A defendant who musters evidence that “an extrinsic influence has reached the jury\nwhich has a reasonable potential for tainting that jury” is owed an opportunity to prove the effect\nof that extrinsic influence on the jury—namely, an evidentiary hearing (also called a “Remmer\nhearing”). Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir. 1999), abrogated on other grounds\nby Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Ewing was denied such a hearing in state\ncourt, despite having presented an affidavit showing extrinsic influence on the jury, and the\ndistrict court found that this violated Ewing’s constitutional rights. Ewing v. Horton, No. 2:15-\nCV-10523, 2017 WL 5564603, at 3 (E.D. Mich. Nov. 20, 2017). The State now concedes this\nviolation. Appellant Br. at 11. Having found a violation of a right, the district court then\nfashioned a remedy: a new trial.\n\n Guidance on habeas remedies is minimal; the law leaves much to the district court’s\ndiscretion. Courts must “dispose of the matter as law and justice require.” 28 U.S.C. § 2243.\nAnd, as is always the case when reviewing state-court decisions, courts must “respect the proper\nrelationship between federal and state courts.” Jackson v. Denno, 378 U.S. 368, 395 (1964).\n\n 1\n We have not held until today that the standard of review for habeas remedies is abuse of discretion, but\nother circuits have suggested as much. See, e.g., Paxton v. Ward, 199 F.3d 1197, 1202 (10th Cir. 1999) (“Finally,\nwe hold that the district court did not abuse its discretion in remanding the matter to state court for further\nsentencing proceedings.” (emphasis added)). In addition, the standard of review for equitable remedies is generally\nabuse of discretion. See, e.g., eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“The decision to grant\nor deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for\nabuse of discretion.”); Oakley v. City of Memphis, 566 F. App’x 425, 429 (6th Cir. 2014) (stating that “[b]ackpay is\nan equitable remedy” and “[w]e review a district court’s decision to award backpay . . . for abuse of discretion”).\nFinally, the State concedes that the proper standard of review is abuse of discretion. Appellant Reply Br. at 4.\n\n No. 17-2485 Ewing v. Horton Page 12\n\n\n In this case, the district court decided that what law and justice required was a new trial.\nThis is not beyond the pale, nor is it an unnecessary intrusion on state sovereignty. Due process\nrequires a “sound[]” and “adequate” hearing, id. at 394, 395, and it is entirely appropriate for the\ndistrict court to have concluded that an evidentiary hearing on highly fact-specific issues\nconducted seven years later would have been neither sound nor adequate—assuming the\nnecessary parties were available at all. Cf. Smith v. Phillips, 455 U.S. 209, 243 (1982)\n(“[D]eference to state-court factfinding is not required where the evidentiary hearing on which\nthe factfinding is based is inherently unreliable.” (Marshall, J., dissenting)). I fail to see how it is\nrespectful of the state court to order it to conduct an inadequate hearing.\n\n The majority points to Williams v. Taylor as evidence that a Remmer hearing conducted\nyears after the violation is sound and what is required by principles of federalism. 529 U.S. 420\n(2000); Maj. Op. at 9. But Williams is less helpful than the majority suggests.\n\n First, in Williams the district court denied the petitioner an evidentiary hearing. Thus,\nunlike the situation in which we find ourselves, the Supreme Court was not reviewing a chosen\nremedy. Williams, 529 U.S. at 427–29.\n\n Next, the issue in Williams involved one juror’s failure fully to answer voir dire questions\ngoing to bias and a prosecutor’s failure to reveal his knowledge of the juror’s bias. Id. at 427.\nThus the evidentiary hearing required the calling of a few witnesses only: the juror and the\nprosecutor. In contrast, here, to prove prejudice, a substantial portion or likely all of the jurors\nmay need to be called. In addition, the facts at issue in the evidentiary hearing in Williams were\nof a different sort than those at issue here. In Williams, a juror did not respond in the affirmative\nwhen asked whether she was related to the Deputy Sheriff, who was identified by name as a\npotential trial witness. Id. at 440. But in fact the juror had once been married to the Deputy\nSheriff. Id. at 441. In addition, that juror failed to reveal at voir dire that one of the prosecutors\nhad been her divorce attorney, despite having been asked whether any of the named\nprosecutors—including her former divorce attorney—had represented her. Id. at 440–41. The\nprosecutor of course knew of the juror’s marriage to the Deputy Sheriff, just as he of course\nknew that he had represented the juror, although he claimed otherwise. Id.\n\n No. 17-2485 Ewing v. Horton Page 13\n\n\n The evidentiary hearing in Williams revealed the length of the juror’s marriage to the\nDeputy Sherriff, that they shared children, and and that they had an ongoing relationship in the\nform of child-support payments. Williams v. Netherland, 181 F. Supp. 2d 604, 608–09 (E.D. Va.\n2002). It revealed also that the prosecutor drew up the juror’s divorce papers and that his name\nwas on the deed to her house as an attorney. Id. at 609. The Williams evidentiary hearing dealt\nprimarily in factual, historical information, and in most instances this information would have\nbeen recorded on paper. That the hearing would have been so delimited was apparent from the\nissues.\n\n Here, however, the evidentiary hearing will require exploration of the effects of extrinsic\ninfluence on the jury, including jurors’ knowledge of certain pieces of information, the effects of\nthe extrinsic influence on the jurors, and the relative weight they gave to proper and improper\nmatters during deliberations. This is exactly the sort of information that is likely to be lost to\ntime. Therefore, the fact that a hearing was granted in Williams despite a six-year gap does not\nmean the district court was wrong to conclude that, in this case, a hearing seven years later\nwould have been an ineffective remedy.\n\n Undeterred, the majority argues that ordering a new trial would be to “cure a\nconstitutional violation that has not been shown to exist” and is “more severe[] than is necessary\nor appropriate.” Maj. Op. at 8–9. In essence, the majority seems to believe that a remedy must\nmirror exactly the violation—a new evidentiary hearing if an evidentiary hearing was denied; a\nnew trial if a fair trial was denied. For support, the majority points to a series of cases in which\nan evidentiary hearing was ordered to remedy the denial thereof, starting with Remmer itself.\nMaj. Op. at 6.\n\n At least as to Remmer, the majority is mistaken. Granted, in Remmer the Supreme Court\nheld initially that the defendant was owed an evidentiary hearing to determine whether his jury\nwas prejudiced by extrinsic information and remanded the case to the trial court for such a\nhearing. Remmer v. United States, 347 U.S. 227, 230 (1954). Of course, unlike this case, the\ntrial court in Remmer did not know of its obligation to conduct a Remmer hearing. In addition,\nthe remand order was issued less than two and a half years after the underlying trial. See United\nStates v. Remmer, 122 F. Supp. 673, 674 (D. Nev. 1954). Most importantly, the fact that a\n\n No. 17-2485 Ewing v. Horton Page 14\n\n\nhearing was the initial remedy chosen does not mean that the only appropriate remedy for a\ndenied hearing or defective hearing is remand for a new hearing—Remmer’s subsequent history\nshows that other remedies are available.\n\n In Remmer, after the Supreme Court’s initial remand, the trial court conducted a limited\nhearing using an “unduly restrictive interpretation” of the Court’s order. Remmer v. United\nStates, 350 U.S. 377, 382 (1956). Another appeal to the Supreme Court followed. Rather than\nremand for the more fulsome evidentiary hearing its mandate required, the Supreme Court used\nwhat facts were available and determined that the extrinsic influence “may have influenced and\ndisturbed” the juror at issue and ordered a new trial. Id. (emphasis added). The Supreme Court’s\nconclusion in the second iteration of Remmer perfectly demonstrates the discretion inherent in\nremedy crafting. The Supreme Court could have remanded for another evidentiary hearing, and,\nunder the majority’s view, ought to have. Instead given the circumstances, it found a new trial\nwas appropriate. Here too, the district court could have remanded for an evidentiary hearing, but\ninstead exercised its discretion to order a new trial.\n\n Granted, unlike Remmer, here considerations of federalism weigh against a broader\nremedy. But federalism is not a trump card, and in some circumstances other considerations\npredominate. A district “court has broad discretion in conditioning a judgment granting habeas\nrelief.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987); Van Tran v. Colson, 764 F.3d 594, 619\n(6th Cir. 2014). Habeas corpus is ultimately an equitable remedy. Schlup v. Delo, 513 U.S. 298,\n319 (1995). The district court, guided by considerations of law and justice as well as federalism,\ncrafted what it thought an appropriate remedy. In these circumstances a new trial was a\nreasonable balancing of the petitioner’s rights and the State’s interests. Therefore I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365099/", "author_raw": "KAREN NELSON MOORE, Circuit Judge, dissenting"}]}	SILER	MOORE	ROGERS	1	{"SILER": ", Circuit", "MOORE": ", Circuit", "ROGERS": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587846/	Published	1	0	0	2,019	2	[ { "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...
4,587,844	Imogene SHEPHERD, Widow of Tramble Shepherd, Petitioner, v. INCOAL, INC.; American Business & Mercantile Insurance Mutual, Inc. ; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.	Imogene Shepherd v. Incoal, Inc.	2019-02-06	17-4313	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Daughtrey, Gibbons, Griffin", "parties": "", "opinions": [{"author": "MARTHA CRAIG DAUGHTREY, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0016p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n IMOGENE SHEPHERD, widow of Tramble Shepherd, ┐\n Petitioner, │\n │\n > No. 17-4313\n v. │\n │\n │\n INCOAL, INC.; AMERICAN BUSINESS & MERCANTILE │\n INSURANCE MUTUAL, INC.; DIRECTOR, OFFICE OF │\n WORKERS’ COMPENSATION PROGRAMS, UNITED │\n STATES DEPARTMENT OF LABOR, │\n Respondents. │\n ┘\n\n On Petition for Review from the Benefits Review Board;\n No. 17-0081 BLA.\n\n Argued: December 5, 2018\n\n Decided and Filed: February 6, 2019\n\n Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Evan B. Smith, APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg,\nKentucky, for Petitioner. Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington,\nD.C., for Respondents Incoal and American Business & Mercantile Insurance. Jeffrey S.\nGoldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal\nRespondent. ON BRIEF: Evan B. Smith, APPALACHIAN CITIZENS’ LAW CENTER,\nWhitesburg, Kentucky, for Petitioner. Laura Metcoff Klaus, GREENBERG TRAURIG LLP,\nWashington, D.C., for Respondents Incoal and American Business & Mercantile Insurance.\nJeffrey S. Goldberg, Sean G. Bajkowski, UNITED STATES DEPARTMENT OF LABOR,\nWashington, D.C., for Federal Respondent.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n MARTHA CRAIG DAUGHTREY, Circuit Judge. More than ten years ago, claimant\nImogene Shepherd filed for survivor’s benefits under the Black Lung Benefits Act (BLBA),\n30 U.S.C. §§ 901–944, contending that her husband, a coal miner, died from respiratory\ncomplications exacerbated by exposure to coal dust during his years working in underground\ncoal mines. To date, respondent Incoal, Inc., has continued to challenge that claim, insisting that\nTramble Shepherd, the claimant’s deceased husband, should not be credited with 15 years of\nunderground coal mine employment, a length of time that would call into play a statutory and\nregulatory presumption that would justify an award of survivor’s benefits to Imogene Shepherd.\nIn its most recent decision in this litigation, the Benefits Review Board (BRB or Board) of the\nUnited States Department of Labor agreed with Incoal and denied Shepherd the relief she sought.\n\n Despite the need to resolve this litigation, further factfinding by an administrative law\njudge is required to ensure that all relevant evidence regarding the propriety of the claim has\nbeen considered. We thus grant the petition for review and remand this matter to the\nadministrative agency for further factual findings and determinations.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\n Tramble Shepherd (the miner) worked for various coal companies in Kentucky from no\nlater than May 1963 until June 1985. Although Imogene Shepherd (the claimant) later testified\nunder oath that her husband ceased his coal mine employment because “he was having a hard\ntime breathing and he couldn’t catch his breath,” the miner’s 1987 claim for benefits under the\nBLBA indicated that he had stopped working in or around coal mines due to a back injury he\nsuffered on the job approximately two years prior to his retirement. Indeed, the administrative\nlaw judge who first presided over the miner’s claim for benefits noted that “[t]he [miner] stated\nthat his breathing problem was one reason for not returning to coal mining but that he quit in\n1985, on the advice of his physician, due to a back injury.”\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 3\n\n\n In any event, in April 1987, the miner filed with the United States Department of Labor\nfor benefits under the BLBA. An administrative law judge conducted a hearing and concluded\nthat the evidence presented by the miner and by Incoal, Inc.—the last mining company with\nwhich the miner was employed for at least one year—supported the stipulation of the parties that\nthe miner “ha[d] 17 years of qualifying coal mine employment.” Nevertheless, despite the\nadministrative law judge’s conclusion “that the medical evidence established that the Miner\nsuffered from coal workers’ pneumoconiosis[, h]e determined . . . that the evidence did not\nsupport a finding that the Miner was totally disabled by the disease.” Consequently, the\nadministrative law judge denied the claim for benefits, and the miner chose not to appeal that\ndetermination.\n\n After the miner’s death in July 2008, however, his widow, the claimant, filed with the\nDepartment of Labor for survivor’s benefits to which she claimed she was entitled. The District\nDirector of the Department’s Office of Workers’ Compensation Programs agreed that such\nbenefits were appropriate. Incoal appealed that ruling, and an evidentiary hearing on the claim\nwas held before an administrative law judge in August 2011. Because the passage of the Patient\nProtection and Affordable Care Act (ACA) in 2010 had revived a “rebuttable presumption that a\nminer’s death was due to pneumoconiosis if he was totally disabled by a respiratory or\npulmonary impairment and worked for at least 15 years in underground mines (or in substantially\nsimilar conditions),” a crucial aspect of the hearing involved the proper way in which to calculate\nthe duration of the miner’s coal mine employment. In a 51-page “Decision and Order,” the\nadministrative law judge found that the miner “had at least 15.25 years of underground coal mine\nemployment” and thus was entitled to the presumption that his “death was due to\npneumoconiosis if [his surviving spouse] can establish with medical evidence that the Miner\nsuffered from a totally disabling respiratory or pulmonary impairment.” The administrative law\njudge then concluded that the claimant met that burden. Because Incoal failed to rebut the\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 4\n\n\nstatutory and regulatory presumption, the administrative law judge ordered the company to pay\nsurvivor’s benefits to the claimant.1\n\n As was its prerogative, Incoal then appealed the administrative law judge’s decision to\nthe BRB. In its unanimous decision, the Board determined that the administrative law judge\nboth failed to address all relevant evidence regarding the length of the miner’s coal mine\nemployment and failed to explain adequately how he calculated the 15.25-year figure that\njustified application of the 15-year presumption. The Board thus remanded the matter for the\nrequired clarifications but specifically stated that “[i]f the administrative law judge finds that\nclaimant has established that the miner had fifteen years of qualifying coal mine employment, he\nmay reinstate his finding that claimant invoked the [15-year] presumption.” Furthermore, “[i]n\nthe interest of judicial economy, and to avoid the repetition of any error on remand,” the BRB\naddressed other contentions of error put forth by Incoal and affirmed the administrative law\njudge’s determinations that the company failed to prove that the miner did not suffer from legal\npneumoconiosis or “that the miner’s death did not arise out of, or in connection with, his coal\nmine employment.” Thus, as expressed by the Board, “if the administrative law judge again\nfinds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the\naward of benefits.”\n\n On remand, the administrative law judge explained that, when calculating a miner’s coal\nmine employment, he first should determine, if possible, the beginning and ending dates of any\nsuch employment. If those dates are not ascertainable, however, “an administrative law judge\nmay use any reasonable means of calculating the length of the claimant’s coal mine employment.\nClark v. Barnwell Coal Co., 22 B.L.R. 1-275, 1-280, 1-281, BRB Nos. 01-0876 BLA and 02-\n0280 BLA (Apr. 30, 2003).” For calendar years prior to 1978, the administrative law judge\nconcluded that it would be reasonable to “count[ ] quarters [of years] in which the Miner’s Social\nSecurity earnings records show that he earned $50.00 or more, while not counting the quarters in\nwhich he earned less.” Doing so, and discounting any quarters in which the miner worked at\n\n\n 1Despite the fact that the parties previously had stipulated that the miner had 17 years of coal mine\nemployment, the administrative law judge held that the stipulation no longer was binding on the parties, given the\nchange in the applicable law resulting from passage of the ACA.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 5\n\n\njobs that were not related to coal extraction, the administrative law judge calculated that the\nminer should be credited with 27 quarters, or 6.75 years of coal mine employment prior to 1978.2\n\n For years after 1977, the miner’s Social Security Earning Statement did not break down\nhis earnings by quarters. Consequently, for those later years, when the evidence in the record\nwas insufficient to establish the beginning and ending dates of any employment, the\nadministrative law judge chose to “credit [the] Miner with a full calendar year of coal mine\nemployment where the Miner’s yearly income, as reflected in Social Security earnings records,\nexceeds the yearly wage base as reported by Exhibit 609 of the Office of Workers’\nCompensation Programs Coal Mine Procedure Manual, Wage Base History (‘Exhibit 609’).”\nWhen the evidence indicated that the miner was employed for less than the entire calendar year,\nhowever, the administrative law judge divided the miner’s “yearly income from coal mine\nemployment by ‘the coal mine industry’s average daily earnings for that year, as reported by the\nBureau of Labor Statistics.’ § 725.101(a)(32)(iii); see Exhibit 10 of the Office of Workers’\nCompensation Programs Coal Mine Procedure Manual, Average Earnings of Employees in Coal\nMining (Apr. 2012) (‘Exhibit 610’).” (Other citations and footnote omitted.) In applying that\ncomputational framework, the administrative law judge attributed an additional 6.33 years of\ncoal mine employment to the miner for the years 1978–1985. Combined with the 6.75 years of\ncoal mine employment that the administrative law judge found should be credited to the miner,\nthe administrative law judge determined “that the Miner worked in coal mine employment for a\ntotal of 13.08 years.”\n\n Because that figure fell short of the 15 years of coal mine employment that would justify\napplication of the presumption applied in his earlier decision, the administrative law judge noted\nthat the claimant bore “the burden of proving that the miner had pneumoconiosis that arose out\nof coal mine employment, and that his death was due to pneumoconiosis.” (Quotation marks and\nfootnote omitted.) An analysis of medical evidence and opinions regarding the miner’s health\nand the effect that exposure to coal dust during coal mine employment might have had on it did\n\n 2In making the calculation of quarters worked by the miner in coal mine employment prior to 1978, the\nadministrative law judge apparently failed to account for one quarter of such work in 1966 and another quarter in\n1967. Consequently, a proper calculation of the quarters worked in coal mine employment in which the miner\nearned at least $50.00 could have yielded a sum of 29 quarters, or 7.25 years.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 6\n\n\nnot convince the administrative law judge that the miner suffered from pneumoconiosis, that any\npulmonary conditions from which the miner suffered arose from his coal mine employment, or\nthat the miner’s death was due to pneumoconiosis. Accordingly, the administrative law judge\ndetermined that the claimant was not entitled to survivor’s benefits.\n\n The claimant filed a timely motion for reconsideration, arguing that additional qualifying\nquarters of coal mine employment should have been credited to the miner for his pre-1978 work\nand that the administrative law judge should have used “Exhibit 610 of the Office of Workers’\nCompensation Programs Coal Mine Procedure Manual, Wage Base History instead of Exhibit\n609 to compare the Miner’s actual earnings to the earnings he would be expected to make if he\nworked a full year.” Applying the formulas suggested by the claimant, the administrative law\njudge recalculated the miner’s years of coal mine employment and determined that the miner\nshould have been credited with a total of 15.07 years of such work. Because the 15-year\npresumption of total disability due to pneumoconiosis once again was determined to be\napplicable, and because the BRB previously had held that “if the administrative law judge again\nfinds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the\naward of benefits,” the administrative law judge ordered Incoal to “pay the Claimant all benefits\nto which she is entitled.”\n\n Again finding itself liable for payment of benefits to the miner’s widow, Incoal petitioned\nthe BRB for further review of the administrative law judge’s decision. Among the allegations of\nerror raised by Incoal were claims that the administrative law judge accorded too much credit for\nthe miner’s employment in calendar years 1963, 1964, and 1973. In each of those years, argued\nIncoal, the administrative law judge credited the miner with full quarters of work when the\nminer’s own listings of his dates of employment indicated that he had not worked for each of the\nthree months in the contested quarters. The BRB agreed with Incoal that the miner could not be\ncredited with a full quarter of coal mine employment when other evidence indicated that less\ntime had been spent in qualified mine work. For example, the BRB noted:\n\n The miner indicated that he worked for Allen Fork [Coal Company] from May of\n 1963 to July of 1963, and for Expert Coal from August of 1963 to November of\n 1964. Consequently, the miner’s self-reported and uncontradicted employment\n history reveals that he was not engaged in coal mine employment during the first\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 7\n\n\n four months of 1963 or the last month of 1964. Thus, the miner was entitled to, at\n most, nineteen months (1.59 years) of coal mine employment from 1963 through\n 1964. Consequently, we hold that the administrative law judge, by crediting the\n miner with 1.75 years of coal mine employment during this period, overestimated\n the length of the miner’s coal mine employment by 0.16 of a year.\n\n(Citations and footnotes omitted.)\n\n Similarly, the administrative law judge credited the miner with 0.50 of a year for his coal\nmine employment in 1973 because the miner earned more than $50.00 in both the third and\nfourth quarters of that year. However, the miner’s own records indicated that he was not\nengaged in coal mine employment until September 1973, meaning that he “was entitled to, at\nmost, 0.34 of a year of coal mine employment in 1973.” That 0.16 overage, in conjunction with\nthe 0.16 overage from the 1963–1964 years, meant that the administrative law judge credited the\nminer with 0.32 years of coal mine employment that was unearned. Deducting 0.32 years from\nthe 15.07 years of coal mine employment found by the administrative law judge meant that the\nminer had accumulated only 14.75 years of coal mine employment, three months less than\nnecessary to justify application of the 15-year presumption that the miner died from\npneumoconiosis brought on by exposure to coal dust during coal mine employment. Because the\nclaimant had not challenged the earlier finding by the administrative law judge that, absent that\npresumption, she could not establish that the miner suffered from pneumoconiosis or that his\ndeath was due to that condition, the award of benefits was reversed. The claimant now petitions\nfor review of that decision.\n\n DISCUSSION\n\nStandard of Review\n\n When addressing a petition for review in a black-lung-benefits case, we review the legal\nconclusions of the Benefits Review Board de novo. Big Branch Res., Inc. v. Ogle, 737 F.3d\n1063, 1068 (6th Cir. 2013). Even so, “our review actually focuses on whether the ALJ’s\ndecision is supported by substantial evidence.” Island Creek Ky. Mining v. Ramage, 737 F.3d\n1050, 1056 (6th Cir. 2013). In other words, “[r]eview on appeal should be focused on whether\nthe ALJ—not the Board—had substantial evidence upon which to base his or her decision.”\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 8\n\n\nJonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir. 1997) (citation omitted). “Substantial\nevidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a\nconclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). To satisfy the\nsubstantial-evidence standard, the administrative law judge must explain adequately “the reasons\nfor crediting certain testimony and documentary evidence over other testimony and documentary\nevidence.” Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 478 (6th Cir. 2011). The\nreviewing court may not reweigh the evidence, substitute its judgment for that of the\nadministrative law judge, or reverse the administrative law judge’s decision simply because “we\nwould have taken a different view of the evidence were we the trier of facts.” Ramey v. Kentland\nElkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985).\n\nFramework of the Black Lung Benefits Act\n\n In 1969, noting the “significant number of coal miners living today who are totally\ndisabled due to pneumoconiosis arising out of employment in one or more of the Nation’s coal\nmines,” Congress enacted the Black Lung Benefits Act in an effort to combat that health crisis.\n30 U.S.C. § 901(a). To do so, the Act proposed “to provide benefits . . . to coal miners who are\ntotally disabled due to pneumoconiosis and to the surviving dependents of miners whose death\nwas due to such disease.” Id.\n\n The Act, and the regulations promulgated pursuant to it, define “pneumoconiosis” as “a\nchronic disease of the lung and its sequelae, including respiratory and pulmonary impairments,\narising out of coal mine employment.” 30 U.S.C. § 902(b); 20 C.F.R. §§ 718.201(a) and\n725.101(a)(25). “This definition includes both medical, or ‘clinical’, pneumoconiosis and\nstatutory, or ‘legal’, pneumoconiosis.” 20 C.F.R. § 718.201(a). The regulations further define\n“clinical pneumoconiosis” as “those diseases recognized by the medical community as\npneumoconioses, i.e., the conditions characterized by permanent deposition of substantial\namounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that\ndeposition caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1).\n“Legal pneumoconiosis,” however, has a much broader definition, including, but “not limited to,\nany chronic restrictive or obstructive pulmonary disease” “significantly related to, or\nsubstantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 9\n\n\n§ 718.201(a)(2) and (b). Thus, the surviving spouse of a miner shall be entitled to benefits under\nthe Act if the survivor can establish that the deceased spouse was a miner who suffered from a\nchronic pulmonary disease that was aggravated by coal dust exposure that arose out of coal mine\nemployment and that contributed to the miner’s total disability or death. See 20 C.F.R.\n§§ 725.201(a)(2) and 725.202(d).\n\n The burden placed upon disabled miners and the survivors of deceased miners to\nestablish entitlement to black lung benefits was lessened somewhat with the enactment of the\nACA in 2010. As part of that sweeping legislation, Congress reinstated within the BLBA what is\nknown as the “15-year presumption.”3 In relevant part, that presumption states:\n\n [I]f a miner was employed for fifteen years or more in one or more underground\n coal mines, . . . and if other evidence demonstrates the existence of a totally\n disabling respiratory or pulmonary impairment, then there shall be a rebuttable\n presumption that such miner is totally disabled due to pneumoconiosis, that his\n death was due to pneumoconiosis, or that at the time of his death he was totally\n disabled by pneumoconiosis.\n\n30 U.S.C. § 921(c)(4).\n\n The regulations promulgated by the Office of Workers’ Compensation Programs of the\nUnited States Department of Labor echo those provisions. For claims (like the one at issue here)\nthat were filed after January 1, 2005, and were pending on or after March 23, 2010, 20 C.F.R.\n§ 718.305 authorizes application of a rebuttable presumption that a miner’s death was due to\npneumoconiosis if a surviving spouse can establish, in the absence of a chest x-ray showing that\nthe miner suffered from clinical pneumoconiosis, that:\n\n The miner engaged in coal-mine employment for fifteen years, either in one or\n more underground coal mines, or in coal mines other than underground mines in\n conditions substantially similar to those in underground mines, or in any\n combination thereof; and\n ***\n\n\n\n 3“The presumption was first added to the BLBA in 1972. In 1981, Congress eliminated the presumption.\nCongress reinstated the presumption in 2010, making it retroactive to claims filed after January 1, 2005 that were\npending on or after March 23, 2010.” Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp.\nPrograms, 790 F.3d 657, 662 (6th Cir. 2015) (citations omitted).\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 10\n\n\n The miner has, or had at the time of his death, a totally disabling respiratory or\n pulmonary impairment.\n\n20 C.F.R. § 718.305(b). “The conditions in a mine other than an underground mine will be\nconsidered ‘substantially similar’ to those in an underground mine if the claimant demonstrates\nthat the miner was regularly exposed to coal-mine dust while working there.” 20 C.F.R.\n§ 718.305(b)(2).\n\n Once invoked, the 15-year presumption may be rebutted “only by establishing that\n(A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or\npulmonary impairment did not arise out of, or in connection with, employment in a coal mine.”\nId. As conceded by Incoal in its appellate brief, once the 15-year presumption is invoked,\nrequiring a “claim defendant to disprove the existence of pneumoconiosis, either clinical or legal,\nor to disprove that pneumoconiosis influenced the miner’s death in any way, [is] a difficult if not\nimpossible burden.”\n\nCalculation of the Duration of the Miner’s Coal Mine Employment\n\n Certain elements of Imogene Shepherd’s claim for survivor’s benefits under the BLBA\nare not disputed at this stage of the litigation. For example, the parties agree that the claimant\nproperly may seek payment of benefits as her husband’s survivor and that the miner was\nemployed for much of his working life as a coal miner. Furthermore, neither party contests that\nany coal mine employment with which the miner should be credited was either in underground\nmines or in mines “substantially similar” to underground mines. Nor do the parties contest the\nfact that chest x-rays taken of the miner prior to his death failed to show signs of clinical\npneumoconiosis. The parties agree that the miner suffered from, and was disabled by, chronic\nobstructive pulmonary disease (COPD), but disagree about the cause. Despite that disagreement,\nIncoal again recognizes that if the 15-year presumption is applicable, the coal company cannot\novercome the medical evidence linking the miner’s exposure to coal dust over the years to his\nCOPD and, ultimately to his death.\n\n Thus, at its essence, this appeal is a dispute over whether the miner accumulated 15 years\nof creditable underground coal mine employment before his death. A resolution of that dispute\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 11\n\n\nnecessarily leads back to the applicable regulations and an interpretation of the term “year” as it\nis used in the regulations.\n\n In 20 C.F.R. § 725.101(a)(32), the Department of Labor defines “year” as “a period of\none calendar year (365 days, or 366 days if one of the days is February 29), or partial periods\ntotaling one year, during which the miner worked in or around a coal mine or mines for at least\n125 working days.” Despite that seemingly straight-forward definition, the regulation itself\ncontains plain language offering alternative methods of determining the duration of a miner’s\ncoal mine employment:\n\n (i) If the evidence establishes that the miner worked in or around coal mines at\n least 125 working days during a calendar year or partial periods totaling one year,\n then the miner has worked one year in coal mine employment for all purposes\n under the Act. If a miner worked fewer than 125 working days in a year, he or\n she has worked a fractional year based on the ratio of the actual number of days\n worked to 125. Proof that the miner worked more than 125 working days in a\n calendar year or partial periods totaling a year, does not establish more than one\n year.\n (ii) To the extent the evidence permits, the beginning and ending dates of all\n periods of coal mine employment must be ascertained. The dates and length of\n employment may be established by any credible evidence including (but not\n limited to) company records, pension records, earnings statements, coworker\n affidavits, and sworn testimony. If the evidence establishes that the miner’s\n employment lasted for a calendar year or partial periods totaling a 365-day period\n amounting to one year, it must be presumed, in the absence of evidence to the\n contrary, that the miner spent at least 125 working days in such employment.\n (iii) If the evidence is insufficient to establish the beginning and ending dates of\n the miner’s coal mine employment, or the miner’s employment lasted less than a\n calendar year, then the adjudication officer may use the following formula:\n divide the miner’s yearly income from work as a miner by the coal mine\n industry’s average daily earnings for that year, as reported by the Bureau of Labor\n Statistics (BLS). A copy of the BLS table must be made a part of the record if the\n adjudication officer uses this method to establish the length of the miner’s work\n history.\n\n20 C.F.R. § 725.101(a)(32)(i)–(iii).\n\n The Director of the Office of Workers’ Compensation Programs and Incoal read this\nregulation to require, in all instances, that the miner be employed by a coal mining company for\na full calendar year and that the miner work for at least 125 days in the mines during that 365- or\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 12\n\n\n366-day period. According to the respondents, therefore, absent proof that a miner was\nemployed by a coal mining company for a full calendar year, that miner never can claim a full\nyear of coal mine employment.\n\n Ordinarily, we “give substantial deference to an agency’s interpretations of its own\nregulations unless the interpretation is plainly erroneous or inconsistent with the published\nregulations.” Bidwell v. Univ. Med. Ctr., Inc., 685 F.3d 613, 619 (6th Cir. 2012) (internal\nquotation marks and citation omitted). Here, such deference need not be accorded because the\nDirector’s (and Incoal’s) reading of 20 C.F.R. § 725.101(a)(32) ignores the clear language of the\nregulation. In fact, rather than limiting the manner in which years of coal mine employment can\nbe calculated, the regulation sets out four alternate ways in which a claimant can establish\nrequisite periods of coal mine employment.\n\n First, if the miner was employed by a coal mining company for 365 (or 366 days if one\nday is February 29) and the miner worked for at least 125 days in or around a coal mine, the\nminer clearly established one year of coal mine employment. 20 C.F.R. § 725.101(a)(32).\n\n Second, if the miner worked at least 125 days in or around coal mines, it will be\npresumed that the miner “has worked one year in coal mine employment for all purposes under\nthe Act.” 20 C.F.R. § 725.101(a)(32)(i). Consequently, under subsection (i), regardless of how\nlong the miner actually was employed by the mining company in any one calendar year or partial\nperiods totaling one year, if the miner worked for at least 125 days, the miner will be credited\nwith one year of coal mine employment.\n\n Third, if the beginning and ending dates of a miner’s employment with a mining\ncompany can be determined, and if that evidence shows that the miner was employed by the\nmining company for one calendar year or partial periods totaling a 365- or 366-day year, it will\nbe presumed, absent evidence to the contrary, that the miner worked in or around the mines for at\nleast 125 days. 20 C.F.R. § 725.101(a)(32)(ii). Thus, in many cases, simply being in the employ\nof a mining company for a calendar year is sufficient to qualify the miner for one year of coal\nmine employment.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 13\n\n\n Fourth, if the beginning and ending dates of the miner’s employment cannot be\ndetermined or— even if such dates are ascertainable—if the miner was employed by the mining\ncompany for “less than a calendar year,” the adjudicator may determine the length of coal mine\nemployment by dividing the miner’s yearly income from coal mine employment by the average\ndaily earnings of an employee in the coal mining industry. If the quotient from that calculation\nyields at least 125 working days, the miner can be credited with a year of coal mine employment,\nregardless of the actual duration of employment for the year. 20 C.F.R. § 725.101(a)(32)(iii). If\nthe calculation shows that the miner worked fewer than 125 days in the calendar year, the miner\nstill can be credited with a fractional portion of a year based on the ratio of the days worked to\n125. 20 C.F.R. § 725.101(a)(32)(i).\n\n Despite § 725.101(a)(32)’s unambiguous nature, the respondents rely on the prefatory\nlanguage in 20 C.F.R. § 725.101(a)(32) that defines a “year” as 365 or 366 consecutive days, as\nwell as the directive in 20 C.F.R. § 725.101(a)(32)(ii) to ascertain the beginning and ending dates\nof any coal mine employment, “[t]o the extent the evidence permits.” In reading those two\nprovisions, the Director and Incoal conclude hyperbolically that “[t]here would be little point in\nascertaining the specific dates if 125 working days always established a year of coal mine\nemployment,” Director’s Br. at 21, and that crediting a miner with one year of coal mine\nemployment upon proof that the miner worked only 125 days within a calendar year would\n“redefine time,” Incoal’s Br. at 14-18. Those arguments, however, misread both the underlying\nintent of the BLBA and the clear language of the applicable regulations in numerous regards.\n\n First, “[t]his court has often repeated that the [BLBA] is remedial legislation that should\nbe liberally construed so as to include the largest number of miners within its entitlement\nprovisions.” Adams v. Dir., Office of Workers’ Comp. Programs, 886 F.2d 818, 825 (6th Cir.\n1989) (citations omitted). The efforts of the Director and Incoal to have this court read the\nlanguage of the regulations narrowly in an effort to limit the number of miners and miners’\nsurvivors eligible for benefits runs counter to that mandate.\n\n Second, just because the preamble to § 725.101—found in the Federal Register at\nRegulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended,\n65 Fed. Reg. 79920, 79959-60 (Dec. 20, 2000)—provides that “in order to have one year of coal\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 14\n\n\nmine employment, the regulation contemplates an employment relationship totaling 365 days,\nwithin which 125 days were spent working and being exposed to coal mine dust,” does not mean\nthat the only way to establish a year of coal mine employment is by proving both that the miner\nwas employed by a mining company for 365 consecutive days and that the miner spent 125 of\nthose days working in or around a coal mine. For one, because the plain language of the\nregulation unambiguously permits a one-year employment finding without a 365-day\nrequirement, we cannot consult the preamble. See, e.g., Tenn. Hosp. Ass’n v. Azar, 908 F.3d\n1029, 1044 (6th Cir. 2018). For another, to assign any other meaning to the provisions—such as\naccepting the interpretations of the Director and Incoal—would, for example, read out of the\nregulation § 725.101(a)(32(i)’s recognition that working 125 days in or around a coal mine\nwithin a calendar year will count as a year of coal mine employment “for all purposes under the\n[BLBA].”\n\n Third, the respondents misread the significance of the provision in § 725.101(a)(32)(ii)\nthat directs that the beginning and ending dates of a miner’s employment be ascertained. The\nDirector argues that “[t]here would be little point in ascertaining the specific dates if\n125 working days always established a year of coal mine employment.” Director’s Br. at 21.\nIncoal similarly contends “that where the record contains proof of the beginning and ending\ndates of employment, resort to calculating whether the claimant worked for 125 days in a year is\nnot permitted.” Incoal’s Br. at 17. Clearly, determining that a miner has worked for a mining\ncompany for any combined period of 125 days will not establish a year of coal mine\nemployment. Instead, what § 725.101(a)(32)(ii) purports to do is to have an administrative law\njudge first ascertain, if possible, the beginning and end dates of coal mine employment. If the\nminer’s employment with a mining company indeed did last for 365 consecutive days, it must be\npresumed, unless the evidence proves otherwise, that the miner has accumulated the necessary\n125 days of coal mine employment and should be credited with one year of such employment for\npurposes of establishing entitlement to benefits. In other words, the direction to determine the\nexact dates of employment should not be read as an effort to restrict the ability of a miner or a\nminer’s survivor to recover black lung benefits, but rather an effort to make it easier to prove\nentitlement to such payments.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 15\n\n\n Fourth, to accept the argument of the Director and Incoal that, in order to be credited with\none year of coal mine employment, a miner must be on the payroll of a mining company for 365\nconsecutive days and have worked 125 of those days in or around a coal mine effectively would\nread out of § 725.101(a)(32) the provisions of subsection (iii) of that regulation. Such elision is\nnot allowed because any interpretation of a statute or regulation must, if possible, give effect to\nevery provision of the legislation or guidance. See, e.g., Siding & Insulation Co. v. Alco\nVending, Inc., 822 F.3d 886, 895 (6th Cir. 2016) (“[a] court should give effect to all words and\nphrases in the text at issue”). The plain language of subsection (iii) applies not only when the\nbeginning and ending dates of a miner’s employment cannot be ascertained, but also, even if\nsuch evidence is available, if “the miner’s employment lasted less than a calendar year.” Thus,\ncontrary to the positions espoused by the respondents, the regulation expressly provides that even\nif a miner cannot show that he or she was employed by a mining company for a calendar year, he\nor she still can be credited with a year of coal mine employment, or a fraction of a year of such\nemployment, if the calculation outlined in subsection (iii) so establishes.\n\n Indeed, we recently recognized:\n\n [A] miner is entitled to credit for one year of coal mining employment if he\n worked “in or around a coal mine” for at least 125 “working days” during the\n year. See C.F.R. § 725.101(32). Under the regulations, [a miner] may be entitled\n to credit for 15 years of coal mining employment even though he worked for less\n than 15 actual years in an underground coal mine.\n\nBarnett v. Tenn. Consol. Coal Co., No. 16-3983, slip op. at 5 (6th Cir. July 14, 2017) (order).\nAlthough Barnett is an unpublished order, and thus is not controlling authority, see, e.g.,\nFonseca v. Consol. Rail Corp., 246 F.3d 585, 591 (6th Cir. 2001), the quoted portion of the\ndecision is in accord with the express language of the relevant regulatory provision and is,\ntherefore, persuasive authority when examining the contrary conclusion of the BRB in this case.\n\n Not surprisingly, both the Director and Incoal attempt to undermine even the persuasive\nvalue of Barnett. The Solicitor of Labor argues in the appellate brief on behalf of the Director:\n\n And Barnett’s persuasive value is limited. It does not discuss the regulatory\n calendar-year requirement. Moreover, the issue was not presented to the Barnett\n panel in an adversarial context. The Director did not participate in that case, and\n both our files and PACER’s online record indicate that the employer did not file a\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 16\n\n\n response brief. The language in Barnett that Mrs. Shepherd relies on is therefore\n not a considered rejection of the regulatory calendar-year requirement. It does not\n trump the plain language of the regulation.\n\nDirector’s Br. at 20-21. The Director’s arguments fail to cast doubt on the persuasive value of\nthe Barnett panel’s discussion of § 725.101(a)(32), however. Although the Barnett opinion did\nnot discuss the “calendar-year requirement” in depth, the panel did consider and reject the\napplication of that provision to Barnett’s claim. In fact, the panel specifically noted that the\nadministrative law judge in Barnett erroneously “reached his determination that Barnett does not\nhave 15 years of coal mining employment through ‘simple mathematics’—i.e., Barnett’s coal\nmining employment from April 1964 to March 1979 did not equal exactly 15 years.” Barnett,\nslip op. at 5. Such a recognition necessarily entailed an evaluation of the applicability of\n§ 725.101(a)(32)’s initial pronouncement that “[y]ear means a period of one calendar year.”\n\n Furthermore, the fact that the Director and the employer did not choose to contest\nBarnett’s assertions on appeal does not indicate that the process was not adversarial. The\nadministrative proceedings resulted in a decision in favor of the employer, and both the Director\nand the employer were apprised of Barnett’s petition for review in this court. In fact, both the\nDepartment of Labor attorney and the Department’s counsel for appellate litigation filed\nappearances on behalf of the Director in Barnett. The fact that the Director later chose not to file\na responsive brief, and that Barnett’s employer affirmatively chose not to file an appearance or\nparticipate in the case, if anything, speaks to a recognition that Barnett’s arguments in favor of\nreceipt of benefits were meritorious.\n\n Finally, for the reasons previously discussed, the Director’s argument that “the plain\nlanguage of the regulation” disproves the claimant’s assertion that a miner is entitled to invoke\nthe 15-year presumption by establishing 125 “working days” of coal mine employment with\n15 different 365-day periods is baffling. Indeed, it is the very language of the various\nsubsections of § 725.101(a)(32) that permit the calculations to which the Director now objects.\n\n Incoal’s attacks on the validity of the principle recognized in Barnett are of even more\nquestionable validity. The company suggests that Barnett is not persuasive authority because the\nadministrative law judge in that matter “overlooked that all of the parties stipulated that Barnett\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 17\n\n\nworked as a miner for fifteen years and that pursuant to 20 C.F.R. § 725.101(a)(32), he could be\ncredited for fifteen years of coal mine employment even if he worked less than fifteen years.”\nIncoal’s Br. at 16. Of course, parties to a dispute cannot stipulate to legal conclusions. See, e.g.,\nNeuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). In any event, the prior panel of\nthis court did not rely on any stipulation regarding an interpretation of regulation at issue.\nInstead, the court conducted its own analysis of the provisions and concluded that Barnett’s\nclaim for benefits was meritorious because spending 125 dates in a 365-day period in and around\ncoal mines could constitute a year of coal mine employment.\n\n Even more puzzling, Incoal chides the claimant for relying upon an unpublished, but in-\ncircuit decision that dealt directly with the issue of attributable coal mine employment. All the\nwhile, the coal company itself relies upon a decision from the Fourth Circuit, an opinion with\neven less persuasive appeal than Barnett. Not only did that out-of-circuit decision, Daniels Co.\nv. Mitchell, 479 F.3d 321 (4th Cir. 2007), address a dispute over timing to determine whether a\ncompany was the responsible coal mine operator, but the Fourth Circuit specifically noted that,\n“[b]y its terms, [20 C.F.R. § 725.101(a)(32)(iii)] may be used in situations where the miner’s\nemployment lasted less than one year.” Id. at 335 (emphasis added). Moreover, other factors in\nMitchell justified abstaining from using the subsection (iii) calculation to establish the length of\nthe miner’s work history in that case. Specifically, the administrative law judge failed to attach\nthe Bureau of Labor Statistics table as required in subsection (iii), failed to explain the\ncalculations made, and failed to take into account uncontroverted evidence that Mitchell was\npaid “inflated overtime rates”—a fact that would overestimate the days worked in or around a\ncoal mine. Id. Incoal’s reliance on Mitchell thus does nothing to advance the coal company’s\nposition in this matter.\n\n As detailed previously, the administrative law judge used two different methods to\ndetermine the length of the miner’s creditable coal mine employment in this case. For the years\nbetween 1963 and 1977, the administrative law judge credited the miner with a quarter-year of\ncoal mine employment for each calendar quarter in which the miner earned at least $50.00 from\nmining. For the years from 1978 until 1985, however, the administrative law judge examined the\nminer’s gross earnings for each year and compared them to the average annual hourly wage for\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 18\n\n\ncoal miners across the United States. If that comparison indicated that the miner had worked for\nmore than 125 days in any calendar year, the miner was credited with one year of coal mine\nemployment. If the calculation showed that the miner worked less than 125 days, the\nadministrative law judge determined the fractional part of the year worked in coal mine\nemployment by dividing the credited days by 125. Using that bifurcated analytical framework,\nthe administrative law judge determined that the miner should be credited with 15.07 years of\ncoal mine employment. However, based on information provided by the miner himself that he\nhad not worked all three months of certain quarters, the BRB recalculated the time worked in\ncoal mine employment and concluded that the miner could claim only 14.75 years of coal mine\nemployment with the various coal mining companies with which the miner had been employed\nprior to his retirement.\n\n Despite a lack of reference in the applicable regulations to calculating coal mine\nemployment by counting quarters of a year in which a miner earned at least $50.00 from mining\noperations, the BRB previously has found such a method of computation to be reasonable. See\nTackett v. Dir., Office of Workers’ Comp. Programs, 6 B.L.R. 1-839, 1-841 n.2 (Benefits Rev.\nBd. Jan. 20, 1984); Combs v. Dir., Office of Workers’ Comp. Programs, 2 B.L.R. 1-904, 1-906\n(Benefits Rev. Bd. May 16, 1980).4 That is so even though earning only $50.00 in a quarter-year\naverages out to a monthly gross pay of $16.67. Clearly, then, as quarterly income approaches\nthat floor of $50.00, it seems reasonable to conclude that the miner did not work in the mines\nmost days in the quarter.\n\n Prior to December 20, 2000, nothing in the applicable regulations precluded\nadministrative reliance on the $50.00/quarter method when calculating the duration of a miner’s\ncoal mine employment, regardless of the actual dates of a miner’s tenure with an employer.\nWith the promulgation of 20 C.F.R. § 725.101(a)(32), however, a factfinder is required, if\npossible, to ascertain the beginning and ending dates of any such employment. If such an inquiry\nleads to a recognition that the miner was not employed by a coal mining company for a full\ncalendar quarter, the previously applicable quarter method cannot be used. Moreover, even\n\n 4In Combs, the BRB noted that this method of calculating the length of employment was borrowed from\nregulations of the Social Security Administration. Combs, 2 B.L.R. at 1-906.\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 19\n\n\nthough 20 C.F.R. § 725.101(a)(32)(ii) was not effective until January 19, 2001, the provisions of\nthat section expressly apply to all claims filed after that date, regardless of the years of coal mine\nemployment under consideration. See 20 C.F.R. § 725.2(c).\n\n Discounting the months that the miner himself indicated he had not worked in the coal\nmines, the BRB determined that Tramble Shepherd could be credited with only 14.75 years of\nunderground mining employment. In her claim for survivor’s benefits, however, the miner’s\nwidow offered a different recollection of her late-husband’s coal mine employment. Her claim\nform, certified to be true and correct to the best of her knowledge and belief, and prepared with\nan awareness that willfully made false or misleading statements shall be punished by a fine,\nimprisonment, or both, indicated that the miner worked for coal mining companies for additional\nperiods of time.\n\n Despite the requirement in administrative hearings that all evidence be considered before\na decision is rendered, neither the administrative law judge nor the BRB discussed the weight to\nbe given to the evidence put forth by Imogene Shepherd. Crediting that evidence, however, even\nwithout reference to information offered by the miner himself, would lead to a finding that the\nminer was employed for more than the 15 years needed to invoke the rebuttable presumption of\n30 U.S.C. § 921(c)(4).\n\n Although the BRB cavalierly referred to the miner’s reports of his employment history in\n1963, 1964, and 1973 as “uncontradicted,” the claim form for survivor’s benefits filed by\nImogene Shepherd listed different lengths of employment for her husband than did the miner’s\nearlier claim form. Specifically, the miner indicated that his first employment in the coal mining\nindustry was with Allen Fork Coal Company in May 1963. His widow, however, in her claim\nfor survivor’s benefits, asserted that the miner began working for Hueysville Coal Company in\nJuly 1962, a full ten months prior to the date on which both the administrative law judge and the\nBRB began counting the miner’s employment in the coal industry. Furthermore, in his claim for\nbenefits, the miner indicated that he was not employed by a mining company between September\n1967 and September 1973. The claimant nevertheless stated that the miner began his work with\nHite Preparation Company in May 1971, 32 months earlier than the date indicated by the miner.\nClearly, if the claimant’s recollection of her late-husband’s mining employment is given\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 20\n\n\ncredence, those 42 additional months of coal mine employment would be sufficient to justify\ninvocation of the 15-year presumption.5\n\n Consequently, before any definitive determination can be made regarding the duration of\nthe miner’s coal mine employment, this matter must be remanded to the administrative law judge\nto consider and weigh, in the first instance, all evidence related to the beginning and ending dates\nof each of the miner’s stints of coal mine employment, including the evidence submitted by\nImogene Shepherd—evidence that the administrative law judge and BRB failed to discuss. See\n20 C.F.R. § 802.301(a). Her claims of her deceased husband’s coal mine employment can be\nsupported by earnings statements, pay stubs, specific remembrances, or other indicia of\nreliability. Only after such an evaluation of relevant, creditable evidence is completed should the\nadministrative law judge determine whether the miner accumulated the 15 years of coal mine\nemployment necessary to invoke the rebuttable presumption of 30 U.S.C. § 921(c)(4). In doing\nso, the administrative law judge should give effect to all provisions and options set forth in\n20 C.F.R. § 725.101(a)(32), not just the regulation’s prefatory language.6\n\n\n\n\n 5Alsonoteworthy is the claimant’s account of her deceased husband’s coal mine employment that shows\nno such employment after October 1984. Evidence in the record offered by the miner himself, by Incoal, and by\nTrojan Mining, Inc., however, indicates that the miner worked sporadically in the coal mines in November and\nDecember of 1984 and at other times between February and June of 1985. Those additional months of coal mine\nemployment could add to the creditable years of the miner’s coal mine employment.\n 6In her appellate brief, the claimant makes much of the fact that the BRB cited in its final decision the Sixth\nCircuit case of Aberry Coal, Inc. v. Fleming (Aberry I), 843 F.3d 219 (6th Cir. 2016), a decision that later was\namended on rehearing in Aberry Coal, Inc. v. Fleming (Aberry II), 847 F.3d 310 (6th Cir. 2017). In Aberry I, this\ncourt determined that the administrative decision-maker had erred in crediting a miner with 15 years of coal mine\nemployment both by double-counting two years of employment and by giving the miner credit for two additional\nfull years of coal mine employment when the miner had worked for less than 12 months in each of those years. In\nAberry II, the court focused on the double-counting only and did not discuss the validity or invalidity of counting\nless than a full calendar year of mining as a year of coal mine employment. The claimant in this case thus reads\nAberry II as disagreeing with the Aberry I finding that only 12 full months of employment can count as a year of\ncoal mine employment for purposes of the 15-year presumption.\n Clearly, however, no such implied holding can be read into Aberry II, especially when an independent,\nsufficient ground for the court’s decision was relied upon and discussed. In any event, the issue not discussed in\nAberry II ultimately can be resolved in this case by reference to the language in all subsections of 20 C.F.R.\n§ 725.101(a)(32).\n\f No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 21\n\n\n CONCLUSION\n\n Both the administrative law judge and the BRB failed to examine all evidence in the\nrecord when determining the duration of the miner’s coal mine employment. Consequently, we\nGRANT the claimant’s petition to review and REMAND the matter for appropriate\nconsideration of all relevant evidence relating to the time spent by the miner working in\nunderground coal mines.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365097/", "author_raw": "MARTHA CRAIG DAUGHTREY, Circuit Judge"}]}	DAUGHTREY	GIBBONS	GRIFFIN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587844/	Published	1	0	0	2,019	2	[ { "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...
4,588,720	Eduardo JACOBS, Plaintiff-Appellee, v. Raymon ALAM and Dave Weinman (18-1124); Damon Kimbrough (17-2159), Defendants-Appellants.	Eduardo Jacobs v. Raymon Alam	2019-02-08	17-2159/18-1124	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Daughtrey, Gibbons, Griffin", "parties": "", "opinions": [{"author": "GRIFFIN, Circuit Judge.", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0017p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n EDUARDO JACOBS, ┐\n Plaintiff-Appellee, │\n │\n > Nos. 17-2159/18-1124\n v. │\n │\n │\n RAYMON ALAM and DAVE WEINMAN (18-1124); │\n DAMON KIMBROUGH (17-2159), │\n Defendants-Appellants. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:15-cv-10516—Denise Page Hood, Chief District Judge.\n\n Argued: December 4, 2018\n\n Decided and Filed: February 8, 2019\n\n Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,\nfor Appellant in 17-2159. Davidde A. Stella, WAYNE COUNTY, Detroit, Michigan, for\nAppellants in 18-1124. Kassem M. Dakhlallah, HAMMOUD, DAKHLALLAH &\nASSOCIATES, PLLC, Dearborn, Michigan, for Appellee. ON BRIEF: Linda D. Fegins, CITY\nOF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellant in 17-2159. Davidde A.\nStella, WAYNE COUNTY, Detroit, Michigan, for Appellants in 18-1124. Kassem M.\nDakhlallah, HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC, Dearborn, Michigan, for\nAppellee.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n GRIFFIN, Circuit Judge.\n\n Defendant law enforcement officials Raymon Alam, Dave Weinman, and Damon\nKimbrough searched for a fugitive in a house in which plaintiff Eduardo Jacobs lived. Following\nthe search, plaintiff returned home from work, and according to the officers, confronted, pointed\na gun at, and then shot at them. The officers returned fire and arrested plaintiff. But that is not\nthe version of the facts we have before us in this interlocutory appeal. Plaintiff admits he had a\nholstered pistol, but denies that he touched it—let alone drew, pointed, and shot it at the officers.\n\n After a jury acquitted plaintiff of a variety of state criminal charges, he commenced this\nBivens1 action against the law enforcement officials, alleging excessive force, false arrest,\nmalicious prosecution, fabrication of evidence, and civil conspiracy. In relevant part, the district\ncourt denied defendants qualified immunity. They appeal, contending plaintiff’s Bivens claims\nare not viable after the Supreme Court’s decisions in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),\nand Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam), and even if they are, the district\ncourt erred in denying them qualified immunity. We affirm in part and dismiss in part for lack of\njurisdiction.\n\n I.\n\n A.\n\n The events leading to this lawsuit stem from the U.S. Marshals Service’s efforts to\napprehend a federal fugitive through its Detroit Fugitive Apprehension Team task force. On the\nevening of January 3, 2014, a task force comprised of City of Detroit Police Officers Damon\nKimbrough and Michael Knox and Wayne County Sheriff’s Office Deputies Raymon Alam and\nDave Weinman—all deputized as Special Deputy U.S. Marshals—arrived at the Detroit\n\n\n 1Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 3\n\n\nresidence of Javier Vargas, Sr., the brother of a fugitive. The officers entered the house, found\nthree individuals (Vargas, Sr., Javier Vargas, Jr., and Michelle Dotson), but not the fugitive.\nThey also swept the house’s basement apartment, one leased by plaintiff Eduardo Jacobs.\n\n Following the search, Knox and Weinman escorted Vargas, Sr. outside, and Alam and\nKimbrough remained inside with Vargas, Jr. and Dotson. While Knox and Weinman were\noutside the house, Jacobs arrived. He entered his basement apartment through a back entrance\nand did not notice the officers’ presence (although they were aware of his). Jacobs found a\nbroken mirror leaned against a stairwell door leading to the house’s dining room (designed to\nalert Jacobs to an unauthorized entry from the house) and, in his words, a “ransacked” living\nspace—“[a]ll the doors were on the floor, all the cabinets were on the floor, all the stuff was torn\nup, somebody [went] through everything.” The parties hotly contest what happened next.\n\n Plaintiff’s version is straightforward. He bounded up the stairs shouting “who the f---\nwent into my house?” As he opened the door to the dining room, he saw an unidentified black\nmale (Kimbrough) who was “not supposed to be there,” and “spun to run at the same time. . . .\n[He] reached for [his] pistol in [his] holster and as [he] turned [he] fell down the stairs and never\ngot a chance to get the pistol out of [his] holster.” At no time did plaintiff “rack” his gun to\nchamber a live round, or point or fire his gun,2 and no one informed him that they were police or\ngave him a police command. Contemporaneous with turning to flee and reaching for his holster,\nJacobs fell down the steps and was shot three times—in the stomach, shoulder, and leg. The\nentire exchange lasted only a few seconds. Jacobs retreated to his apartment, learned that it was\nlaw enforcement officers who shot him, and eventually surrendered. He received medical\ntreatment (including the removal of one bullet), and testing later determined that bullet came\nfrom Kimbrough’s handgun.\n\n The officers involved in the shooting, Kimbrough and Alam, tell a remarkably different\nversion. As Kimbrough recalled, he was interviewing Dotson and Vargas, Jr. in the dining room\nwhen he “heard a loud bang behind” him—Jacobs slamming the door open from the basement.\nKimbrough rose, turned around and saw that Jacobs “had a gun pointed at [Kimbrough’s] face.”\n\n 2Forensic evidence later confirmed that Jacobs did not fire his gun.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 4\n\n\nJacobs said, “You’re the mother f----- that robbed me last week.” Kimbrough instructed Jacobs\nthree times to put the gun down and identified himself as a Detroit Police Officer. Instead,\nJacobs fired his gun, and Kimbrough returned fire and sought cover. After exchanging several\nshots, Jacobs eventually “obeyed the commands from where he was in the basement to come\nout” after “a few minutes.”\n\n Alam’s version is similar. He heard Jacobs slam the door open, and saw Jacobs enter the\ndining room from the basement with his “gun raised at an eye level,” pointed at Kimbrough.\nAlam heard Kimbrough say “police, drop the weapon,” “heard two shots . . . being fired and, at\nthat time, . . . returned fire.” However, Alam did not witness who fired the shots, and stated he\ndid not see Jacobs fire a gun.\n\n The other two individuals in the dining room, Dotson and Vargas, Jr., offer little else.\nThey recalled sitting in the dining room, hearing “a big boom” and then Jacobs asking, “who the\nf--- broke into my house.” They heard the officers identify themselves, heard gunshots and fled\nfor safety. Contrary to defendants’ assertions, neither Dotson nor Vargas, Jr. saw Jacobs hold or\nfire a gun.\n\n One other person, Detroit Police Sergeant Joseph Abdella, provided testimony about the\nshooting. Abdella interviewed Jacobs at the Detroit Detention Center after Jacobs’s arrest.\nAbdella testified at Jacobs’s preliminary hearing that Jacobs made the following unsolicited\nstatement about pointing a gun at Officer Kimbrough:\n\n [Jacobs] told me that he could have shot the officer that was in the house, that he\n had a jump on him, more or less, that he got up there and had a gun right on him.\n He could have shot that man, but he did not. And that he was looking for some\n understand[ing] – you know, that he did not pull the trigger when he had the\n opportunity to.\n\nAbdella’s testimony at Jacobs’s subsequent criminal trial was more specific:\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 5\n\n\n [H]e told me when he went in to the house, . . . that his room had been broken into\n in the basement. He told me that he got his gun and went upstairs to confront the\n people that broke into his house. . . . He insisted that he did not pull the trigger or\n fire a shot. . . [H]e said he had the gun, he pointed at them and he could’ve pulled\n the trigger, . . . but he did not.\n\nJacobs unequivocally denied telling Abdella that he pointed a gun at anyone.3\n\n B.\n\n The Wayne County Prosecuting Attorney’s office brought eleven criminal charges\nagainst Jacobs for his role in the shooting: four counts of assault with intent to do great bodily\nharm less than murder, in violation of M.C.L. § 750.84; four counts of assault with a dangerous\nweapon, in violation of M.C.L. § 750.82; two counts of resisting and obstructing, in violation of\nM.C.L. § 750.81d; and one count of possessing a firearm during the commission of a felony, in\nviolation of M.C.L. § 750.227b. Following a preliminary examination at which defendants Alan\nand Kimbrough testified (among others), a state district court judge found probable cause existed\nto arrest and charge Jacobs and bound him over to circuit court for trial. A jury subsequently\nacquitted Jacobs on all charges.\n\n C.\n\n Jacobs commenced this civil rights action thereafter. The operative complaint and claims\nrelevant to this appeal are as follows. Jacobs alleges five Bivens actions against Alam,\nKimbrough, and Weinman: (1) excessive force against Alam and Kimbrough; (2) fabrication of\nevidence against Alam, Kimbrough, and Weinman; (3) civil conspiracy against Alam,\nKimbrough, and Weinman; (4) false arrest against Alam and Kimbrough; and (5) malicious\nprosecution against Alam and Kimbrough. The district court granted in part and denied in part\ndefendants’ motions for summary judgment, holding they were not entitled to qualified\n\n\n\n 3Defendants contend Jacobs contradicted himself regarding his actual gun possession, and that we should\nhold him to early statements indicating he, indeed, held the gun. We disagree. True, Sergeant Abdella’s testimony\nsupports the officers’ perception of events, but the record evidence reflects Jacobs unequivocally denied telling\nAbdella that he pointed a gun at anyone. As set forth below, we lack jurisdiction to resolve this factual dispute.\nMoreover, Jacobs’s testimony that he “reached” for his holstered gun after seeing Kimbrough at the top of the steps\nis not inconsistent with other testimony indicating he “never had a chance” to touch the weapon.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 6\n\n\nimmunity for these claims.4 It then denied defendants’ motions for reconsideration. Defendants\ntimely appealed.\n\n II.\n\n A.\n\n We turn first to a threshold issue: whether plaintiff may proceed with his Bivens actions\nin light of recent Supreme Court guidance. Recognizing that “the Fourth Amendment does not\nin so many words provide for its enforcement by an award of money damages for the\nconsequences of its violation,” the Supreme Court’s 1971 decision in Bivens held that an implied\ndamages remedy is available to redress Fourth Amendment injuries. 403 U.S. at 389, 396. It is a\n“limited, implied cause of action against federal employees for particularly egregious violations\nof the Fourth Amendment in an unlawful search and seizure case brought by a private citizen.”\nLeft Fork Min. Co. v. Hooker, 775 F.3d 768, 774 (6th Cir. 2014). The “core holding of Bivens,”\nthe Supreme Court later instructed, is “recognizing in limited circumstances a claim for money\ndamages against federal officers who abuse their constitutional authority.” Corr. Servs. Corp. v.\nMalesko, 534 U.S. 61, 67 (2001). “A Bivens remedy is available only if (1) there are no\nalternative, existing processes for protecting a constitutional interest and, (2) even in the absence\nof an alternative, there are no special factors counselling hesitation before authorizing a new kind\nof federal litigation.” Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 431 (6th Cir.\n2016) (internal quotation marks and brackets omitted).\n\n Following Bivens, however, the Supreme Court has “adopted a far more cautious course”\nin finding implied causes of action. Ziglar, 137 S. Ct. at 1855–56. It has even suggested that the\nCourt’s Bivens jurisprudence might have developed differently, if at all, if “decided today,” id. at\n1856, and has “made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial\nactivity.” Id. at 1857 (citation omitted). Indeed, the Supreme Court has done so only in two\nother instances, the last being nearly forty years ago. See Carlson v. Green, 446 U.S. 14 (1980)\n(Eighth Amendment’s Cruel and Unusual Punishments Clause provided a prisoner’s estate with a\n\n 4It also denied plaintiff’s motion for summary judgment, dismissed Knox from the case entirely, and\ndismissed other claims against defendants. Jacobs does not cross-appeal.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 7\n\n\nremedy for failing to provide adequate medical treatment); Davis v. Passman, 442 U.S. 228\n(1979) (Fifth Amendment Due Process Clause gave a Congressman’s assistant a damages\nremedy for gender discrimination). Since Carlson, the Supreme Court has “consistently refused\nto extend Bivens to any new context or new category of defendants.” Ziglar, 137 S. Ct. at 1857\n(citation omitted) (listing numerous cases declining to extend Bivens). The Court’s clear\npreference for not expanding such implied remedies is rooted in separation of powers, for “most\noften,” Congress “should decide” whether to provide a damages remedy. Id. at 1857–58. As the\nCourt stated, “[t]he Court’s precedents now make clear that a Bivens remedy will not be\navailable if there are special factors counselling hesitation in the absence of affirmative action by\nCongress.” Id. at 1857 (internal quotation marks omitted).\n\n We deal here not with a request by plaintiff to extend Bivens, but rather with defendants’\ncontention that we need to reexamine our Bivens jurisprudence following the Supreme Court’s\ntwo most recent Bivens decisions—Ziglar and Hernandez. Before the Supreme Court decided\nZiglar and Hernandez, defendants’ appeal would have no merit. The district court’s\nreconsideration order recognized as much:\n\n Defendants erroneously assert, however, that there is no binding Sixth Circuit\n precedent recognizing the torts alleged in the current suit. To the contrary, there\n is Sixth Circuit precedent recognizing every Bivens context in question. See, e.g.,\n Webb v. United States, 789 F.3d 647, 659-60, 666-72 (6th Cir. 2015) (discussing\n the merits of Bivens actions for malicious prosecution, false arrest, fabrication of\n evidence, and civil conspiracy); Robertson v. Lucas, 753 F.3d 606, 618 (6th Cir.\n 2014) (discussing merits of Bivens action for false arrest); Burley v. Gagacki,\n 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden on motion for\n summary judgment in Bivens action for excessive force).\n\nUnless we deem these Sixth Circuit precedents inconsistent with Ziglar and Hernandez, we too\nmust follow them. See, e.g., United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014). Because\nwe have not yet substantively examined this intervening authority, we now take the opportunity\nto decide what impact, if any, they have on our circuit law.\n\n B.\n\n Ziglar is a post-September 11 illegal-alien detention case, wherein federal detainees\nbrought Bivens actions against Department of Justice executives and wardens at the detention\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 8\n\n\nfacility. 137 S. Ct. at 1853–54. The detainees essentially challenged two aspects of their\ndetention. They claimed the government’s detention policies subjected them to “harsh pretrial\nconditions” in violation of the Fourth Amendment and the Fifth Amendment’s substantive due\nprocess and equal protection clauses, and the wardens knowingly allowed guards to abuse them\nin violation of the Fifth Amendment’s substantive due process clause. Id. at 1853–54. Before\naddressing whether the Bivens remedy exists for these claims, the Court took great care to\nemphasize the “continued force” and “necessity[] of Bivens in the search-and-seizure context in\nwhich it arose.” Id. at 1856. Bivens is “settled law,” noted the Court, “in th[e] common and\nrecurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in\nthe law, are powerful reasons to retain it in that sphere.” Id. at 1857. Thus, Ziglar is not about\nrestricting the core of Bivens; it continues the Supreme Court’s trend of cautioning against\nexpanding its outer reaches.\n\n For our purposes, Ziglar clarifies the analytical framework for how courts must approach\nasserted Bivens claims. The Court defined the “proper test for determining whether a case\npresents a new Bivens context.” Id. at 1859. We must ask whether the case is “different in a\nmeaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. The\nCourt provided several examples for how a case might be meaningfully different:\n\n A case might differ in a meaningful way because of the rank of the officers\n involved; the constitutional right at issue; the generality or specificity of the\n official action; the extent of judicial guidance as to how an officer should respond\n to the problem or emergency to be confronted; the statutory or other legal\n mandate under which the officer was operating; the risk of disruptive intrusion by\n the Judiciary into the functioning of other branches; or the presence of potential\n special factors that previous Bivens cases did not consider.\n\nId. at 1860. Differing in a “meaningful way,” in the very least, means “an extension” of the\nBivens remedy, even if just a “modest extension.” Id. at 1864. Once a court determines a new\nBivens claim is being advanced, it must then look to the special factors analysis; Ziglar further\nclarified this analysis as “concentrat[ing] on whether the Judiciary is well suited, absent\ncongressional action or instruction, to consider and weigh the costs and benefits of allowing a\ndamages action to proceed.” Id. at 1857. The Supreme Court in Ziglar then detailed why the\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 9\n\n\ncontext of plaintiffs’ claims were “new” and presented factors different from the Court’s prior\nBivens cases.\n\n The detention policy claims “challenge[d] the confinement conditions imposed on illegal\naliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on\nAmerican soil.” Id. at 1860. These claims, reasoned the Court, bore “little resemblance” to its\nprior cases, and thus differed in a meaningful way. Moreover, the policy claims implicated\nseveral special factors that dictated Congress provide a remedy. These factors included: (1) the\nclaims were against high-level individuals seeking changes to executive-branch policies; (2) the\nclaims “challenge[d] more than standard ‘law enforcement operations,’” and instead raised a host\nof inquiries regarding national security policy—“the prerogative of Congress and the President”;\nand (3) the plaintiffs did not “challenge individual instances of . . . law enforcement overreach,\nwhich due to [its] very nature [is] difficult to address except by way of damages actions after the\nfact.” Id. at 1861–62.\n\n As for the prisoner-abuse claim, the Court concluded it, too, represented a “modest”\nextension of Bivens. Id. at 1864. It did so even in light of the Court’s Carlson decision, which\nauthorized a Bivens claim for mistreating prisoners by failing to provide medical care under the\nEighth Amendment. The Court distinguished Carlson, noting that the constitutional right in\nZiglar was predicated upon a different amendment (Fifth) and that judicial guidance for the\nwarden “with respect to his supervisory duties, was less developed.” Id. Moreover, two other\nconsiderations weighed against plaintiffs: the availability of an alternative remedy (a writ of\nhabeas corpus, for example), and Congress’s choice “not to extend the Carlson damages remedy\nto cases involving other types of prisoner mistreatment” when it passed the Prison Litigation\nReform Act of 1995. Id. at 1865. The Court then remanded the case for consideration of\nwhether the “special factors” warranted extending Bivens to plaintiffs’ prisoner abuse claim. Id.\n\n C.\n\n The Supreme Court issued its Hernandez decision a week after Ziglar. Hernandez\ninvolved a cross-border shooting, in which a border patrol agent shot and killed a Mexican\nteenager standing in Mexico. 137 S. Ct. at 2005. In pertinent part, the question presented was\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 10\n\n\nwhether the decedent’s parents could assert Bivens claims against the agent for violating the\ndecedent’s Fourth and Fifth Amendment rights. Id. at 2004–05. However, because neither the\nlower courts nor the parties had the opportunity to consider Ziglar, the Court remanded the\nmatter for consideration of this “antecedent” question in the first instance. Id. at 2006–07.\n\n D.\n\n Ziglar and Hernandez are not the silver bullets defendants claim them to be—plaintiff’s\nclaims are run-of-the-mill challenges to “standard law enforcement operations” that fall well\nwithin Bivens itself. In arguing plaintiff’s Bivens claims are “new,” defendants make much out\nof factual differences between Bivens—which involved a warrantless search, unreasonable force\nduring arrest, and an arrest without probable cause, 403 U.S. at 389—and this case. Yet at no\npoint do defendants articulate why this case “differ[s] in a meaningful way” under Ziglar’s\nrubric. Jacobs’s action presents no such novel circumstances identified in Ziglar. We deal not\nwith overarching challenges to federal policy in claims brought against top executives, but with\nclaims against three individual officers for their alleged “overreach,” Ziglar, 132 S. Ct. at 1862,\nin effectuating a “standard ‘law enforcement operation[.]’” Id. at 1861.\n\n Despite defendants’ protestations to the contrary, our circuit has readily provided\nguidance to individual line officers for how to comply with the Fourth Amendment while\ncarrying out their routine police duties. As the district court aptly noted, we have recognized—\nfor some time now—every one of plaintiff’s Bivens claims. See, e.g., Webb, 789 F.3d 647\n(malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Robertson,\n753 F.3d 606 (false arrest); Burley, 729 F.3d 610 (excessive force). Given this, and the Supreme\nCourt’s express caution that Ziglar is not to be understood as “cast[ing] doubt on the continued\nforce, or even the necessity, of Bivens in the search-and-seizure context in which it arose,” we\nhew to this “settled law . . . in th[e] common and recurrent sphere of law enforcement” and find\nplaintiff’s garden-variety Bivens claims to be viable post-Ziglar and Hernandez. 137 S. Ct. at\n1856–57; see also Linlor v. Polson, 263 F. Supp. 3d 613, 625 (E.D. Va. 2017) (“This is, in all\nrelevant respects, precisely the kind of Fourth Amendment search-and-seizure case Courts have\nlong adjudicated through Bivens actions. Defendant[s] ha[ve] identified no meaningful\ndifference, no reason for the Court to doubt its competence to carry the venerable Fourth\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 11\n\n\nAmendment Bivens remedy into this context, and no reason to believe that Congress would\ndisapprove of the Court’s decision to do so.”).\n\n Accordingly, we affirm the decision of the district court as to our Bivens jurisprudence.\n\n III.\n\n Qualified immunity shields public officials “from undue interference with their duties\nand from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806\n(1982). It is not a “mere defense to liability”; the doctrine provides “immunity from suit.”\nMitchell v. Forsyth, 472 U.S. 511, 526 (1985). This immunity “gives government officials\nbreathing room to make reasonable but mistaken judgments about open legal questions,”\n“protect[ing] all but the plainly incompetent or those who knowingly violate the law.” Ashcroft\nv. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). A plaintiff bears the\nburden of showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble,\n641 F.3d 743, 750 (6th Cir. 2011). To do so, a plaintiff must show “(1) that the official violated\na statutory or constitutional right, and (2) that the right was clearly established at the time of the\nchallenged conduct.” al-Kidd, 563 U.S. at 735 (internal quotation marks omitted). The district\ncourt concluded plaintiff met this standard, and we review that decision de novo. 5 Sutton v.\nMetro. Gov’t of Nashville & Davidson Cty., 700 F.3d 865, 871 (6th Cir. 2012).\n\n However, the scope of our review is circumscribed. “A district court’s denial of qualified\nimmunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to the extent that it\nturns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005)\n(quoting Mitchell, 472 U.S. at 530). A defendant raising a qualified immunity defense “may not\nappeal a district court’s summary judgment order insofar as that order determines whether or not\nthe pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,\n319–20 (1995); see also Kennedy v. City of Cincinnati, 595 F.3d 327, 333 (6th Cir. 2010). “It is\n\n 5Defendant Kimbrough moved for summary judgment only on the excessive force claim and did not do so\nfor the others. Because he did not universally seek summary judgment, we could deem the majority of his appeal\nforfeited. See, e.g., Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 528–29 (6th Cir. 2014). We\ndecline to do so—Jacobs invited the district court to rule on the other claims below by filing his own motion for\nsummary judgment, the district court addressed Kimbrough’s (non-)entitlement to qualified immunity, and the\nparties fully briefed the issues here. Id.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 12\n\n\nwell-established that ‘a defendant challenging the denial of summary judgment on qualified\nimmunity grounds must be willing to concede the most favorable view of the facts to the plaintiff\nfor purposes of the appeal.’” Hopper v. Plummer, 887 F.3d 744, 757 (6th Cir. 2018) (citation\nand brackets omitted). When a defendant fails to concede the plaintiff’s version of the facts for\ninterlocutory appeal, we may exercise jurisdiction only if a defendant “raises the purely legal\nquestion of whether the facts alleged support a claim of violation of clearly established law.”\nLivermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007) (citation and ellipses\nomitted). This includes “an appeal challenging the district court’s factual determination insofar\nas the challenge contests that determination as ‘blatantly contradicted by the record, so that no\nreasonable jury could believe it.’” DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir.\n2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).\n\n A.\n\n Excessive Force (Alam and Kimbrough). “[A]pprehension by the use of deadly force is a\nseizure subject to the reasonableness requirement of the Fourth Amendment.” Bletz, 641 F.3d at\n750 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1983)). We have authorized the use of deadly\nforce “only in rare instances.” Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005) (citation\nomitted). “It has been clearly established in this circuit for some time that individuals have a\nright not to be shot unless they are perceived as posing a threat to officers or others.” King v.\nTaylor, 694 F.3d 650, 664 (6th Cir. 2012) (internal quotation marks omitted).\n\n Garner’s “probable cause” standard governs whether an officer who uses deadly force\nviolates the Fourth Amendment—an officer acts reasonably when deploying deadly force if the\n“officer has probable cause to believe that the suspect poses a threat of serious physical harm,\neither to the officer or to others.” 471 U.S. at 11. The Court “has identified three non-exclusive\nfactors that lower courts should consider in determining the reasonableness of force used: (1) the\nseverity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of\nthe police officers or others; and (3) whether the suspect actively resisted arrest or attempted to\nevade arrest by flight.” Livermore, 476 F.3d at 404 (citing Graham v. Connor, 490 U.S. 386,\n396 (1989)). Ultimately, the question is “whether the totality of the circumstances justified a\nparticular sort of . . . seizure.” Garner, 471 U.S. at 8–9. The focus here is on the threat factor,\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 13\n\n\nfor the two other factors weigh in plaintiff’s favor—he was not committing a crime and was not\nresisting arrest or fleeing.\n\n “In excessive force cases, the threat factor is ‘a minimum requirement for the use of\ndeadly force,’ meaning deadly force ‘may be used only if the officer has probable cause to\nbelieve that the suspect poses a threat of severe physical harm.’” Mullins v. Cyranek, 805 F.3d\n760, 766 (6th Cir. 2015) (quoting Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)).\nWhile “[a] suspect need not be armed to pose an imminent threat to an officer’s safety,” Mitchell\nv. Schlabach, 864 F.3d 416, 422–23 (6th Cir. 2017), merely possessing a weapon is not\nenough—the officer must reasonably believe the individual poses a danger of serious physical\nharm to himself or others to justify deadly force. Bouggess v. Mattingly, 482 F.3d 886, 896 (6th\nCir. 2007); see also Dickerson v. McClellan, 101 F.3d 1151, 1154–55, 1163 (6th Cir. 1996). But\non the other end of the spectrum, an officer need not face the business end of a gun to use deadly\nforce. Thomas v. City of Columbus, 854 F.3d 361, 366 (6th Cir. 2017). Instead, “[w]hether a\nsuspect has a weapon constitutes just one consideration in assessing the totality of the\ncircumstances.” Id.\n\n “[W]hether the use of deadly force at a particular moment is reasonable depends\nprimarily on objective assessment of the danger a suspect poses at that moment. The assessment\nmust be made from the perspective of a reasonable officer in the defendant’s position.”\nBouggess, 482 F.3d at 889. But just because we must look at the circumstances through the eyes\nof a reasonable officer does not mean, as defendants suggest, that we must accept the officers’\nsubjective view of the facts when making this assessment. Given the interlocutory nature of this\nappeal, rather, we must conduct the reasonable officer analysis using the facts in the light most\nfavorable to plaintiff. Id. at 887, 889.\n\n This overlay largely strips us of jurisdiction to consider Kimbrough’s and Alam’s\nappeals. Jacobs unequivocally denied taking actions consistent with presenting a reasonable\nofficer with a threat of serious physical harm to himself or others—he went up the stairs shouting\n“who the f--- went into my house,” opened the dining room door, saw Kimbrough, and\nsimultaneously spun to retreat, began to reach for his holstered gun, and was shot. At no time\ndid Jacobs hold the gun, “rack” the gun, point the gun, or fire the gun.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 14\n\n\n Our caselaw is replete with instances in which we have denied officers qualified\nimmunity when the facts suggest—at least taking them in the light most favorable to the\nplaintiff—that the suspect did not pose a serious threat to the officer. See, e.g., King, 694 F.3d at\n662–63 (noting fact dispute as to whether the suspect pointed gun at officers); Brandenburg v.\nCureton, 882 F.2d 211 (6th Cir. 1989) (similar); cf Bletz, 641 F.3d at 752 (disputed facts over\nwhether decedent was putting gun down when he was shot); Sova v. City of Mt. Pleasant,\n142 F.3d 898, 302–03 (6th Cir. 1998) (disputed facts over whether decedent threatened to get a\ngun or charged at officers with weapons).\n\n Most applicable is our decision in Floyd v. City of Detroit. There, officers responded to a\nreport of the plaintiff brandishing a shotgun, but according to the plaintiff, he was unarmed and\nyet the officers shot him without warning a “split second” after seeing him. 518 F.3d 398, 402–\n03 (6th Cir. 2008). The officers contested this version, but that dispute mattered not in Floyd:\n“The officers’ contrary assertion that Floyd was in fact armed and fired first is simply irrelevant\nto our determination of whether a constitutional right would have been violated on the facts\nalleged by Floyd. As a matter of law, an unarmed and nondangerous suspect has a constitutional\nright not to be shot by police officers.” Id. at 407 (internal citation and quotation marks omitted).\nBecause Kimbrough and Alam dispute Jacobs’s I-was-not-a-threat account, and do not raise a\npurely legal question about whether Jacobs’s version of the events supports a claim of violation\nof clearly established law, so too do we lack jurisdiction here. Livermore, 476 F.3d at 403; see\nalso O’Malley v. City of Flint, 652 F.3d 662, 677 (6th Cir. 2011) (“Once a defendant’s argument\ndrifts from the purely legal into the factual realm and begins contesting what really happened,\nour jurisdiction ends and the case should proceed to trial.”) (citation omitted).6\n\n Alam has, however, raised one purely legal question over which we do have jurisdiction,\nbut it is of no help to him. He argues that because there is no evidence that his bullets struck\n\n 6Our unpublished decision in Thornton v. City of Columbus, upon which defendants rely, does not change\nthis analysis. There, we found officers reasonably perceived a threat sufficient to employ deadly force despite many\nfact issues. Among other reasons, the officers reasonably believed the plaintiff had threatened others with a gun,\nactually possessed one, and although the plaintiff “never pointed the shotgun at the Officers before they fired their\nweapons, the undisputed manner in which [the plaintiff] was holding the weapon combined with the short distance\nbetween himself and the Officers further leads this court to conclude that any reasonable police officer would\nbelieve that Thornton posed a serious physical threat that required a use of deadly force.” 727 F. App’x 829, 837\n(6th Cir. 2018). Here, whether Jacobs’s conduct presented a threat sufficient to authorize deadly force is in dispute.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 15\n\n\nJacobs, Alam did not “seize” Jacobs. When an officer fires a gun at a person “under\ncircumstances which did not justify the use of deadly force” and when the bullet does not hit the\nperson, the “show of authority . . . ha[s] the intended effect of contributing to [the person]’s\nimmediate restraint” and under our caselaw is a seizure. Thompson v. City of Lebanon, 831 F.3d\n366, 371 (6th Cir. 2016) (citation omitted); see also Bletz, 641 F.3d at 754 (“Under well-\nestablished Sixth Circuit precedent, a police officer may be responsible for another officer’s use\nof excessive force if the officer . . . actively participated in the use of excessive force.”) (citation\nomitted). That Alam’s bullets did not strike Jacobs “does not matter.” Thompson, 831 F.3d at\n371. Thus to the extent the district court denied Alam qualified immunity because he effectuated\nan alleged unconstitutional seizure, we affirm this part of the district court’s order.\n\n B.\n\n Fabrication of Evidence (Alam, Kimbrough, and Weinman). “It is well established that a\nperson’s constitutional rights are violated when evidence is knowingly fabricated and a\nreasonable likelihood exists that the false evidence would have affected the decision of the jury.”\nGregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006). “A claim of fabrication of\nevidence does not require a conclusion that the state did not have probable cause to prosecute the\nclaimant.” Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997). Jacobs claims the\nofficers planted a .9-millimeter bullet on the kitchen floor that was previously “chambered” in\nhis gun in an attempt to bolster their claim that he pulled a gun on them before the shooting.\n\n On appeal, defendants do not accept plaintiff’s version of the events—that he did not\ntouch his gun, did not eject a round at the top of the steps, and did not keep stray bullets laying\naround the house—and instead ask us to play a factfinding role. “The most logical inference,”\nAlam tells us, “is that Jacobs racked his Glock 17 either just before emerging from the basement,\nor during the actual shooting.” Defendants additionally suggest plaintiff lied about the capacity\nof his gun, and therefore argue the record blatantly contradicts his version sufficient to grant\nsummary judgment in their favor. See, e.g., Scott, 550 U.S. at 380. We disagree.\n\n Under Jacobs’s version of the events, it is impossible for a bullet from his gun to land on\nthe kitchen floor unless it was planted by police officers after the fact in order to cover up a\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 16\n\n\nknowing display of excessive force. Even if his gun’s capacity was more than he said, thus\nproviding a possible explanation for the source of the bullet, that fact would not contradict\nJacob’s testimony that he did not rack or fire his gun. Given this, we lack jurisdiction to consider\ndefendants’ appeal on this claim. See, e.g., Webb, 789 F.3d at 669; Moldowan v. City of Warren,\n578 F.3d 351, 397 (6th Cir. 2009).\n\n C.\n\n False Arrest and Malicious Prosecution (Alam and Kimbrough). Although analytically\ndistinct, see Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010), Jacobs’s false arrest and\nmalicious prosecution claims seek remedies for similar actions—Alam and Kimbrough arresting\nplaintiff following the shooting and then participating in his prosecution by falsely testifying in\ncriminal proceedings. See generally Robertson, 753 F.3d at 616 (malicious prosecution);\nVakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (false arrest).\n\n On appeal, defendants say the record is devoid of evidence suggesting they lacked\nprobable cause to arrest him or indicating that they provided false testimony at his preliminary\nexamination. In what is likely a familiar refrain by this point, we note that this entire argument is\npredicated upon our accepting defendants’ version of the shooting—that Jacobs at least pulled a\ngun on the officers (Abdella’s testimony) or fired a gun (Kimbrough’s and Alam’s testimony).\nPlaintiff, of course, testified that he made no such threatening acts, and if plaintiff’s version of\nthe events is validated, Kimbrough and Alam necessarily arrested plaintiff without probable\ncause and provided the state court with deliberate falsehoods that resulted in his arrest and\nprosecution without probable cause. We lack jurisdiction to resolve these disputed material\nfacts.\n\n D.\n\n Civil Conspiracy (Alam, Kimbrough, and Weinman). “A civil conspiracy is an agreement\nbetween two or more persons to injure another by unlawful action.” Hooks v. Hooks, 771 F.2d\n935, 943 (6th Cir. 1985). “A plaintiff must show that (1) a ‘single plan’ existed; (2) defendants\n‘shared in the general conspiratorial objective’ to deprive the plaintiff of his constitutional rights,\nand (3) ‘an overt act was committed in furtherance of the conspiracy that caused the plaintiff’s\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 17\n\n\ninjury.’” Webb, 789 F.3d at 670 (citation and brackets omitted). We do not require direct\nevidence; it is enough to produce circumstantial evidence sufficient to reasonably infer the\nexistence of a conspiracy. See Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003). The\nsuccess of this claim falls with the others. Under plaintiff’s version of the shooting, and as set\nforth above, circumstantial evidence exists to support an inference of a conspiracy to fabricate\nevidence, to falsely arrest Jacobs, and to falsely testify at Jacobs’s preliminary hearing. Our\nlimited jurisdiction prevents us from acting further.\n\n IV.\n\n For these reasons, we affirm the decision of the district court that Ziglar and Hernandez\ndo not foreclose plaintiff’s Bivens claims and affirm part of the district court’s order regarding\nAlam’s seizure of Jacobs. We dismiss the remainder of the appeal for lack of jurisdiction and\nremand the case for further proceedings consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365973/", "author_raw": "GRIFFIN, Circuit Judge."}]}	DAUGHTREY	GIBBONS	GRIFFIN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588720/	Published	1	0	0	2,019	2	[ { "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...
4,589,133		Eduardo Jacobs v. Raymon Alam	2019-02-08	18-1124	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.", "parties": "", "opinions": [{"author": "GRIFFIN, Circuit Judge.", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0017p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n EDUARDO JACOBS, ┐\n Plaintiff-Appellee, │\n │\n > Nos. 17-2159/18-1124\n v. │\n │\n │\n RAYMON ALAM and DAVE WEINMAN (18-1124); │\n DAMON KIMBROUGH (17-2159), │\n Defendants-Appellants. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:15-cv-10516—Denise Page Hood, Chief District Judge.\n\n Argued: December 4, 2018\n\n Decided and Filed: February 8, 2019\n\n Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,\nfor Appellant in 17-2159. Davidde A. Stella, WAYNE COUNTY, Detroit, Michigan, for\nAppellants in 18-1124. Kassem M. Dakhlallah, HAMMOUD, DAKHLALLAH &\nASSOCIATES, PLLC, Dearborn, Michigan, for Appellee. ON BRIEF: Linda D. Fegins, CITY\nOF DETROIT LAW DEPARTMENT, Detroit, Michigan, for Appellant in 17-2159. Davidde A.\nStella, WAYNE COUNTY, Detroit, Michigan, for Appellants in 18-1124. Kassem M.\nDakhlallah, HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC, Dearborn, Michigan, for\nAppellee.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n GRIFFIN, Circuit Judge.\n\n Defendant law enforcement officials Raymon Alam, Dave Weinman, and Damon\nKimbrough searched for a fugitive in a house in which plaintiff Eduardo Jacobs lived. Following\nthe search, plaintiff returned home from work, and according to the officers, confronted, pointed\na gun at, and then shot at them. The officers returned fire and arrested plaintiff. But that is not\nthe version of the facts we have before us in this interlocutory appeal. Plaintiff admits he had a\nholstered pistol, but denies that he touched it—let alone drew, pointed, and shot it at the officers.\n\n After a jury acquitted plaintiff of a variety of state criminal charges, he commenced this\nBivens1 action against the law enforcement officials, alleging excessive force, false arrest,\nmalicious prosecution, fabrication of evidence, and civil conspiracy. In relevant part, the district\ncourt denied defendants qualified immunity. They appeal, contending plaintiff’s Bivens claims\nare not viable after the Supreme Court’s decisions in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),\nand Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam), and even if they are, the district\ncourt erred in denying them qualified immunity. We affirm in part and dismiss in part for lack of\njurisdiction.\n\n I.\n\n A.\n\n The events leading to this lawsuit stem from the U.S. Marshals Service’s efforts to\napprehend a federal fugitive through its Detroit Fugitive Apprehension Team task force. On the\nevening of January 3, 2014, a task force comprised of City of Detroit Police Officers Damon\nKimbrough and Michael Knox and Wayne County Sheriff’s Office Deputies Raymon Alam and\nDave Weinman—all deputized as Special Deputy U.S. Marshals—arrived at the Detroit\n\n\n 1\n Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 3\n\n\nresidence of Javier Vargas, Sr., the brother of a fugitive. The officers entered the house, found\nthree individuals (Vargas, Sr., Javier Vargas, Jr., and Michelle Dotson), but not the fugitive.\nThey also swept the house’s basement apartment, one leased by plaintiff Eduardo Jacobs.\n\n Following the search, Knox and Weinman escorted Vargas, Sr. outside, and Alam and\nKimbrough remained inside with Vargas, Jr. and Dotson. While Knox and Weinman were\noutside the house, Jacobs arrived. He entered his basement apartment through a back entrance\nand did not notice the officers’ presence (although they were aware of his). Jacobs found a\nbroken mirror leaned against a stairwell door leading to the house’s dining room (designed to\nalert Jacobs to an unauthorized entry from the house) and, in his words, a “ransacked” living\nspace—“[a]ll the doors were on the floor, all the cabinets were on the floor, all the stuff was torn\nup, somebody [went] through everything.” The parties hotly contest what happened next.\n\n Plaintiff’s version is straightforward. He bounded up the stairs shouting “who the f---\nwent into my house?” As he opened the door to the dining room, he saw an unidentified black\nmale (Kimbrough) who was “not supposed to be there,” and “spun to run at the same time. . . .\n[He] reached for [his] pistol in [his] holster and as [he] turned [he] fell down the stairs and never\ngot a chance to get the pistol out of [his] holster.” At no time did plaintiff “rack” his gun to\nchamber a live round, or point or fire his gun,2 and no one informed him that they were police or\ngave him a police command. Contemporaneous with turning to flee and reaching for his holster,\nJacobs fell down the steps and was shot three times—in the stomach, shoulder, and leg. The\nentire exchange lasted only a few seconds. Jacobs retreated to his apartment, learned that it was\nlaw enforcement officers who shot him, and eventually surrendered. He received medical\ntreatment (including the removal of one bullet), and testing later determined that bullet came\nfrom Kimbrough’s handgun.\n\n The officers involved in the shooting, Kimbrough and Alam, tell a remarkably different\nversion. As Kimbrough recalled, he was interviewing Dotson and Vargas, Jr. in the dining room\nwhen he “heard a loud bang behind” him—Jacobs slamming the door open from the basement.\nKimbrough rose, turned around and saw that Jacobs “had a gun pointed at [Kimbrough’s] face.”\n\n 2\n Forensic evidence later confirmed that Jacobs did not fire his gun.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 4\n\n\nJacobs said, “You’re the mother f----- that robbed me last week.” Kimbrough instructed Jacobs\nthree times to put the gun down and identified himself as a Detroit Police Officer. Instead,\nJacobs fired his gun, and Kimbrough returned fire and sought cover. After exchanging several\nshots, Jacobs eventually “obeyed the commands from where he was in the basement to come\nout” after “a few minutes.”\n\n Alam’s version is similar. He heard Jacobs slam the door open, and saw Jacobs enter the\ndining room from the basement with his “gun raised at an eye level,” pointed at Kimbrough.\nAlam heard Kimbrough say “police, drop the weapon,” “heard two shots . . . being fired and, at\nthat time, . . . returned fire.” However, Alam did not witness who fired the shots, and stated he\ndid not see Jacobs fire a gun.\n\n The other two individuals in the dining room, Dotson and Vargas, Jr., offer little else.\nThey recalled sitting in the dining room, hearing “a big boom” and then Jacobs asking, “who the\nf--- broke into my house.” They heard the officers identify themselves, heard gunshots and fled\nfor safety. Contrary to defendants’ assertions, neither Dotson nor Vargas, Jr. saw Jacobs hold or\nfire a gun.\n\n One other person, Detroit Police Sergeant Joseph Abdella, provided testimony about the\nshooting. Abdella interviewed Jacobs at the Detroit Detention Center after Jacobs’s arrest.\nAbdella testified at Jacobs’s preliminary hearing that Jacobs made the following unsolicited\nstatement about pointing a gun at Officer Kimbrough:\n\n [Jacobs] told me that he could have shot the officer that was in the house, that he\n had a jump on him, more or less, that he got up there and had a gun right on him.\n He could have shot that man, but he did not. And that he was looking for some\n understand[ing] – you know, that he did not pull the trigger when he had the\n opportunity to.\n\nAbdella’s testimony at Jacobs’s subsequent criminal trial was more specific:\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 5\n\n\n [H]e told me when he went in to the house, . . . that his room had been broken into\n in the basement. He told me that he got his gun and went upstairs to confront the\n people that broke into his house. . . . He insisted that he did not pull the trigger or\n fire a shot. . . [H]e said he had the gun, he pointed at them and he could’ve pulled\n the trigger, . . . but he did not.\n\nJacobs unequivocally denied telling Abdella that he pointed a gun at anyone.3\n\n B.\n\n The Wayne County Prosecuting Attorney’s office brought eleven criminal charges\nagainst Jacobs for his role in the shooting: four counts of assault with intent to do great bodily\nharm less than murder, in violation of M.C.L. § 750.84; four counts of assault with a dangerous\nweapon, in violation of M.C.L. § 750.82; two counts of resisting and obstructing, in violation of\nM.C.L. § 750.81d; and one count of possessing a firearm during the commission of a felony, in\nviolation of M.C.L. § 750.227b. Following a preliminary examination at which defendants Alan\nand Kimbrough testified (among others), a state district court judge found probable cause existed\nto arrest and charge Jacobs and bound him over to circuit court for trial. A jury subsequently\nacquitted Jacobs on all charges.\n\n C.\n\n Jacobs commenced this civil rights action thereafter. The operative complaint and claims\nrelevant to this appeal are as follows. Jacobs alleges five Bivens actions against Alam,\nKimbrough, and Weinman: (1) excessive force against Alam and Kimbrough; (2) fabrication of\nevidence against Alam, Kimbrough, and Weinman; (3) civil conspiracy against Alam,\nKimbrough, and Weinman; (4) false arrest against Alam and Kimbrough; and (5) malicious\nprosecution against Alam and Kimbrough. The district court granted in part and denied in part\ndefendants’ motions for summary judgment, holding they were not entitled to qualified\n\n\n\n 3\n Defendants contend Jacobs contradicted himself regarding his actual gun possession, and that we should\nhold him to early statements indicating he, indeed, held the gun. We disagree. True, Sergeant Abdella’s testimony\nsupports the officers’ perception of events, but the record evidence reflects Jacobs unequivocally denied telling\nAbdella that he pointed a gun at anyone. As set forth below, we lack jurisdiction to resolve this factual dispute.\nMoreover, Jacobs’s testimony that he “reached” for his holstered gun after seeing Kimbrough at the top of the steps\nis not inconsistent with other testimony indicating he “never had a chance” to touch the weapon.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 6\n\n\nimmunity for these claims.4 It then denied defendants’ motions for reconsideration. Defendants\ntimely appealed.\n\n II.\n\n A.\n\n We turn first to a threshold issue: whether plaintiff may proceed with his Bivens actions\nin light of recent Supreme Court guidance. Recognizing that “the Fourth Amendment does not\nin so many words provide for its enforcement by an award of money damages for the\nconsequences of its violation,” the Supreme Court’s 1971 decision in Bivens held that an implied\ndamages remedy is available to redress Fourth Amendment injuries. 403 U.S. at 389, 396. It is a\n“limited, implied cause of action against federal employees for particularly egregious violations\nof the Fourth Amendment in an unlawful search and seizure case brought by a private citizen.”\nLeft Fork Min. Co. v. Hooker, 775 F.3d 768, 774 (6th Cir. 2014). The “core holding of Bivens,”\nthe Supreme Court later instructed, is “recognizing in limited circumstances a claim for money\ndamages against federal officers who abuse their constitutional authority.” Corr. Servs. Corp. v.\nMalesko, 534 U.S. 61, 67 (2001). “A Bivens remedy is available only if (1) there are no\nalternative, existing processes for protecting a constitutional interest and, (2) even in the absence\nof an alternative, there are no special factors counselling hesitation before authorizing a new kind\nof federal litigation.” Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 431 (6th Cir.\n2016) (internal quotation marks and brackets omitted).\n\n Following Bivens, however, the Supreme Court has “adopted a far more cautious course”\nin finding implied causes of action. Ziglar, 137 S. Ct. at 1855–56. It has even suggested that the\nCourt’s Bivens jurisprudence might have developed differently, if at all, if “decided today,” id. at\n1856, and has “made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial\nactivity.” Id. at 1857 (citation omitted). Indeed, the Supreme Court has done so only in two\nother instances, the last being nearly forty years ago. See Carlson v. Green, 446 U.S. 14 (1980)\n(Eighth Amendment’s Cruel and Unusual Punishments Clause provided a prisoner’s estate with a\n\n 4\n It also denied plaintiff’s motion for summary judgment, dismissed Knox from the case entirely, and\ndismissed other claims against defendants. Jacobs does not cross-appeal.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 7\n\n\nremedy for failing to provide adequate medical treatment); Davis v. Passman, 442 U.S. 228\n(1979) (Fifth Amendment Due Process Clause gave a Congressman’s assistant a damages\nremedy for gender discrimination). Since Carlson, the Supreme Court has “consistently refused\nto extend Bivens to any new context or new category of defendants.” Ziglar, 137 S. Ct. at 1857\n(citation omitted) (listing numerous cases declining to extend Bivens). The Court’s clear\npreference for not expanding such implied remedies is rooted in separation of powers, for “most\noften,” Congress “should decide” whether to provide a damages remedy. Id. at 1857–58. As the\nCourt stated, “[t]he Court’s precedents now make clear that a Bivens remedy will not be\navailable if there are special factors counselling hesitation in the absence of affirmative action by\nCongress.” Id. at 1857 (internal quotation marks omitted).\n\n We deal here not with a request by plaintiff to extend Bivens, but rather with defendants’\ncontention that we need to reexamine our Bivens jurisprudence following the Supreme Court’s\ntwo most recent Bivens decisions—Ziglar and Hernandez. Before the Supreme Court decided\nZiglar and Hernandez, defendants’ appeal would have no merit. The district court’s\nreconsideration order recognized as much:\n\n Defendants erroneously assert, however, that there is no binding Sixth Circuit\n precedent recognizing the torts alleged in the current suit. To the contrary, there\n is Sixth Circuit precedent recognizing every Bivens context in question. See, e.g.,\n Webb v. United States, 789 F.3d 647, 659-60, 666-72 (6th Cir. 2015) (discussing\n the merits of Bivens actions for malicious prosecution, false arrest, fabrication of\n evidence, and civil conspiracy); Robertson v. Lucas, 753 F.3d 606, 618 (6th Cir.\n 2014) (discussing merits of Bivens action for false arrest); Burley v. Gagacki,\n 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden on motion for\n summary judgment in Bivens action for excessive force).\n\nUnless we deem these Sixth Circuit precedents inconsistent with Ziglar and Hernandez, we too\nmust follow them. See, e.g., United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014). Because\nwe have not yet substantively examined this intervening authority, we now take the opportunity\nto decide what impact, if any, they have on our circuit law.\n\n B.\n\n Ziglar is a post-September 11 illegal-alien detention case, wherein federal detainees\nbrought Bivens actions against Department of Justice executives and wardens at the detention\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 8\n\n\nfacility. 137 S. Ct. at 1853–54. The detainees essentially challenged two aspects of their\ndetention. They claimed the government’s detention policies subjected them to “harsh pretrial\nconditions” in violation of the Fourth Amendment and the Fifth Amendment’s substantive due\nprocess and equal protection clauses, and the wardens knowingly allowed guards to abuse them\nin violation of the Fifth Amendment’s substantive due process clause. Id. at 1853–54. Before\naddressing whether the Bivens remedy exists for these claims, the Court took great care to\nemphasize the “continued force” and “necessity[] of Bivens in the search-and-seizure context in\nwhich it arose.” Id. at 1856. Bivens is “settled law,” noted the Court, “in th[e] common and\nrecurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in\nthe law, are powerful reasons to retain it in that sphere.” Id. at 1857. Thus, Ziglar is not about\nrestricting the core of Bivens; it continues the Supreme Court’s trend of cautioning against\nexpanding its outer reaches.\n\n For our purposes, Ziglar clarifies the analytical framework for how courts must approach\nasserted Bivens claims. The Court defined the “proper test for determining whether a case\npresents a new Bivens context.” Id. at 1859. We must ask whether the case is “different in a\nmeaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. The\nCourt provided several examples for how a case might be meaningfully different:\n\n A case might differ in a meaningful way because of the rank of the officers\n involved; the constitutional right at issue; the generality or specificity of the\n official action; the extent of judicial guidance as to how an officer should respond\n to the problem or emergency to be confronted; the statutory or other legal\n mandate under which the officer was operating; the risk of disruptive intrusion by\n the Judiciary into the functioning of other branches; or the presence of potential\n special factors that previous Bivens cases did not consider.\n\nId. at 1860. Differing in a “meaningful way,” in the very least, means “an extension” of the\nBivens remedy, even if just a “modest extension.” Id. at 1864. Once a court determines a new\nBivens claim is being advanced, it must then look to the special factors analysis; Ziglar further\nclarified this analysis as “concentrat[ing] on whether the Judiciary is well suited, absent\ncongressional action or instruction, to consider and weigh the costs and benefits of allowing a\ndamages action to proceed.” Id. at 1857. The Supreme Court in Ziglar then detailed why the\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 9\n\n\ncontext of plaintiffs’ claims were “new” and presented factors different from the Court’s prior\nBivens cases.\n\n The detention policy claims “challenge[d] the confinement conditions imposed on illegal\naliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on\nAmerican soil.” Id. at 1860. These claims, reasoned the Court, bore “little resemblance” to its\nprior cases, and thus differed in a meaningful way. Moreover, the policy claims implicated\nseveral special factors that dictated Congress provide a remedy. These factors included: (1) the\nclaims were against high-level individuals seeking changes to executive-branch policies; (2) the\nclaims “challenge[d] more than standard ‘law enforcement operations,’” and instead raised a host\nof inquiries regarding national security policy—“the prerogative of Congress and the President”;\nand (3) the plaintiffs did not “challenge individual instances of . . . law enforcement overreach,\nwhich due to [its] very nature [is] difficult to address except by way of damages actions after the\nfact.” Id. at 1861–62.\n\n As for the prisoner-abuse claim, the Court concluded it, too, represented a “modest”\nextension of Bivens. Id. at 1864. It did so even in light of the Court’s Carlson decision, which\nauthorized a Bivens claim for mistreating prisoners by failing to provide medical care under the\nEighth Amendment. The Court distinguished Carlson, noting that the constitutional right in\nZiglar was predicated upon a different amendment (Fifth) and that judicial guidance for the\nwarden “with respect to his supervisory duties, was less developed.” Id. Moreover, two other\nconsiderations weighed against plaintiffs: the availability of an alternative remedy (a writ of\nhabeas corpus, for example), and Congress’s choice “not to extend the Carlson damages remedy\nto cases involving other types of prisoner mistreatment” when it passed the Prison Litigation\nReform Act of 1995. Id. at 1865. The Court then remanded the case for consideration of\nwhether the “special factors” warranted extending Bivens to plaintiffs’ prisoner abuse claim. Id.\n\n C.\n\n The Supreme Court issued its Hernandez decision a week after Ziglar. Hernandez\ninvolved a cross-border shooting, in which a border patrol agent shot and killed a Mexican\nteenager standing in Mexico. 137 S. Ct. at 2005. In pertinent part, the question presented was\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 10\n\n\nwhether the decedent’s parents could assert Bivens claims against the agent for violating the\ndecedent’s Fourth and Fifth Amendment rights. Id. at 2004–05. However, because neither the\nlower courts nor the parties had the opportunity to consider Ziglar, the Court remanded the\nmatter for consideration of this “antecedent” question in the first instance. Id. at 2006–07.\n\n D.\n\n Ziglar and Hernandez are not the silver bullets defendants claim them to be—plaintiff’s\nclaims are run-of-the-mill challenges to “standard law enforcement operations” that fall well\nwithin Bivens itself. In arguing plaintiff’s Bivens claims are “new,” defendants make much out\nof factual differences between Bivens—which involved a warrantless search, unreasonable force\nduring arrest, and an arrest without probable cause, 403 U.S. at 389—and this case. Yet at no\npoint do defendants articulate why this case “differ[s] in a meaningful way” under Ziglar’s\nrubric. Jacobs’s action presents no such novel circumstances identified in Ziglar. We deal not\nwith overarching challenges to federal policy in claims brought against top executives, but with\nclaims against three individual officers for their alleged “overreach,” Ziglar, 137 S. Ct. at 1862,\nin effectuating a “standard ‘law enforcement operation[.]’” Id. at 1861.\n\n Despite defendants’ protestations to the contrary, our circuit has readily provided\nguidance to individual line officers for how to comply with the Fourth Amendment while\ncarrying out their routine police duties. As the district court aptly noted, we have recognized—\nfor some time now—every one of plaintiff’s Bivens claims. See, e.g., Webb, 789 F.3d 647\n(malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Robertson,\n753 F.3d 606 (false arrest); Burley, 729 F.3d 610 (excessive force). Given this, and the Supreme\nCourt’s express caution that Ziglar is not to be understood as “cast[ing] doubt on the continued\nforce, or even the necessity, of Bivens in the search-and-seizure context in which it arose,” we\nhew to this “settled law . . . in th[e] common and recurrent sphere of law enforcement” and find\nplaintiff’s garden-variety Bivens claims to be viable post-Ziglar and Hernandez. 137 S. Ct. at\n1856–57; see also Linlor v. Polson, 263 F. Supp. 3d 613, 625 (E.D. Va. 2017) (“This is, in all\nrelevant respects, precisely the kind of Fourth Amendment search-and-seizure case Courts have\nlong adjudicated through Bivens actions. Defendant[s] ha[ve] identified no meaningful\ndifference, no reason for the Court to doubt its competence to carry the venerable Fourth\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 11\n\n\nAmendment Bivens remedy into this context, and no reason to believe that Congress would\ndisapprove of the Court’s decision to do so.”).\n\n Accordingly, we affirm the decision of the district court as to our Bivens jurisprudence.\n\n III.\n\n Qualified immunity shields public officials “from undue interference with their duties\nand from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806\n(1982). It is not a “mere defense to liability”; the doctrine provides “immunity from suit.”\nMitchell v. Forsyth, 472 U.S. 511, 526 (1985). This immunity “gives government officials\nbreathing room to make reasonable but mistaken judgments about open legal questions,”\n“protect[ing] all but the plainly incompetent or those who knowingly violate the law.” Ashcroft\nv. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). A plaintiff bears the\nburden of showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble,\n641 F.3d 743, 750 (6th Cir. 2011). To do so, a plaintiff must show “(1) that the official violated\na statutory or constitutional right, and (2) that the right was clearly established at the time of the\nchallenged conduct.” al-Kidd, 563 U.S. at 735 (internal quotation marks omitted). The district\ncourt concluded plaintiff met this standard, and we review that decision de novo.5 Sutton v.\nMetro. Gov’t of Nashville & Davidson Cty., 700 F.3d 865, 871 (6th Cir. 2012).\n\n However, the scope of our review is circumscribed. “A district court’s denial of qualified\nimmunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to the extent that it\nturns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005)\n(quoting Mitchell, 472 U.S. at 530). A defendant raising a qualified immunity defense “may not\nappeal a district court’s summary judgment order insofar as that order determines whether or not\nthe pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,\n319–20 (1995); see also Kennedy v. City of Cincinnati, 595 F.3d 327, 333 (6th Cir. 2010). “It is\n\n 5\n Defendant Kimbrough moved for summary judgment only on the excessive force claim and did not do so\nfor the others. Because he did not universally seek summary judgment, we could deem the majority of his appeal\nforfeited. See, e.g., Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 528–29 (6th Cir. 2014). We\ndecline to do so—Jacobs invited the district court to rule on the other claims below by filing his own motion for\nsummary judgment, the district court addressed Kimbrough’s (non-)entitlement to qualified immunity, and the\nparties fully briefed the issues here. Id.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 12\n\n\nwell-established that ‘a defendant challenging the denial of summary judgment on qualified\nimmunity grounds must be willing to concede the most favorable view of the facts to the plaintiff\nfor purposes of the appeal.’” Hopper v. Plummer, 887 F.3d 744, 757 (6th Cir. 2018) (citation\nand brackets omitted). When a defendant fails to concede the plaintiff’s version of the facts for\ninterlocutory appeal, we may exercise jurisdiction only if a defendant “raises the purely legal\nquestion of whether the facts alleged support a claim of violation of clearly established law.”\nLivermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007) (citation and ellipses\nomitted). This includes “an appeal challenging the district court’s factual determination insofar\nas the challenge contests that determination as ‘blatantly contradicted by the record, so that no\nreasonable jury could believe it.’” DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir.\n2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).\n\n A.\n\n Excessive Force (Alam and Kimbrough). “[A]pprehension by the use of deadly force is a\nseizure subject to the reasonableness requirement of the Fourth Amendment.” Bletz, 641 F.3d at\n750 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1983)). We have authorized the use of deadly\nforce “only in rare instances.” Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005) (citation\nomitted). “It has been clearly established in this circuit for some time that individuals have a\nright not to be shot unless they are perceived as posing a threat to officers or others.” King v.\nTaylor, 694 F.3d 650, 664 (6th Cir. 2012) (internal quotation marks omitted).\n\n Garner’s “probable cause” standard governs whether an officer who uses deadly force\nviolates the Fourth Amendment—an officer acts reasonably when deploying deadly force if the\n“officer has probable cause to believe that the suspect poses a threat of serious physical harm,\neither to the officer or to others.” 471 U.S. at 11. The Court “has identified three non-exclusive\nfactors that lower courts should consider in determining the reasonableness of force used: (1) the\nseverity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of\nthe police officers or others; and (3) whether the suspect actively resisted arrest or attempted to\nevade arrest by flight.” Livermore, 476 F.3d at 404 (citing Graham v. Connor, 490 U.S. 386,\n396 (1989)). Ultimately, the question is “whether the totality of the circumstances justified a\nparticular sort of . . . seizure.” Garner, 471 U.S. at 8–9. The focus here is on the threat factor,\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 13\n\n\nfor the two other factors weigh in plaintiff’s favor—he was not committing a crime and was not\nresisting arrest or fleeing.\n\n “In excessive force cases, the threat factor is ‘a minimum requirement for the use of\ndeadly force,’ meaning deadly force ‘may be used only if the officer has probable cause to\nbelieve that the suspect poses a threat of severe physical harm.’” Mullins v. Cyranek, 805 F.3d\n760, 766 (6th Cir. 2015) (quoting Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)).\nWhile “[a] suspect need not be armed to pose an imminent threat to an officer’s safety,” Mitchell\nv. Schlabach, 864 F.3d 416, 422–23 (6th Cir. 2017), merely possessing a weapon is not\nenough—the officer must reasonably believe the individual poses a danger of serious physical\nharm to himself or others to justify deadly force. Bouggess v. Mattingly, 482 F.3d 886, 896 (6th\nCir. 2007); see also Dickerson v. McClellan, 101 F.3d 1151, 1154–55, 1163 (6th Cir. 1996). But\non the other end of the spectrum, an officer need not face the business end of a gun to use deadly\nforce. Thomas v. City of Columbus, 854 F.3d 361, 366 (6th Cir. 2017). Instead, “[w]hether a\nsuspect has a weapon constitutes just one consideration in assessing the totality of the\ncircumstances.” Id.\n\n “[W]hether the use of deadly force at a particular moment is reasonable depends\nprimarily on objective assessment of the danger a suspect poses at that moment. The assessment\nmust be made from the perspective of a reasonable officer in the defendant’s position.”\nBouggess, 482 F.3d at 889. But just because we must look at the circumstances through the eyes\nof a reasonable officer does not mean, as defendants suggest, that we must accept the officers’\nsubjective view of the facts when making this assessment. Given the interlocutory nature of this\nappeal, rather, we must conduct the reasonable officer analysis using the facts in the light most\nfavorable to plaintiff. Id. at 887, 889.\n\n This overlay largely strips us of jurisdiction to consider Kimbrough’s and Alam’s\nappeals. Jacobs unequivocally denied taking actions consistent with presenting a reasonable\nofficer with a threat of serious physical harm to himself or others—he went up the stairs shouting\n“who the f--- went into my house,” opened the dining room door, saw Kimbrough, and\nsimultaneously spun to retreat, began to reach for his holstered gun, and was shot. At no time\ndid Jacobs hold the gun, “rack” the gun, point the gun, or fire the gun.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 14\n\n\n Our caselaw is replete with instances in which we have denied officers qualified\nimmunity when the facts suggest—at least taking them in the light most favorable to the\nplaintiff—that the suspect did not pose a serious threat to the officer. See, e.g., King, 694 F.3d at\n662–63 (noting fact dispute as to whether the suspect pointed gun at officers); Brandenburg v.\nCureton, 882 F.2d 211 (6th Cir. 1989) (similar); cf Bletz, 641 F.3d at 752 (disputed facts over\nwhether decedent was putting gun down when he was shot); Sova v. City of Mt. Pleasant,\n142 F.3d 898, 302–03 (6th Cir. 1998) (disputed facts over whether decedent threatened to get a\ngun or charged at officers with weapons).\n\n Most applicable is our decision in Floyd v. City of Detroit. There, officers responded to a\nreport of the plaintiff brandishing a shotgun, but according to the plaintiff, he was unarmed and\nyet the officers shot him without warning a “split second” after seeing him. 518 F.3d 398, 402–\n03 (6th Cir. 2008). The officers contested this version, but that dispute mattered not in Floyd:\n“The officers’ contrary assertion that Floyd was in fact armed and fired first is simply irrelevant\nto our determination of whether a constitutional right would have been violated on the facts\nalleged by Floyd. As a matter of law, an unarmed and nondangerous suspect has a constitutional\nright not to be shot by police officers.” Id. at 407 (internal citation and quotation marks omitted).\nBecause Kimbrough and Alam dispute Jacobs’s I-was-not-a-threat account, and do not raise a\npurely legal question about whether Jacobs’s version of the events supports a claim of violation\nof clearly established law, so too do we lack jurisdiction here. Livermore, 476 F.3d at 403; see\nalso O’Malley v. City of Flint, 652 F.3d 662, 677 (6th Cir. 2011) (“Once a defendant’s argument\ndrifts from the purely legal into the factual realm and begins contesting what really happened,\nour jurisdiction ends and the case should proceed to trial.”) (citation omitted).6\n\n Alam has, however, raised one purely legal question over which we do have jurisdiction,\nbut it is of no help to him. He argues that because there is no evidence that his bullets struck\n\n 6\n Our unpublished decision in Thornton v. City of Columbus, upon which defendants rely, does not change\nthis analysis. There, we found officers reasonably perceived a threat sufficient to employ deadly force despite many\nfact issues. Among other reasons, the officers reasonably believed the plaintiff had threatened others with a gun,\nactually possessed one, and although the plaintiff “never pointed the shotgun at the Officers before they fired their\nweapons, the undisputed manner in which [the plaintiff] was holding the weapon combined with the short distance\nbetween himself and the Officers further leads this court to conclude that any reasonable police officer would\nbelieve that Thornton posed a serious physical threat that required a use of deadly force.” 727 F. App’x 829, 837\n(6th Cir. 2018). Here, whether Jacobs’s conduct presented a threat sufficient to authorize deadly force is in dispute.\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 15\n\n\nJacobs, Alam did not “seize” Jacobs. When an officer fires a gun at a person “under\ncircumstances which did not justify the use of deadly force” and when the bullet does not hit the\nperson, the “show of authority . . . ha[s] the intended effect of contributing to [the person]’s\nimmediate restraint” and under our caselaw is a seizure. Thompson v. City of Lebanon, 831 F.3d\n366, 371 (6th Cir. 2016) (citation omitted); see also Bletz, 641 F.3d at 754 (“Under well-\nestablished Sixth Circuit precedent, a police officer may be responsible for another officer’s use\nof excessive force if the officer . . . actively participated in the use of excessive force.”) (citation\nomitted). That Alam’s bullets did not strike Jacobs “does not matter.” Thompson, 831 F.3d at\n371. Thus to the extent the district court denied Alam qualified immunity because he effectuated\nan alleged unconstitutional seizure, we affirm this part of the district court’s order.\n\n B.\n\n Fabrication of Evidence (Alam, Kimbrough, and Weinman). “It is well established that a\nperson’s constitutional rights are violated when evidence is knowingly fabricated and a\nreasonable likelihood exists that the false evidence would have affected the decision of the jury.”\nGregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006). “A claim of fabrication of\nevidence does not require a conclusion that the state did not have probable cause to prosecute the\nclaimant.” Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997). Jacobs claims the\nofficers planted a .9-millimeter bullet on the kitchen floor that was previously “chambered” in\nhis gun in an attempt to bolster their claim that he pulled a gun on them before the shooting.\n\n On appeal, defendants do not accept plaintiff’s version of the events—that he did not\ntouch his gun, did not eject a round at the top of the steps, and did not keep stray bullets laying\naround the house—and instead ask us to play a factfinding role. “The most logical inference,”\nAlam tells us, “is that Jacobs racked his Glock 17 either just before emerging from the basement,\nor during the actual shooting.” Defendants additionally suggest plaintiff lied about the capacity\nof his gun, and therefore argue the record blatantly contradicts his version sufficient to grant\nsummary judgment in their favor. See, e.g., Scott, 550 U.S. at 380. We disagree.\n\n Under Jacobs’s version of the events, it is impossible for a bullet from his gun to land on\nthe kitchen floor unless it was planted by police officers after the fact in order to cover up a\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 16\n\n\nknowing display of excessive force. Even if his gun’s capacity was more than he said, thus\nproviding a possible explanation for the source of the bullet, that fact would not contradict\nJacob’s testimony that he did not rack or fire his gun. Given this, we lack jurisdiction to consider\ndefendants’ appeal on this claim. See, e.g., Webb, 789 F.3d at 669; Moldowan v. City of Warren,\n578 F.3d 351, 397 (6th Cir. 2009).\n\n C.\n\n False Arrest and Malicious Prosecution (Alam and Kimbrough). Although analytically\ndistinct, see Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010), Jacobs’s false arrest and\nmalicious prosecution claims seek remedies for similar actions—Alam and Kimbrough arresting\nplaintiff following the shooting and then participating in his prosecution by falsely testifying in\ncriminal proceedings. See generally Robertson, 753 F.3d at 616 (malicious prosecution);\nVakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (false arrest).\n\n On appeal, defendants say the record is devoid of evidence suggesting they lacked\nprobable cause to arrest him or indicating that they provided false testimony at his preliminary\nexamination. In what is likely a familiar refrain by this point, we note that this entire argument is\npredicated upon our accepting defendants’ version of the shooting—that Jacobs at least pulled a\ngun on the officers (Abdella’s testimony) or fired a gun (Kimbrough’s and Alam’s testimony).\nPlaintiff, of course, testified that he made no such threatening acts, and if plaintiff’s version of\nthe events is validated, Kimbrough and Alam necessarily arrested plaintiff without probable\ncause and provided the state court with deliberate falsehoods that resulted in his arrest and\nprosecution without probable cause. We lack jurisdiction to resolve these disputed material\nfacts.\n\n D.\n\n Civil Conspiracy (Alam, Kimbrough, and Weinman). “A civil conspiracy is an agreement\nbetween two or more persons to injure another by unlawful action.” Hooks v. Hooks, 771 F.2d\n935, 943 (6th Cir. 1985). “A plaintiff must show that (1) a ‘single plan’ existed; (2) defendants\n‘shared in the general conspiratorial objective’ to deprive the plaintiff of his constitutional rights,\nand (3) ‘an overt act was committed in furtherance of the conspiracy that caused the plaintiff’s\n\f Nos. 17-2159/18-1124 Jacobs v. Alam, et al. Page 17\n\n\ninjury.’” Webb, 789 F.3d at 670 (citation and brackets omitted). We do not require direct\nevidence; it is enough to produce circumstantial evidence sufficient to reasonably infer the\nexistence of a conspiracy. See Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003). The\nsuccess of this claim falls with the others. Under plaintiff’s version of the shooting, and as set\nforth above, circumstantial evidence exists to support an inference of a conspiracy to fabricate\nevidence, to falsely arrest Jacobs, and to falsely testify at Jacobs’s preliminary hearing. Our\nlimited jurisdiction prevents us from acting further.\n\n IV.\n\n For these reasons, we affirm the decision of the district court that Ziglar and Hernandez\ndo not foreclose plaintiff’s Bivens claims and affirm part of the district court’s order regarding\nAlam’s seizure of Jacobs. We dismiss the remainder of the appeal for lack of jurisdiction and\nremand the case for further proceedings consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366386/", "author_raw": "GRIFFIN, Circuit Judge."}]}	DAUGHTREY	GIBBONS	GRIFFIN	1	{"DAUGHTREY": ", Circuit", "GIBBONS": ", Circuit", "GRIFFIN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589133/	Published	1	0	0	2,019	2	[ { "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...
4,589,790	UNITED STATES of America, Plaintiff-Appellee, v. Richard PARRISH, Defendant-Appellant.	United States v. Richard Parrish	2019-02-12	18-1178	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Larsen, Keith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887994/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887995/", "author_raw": ""}, {"author": "LARSEN, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0018p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n > No. 18-1178\n v. │\n │\n │\n RICHARD PARRISH, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit.\n No. 2:17-cr-20807-1—Bernard A. Friedman, District Judge.\n\n Decided and Filed: February 12, 2019\n\n Before: KEITH, COOK, and LARSEN, Circuit Judges.\n _________________\n\n COUNSEL\n\nON BRIEF: Jessica Lefort, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for\nAppellant. Jihan M. Williams, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,\nfor Appellee.\n\n LARSEN, J., delivered the opinion of the court in which COOK, J., joined. KEITH, J.\n(pp. 8–9), delivered a separate dissenting opinion.\n _________________\n\n OPINION\n _________________\n\n LARSEN, Circuit Judge. Richard Parrish had a cellphone in prison. After a woman\noutside the prison informed prison officials that he had been texting her, Parrish was charged\nwith misdemeanor possession of contraband and pleaded guilty. The district court sentenced\nParrish to five months in prison to run consecutively to his 250-month prison sentence for\n\n No. 18-1178 United States v. Parrish Page 2\n\n\ncontrolled substance distribution. On appeal, Parrish challenges the reasonableness of his\nsentence. We AFFIRM.\n\n I.\n\n On June 25, 2017, a woman outside the prison left an anonymous tip with a corrections\nofficer, saying that Parrish, a federal prisoner, had been texting her. Officers began a search;\nfound Parrish in a prison bathroom; and saw him pull a cellphone from his pocket, break the\nphone in half, and toss it away. The officers recovered the phone. Parrish was charged with one\ncount of possession of contraband in prison, a misdemeanor offense. 18 U.S.C. § 1791(a)(2).\nHe pleaded guilty to the charge.\n\n The government asked for a sentence within the Guidelines range of four to ten months.\nDefense counsel asked the district court to impose a below-Guidelines sentence of one day,\narguing that the court should vary downward because the Bureau of Prisons had already\ndisciplined Parrish for the cellphone incident; because a one-day sentence was commensurate\nwith sentences given to others in the district charged with the same crime; and because Parrish\nhad not seen his family in three years and so had used the phone to “contact friends and family\non the outside.” When asked at sentencing whether he had anything to say, Parrish told the court\nthat he “had the phone to keep in contact with my children[] and stuff like that.” Responding to\nParrish’s statement and explaining the sentence, the court stated:\n\n In this matter, the Bureau of Prisons became aware of the situation . . .\n because some third-party who he was texting, a woman, contacted them. So\n that’s fairly disturbing because, obviously, it wasn’t his family or they wouldn’t\n have turned him in.\n Somebody turned him in that didn’t want him to contact them. So this is a\n different case, though. I have seen another one. At least in my mind if he was\n contacting his family, that’s—you know, it’s not right, but . . . he’s contacting\n somebody that didn’t want him to contact them and turned him in, which is pretty\n acute in this day and age especially.\n And I understand that he has been probably more than sufficiently\n disciplined in the prison system, but the prison system is not the criminal justice\n system. And there’s no question about that. I have to impose a sentence pursuant\n to the sentencing guidelines, if I find them applicable. And I do find them\n applicable in this case. I don’t have any reason to fashion anything other than the\n sentencing guidelines because I don’t see any reason why it wouldn’t be fair.\n\n No. 18-1178 United States v. Parrish Page 3\n\n\n And also under the 3553 criteria. As I say, this is the criminal aspect of it, not the\n disciplinary aspect of it, of the prison.\n And I have to fashion something. Especially in this case. This one is a\n deterrence case to a great deal that will deter him and those in prison for a long\n time.\n And it’s frustrating and I understand that. But we have to deter not only\n him but others so that they know that they have—you know, if they’re going to\n face the prison system, they’re going to face whatever happens there. When they\n face the criminal law system then, number one, they have to have respect for the\n law. They have to tell them that, you know, there’s going to be consequences.\n They have to be deterred so they think twice before they breach, and to\n adequately punish.\n\nThe district court sentenced Parrish to five months’ imprisonment, at “the low end of the\nsentencing guidelines,” to run consecutively to his 250-month sentence. Parrish timely appealed.\n\n II.\n\n A criminal sentence must be both procedurally and substantively reasonable. United\nStates v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). Procedural reasonableness requires the\ncourt to “properly calculate the guidelines range, treat that range as advisory, consider the\nsentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select\nthe sentence based on facts that are not clearly erroneous, and adequately explain why it chose\nthe sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall v. United\nStates, 552 U.S. 38, 51 (2007)). Substantive reasonableness focuses on whether a “sentence is\ntoo long (if a defendant appeals) or too short (if the government appeals).” Id. at 442. “The\npoint is not that the district court failed to consider a factor or considered an inappropriate factor;\nthat’s the job of procedural unreasonableness.” Id. Instead, substantive unreasonableness is “a\ncomplaint that the court placed too much weight on some of the § 3553(a) factors and too little\non others in sentencing the individual.” Id. We review claims of both procedural and\nsubstantive unreasonableness for an abuse of discretion, although we review the district court’s\nfactual findings for clear error and its legal conclusions de novo. Id. at 440, 442.\n\n Procedural Reasonableness. Parrish argues that the district court imposed “a\nsubstantively unreasonable sentence that was based on bare speculation without basis in fact.”\n\n No. 18-1178 United States v. Parrish Page 4\n\n\nAlthough couched in terms of substantive reasonableness, Parrish’s unreasonable speculation\nclaim is, in reality, a procedural reasonableness challenge.\n\n That Parrish’s claim is procedural, not substantive, becomes apparent once we look\nbeyond the label Parrish assigns to his argument. Parrish asked for lenience at sentencing on the\nground that he had used the cellphone to contact his family. He now claims that the district court\nconcluded, “without basis in fact,” that he had instead used the cellphone to harass someone.\nParrish contends that there was no evidence to support the district court’s supposed finding of\nharassment—in other words, he argues that the district court made an erroneous factual finding.\nParrish’s unreasonable speculation claim, therefore, is simply another way of saying that the\ndistrict court “select[ed] a sentence based on clearly erroneous facts.” Gall, 552 U.S. at 51.\nSuch a claim sounds in procedural, not substantive, reasonableness. Id.\n\n Parrish relies on two unpublished opinions of this court that treated this sort of\n“unreasonable speculation” claim as a challenge to a sentence’s substantive reasonableness. See\nUnited States v. Van, 541 F. App’x 592, 596–98 (6th Cir. 2013); United States v. Hughes, 283 F.\nApp’x 345, 353–56 (6th Cir. 2008). In those cases, the parties cast the unreasonable speculation\narguments as claims that the district courts had based the sentences on an “impermissible factor”;\nthis court then treated those claims as sounding in substantive reasonableness. See, e.g., Van,\n541 F. App’x at 596–97.\n\n When Van and Hughes were decided, it was unsettled in this circuit whether a district\ncourt’s consideration of an impermissible factor should be treated as procedural or substantive\nerror. See, e.g., United States v. Musgrave, 761 F.3d 602, 607 n.1 (6th Cir. 2014); United States\nv. Espericueta-Perez, 528 F. App’x 572, 578 n.5 (6th Cir. 2013); United States v. Chowdhury,\n438 F. App’x 472, 476 (6th Cir. 2011); see also United States v. Malone, 503 F.3d 481, 484 (6th\nCir. 2007) (“Despite being categorized in our cases under the substantive reasonableness prong,\nconsideration of an impermissible factor—it seems to us—more appropriately involves the\nprocedural reasonableness prong . . . .”). But in 2016, the court settled the question, concluding\nthat “consideration of an impermissible factor is more properly considered a procedural, not\nsubstantive, error.” United States v. Cabrera, 811 F.3d 801, 809 (6th Cir. 2016); see also\nRayyan, 885 F.3d at 440 (stating that procedural reasonableness requires the court to “refrain\n\n No. 18-1178 United States v. Parrish Page 5\n\n\nfrom considering impermissible factors”); United States v. Turner, 738 F. App’x 856, 860 (6th\nCir. 2018); United States v. Israel, 662 F. App’x 382, 391 n.3 (6th Cir. 2016). Accordingly,\nwhether we characterize Parrish’s unreasonable speculation claim as an argument that the district\ncourt selected a sentence based on clearly erroneous facts, as we would do, or as an argument\nthat the district court based the sentence on an impermissible factor, as Van and Hughes did, his\nclaim challenges the procedural, not substantive, reasonableness of his sentence.\n\n To preserve challenges to procedural sentencing errors for appeal and avoid plain error\nreview, a defendant generally must raise his objection during the sentencing proceeding. See\nUnited States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc). Parrish did not object\nto his sentence as having been based on unreasonable speculation. Nonetheless, he contends that\nplain error review is inappropriate because the district court failed to comply with United States\nv. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004), which requires the district court to ask the\nparties whether they have objections to the sentence. We need not decide whether plain error\napplies, however, because the district court did not commit procedural error here, plain or\notherwise.\n\n Parrish does not dispute that the district court is free to make reasonable inferences from\nfacts in the record when fashioning a sentence. See United States v. Howder, Nos. 17-3413, 17-\n3454, 2018 WL 4056032, at 5–6 (6th Cir. Aug. 27, 2018). Here, the record indicates that a\nwoman contacted a corrections officer to report that Parrish was texting her from inside the\nprison. She presumably knew that her tip would lead to the phone’s confiscation. From this, the\ndistrict court inferred that the woman did not want contact with Parrish. We cannot say this was\nunreasonable.\n\n The district court rejected Parrish’s argument that he should be granted a downward\nvariance because he had used the cellphone only to contact his children. Implicit in this\nargument must have been a claim that his children would have welcomed the contact; it is hard\nto see how an argument for a downward variance based on unwanted calls to family could have\nbeen reasonable. But Parrish offered no evidence, other than his own statement, to support his\nclaim that he was using the cellphone only to reach out to his family. And, although the district\ncourt did seem to infer that the woman Parrish had been texting was not a relative, the point the\n\n No. 18-1178 United States v. Parrish Page 6\n\n\ncourt stressed was not the lack of familial relationship between the woman and Parrish, but that\nthe woman did not want contact with him. This, according to the district court, distinguished\nParrish’s case from those in which an outside party had welcomed contact with the prisoner.\n\n We cannot conclude, therefore, that the district court based the sentence on unreasonable\nspeculation. The record supported the district court’s reasonable inferences, so the cases on\nwhich Parrish relies—Van, 541 F. App’x at 596–98, and Hughes, 283 F. App’x at 353–56—are\ndistinguishable. As a result, Parrish has not shown that his sentence was procedurally\nunreasonable.\n\n Substantive Reasonableness. Parrish argues that his sentence was substantively\nunreasonable because (1) the district court relied solely on deterrence and ignored other pertinent\n§ 3553(a) factors and (2) the district court did not consider the need for avoiding local sentencing\ndisparities when imposing Parrish’s sentence. Neither argument overcomes the presumption of\nreasonableness afforded within-Guidelines sentences such as Parrish’s. See Vonner, 516 F.3d at\n389.\n\n First, we disagree with Parrish that the district court focused solely on deterrence. By\nreasonably inferring that Parrish’s contact with the woman was unwanted and thereby\nconcluding that the case was more concerning than others, the district court appropriately\nconsidered the nature and circumstances of the offense, see 18 U.S.C. § 3553(a)(1), as well as its\nseriousness, see id. § 3553(a)(2)(A). The district court also considered the kinds of sentences\navailable, taking account both of the Guidelines range and of Parrish’s argument that a\ndownward variance to a one-day sentence could have been appropriate because the prison system\nhad already disciplined him for his actions. See id. § 3553(a)(3). The court also appears to have\nconsidered the effect of Parrish’s conduct on the public, see id. § 3553(a)(2)(C), by emphasizing\nthe seriousness of unwanted contact from prisoners to persons outside the prison. Finally, the\ndistrict court specifically mentioned promoting respect for the law, see id. § 3553(a)(2)(A), when\nfinding the within-Guidelines sentence appropriate. As a result, the district court did not\nunreasonably focus on deterrence over other § 3553(a) factors.\n\n No. 18-1178 United States v. Parrish Page 7\n\n\n Second, regarding disparities, Parrish contends that the district court did not consider his\nargument that, like others convicted of the same crime, he should receive a one-day sentence.\n“[W]hen ‘a defendant raises a particular argument in seeking a lower sentence, the record must\nreflect both that the district judge considered the defendant’s argument and that the judge\nexplained the basis for rejecting it.’” United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007)\n(quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)). The record reflects\nthat the district court considered and rejected Parrish’s argument. Only moments after defense\ncounsel made the local disparity argument, the court explained that “this is a different case,\nthough . . . he’s contacting somebody that didn’t want him to contact them.” In addition, the\ndistrict court was not even required under § 3553(a)(6) to assess the local disparities of a\nsentence; rather, the focus of § 3553(a)(6) is on “national disparities, not specific individual\ncases.” United States v. Gamble, 709 F.3d 541, 555 (6th Cir. 2013) (citing United States v.\nWallace, 597 F.3d 794, 803 (6th Cir. 2010)).\n\n Because Parrish’s arguments regarding deterrence and disparities fail, he has not\novercome the presumption of reasonableness afforded to a within-Guidelines sentence and has\nnot shown that the district court abused its discretion by sentencing him near the bottom of the\nGuidelines range.\n\n *\n\n We AFFIRM the judgment of the district court.\n\n No. 18-1178 United States v. Parrish Page 8\n\n\n _________________\n\n DISSENT\n _________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367043/", "author_raw": "LARSEN, Circuit Judge"}, {"author": "DAMON J. KEITH, Circuit Judge, dissenting", "type": "dissent", "text": "DAMON J. KEITH, Circuit Judge, dissenting. Because I disagree with the majority’s\nview that the record supports the district court’s assumptions, I respectfully dissent.\n\n In United States v. Hunt, we stated that “it does not matter that the district court relied on\na number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it\ncould not properly consider. Thus we would not hesitate to reverse a sentence if a judge relied\non numerous relevant facts but also relied, for instance, on the morning’s horoscope.” 521 F.3d\n636, 649 (6th Cir. 2008). Here, the district court’s assumptions that Parrish was using the\ncellphone to harass a non-family member that did not want him contacting her are simply\nunsupported by the record, and its use of these assumptions in fashioning its sentence is\nprohibited. United States v. Hughes, 283 Fed. Appx. 345, 353 (6th Cir. 2010) (holding “district\ncourts may not make ‘unfounded assumptions’ when fashioning a sentence for a defendant.”).\n\n The majority attempts to distinguish Hughes and United States v. Van, 541 Fed. Appx.\n592 (6th Cir. 2013), by stating that unlike in those cases, the record here supports the district\ncourt’s inferences. However, this is untrue. The record below is void of any facts of who the\nwoman was, why she provided an anonymous tip, and the extent of the contact she had with\nParrish. Further, the Government concedes that it has no evidence that Parrish was using the cell\nphone to conduct illegal activity.\n\n The majority acknowledges that the district court used its inferences to distinguish\nParrish’s case from others. But as the fact-finder, the district court did not have to rely on such\ninferences, and could have attempted to determine these facts. Instead, the district court used\nwords such as “obviously” and “probably” to create its own narrative and to fill in these blanks.\nThe district court chose to “[impute] some nefarious conduct to [Parrish] that the record simply\ndoes not support,” which is unreasonable. United States v. Heard, 2018 WL 4339892, at 14\n(6th Cir. Sep. 11, 2018) (J. Moore, dissenting).\n\n No. 18-1178 United States v. Parrish Page 9\n\n\n Additionally, the majority makes several inferential leaps in attempts to interpret the\nmeaning of Parrish’s statements at sentencing and to characterize the district court’s assumptions\nas reasonable. However, the district court went beyond making reasonable inferences, and\ntreated its assumptions as fact in fashioning Parrish’s sentence. “Because the district court’s\nstatements imply that it [assumed that the woman did not want contact with Parrish] and there\nwas no support in the record for the district court’s [assumptions], we conclude that the district\ncourt engaged in unreasonable speculation.” Hughes, 283 Fed. Appx. at 353-54. “In such a\nsituation, we must vacate and remand for resentencing.” Van, 541 Fed. Appx. at 598 (finding\nthat a district court abused its discretion when it considered that the defendant was involved in an\nundisclosed scheme in fashioning its sentence, where the record contained no support for its\nspeculation).\n\n This court should be careful not to affirm sentences based on such unreasonable\nspeculation, and for this reason, I dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367043/", "author_raw": "DAMON J. KEITH, Circuit Judge, dissenting"}]}	LARSEN	KEITH	LARSEN	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4589790/	Published	1	1	1	2,019	2	[ { "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...
4,589,793	R. Alexander ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant/Cross-Appellee, v. OFF DUTY POLICE SERVICES, INC. ; Darrell Spurgeon; Bonnie Spurgeon, Defendants-Appellees/Cross-Appellants.	R. Alexander Acosta v. Off Duty Police Servs.	2019-02-12	17-5995/6071	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Guy, White, Stranch", "parties": "", "opinions": [{"author": "JANE B. STRANCH, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0019p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n R. ALEXANDER ACOSTA, Secretary of Labor, United ┐\n States Department of Labor, │\n Plaintiff-Appellant/Cross-Appellee, │\n │\n > Nos. 17-5995/6071\n v. │\n │\n │\n OFF DUTY POLICE SERVICES, INC.; DARRELL │\n SPURGEON; BONNIE SPURGEON, │\n Defendants-Appellees/Cross-Appellants. │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Kentucky at Louisville.\n No. 3:13-cv-00935—David J. Hale, District Judge.\n\n Argued: October 18, 2018\n\n Decided and Filed: February 12, 2019\n\n Before: GUY, WHITE, and STRANCH, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Dean A. Romhilt, UNITED STATES DEPARTMENT LABOR, Washington, D.C.,\nfor Appellant/Cross-Appellee. Raymond C. Haley III, FISHER & PHILLIPS LLP, Louisville,\nKentucky, for Appellees/Cross-Appellants. ON BRIEF: Dean A. Romhilt, UNITED STATES\nDEPARTMENT LABOR, Washington, D.C., for Appellant/Cross-Appellee. Raymond C. Haley\nIII, Emily N. Litzinger, FISHER & PHILLIPS LLP, Louisville, Kentucky, for Appellees/Cross-\nAppellants.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n JANE B. STRANCH, Circuit Judge. The way we work in America is changing. The\nrelationships between companies and their workers are more fluid and varied than in decades\npast. Our task in this appeal is to apply traditional legal protections to one such relationship. In\nthe proceedings below, the district court decided that some of the workers for Off Duty Police\nServices, Inc. (ODPS) were “employees” entitled to overtime wages under the Fair Labor\nStandards Act (FLSA) while others were “independent contractors” who fell outside the scope of\nthe FLSA’s protections. Because our analysis leads us to conclude that all the workers were\nemployees under the FLSA, we AFFIRM the district court’s judgment in part, REVERSE in\npart, and REMAND for further proceedings.\n\n I. BACKGROUND\n\nA. Factual History\n\n ODPS offers private security and traffic control services in the Louisville, Kentucky area.\nThese services are simple—a typical day for an ODPS worker includes, for example, sitting in a\ncar with the lights flashing or directing traffic around a construction zone. Most of ODPS’s\nworkers are sworn officers, meaning they work for some law-enforcement entity in addition to\nworking for ODPS. Other workers are nonsworn, meaning they generally have no background in\nlaw enforcement. Although ODPS pays sworn officers more per hour, the tasks performed by\nsworn and nonsworn workers are basically the same. Many ODPS workers, both sworn and\nnonsworn, have routinely worked for ODPS for years, some for a decade or more.\n\n Darrell Spurgeon, the founder and vice president of ODPS, collects assignments for\nODPS’s workers by contracting with businesses in and around Louisville. Spurgeon uses\n“schedulers,” whom ODPS also classifies as independent contractors,1 to keep track of these\ncustomers’ work requests. The customers specify the services needed and the qualifications of\n\n\n 1The employment status of these schedulers is not at issue on appeal.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 3\n\n\nthe requested workers. Spurgeon or one of his schedulers then offers the assignments to workers\nwho meet those qualifications. Workers can choose to accept or reject a job, although multiple\nwitnesses testified that Spurgeon would discipline them—for example, by withholding future\nassignments—if they declined work. Some workers referred to this as being placed in “time\nout.”\n\n If workers accept a job, ODPS tells them where to report, when to show up, and whom to\nspeak with when they arrive. ODPS sometimes provides workers with supplies and equipment\nnecessary for the assignment, including stop-and-go signs, reflective jackets, and badge-shaped\npatches. But workers must pay for other equipment. In certain cases, for example, the cost of an\nODPS-branded shirt is deducted from workers’ paychecks. And all workers must own police-\nstyle vehicles. While sworn police officers usually drive their police cruisers, nonsworn workers\nmust buy a police-style vehicle—usually a Crown Victoria—with their own money. Nonsworn\nworkers testified that they drive these vehicles both on the job and for personal use. In all, the\ncost of the nonsworn workers’ investments ranges from roughly $3,000 to $5,000.\n\n At the job site, workers follow the customer’s instructions, comply with ODPS’s standard\npolicies, and occasionally submit to the supervision of other ODPS workers. Sworn police\nofficers wear their official police uniforms, and nonsworn workers wear police-style uniforms\nthat bear ODPS-branded patches. With few exceptions, all workers are to remain clean-shaven.\nSpurgeon and Frank Medieros, who helps manage the business, sometimes visit job sites to\ninspect the setup and monitor workers’ compliance with these policies. In some instances, both\nsworn and nonsworn workers have been disciplined by Spurgeon or Medieros for failing to\ncomply with ODPS’s dress and grooming requirements. Some sworn officers, however, testified\nthat they were rarely or never supervised at job sites.\n\n After completing an assignment, workers send Spurgeon an invoice with the number of\nhours they spent on the job. That practice started only after the Department of Labor (DOL)\nbegan investigating ODPS’s recordkeeping practices. ODPS ordinarily uses these invoices to\npay workers an hourly wage, although infrequently workers are paid per project. At trial,\nSpurgeon admitted that the information in these invoices is sometimes inaccurate or incomplete,\nbut he blamed any errors on his workers’ failure to submit accurate records.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 4\n\n\n ODPS considers all these workers to be independent contractors, regardless of the\ncompensation they receive, the work they perform, or their background in law enforcement. All\nworkers must sign “independent contractor agreements” that contain non-compete clauses\nprohibiting them from working for ODPS’s customers for two years after their work with ODPS\nends. Because ODPS classifies its workers as independent contractors, it has never paid them\novertime wages.\n\nB. Proceedings Below\n\n The DOL brought this suit against ODPS under the FLSA, alleging that (i) all of ODPS’s\nworkers are employees entitled to overtime wages and (ii) ODPS violated the FLSA’s\nrecordkeeping requirements by failing to maintain accurate employment records. The district\ncourt held a four-day bench trial at which 19 current and former ODPS workers testified. In its\npost-trial decision, the district court held that ODPS’s nonsworn workers were employees\nentitled to overtime wages under the FLSA. The court also determined that ODPS’s sworn\nofficers were independent contractors because they “simply were not economically dependent on\nODPS and instead used ODPS to supplement their incomes.” In response to the DOL’s claim\nthat ODPS violated the FLSA’s recordkeeping requirements, the court acknowledged that some\nof ODPS’s records were “faulty” but found that these errors did not violate the FLSA because\nODPS did not “knowingly fail[] to maintain accurate records.”\n\n After the parties briefed the issue of damages, the court entered a final judgment detailing\nthe back wages owed by ODPS to its nonsworn workers. Both parties filed notices of appeal. In\nthis consolidated appeal, the DOL challenges the district court’s decision that (i) ODPS’s sworn\nofficers were independent contractors and (ii) ODPS did not violate the FLSA’s recordkeeping\nrequirements. ODPS appeals the district court’s (i) conclusion that the nonsworn workers were\nemployees entitled to overtime wages under the FLSA and (ii) calculation of back wages.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 5\n\n\n II. ANALYSIS\n\n We review a district court’s post-trial factual findings for clear error. Sharpe v. Cureton,\n319 F.3d 259, 269 (6th Cir. 2003). We review de novo the district court’s application of those\nfactual findings to the relevant legal standards. Solis v. Laurelbrook Sanitarium & Sch., Inc.,\n642 F.3d 518, 522 (6th Cir. 2011).\n\nA. Employment Relationship\n\n The FLSA is “a broadly remedial and humanitarian statute . . . designed to correct ‘labor\nconditions detrimental to the maintenance of the minimum standard of living necessary for\nhealth, efficiency, and general well-being of workers.’” Donovan v. Brandel, 736 F.2d 1114,\n1116 (6th Cir. 1984) (quoting Dunlop v. Carriage Carpet Co., 548 F.2d 139, 143 (6th Cir.\n1977)). With that goal in mind, the FLSA requires employers to pay overtime wages to\nemployees who work more than 40 hours in a week. 29 U.S.C. § 207(a)(1). The definition of\n“employee” in this context “is strikingly broad” and includes “some parties who might not\nqualify as such under a strict application of traditional agency law principles.” Keller v. Miri\nMicrosystems LLC, 781 F.3d 799, 804 (6th Cir. 2015) (internal quotation marks omitted)\n(quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992)). To determine whether\na worker fits within this expansive definition, “we must look to see whether [the] worker, even\nwhen labeled as an ‘independent contractor,’ is, as a matter of ‘economic reality,’ an employee.”\nId. (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947)).\n\n This “economic reality” test considers six factors:\n\n 1) the permanency of the relationship between the parties; 2) the degree of skill\n required for the rendering of the services; 3) the worker’s investment in\n equipment or materials for the task; 4) the worker’s opportunity for profit or loss,\n depending upon his skill; . . . 5) the degree of the alleged employer’s right to\n control the manner in which the work is performed . . .;” and 6) “whether the\n service rendered is an integral part of the alleged employer’s business.”\n\nId. at 807 (quoting Brandel, 736 F.2d at 1117 & n.5). None of these factors is determinative on\nits own, and each must be considered “with an eye toward the ultimate question—[the worker’s]\neconomic dependence on or independence from” the alleged employer. Id. We address each of\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 6\n\n\nthese factors below, beginning with the least difficult and then turning to those that require the\nmost attention.\n\n 1. Integral Part of the Business\n\n The first factor asks whether the services provided by the worker are integral to the\ncompany’s business. “The more integral the worker’s services are to the business, then the more\nlikely it is that the parties have an employer-employee relationship.” Id. at 815 (citation\nomitted). There is no doubt that the services offered by ODPS’s workers are integral to the\ncompany. As its name implies, ODPS built its business around the security and traffic control\nservices provided by its workers. ODPS responds generally that these services are not integral to\nits business because it is merely “an agent between its customers and independent sworn and\nnonsworn officers.” But even if that characterization were true, ODPS could not function\nwithout the services its workers provide. See, e.g., Schultz v. Capital Int’l Sec., Inc., 466 F.3d\n298, 309 (4th Cir. 2006) (finding security guards were integral to a business where company\n“was formed specifically for the purpose of supplying” private security). This factor cuts heavily\nin favor of finding an employment relationship between ODPS and all its workers.\n\n 2. Degree of Skill Required\n\n The next factor considers the worker’s skillset, which “must be evaluated with reference\nto the task[s] being performed.” Brandel, 736 F.2d at 1118. The skills required to work for\nODPS are far more limited than those of a typical independent contractor. Cf. Werner v. Bell\nFamily Med. Ctr., Inc., 529 F. App’x 541, 544 (6th Cir. 2013) (affirming jury’s decision that\nworker was an independent contractor where he had “specialized” and “unique training . . . that\nno other worker could perform”). At trial, workers testified that the tasks they performed\nrequired little skill, initiative, or training. One worker described his responsibilities this way:\n“Well, sometimes we just had to sit in our cars with the lights flashing. Sometimes I would have\nto actually get out and stand and be seen, and other times I would have to flag traffic.” In\ndescribing private security assignments, another worker said that he “would show up at a site and\njust make sure that everything was safe, locked up, or patrol the lots.” And another worker with\nno experience in law enforcement said that he would simply “show[] up and watch for problems.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 7\n\n\nThat was it.” He also testified that he felt like he could “do the job satisfactorily” because it\nrequired only “[c]ommon sense.”\n\n ODPS counters by pointing to the “high degree of skill and training required to become a\nlicensed police officer.” But as the district court correctly recognized, this factor does not\nconcern the skills possessed by a subset of ODPS’s workers; rather, it considers “the degree of\nskill required for the rendering of the services.” Keller, 781 F.3d at 807 (emphasis added)\n(citation omitted). The services provided by ODPS typically do not require the skill or training\nof a licensed police officer, as demonstrated by the fact that some of ODPS’s workers have no\nbackground in law enforcement. And as ODPS admits, its workers are required to attend only a\nfour-hour training session before they begin work. These facts favor employee status for all of\nODPS’s workers. See, e.g., id. at 809 (“[I]f the worker’s training period is short . . . then that\nweighs in favor of finding that the worker is indistinguishable from an employee.” (citation\nomitted)).\n\n 3. Investment in Specialized Equipment\n\n The limited investment by ODPS workers in specialized equipment also supports\nemployee status for sworn and nonsworn workers. This factor requires comparison of the\nworker’s total investment to “the company’s total investment, including office rental space,\nadvertising, software, phone systems, or insurance.” Id. at 810 (citation omitted). “The capital\ninvestment factor is most significant if it reveals that the worker performs a specialized service\nthat requires a tool or application which he has mastered.” Brandel, 736 F.2d at 1118-19.\n\n Here, ODPS periodically supplied workers with basic equipment necessary for the job,\nincluding stop-and-go signs, reflective jackets, and badge-shaped patches with the ODPS logo.\nFor sworn police officers, the remaining items—including a police uniform and cruiser—\nrequired little or no capital investment because the officers already had those items through their\npolice work. Some officers testified that they had to pay their police departments approximately\n$50 to $200 per month to use police-issued equipment, but otherwise no additional investment\nwas necessary to work for ODPS. Nonsworn workers, however, had to obtain police-style\nclothing and police-style vehicles. While acquiring uniforms entailed little expense, obtaining a\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 8\n\n\npolice vehicle required some investment. In all, the district court estimated that nonsworn\nworkers generally spent around $3,000 to $5,000 on necessary equipment, the majority of which\nthey spent on the vehicle.\n\n As the district court correctly noted, the $3,000 to $5,000 spent by nonsworn workers\n“pale[s] in comparison to the amount ODPS spent running its business per year,” which\nSpurgeon estimated at around $200,000. And the vehicles purchased by nonsworn workers\ncould be used for any purpose, not just on the job. In Keller, we found that while “investment of\na vehicle is no small matter . . . that investment is somewhat diluted when one considers that the\nvehicle is also used by most drivers for personal purposes.” Id. (citation and internal quotation\nmarks omitted). At trial, multiple nonsworn workers testified that they used their vehicles for\nboth professional and personal purposes.\n\n Although the district court held that these investments supported employee status for the\nnonsworn workers, the court decided that the sworn officers’ investments were a “non-factor.”\nPresumably, these investments were considered a “non-factor” because sworn police officers\nalready possessed the necessary equipment before they began working for ODPS. But these\nofficers’ negligible costs must still be measured against ODPS’s significant annual costs. And\nthe cost of the sworn officers’ investment is relevant to another purpose of this inquiry: to\ndetermine whether the disputed work involves a “specialized service that requires a tool or\napplication which [the worker] has mastered.” Brandel, 736 F.2d at 1118-19. The vehicles used\nby sworn and nonsworn workers—which they simply parked and sat in for hours at a time—\nrequired no specialized mastery. This limited investment in specialized equipment favors\nemployee status for sworn and nonsworn workers.\n\n 4. Permanency of Relationship\n\n The remaining factors require more attention. The first of these is the permanency of the\nrelationship between ODPS and its workers, which looks to the “length and regularity of the\nworking relationship between the parties.” Keller, 781 F.3d at 807 (citation omitted).\nIndependent contractors “often have fixed employment periods and transfer from place to place\nas particular work is offered to them, whereas employees usually work for only one employer\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 9\n\n\nand such relationship is continuous and indefinite in duration.” Id. (internal quotation marks\nomitted) (quoting Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1442 (10th Cir. 1998)).\nThat a party works for more than one company, however, is only “one factor of many to consider\nin determining whether a worker is economically dependent upon the defendant company,” and\n“employees may work for more than one employer without losing their benefits under the\nFLSA.” Id. at 808 (citations omitted).\n\n Although ODPS’s workers accepted jobs intermittently, they often worked for ODPS for\nyears—or, in some cases, decades—at a time. Cf. Scantland v. Jeffry Knight, Inc., 721 F.3d\n1308, 1318 (11th Cir. 2013) (finding the permanence factor supported employee status where\nplaintiffs worked for a company “an average of more than five years”). And the length of these\nrelationships did not depend on the worker’s status as sworn or nonsworn. Multiple nonsworn\nworkers testified that they had worked for ODPS for many years. Two sworn officers testified\nthat they had worked for ODPS for almost two decades, and others testified that they had been\nwith ODPS for close to a decade.\n\n In addition to length, the regularity of the workers’ relationship with ODPS also favors\nemployee status. Once again, this consistency did not depend on the worker’s status as sworn or\nnonsworn. Multiple nonsworn workers testified that ODPS had been their sole employer for\nyears at a time. Even those workers who sometimes accepted other work reported that they spent\nthe majority of their time working for ODPS. And while the sworn officers maintained day jobs\nin law enforcement, many reported working consistently for ODPS throughout the year. One\nofficer testified, for example, that he had routinely worked at least 20 to 25 hours per week for\nODPS for “five or six years.” Another officer testified that he had often worked for ODPS “at\nleast 50 hours a week or more,” and that his periodic work for other companies was not “on a\npermanent basis like working for ODPS.”\n\n Despite the long, consistent relationship between ODPS and many of its sworn officers,\nthe district court determined that the work performed by these officers lacked the permanence\nnecessary to establish an employment relationship. Noting that the officers had “other\nemployment and sources of income,” it chose to “[f]ram[e] the issue in terms of whether the\nworkers listed [by the DOL] were ‘economically dependent upon ODPS.’” Thus framed, the\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 10\n\n\ndistrict court found that “the sworn officers were not economically dependent upon ODPS, but\nthe eight [nonsworn workers] who testified to ODPS being their sole source of income were.”\nOn that basis, the district court decided that the permanence factor supported employee status for\nonly the nonsworn workers.\n\n This conclusion was mistaken for two reasons. First, the analysis merged the\npermanence factor with the ultimate question of the workers’ economic dependence on ODPS.\nThe test of a worker’s economic dependence looks to all six of the factors discussed above and\nbelow. The permanence factor, which focuses on the length and consistency of the officers’\nwork, is only one component of that test.\n\n Second, whether a worker has more than one source of income says little about that\nworker’s employment status. Many workers in the modern economy, including employees and\nindependent contractors alike, must routinely seek out more than one source of income to make\nends meet. An income-based rule would deny that economic reality. It would also suffer from\nproblems of practical application. Such a test would, for example, lead to classification of the\nsame worker as an independent contractor during the periods in which she had more than one\nsource of income but then as an employee during the (often brief) periods in between. And as\nthe Fifth Circuit noted in Halferty v. Pulse Drug Co., 821 F.2d 261 (5th Cir. 1987), an income-\nbased test would also mean that certain “wealthy persons could never be employees under the\nFLSA.” Id. at 268. On the other end of the scale, such a rule would risk encouraging employers\nto “avoid liability to workers simply by paying them so low a wage that the workers are forced to\nlive on other sources of income.” Id. That outcome would frustrate the first principles of the\nFLSA, which is designed to ensure that workers earn a fair wage.\n\n To the extent that a worker’s source of income is relevant, it is only so because it speaks\nindirectly to the question of whether the individual works for more than one company. As we\nrecognized in Keller, however, that an individual works for more than one company is only one\nconsideration of many to make “in determining whether a worker is economically dependent\nupon the defendant company.” 781 F.3d at 808. Further, this fact is most relevant when it\nsuggests that a worker tends to “transfer from place to place as particular work is offered to\n[him].” Id. at 807 (citation omitted). In this case, the sworn officers did not bounce from one\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 11\n\n\ncompany to another in search of new work. Although some officers testified that they\noccasionally accepted jobs from other companies, the consistent theme throughout trial was that\nthe officers had two primary sources of employment—their day jobs and their positions at\nODPS. That is not the kind of itinerant work that independent contractors ordinarily perform.\nGiven the length and consistency of the relationship between ODPS and its workers, the\npermanence factor supports employee status for both sworn and nonsworn workers.\n\n 5. Opportunity for Profit or Loss\n\n The next factor asks whether the workers had “opportunities for profit or loss dependent\non [their] managerial skill.” Schultz, 466 F.3d at 307. Courts evaluate this factor by asking if\nworkers “could exercise or hone their managerial skill to increase their pay.” Id. at 308. This\nfactor may favor independent contractor status if, for example, a worker uses his managerial skill\nto “improve his efficiency such that he c[an] complete more” jobs per day. Keller, 781 F.3d at\n813.\n\n The facts do not suggest that ODPS’s workers could “exercise or hone” their managerial\nskills to increase their pay. To begin, workers were not well-positioned to apply these skills\nbecause completion of ODPS’s jobs required limited skill, experience, or initiative. And to the\nextent some skill was required, workers earned a set hourly wage regardless of the skill they\nexercised. In rare cases, ODPS would pay workers per project; but those, too, were flat\npayments that did not depend on the skill applied by the worker.\n\n ODPS maintains that because workers could accept or reject work, they effectively\ncontrolled their opportunities for profit or loss by managing their workload. While the decision\nto accept or reject work is a type of managerial action, the relevant question is whether workers\ncould increase profits through managerial skill. See id. at 812. It requires little skill to determine\nwhether one is available at a certain day and time or whether inclement weather or some other\nfactor might make a job less desirable. And while the ability to control one’s schedule may, in\nsome circumstances, allow more efficient workers to maximize profits, ODPS’s workers had no\nsuch opportunity. ODPS’s assignments required workers to be present for set periods of time,\nregardless of what skills they exercised, so workers could not complete jobs more or less\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 12\n\n\nefficiently than their counterparts. On this basis, the court in Schultz found that workers could\nnot increase profits through managerial skill because “[t]here was no way [workers] could finish\na shift more efficiently or quickly in order to perform additional paid work.” 466 F.3d at 308\n(citation omitted). Likewise, neither sworn nor non-sworn workers appear to have been at risk of\na loss based on their decision to work or not. Decreased pay from working fewer hours does not\nqualify as a loss. See Dole v. Snell, 875 F.2d 802, 810 (10th Cir. 1989) (“A reduction in money\nearned by the [cake] decorators is not a ‘loss’ sufficient to satisfy the criteria for independent\ncontractor status.”).\n\n In these respects, this case is materially different from Karlson v. Action Process Serv.\n& Private Investigations, LLC, 860 F.3d 1089 (8th Cir. 2017), on which ODPS relies. In\nKarlson, the Eighth Circuit upheld a jury’s conclusion that process servers were independent\ncontractors on evidence that the process servers were paid a flat rate for each job, jobs could take\nanywhere from “a few minutes to several hours,” and some jobs had “priority” status. 860 F.3d\nat 1094. As a result, a process server could make a profit by being more efficient and managing\ndifferent assignments. In contrast, the officers here typically earned the same compensation per\nhour regardless of the project and could not make more profit by managing different\ncommitments.\n\n Because ODPS’s workers earned set wages to perform low-skilled jobs for fixed periods\nof time, this factor supports employee status for sworn and nonsworn workers.\n\n 6. Right to Control\n\n The last factor looks to the degree of control exercised by the company over the workers.\nTo guide this evaluation, we ask whether the company “retains the right to dictate the manner” of\nthe worker’s performance. Brandel, 736 F.2d at 1119.\n\n ODPS maintained a “policies and procedures” document stating that a worker’s\nnoncompliance with the policies would “result in immediate termination.” Those policies and\nprocedures addressed: (1) the type and color of uniform that may be worn, (2) vehicle and light\nrequirements, (3) rules for exchanging job assignments with other ODPS workers, and\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 13\n\n\n(4) general rules on workplace presentation and conduct. ODPS also represented to its\ncustomers that it would inspect the work sites and supervise its workers.\n\n ODPS contends that, in practice, it never instituted or exercised such control. It is true\nthat ODPS left some aspects of the workers’ performance to their discretion. Workers had the\nright, for example, to accept or reject assignments. Witnesses also testified that Spurgeon and\nMedieros did not regularly supervise workers’ day-to-day performance. Some sworn officers\ntestified that ODPS rarely, if ever, supervised their work or disciplined them for violating\ncompany policies. And in addition to ODPS’s policies, the workers’ performance depended in\npart on the on-site instructions they received from ODPS’s customers, not just the directions they\nreceived from ODPS.\n\n Several key facts, however, counterbalance this evidence. Although workers could\naccept or reject assignments, multiple workers testified that Spurgeon would discipline them if\nthey declined a job. Workers referred to this as being placed in “time out.” One sworn officer\ntestified that if he declined a job during a phone call with Spurgeon, “[t]he phone would just go\ndead.” These hang-ups signaled more than Spurgeon’s frustration; witnesses testified that\nSpurgeon would then withhold new jobs from that worker for up to a week. The same officer\ntestified, for example, that he would not hear from Spurgeon “for at least three days to a week” if\nhe declined a job. Although he “would call and try to talk to him” during that period, he would\n“never get a response.” Another witness who worked both as a sworn officer and a nonsworn\nworker testified that “it was just pretty much implied” that workers would accept jobs “because,\nyou know, if [they] turned a job down, [they] would get a time out most times.” A third worker\ngave similar testimony. And although workers could choose to stop working for ODPS\naltogether, the non-compete clause in the agreements they signed with ODPS—which prevented\nthem from working for ODPS’s customers for two years after severing ties with ODPS—limited\ntheir ability to do so. In fact, Spurgeon testified that he had sued to enforce these non-compete\nprovisions in the past.\n\n When workers did accept assignments, ODPS set the rate at which the workers were paid.\nODPS would tell the workers where to go for the job, when to arrive, and whom they should\ncontact when they got there. And although the workers followed customers’ instructions at the\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 14\n\n\njob site, they were also periodically supervised by Spurgeon or Medieros. One sworn officer, for\nexample, testified that Spurgeon and Medieros were his “supervisors.” He recalled that\nSpurgeon visited his job site on “maybe three occasions,” and Medieros would visit “once or\ntwice, three times a month maybe, depending on what was going on.” Another worker who\nidentified Medieros as his “supervisor” said that Medieros would instruct him on “basic stuff,”\nlike “how [they were] going to set up” or “where to put [their] cars.” Many other workers\ntestified that Medieros would occasionally check on them. And Medieros admitted at trial that\nhe told a DOL investigator that he was “a supervisor” who went to job sites to “make sure the\nguys [were] doing what they [were] supposed to do.”2\n\n In addition to inspecting job sites, ODPS also required workers to comply with certain\ndress and grooming policies. One sworn officer testified that Medieros visited a job site and “got\non to” him and another officer after he discovered that they were both wearing shorts and that the\nother officer had a goatee. Spurgeon later called the chief of the police department where the\ntwo officers worked and “raised Cain” about the fact that they had arrived at the site wearing\nshorts. Another worker testified that he was told to “shave [his] beard or not come back.” Many\nother witnesses, including Medieros, testified that ODPS did not allow workers to grow beards.\n\n Taking all this evidence into account, the district court correctly found that the control\nfactor supported employee status for the nonsworn workers. But as to the sworn officers, the\ndistrict court determined “that there was more scrutiny exerted over the nonsworn [workers] than\nthe sworn officers” and that the testimony of the “sworn officers tended to indicate that they\nwere not supervised closely and not reprimanded or disciplined.” The five sworn officers called\nby ODPS testified that they were rarely if ever supervised or disciplined by ODPS; on the other\nhand, the three sworn officers called by the DOL testified that they were repeatedly supervised\nand/or disciplined. In what amounted to a credibility contest between the parties’ witnesses, it\nwas not clear error for the district court to conclude that the sworn officers received less\nsupervision and discipline than the nonsworn workers or that the sworn officers on the whole\nwere not supervised closely.\n\n 2Medieros additionally testified that calling himself a supervisor was “not a good choice of words” and that\nhe had “self-generated” the title.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 15\n\n\n Even accepting that factual finding, however, this factor does not clearly support\nindependent contractor status for ODPS’s sworn officers. Although ODPS did not supervise the\nday-to-day performance of its workers, such close supervision is not necessary to establish\ncontrol. See, e.g., Superior Care, 840 F.2d at 1060 (finding employer exercised necessary\ncontrol when it visited job sites “once or twice a month” and “unequivocally expressed the right\nto supervise” workers’ performance and noting that “[a]n employer does not need to look over\nhis workers’ shoulders every day in order to exercise control” (citation omitted)). Further, the\nlevel of supervision necessary in a given case is in part a function of the skills required to\ncomplete the work at issue. The routine traffic and security work performed by ODPS’s sworn\nofficers, which often involved sitting in a car for hours at a time, did not require more than\nperiodic supervision. As we noted in Peno Trucking, Inc. v. Commissioner of Internal Revenue,\n“[t]he absence of need to control should not be confused with the absence of right to control,”\nand the actual exercise of control “requires only such supervision as the nature of the work\nrequires.”3 296 F. App’x 449, 456 (6th Cir. 2008) (internal quotation marks omitted) (quoting\nMcGuire v. United States, 349 F.2d 644, 646 (9th Cir. 1965)); see also Brandel, 736 F.2d at 1119\n(noting that the control test asks whether a company “retains the right to dictate the manner in\nwhich the” worker performs (emphasis added)); Keller, 781 F.3d at 815 (finding that a fact issue\nexisted under the FLSA about whether a company “had the power to discipline and control” its\nworkers (emphasis added)). In this case, ODPS had a limited need to exercise its power to\nsupervise the sworn officers, who already had far more experience and training than necessary to\nperform the work assigned.\n\n These facts do not break cleanly in favor of employee or independent contractor status for\nODPS’s sworn officers. Although routine supervision was unnecessary in this context, the\ntestimony of some sworn officers indicated that ODPS’s supervision fell short under even the\nmost liberal interpretation of the control test. While some sworn officers testified that ODPS\n\n 3The court in Peno Trucking considered the control test in the context of the United States Tax Court’s\nclassification of workers as employees under provisions of the Internal Revenue Code. 296 Fed. App’x at 455. The\ntest in this case calls for at least as expansive a definition of control. Cf. Keller, 781 F.3d at 804 (describing the\ndefinition of “employee” under the FLSA as “strikingly broad” (citation omitted)); see also Donovan v.\nDialAmerica Mktg., Inc., 757 F.2d 1376, 1382 (3d Cir. 1985) (“Congress and the courts have both recognized that,\nof all the acts of social legislation, the Fair Labor Standards Act has the broadest definition of ‘employee.’”\n(citations omitted)).\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 16\n\n\nperiodically supervised and disciplined them, others said that supervision and discipline were\nrare and, in some cases, non-existent. And while some sworn officers testified that they were\npunished for declining work, others said they were not. In view of these inconsistencies, the\nevidence does not readily favor either party’s position with respect to the sworn officers.\n\n 7. Balancing the Factors\n\n For the reasons explained above, five of the six economic-reality factors support finding\nan employment relationship between ODPS and all its workers. The record shows that ODPS’s\nworkers were an integral part of ODPS’s business, that they performed low-skilled jobs at a set\nrate of pay for fixed periods of time, that they overall made limited investments in specialized\nequipment, and that they worked for ODPS consistently over the course of many years. The\nremaining factor—ODPS’s right to control its workers’ performance—favors employee status\nfor the nonsworn workers and, in the case of the sworn officers, is evenly balanced in support of\nboth parties’ positions.\n\n The weight of these factors must be balanced in light of the FLSA’s “strikingly broad”\ndefinition of “employee.” Keller, 781 F.3d at 804 (citation omitted). In this balancing, we\nremain mindful of the Supreme Court’s instruction to avoid “a ‘narrow, grudging’ interpretation\nof the FLSA” and “to remember its ‘remedial and humanitarian’ purpose.” Monroe v. FTS USA,\nLLC, 860 F.3d 389, 403 (6th Cir. 2017) (citations omitted). To accomplish that purpose, the test\nmust account for the full range of factors relevant to a worker’s employment status. Taking all\nthese factors into consideration with an eye on the ultimate question of economic dependence,\nODPS’s workers, both sworn and nonsworn, were employees entitled to overtime wages under\nthe FLSA.\n\nB. Recordkeeping Requirements\n\n Next, the DOL appeals the district court’s conclusion that ODPS did not violate the\nFLSA’s recordkeeping requirements. Under § 29 U.S.C. 211(c), employers must “make, keep,\nand preserve such records of the persons employed by [them] and of the wages, hours, and other\nconditions and practices of employment maintained by [them] . . . as necessary or appropriate for\nthe enforcement of the provisions of” the FLSA. At trial, the DOL’s investigator testified that\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 17\n\n\nmany records of the hours worked by ODPS’s employees were either missing, inaccurate, or\nincomplete. Spurgeon admitted that some of ODPS’s records were inaccurate or incomplete.4\nAnd the district court agreed that ODPS had failed to maintain accurate and complete records.\nThe post-trial decision, however, held that ODPS had not violated the FLSA’s recordkeeping\nrequirements because the evidence did not show that ODPS had “knowingly failed to maintain\naccurate records.”\n\n Section 211(c) does not contain a knowledge requirement. Another provision, 29 U.S.C.\n§ 215(a)(5), does make it unlawful to:\n\n . . . violate any of the provisions of section 211(c) of this title, or any regulation or\n order made or continued in effect under the provisions of section 211(d) of this\n title, or to make any statement, report, or record filed or kept pursuant to the\n provisions of such section or of any regulation or order thereunder, knowing such\n statement, report, or record to be false in a material respect.\n\nThis provision does proscribe “knowing[ly]” making false statements in employment records.\nBut that knowledge requirement applies only to an employer’s material misrepresentation in a\n“statement, report, or record.” To violate § 211(c), by contrast, an employer could (as ODPS did\nhere) fail to maintain certain records at all or fail to preserve them properly. And by its plain\nterms, § 215(a)(5) makes it unlawful “to violate any of the provisions of section 211(c) . . . or to\nmake any statement, report, or record . . . knowing such statement, report, or record to be false in\na material respect.” (emphasis added). The statute thus makes it unlawful both to fail to make,\nkeep, or preserve records under § 211(c) or to make those records with the knowledge that they\nare false. That the statute expressly imposes a knowledge requirement for only the latter\nviolation suggests that violations of the former do not carry the same requirement. See, e.g., S.\nRehab. Grp., P.L.L.C. v. Burwell, 683 F. App’x 354, 363 (6th Cir. 2017) (“[W]hen the legislature\nuses certain language in one part of the statute and different language in another, the court\n\n\n 4On appeal, ODPS briefly argues (without citation) that “ODPS has met the recordkeeping requirement by\nmaintaining time records in the form of the invoices that officers submitted in order to receive payment for services\nprovided.” Apart from this unsupported sentence, ODPS makes no effort to explain why these invoices were\nsufficient or to refute the trial testimony demonstrating that ODPS’s records were often missing, inaccurate, or\nincomplete. Without more, this argument is forfeited. See, e.g., Hensley v. Gassman, 693 F.3d 681, 688 (6th Cir.\n2012) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are\ndeemed [forfeited].” (citation omitted)).\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 18\n\n\nassumes different meanings were intended.” (internal quotation marks omitted) (quoting\nDePierre v. United States, 564 U.S. 70, 83 (2011)).5 This is also consistent with the well-\nestablished principle that “it is the employer who has the duty under [the FLSA] to keep proper\nrecords of wages, hours and other conditions and practices of employment and who is in position\nto know and to produce the most probative facts concerning the nature and amount of work\nperformed.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). We therefore\nvacate the district court’s determination that ODPS did not violate § 211(c) and remand for\nproceedings consistent with this opinion.6 On remand, the district court shall reconsider the\nDOL’s request for injunctive relief and, as necessary, exercise its discretion under 28 U.S.C.\n§ 217.\n\nC. Back Wages Calculation\n\n Finally, ODPS challenges the district court’s calculation of back wages owed by ODPS to\nthree workers. Due to ODPS’s inadequate recordkeeping, these calculations were based in part\non inaccurate or incomplete records. In cases where an “employer’s records are inaccurate or\ninadequate . . . an employee has carried out his burden if he proves that he has in fact performed\nwork for which he was improperly compensated and if he produces sufficient evidence to show\nthe amount and extent of that work as a matter of just and reasonable inference.” U.S. Dep’t of\nLabor v. Cole Enterprises, Inc., 62 F.3d 775, 779 (6th Cir. 1995) (quoting Mt. Clemens, 328 U.S.\nat 687). Once the employee makes this showing, “[t]he burden then shifts to the employer to\ncome forward with evidence of the precise amount of work performed or with evidence to\nnegative the reasonableness of the inference to be drawn from the employee’s evidence.” Id.\n\n 5District courts examining § 211(c) have also found that it does not carry a knowledge requirement. See,\ne.g., Perez v. Oak Grove Cinemas, Inc., 68 F. Supp. 3d 1234, 1246 (D. Or. 2014) (holding that lack of intent “is not\na defense to a recordkeeping violation” under the FLSA (citation omitted)); Nieddu v. Lifetime Fitness, Inc., 38 F.\nSupp. 3d 849, 864–65 (S.D. Tex. 2014) (rejecting claim that employees bear the burden of keeping accurate records\nand noting that “[t]he obligation [to pay overtime under the FLSA] is the employer’s and it is absolute,” and the\nemployer “cannot discharge it by attempting to transfer his statutory burdens of accurate record keeping” (internal\nquotation marks omitted) (quoting Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959)); Solis v.\nSCA Rest. Corp., 938 F. Supp. 2d 380, 398 (E.D.N.Y. 2013) (finding that a “failure to make, keep, and preserve\nadequate and accurate records” under the FLSA is “a per se violation of the Act”).\n 6\n We further note that the district court elsewhere properly considered ODPS’s willfulness (or lack thereof)\nin violating the FLSA, concluding that the two-year rather than three-year statute of limitations applied because\nthere was insufficient evidence that ODPS’s violations were willful.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 19\n\n\n In this case, ODPS appeals the district court’s calculation of back wages owed by ODPS\nto Frank Medieros, Steven Newman, and Jason Petra. We address the damages owed to each\nworker in turn.\n\n 1. Frank Medieros\n\n The district court calculated the back wages owed to Medieros in the same way it\ncalculated the back wages owed to other nonsworn workers—by dividing the amount he was\npaid by his hourly rate. ODPS argues that the district court should have used a different method\nto calculate Medieros’s back wages because of the “unique factors regarding [his] varying\nservices provided to ODPS customers, and the unique nature of his compensation.” In addition\nto working as a security guard and traffic controller, Medieros also helped ODPS schedule other\nworkers’ assignments and recruited new customers to the business. For scheduling another\nworker on a job, Medieros received one dollar for every hour of service performed by the worker\non that job; for recruiting a new customer, he received ten percent of the profits generated by that\ncustomer.\n\n ODPS does not argue that Medieros’s scheduling or recruiting work or additional forms\nof compensation are exempt from the FLSA’s overtime requirements. Instead, ODPS claims that\nthe district court should have used some unspecified alternative method of calculating\nMedieros’s total hours and compensation to account for his varied work responsibilities. In its\nbriefing in the district court, ODPS announced that “[b]ased on relevant records,” Medieros\n“only had a single week in which he provided services to an ODPS customer for more than 40\nhours in a week.” But ODPS provided no citation to these “relevant records,” which in any\nevent do not address Medieros’s other work activities,7 nor has it proposed any alternative\nmethod of calculating Medieros’s back wages on appeal.\n\n ODPS insists that it has no obligation “to ‘adequately explain’ its proposed damages\ncalculations.” Citing Mt. Clemens, ODPS claims that its only burden is to “negate the\nreasonableness” of the DOL’s proposed calculation, not to offer a reasonable alternative. But\n\n 7In his interview with the DOL investigator, which was memorialized in a personal interview statement\nadmitted into evidence, Medieros reported that he worked an average of 50 hours per week.\n\fNos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 20\n\n\nthis argument misses the point. The reasonableness of the DOL’s proposed calculation depends\nin part on the availability of other, more reasonable alternatives to that proposal. The fact that\nODPS cannot identify any reasonable alternative to the DOL’s calculation is highly probative of\nwhether the DOL’s proposed method is reasonable. And more importantly, to the extent that the\nDOL’s calculation provides only a rough estimate of the back wages owed to Medieros, that\nimprecision is a result of ODPS’s failure to keep accurate and complete records. Courts will not\npunish employees for their employer’s failure to comply with the FLSA’s recordkeeping\nrequirements. “Disapproving of an estimated-average approach simply due to lack of complete\naccuracy would ignore the central tenant of Mt. Clemens—an inaccuracy in damages should not\nbar recovery for violations of the FLSA or penalize employees for an employer’s failure to keep\nadequate records.” Monroe, 860 F.3d at 412. Although the calculation adopted by the district\ncourt may be imprecise, it is the best method available in light of ODPS’s failure to maintain\naccurate and complete records. We therefore affirm the district court’s calculation.\n\n 2. Steven Newman and Jason Petra\n\n ODPS also contends that Newman and Petra should not have received overtime wages\nfor work performed during the periods in which they were sworn officers. This argument\ndepends on the conclusion that only ODPS’s nonsworn workers were employees entitled to\novertime wages. Because we reject that premise, Newman’s and Petra’s status as sworn or\nnonsworn is irrelevant to the proper calculation of back wages. The district court’s calculation\ndid not attempt to distinguish between the periods in which Newman and Petra were sworn or\nnonsworn, and we find no cause to disturb its original calculation.\n\n III. CONCLUSION\n\n For the foregoing reasons, we AFFIRM the district court’s (1) conclusion that ODPS’s\nnonsworn workers were employees under the FLSA and (2) calculation of back wages owed by\nODPS to its nonsworn workers, and we REVERSE the district court’s (3) decision that ODPS’s\nsworn officers were independent contractors under the FLSA and (4) determination that ODPS\ndid not violate the FLSA’s recordkeeping requirements. We REMAND for further proceedings\nconsistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367046/", "author_raw": "JANE B. STRANCH, Circuit Judge"}]}	GUY	WHITE	STRANCH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589793/	Published	1	0	0	2,019	2	[ { "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...
4,589,795	James BENJAMIN, AS TRUSTEE OF the REBEKAH C. BENJAMIN TRUST; Rebekah C. Benjamin Trust, Plaintiffs-Appellants, Jones Family Trust; Bobby Jones, Trustee; Sylvia Jones, Trustee, Intervenors-Appellants, v. John STEMPLE and Janet Santos, in Their Official and Individual Capacities, Defendants-Appellees.	James Benjamin v. John Stemple	2019-02-12	18-1736	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Sutton, Griffin, Larsen", "parties": "", "opinions": [{"author": "SUTTON, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0020p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n JAMES BENJAMIN, as Trustee of the Rebekah C. ┐\n Benjamin Trust; REBEKAH C. BENJAMIN TRUST, │\n Plaintiffs-Appellants, │\n │\n │\n JONES FAMILY TRUST; BOBBY JONES, Trustee; SYLVIA > No. 18-1736\n JONES, Trustee, │\n Intervenors-Appellants, │\n │\n v. │\n │\n JOHN STEMPLE and JANET SANTOS, in their official and │\n individual capacities, │\n Defendants-Appellees. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Bay City.\n No. 1:18-cv-10849—Thomas L. Ludington, District Judge.\n\n Argued: January 30, 2019\n\n Decided and Filed: February 12, 2019\n\n Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for\nAppellants. Robert A. Jordan, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for\nAppellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock,\nMichigan, for Appellants. Brett Meyer, O’NEILL, WALLACE & DOYLE, P.C., Saginaw,\nMichigan, for Appellees.\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n SUTTON, Circuit Judge. Most cities in America regulate vacant properties and the risks\nto the public health and safety that come with them. Saginaw is no different. Located in eastern\nMichigan, the city requires owners of vacant property to register their property with the city.\nThe registration form says that owners must permit the city to enter their property if it “becomes\ndangerous as defined by the City of Saginaw Dangerous Building Ordinance.” R. 9-4 at 1.\nSeveral owners of vacant property refused to register. Claiming they had no obligation to\nconsent to unconstitutional searches of their property, they filed this lawsuit. Because the\nregistration form and the ordinance, as implemented by the city, ask for something that the\nFourth (and Fourteenth) Amendment already allows—a warrantless search of a building found to\nbe dangerous—we affirm.\n\n I.\n\n The Rebekah C. Benjamin Trust owns vacant properties in Saginaw. James Benjamin is\nits trustee. The Saginaw law, formally known as the Unsupervised Properties Ordinance,\nrequires owners of vacant properties to register with the city clerk. Saginaw, Mich., Code of\nOrdinances § 151.099(B) (2016). The registration form requires the property owner to “agree\nthat in the event my property becomes dangerous as defined by the City of Saginaw Dangerous\nBuilding Ordinance, State Law, or the City of Saginaw Housing Code, I give permission for the\nCity, its agents, employees, or representatives, to enter and board the premises or do whatever\nnecessary to make the property secure and safe.” R. 9-4 at 1.\n\n The city fined the trust for breaching the registration requirement. Saginaw, Mich., Code\nof Ordinances § 151.100(B). Benjamin sued John Stemple, Saginaw’s chief inspector, and Janet\nSantos, the city clerk, on behalf of a potential class of owners of vacant properties for violating\nthe owners’ rights under the Fourth Amendment by imposing an unconstitutional condition on\nregistration. Benjamin added a request for a preliminary injunction for good measure. Bobby\nand Sylvia Jones, whose trust also owns unoccupied property in Saginaw, intervened in the case.\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 3\n\n\n The district court granted the city officials’ motion to dismiss the complaint and denied\nthe motion for a preliminary injunction. The property owners appealed each ruling.\n\n II.\n\n What looks like a complex unconstitutional conditions claim is a straightforward Fourth\nAmendment claim. The property owners refused to sign the registration form on the ground that\nit requires them to consent to a future search of their unoccupied properties if the city finds them\ndangerous. In this way, they say, the ordinance imposes an unconstitutional condition on\nregistering their properties. But that argument works, or at least begins to work, only if the\nrequired consent surrenders cognizable Fourth Amendment rights.\n\n Think of it this way. What if the city, as a condition of registering unoccupied properties,\nhad asked the owners to consent in the future to submit to a stop and frisk if there were\nreasonable suspicion they had committed a crime and were armed and dangerous, see Terry v.\nOhio, 392 U.S. 1, 30 (1968), or submit to an arrest if the frisk established probable cause they\nhad committed a crime, see Adams v. Williams, 407 U.S. 143, 148 (1972), or submit to a search\nincident to their arrest, see Chimel v. California, 395 U.S. 752, 763 (1969)? No one would tarry\nlong over an unconstitutional conditions claim in these settings. That’s because the consent form\nasked them to waive rights they do not have, as law enforcement officers may do each of these\nthings with or without consent. In the absence of a constitutional right to resist searches in each\nof these settings, the consent form becomes a run-of-the-mine exercise of the city’s police power.\n\n What matters, then, is whether the property owners have a cognizable Fourth Amendment\nright to resist warrantless searches premised on a finding that their properties have become\ndangerous. They do not.\n\n The Fourth Amendment protects the people’s right “to be secure in their persons, houses,\npapers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.\nReasonableness is the key, the existence of a warrant often its measure. A warrantless search of\na home or business is presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011).\nBut that rule comes with exceptions. One exception applies when the warrant requirement is\nimpracticable and the “primary purpose” of the search is “[d]istinguishable from the general\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 4\n\n\ninterest in crime control.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (quotation\nomitted). Included in this exception are searches of probationers’ homes, Griffin v. Wisconsin,\n483 U.S. 868, 873 (1987), of highly regulated businesses, New York v. Burger, 482 U.S. 691,\n699–703 (1987), of public employees’ work equipment, City of Ontario v. Quon, 560 U.S. 746,\n760–61 (2010), of students’ property by school officials, New Jersey v. T.L.O., 469 U.S. 325,\n337–42 (1985), and of the body cavities of prison inmates, Bell v. Wolfish, 441 U.S. 520, 558–60\n(1979). Also included in this exception are administrative searches designed to assure\ncompliance with building codes, including codes designed to prevent buildings from becoming\ndangerous to tenants or neighbors. See Patel, 135 S. Ct. at 2452 (citing Camara v. Mun. Court,\n387 U.S. 523, 534 (1967)).\n\n Although the administrative-search exception to the warrant requirement exempts law\nenforcement officers from some procedural hurdles, it does not exempt them from all of them.\nBefore conducting a warrantless search of a building or property on the ground that it has\nbecome dangerous, the government must give the owner “an opportunity to obtain\nprecompliance review before a neutral decisionmaker.” Id. The administrative scheme must\ngive the property owner the chance to challenge a warrantless search request before being\nsanctioned for refusing entry. See Liberty Coins, LLC v. Goodman, 880 F.3d 274, 280 (6th Cir.\n2018). Although the Supreme Court “has never attempted to prescribe the exact form an\nopportunity for precompliance review must take,” Patel, 135 S. Ct. at 2452, the review scheme at\na minimum must give the property owner a meaningful chance to contest an administrative-\nsearch request in front of a neutral party before the search occurs, see Liberty Coins, LLC,\n880 F.3d at 280.\n\n Gauged by these requirements, Saginaw’s consent form does not waive any cognizable\nFourth Amendment rights. To register unoccupied property, owners must consent to the city\nentering their property if it “becomes dangerous as defined by the City of Saginaw Dangerous\nBuilding Ordinance, State Law, or the City of Saginaw Housing Code.” R. 9-4 at 1. Under the\nordinance, a building is not dangerous until a formal administrative process establishes that to be\nthe case. The process kicks off when someone reports to the chief inspector that a building is\nunsafe or damaged. Saginaw, Mich., Code of Ordinances § 151.113. If the inspector initially\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 5\n\n\nfinds the building dangerous, he “shall commence proceedings to cause the alteration, repair or\nrehabilitation, or the demolition and removal of the building.” Id.\n\n The ordinance clarifies that an inspector’s dangerousness finding is preliminary and\ntriggers a hearing on the point. Only after the hearing process may anyone definitively find that\n“the building or structure is a dangerous building.” Id. § 151.114(A)(1). The hearing officer\nmust render “a decision either closing the proceedings or determining that the building is a\ndangerous building.” Id. § 151.115(H). The city does not deem a building “dangerous as\ndefined by the City of Saginaw Dangerous Building Ordinance” until the officer makes that\nfinding at the end of the hearing. R. 9-4 at 1.\n\n The hearing has many fairness guarantees. After the inspector makes a preliminary\ndetermination that a building is dangerous, he issues a notice to the owner of the building with\nthe time and place of the hearing. Saginaw, Mich., Code of Ordinances § 151.114(A)(1). The\nmayor appoints the hearing officer, who cannot be a city employee. Id. § 151.115(A). At the\nhearing, the officer takes testimony from the inspector and property owner, id. § 151.115(D)(1),\nand each party has the right to call and examine witnesses, introduce physical evidence, conduct\ncross-examination, and have representation, id. § 151.115(E). After the hearing, the officer\ndecides whether the building is dangerous. Id. § 151.115(H). If it is, the officer orders the\nbuilding to be demolished or made safe. Id. If the owner fails to appear or to comply with the\norder, the hearing officer files a report with the Housing Board of Appeals. Id. § 151.117(A).\nThe Board sets a date for another hearing at which the owner has “the opportunity to show cause\nwhy the order should not be enforced.” Id. § 151.117(B). If the Board approves the order, the\ninspector must “take all necessary action to enforce the order.” Id. § 151.117(C). Even then, the\nowner has the right to seek judicial review of the Board’s decision. Id. § 151.118.\n\n All of this satisfies Patel’s “minimal requirement” of “precompliance review before a\nneutral decisionmaker,” 135 S. Ct. at 2452, giving the owner all that the Fourth Amendment asks\nof the city. Because the registration form requires the property owner to allow entrance to his\nproperty only after a fair administrative process determines the building is dangerous, it does not\nrequire the waiver of any Fourth Amendment rights.\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 6\n\n\n The property owners resist this conclusion on several grounds. They first challenge this\nconstruction of the registration form. As they read it, the form allows the city to enter property\nimmediately after the chief inspector initially concludes that the building is dangerous. But the\nordinance explains that the inspector’s finding that a building is dangerous is a preliminary\ndetermination. Until the hearing officer finally decides that “the building is a dangerous\nbuilding,” it is not, and thus no one may enter the property under the form. Saginaw, Mich.,\nCode of Ordinances § 151.115(H).\n\n That can’t be, the property owners respond; else the grant of permission would add\nnothing beyond what is already in the ordinance. Exactly so. Nor is this unusual. There’s\nnothing surprising about a municipality in our litigious age that tries to minimize the risk of a\nlawsuit—even if it cannot eliminate that risk, see infra—by alerting property owners to their\nlegal responsibilities and asking the owners to accept them ahead of time. Even if the form were\nambiguous about when a building becomes dangerous by the way, we would interpret it in this\nmanner—to sidestep unconstitutional trespasses rather than to create them. Cf. Edward J.\nDeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).\n\n The owners add that the form might allow city employees to enter their property without\nany administrative process under a provision of state law that empowers fire department officers\nto determine if a dangerous condition exists on property. See Mich. Comp. Laws § 29.7a(1).\nBut that law applies only to “emergency condition[s] dangerous to persons or property,” id., and\nsuch an emergency would constitute an exigent circumstance justifying warrantless entry even\nwithout the form, see Michigan v. Tyler, 436 U.S. 499, 509 (1978); People v. Slaughter, 803\nN.W.2d 171, 181 n.37 (Mich. 2011). That may explain why the owners did not raise this\nargument until their reply brief in this appeal, which means it is forfeited anyway. Sanborn v.\nParker, 629 F.3d 554, 579 (6th Cir. 2010).\n\n Even if the registration form permits entry only at the end of the hearing process, the\nowners claim that the process has constitutional problems of its own. One, they say, is that the\nordinance does not require the inspector to obtain a judicial warrant. But administrative searches\nlike this one fall into an “exception to the warrant requirement,” Patel, 135 S. Ct. at 2452, and\nSaginaw’s adversarial hearing system at any rate provides far more protection to the property and\n\f No. 18-1736 Benjamin et al. v. Stemple et al. Page 7\n\n\nprivacy rights of owners than a one-sided warrant process ever could. Another problem, they\nsay, is that the ordinance fails to provide neutral criteria to guide the hearing officer’s decision\nmaking. But Patel says that the Fourth Amendment requires only “precompliance review before\na neutral decisionmaker.” Id. A third problem, they say, is that the ordinance does not authorize\nthe hearing officer to issue a subpoena or other document to the inspector that explicitly permits\nhim to search the owner’s property. But Patel acknowledges that “administrative subpoenas are\nonly one way in which an opportunity for precompliance review can be made available.” Id. at\n2454. Once the hearing officer determines that a building is dangerous, he issues an order\ndirecting the property owner to fix the problem. Saginaw, Mich., Code of Ordinances\n§ 151.115(H). If the owner fails to comply, the ordinance directs the inspector to “take all\nnecessary action to enforce the order,” and gives the owner a right to appeal. Id. §§ 151.117(C),\n151.118. The hearing process and the ordinance together put the property owner on notice that\nthe inspector will enter his property to remediate the dangerous condition, making any additional\ndocumentary requirement superfluous. All in all, the hearing process provides adequate\nprecompliance review for an administrative search.\n\n Because the district court properly dismissed the owners’ complaint for failure to state a\nclaim, it follows that it properly rejected the motion for a preliminary injunction. Failure of the\none establishes dim prospects of success for the other. See McGirr v. Rehme, 891 F.3d 603, 610\n(6th Cir. 2018).\n\n We affirm.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367048/", "author_raw": "SUTTON, Circuit Judge"}]}	SUTTON	GRIFFIN	LARSEN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589795/	Published	1	0	0	2,019	2	[ { "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...
4,590,686	Yaqob Tafan THOMAS, Petitioner-Appellant, v. Joseph P. MEKO, Warden, Respondent-Appellee.	Yaqob Thomas v. Joseph Meko	2019-02-14	17-5824	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Cole, Griffin, Kethledge", "parties": "", "opinions": [{"author": "KETHLEDGE, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0021p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n YAQOB TAFAN THOMAS, ┐\n Petitioner-Appellant, │\n │\n > No. 17-5824\n v. │\n │\n │\n JOSEPH P. MEKO, Warden, │\n Respondent-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Kentucky at Lexington.\n No. 5:11-cv-00148—William O. Bertelsman, District Judge.\n\n Argued: December 6, 2018\n\n Decided and Filed: February 14, 2019\n\n Before: COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Kevin M. Lamb, WILMER CUTLER PICKERING HALE AND DORR LLP,\nWashington, D.C., for Appellant. James C. Shackelford, OFFICE OF THE ATTORNEY\nGENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON BRIEF: Kevin M.\nLamb, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for\nAppellant. James C. Shackelford, OFFICE OF THE ATTORNEY GENERAL OF\nKENTUCKY, Frankfort, Kentucky, for Appellee.\n _________________\n\n OPINION\n _________________\n\n KETHLEDGE, Circuit Judge. Yaqob Thomas was convicted of murder in Kentucky\nstate court. He now seeks federal habeas relief, arguing that the Kentucky definition of murder\n\f No. 17-5824 Thomas v. Meko Page 2\n\n\nviolates due process because it prescribes two mental states—intent to kill and extreme\nindifference to human life—as alternative means for the mens rea element of that offense. The\ndistrict court rejected that argument, and so do we.\n\n I.\n\n In 2002, Thomas and Gregory Baltimore arranged to buy cocaine from Dionte Burdette at\na Waffle House in Lexington, Kentucky. The three men ate a meal and then got into Burdette’s\ncar, with Thomas in the back seat and the others up front. Soon Thomas grabbed Burdette from\nbehind, held a gun to his head, and demanded the cocaine. When Burdette refused, Thomas shot\nhim in the leg. Burdette then said the cocaine was across the street with his partner. Thomas\nshot Burdette three more times, after which both Thomas and Baltimore fled from the scene.\nBurdette died soon afterward.\n\n Thomas was thereafter charged with murder, and a jury found him guilty. The trial court\nsentenced him to 40 years’ imprisonment. The Kentucky Court of Appeals affirmed, and the\nKentucky courts otherwise denied post-conviction relief.\n\n Thomas later filed a petition for a writ of habeas corpus in the district court. Among his\nclaims was that his appellate counsel had been ineffective for failing to challenge the trial court’s\ninstruction to the jury on the murder charge. The district court found the petition untimely, but\nwe reversed. On remand, the district court rejected Thomas’s claims on the merits. This appeal\nfollowed.\n\n II.\n\n Thomas’s only claim here is that his appellate counsel was ineffective for failing to argue\nthat one of the trial court’s jury instructions had violated due process. We review the district\ncourt’s denial of relief on that claim de novo. See Babick v. Berghuis, 620 F.3d 571, 576 (6th\nCir. 2010). The State argues that Thomas’s claim is procedurally defaulted, but we cut to the\nmerits because an analysis of cause and prejudice would only complicate this case. See Storey v.\nVasbinder, 657 F.3d 372, 380 (6th Cir. 2011).\n\f No. 17-5824 Thomas v. Meko Page 3\n\n\n The instruction at issue concerned the mental state required to commit murder. Kentucky\nlaw recites two mental states—intent to kill and extreme indifference to human life—as\nalternative means that satisfy the element of mens rea for murder. See Craft v. Commonwealth,\n483 S.W.3d 837, 841-42 (Ky. 2016); KRS § 507.020. That recitation is unremarkable:\n“legislatures frequently enumerate alternate means of committing a crime.” Schad v. Arizona,\n501 U.S. 624, 636 (1991) (plurality opinion). Accordingly, the trial court instructed the jury that\nit could convict Thomas of murder if it found that Thomas had possessed either of the alternative\nmental states (intent to kill or extreme indifference to human life) that satisfied the element of\nmens rea for murder.\n\n When a statute specifies alternative means for satisfying a single element of an offense,\nthe jury need not agree upon or even specify which of those means the defendant employed. See\nMathis v. United States, 136 S. Ct. 2243, 2249 (2016). Thus, if a statute required use of a\n“deadly weapon” as an element of a crime, and further provided that “use of a ‘knife, gun, bat, or\nsimilar weapon’” would qualify, then a “jury could convict even if some jurors ‘concluded that\nthe defendant used a knife while others concluded he used a gun’”—so long as they all agreed\nthat the element was met. Id. (brackets omitted). Accordingly, the trial court here did not\ninstruct the jury that it needed to agree unanimously as to which of the two alternative mental\nstates Thomas had possessed.\n\n Thomas’s claim therefore is not really an instructional one; instead his real complaint lies\nwith the Kentucky legislature’s definition of murder. Specifically, Thomas says the definition\nviolated due process to the extent it treated intent to kill and extreme indifference to human life\nas alternative means for the mens rea element of murder. That complaint faces significant\nconstitutional headwinds: a legislature’s decision to treat certain facts (here, certain states of\nmind) as alternative means to satisfy a single element—as opposed to separate elements for\nseparate crimes—is a “value choice[] more appropriately made in the first instance by a\nlegislature than by a court.” Schad, 501 U.S. at 638 (plurality opinion). Yet those value choices\nare subject to “the constitutional bounds of fundamental fairness and rationality.” Id. at 645. To\ndetermine whether the Kentucky legislature passed those bounds here, we consider history, the\npractice of other states, and whether the means are reasonably similar in moral culpability.\n\f No. 17-5824 Thomas v. Meko Page 4\n\n\nSee id. at 637 (plurality). In doing so, however, we recognize “a threshold presumption of\nlegislative competence to determine the appropriate relationship between means and ends in\ndefining the elements of a crime.” Id. at 637-38.\n\n The Kentucky legislature acted well within constitutional bounds here. The traditional\ncommon-law definition of murder included—as alternatives for the element of mens rea—the\nequivalents of intent to kill and extreme indifference to human life. See id. at 648 (Scalia, J.,\nconcurring); see also LaFave, 2 Subst. Crim. L. § 14.1 (3d ed.). And many reasonable minds—\nincluding Blackstone and the drafters of the Model Penal Code—have viewed intent to kill and\nextreme indifference to human life as equally culpable mental states. 4 W. Blackstone,\nCommentaries 198-200; Model Penal Code § 210.2 (“criminal homicide constitutes murder\nwhen . . . it is committed purposely or knowingly . . . [or] it is committed recklessly under\ncircumstances manifesting extreme indifference to the value of human life”). Indeed the reason\nthat the plurality in Schad recognized felony murder as reasonably equivalent to premeditated\nmurder is that the felony murderer may be “utterly indifferent to the fact that the desire to rob\nmay have the unintended consequence of killing the victim[.]” Schad, 501 U.S. at 644 (internal\nquotation marks omitted); see also Tison v. Arizona, 481 U.S. 137, 157 (1987) (same). What\nmatters for purposes of culpability, then, is the indifference, not the concomitant felony. The\nalternative means of “extreme indifference” was therefore constitutional here.\n\n Thomas contends the Kentucky definition of murder is irrational nonetheless, because\nmost other states treat extreme indifference to human life as grounds for second-degree murder,\nnot first. But the Constitution does not mandate adoption of a Uniform Penal Code. See Martin\nv. Ohio, 480 U.S. 228, 236 (1987) (the constitutionality of a state’s criminal law is not\ndetermined “by cataloging the practices of other states”); Patterson v. New York, 432 U.S. 197,\n210-11 (1977) (same). And here, for the reasons stated above, the Kentucky definition of murder\nstands on solid historical and moral ground.\n\n Thomas’s remaining arguments are insubstantial. Thomas says that Kentucky’s\ndefinition of murder is irrational because, he says, intent to kill and extreme indifference to\nhuman life are mutually exclusive mental states. But that hardly matters; due process does not\nrequire the jurors’ findings as to alternative means for an element to be factually consistent with\n\f No. 17-5824 Thomas v. Meko Page 5\n\n\neach other. See Mathis, 136 S. Ct. at 2249; Schad, 501 U.S. at 649-50 (Scalia, J., concurring).\nThomas also says that Kentucky’s definition made the prosecution’s burden of proof at trial too\neasy, by allowing the jury to choose between two mental states rather than one. But the same\nwas true in Schad—or (more generally) in any case where a criminal statute prescribes\nalternative means for a single element. See, e.g., Mathis, 136 S. Ct. at 2249. Thomas further\ncontends that, if the jury had been forced to agree upon a single mental state, the jury might have\ndeliberated longer than it did—in which case, he says, it might have convicted him only of some\nlesser offense. But due process ensures minimum “procedural safeguards,” not maximum jury\ndeliberation. See Patterson, 432 U.S. at 210.\n\n Finally, Thomas argues that Kentucky’s definition of murder violates the rule that “any\nfact that increases the penalty for a crime beyond the prescribed statutory maximum must be\nsubmitted to a jury, and proved beyond a reasonable doubt.” See Apprendi v. New Jersey, 530\nU.S. 466, 490 (2000). But the fact that the jury needed to find here was that Thomas either\nintended to kill his victim or possessed extreme indifference as to whether he killed him. See,\ne.g., Gribbins v. Commonwealth, 483 S.W.3d 370, 376-77 (Ky. 2016). The jury made that\nfinding, and hence there was no Apprendi violation.\n\n The district court’s judgment is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367939/", "author_raw": "KETHLEDGE, Circuit Judge"}]}	COLE	GRIFFIN	KETHLEDGE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590686/	Published	1	0	0	2,019	2	[ { "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...
4,590,689	Derrick MAYE, Plaintiff-Appellee, v. Paul KLEE, Et Al., Defendants, Joseph Serafin ; William Taylor, Defendants-Appellants.	Derrick Maye v. Paul Klee	2019-02-14	18-1460	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Cole, Griffin, Kethledge", "parties": "", "opinions": [{"author": "COLE, Chief Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0022p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n DERRICK MAYE, ┐\n Plaintiff-Appellee, │\n │\n │\n v. > No. 18-1460\n │\n │\n PAUL KLEE, et al., │\n Defendants, │\n │\n JOSEPH SERAFIN; WILLIAM TAYLOR, │\n │\n Defendants-Appellants.\n │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Bay City.\n No. 1:14-cv-10864—Thomas L. Ludington, District Judge.\n\n Argued: December 6, 2018\n\n Decided and Filed: February 14, 2019\n\n Before: COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: John L. Thurber, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,\nLansing, Michigan, for Appellants. Sarah S. Firnschild, DICKINSON WRIGHT PLC, Detroit,\nMichigan, for Appellee. ON BRIEF: John L. Thurber, OFFICE OF THE MICHIGAN\nATTORNEY GENERAL, Lansing, Michigan, for Appellants. Sarah S. Firnschild, Daniel D.\nQuick, Zane S. Hatahet, DICKINSON WRIGHT PLC, Detroit, Michigan, for Appellee.\n\f No. 18-1460 Maye v. Klee, et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n COLE, Chief Judge. Eid al-Fitr is one of two annual religious feasts central to the\nIslamic faith. Michigan Department of Corrections (“MDOC”) officials twice prevented Muslim\ninmate Derrick Maye from participating in Eid. In 2013, Chaplain Joseph Serafin told Maye he\ncould only attend Eid if he changed his religion from Nation of Islam to Al-Islam. And\naccording to Maye’s deposition testimony, Chaplain William Taylor denied his request to\nparticipate in Eid in 2014 without offering any justification for doing so.\n\n Maye brought a cause of action under 42 U.S.C. § 1983, alleging that Serafin and Taylor\ndeprived him of his First and Fourteenth Amendment rights. The district court denied Serafin\nand Taylor qualified immunity, which gave rise to this interlocutory appeal. Because Maye\nsufficiently alleges the deprivation of his constitutional rights, and a reasonable official would\nhave known that the constitutional rights at issue were clearly established when faced with a\ncourt order specifically instructing MDOC officials to allow Muslim inmates to participate in\nEid, we affirm.\n\n I.\n\n Derrick Maye became a member of the Nation of Islam—one of several sects of Islam—\nin 1992. Maye has been a devout, active Muslim for the past two decades, including the years he\nspent incarcerated in MDOC facilities. Maye attended religious services twice a week while\nincarcerated at the Gus Harrison Correctional Facility in 2013, and he only missed two weekly\nservices over the course of his two years at the Cooper Street Correctional Facility from 2013\nthrough 2015. Maye was considered a leader and spokesperson for the Nation of Islam at the\nCooper Street facility.\n\n At both facilities, Maye participated in the observance of the holy month of Ramadan.\nThe end of Ramadan is marked by a religious ceremony called Eid al-Fitr, which Maye describes\nas follows:\n\f No. 18-1460 Maye v. Klee, et al. Page 3\n\n\n The Eid is a religious practice that is central to my religious belief. It means\n breaking the fast. At the end of Ramadan, within 72 hours of the end of\n Ramadan, the Muslim community or Islamic community comes together and has\n a feast to break the fast and then afterwards make congregational prayer.\n\n(Maye Dep., R. 117-2, PageID 1582.) But in both 2013 and 2014, MDOC officials denied Maye\nthe opportunity to participate in Eid al-Fitr, which led Maye to bring the cause of action that\nforms the basis for this appeal.\n\n A.\n\n Derrick Maye was not the first inmate to challenge MDOC’s policies regarding Eid al-\nFitr. Since 2006, MDOC has been embroiled in litigation in the Eastern District of Michigan\nregarding its policy of refusing to allow Muslim inmates to participate in Eid. Dowdy-El v.\nCaruso, No. 2:06-CV-11765 (E.D. Mich. filed Apr. 12, 2006).\n\n In Dowdy-El v. Caruso, multiple Muslim inmates brought a cause of action under 42\nU.S.C. § 1983, alleging a deprivation of their First and Fourteenth Amendment rights. Their\ncomplaint contained the following allegations regarding MDOC officials’ refusal to allow\nMuslim inmates to attend Eid feasts:\n\n Muslims observe two annual feasts, Eid ul-Fitr and Eid ul-Adha (the “Eid\n feasts”). Eid ul-Fitr occurs at the end of Ramadan, a month of fasting. Eid ul-\n Adha is celebrated approximately 70 days after the end of Ramadan to\n commemorate God’s forgiveness of Abraham for vowing to sacrifice his son.\n These two feasts are the most holy days in Islam. . . .\n [D]espite the fact that Defendants . . . permit Jews to have a seder at Passover,\n Defendants have refused to accommodate Representative Muslim Plaintiffs[] and\n other Muslim inmates[.] Specifically, Defendants have refused to . . .\n accommodate Muslim inmates desiring to honor the Eid feasts. . . . Defendants’\n failure to accommodate these core Muslim beliefs and practices imposes a\n substantial burden for Representative Muslim Plaintiffs, interferes with their\n ability to practice the basic tenets of their religion, and is in violation of federal\n law, state and federal constitutional principles and basic human rights law.\n\n(Second Am. Compl., R. 37, PageID 129–30.) The Muslim inmates alleged that MDOC’s failure\nto accommodate their religious requests while accommodating the “needs of similarly situated\nJewish inmates” deprived them of their First and Fourteenth Amendment rights. (Id. at PageID\n133–35.)\n\f No. 18-1460 Maye v. Klee, et al. Page 4\n\n\n On May 24, 2013, the district court ordered that “a judgment shall enter in favor of\nplaintiffs as to participation in the Eid feasts.” Dowdy-El v. Caruso, No. 2:06-CV-11765, 2013\nU.S. Dist. LEXIS 73612, 8–9 (E.D. Mich. May 24, 2013). At the end of its order granting\nsummary judgment, the district court stated: “Plaintiffs are granted judgment regarding the Eid\nfea[s]ts. Plaintiffs shall submit a proposed judgment on or before Monday, June 3, 2013.\nDefendants may file a response to the proposed judgment on or before Monday, June 10, 2013.”\nId. at 10–11 (emphasis in original).\n\n The Dowdy-El plaintiffs submitted the proposed judgment on June 3, 2013 as directed.\nDefendants filed no response. After both parties “attended a hearing on July 31, 2013 and . . .\nstipulated to the form of [the] Judgment,” the judgment was ultimately issued on August 13,\n2013. (J., R. 85, PageID 2872.) In the judgment, the district court reiterated that its order on\nMay 24, 2013 “granted Plaintiffs’ Motion for Summary Judgment in its entirety as to the issue of\nthe Eid Feasts,” and it thereby ordered and adjudged that MDOC officials deprived the inmates\nof their First and Fourteenth Amendment rights to “attend, congregate for, observe and celebrate\n. . . the Eid ul-Fitr and Eid ul-Adha feasts.” (Id. at PageID 2872–73.) The district court also\nordered that the judgment “applies to the named Defendants in their official capacity and shall be\nequally binding upon their successors, agents, officials, employees, representatives and assigns,\nincluding Daniel H. Heyns, the Director of the [MDOC].” (Id.)\n\n In addition to stipulating to the form of the judgment on July 31, 2013, MDOC also took\ninternal action in response to the Dowdy-El litigation before the judgment was formally entered.\nOn July 26, 2013, MDOC amended Policy Directive 05.03.150 to recognize Eid al-Fitr as a\nprotected religious holy day:\n\n The Special Activities Coordinator shall maintain the Handbook of Religious\n Groups, which sets forth general information on the beliefs, practices, and\n customs of each recognized religious group. The Handbook also shall identify\n religious holy days, including any fasts or feasts that prisoners shall be permitted\n to observe consistent with Department policy. This includes but is not limited to\n Ramadan fasts, Seders, and Eid-ul-Fitr and Eid-ul-Adha feasts.\n\n(Am. Policy Directive, R. 112-5, PageID 1280–81.) This amended policy went into effect on\nJuly 26, 2013, and was circulated to MDOC employees on July 30, 2013.\n\f No. 18-1460 Maye v. Klee, et al. Page 5\n\n\n B.\n\n While MDOC’s Dowdy-El litigation was ongoing, Derrick Maye was an inmate at the\nGus Harrison Correctional Facility. On June 24, 2013, Maye submitted a request to participate\nin Ramadan to Chaplain Joseph Serafin, the MDOC employee tasked with accommodating\nreligious requests at Gus Harrison. Serafin approved Maye’s request to participate in Ramadan.\n\n On July 30, 2013, Maye submitted a second request to Serafin, asking to be called out\nfrom work to attend Eid al-Fitr. That same day, Serafin received the revised MDOC policy that\nincluded Eid al-Fitr as a protected holy day in line with the Dowdy-El judgment. Serafin\nconceded that he looks at policy amendments when he receives them, and when deposed about\nhis understanding of why MDOC policies change, Serafin stated: “I’m assuming everything is\nlawsuit driven in the Department of Corrections, so there’s a lawsuit, there’s a remedy, and then\nMDOC goes, Okay, we’re going to change a policy, and then we, at each facility, get a memo\nfrom Lansing. Most of the time we don’t hear that there was a lawsuit, we just hear there’s been\na change.” (Serafin Dep., R. 112-7, PageID 1305.)\n\n Even still, on July 31, 2013—the same day MDOC stipulated to the form of the Dowdy-\nEl judgment, one day after Serafin received the amended policy, and over two months after the\ndistrict court granted summary judgment against MDOC for refusing to allow Muslims to\nparticipate in Eid—Serafin denied Maye’s request to participate in Eid al-Fitr. In his response to\nMaye’s request, Serafin stated that, in order to participate in Eid, Maye “must change [his]\nreligion” from Nation of Islam to Al-Islam, a different sect of Islam. (Serafin Kite Response, R.\n112-9, PageID 1320.) Maye did not change his religion, so he was not permitted to participate in\nEid al-Fitr in 2013.\n\n In October 2013, Maye was transferred to the Cooper Street Correctional Facility. On\nJuly 16, 2014, Maye proposed a request for accommodation for Nation of Islam inmates to\nobserve Eid al-Fitr at the new facility. Maye submitted his proposal to Chaplain William Taylor,\nthe MDOC employee who handled religious programming and scheduling at Cooper Street.\n\n On July 23, 2014, Maye met with Taylor to discuss the proposed accommodation. At the\nsame meeting, Maye contends that he also requested an individual call-out from his work detail\n\f No. 18-1460 Maye v. Klee, et al. Page 6\n\n\nto participate in Eid al-Fitr, and he alleges that Taylor said he would “take care of it.” (Maye\nDep., R. 117-2, PageID 1604–06.) Taylor, however, denies that Maye ever requested an\nindividual call-out from his work detail. Ultimately, both Taylor and Maye agree that on July\n29, 2014, the day of the Eid service, Maye did not receive his call-out from work and was again\nunable to participate in Eid al-Fitr. This year, other Nation of Islam members were permitted to\nobserve Eid, but Maye did not receive a call-out to participate.\n\n C.\n\n After Maye exhausted his claims through the appropriate administrative measures, he\nfiled this action under 42 U.S.C. § 1983, claiming that several MDOC officials, including Serafin\nand Taylor, violated his rights under the Free Exercise and Establishment Clauses of the First\nAmendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.\nThe magistrate judge recommended that the district court grant Maye’s motion for partial\nsummary judgment against Serafin on his equal protection and First Amendment claims, grant\nSerafin’s motion for summary judgment on Maye’s substantive due process claim, grant Taylor’s\nmotion for summary judgment on all claims except Maye’s free exercise claim, and dismiss\nMaye’s claims against all defendants except Serafin and Taylor.\n\n The district court adopted the magistrate judge’s recommendations in full, denied\nqualified immunity to Taylor and Serafin on the remaining claims, and granted partial summary\njudgment against Serafin on Maye’s First Amendment and Fourteenth Amendment equal\nprotection claims. Serafin and Taylor now appeal the district court’s denial of their motion for\nqualified immunity.\n\n II.\n\n We review orders denying qualified immunity de novo, Stoudemire v. Michigan Dep’t of\nCorr., 705 F.3d 560, 565 (6th Cir. 2013), and we accept the “most favorable view of the facts to\nthe plaintiff for purposes of the appeal.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011).\n\n In analyzing whether an official is entitled to qualified immunity, we must make two\ndeterminations: first, whether the plaintiff’s version of the facts alleges the deprivation of a\n\f No. 18-1460 Maye v. Klee, et al. Page 7\n\n\nconstitutional right; and second, whether that right was clearly established such that a reasonable\nofficial would have known his actions were unconstitutional. Morgan v. Fairfield Cty., 903 F.3d\n553, 560 (6th Cir. 2018) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). While courts\nmay take these steps in any order, “we have the ability, if not the responsibility, to clarify the\nstate of the law in this circuit so that government agents can understand the limits of their power\nand that citizens will be protected when those limits are transgressed.” Id. Accordingly, we\naddress whether Maye sufficiently alleged a deprivation of his constitutional rights before\nproceeding to whether those rights were clearly established.\n\n A.\n\n Maye alleges that he was deprived of his constitutional rights under the Free Exercise and\nEstablishment Clauses of the First Amendment, as well as the Equal Protection Clause of the\nFourteenth Amendment. We analyze each claim in turn.\n\n 1. Free Exercise Clause\n\n Maye first alleges that Serafin and Taylor deprived him of his rights under the Free\nExercise Clause by preventing him from participating in Eid without any valid penological\njustification. The Free Exercise Clause of the First Amendment to the United States Constitution\nprovides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S.\nConst. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that the\nFourteenth Amendment incorporates the First Amendment’s protections against states).\n\n In any free exercise claim, the first question is whether “the belief or practice asserted is\nreligious in the [plaintiff’s] own scheme of things” and is “sincerely held.” Kent v. Johnson, 821\nF.2d 1220, 1224 (6th Cir. 1987). Maye’s sincerely-held religious belief is uncontested.\n\n Next, where an inmate challenges prison policies under the Free Exercise Clause,\nSupreme Court precedent instructs us to follow the standard formulated in Turner v. Safley, 482\nU.S. 85 (1987): “[W]hen a prison regulation impinges on inmates’ constitutional rights, the\nregulation is valid if it is reasonably related to legitimate penological interests.” O’Lone v.\nEstate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner, 482 U.S. at 89); see also Ford v.\n\f No. 18-1460 Maye v. Klee, et al. Page 8\n\n\nMcGinnis, 352 F.3d 582, 597 (2d Cir. 2003) (“We find that prior cases make it sufficiently clear\nthat absent a legitimate penological justification[,] prison officials’ conduct in denying Ford [the\nopportunity to participate in the Eid al-Fitr feast] was unlawful.”); Brown v. Johnson, 743 F.2d\n408, 411–12 (6th Cir. 1984) (“Where an inmate’s religious freedom is at stake, correctional\nofficials may only adopt regulations which are ‘reasonably and substantially’ justified by official\nconcern for internal security and inmate discipline.”).\n\n Importantly, we have held that denying inmates the ability to participate in a group\nPassover Seder—even though the ceremony only lasts “a few hours once a year”—violates their\nfree exercise rights under the First Amendment, given that “Passover is an especially critical and\nvery special time in the Jewish religion.” Whitney v. Brown, 882 F.2d 1068, 1073 (6th Cir.\n1989). The two annual Eid feasts are the functional equivalent for Muslims. As MDOC itself\nhas acknowledged, Muslim prisoners have “TWO religiously required observations – Eid-ul-Fitr\nand Eid-ul-Adha – for group worship.” (Appellee Br. at 24 (citing Dowdy-El Order, R. 80,\nPageID 2863; MDOC Dec. 10, 2010 Memo, R. 55-4, PageID 283).) Thus, Maye’s factual\nallegations, taken as true, would compel the same conclusion here—denying a Muslim inmate\nthe opportunity to partake in Eid would substantially burden his free exercise rights, so Maye has\nalleged a deprivation of his rights under the Free Exercise Clause.\n\n Serafin and Taylor argue that an isolated incident in which a prisoner is denied the\nopportunity to attend a religious service does not rise to the level of a First Amendment\nviolation. See Colvin v. Caruso, 605 F.3d 282, 291 (6th Cir. 2010) (finding that inadvertently\ngiving inmate non-kosher meal on isolated occasion was insufficient to demonstrate that official\n“acted unreasonably”); Beebe v. Birkett, 749 F. Supp. 2d 580, 597 (E.D. Mich. 2010) (finding\nthat “accidentally cancel[ing]” one weekly religious service based on prison employees’\n“confusion and miscommunication” was “insufficient to sustain a constitutional violation”);\nFitch v. City of Leitchfield, No. 4:08CV-P76-M, 2011 U.S. Dist. LEXIS 118696, at 9 (finding\nthat prison inmate’s missing kufi did not place a “substantial burden on his ability to practice his\nreligion”) (W.D.K.Y. Oct. 11, 2011); Gunn v. Ky. Dep’t of Corr., No. 5:07CV-P103-R, 2010\nU.S. Dist. LEXIS 60530, at 12–*13 (W.D.K.Y. June 18, 2010) (finding that preventing inmate\nfrom attending chapel service on one occasion was “not sufficient to implicate the Constitution”\n\f No. 18-1460 Maye v. Klee, et al. Page 9\n\n\nwhere prison policy prevented inmate from reentering the service after security had already\nescorted him out). But this argument makes the same mistake we highlighted in Whitney: it\noverlooks the significance of a religious event such as Passover or Eid, which is plainly\nincomparable to the harm of missing one weekly religious service or being denied a kosher meal\non an isolated occasion. Whitney, 882 F.2d at 1074.\n\n Additionally, the facts taken in the light most favorable to Maye do not reveal any valid\npenological justification for infringing Maye’s First Amendment rights. Serafin’s stated reason\nfor rejecting Maye’s claim to participate in Eid was that Maye was a member of the Nation of\nIslam, and he needed to change his religion to participate in Eid. Denying an individual a\n“reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow\nprisoners who adhere to conventional religious precepts” based on his religion of choice is not a\nvalid penological reason—rather, the Supreme Court has held it is a flagrantly unconstitutional\nmotivation that amounts to “palpable discrimination” in violation of the First Amendment. Cruz\nv. Beto, 405 U.S. 319, 322 (1972).\n\n Taylor, on the other hand, has proffered no reason at all for preventing Maye from\nparticipating in Eid. His defense to Maye’s claims is purely factual—Taylor contends that Maye\nnever requested a call-out, so Taylor never issued one—which is why the district court denied\nboth parties’ motions for summary judgment as to this claim. But in this appeal, we are required\nto accept Maye’s version of the facts. Assuming that Taylor prevented Maye from participating\nin Eid without any justification, penological or otherwise, such a decision would be unreasonable\nunder Turner and would therefore violate the Free Exercise Clause. 482 U.S. at 89.\n\n 2. Establishment Clause\n\n Maye alleges that Serafin violated his rights under the Establishment Clause by denying\nhim the opportunity to participate in Eid based upon the sect of Islam he followed. The\nEstablishment Clause of the First Amendment prohibits the enactment of any law “respecting an\nestablishment of religion.” U.S. Const. amend. I. “The clearest command of the Establishment\nClause is that one religious denomination cannot be officially preferred over another.” Larson v.\n\f No. 18-1460 Maye v. Klee, et al. Page 10\n\n\nValente, 456 U.S. 228, 244 (1982). And the same protection extends to different sects within a\nreligion. See Zorach v. Clauson, 343 U.S. 306, 314 (1952).\n\n The Supreme Court has found that an official who “confers [a] privileged status on any\nparticular religious sect” or “singles out [a] bona fide faith for disadvantageous treatment”\nviolates the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 724 (2005). An admission\nthat “a religious service of [one sect] is treated differently than a religious service of other sects”\nis “fatal” to a defendant’s case, because it “amounts to the state preferring some religious groups\nover” the plaintiff’s religion in violation of the First Amendment. Fowler v. Rhode Island, 345\nU.S. 67, 69 (1953).\n\n This circuit has not yet resolved the question of whether we look to Turner to determine\nwhether prison officials violated the Establishment Clause or simply treat the policy as “suspect”\nand “apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246. Compare\nAmericans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509\nF.3d 406, 426 (8th Cir. 2007) (applying strict scrutiny and finding that Turner “cannot be used to\nvalidate” an Establishment Clause violation, “even when applying [Turner] to Free Exercise\nclaims in the same case”), with Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (importing\nTurner standard in analyzing claim that prison official retaliated against inmate for exercising\nEstablishment Clause rights). But accepting Maye’s factual allegations as true, the\nEstablishment Clause violation in this case is clear under either standard. As the magistrate\njudge observed:\n\n [I]t remains undisputed that Serafin expressly denied plaintiff the opportunity to\n participate in the Eid because of his status as a member of the Nation of Islam,\n while at the same time permitting members of the majority sect, Al-Islam to\n participate. Defendant Serafin’s further actions in (1) suggesting that plaintiff\n change his affiliation to Al-Islam in order to receive permission to participate, and\n (2) failing to adhere to the prison’s own revised policy requiring that Nation of\n Islam members be permitted to participate in the Eid, underscore the disparity in\n treatment, amplify the wholesale nature of the deprivation, and readily support a\n finding of purposeful discrimination.\n\n(R. & R., R. 154, PageID 2379–81.) Construed in the light most favorable to Maye, the record\nreveals no justification for treating the Nation of Islam celebration of Eid any differently than the\n\f No. 18-1460 Maye v. Klee, et al. Page 11\n\n\nAl-Islam celebration of Eid. Turner, 482 U.S. at 89; Larson, 456 U.S. at 247. Thus, Maye’s\nclaim that Serafin admitted to affording preferential treatment to those who adhere to Al-Islam is\nsufficient to allege an Establishment Clause violation.\n\n 3. Equal Protection Clause\n\n Finally, Maye alleges that Serafin’s decision to prevent Maye from participating in Eid\nwhile permitting other religious sects to participate in analogous religious events violated Maye’s\nrights under the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause\nof the Fourteenth Amendment provides that a state may not “deny to any person within its\njurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1. “The Clause\nembodies the principle that all persons similarly situated should be treated alike.” Scarbrough v.\nMorgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).\n\n Of course, to establish an equal protection violation, a plaintiff must establish more than\ndifferential treatment alone—a discriminatory intent or purpose is required. Vill. of Arlington\nHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977). But the Supreme Court has\nheld that because the “Equal Protection Clause was intended as a restriction on state legislative\naction inconsistent with elemental constitutional premises,” we treat “as presumptively invidious\nthose classifications that disadvantage a ‘suspect class,’ or that impinge upon the exercise of a\n‘fundamental right.’” Plyler v. Doe, 457 U.S. 202, 216–17 (1982) (footnotes omitted). As a\nresult, when the distinction “adversely affects a ‘suspect class,’ such as one defined by race,\nalienage, or national origin, or invades a ‘fundamental right,’ such as speech or religious\nfreedom, the law will be sustained only if it is ‘suitably tailored to serve a compelling state\ninterest.’” Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005) (quoting City of Cleburne v.\nCleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)).\n\n Accepting Maye’s allegations as true, Serafin’s actions violate the Equal Protection\nClause. As the magistrate judge noted, Maye alleged that he was “similarly situated in all\nmaterial respects to members of Al-Islam who were permitted to participate in the Eid feast,\nnoting their mutual observance of the central tenets of Islam as well as his Level I inmate status.”\n(R. & R., R. 154, PageID 2374–75.) Yet the undisputed facts show that Serafin still “made a\n\f No. 18-1460 Maye v. Klee, et al. Page 12\n\n\nconscious decision to treat religious adherents of Al-Islam differently from plaintiff and other\nadherents of the Nation of Islam” and “suggested to [Maye] that if he wanted to receive the same\ntreatment that Al-Islam members received, he should change his religious sect to Al-Islam.” (Id.\nat PageID 2368–69.) As established above, a facially discriminatory distinction between the\nNation of Islam and Al-Islam sects would burden Maye’s fundamental rights to religious\nfreedom under the First Amendment, which means an invidious purpose may be inferred.\nTherefore, Maye has sufficiently alleged that Serafin deprived him of his right to equal\nprotection under the law.\n\n B.\n\n The second step of the qualified immunity analysis requires us to look to whether the\nofficials’ acts violated “clearly established statutory or constitutional rights of which a\nreasonable person would have known.” Harlow, 457 U.S. at 818. To be clearly established, the\n“contours of the right must be sufficiently clear that a reasonable official would understand that\nwhat he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal\ncitations omitted); Williams v. Com. of Ky., 24 F.3d 1526, 1541 (6th Cir. 1994) (framing the\nissue as whether officials “reasonably can anticipate when their conduct may give rise to liability\nfor damages”). “This is not to say that an official action is protected by qualified immunity\nunless the very action in question has previously been held unlawful, but it is to say that in the\nlight of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640\n(internal citations omitted). To aid in our analysis, we have understood this second step to entail\ntwo basic questions: whether “the right is clearly established,” and “whether a reasonable person\nin the defendant’s position would have known that his or her actions violated clearly established\nrights.” Blake v. Wright, 179 F.3d 1003, 1007–08 (6th Cir. 1999).\n\n “In order for the law to be clearly established as of the date of the incident, the law must\n‘truly compel (not just suggest or allow or raise a question about), the conclusion . . . that what\ndefendant is doing violates federal law in the circumstances.’” Beard v. Whitmore Lake Sch.\nDist., 402 F.3d 598, 607 (6th Cir. 2005) (quoting Saylor v. Bd. of Educ., 118 F.3d 507, 515–16\n(6th Cir. 1997) (emphasis in original). Here, by virtue of the district court’s order in Dowdy-El,\nthe law explicitly compelled that the defendants’ actions violated the First and Fourteenth\n\f No. 18-1460 Maye v. Klee, et al. Page 13\n\n\nAmendments. As counsel for Serafin and Taylor conceded at oral argument, the district court’s\ninjunctive order in Dowdy-El required MDOC officials to allow Muslim inmates to celebrate\nEid, and Serafin and Taylor violated the district court’s order by preventing Maye from\nparticipating in Eid. The binding order staring the defendants in the face was sufficient to clearly\nestablish the law.\n\n Serafin and Taylor argue that, because the judgment memorializing the Dowdy-El order\nwas not issued until after Eid al-Fitr took place in 2013, the Dowdy-El precedent was not yet\nclearly established at the time of their actions. But this defense is unpersuasive. First, this\nargument plainly cannot help Taylor, as Maye’s allegations against Taylor involve actions taken\nin 2014, a year after the district court issued the judgment in Dowdy-El. Second, even before Eid\ntook place in 2013, the rights in question were already clearly established in every meaningful\nsense. Before Maye was prohibited from attending either Eid service, the district court had\nalready issued a binding order enjoining these defendants from preventing Muslim inmates to\nparticipate in Eid, MDOC had already stipulated to the ultimate form of the judgment in Dowdy-\nEl (including the provision that the judgment would apply “to the named Defendants in their\nofficial capacity and shall be equally binding upon their successors, agents, officials, employees,\nrepresentatives and assigns”), and MDOC had amended and disseminated a new policy regarding\nEid that was revised in accordance with the district court’s findings, which served to place its\nofficials on notice of this change. And third, the Dowdy-El order is only the most obvious\nprecedent that clearly establishes these rights: the same cases that demonstrate that Maye alleged\nconstitutional violations would also suffice to show the rights were clearly established in 2013\nand 2014. See supra at 8–13 (citing Whitney, 882 F.2d at 1073–74; Turner, 482 U.S. at 89;\nFowler, 345 U.S. at 69–70; Harbin-Bey, 420 F.3d at 575–76).\n\n So only one question remains: in light of the precedent in Dowdy-El, would a reasonable\nofficial have known his actions violated clearly established constitutional rights? The answer\nmust be yes, especially when considered through the lens of either “defendant’s position” in this\ncase. Blake, 179 F.3d at 1007–08. The district court’s injunctive order in Dowdy-El applied to\nthese defendants and concerned virtually identical facts to the scenario that Serafin and Taylor\nwere facing. Put succinctly, reasonable officials follow court orders. Additionally, in response\n\f No. 18-1460 Maye v. Klee, et al. Page 14\n\n\nto the Dowdy-El litigation, MDOC disseminated an amended policy specifically placing its\nemployees on notice that Eid al-Fitr was a protected holy day for Muslim inmates. (MDOC\nEmail, R. 112-6, PageID 1295.) Any reasonable MDOC employee would have known that\npreventing a Muslim inmate from attending Eid violated the First and Fourteenth Amendments.\n\n III.\n\n We affirm the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367942/", "author_raw": "COLE, Chief Judge"}]}	COLE	GRIFFIN	KETHLEDGE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590689/	Published	1	0	0	2,019	2	[ { "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...
4,591,289		Derrick Maye v. Paul Klee	2019-02-14	18-1460	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Before: COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.", "parties": "", "opinions": [{"author": "COLE, Chief Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0022p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n DERRICK MAYE, ┐\n Plaintiff-Appellee, │\n │\n │\n v. > No. 18-1460\n │\n │\n PAUL KLEE, et al., │\n Defendants, │\n │\n JOSEPH SERAFIN; WILLIAM TAYLOR, │\n │\n Defendants-Appellants.\n │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Bay City.\n No. 1:14-cv-10864—Thomas L. Ludington, District Judge.\n\n Argued: December 6, 2018\n\n Decided and Filed: February 14, 2019\n\n Before: COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: John L. Thurber, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,\nLansing, Michigan, for Appellants. Sarah S. Firnschild, DICKINSON WRIGHT PLC, Detroit,\nMichigan, for Appellee. ON BRIEF: John L. Thurber, OFFICE OF THE MICHIGAN\nATTORNEY GENERAL, Lansing, Michigan, for Appellants. Sarah S. Firnschild, Daniel D.\nQuick, Zane S. Hatahet, DICKINSON WRIGHT PLC, Detroit, Michigan, for Appellee.\n\f No. 18-1460 Maye v. Klee, et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n COLE, Chief Judge. Eid al-Fitr is one of two annual religious feasts central to the\nIslamic faith. Michigan Department of Corrections (“MDOC”) officials twice prevented Muslim\ninmate Derrick Maye from participating in Eid. In 2013, Chaplain Joseph Serafin told Maye he\ncould only attend Eid if he changed his religion from Nation of Islam to Al-Islam. And\naccording to Maye’s deposition testimony, Chaplain William Taylor denied his request to\nparticipate in Eid in 2014 without offering any justification for doing so.\n\n Maye brought a cause of action under 42 U.S.C. § 1983, alleging that Serafin and Taylor\ndeprived him of his First and Fourteenth Amendment rights. The district court denied Serafin\nand Taylor qualified immunity, which gave rise to this interlocutory appeal. Because Maye\nsufficiently alleges the deprivation of his constitutional rights, and a reasonable official would\nhave known that the constitutional rights at issue were clearly established when faced with a\ncourt order specifically instructing MDOC officials to allow Muslim inmates to participate in\nEid, we affirm.\n\n I.\n\n Derrick Maye became a member of the Nation of Islam—one of several sects of Islam—\nin 1992. Maye has been a devout, active Muslim for the past two decades, including the years he\nspent incarcerated in MDOC facilities. Maye attended religious services twice a week while\nincarcerated at the Gus Harrison Correctional Facility in 2013, and he only missed two weekly\nservices over the course of his two years at the Cooper Street Correctional Facility from 2013\nthrough 2015. Maye was considered a leader and spokesperson for the Nation of Islam at the\nCooper Street facility.\n\n At both facilities, Maye participated in the observance of the holy month of Ramadan.\nThe end of Ramadan is marked by a religious ceremony called Eid al-Fitr, which Maye describes\nas follows:\n\f No. 18-1460 Maye v. Klee, et al. Page 3\n\n\n The Eid is a religious practice that is central to my religious belief. It means\n breaking the fast. At the end of Ramadan, within 72 hours of the end of\n Ramadan, the Muslim community or Islamic community comes together and has\n a feast to break the fast and then afterwards make congregational prayer.\n\n(Maye Dep., R. 117-2, PageID 1582.) But in both 2013 and 2014, MDOC officials denied Maye\nthe opportunity to participate in Eid al-Fitr, which led Maye to bring the cause of action that\nforms the basis for this appeal.\n\n A.\n\n Derrick Maye was not the first inmate to challenge MDOC’s policies regarding Eid al-\nFitr. Since 2006, MDOC has been embroiled in litigation in the Eastern District of Michigan\nregarding its policy of refusing to allow Muslim inmates to participate in Eid. Dowdy-El v.\nCaruso, No. 2:06-CV-11765 (E.D. Mich. filed Apr. 12, 2006).\n\n In Dowdy-El v. Caruso, multiple Muslim inmates brought a cause of action under 42\nU.S.C. § 1983, alleging a deprivation of their First and Fourteenth Amendment rights. Their\ncomplaint contained the following allegations regarding MDOC officials’ refusal to allow\nMuslim inmates to attend Eid feasts:\n\n Muslims observe two annual feasts, Eid ul-Fitr and Eid ul-Adha (the “Eid\n feasts”). Eid ul-Fitr occurs at the end of Ramadan, a month of fasting. Eid ul-\n Adha is celebrated approximately 70 days after the end of Ramadan to\n commemorate God’s forgiveness of Abraham for vowing to sacrifice his son.\n These two feasts are the most holy days in Islam. . . .\n [D]espite the fact that Defendants . . . permit Jews to have a seder at Passover,\n Defendants have refused to accommodate Representative Muslim Plaintiffs[] and\n other Muslim inmates[.] Specifically, Defendants have refused to . . .\n accommodate Muslim inmates desiring to honor the Eid feasts. . . . Defendants’\n failure to accommodate these core Muslim beliefs and practices imposes a\n substantial burden for Representative Muslim Plaintiffs, interferes with their\n ability to practice the basic tenets of their religion, and is in violation of federal\n law, state and federal constitutional principles and basic human rights law.\n\n(Second Am. Compl., R. 37, PageID 129–30.) The Muslim inmates alleged that MDOC’s failure\nto accommodate their religious requests while accommodating the “needs of similarly situated\nJewish inmates” deprived them of their First and Fourteenth Amendment rights. (Id. at PageID\n133–35.)\n\f No. 18-1460 Maye v. Klee, et al. Page 4\n\n\n On May 24, 2013, the district court ordered that “a judgment shall enter in favor of\nplaintiffs as to participation in the Eid feasts.” Dowdy-El v. Caruso, No. 2:06-CV-11765, 2013\nU.S. Dist. LEXIS 73612, 8–9 (E.D. Mich. May 24, 2013). At the end of its order granting\nsummary judgment, the district court stated: “Plaintiffs are granted judgment regarding the Eid\nfea[s]ts. Plaintiffs shall submit a proposed judgment on or before Monday, June 3, 2013.\nDefendants may file a response to the proposed judgment on or before Monday, June 10, 2013.”\nId. at 10–11 (emphasis in original).\n\n The Dowdy-El plaintiffs submitted the proposed judgment on June 3, 2013 as directed.\nDefendants filed no response. After both parties “attended a hearing on July 31, 2013 and . . .\nstipulated to the form of [the] Judgment,” the judgment was ultimately issued on August 13,\n2013. (J., R. 85, PageID 2872.) In the judgment, the district court reiterated that its order on\nMay 24, 2013 “granted Plaintiffs’ Motion for Summary Judgment in its entirety as to the issue of\nthe Eid Feasts,” and it thereby ordered and adjudged that MDOC officials deprived the inmates\nof their First and Fourteenth Amendment rights to “attend, congregate for, observe and celebrate\n. . . the Eid ul-Fitr and Eid ul-Adha feasts.” (Id. at PageID 2872–73.) The district court also\nordered that the judgment “applies to the named Defendants in their official capacity and shall be\nequally binding upon their successors, agents, officials, employees, representatives and assigns,\nincluding Daniel H. Heyns, the Director of the [MDOC].” (Id.)\n\n In addition to stipulating to the form of the judgment on July 31, 2013, MDOC also took\ninternal action in response to the Dowdy-El litigation before the judgment was formally entered.\nOn July 26, 2013, MDOC amended Policy Directive 05.03.150 to recognize Eid al-Fitr as a\nprotected religious holy day:\n\n The Special Activities Coordinator shall maintain the Handbook of Religious\n Groups, which sets forth general information on the beliefs, practices, and\n customs of each recognized religious group. The Handbook also shall identify\n religious holy days, including any fasts or feasts that prisoners shall be permitted\n to observe consistent with Department policy. This includes but is not limited to\n Ramadan fasts, Seders, and Eid-ul-Fitr and Eid-ul-Adha feasts.\n\n(Am. Policy Directive, R. 112-5, PageID 1280–81.) This amended policy went into effect on\nJuly 26, 2013, and was circulated to MDOC employees on July 30, 2013.\n\f No. 18-1460 Maye v. Klee, et al. Page 5\n\n\n B.\n\n While MDOC’s Dowdy-El litigation was ongoing, Derrick Maye was an inmate at the\nGus Harrison Correctional Facility. On June 24, 2013, Maye submitted a request to participate\nin Ramadan to Chaplain Joseph Serafin, the MDOC employee tasked with accommodating\nreligious requests at Gus Harrison. Serafin approved Maye’s request to participate in Ramadan.\n\n On July 30, 2013, Maye submitted a second request to Serafin, asking to be called out\nfrom work to attend Eid al-Fitr. That same day, Serafin received the revised MDOC policy that\nincluded Eid al-Fitr as a protected holy day in line with the Dowdy-El judgment. Serafin\nconceded that he looks at policy amendments when he receives them, and when deposed about\nhis understanding of why MDOC policies change, Serafin stated: “I’m assuming everything is\nlawsuit driven in the Department of Corrections, so there’s a lawsuit, there’s a remedy, and then\nMDOC goes, Okay, we’re going to change a policy, and then we, at each facility, get a memo\nfrom Lansing. Most of the time we don’t hear that there was a lawsuit, we just hear there’s been\na change.” (Serafin Dep., R. 112-7, PageID 1305.)\n\n Even still, on July 31, 2013—the same day MDOC stipulated to the form of the Dowdy-\nEl judgment, one day after Serafin received the amended policy, and over two months after the\ndistrict court granted summary judgment against MDOC for refusing to allow Muslims to\nparticipate in Eid—Serafin denied Maye’s request to participate in Eid al-Fitr. In his response to\nMaye’s request, Serafin stated that, in order to participate in Eid, Maye “must change [his]\nreligion” from Nation of Islam to Al-Islam, a different sect of Islam. (Serafin Kite Response, R.\n112-9, PageID 1320.) Maye did not change his religion, so he was not permitted to participate in\nEid al-Fitr in 2013.\n\n In October 2013, Maye was transferred to the Cooper Street Correctional Facility. On\nJuly 16, 2014, Maye proposed a request for accommodation for Nation of Islam inmates to\nobserve Eid al-Fitr at the new facility. Maye submitted his proposal to Chaplain William Taylor,\nthe MDOC employee who handled religious programming and scheduling at Cooper Street.\n\n On July 23, 2014, Maye met with Taylor to discuss the proposed accommodation. At the\nsame meeting, Maye contends that he also requested an individual call-out from his work detail\n\f No. 18-1460 Maye v. Klee, et al. Page 6\n\n\nto participate in Eid al-Fitr, and he alleges that Taylor said he would “take care of it.” (Maye\nDep., R. 117-2, PageID 1604–06.) Taylor, however, denies that Maye ever requested an\nindividual call-out from his work detail. Ultimately, both Taylor and Maye agree that on July\n29, 2014, the day of the Eid service, Maye did not receive his call-out from work and was again\nunable to participate in Eid al-Fitr. This year, other Nation of Islam members were permitted to\nobserve Eid, but Maye did not receive a call-out to participate.\n\n C.\n\n After Maye exhausted his claims through the appropriate administrative measures, he\nfiled this action under 42 U.S.C. § 1983, claiming that several MDOC officials, including Serafin\nand Taylor, violated his rights under the Free Exercise and Establishment Clauses of the First\nAmendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.\nThe magistrate judge recommended that the district court grant Maye’s motion for partial\nsummary judgment against Serafin on his equal protection and First Amendment claims, grant\nSerafin’s motion for summary judgment on Maye’s substantive due process claim, grant Taylor’s\nmotion for summary judgment on all claims except Maye’s free exercise claim, and dismiss\nMaye’s claims against all defendants except Serafin and Taylor.\n\n The district court adopted the magistrate judge’s recommendations in full, denied\nqualified immunity to Taylor and Serafin on the remaining claims, and granted partial summary\njudgment against Serafin on Maye’s First Amendment and Fourteenth Amendment equal\nprotection claims. Serafin and Taylor now appeal the district court’s denial of their motion for\nqualified immunity.\n\n II.\n\n We review orders denying qualified immunity de novo, Stoudemire v. Michigan Dep’t of\nCorr., 705 F.3d 560, 565 (6th Cir. 2013), and we accept the “most favorable view of the facts to\nthe plaintiff for purposes of the appeal.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011).\n\n In analyzing whether an official is entitled to qualified immunity, we must make two\ndeterminations: first, whether the plaintiff’s version of the facts alleges the deprivation of a\n\f No. 18-1460 Maye v. Klee, et al. Page 7\n\n\nconstitutional right; and second, whether that right was clearly established such that a reasonable\nofficial would have known his actions were unconstitutional. Morgan v. Fairfield Cty., 903 F.3d\n553, 560 (6th Cir. 2018) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). While courts\nmay take these steps in any order, “we have the ability, if not the responsibility, to clarify the\nstate of the law in this circuit so that government agents can understand the limits of their power\nand that citizens will be protected when those limits are transgressed.” Id. Accordingly, we\naddress whether Maye sufficiently alleged a deprivation of his constitutional rights before\nproceeding to whether those rights were clearly established.\n\n A.\n\n Maye alleges that he was deprived of his constitutional rights under the Free Exercise and\nEstablishment Clauses of the First Amendment, as well as the Equal Protection Clause of the\nFourteenth Amendment. We analyze each claim in turn.\n\n 1. Free Exercise Clause\n\n Maye first alleges that Serafin and Taylor deprived him of his rights under the Free\nExercise Clause by preventing him from participating in Eid without any valid penological\njustification. The Free Exercise Clause of the First Amendment to the United States Constitution\nprovides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S.\nConst. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that the\nFourteenth Amendment incorporates the First Amendment’s protections against states).\n\n In any free exercise claim, the first question is whether “the belief or practice asserted is\nreligious in the [plaintiff’s] own scheme of things” and is “sincerely held.” Kent v. Johnson, 821\nF.2d 1220, 1224 (6th Cir. 1987). Maye’s sincerely-held religious belief is uncontested.\n\n Next, where an inmate challenges prison policies under the Free Exercise Clause,\nSupreme Court precedent instructs us to follow the standard formulated in Turner v. Safley, 482\nU.S. 85 (1987): “[W]hen a prison regulation impinges on inmates’ constitutional rights, the\nregulation is valid if it is reasonably related to legitimate penological interests.” O’Lone v.\nEstate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner, 482 U.S. at 89); see also Ford v.\n\f No. 18-1460 Maye v. Klee, et al. Page 8\n\n\nMcGinnis, 352 F.3d 582, 597 (2d Cir. 2003) (“We find that prior cases make it sufficiently clear\nthat absent a legitimate penological justification[,] prison officials’ conduct in denying Ford [the\nopportunity to participate in the Eid al-Fitr feast] was unlawful.”); Brown v. Johnson, 743 F.2d\n408, 411–12 (6th Cir. 1984) (“Where an inmate’s religious freedom is at stake, correctional\nofficials may only adopt regulations which are ‘reasonably and substantially’ justified by official\nconcern for internal security and inmate discipline.”).\n\n Importantly, we have held that denying inmates the ability to participate in a group\nPassover Seder—even though the ceremony only lasts “a few hours once a year”—violates their\nfree exercise rights under the First Amendment, given that “Passover is an especially critical and\nvery special time in the Jewish religion.” Whitney v. Brown, 882 F.2d 1068, 1073 (6th Cir.\n1989). The two annual Eid feasts are the functional equivalent for Muslims. As MDOC itself\nhas acknowledged, Muslim prisoners have “TWO religiously required observations – Eid-ul-Fitr\nand Eid-ul-Adha – for group worship.” (Appellee Br. at 24 (citing Dowdy-El Order, R. 80,\nPageID 2863; MDOC Dec. 10, 2010 Memo, R. 55-4, PageID 283).) Thus, Maye’s factual\nallegations, taken as true, would compel the same conclusion here—denying a Muslim inmate\nthe opportunity to partake in Eid would substantially burden his free exercise rights, so Maye has\nalleged a deprivation of his rights under the Free Exercise Clause.\n\n Serafin and Taylor argue that an isolated incident in which a prisoner is denied the\nopportunity to attend a religious service does not rise to the level of a First Amendment\nviolation. See Colvin v. Caruso, 605 F.3d 282, 291 (6th Cir. 2010) (finding that inadvertently\ngiving inmate non-kosher meal on isolated occasion was insufficient to demonstrate that official\n“acted unreasonably”); Beebe v. Birkett, 749 F. Supp. 2d 580, 597 (E.D. Mich. 2010) (finding\nthat “accidentally cancel[ing]” one weekly religious service based on prison employees’\n“confusion and miscommunication” was “insufficient to sustain a constitutional violation”);\nFitch v. City of Leitchfield, No. 4:08CV-P76-M, 2011 U.S. Dist. LEXIS 118696, at 9 (W.D. Ky.\nOct. 11, 2011) (finding that prison inmate’s missing kufi did not place a “substantial burden on\nhis ability to practice his religion”); Gunn v. Ky. Dep’t of Corr., No. 5:07CV-P103-R, 2010 U.S.\nDist. LEXIS 60530, at 12–13 (W.D. Ky. June 18, 2010) (finding that preventing inmate from\nattending chapel service on one occasion was “not sufficient to implicate the Constitution” where\n\f No. 18-1460 Maye v. Klee, et al. Page 9\n\n\nprison policy prevented inmate from reentering the service after security had already escorted\nhim out). But this argument makes the same mistake we highlighted in Whitney: it overlooks\nthe significance of a religious event such as Passover or Eid, which is plainly incomparable to\nthe harm of missing one weekly religious service or being denied a kosher meal on an isolated\noccasion. Whitney, 882 F.2d at 1074.\n\n Additionally, the facts taken in the light most favorable to Maye do not reveal any valid\npenological justification for infringing Maye’s First Amendment rights. Serafin’s stated reason\nfor rejecting Maye’s claim to participate in Eid was that Maye was a member of the Nation of\nIslam, and he needed to change his religion to participate in Eid. Denying an individual a\n“reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow\nprisoners who adhere to conventional religious precepts” based on his religion of choice is not a\nvalid penological reason—rather, the Supreme Court has held it is a flagrantly unconstitutional\nmotivation that amounts to “palpable discrimination” in violation of the First Amendment. Cruz\nv. Beto, 405 U.S. 319, 322 (1972).\n\n Taylor, on the other hand, has proffered no reason at all for preventing Maye from\nparticipating in Eid. His defense to Maye’s claims is purely factual—Taylor contends that Maye\nnever requested a call-out, so Taylor never issued one—which is why the district court denied\nboth parties’ motions for summary judgment as to this claim. But in this appeal, we are required\nto accept Maye’s version of the facts. Assuming that Taylor prevented Maye from participating\nin Eid without any justification, penological or otherwise, such a decision would be unreasonable\nunder Turner and would therefore violate the Free Exercise Clause. 482 U.S. at 89.\n\n 2. Establishment Clause\n\n Maye alleges that Serafin violated his rights under the Establishment Clause by denying\nhim the opportunity to participate in Eid based upon the sect of Islam he followed. The\nEstablishment Clause of the First Amendment prohibits the enactment of any law “respecting an\nestablishment of religion.” U.S. Const. amend. I. “The clearest command of the Establishment\nClause is that one religious denomination cannot be officially preferred over another.” Larson v.\n\f No. 18-1460 Maye v. Klee, et al. Page 10\n\n\nValente, 456 U.S. 228, 244 (1982). And the same protection extends to different sects within a\nreligion. See Zorach v. Clauson, 343 U.S. 306, 314 (1952).\n\n The Supreme Court has found that an official who “confers [a] privileged status on any\nparticular religious sect” or “singles out [a] bona fide faith for disadvantageous treatment”\nviolates the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 724 (2005). An admission\nthat “a religious service of [one sect] is treated differently than a religious service of other sects”\nis “fatal” to a defendant’s case, because it “amounts to the state preferring some religious groups\nover” the plaintiff’s religion in violation of the First Amendment. Fowler v. Rhode Island, 345\nU.S. 67, 69 (1953).\n\n This circuit has not yet resolved the question of whether we look to Turner to determine\nwhether prison officials violated the Establishment Clause or simply treat the policy as “suspect”\nand “apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246. Compare\nAmericans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509\nF.3d 406, 426 (8th Cir. 2007) (applying strict scrutiny and finding that Turner “cannot be used to\nvalidate” an Establishment Clause violation, “even when applying [Turner] to Free Exercise\nclaims in the same case”), with Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (importing\nTurner standard in analyzing claim that prison official retaliated against inmate for exercising\nEstablishment Clause rights). But accepting Maye’s factual allegations as true, the\nEstablishment Clause violation in this case is clear under either standard. As the magistrate\njudge observed:\n\n [I]t remains undisputed that Serafin expressly denied plaintiff the opportunity to\n participate in the Eid because of his status as a member of the Nation of Islam,\n while at the same time permitting members of the majority sect, Al-Islam to\n participate. Defendant Serafin’s further actions in (1) suggesting that plaintiff\n change his affiliation to Al-Islam in order to receive permission to participate, and\n (2) failing to adhere to the prison’s own revised policy requiring that Nation of\n Islam members be permitted to participate in the Eid, underscore the disparity in\n treatment, amplify the wholesale nature of the deprivation, and readily support a\n finding of purposeful discrimination.\n\n(R. & R., R. 154, PageID 2379–81.) Construed in the light most favorable to Maye, the record\nreveals no justification for treating the Nation of Islam celebration of Eid any differently than the\n\f No. 18-1460 Maye v. Klee, et al. Page 11\n\n\nAl-Islam celebration of Eid. Turner, 482 U.S. at 89; Larson, 456 U.S. at 247. Thus, Maye’s\nclaim that Serafin admitted to affording preferential treatment to those who adhere to Al-Islam is\nsufficient to allege an Establishment Clause violation.\n\n 3. Equal Protection Clause\n\n Finally, Maye alleges that Serafin’s decision to prevent Maye from participating in Eid\nwhile permitting other religious sects to participate in analogous religious events violated Maye’s\nrights under the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause\nof the Fourteenth Amendment provides that a state may not “deny to any person within its\njurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1. “The Clause\nembodies the principle that all persons similarly situated should be treated alike.” Scarbrough v.\nMorgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).\n\n Of course, to establish an equal protection violation, a plaintiff must establish more than\ndifferential treatment alone—a discriminatory intent or purpose is required. Vill. of Arlington\nHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977). But the Supreme Court has\nheld that because the “Equal Protection Clause was intended as a restriction on state legislative\naction inconsistent with elemental constitutional premises,” we treat “as presumptively invidious\nthose classifications that disadvantage a ‘suspect class,’ or that impinge upon the exercise of a\n‘fundamental right.’” Plyler v. Doe, 457 U.S. 202, 216–17 (1982) (footnotes omitted). As a\nresult, when the distinction “adversely affects a ‘suspect class,’ such as one defined by race,\nalienage, or national origin, or invades a ‘fundamental right,’ such as speech or religious\nfreedom, the law will be sustained only if it is ‘suitably tailored to serve a compelling state\ninterest.’” Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005) (quoting City of Cleburne v.\nCleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)).\n\n Accepting Maye’s allegations as true, Serafin’s actions violate the Equal Protection\nClause. As the magistrate judge noted, Maye alleged that he was “similarly situated in all\nmaterial respects to members of Al-Islam who were permitted to participate in the Eid feast,\nnoting their mutual observance of the central tenets of Islam as well as his Level I inmate status.”\n(R. & R., R. 154, PageID 2374–75.) Yet the undisputed facts show that Serafin still “made a\n\f No. 18-1460 Maye v. Klee, et al. Page 12\n\n\nconscious decision to treat religious adherents of Al-Islam differently from plaintiff and other\nadherents of the Nation of Islam” and “suggested to [Maye] that if he wanted to receive the same\ntreatment that Al-Islam members received, he should change his religious sect to Al-Islam.” (Id.\nat PageID 2368–69.) As established above, a facially discriminatory distinction between the\nNation of Islam and Al-Islam sects would burden Maye’s fundamental rights to religious\nfreedom under the First Amendment, which means an invidious purpose may be inferred.\nTherefore, Maye has sufficiently alleged that Serafin deprived him of his right to equal\nprotection under the law.\n\n B.\n\n The second step of the qualified immunity analysis requires us to look to whether the\nofficials’ acts violated “clearly established statutory or constitutional rights of which a\nreasonable person would have known.” Harlow, 457 U.S. at 818. To be clearly established, the\n“contours of the right must be sufficiently clear that a reasonable official would understand that\nwhat he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal\ncitations omitted); Williams v. Com. of Ky., 24 F.3d 1526, 1541 (6th Cir. 1994) (framing the\nissue as whether officials “reasonably can anticipate when their conduct may give rise to liability\nfor damages”). “This is not to say that an official action is protected by qualified immunity\nunless the very action in question has previously been held unlawful, but it is to say that in the\nlight of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640\n(internal citations omitted). To aid in our analysis, we have understood this second step to entail\ntwo basic questions: whether “the right is clearly established,” and “whether a reasonable person\nin the defendant’s position would have known that his or her actions violated clearly established\nrights.” Blake v. Wright, 179 F.3d 1003, 1007–08 (6th Cir. 1999).\n\n “In order for the law to be clearly established as of the date of the incident, the law must\n‘truly compel (not just suggest or allow or raise a question about), the conclusion . . . that what\ndefendant is doing violates federal law in the circumstances.’” Beard v. Whitmore Lake Sch.\nDist., 402 F.3d 598, 607 (6th Cir. 2005) (quoting Saylor v. Bd. of Educ., 118 F.3d 507, 515–16\n(6th Cir. 1997) (emphasis in original)). Here, by virtue of the district court’s order in Dowdy-El,\nthe law explicitly compelled that the defendants’ actions violated the First and Fourteenth\n\f No. 18-1460 Maye v. Klee, et al. Page 13\n\n\nAmendments. As counsel for Serafin and Taylor conceded at oral argument, the district court’s\ninjunctive order in Dowdy-El required MDOC officials to allow Muslim inmates to celebrate\nEid, and Serafin and Taylor violated the district court’s order by preventing Maye from\nparticipating in Eid. The binding order staring the defendants in the face was sufficient to clearly\nestablish the law.\n\n Serafin and Taylor argue that, because the judgment memorializing the Dowdy-El order\nwas not issued until after Eid al-Fitr took place in 2013, the Dowdy-El precedent was not yet\nclearly established at the time of their actions. But this defense is unpersuasive. First, this\nargument plainly cannot help Taylor, as Maye’s allegations against Taylor involve actions taken\nin 2014, a year after the district court issued the judgment in Dowdy-El. Second, even before Eid\ntook place in 2013, the rights in question were already clearly established in every meaningful\nsense. Before Maye was prohibited from attending either Eid service, the district court had\nalready issued a binding order enjoining these defendants from preventing Muslim inmates to\nparticipate in Eid, MDOC had already stipulated to the ultimate form of the judgment in Dowdy-\nEl (including the provision that the judgment would apply “to the named Defendants in their\nofficial capacity and shall be equally binding upon their successors, agents, officials, employees,\nrepresentatives and assigns”), and MDOC had amended and disseminated a new policy regarding\nEid that was revised in accordance with the district court’s findings, which served to place its\nofficials on notice of this change. And third, the Dowdy-El order is only the most obvious\nprecedent that clearly establishes these rights: the same cases that demonstrate that Maye alleged\nconstitutional violations would also suffice to show the rights were clearly established in 2013\nand 2014. See supra at 8–13 (citing Whitney, 882 F.2d at 1073–74; Turner, 482 U.S. at 89;\nFowler, 345 U.S. at 69–70; Harbin-Bey, 420 F.3d at 575–76).\n\n So only one question remains: in light of the precedent in Dowdy-El, would a reasonable\nofficial have known his actions violated clearly established constitutional rights? The answer\nmust be yes, especially when considered through the lens of either “defendant’s position” in this\ncase. Blake, 179 F.3d at 1007–08. The district court’s injunctive order in Dowdy-El applied to\nthese defendants and concerned virtually identical facts to the scenario that Serafin and Taylor\nwere facing. Put succinctly, reasonable officials follow court orders. Additionally, in response\n\f No. 18-1460 Maye v. Klee, et al. Page 14\n\n\nto the Dowdy-El litigation, MDOC disseminated an amended policy specifically placing its\nemployees on notice that Eid al-Fitr was a protected holy day for Muslim inmates. (MDOC\nEmail, R. 112-6, PageID 1295.) Any reasonable MDOC employee would have known that\npreventing a Muslim inmate from attending Eid violated the First and Fourteenth Amendments.\n\n III.\n\n We affirm the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368542/", "author_raw": "COLE, Chief Judge"}]}	COLE	GRIFFIN	KETHLEDGE	1	{"COLE": ", Chief", "GRIFFIN": ", Circuit", "KETHLEDGE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591289/	Published	1	0	0	2,019	2	[ { "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...
4,591,288	Michele L. RAFFERTY, Plaintiff, Katie L. Sherman, Plaintiff-Appellee, v. TRUMBULL COUNTY, OHIO, Et Al., Defendants, Charles E. Drennen, Individually and in His Professional Capacity, Defendant-Appellant.	Michele Rafferty v. Trumbull Cty., Ohio	2019-02-15	17-4223	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Clay, McKeague, Bush", "parties": "", "opinions": [{"author": "CLAY, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0023p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n MICHELE L. RAFFERTY, ┐\n Plaintiff, │\n │\n │\n KATIE L. SHERMAN, │\n Plaintiff-Appellee, > No. 17-4223\n │\n │\n v. │\n │\n TRUMBULL COUNTY, OHIO, et al., │\n │\n Defendants,\n │\n │\n CHARLES E. DRENNEN, individually and in his │\n professional capacity, │\n Defendant-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Northern District of Ohio at Youngstown.\n No. 4:16-cv-00430—Benita Y. Pearson, District Judge.\n\n Argued: December 4, 2018\n\n Decided and Filed: February 15, 2019\n\n Before: CLAY, McKEAGUE, and BUSH, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Angelica M. Jarmusz, FISHEL HASS KIM ALBRECHT DOWNEY, LLP, New\nAlbany, Ohio, for Appellant. Sarah Thomas Kovoor, Warren, Ohio, for Appellee. ON BRIEF:\nAngelica M. Jarmusz, Daniel T. Downey, FISHEL HASS KIM ALBRECHT DOWNEY, LLP,\nNew Albany, Ohio, for Appellant. Sarah Thomas Kovoor, Warren, Ohio, for Appellee. Lauren\nM. Weinstein, MOLOLAMKEN LLP, Washington, D.C., Jay R. Schweikert, CATO\nINSTITUTE, Washington, D.C., for Amici Curiae.\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. Defendant Charles Drennen appeals the decision of the district\ncourt denying him summary judgment on Plaintiff Katie Sherman’s Eighth Amendment claim\nbrought pursuant to 42 U.S.C. § 1983. For the reasons stated below, this Court AFFIRMS the\ndistrict court.\n\n I. BACKGROUND\n\n A. Factual History\n\n Sherman was incarcerated at the Trumbull County Jail from November 18, 2013 to April\n30, 2014. During Sherman’s incarceration, Drennen worked at the Trumbull County Jail as a\ncorrections officer. Drennen was regularly assigned to patrol the pod where Sherman lived with\nMichele Rafferty, another female inmate.\n\n Between February 1, 2014 and Sherman’s release on April 30, 2014, Drennen demanded\nthat Sherman expose her breasts for him to view on three or four occasions. Sherman complied\nwith Drennen’s demands. On one or two occasions, Sherman masturbated in Drennen’s\npresence “because he asked for it.” (Sherman Dep., R. 102 at PageID #705.)\n\n Sherman does not allege that Drennen ever touched her. And Drennen never explicitly\nthreatened Sherman. But Sherman was deeply disturbed by Drennen’s demands. As a result of\nDrennen’s abuse, Sherman’s post-traumatic stress disorder worsened and her night terrors and\nflashbacks increased in severity.\n\n Sherman never reported Drennen to anyone in the Trumbull County Jail administration\nbecause she felt intimidated by him; she “didn’t know what to expect” if she refused his\ndemands. (Id. at PageID #716.)\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 3\n\n\n B. Procedural History\n\n Sherman and Rafferty sued Drennen and various officials from Trumbull County\n(together “Defendants”), alleging Fourth Amendment and Eighth Amendment claims against\nDrennen and Monell claims against the Trumbull County officials. Defendants moved for\nsummary judgment on all claims. The district court granted summary judgment in favor of\nDefendants on every claim except for Sherman’s Eighth Amendment claim against Drennen,\nfinding that Drennen was not entitled to qualified immunity on that claim. Drennen appealed the\ndistrict court’s decision.1\n\n II. DISCUSSION\n\n A. Jurisdiction\n\n “Congress has given this court ‘jurisdiction of appeals from all final decisions of the\ndistrict courts.’” Miami-Luken, Inc. v. U.S. Drug Enf’t Admin., 900 F.3d 738, 741 (6th Cir.\n2018) (quoting 28 U.S.C. § 1291). “[A] denial of summary judgment is generally not a final\njudgment.” Devlin v. Kalm, 630 F. App’x 534, 541 (6th Cir. 2015) (internal quotation marks\nomitted) (quoting Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002)). “However, under\nthe collateral-order doctrine[,] ‘a limited set of district-court orders are reviewable’ even though\nthey are ‘short of final judgment.’” Peatross v. City of Memphis, 818 F.3d 233, 239 (6th Cir.\n2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)). A district court order denying\nqualified immunity is immediately appealable under the collateral order doctrine. Brown v.\nChapman, 814 F.3d 436, 443–44 (6th Cir. 2016) (citing Mitchell v. Forsyth, 472 U.S. 511, 526–\n529 (1985)). But this jurisdiction is limited; “circuit courts can review a denial of qualified\nimmunity only ‘to the extent that it turns on an issue of law’—the appeal cannot be from a\ndistrict court’s determination that there is a genuine dispute of material fact.” Chapman,\n\n\n 1In her Response Brief, Sherman argues that Drennen violated her right to bodily integrity. Sherman does\nnot explain where this right to bodily integrity originates. The case that Sherman relies on, Doe v. Claiborne Cty.,\n103 F.3d 495 (6th Cir. 1996), involves a Fourteenth Amendment claim under the substantive component of the Due\nProcess Clause. Accordingly, it appears that Sherman attempts to assert a Fourteenth Amendment substantive due\nprocess claim. But the district court dismissed all claims except for Sherman’s Eighth Amendment claim against\nDrennen. And this appeal only concerns the remaining Eighth Amendment claim. Therefore, the Court will not\nconsider Sherman’s Fourteenth Amendment argument.\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 4\n\n\n814 F.3d at 444 (quoting Forsyth, 472 U.S. at 530). Accordingly, a defendant challenging a\ndistrict court’s denial of his motion for summary judgment based on qualified immunity must\n“concede the most favorable view of the facts to the plaintiff for purposes of the appeal.” Baker\nv. Union Twp., 587 F. App’x 229, 232 (6th Cir. 2014) (quoting Moldowan v. City of Warren,\n578 F.3d 351, 370 (6th Cir. 2009)).\n\n Drennen “concede[s] the most favorable view of the facts to Ms. Sherman for the\npurposes of this interlocutory appeal.” (Def. Br. at 4.) Therefore, this Court has jurisdiction\nunder the collateral order doctrine. See Baker, 587 F. App’x at 232.\n\n B. Standard of Review\n\n “We review de novo a district court’s denial of a defendant’s motion for summary\njudgment on qualified immunity grounds.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560,\n565 (6th Cir. 2013) (citing Tucker v. City of Richmond, 388 F.3d 216, 219 (6th Cir. 2004)).\n\n Summary judgment is proper “if the movant shows that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.\n56(a). “A dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury\ncould return a verdict for the non-moving party.’” Smith v. Perkins Bd. of Educ., 708 F.3d 821,\n825 (6th Cir. 2013) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)).\nWhen evaluating a motion for summary judgment, the court must “view[] [the evidence] in the\nlight most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v.\nZenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation omitted). Further, “all\nreasonable inferences must be made in favor of the non-moving party.” Moran v. Al Basit LLC,\n788 F.3d 201, 204 (6th Cir. 2015) (quoting Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d\n547, 551 (6th Cir. 2000)). The moving party bears the burden of showing that no genuine issues\nof material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324–25 (1986).\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 5\n\n\n C. Analysis\n\n 1. Qualified Immunity\n\n “The doctrine of qualified immunity protects government officials ‘from liability for civil\ndamages insofar as their conduct does not violate clearly established statutory or constitutional\nrights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,\n231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As the Supreme Court has\nexplained, “[q]ualified immunity balances two important interests—the need to hold public\nofficials accountable when they exercise power irresponsibly and the need to shield officials\nfrom harassment, distraction, and liability when they perform their duties reasonably.” Id.\n\n “The qualified immunity analysis entails two general steps, which can be considered in\nany order.” Godawa v. Byrd, 798 F.3d 457, 462–63 (6th Cir. 2015) (citing Pearson, 555 U.S. at\n236). “First, taken in the light most favorable to the party asserting the injury, do the facts\nalleged show that the officer’s conduct violated a constitutional right? Second, is the right clearly\nestablished?” Seales v. City of Detroit, 724 F. App’x 356, 359 (6th Cir. 2018) (quoting\nSilberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). “To qualify as clearly\nestablished, [t]he contours of the right must be sufficiently clear that a reasonable official would\nunderstand that what he is doing violates that right.” Kindl v. City of Berkley, 798 F.3d 391, 398\n(6th Cir. 2015) (alteration in original) (internal quotation marks omitted) (quoting Brown v.\nLewis, 779 F.3d 401, 412 (6th Cir. 2015)).\n\n “[T]he plaintiff bears the burden of showing that an officer is not entitled to the defense\nof qualified immunity.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)\n(citing Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)).\n\n 2. Eighth Amendment\n\n “The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners\nfrom the unnecessary and wanton infliction of pain.” Villegas v. Metro. Gov’t of Nashville,\n709 F.3d 563, 568 (6th Cir. 2013) (quoting Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir.\n2011)). The Supreme Court has explained that “[a]mong ‘unnecessary and wanton’ inflictions of\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 6\n\n\npain are those that are ‘totally without penological justification.’” Rhodes v. Chapman, 452 U.S.\n337, 346 (1981). “However, “[t]he Eighth Amendment’s prohibition of ‘cruel and unusual’\npunishments necessarily excludes from constitutional recognition de minimis uses of physical\nforce, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’”\nHudson v. McMillian, 503 U.S. 1, 9–10 (1992) (internal citation omitted).\n\n “To make out a claim under the Eighth Amendment, the prisoner must satisfy both an\nobjective and a subjective component.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)\n(citing Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993)).\n\n “The objective component requires the pain inflicted to be ‘sufficiently serious.’” Curtin,\n631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). As the Supreme Court has\nstated, “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action.’”\nWilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S. at 9). Rather, the Eighth\nAmendment protects prisoners only from that conduct which is “repugnant to the conscience of\nmankind.” Id. at 38 (quoting Hudson, 503 U.S. at 9–10). The objective component of the Eighth\nAmendment “is a ‘contextual’ inquiry that is ‘responsive to contemporary standards of\ndecency.’” Curtin, 631 F.3d at 383 (quoting Hudson, 503 U.S. at 8–9). This Court has held that\nthe Eighth Amendment “must draw its meaning from the evolving standards of decency that\nmark the progress of a maturing society.” Kent v. Johnson, 821 F.2d 1220, 1227 (6th Cir. 1987)\n(quoting Rhodes, 452 U.S. at 345–46). Thus, courts should interpret the Eighth Amendment “in\na flexible and dynamic manner.” Id. (quoting Rhodes, 452 U.S. at 345).\n\n The subjective component requires that the prison official act with a “sufficiently\nculpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson, 501\nU.S. at 297). This “requirement follows from the principle that ‘only the unnecessary and\nwanton infliction of pain implicates the Eighth Amendment.’” Id. (quoting Wilson, 501 U.S. at\n297). In some instances, the subjective prong of an Eighth Amendment claim is satisfied by a\nshowing of deliberate indifference, such as in cases concerning medical care, conditions of\nconfinement, or abuse perpetrated by an inmate against another inmate. See e.g., Estelle v.\nGamble, 429 U.S. 97, 104 (1976) and Darrah v. Krisher, 865 F.3d 361, 367 (6th Cir. 2017)\n(medical care); Wilson, 501 U.S. at 303 and Villegas, 709 F.3d at 571 (conditions of\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 7\n\n\nconfinement); Farmer, 511 U.S. at 834 and Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011)\n(abuse perpetrated by an inmate against another inmate). In other contexts, such as when a\nprisoner alleges excessive force, the subjective component requires a heightened showing that\nthe prison official acted “maliciously and sadistically for the very purpose of causing harm.”\nHudson, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)); Cordell v.\nMcKinney, 759 F.3d 573, 580 (6th Cir. 2014) (quoting Hudson, 503 U.S. at 9).\n\n 3. Qualified Immunity Does Not Protect Drennen from Sherman’s Eighth\n Amendment Claim\n\n i. Drennen Violated Sherman’s Eighth Amendment Rights\n\n Federal courts have long held that sexual abuse is sufficiently serious to violate the\nEighth Amendment. This is true whether the sexual abuse is perpetrated by other inmates, see\ne.g., Farmer, 511 U.S. at 848–49 and Hackel, 636 F.3d at 761, or by guards, see e.g.,\nWashington v. Hively, 695 F.3d 641, 642 (7th Cir. 2012) (reversing district court’s entry of\nsummary judgment for guard when the plaintiff presented evidence that guard “gratuitously\nfondl[ed]” the plaintiff’s penis and testicles during a search); Calhoun v. DeTella, 319 F.3d 936,\n939–40 (7th Cir. 2003) (holding that male prisoner stated an Eighth Amendment claim when he\nalleged that corrections officers “forced him to perform sexually provocative acts” during a strip\nsearch conducted in the presence of female guards); Daskalea v. District of Columbia, 227 F.3d\n433, 439–41, 443 (D.C. Cir. 2000) (finding an Eighth Amendment violation when corrections\nofficer forced inmate to perform drunken striptease); Schwenk v. Hartford, 204 F.3d 1187, 1198\n(9th Cir. 2000) (holding that inmate’s evidence that guard sexually assaulted her was sufficient\nto prove an Eighth Amendment claim); Kent, 821 F.2d at 1228 (holding that inmate stated an\nEighth Amendment claim when he alleged that female guards regularly watched him shower for\nextended periods of time); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981) (affirming jury’s\nfinding that prison officials violated the Eighth Amendment by forcing inmate to remove her\nundergarments in the presence of male officers when she offered to voluntarily remove her\nclothes if the male guards gave her privacy).\n\n In light of this well-established precedent, the Court finds that Sherman has satisfied the\nobjective component of her Eighth Amendment claim. Drennen’s repeated demands that\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 8\n\n\nSherman expose her breasts and masturbate are “sufficiently serious” to implicate the Eighth\nAmendment under settled case law from the Supreme Court, this Circuit, and numerous other\ncourts of appeals. It is true that this Court has held that “isolated, brief, and not severe” instances\nof sexual harassment do not give rise to Eighth Amendment violations. Jackson v. Madery,\n158 F. App’x 656, 662 (6th Cir. 2005), abrogated on other grounds by Maben v. Thelen,\n887 F.3d 252 (6th Cir. 2018)). But Drennen’s sexual abuse was not “isolated, brief, and not\nsevere”—Sherman alleges that Drennen demanded that she engage in sexual conduct on up to six\noccasions. This distinguishes Drennen’s alleged actions from cases where this Circuit has held\nthat less-severe episodes of sexual harassment did not rise to the level of an Eighth Amendment\nviolation.2\n\n Drennen argues that he did not violate the Eighth Amendment because he did not\nphysically touch Sherman. But this Court held nearly three decades ago that sexual abuse of\ninmates can violate the Eighth Amendment even in the absence of physical touching by a\ncorrections officer. See Kent, 821 F.2d at 1228 (unobstructed views of inmates showering).\nOther courts of appeals have reached the same conclusion. See e.g., Beal v. Foster, 803 F.3d\n356, 358 (7th Cir. 2015) (homophobic epithets); DeTella, 319 F.3d at 939 (ribald comments);\nDaskalea, 227 F.3d at 439–41 (forced striptease). Furthermore, the abuse alleged to have\noccurred in this case did not merely consist of words. It also entailed forced sexual acts. The\nfact that Drennen effectuated this sexual abuse by ordering Sherman to expose her breasts and\n\n\n 2Drennen cites several cases to support his argument that his conduct failed to reach the requisite level of\nseverity. But Drennen’s conduct was more severe and/or pervasive than the conduct at issue in the cases that he\ncites. See e.g., Hursey v. Anderson, No. 16-1146, 2017 WL 3528206 (6th Cir. Mar. 31, 2017) (unpublished) (nurse\nexposed his buttocks to inmate); Ragland v. City of St. Louis, No. 12-1334, 2013 U.S. App. LEXIS 14686 (6th Cir.\nFeb. 11, 2013) (unpublished) (one instance of sexual touching); Madery, 158 F. App’x at 662 (unpublished) (one\ninstance of sexual touching); Violett v. Reynolds, 76 F. App’x 24 (6th Cir. 2003) (unpublished) (offering sexual\nfavors to inmate); Johnson v. Ward, 215 F.3d 1326 (6th Cir. 2000) (unpublished) (one instance of sexual touching\nand one sexual remark). Furthermore, these cases are unpublished and therefore not binding on the Court. United\nStates v. Yates, 866 F.3d 723, 728 (6th Cir. 2017) (citing Bell v. Johnson, 308 F.3d 594, 611 (6th Cir. 2002)).\n Drennen also relies on Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). In that case, the Second Circuit\nheld that the plaintiff failed to state an Eighth Amendment claim when he alleged that a guard squeezed his penis,\nmade lewd comments, and pinned him to the door in a sexual manner. Schnieder, 105 F.3d at 860–61. But Drennen\nfails to mention that the Second Circuit subsequently pronounced that “the officer’s conduct in Boddie would flunk\nits own test today.” Crawford v. Cuomo, 796 F.3d 252, 260 (2d Cir. 2015) (explaining that “conduct that might not\nhave been seen to rise to the severity of an Eighth Amendment violation 18 years ago may now violate community\nstandards of decency”).\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 9\n\n\nmasturbate, rather than by touching Sherman himself, does not change the fact that Sherman was\nrepeatedly required to engage in sexual acts against her will.\n\n Drennen also argues that he did not violate the Eighth Amendment because Sherman\nconsented to his sexual advances. This argument fails. First, as Drennen acknowledges,\n“inmates are generally regarded as unable to consent to sexual relations with prison staff.” (Def.\nBr. at 17.) See e.g., Wood v. Beauclair, 692 F.3d 1041, 1047–49 (9th Cir. 2012) (explaining that\n“[t]he power dynamics between prisoners and guards make it difficult to discern consent from\ncoercion,” acknowledging “the coercive nature of sexual relations in the prison environment,”\nand holding that “when a prisoner alleges sexual abuse by a prison guard . . . the prisoner is\nentitled to a [rebuttable] presumption that the conduct was not consensual.”) Second, there is a\ndisputed issue of material fact about whether Sherman consented. Sherman states that she only\ncomplied because Drennen “intimidated” her. (Sherman Dep., R. 102 at PageID #716.) At this\nstage, the Court must view the evidence in the light most favorable to Sherman. See Matsushita,\n475 U.S. at 587. Thus, the Court cannot conclude that Sherman consented. See id.\n\n Sherman has also satisfied the subjective component of her Eighth Amendment claim.\nThis Court has not determined whether deliberate indifference or the heightened malice standard\nis required to satisfy the subjective component of an Eighth Amendment claim alleging sexual\nabuse by a prison guard. But the Court need not resolve this issue at present; Sherman prevails\nregardless of whether malice or the less-stringent deliberate indifference standard applies.\nObviously, Drennan could not conceivably offer a legitimate penological justification for his\nrepeated demands that Sherman expose herself and masturbate against her will. Thus, a jury\ncould conclude that Drennen acted with deliberate indifference or acted maliciously and\nsadistically for the purpose of causing her harm.\n\n Having concluded that Sherman established her Eighth Amendment claim for the\npurposes of summary judgment, the Court will consider whether Sherman’s Eighth Amendment\nrights were clearly established. As explained below, the Court finds that they were.\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 10\n\n\n ii. Sherman’s Eighth Amendment Rights Were Clearly Established\n\n When Drennen made his sexual demands towards Sherman in early 2014, it was clearly\nestablished that sexual abuse of prisoners could rise to the level of an Eighth Amendment\nviolation. See e.g., Farmer, 511 U.S. at 848–49; Hively, 695 F.3d at 642; Hackel, 636 F.3d at\n761; DeTella, 319 F.3d at 939–40; Daskalea, 227 F.3d at 439–41; Schwenk, 204 F.3d at 1194;\nBoddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997); Kent, 821 F.2d at 1228; Downs, 641 F.2d\nat 1119. Further, it was clearly established that sexual abuse could be sufficiently severe to\nimplicate the Eighth Amendment even in the absence of physical touching by a guard. See Kent,\n821 F.2d at 1228; DeTella, 319 F.3d at 939–40; Daskalea, 227 F.3d at 439–41. Accordingly,\nwhen Drennen allegedly sexually abused Sherman, it was clearly established that such abuse\ncould violate the objective prong of the Eighth Amendment.\n\n Furthermore, it was clearly established in 2014 that ignoring known risks of harm to an\ninmate due to inadequate medical care, inhumane conditions of confinement, or abuse by another\ninmate could constitute deliberate indifference. See e.g., Estelle, 429 U.S. at 103–04 and\nKrisher, 865 F.3d at 367 (medical care); Wilson, 501 U.S. at 303 and Villegas, 709 F.3d at 571\n(conditions of confinement); Farmer, 511 U.S. at 834 and Hackel, 636 F.3d at 766 (abuse\nperpetrated by an inmate against another inmate). It was also clearly established that using\nunnecessary force against an inmate could support a finding of malice. See e.g., Hudson,\n503 U.S. at 6 and McKinney, 759 F.3d at 580. A jury could conclude that Drennen’s alleged\nconduct violates either standard. Accordingly, it was clearly established that Drennen’s alleged\nconduct could violate the subjective component of the Eighth Amendment.\n\n Drennen argues that Sherman’s Eighth Amendment rights were not clearly established\nbecause Sherman failed to identify a case with sufficiently analogous facts. But the Supreme\nCourt “do[es] not require a case directly on point [if] existing precedent [has] placed the\nstatutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\n(2011) (citations omitted). Instead, the operative inquiry is “whether it would be clear to a\nreasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz,\n533 U.S. 194, 202 (2001) (citation omitted). Based on the settled precedent that existed in 2014,\na reasonable officer should have known that making repeated sexual demands of an inmate could\n\f No. 17-4223 Rafferty, et al. v. Trumbull Cty., Ohio, et al. Page 11\n\n\nviolate the Eighth Amendment. Therefore, the fact that Sherman failed to identify a case with\ncompletely analogous facts does not entitle Drennen to qualified immunity. See id.\n\n In sum, a reasonable officer in Drennen’s position would have known that repeatedly\nordering Sherman to expose her breasts and masturbate in his presence could violate her Eighth\nAmendment rights. Therefore, Drennen is not entitled to qualified immunity. See id.\n\n III. CONCLUSION\n\n For the reasons stated above, the Court AFFIRMS the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368541/", "author_raw": "CLAY, Circuit Judge"}]}	CLAY	MCKEAGUE	BUSH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591288/	Published	1	0	0	2,019	2	[ { "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...
4,592,612	Bobbie M. SMITH, on Behalf of Herself and All Others Similarly Situated, Et Al., Plaintiffs-Appellants, v. TIPTON COUNTY BOARD OF EDUCATION, Defendant-Appellee.	Bobbie M. Smith v. Tipton Cty. Bd. of Educ.	2019-02-21	18-5426	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Moore, Gibbons, Cook", "parties": "", "opinions": [{"author": "JULIA SMITH GIBBONS, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0025p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n BOBBIE M. SMITH, on behalf of herself and all others ┐\n similarly situated, et al., │\n Plaintiffs-Appellants, │\n > No. 18-5426\n │\n v. │\n │\n │\n TIPTON COUNTY BOARD OF EDUCATION, │\n Defendant-Appellee. │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Tennessee at Memphis.\n No. 2:17-cv-02282—Sheryl H. Lipman, District Judge.\n\n Argued: December 6, 2018\n\n Decided and Filed: February 21, 2019\n\n Before: MOORE, GIBBONS, and COOK, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Alan Crone, THE CRONE LAW FIRM, PLC, Memphis, Tennessee, for Appellants.\nStephen L. Shields, JACKSON, SHIELDS, YEISER & HOLT, Memphis, Tennessee, for\nAppellee. ON BRIEF: Alan Crone, THE CRONE LAW FIRM, PLC, Memphis, Tennessee, for\nAppellants. Stephen L. Shields, Debra D. Owen, JACKSON, SHIELDS, YEISER & HOLT,\nMemphis, Tennessee, for Appellee.\n _________________\n\n OPINION\n _________________\n\n JULIA SMITH GIBBONS, Circuit Judge. During the 2016 tax year, an employee of the\nTipton County Board of Education (“Board”) disclosed the Board employees’ W-2 tax\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 2\n\n\ninformation to a third party. Bobbie Smith, as a potential class representative for individuals\nwhose information was disclosed, sought to hold the Board liable for the negligent sharing of the\nemployees’ return information, arguing that the Board is a “person” that administers a SNAP\nbenefit program. The district court dismissed the lawsuit, finding that the Board’s school lunch\nprogram did not qualify as a SNAP benefit program. The court did not comment on Smith’s\nother arguments. Because the Board does not administer a SNAP benefit in providing lunches to\nstudents as part of the National School Lunch Program, we affirm.\n\n I.\n\n On January 23, 2017, Margaret “Peggy” Murdock, an employee with the Board, received\nan email from a third party, purporting to be Dr. William Bibb, Director of Tipton County\nSchools, requesting all 2016 employee W-2s and tax information.1 The email read in full:\n\n Peggy,\n I want you to send me the list of W-2 copy of employees wage and tax\n statement for 2016, I need in PDF file type, you can send it as an\n attachment. Kindly prepare the lists and email them to me asap.\n Thanks.\n Dr. William E. Bibb\n\n(DE 19-8, Murdock Decl., PageID 142.) Murdock responded to the email and included a\ndocument containing information from the W-2s of every Board employee. According to the\ncomplaint, this included the names, addresses, social security numbers, income information,\ndeductions, exemptions, withholdings, tax payments and taxpayer identifying numbers.\n\n Murdock then went to Dr. Bibb’s office “to ask the purpose of his request because [she]\nthought there might be a better way to provide him the needed information.” (DE 19-8, Murdock\nDecl., PageID 139.) From Dr. Bibb’s reaction, Murdock inferred that he had not requested the\ninformation. When Murdock took Dr. Bibb back to her office to look at the email, there was a\nnew, second email, responding to the disclosed information. That email read, in full:\n\n\n\n 1\n Because Smith is appealing the district court’s granting of the Board’s motion to dismiss, the facts are\nlargely as alleged in Smith’s initial complaint.\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 3\n\n\n Peggy,\n I received the PDF file but you are yet to forward me list that includes all\n employees First Name, Last Name, Address, Phone Number and Date of\n Birth. I want this in Excel File\n Thanks.\n Dr. William E. Bibb\n\n(DE 19-8, Murdock Decl., PageID 143.) Upon realizing that they had been scammed, Dr. Bibb\nand Murdock called their technology department to see if the emails could be retrieved. When\nhe learned that the emails could not be retrieved, Dr. Bibb called the Tipton County Sheriff. The\nSherriff’s Department subsequently notified the U.S. Secret Service and the Internal Revenue\nService about the incident. The Sherriff’s Department continues to investigate the incident. On\nJanuary 24, 2017, the Board notified employees of the information release, including social\nsecurity numbers, in a letter signed by Dr. Bibb.\n\n Bobbie Smith has been employed by the Board since January 2003, working as a bus\ndriver for the Tipton County School System. Smith filed this lawsuit on April 24, 2017, alleging\nthat the Tipton County Board of Education violated 26 U.S.C. § 6103 by disclosing its\nemployees’ tax return information to the third party. Smith seeks damages under 26 U.S.C.\n§ 7431, which provides a private right of action for violations of 26 U.S.C. § 6103. Smith argues\nthat, because the Board works with the Tennessee State Board of Education to administer the\nNational School Lunch Program, which provides free or low-cost lunches to low-income\nstudents, the Board provides a SNAP benefit.\n\n Under Tennessee law, every school board is required to establish a school lunch program\nin each school in its jurisdiction. Tenn. Code Ann. § 49-6-2302. In Tipton County, any student\nfrom a household that receives SNAP benefits is automatically enrolled in the National School\nLunch Program in Tipton County. The Board has conceded that SNAP is a program “operated\npursuant to the Food and Nutrition Act,” but denies that the National School Lunch Program\nqualifies as a SNAP benefit. (DE 19-1, Mot. to Dismiss, PageID 65.)\n\n In addition, Smith sought to bring the action on behalf of all Board employees, pursuant\nto Federal Rule of Civil Procedure 23(b)(1) and 23(b)(3). Other members of the potential\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 4\n\n\nplaintiff class include bus drivers, cafeteria workers, child care employees, and substitute\nteachers. Specifically, Smith identifies the class as: “All individuals working for or providing\nservices on a full-time, part-time, seasonal, or probationary basis for Tipton County Board of\nEducation during the tax year 2016 whose tax information was disclosed to a third party by email\non or about January 23, 2017.” (DE 1, Compl., PageID 8.)\n\n Smith sought “an amount not less than” $19 million in damages (DE 1, Complaint,\nPageID 12), claiming that each disclosure of the W-2 information constituted a separate violation\nof 26 U.S.C. § 7431, which provides for the greater amount of either $1,000 for each disclosure\nor actual damages. Smith also sought punitive damages against Tipton County because of the\n“gross negligence” exhibited in the disclosure, as well as attorneys’ fees. (Id.)\n\n The Board filed a motion to dismiss or, in the alternative, for summary judgment on June\n7, 2017. The district court treated the motion as a motion to dismiss, finding that “[t]aking all of\nthe allegations of Plaintiffs’ complaint as true, the Court is left with a purely legal question—\ngiven Defendant’s administration of the [National School Lunch Program] and the connection\nbetween that program and SNAP, does it also ‘administer’ SNAP?” (DE 42, Order, PageID\n290.) On April 2, 2018, the district court issued a final judgment, dismissing Smith’s claim with\nprejudice. The district court held that the Board does not “administer” a program under the Food\nand Nutrition Act, which established SNAP benefits. Smith filed a notice of appeal on April 26,\n2018.\n\n II.\n\n To bring a claim under 26 U.S.C. § 7431, Smith must demonstrate that the National\nSchool Lunch Program is a SNAP benefit; that the released wage and tax information was\n“return information” as defined under 26 U.S.C. § 6103; and, finally, that the Board of Education\nis a “person” as defined in 26 U.S.C. § 7431, which establishes the “persons” subject to civil\naction damages for disclosures prohibited under 26 U.S.C. § 6103. Because we find that the\nBoard was not administering a SNAP benefit in providing free lunches as part of the National\nSchool Lunch Program, we decline to consider the other issues.\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 5\n\n\n A.\n\n Whether the district court was correct in dismissing Smith’s claim under Rule 12(b)(6) is\na question of law that this court reviews de novo. League of United Latin American Citizens v.\nBredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff’s complaint must include “a short and\nplain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.\n8(a)(2). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need\ndetailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]\nto relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of\nthe cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)\n(internal citations omitted). The complaint must not only include legal conclusions, but must\nmake factual allegations, which are accepted as true to state a plausible claim for relief. Ashcroft\nv. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads\nfactual content that allows the court to draw the reasonable inference that the defendant is liable\nfor the misconduct alleged.” Id. When considering plausibility, the court must construe the\ncomplaint in the light most favorable to the plaintiff. Strayhorn v. Wyeth Pharms., Inc., 737 F.3d\n378, 387 (6th Cir. 2013).\n\n B.\n\n Section 6103 of the Internal Revenue Code prohibits “any local agency administering a\nprogram listed in [§ 6103](l)(7)(D)” from disclosing “return information.” 26 U.S.C.A.\n§ 6103(a)(2). In relevant part, § 6103(l)(7)(D) includes “assistance provided under the Food and\nNutrition Act” as a program to which the prohibition applies. 26 U.S.C.A. § 6103(l)(7)(D)(vi).\nUnder 26 U.S.C. § 7431, any taxpayer whose return information has been disclosed has a private\nright of action to sue the agency for a violation of 26 U.S.C. § 6103: “If any person who is not\nan officer or employee of the United States knowingly, or by reason of negligence, inspects or\ndiscloses any return or return information with respect to a taxpayer in violation of any provision\nof section 6103 or in violation of section 6104(c), such taxpayer may bring a civil action for\ndamages against such person in a district court of the United States.” 26 U.S.C.A. § 7431(a)(2).\nThus, if the Board administers a SNAP benefit program, then Smith and other Board employees\ncould sue for the negligent disclosure of their employee W-2 information.\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 6\n\n\n Smith claims that the Tipton County Board of Education is one such “local agency\nadministering a program,” because the Board coordinates the county’s National School Lunch\nProgram, which Smith argues is a SNAP benefit because a student from a household that\nreceives SNAP benefits is automatically enrolled in Tipton County’s school lunch program.\nSmith argues that the Board has even admitted to its involvement in the administration of SNAP\nbenefits by providing free school meals to students who receive SNAP benefits. For the\nfollowing reasons, Smith’s interpretation is contrary to the plain meaning of the statute, as well\nas the legislative intent.\n\n 1.\n\n The Tipton County Board of Education’s school lunch program is not a SNAP benefit.\n“[I]n any case concerning the interpretation of a statute[,] the ‘starting point’ must be the\nlanguage of the statute itself.” Lewis v. United States, 445 U.S. 55, 60 (1980) (quoting Reiter v.\nSonotone Corp., 442 U.S. 330, 337 (1979)). The Food and Nutrition Act established the\nsupplemental nutrition assistance program (“SNAP”) so that “eligible households within the\nState [would] be provided an opportunity to obtain a more nutritious diet through the issuance to\nthem of an allotment . . . .” 7 U.S.C.A. § 2013(a). The Food and Nutrition Act defines a\n“benefit” as “the value of supplemental nutrition assistance provided to a household by means of\n(1) electronic benefit transfer under § 2016(i) of this title; or (2) other means of providing\nassistance, as determined by the Secretary.” 7 U.S.C.A. § 2012(d) (emphasis added).\n\n Smith argues that the Board “provides ‘other means of assistance’ in administering SNAP\nbenefits because it is a local education authority responsible for, among other SNAP-related\nobligations, announcing availability of SNAP benefits in the form of free school meals and\nconfirming that SNAP recipients receive free school meals.” (CA6 R. 18, Appellant Br., at 13.)\nSuch an interpretation misrepresents the statute.\n\n Section 2012 does not simply refer to “other means of providing assistance.” Instead, it\nrefers only to “other means of providing assistance, as determined by the Secretary.” 7 U.S.C.A.\n§ 2012(d) (emphasis added). Here, “Secretary” refers to “the Secretary of Agriculture.”\n7 U.S.C.A. § 2012(p). An accurate representation of the statute would be, “The term ‘benefit’\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 7\n\n\nmeans the value of supplemental nutrition assistance provided to a household by . . . other means\nof providing assistance, as determined by the Secretary [of Agriculture].” 7 U.S.C.A. § 2012(d).\nThus, §2012(d) provides the Secretary of Agriculture with discretion to create new assistance\nprograms.\n\n Tennessee state law further acknowledges the Secretary’s discretion in administering\nSNAP benefits. The Tennessee Code, for example, requires that the department of human\nservices “[c]ooperate with the secretary of the United States department of agriculture . . . in any\nreasonable manner as may be necessary to qualify for federal aid for food stamp assistance or\nfood assistance in conformity with this part, including the making of such reports in such form\nand containing such information as the secretary of agriculture . . . may from time to time\nrequire[.]” Tenn. Code Ann. § 71-5-304(4).\n\n Smith would read out of the statute the legislature’s granting of discretion to the\nSecretary, instead understanding the statute to cover any “other means of assistance.” The\nSecretary has not decided, nor has Smith even argued that the Secretary has decided, that the\nNational School Lunch Program is one such SNAP benefit.\n\n Further, when addressing the use of the benefit, the statute states that “[t]he benefits so\nreceived by such households shall be used only to purchase food from retail food stores which\nhave been approved for participation in the supplemental nutrition assistance program.” 7\nU.S.C.A. § 2013(a) (emphasis added). The same section goes on to explain that the benefits\n“shall be redeemable at face value by the Secretary . . . .” Id. Meanwhile, “household” is\ndefined as an individual or a “group of individuals who live together and customarily purchase\nfood and prepare meals together for home consumption.” 7 U.S.C.A. § 2012(m)(1)(B) (emphasis\nadded). Finally, a “retail food store” is “an establishment . . . that sells food for home\npreparation and consumption.” 7 U.S.C. § 2012(o)(1) (emphasis added). Thus, the plain\nmeaning of the statutes clearly anticipates that SNAP benefits will take the form of an assignable\ndollar value to be used for retail food purchases to be prepared at home for home consumption.\nSuch an interpretation would not include a program that provides school lunches to students from\nlow-income households.\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 8\n\n\n Similarly, the legislative intent behind the SNAP Act differed significantly from that of\nthe National School Lunch Program. Congress created SNAP to “alleviate . . . hunger and\nmalnutrition [and] permit low-income households to obtain a more nutritious diet through\nnormal channels of trade by increasing food purchasing power for all eligible households who\napply for participation.” 7 U.S.C.A. § 2011 (emphasis added). Meanwhile, Congress enacted\nthe National School Lunch Program “to encourage the domestic consumption of nutritious\nagricultural commodities and other food, by assisting the States, through grants-in-aid and other\nmeans, in providing an adequate supply of foods and other facilities for the establishment,\nmaintenance, operation, and expansion of nonprofit school lunch programs.” 42 U.S.C.A.\n§ 1751. Therefore, it is clear that Congress contemplated two different statutory purposes in\naddressing two different issues they identified, one supporting households in their purchasing of\nfood and the other providing funding to support school lunch programs.\n\n 2.\n\n Smith argues that the Board “administers” a SNAP benefit program because any students\nfrom households that receive SNAP benefits are automatically eligible to receive a free or low-\ncost school lunch. But, the automatic eligibility criterion is insufficient to establish that the\nTipton County Board of Education “administers” a SNAP benefit program. Administrative\nresponsibilities regarding SNAP benefits are placed on State agencies. 7 U.S.C. §2020(a)(1). In\nTennessee, the Tennessee Department of Human Services “[s]upervise[s] the administration of\nthe food stamp or food assistance program . . . for eligible recipients . . . .” Tenn. Code Ann.\n§ 71-5-304. Applicants hoping to be eligible for benefits must submit an application to their\ncounty office of the state department of human services. Tenn. Code Ann. §§ 71-5-303(5), 71-5-\n306, 71-5-307.\n\n Responsibility for administering the National School Lunch Program, however, lies with\nthe Tennessee State Board of Education, as well as local school boards. The Tipton County\nBoard of Education thus argues that it “operates a school nutrition program pursuant to the\nprovisions of Tenn. Code Ann. § 49-6-2303 and the regulations thereto, providing school lunches\nand breakfasts in compliance with the standards and requirements of the Tennessee School\nNutrition Standards Act (Tenn. Code Ann. § 49-6-2301 et seq.), the federal National School\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 9\n\n\nLunch Act (42 U.S.C. § 1751 et seq.) and the federal Child Nutrition Act of 1966 (42 U.S.C.\n§ 1771 et seq.), and other specific federal statutes that are separate and apart from the Food and\nNutrition Act.” (CA6 R. 19, Appellee Br., at 21) (footnote omitted.) The district court found\nthat the Board does not accept applications for SNAP benefits, determine eligibility, issue\ncoupons, or enforce any SNAP regulations.\n\n The National School Lunch Program, meanwhile, provides free or low-cost lunches to\nstudents from low-income households. A student is automatically eligible to receive free lunch\nif she falls into one of seven categories, including if the child is a “member of a household\nreceiving assistance under the supplemental nutrition assistance program authorized by the Food\nand Nutrition Act.” 42 U.S.C. § 1758(b)(12)(A)(i).2 In Tipton County, any student whose\nhousehold receives SNAP benefits is automatically deemed eligible to participate in the National\nSchool Lunch Program. Though the Tennessee State Board of Education is tasked with\nadministering the National School Lunch Program in Tennessee, the State Board has entered into\na USDA-approved agreement with the Tipton County Board of Education which covers\noperation of the school lunch program.\n\n Apart from this automatic eligibility criterion, the Board has no association with SNAP\nbenefits. Thus, the two programs are administered by separate entities and created to serve two\nlegislative statutory purposes.\n\n\n\n\n 2The seven categories which would make a student automatically eligible for a free lunch and breakfast, as\nprovided by 42 U.S.C. § 1758, are: “(i) a member of a household receiving benefits under the supplemental\nnutrition assistance program authorized under the Food and Nutrition Act of 2008,” “(ii) a member of a family . . .\nthat the Secretary determines complies with standards established by the Secretary that ensure that the standards\nunder the State program are comparable to or more restrictive than those in effect on June 1, 1995,” “(iii) enrolled as\na participant in a Head Start program authorized under the Head Start Act . . . on the basis of a determination that the\nchild meets the eligibility criteria prescribed under Section 645(a)(1)(B) of the Head Start Act,” “(iv) a homeless\nchild or youth,” (v) a child “served by the runaway and homeless youth grant program established under the\nRunaway and Homeless Youth Act,” “(vi) a migratory child,” or (vii) a foster child whose care and placement is the\nresponsibility of a State agency or who the courts have placed with a caretaker household. 42 U.S.C.\n§ 1758(b)(12)(A).\n\f No. 18-5426 Smith, et al. v. Tipton Cty. Bd. of Educ. Page 10\n\n\n III.\n\n We therefore affirm the district court and find that the Board of Education did not\nadminister a SNAP benefit in providing free lunches to students under the National School\nLunch Program.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369865/", "author_raw": "JULIA SMITH GIBBONS, Circuit Judge"}]}	MOORE	GIBBONS	COOK	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592612/	Published	1	0	0	2,019	2	[ { "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...
4,592,613	AIRGAS USA, LLC, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.	Airgas USA, LLC v. Nat'l Labor Relations Bd.	2019-02-21	18-1686/1771	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Gibbons, Rogers, Stranch", "parties": "", "opinions": [{"author": "JANE B. STRANCH, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0024p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n AIRGAS USA, LLC, ┐\n Petitioner/Cross-Respondent, │\n │\n > Nos. 18-1686/1771\n v. │\n │\n │\n NATIONAL LABOR RELATIONS BOARD, │\n Respondent/Cross-Petitioner. │\n ┘\n\n On Petition for Review and Cross-Application for Enforcement\n of an Order of the National Labor Relations Board;\n No. 09-CA-158662.\n\n Argued: January 17, 2019\n\n Decided and Filed: February 21, 2019\n\n Before: GIBBONS, ROGERS, and STRANCH, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Michael C. Murphy, AIRGAS, INC., Radnor, Pennsylvania, for Petitioner/Cross-\nRespondent. Heather S. Beard, NATIONAL LABOR RELATIONS BOARD, Washington,\nD.C., for Respondent/Cross-Petitioner. ON BRIEF: Michael C. Murphy, AIRGAS, INC.,\nRadnor, Pennsylvania, for Petitioner/Cross-Respondent. Heather S. Beard, Linda Dreeben,\nNATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-\nPetitioner.\n _________________\n\n OPINION\n _________________\n\n JANE B. STRANCH, Circuit Judge. This case presents cross petitions—one for review\nand one for enforcement—regarding an order of the National Labor Relations Board (NLRB or\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 2\n\n\nthe Board). At issue is the level of discipline warranted for a safety violation. Steven Wayne\nRottinghouse, Jr., a truck driver employed by Petitioner Airgas USA, was issued a written\nwarning for failing to properly secure his cargo. An administrative law judge (ALJ) found that\nthe company used written discipline to retaliate against Rottinghouse for previously filing\ncharges against it, and a divided panel of the NLRB affirmed. Because the Board’s conclusions\nwere supported by substantial evidence, we GRANT the General Counsel’s application for\nenforcement of the Board’s decision and DENY Airgas’s petition for review.\n\n I. BACKGROUND\n\n In 2015, Rottinghouse was working as a truck driver at Airgas’s Cincinnati plant.\nAirgas’s driver trainer described him as “a very good driver” who “knows the truck [and] knows\nthe job.” Prior to 2015, Rottinghouse maintained good safety and driving records, with no\ndocumented violations of Airgas or Department of Transportation (DOT) rules.\n\n His record suffered in the spring and summer of 2015—a period that Rottinghouse\nalleges was marked by a series of unlawful labor practices by Airgas and, in particular, by Clyde\nFroslear, the operations manager at the Cincinnati plant. In a meeting in April 2015, Froslear\npurportedly changed disciplinary policies to eliminate verbal warnings; Rottinghouse filed a\ncharge with the NLRB alleging the change was made in retaliation for an earlier charge he had\nfiled. Then, in late June, Airgas suspended Rottinghouse for three days for completing DOT\npaperwork after clocking out. Froslear described the violation as severe, dishonest, and\npotentially a terminable offense. Rottinghouse, alleging the suspension was further retaliation,\nfiled a charge on July 7. That same month, Froslear provided an affidavit regarding the first\ncharge, and both charges remained pending in early August.\n\n On August 3, Rottinghouse pulled into the yard of the Airgas plant with a load of gas\ncylinders in his truck. The load consisted of at least one 12-pack of cylinders and four cylinders\nattached to the truck frame with two straps. The 12-pack, referred to as a “cradle” or a “bank,” is\ndescribed as a cage bolted together to keep the cylinders in place. Rottinghouse was responsible\nfor securing the four cylinders that were not in a cradle. Airgas’s driver training manual instructs\nthat “cylinders must be strapped, chained or secured to the vehicle so that they do not move or\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 3\n\n\nrattle.” Cylinders should also be “nested,” meaning placed in a secure, staggered formation with\neach cylinder supporting its neighbors. The cylinders in Rottinghouse’s truck, though secured\nwith two straps, were not nested properly and leaned slightly against the truck railing.\n\n Froslear was standing in the yard when Rottinghouse pulled in. According to the written\nwarning issued to Rottinghouse later that week, Froslear “heard rattling and saw [Rottinghouse]\npulling into the yard. When he went to investigate the noise, he saw that [Rottinghouse] had a\npallet on [his] truck that was not properly strapped, which was causing the noise.” Froslear went\ninto his office to retrieve his phone and safety glasses and returned to the truck. He took a\npicture of the leaning cylinders and, without physically inspecting the load, went back inside.\nFroslear did not speak to Rottinghouse about fixing the cylinder placement or tightening the\nstraps even though, according to the facts credited by the ALJ, the two men walked past each\nother twice. Rottinghouse checked the back of the truck to see what Froslear had photographed,\nreadjusted the cylinders and straps, and left the yard to complete his route. Froslear, who was\ninside looking out a window while talking to another employee, saw Rottinghouse fix the load.\n\n The next day, August 4, Froslear emailed Mark MacBride, Airgas’s driver trainer. He\nattached a copy of the photo he had taken and asked, “What do you think about this? Look good\nto you?” MacBride responded, “No with the cylinders being off set we would be hit for insecure\nload just by how it looks. Where is this truck[?]” When Froslear gave the name of the plant,\nMacBride wrote, “Not good, did the driver catch it before leaving[?]” Froslear wrote, “I saw it\nwhen he pulled in[to] the yard.” MacBride asked again, “Did it get fixed before leaving[?]” and\nFroslear wrote, “This is the way it was when he pulled in after his run.” MacBride responded,\n“Unacceptable,” and Froslear asked, “Where would I find the strongest language about load\nsecurement that drivers are trained to?” MacBride referred him to the training manual.\n\n On August 6, at a meeting with Rottinghouse, another plant manager, and the union\nsteward, Froslear handed Rottinghouse the written warning letter and explained that he had heard\nrattling himself. Rottinghouse responded that the noise was coming from the 12-cylinder bank,\nnot from the four strapped cylinders. Rottinghouse filed a grievance that day, writing that the\n“written warning [was] excessive” because the cylinders “were leaning a little but [did] not\nrattle.”\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 4\n\n\n That grievance gave rise to two meetings. At the first, on September 2, Froslear\nexplained that Article 22 of the Collective Bargaining Agreement provided for written warnings.\nRottinghouse disagreed, saying the warning should have been verbal. Froslear read Article 22\nand reiterated that “[t]he discipline stays.” At the second meeting, on September 23, Froslear\nagain denied the request to reduce the discipline to a verbal warning, this time explaining that it\nwas “not [Rottinghouse’s] first DOT violation” and that the incident was “sever[e].”\n\n Rottinghouse filed a charge with the Board. The ALJ concluded that the General\nCounsel had made a prima facie showing of discriminatory animus based on several lines of\nevidence, including “Froslear’s inconsistent and unbelievable testimony” about the events of\nAugust 3, along with his “complete lack of concern for safety” and his “out to get you attitude\ntowards Rottinghouse” as displayed in his emails to MacBride; the proximity in time between\nfiling a charge in July 2015 and the discipline one month later; and disparate treatment in issuing\na written warning to Rottinghouse after other employees received verbal warnings for\ncomparably serious violations. The ALJ discredited as pretextual Airgas’s nondiscriminatory\nreasons for disciplining Rottinghouse, deeming the reasons “shifting and inconsistent,” and\nconcluded that Airgas had violated § 8(a)(4) and (a)(1) of the National Labor Relations Act\n(NLRA or the Act), 29 U.S.C. § 158(a)(4), (a)(1). A divided panel of the Board agreed and\nadopted the ALJ’s order.\n\n Airgas petitions for review, and the General Counsel cross-applies for enforcement of the\nBoard’s order.\n\n II. ANALYSIS\n\n A. Standard of Review\n\n “Pursuant to 29 U.S.C. § 160(e), this court reviews the factual determinations made by\nthe NLRB under the substantial evidence standard.” NLRB v. Local 334, Laborers Int’l Union of\nN. Am., 481 F.3d 875, 878–79 (6th Cir. 2007). Under that deferential standard, we must “uphold\nthe NLRB’s factual determinations if they are supported by such relevant evidence as a\nreasonable mind might accept as adequate to support a conclusion,” id. at 879 (citation and\ninternal quotation marks omitted), even if “we may have reached a different conclusion had the\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 5\n\n\nmatter been before us de novo,” Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 304 (6th\nCir. 2012). When credibility is at issue, our review is even more deferential: “We will overturn\n[credibility] determinations only if they overstep the bounds of reason” or “are inherently\nunreasonable or self-contradictory.” Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536, 542 (6th\nCir. 2016) (citations omitted).\n\n B. The Wright Line Framework\n\n Section 8(a)(4) of the NLRA provides that it is an unfair labor practice for an employer\n“to discharge or otherwise discriminate against an employee because he has filed charges” under\nthe Act. 29 U.S.C. § 158(a)(4).1 This anti-retaliation provision is central to the purposes of the\nNLRA because, without some protection for employees attempting to access the Act’s\nprotections, the Board cannot “assure an effective administration of the Act.” In re Briggs Mfg.\nCo., 75 N.L.R.B. 569, 571 (1947).\n\n The language of § 8(a)(4) encompasses disproportionate or otherwise retaliatory\ndiscipline. We have explained that “[d]isciplinary action falling short of discharge may violate\nsection 8(a)(3) and (1) of the Act,” NLRB v. Consol. Biscuit Co., 301 F. App’x 411, 423 (6th Cir.\n2008), and that “intensified surveillance and written reports of minor on-the-job activities of\nemployees” may violate § 8(a)(1) of the Act, NLRB v. Fry Foods, Inc., 609 F.2d 267, 270 (6th\nCir. 1979) (per curiam). This logic applies equally to subsection (a)(4), whose broad language\nprohibiting “discharg[ing] or otherwise discriminat[ing]” easily includes the allegedly\nunwarranted discipline at issue here. Airgas does not argue otherwise.\n\n We analyze claims of discrimination in violation of the NLRA under the burden-shifting\nframework articulated in Wright Line, 251 N.L.R.B. 1083 (1980), and adopted by the Supreme\n\n\n\n\n 1The ALJ concluded that Airgas violated both § 8(a)(4) and (a)(1) of the Act. Section 8(a)(1) provides that\nan employer may not “interfere with, restrain, or coerce employees” exercising their rights to concerted action under\nthe NLRA. 29 U.S.C. § 158(a)(1). Under Board precedent, “any violation of Section 8(a)(3) [or] (4) of the Act is\nalso a derivative violation of Section 8(a)(1) of the Act.” Chinese Daily News, 346 N.L.R.B. 906, 933 (2006); see\nalso Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983) (discussing § 8(a)(3)). Because the Board did not\ndiscuss any violation of § 8(a)(1) apart from the conduct considered under the rubric of § 8(a)(4), we analyze only\nthe § 8(a)(4) charge.\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 6\n\n\nCourt in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).2 See FiveCAP, Inc.\nv. NLRB, 294 F.3d 768, 777 (6th Cir. 2002). The Wright Line test applies in cases alleging a\nviolation of § 8(a)(4). See NLRB v. Overseas Motor, Inc., 721 F.2d 570, 571 (6th Cir. 1983); see\nalso Taylor & Gaskin, Inc., 277 N.L.R.B. 563, 563 (1985).\n\n To establish a prima facie case of discrimination under Wright Line, “the General\nCounsel must demonstrate that (1) the employee was engaged in protected activity; (2) that the\nemployer knew of the employee’s protected activity; and (3) that the employer acted as it did on\nthe basis of anti-union animus.” FiveCAP, 294 F.3d at 777; see also Conley v. NLRB, 520 F.3d\n629, 642 (6th Cir. 2008) (per curiam). Airgas does not dispute the Board’s conclusion that the\nfirst two factors are satisfied. Rottinghouse filed two charges in the months leading up to the\nAugust written warning, and Froslear provided an affidavit regarding the first charge in July.\n\n The remaining element, anti-union animus, may be “inferred from circumstantial as well\nas direct evidence.” W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995). Purely\ncircumstantial factors that can support a finding of animus include:\n\n the company’s expressed hostility towards unionization combined with\n knowledge of the employees’ union activities; inconsistencies between the\n proffered reason for [discipline] and other actions of the employer; disparate\n treatment of certain employees compared to other employees with similar work\n records or offenses; a company’s deviation from past practices in implementing\n the [discipline]; and proximity in time between the employees’ union activities\n and their [discipline].\n\nId.; see also FiveCAP, 294 F.3d at 778.\n\n If the General Counsel establishes a prima facie case under Wright Line’s initial three-\nprong test, “the burden shifts to the employer to prove by a preponderance of the evidence that\nthe employee would have been [disciplined] for permissible reasons even if he had not been\ninvolved in activity protected by the [NLRA].” Overseas Motor, 721 F.2d at 571. If “the\n\n 2The Supreme Court later overruled a footnote in Transportation Management interpreting a provision of\nthe Administrative Procedure Act (APA). See Dir. v. Greenwich Collieries, 512 U.S. 267, 277–78 (1994). In so\ndoing, the Court left intact the holding of Transportation Management, explaining that the Wright Line test was\nconsistent with the APA “because the NLRB first required the employee to persuade it that antiunion sentiment\ncontributed to the employer’s decision. Only then did the NLRB place the burden of persuasion on the employer as\nto its affirmative defense.” Id. at 278; see also Arrow Elec. Co. v. NLRB, 155 F.3d 762, 766 & n.5 (6th Cir. 1998).\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 7\n\n\nemployer’s proffered justification for the decision is determined to be pretextual, the Board is not\nobligated to consider whether the employer would have taken the same decision regardless of the\nemployee’s union activity.” Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435–36 (6th Cir. 2007).\n\n 1. Evidence of Animus in the Prima Facie Case\n\n Whether Airgas’s decision to issue Rottinghouse a written warning was motivated by\nanti-union animus is a factual inquiry, and “[t]he Board’s inference of improper motivation must\nbe upheld if it is reasonable in light of the proven facts.” Birch Run Welding & Fabricating, Inc.\nv. NLRB, 761 F.2d 1175, 1179 (6th Cir. 1985). We examine the several strands of evidence that\nthe Board relied upon in affirming the ALJ’s finding of anti-union animus.\n\n a. Managerial Attitude and Inconsistency\n\n First, we consider the Board’s conclusion that Froslear took an “out to get you attitude”\ntoward Rottinghouse, including its determinations that “Froslear was not credible regarding his\nreal reasons for issuing Rottinghouse the warning letter,” that “Froslear’s actions contradicted his\npurported concern for safety,” and that his emails to MacBride were “evasive[]” and “show[ed]\nsuspect behavior.” These interrelated conclusions turn on Froslear’s perceived attitude and\ncredibility. Because the ALJ observed and evaluated Froslear during the hearing, we review\nwith a particularly light hand. See Caterpillar Logistics, 835 F.3d at 542.\n\n We begin with the foundational conclusion that Froslear’s testimony before the ALJ was\nnot credible. Froslear testified that when Rottinghouse drove into the yard, he “witnessed\ncylinders falling”—but when asked if the cylinders actually fell, he responded that they “tilted”\n10 or 15 degrees. The written warning he issued to Rottinghouse just after the incident\nmentioned neither falling nor tilting, instead stating only that Froslear “heard rattling.” The ALJ\ncredited Froslear’s written version, deeming his testimony equivocal, hesitant, and inconsistent,\nand concluded that Froslear’s testimony about the falling cylinders was “fabricated . . . in order\nto bolster his reasons for issuing the warning letter.” The ALJ similarly discredited Froslear’s\ntestimony that he never saw Rottinghouse near the truck, instead accepting Rottinghouse’s\nstatement that the men saw one another twice. Faced with two contradictory factual statements,\nthe ALJ could logically conclude that it was not “mere coincidence that [Froslear] happened to\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 8\n\n\nbe looking out the window when Rottinghouse was re-securing his cylinders,” and credit\nRottinghouse’s testimony that the two men knew each other’s locations. Considering the\ninconsistencies among Froslear’s oral and written accounts and between his version of events\nand Rottinghouse’s, the conclusion, adopted by the Board, that Froslear was not credible falls\nwell within “the bounds of reason.” Id.\n\n The credibility-based determination that Froslear saw Rottinghouse also supports the\nBoard’s conclusion that “Froslear’s actions contradicted his purported concern for safety—the\nreason he gave for issuing Rottinghouse the warning letter.” Under the facts accepted by the\nALJ and the Board, Froslear had two opportunities to instruct Rottinghouse to fix the problem,\nbut he said nothing. In contrast, Airgas’s driver trainer testified that, if he saw a load secured\nlike Rottinghouse’s, he would “go find [the] driver that was doing it. And get him out there and\ntell him, you’re driving around with loose cylinders, let’s get up and fix your truck.” Though\nmanagers and trainers may have different concerns, Froslear himself drew no such distinction\nhere. To the contrary, he testified that, if he had seen Rottinghouse—as the ALJ concluded he\nhad—he “would have said fix it before you leave.”\n\n Froslear also testified that his intervention was unnecessary because, after he returned\ninside the plant, he watched through a window as Rottinghouse rearranged the cylinders and\ntightened the straps. This justification has two flaws. First, Froslear agreed that physical\ninspections of loads are necessary to ensure security. Watching from a distance, Froslear could\nnot determine whether the newly strapped down cylinders moved when jostled. Second, by\nneglecting to speak to Rottinghouse, Froslear left open the possibility that Rottinghouse would\nnot fix the safety problem. Rottinghouse could have returned to his truck and driven away from\nthe plant without checking the load, and Froslear—already back inside—would have been unable\nto stop him. In light of these unexplained discrepancies, it was within the Board’s prerogative to\ndiscredit Froslear’s testimony that he was centrally concerned with the safety problem the\ncylinders posed. “[I]nconsistencies between the proffered reason for [the discipline] and other\nactions of the employer” are circumstantial evidence that can support a finding of animus.\nFiveCAP, 294 F.3d at 778 (quoting W.F. Bolin, 70 F.3d at 871).\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 9\n\n\n Another indicium of inconsistency (and so of anti-union animus) is Airgas’s “failure to\nconduct a meaningful investigation.” Bantek West, Inc., 344 N.L.R.B. 886, 895 (2005) (quoting\nK & M Elecs., Inc., 283 N.L.R.B. 279, 291 n.45 (1987)); see also Valmont Indus., Inc. v. NLRB,\n244 F.3d 454, 466 (5th Cir. 2001) (“[A]bsence of a meaningful investigation into allegedly\nimpermissible conduct before imposing discipline is an accepted form of circumstantial evidence\nof antiunion animus.”). Froslear expressed concern about two problems: the fact that the\ncylinders were leaning, and the rattling noise. Physical investigation was necessary to confirm\nthe source of the rattling noise. Froslear himself testified that a loose cylinder in a cradle can\nrattle without posing a safety problem, and it is undisputed that there was a cradle in\nRottinghouse’s truck. But when Froslear viewed the bed of Rottinghouse’s truck, he did not\ncheck the cradle for loose cylinders that could have caused the noise. Without sufficient\ninvestigation to rule out a viable alternative, Froslear had no basis to conclude in Rottinghouse’s\nwarning letter that “a pallet on your truck . . . was not properly strapped, which was causing the\n[rattling] noise.”\n\n The Board and ALJ found additional evidence of Froslear’s retaliatory motive in his\nemail exchange with MacBride. MacBride twice asked whether the driver had fixed the problem\nbefore leaving the yard. Although Froslear knew that Rottinghouse had, he twice failed to\nanswer MacBride’s question directly and then requested “the strongest language about load\nsecurement that drivers are trained to.” The Board determined that Froslear’s “evasiveness”\nprovided “context to the ‘strongest language’ request,” and the email exchange, when considered\nalongside other record evidence, was “strong evidence of the Respondent[’s] animus.” Froslear\ngave a different explanation for his responses, testifying that “MacBride [did not] realize that this\nload [was] not going out for the first time, that it returned off the road” in this condition. But\n“[s]imply showing that the evidence supports an alternative story is not enough. [Airgas] must\nshow that the Board’s story is unreasonable.” NLRB v. Galicks, Inc., 671 F.3d 602, 608 (6th Cir.\n2012). It was not unreasonable for the Board to conclude that this exchange was more consistent\nwith a focus on catching Rottinghouse than on improving safety.\n\n Evaluating the credibility and motivation of an individual witness fits squarely within the\nexpertise of the ALJ. In this case, a central question is whether Froslear was motivated by a\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 10\n\n\ndesire to improve safety at the plant or by anti-union animus. Substantial evidence supports the\nBoard’s conclusions that Froslear’s description of the events of August 3 was not credible and\nthat he was not truly concerned with fixing a safety problem. Those conclusions support the\nBoard’s finding that Froslear was motivated by anti-union animus.\n\n b. Temporal Proximity\n\n The Board also considered the timing of the events. “[P]roximity in time between the\nemployees’ union activities and their [discipline]” is circumstantial evidence that can contribute\nto a finding of anti-union animus. FiveCAP, 294 F.3d at 778 (quoting W.F. Bolin, 70 F.3d at\n871). Rottinghouse received his written warning on August 6, just under a month after he filed a\ncharge with the Board. Comparable time intervals support a finding of animus. See, e.g., NLRB\nv. E.I. DuPont de Nemours, 750 F.2d 524, 529 (6th Cir. 1984) (three weeks); JMC Transp., Inc.\nv. NLRB, 776 F.2d 612, 615–16, 620 (6th Cir. 1985) (approximately one month).\n\n Airgas contends that the interval should begin with the date Airgas first became aware of\nRottinghouse’s filing of charges, no later than April 2015. The argument that temporal\nproximity must be calculated in relation to the first known instance of protected conduct is not\nsupported by precedent. To the contrary, in E.I. DuPont de Nemours, we found it suspicious that\na union supporter was discharged “[a] mere three weeks after the close of the representation\ncampaign.” 750 F.2d at 529. We were not concerned that the supporter’s first protected\nactivity—contacting the union about organizing the plant’s workforce—had occurred several\nmonths prior. Id. at 526–27. Firing the worker soon after a critical protected event (the election)\nlogically raised an inference of animus regardless of when the protected activity began. The\nsame is true here, where the discipline occurred soon after another critical protected event: the\nfiling of charges.\n\n Substantial evidence therefore supports the Board’s conclusion that the temporal\nproximity between the protected activity and the discipline was evidence of animus.\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 11\n\n\n c. Disparate Treatment\n\n Finally, the Board considered “evidence of disparate treatment” with regard to\nRottinghouse’s written warning. “[D]isparate treatment of certain employees compared to other\nemployees with similar work records or offenses” may support a finding of anti-union animus.\nFiveCAP, 294 F.3d at 778 (quoting W.F. Bolin, 70 F.3d at 871).\n\n The record contains only one instance of discipline for failing to secure cylinders. In that\ncase, Bill Huff received a “written counseling” when his truck contained “a loose cylinder on its\nside on the floor of the trailer, one pallet with unsecured cylinders [and] another pallet containing\nliquid containers only secured with one strap.” Froslear testified that the two offenses were\ncomparable because “[u]nsecured is unsecured.” MacBride similarly testified that “moving\ncylinders are moving cylinders.” The union steward disagreed, testifying that “Huff’s incident\n[was] more serious” because the cylinders “could’ve fell off the back of the truck.” Because the\nALJ’s conclusion that the safety problem was more immediate when a cylinder was entirely\nloose is supported by record evidence, Huff’s written warning is of limited use in the disparate\ntreatment analysis.\n\n In support of the Board’s finding, the General Counsel points to evidence of two\nemployees who received verbal warnings for serious violations of safety regulations unrelated to\nsecuring loads. First, John Jeffries received a verbal warning for causing a preventable backing\naccident. This disciplinary choice was unusual for Airgas; on two other occasions, employees\nwere given written warnings for causing preventable accidents. Similarly unusual is the fact that\nthis warning was not documented on Airgas’s standard discipline form used for verbal warnings.\nGiven these unexplained irregularities and the ALJ’s decision to spend only a sentence on the\nJeffries example in her disparate treatment analysis, we likewise place little weight on the\nincident.\n\n The General Counsel’s second example involves Edger Reed, who received verbal\ncounseling for talking on the phone while driving. The disciplinary letter points out that “[t]his\nDOT violation could have made [Reed] subject to a $2,570 fine and Airgas subject to an $11,000\nfine.” Though Airgas asserts in passing that Reed’s incident was “minor,” in light of the\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 12\n\n\nmagnitude of potential penalties that Airgas itself identified in Reed’s warning letter, the Board\nwas not required to accept that evaluation.\n\n Airgas also argues that Reed’s example is inapposite because a hand-written note on\nReed’s warning letter explains that it was “[r]educed to verbal,” presumably by operation of the\ngrievance process after initially receiving a higher level of discipline such as a written warning.\nBut the case Airgas cites is not on point. M & G Convoy, Inc., 287 N.L.R.B. 1140, 1144–45\n(1988), rejects the theory that prior warnings rescinded during the grievance process demonstrate\nanimus in the subsequent discipline of the same employee. There, the ALJ commended the\nemployer for being “flexible enough to realize in reaction to employee complaints that it might\nnot succeed in a contractual grievance procedure. This is the action of a fair and reasonable\nemployer, not one seeking to discriminate.” Id. at 1144. In this case, the General Counsel\nadvances a different argument entirely: that two employees filed grievances about warnings\ngiven to them, but only one received a reduction in the level of discipline assessed. The General\nCounsel argues that the difference in result can be attributed to anti-union animus.\n\n It was within the Board’s authority to consider the difference in treatment between\nRottinghouse and Reed in attempting to discern anti-union animus. Viewing that evidence\nalongside the temporal proximity to protected activity and the conclusions regarding Froslear’s\npoor credibility and lack of demonstrated safety concern, a reasonable mind could conclude that\nAirgas chose to issue a written warning to Rottinghouse because of his charge-filing activity.\nSee Local 334, 481 F.3d at 879. In other words, substantial evidence supports the Board’s\ndecision that Airgas “acted as it did on the basis of anti-union animus.” FiveCAP, 294 F.3d at\n777.\n\n 2. Airgas’s Nondiscriminatory Reason\n\n Under Wright Line, the burden then shifts to Airgas “to prove that it would have made the\nsame employment decision regardless” of Rottinghouse’s protected activity. Ctr. Constr. Co.,\n482 F.3d at 435. If the employer’s proffered justification is determined to be pretextual, the\nBoard need not consider it. Id. at 435–36. Airgas argues that written discipline was warranted\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 13\n\n\nbecause of the undisputed existence of a safety violation and because Rottinghouse had\npreviously committed another DOT violation.\n\n For the reasons explained above, substantial evidence supported the conclusions that\nFroslear’s actions were not calculated to rectify a safety problem and that his testimony about the\nlevel of safety concern posed was not credible. The Board therefore properly concluded that the\nALJ’s “animus analysis and her credibility findings clearly establish that the Respondent’s\nreasons for issuing a written warning as opposed to a verbal warning were pretextual.”\n\n The NLRB also considered whether Rottinghouse’s prior DOT violation could justify the\nissuance of a warning, ultimately concluding that the suggestion “was disingenuous, at best,\nbecause the record establishes that it did not.” The first time Froslear mentioned the prior\nviolation was the September 23 grievance meeting. By then, Airgas had already had at least\nthree opportunities to explain its actions. First, the prior violation could have been mentioned in\nthe written warning itself, as with another warning letter in the record stating, “This is not the\nfirst issue [the employee has] had following DOT compliance as an Airgas driver.”\nRottinghouse’s warning contained no such statement. Second, the prior violation could have\nbeen mentioned on August 6 when the letter was given to Rottinghouse. It was not. Third, the\nprior violation could have been mentioned when, at the grievance meeting on September 2, the\nunion steward stated that the warning should have been verbal. Froslear instead read Article 22\nof the Collective Bargaining Agreement—in essence, responding that because Article 22 does\nnot mention verbal warnings, a written warning was appropriate for any infraction. Given\nAirgas’s undisputed history of giving verbal warnings, the Board reasonably concluded that this\njustification was not supported. It was not until three weeks later that Froslear offered the\njustification that Airgas advances now. This “fail[ure] to provide a clear, consistent and credible\nexplanation” for discipline supports a finding of pretext. NLRB v. Inter-Disciplinary Advantage,\nInc., 312 F. App’x 737, 751 (6th Cir. 2008); see also Healthcare Emps. Union, Local 399 v.\nNLRB, 463 F.3d 909, 922 (9th Cir. 2006) (“Where the employer’s asserted justification is\nshifting and unreliable, its case is weakened, and the conclusion that the true reason was for\nunion activity is correspondingly strengthened.” (quoting NLRB v. Nevis Indus., Inc., 647 F.2d\n905, 910 (9th Cir. 1981))).\n\f Nos. 18-1686/1771 Airgas USA, LLC v. NLRB Page 14\n\n\n The Board’s finding of pretext was therefore supported by substantial evidence, and it\nwas not obligated to consider the justification any further. See Ctr. Constr. Co., 482 F.3d at\n435–36.\n\n III. CONCLUSION\n\n For the foregoing reasons, we GRANT the General Counsel’s application for\nenforcement and DENY Airgas’s petition for review.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369866/", "author_raw": "JANE B. STRANCH, Circuit Judge"}]}	GIBBONS	ROGERS	STRANCH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592613/	Published	1	0	0	2,019	2	[ { "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...
4,593,145	NICOLE GAS PRODUCTION, LTD., Debtor. James A. Lowe ; Curtland H. Caffey; S. Brewster Randall, II; Robert C. Sanders, Appellants, v. Brenda K. Bowers, Chapter 7 Trustee of the Bankruptcy Estate of Nicole Gas Production, Ltd., Appellee.	Lowe v. Bowers (In Re Nicole Gas Prod., Ltd.)	2019-02-22	18-3301	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Merritt, Cook, Larsen", "parties": "", "opinions": [{"author": "MERRITT, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0026p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n NICOLE GAS PRODUCTION, LTD., ┐\n Debtor. │\n ___________________________________________ │\n │\n │ No. 18-3301\n JAMES A. LOWE; CURTLAND H. CAFFEY; S. BREWSTER >\n RANDALL, II; ROBERT C. SANDERS, │\n │\n Appellants, │\n │\n v. │\n │\n │\n BRENDA K. BOWERS, Chapter 7 Trustee of the\n │\n Bankruptcy Estate of Nicole Gas Production, Ltd.,\n │\n Appellee. │\n │\n │\n ┘\n\n On Appeal from the Bankruptcy Appellate Panel of the Sixth Circuit.\n Nos. 15-8053/8055—Paulette J. Delk, Marian F. Harrison, and Daniel S. Opperman,\n Bankruptcy Appellate Panel Judges.\n\n United States Bankruptcy Court for the Southern District of Ohio at Columbus.\n No. 2:09-bk-52887—John E. Hoffman, Judge.\n\n Argued: October 18, 2018\n\n Decided and Filed: February 22, 2019\n\n Before: MERRITT, COOK, and LARSEN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Rick L. Ashton, ALLEN, KUEHNLE, STOVALL & NEUMAN, LLP, Columbus,\nOhio, for Appellant Lowe. Robert C. Sanders, Upper Marlboro, Maryland, pro se. Daniel E.\nShuey, VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellee.\nON BRIEF: Rick L. Ashton, James A. Coutinho, ALLEN, KUEHNLE, STOVALL\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 2\n\n\n& NEUMAN, LLP, Columbus, Ohio, for Appellant Lowe. Daniel E. Shuey, Brenda K. Bowers,\nVORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellee. Robert C.\nSanders, Upper Marlboro, Maryland, S. Brewster Randall, II, Curtland H. Caffey, Columbus,\nOhio, pro se.\n\n _________________\n\n OPINION\n _________________\n\n MERRITT, Circuit Judge. This is a bankruptcy contempt dispute. Normally a party’s\nconduct is contemptuous or it is not. But in this unusual case, whether the defendants are in\ncontempt depends on statutory construction. The question presented is whether the Ohio RICO\nstatute gives the sole shareholder of a bankrupt corporation standing to circumvent the automatic\nstay and individually sue a competitor. The issue is a complex intersection of three areas of law:\nthe principle of the derivative suit in corporate law, the function of the automatic stay in\nbankruptcy, and the extent and construction of a specific state’s RICO laws. In this appeal, we\nmust consider how these precepts work together where the RICO statute offers no explicit\nguidance on how the claim should operate in the corporate and bankruptcy contexts. But for all\nthe legal overlays here, ultimately the Appellants are in contempt or they are not.\n\n The basic facts. Appellant Freddie Fulson1 owned a company called Nicole Gas that\nentered bankruptcy proceedings. During the bankruptcy, Fulson became dissatisfied with the\nTrustee’s handling of claims that Nicole Gas held against its competitors. With the help of two\nlawyers, Appellants Robert Sanders, Esq. and James A. Lowe, Esq., Fulson sought relief in state\ncourt under the Ohio Corrupt Practices Act (Ohio civil RICO) against the competitors that\nallegedly put his business into bankruptcy. Because Fulson alleged damages incurred only by\nthe debtor-business, the Trustee alleged that he had appropriated claims that the Trustee owned.\nBy filing this action during the bankruptcy, the Trustee alleged that Fulson, Sanders, and Lowe\nviolated the automatic stay. The Bankruptcy Court agreed and held the three in contempt and\nentered a judgment for roughly $91,000. The contempt finding and fee order are the subjects of\nthe instant appeal.\n\n 1Fulson died during the pendency of the bankruptcy, and his estate was substituted in the proceedings\nbelow and here.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 3\n\n\n Back to legal principles. Derivative liability is a cardinal tenet of corporate common law.\nWhen an artificial entity (a corporation) is injured, shareholders cannot necessarily redress that\ninjury themselves. See 19 Am. Jur. 2d Corporations § 1935 (1998) (“[W]here the injury is to the\ncorporation, and only indirectly harms the shareholder, the claim must be pursued as a derivative\nclaim.”); see also James D. Cox & Thomas Lee Hazen, 3 Treatise on the Law of Corporations\n§ 15:2 (3d ed. 2010) (“An almost necessary consequence of a wrong to a corporation is some\nimpairment of the value of each shareholder’s stock interest. As a general rule, however,\nshareholders are considered to have no direct individual right of action for corporation wrongs\nthat impair the value of their investment.”).\n\n As to the bankruptcy gloss on this dispute, the Bankruptcy Code imposes a powerful stay\non parties attempting to gain control over the property of the debtor’s estate. See 11 U.S.C.\n§ 362(a)(3) (“[A] petition . . . operates as a stay, applicable to all entities, of . . . any act to obtain\npossession of property of the estate or of property from the estate or to exercise control over\nproperty of the estate”). The policy imperative behind the automatic stay is to “give[] the debtor\na breathing spell from creditors and stop[] foreclosure actions, collection efforts, and creditor\nharassment.” 2 Norton Bankr. L. & Prac. 3d § 43:4 (2019).\n\n The precise language of the Ohio Corrupt Practices Act is the complicating factor here.\nThe Appellants claim that the wording of the statute converts a derivative shareholder action to\nan individual claim because it provides a private right of action for “any person directly or\nindirectly injured by conduct” violating the Act. Ohio Rev. Code § 2923.34. As the sole\nshareholder of Nicole Gas, normally Fulson would have to seek relief from Nicole Gas’s\ncompetitors via the traditional route of derivative liability. But, his successors argue, the Corrupt\nPractices Act means both (a) that he did not have to pursue a derivative claim at all, and (b) that\nthus, the bankruptcy Trustee did not have the right to exercise control over the claim. If Fulson’s\nsuccessors are right, and the claim against Nicole Gas’s competitors can be alleged outside of\ncorporate law and via the Corrupt Practices Act, then they did not violate the automatic stay.\nThus, the basis for the Contempt and Fee Orders would disappear. We shall see in due course\nthat they are wrong. In agreement with the persuasively reasoned decisions below, both in the\nBankruptcy Court and the Bankruptcy Appellate Panel, we AFFIRM.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 4\n\n\n I. FACTUAL AND PROCEDURAL BACKGROUND\n\n In the late 1990s, Freddie Fulson formed several corporate entities to produce and market\nnatural gas in the Midwest. One of these entities is the debtor in the bankruptcy case, Nicole Gas\nProduction, Ltd. The bottom line is that Fulson was the indirect equity owner of Nicole Gas and\nwas calling the shots. To market and move the gas, Fulson’s entities contracted with a larger\ncompany, Columbia Gas Transmission, and its affiliates. Eventually, relations between\nColumbia Gas and Fulson’s entities soured and in the early 2000s a decade of litigation in state\nand federal court began. For his part, Fulson believed that Columbia Gas had conspired with\nother entities, including Nicole Gas’s creditors, to put him out of business. Columbia Gas did\nthis, he alleged, by mismeasuring the amount of natural gas produced by Fulson’s wells,\nmisappropriating gas that the entities delivered into Columbia Gas’s transmission system, and\nimproperly soliciting his creditors to force Nicole Gas into bankruptcy proceedings. This\nbankruptcy proceeding began in 2009 and has continued since then, but it is only the tip of the\niceberg of the disputes between these entities.\n\n In 2013, while Nicole Gas was in bankruptcy proceedings, the corporation’s bankruptcy\nTrustee, Frederick Ransier, proposed settling all of Nicole Gas’s claims against Columbia Gas\nfor $250,000. Back in 2001, one of Nicole Gas’s affiliates, Nicole Energy Services, Inc., had\nasserted claims against Columbia Gas for $36 million. Likely miffed that the Trustee was trying\nto settle similar claims for less than a million dollars, Fulson objected to that settlement in\nOctober of 2012. But objecting in the proper and usual course was not enough for him.\nSometime after objecting to the settlement, Fulson began working with Robert C. Sanders, Esq.,\na Maryland attorney who had represented one of Fulson’s other gas companies in state court.\nFulson filed a new complaint in Ohio state court against Columbia Gas seeking roughly $34\nmillion in damages. Fulson, Sanders, and Lowe wanted to try the claims to a jury in state court\nbecause, according to Sanders, jurors “don’t like utility companies.” 519 B.R. at 740 n.18.\n\n The state court complaint recited the history between the companies and alleged that\nColumbia Gas had violated the Ohio Corrupt Practices Act, Ohio Rev. Code § 2923.31 et seq.,\nwhich provides that no person shall engage in a pattern of corrupt activity, defined as engaging\nin racketeering, theft, telecommunications fraud, and the like. Id. § 2923.32. This is Ohio’s\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 5\n\n\nRacketeer Influenced and Corrupt Organizations (“RICO”) statute. The Act includes a private\nright of action in § 2923.34 which allows for treble damages for “any person directly or\nindirectly injured by conduct” violating the Act (emphasis added). The Act presented an\nattractive avenue for relief because it carries treble damages and confers broad standing on\nlitigants. Fulson and Sanders then hired James A. Lowe, Esq., of Cleveland as local counsel, and\nthe three of them together filed the complaint (with Fulson as the sole plaintiff) in the Court of\nCommon Pleas for Franklin County, Ohio, in January 2013. Because Nicole Gas was a domestic\nlimited liability company, it counted as a “person” in Ohio and could have asserted these claims\nagainst Columbia Gas.\n\n There was one big problem with the complaint: Fulson couched his damages as directly\nresulting from his status as the sole shareholder of Nicole Gas’ parent corporation. He alleged\nno damages that related to him personally; he only pled that he had been harmed because of his\nindirect ownership of Nicole Gas. In multiple paragraphs of the complaint, Fulson’s attorneys\nrecited the damages to Fulson as sustained by the corporation he owned.2 Usually, when a\ncorporation is damaged, shareholders seek relief through a derivative suit. Fulson, Sanders, and\nLowe, however, believed that the language of the Corrupt Practices Act would allow them to\ncircumvent both the automatic stay and the principle that the bankruptcy trustee has the sole right\nto assert a debtor’s causes of actions. See Stevenson v. J.C. Bradford & Co. (In re Cannon),\n277 F.3d 838, 853 (6th Cir. 2002); Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.\n1988).\n\n Because Nicole Gas was in bankruptcy proceedings, filing a derivative suit (based on the\nCorrupt Practices Act or some other statute) would have meant seeking relief from the automatic\nstay, see 11 U.S.C. § 362(d); Fed. R. Bankr. P. 4001(a), or convincing the bankruptcy trustee to\neither bring the claims himself or abandon them, see Maloof v. Level Propane, Inc., 429 F.\n\n\n 2For instance, Paragraph 120 of the state court complaint reads, “The Plaintiff has standing to bring a civil\naction against the Defendants under Section 2923.34(E) of the Act because, as the owner of NES, he is a person who\nwas ‘directly or indirectly injured’ by the Defendants’ violations…” (emphasis added). Paragraph 126 continues\nthis grammatical pattern: “The amount of the damages caused to the Plaintiff by the Defendant’s violations of the\nAct are (1) the net damages of $36,654,305.94 sustained by NES…and (2) the damages sustained by NGP…”\n(emphasis added). By its very terms, then, the state court complaint pled damages that were incurred by the\ncorporation.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 6\n\n\nApp’x 462, 468 (6th Cir. 2011). Keep in mind that in a Chapter 7 bankruptcy, the role of the\nTrustee is to close the estate as expeditiously as possible. See 11 U.S.C. § 704(a); see also In re\nModern Plastics Corp., 732 F. App’x. 379, 384 (6th Cir. 2018) (discussing trustee duties).\nFulson and his lawyers did not consult Ransier, who discovered the complaint when an employee\nconducted a routine state court docket check. At that time, Ransier was in the process of\nnegotiating and finalizing a settlement agreement with Columbia Gas that would take care of\n“any and all” claims Nicole Gas might hold against Columbia. Ransier believed that the Corrupt\nPractices Act claim fell under this settlement umbrella, and he filed a Motion for Contempt\nbefore the Bankruptcy Court. The Corrupt Practices action in state court was stayed.\n\n The Bankruptcy Court held a hearing and heard testimony from Fulson’s two attorneys\nand Ransier. In a 56-page order (the “Contempt Order”), reported as In re Nicole Gas Prod.,\nLtd., 519 B.R. 723 (Bankr. S.D. Ohio 2014), the Court found that Fulson, Lowe, and Sanders\n(collectively, “the Fulson Parties”) had willfully violated the automatic stay, 11 U.S.C.\n§ 362(a)(3), by filing the Corrupt Practices Act complaint. In this order, the Bankruptcy Court\nanalyzed the Ohio Corrupt Practices Act in detail and concluded that Fulson had no independent\nstanding to raise claims that belonged to Nicole Gas. After soliciting additional briefing and\nholding a separate hearing, the Court issued a second 51-page order (the “Fee Order”), reported\nas In re Nicole Gas Prod., Ltd., 542 B.R. 204 (Bankr. S.D. Ohio 2015), detailing the amount of\ndamage that the Fulson Parties had done to Nicole Gas’s estate and directing them to pay\n$91,068.00 to Ransier. The Fulson Parties – Fulson’s attorneys in the Corrupt Practices Act case\n(James A. Lowe, Esq. and Robert C. Sanders, Esq.), and the administrators of Fulson’s estate –\nappealed the Contempt and Fee Orders to the Bankruptcy Appellate Panel for the Sixth Circuit.\n\n The Bankruptcy Appellate Panel proceeded in two stages. In August 2016, the Panel\ncertified a question of law to the Ohio Supreme Court. The Panel asked the Ohio Supreme Court\nwhether an injured shareholder was entitled to individual standing under the Ohio Corrupt\nPractices Act. In October 2016, the Ohio Supreme Court declined to answer the certified\nquestion and dismissed the cause. In March of 2018, the Bankruptcy Appellate Panel issued a\ndecision addressing the merits of the Fulson Parties’ claims. The Panel affirmed the Bankruptcy\nCourt in all respects (the “Bankruptcy Appellate Panel Opinion”), reported as In re Nicole Gas\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 7\n\n\nProd., Ltd., 581 B.R. 843 (B.A.P. 6th Cir. 2018), and concluded that an individual shareholder\ncould not use the Ohio Corrupt Practices Act to convert a corporate law claim into an individual\none. Thus, the claim was the property of the bankruptcy estate, and the Fulson Parties had\nviolated the automatic stay by misappropriating that claim. The Fulson Parties appealed again to\nthe Sixth Circuit. Ransier was eventually replaced by Brenda K. Bowers, the Successor Trustee\nof the bankruptcy estate of Nicole Gas Production, Ltd.\n\n II. ANALYSIS\n\n We have jurisdiction to review orders of the Bankruptcy Appellate Panel under 28 U.S.C.\n§ 158(d)(1). Review of the Bankruptcy Court’s decision is independent of the Bankruptcy\nAppellate Panel’s review. In re Curry, 509 F.3d 735 (6th Cir. 2007). The Sixth Circuit uses the\n“clear error” standard for factual findings and reviews conclusions of law de novo. In re Century\nBoat Co., 986 F.2d 154, 156 (6th Cir. 1993). Generally, bankruptcy court determinations of\ncontempt are examined under an abuse of discretion standard. In re Wingerter, 594 F.3d 931,\n936 (6th Cir. 2010).\n\n Filing a bankruptcy petition creates a bankruptcy estate, which includes “all legal or\nequitable interests of the debtor in property as of the commencement of the case,” 11 U.S.C.\n§ 541(a)(1), including causes of action, In re Parker, 499 F.3d 616, 624 (6th Cir. 2007). “The\nnature and extent of property rights in bankruptcy are determined by the ‘underlying substantive\nlaw’”—Ohio law, in this case. Tyler v. DH Capital Mgmt., Inc., 736 F.3d 455, 461 (6th Cir.\n2013); In re Underhill, 579 F. App’x 480. 482 (6th Cir. 2014) (“State substantive law determines\nthe ‘nature and extent’ of causes of action . . .”). “[O]nce that determination is made, federal\nbankruptcy law dictates to what extent that interest is property of the estate for the purposes of\n§ 541.” DH Capital Mgmt., 736 F.3d at 461 (quoting Bavely v. United States (In re Terwilliger’s\nCatering Plus, Inc.), 911 F.2d 1168, 1172 (6th Cir. 1990)).\n\n If a shareholder has sole right to assert a cause of action, the cause of action is not part of\nthe bankruptcy estate. Whether a shareholder “has sole right to a cause of action is determined in\naccordance with state law.” Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d\n945, 947 (6th Cir. 1997) (citing Oakland Gin Co. v. Marlow (In re The Julien Co.), 44 F.3d 426,\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 8\n\n\n429 (6th Cir. 1995). Under Van Dresser, whether “shared” causes of action belong to the\nbankruptcy estate comes down to two questions: (1) whether both the shareholder and the\ncorporation-debtor could state claims for the damages; and, if so, (2) whether the shareholder\nand corporation-debtor could both recover full damages. Van Dresser, 128 F.3d at 947–48. If\neither’s recovery can “preclude[] the other from a subsequent recovery, then the claims are not\ntruly independent.” Id. Absent being “truly independent,” the claims belong to the bankruptcy\nestate in toto.\n\n A. The Ohio Corrupt Practices Act\n\n The most important question raised by the Fulson Parties is substantively a question of\nOhio state law. There is no case or statute explicitly suggesting that the Ohio Corrupt Practices\nAct does or does not confer standing upon an individual shareholder to seek redress for damages\nvisited upon a corporation. But applying principles of construction announced by the Ohio\nSupreme Court, we can triangulate a clear answer. The relevant section of the Corrupt Practices\nAct reads:\n\n (E) In a civil proceeding under division (A) of this section, any person directly or\n indirectly injured by conduct in violation of section 2923.32 of the Revised Code\n or a conspiracy to violate that section, other than a violator of that section or a\n conspirator to violate that section, in addition to relief under division (B) of this\n section, shall have a cause of action for triple the actual damages the person\n sustained. To recover triple damages, the plaintiff shall prove the violation or\n conspiracy to violate that section and actual damages by clear and convincing\n evidence. Damages under this division may include, but are not limited to,\n competitive injury and injury distinct from the injury inflicted by corrupt activity.\n\nOhio Rev. Code § 2923.34(E) (emphasis added).3 On its face, this is a broadly written statute\nallowing for a wide set of claims. It employs the words “any” and “indirectly” to expand the\nscope of civil RICO claims contemplated in the federal case law. See Iron Workers Local Union\n\n\n 3The rest of the Ohio Corrupt Practices Act contains few explicit references to corporate law. First, Ohio\nRev. Code § 2923.34(B)(5) allows a court to dissolve a corporation on a finding that the corporation violated the\nAct. Second, the Act’s Definitions section, § 2923.31(A)(3), excludes stockholders from the definition of\n“beneficial interest.” But as the Act currently stands, “beneficial interests” are only referenced in § 2923.36, which\ndiscusses the filing of corrupt activity liens. In other words, one may not file a corrupt activity lien against the\ninterest of a stockholder. Aside from these passing references, corporate law and rights thereunder go unmentioned\nin the Act. The statute is simply not written as specifically addressing claims relating to the corporate form.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 9\n\n\nNo. 17 Ins. Fund v. Philip Morris Inc., 23 F. Supp. 2d 771, 788 (N.D. Ohio 1998) (hereinafter\nIron Workers I) (“In choosing to broaden standing to bring RICO actions under state law, the\nOhio General Assembly decided to widen the right to bring an action.”). But it is not clear in\nthis context that by using “indirectly injured” the statute allows shareholders to seek recovery\nunder the Corrupt Practice Act for an entity’s injury. Indeed, the conclusion that “indirect”\ninjuries under the Corrupt Practices Act do include a shareholder’s derivative injuries is as\nplausible as the conclusion that they do not. The statutory language is thus ambiguous. See\nJacobson v. Kaforey, 75 N.E.3d 203 (Ohio 2016) (“Ambiguity, in the sense used in our opinions\non statutory interpretation, means that a statutory opinion is capable of bearing more than one\nmeaning.” (quotation marks omitted)); Hughes v. White, 388 F.Supp.2d 805, 818 (S.D. Ohio\n2005) (“A statute is ambiguous ‘if the language is susceptible [to] more than one reasonable\ninterpretation.” (quoting State v. Jordan, 733 N.E.2d 601, 605 (Ohio 2000))).\n\n Because the language is ambiguous, we therefore look to additional principles of\nstatutory interpretation. State v. Thomas, 70 N.E.3d 496, 498 (Ohio 2016). We must, for\nexample, presume that the Ohio General Assembly passed the Corrupt Practices Act with\nknowledge of the existing common law of derivative suits. In Ohio, shareholders may not\npursue claims based on injuries to a corporation in which the shareholder holds an interest; the\nproper path for remedy is the derivative suit. See generally 12 Ohio Jur. 3d Business\nRelationships § 899 (2018) (“A plaintiff-shareholder does not have an independent cause of\naction where there is no showing of individual injury in any capacity other than in common with\nall other shareholders as a consequence of the wrongful actions of a third party directed toward\nthe corporation.”). The seminal Ohio case is Adair v. Wozniak, 492 N.E.2d 426 (Ohio 1986). In\nAdair, the Ohio Supreme Court wrote:\n\n Where the defendant’s wrongdoing has caused direct damage to corporate worth,\n the cause of action accrues to the corporation, not to the shareholders, even\n though in an economic sense real harm may well be sustained by the shareholders\n as a result of reduced earnings, diminution in the value of ownership, or\n accumulation of personal debt and liabilities from the company’s financial\n decline. The personal loss and liability sustained by the shareholder is both\n duplicative and indirect to the corporation’s right of action…. Although this is a\n case of first impression, we accept and follow the widely recognized rule that a\n plaintiff-shareholder does not have an independent cause of action where there is\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 10\n\n\n no showing that he has been injured in any capacity other than in common with\n all other shareholders as a consequence of the wrongful actions of a third party\n directed towards the corporation.\n\nId. at 429 (internal citations omitted) (emphasis added). In short: a shareholder cannot “enter the\nfray” for injuries sustained by a corporation that have lowered the value of his or her interest in\nthat corporation. Interpreting Adair, the Bankruptcy Court below wrote that the Corrupt\nPractices Act may have removed “indirectness” as a bar to recovery but could not remove the bar\nerected by corporate law. 519 B.R. at 746. We agree.\n\n The Fulson Parties, however, seize upon the language in Adair, and argue that the Ohio\nSupreme Court’s use of the word “indirect” in the above-quoted passage means that the claim for\nindirect damages under the Act is viable. Because Adair says that a shareholder is “indirectly”\ninjured when the corporation is injured, they contend, the Corrupt Practices Act’s use of the\nword “indirect” affords an injured shareholder standing for civil RICO. The argument is that the\nCorrupt Practices Act gives the Fulson Parties an “out” with regard to complying with the rules\nof derivative shareholder suits.\n\n This reading is strained to say the least. Why? Because the two documents are not\ntalking about the same thing. Adair employed the word “indirect” to characterize shareholder\nclaims against a corporate antagonist as secondary and duplicative in a pejorative sense. If\nshareholders of Apple could pursue claims against Samsung and bypass the derivative suit, it\nwould render the corporate form superfluous. The very holding of Adair is that shareholders\ncannot strike out on their own to right wrongs visited on the corporation. Allowing indirectly\ninjured parties to sue does not mean that the Act allows anyone to sue in all situations. The use\nof the word “indirect” in both Adair and the Act is a coincidence, not a confluence. The Fulson\nParties’ attempts to cast the occurrence of the word “indirect” in two places as somehow\ndeliberate or instructive cannot overcome the presumption that the Act did not intend to\nrestructure corporate law absent a clear statement of the intent to do so. See, e.g., Mann v.\nNorthgate Invs., L.L.C., 5 N.E.3d 594, 598–99 (Ohio 2014). The Bankruptcy Court correctly\ndeemed the Fulson Parties’ argument “the sophist’s game.” 519 B.R. at 746.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 11\n\n\n Ohio corporate law supplies further support for our conclusion. The analogous right to\nsue for injuries to Nicole Gas never belonged to Fulson in the first place. See Boedeker v.\nRogers, 746 N.E.2d 625, 632–33 (Ohio Ct. App. 2000) (citing Adair for the proposition that\n“[w]here the basis of the action is a wrong to the corporation, redress must be sought in a\nderivative action”). As the Bankruptcy Appellate Panel noted, the state court complaint did not\nallege any injuries specific to Fulson outside of his role as owner. 581 B.R. at 851 (“Appellants\nhave conceded at least three times – in the state court complaint, before the Bankruptcy Court,\nand in their initial appellate brief – that Fulson sought recovery which would make the Debtor\nwhole.”) (emphasis in original). If, for instance, a shareholder of Corporation A slipped and fell\non the floor of the premises of Corporation B (Corporation A’s rival), then that shareholder\nwould have an independent basis to pursue a claim against Corporation B. 519 B.R. at 739\n(citing Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir.\n1997)). That is not the case here; there is no independent basis for liability.\n\n Corporate law cabins the claims that a shareholder may raise when the entity in which she\nowns stock is injured, and the value of her shares had decreased accordingly. “Stated another\nway, a shareholder brings a derivative action on behalf of the corporation for injuries sustained\nby or wrongs done to the corporation, and a shareholder brings a direct action where the\nshareholder is injured in a way that is separate and distinct from the injury to the corporation.”\nHER, Inc. v. Parenteau, 770 N.E.2d 105, 109 (Ohio Ct. App. 2002); see also Crosby v. Beam,\n548 N.E.2d 217, 219 (Ohio 1989) (“[I]f the complaining shareholder is injured in a way that is\nseparate and distinct from an injury to the corporation, then the complaining shareholder has a\ndirect action.”). A derivative suit is a shareholder’s single path through which she may recover\nlosses the corporation sustained in the rough and tumble of the marketplace.\n\n The Corrupt Practices Act says nothing about this process; allowing indirectly injured\nplaintiffs to sue is not the same as constructing an explicit statutory mechanism to bypass\ncorporate law. Although the text of the Ohio RICO statute indicates that it grants broader\nstanding than federal RICO, we see no clear indication that, by using the term “indirect,” the\nOhio General Assembly supplanted an entire area of the common law. Instructively,\nshareholders cannot pursue claims individually against competitors under the federal RICO\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 12\n\n\nstatutes. See Warren v. Mfrs. Nat’l Bank of Detroit, 759 F.2d 542 (6th Cir. 1985) (holding that a\nsole shareholder could not individually allege federal RICO claims that a bank put his steel\ncompany out of business); State v. Franklin, Nos. 24011 & 24012, 2011 WL 6920727, at 16\n(Ohio Ct. App. Dec. 30, 2011) (noting that Ohio courts still look to federal RICO case law for\nguidance in applying Ohio RICO). There is no basis for expanding Ohio RICO to the extent the\nFulson Parties assert.\n\n The legislature is perfectly capable of adding a tool (broad civil RICO) to potential\nplaintiffs’ toolboxes without simultaneously throwing a different toolbox (corporate derivative\nsuits) out the window. The Fulson Parties argue otherwise, and point to Clark v. Scarpelli, 744\nN.E.2d 719, 726 (Ohio 2001), which held that “[i]t is presumed that the General Assembly is\nfully aware of any prior judicial interpretation of an existing statute when enacting an\namendment.” In other words, the Fulson Parties say, the Ohio legislature is presumed to have\nknown about derivative liability and the key words of that corpus; so its choice of words in\nexpanding civil RICO is the final say. But the legislature’s presumed omniscience does not\nmean that the enactors of the Corrupt Practices Act intended to destroy a whole area of corporate\nlaw without so much as mentioning it. As the Bankruptcy Appellate Panel correctly noted, “the\nLegislature can ‘mean what it said’ when it granted standing to those who suffer indirect injury\nwithout intending to turn on its head a century of law governing shareholder litigation.\nShareholder derivative suits involve one discreet corner of corporate jurisprudence.” 581 B.R. at\n850.\n\n What little Ohio case law addresses these issues supports our conclusions.4 And although\nOhio has not seen a case directly considering derivative civil RICO in the bankruptcy context,\nanother state in our Circuit, Michigan, has. See Kelley v. Thompson-McCully Co., LLC, No.\n236229, 2004 WL 1676760 (Mich. Ct. App. July 27, 2004). And – no surprises – the Michigan\nCourt of Appeals concluded that a shareholder’s derivative claim belonged to the bankruptcy\n\n\n 4Ohio’s civil RICO jurisprudence contains several examples of “derivative” or “indirect” claims, although\nnone in the corporate context. See Iron Workers I, 23 F. Supp. 2d at 791; Cleveland v. JP Morgan Chase Bank,\nN.A., No. 98656, 2013 WL 1183332 (Ohio Ct. App. Mar. 21, 2013). These cases are not wholly dispositive, but we\nmay simply look to them for the proposition that the Corrupt Practices Act does not allow plaintiffs to merge distinct\nclaims belonging to different parties.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 13\n\n\ntrustee.5 The Michigan case also teaches that the Fulson Parties should have petitioned the\nBankruptcy Court for guidance about their planned suit. Id. at 3 (“[T]he shareholder must make\na demand on the trustee.”). Courts outside of our Circuit have held similarly when these\nproblems have arisen.6\n\n In sum: Fulson and his lawyers may have believed that the claims against Columbia Gas\nwere worth more than the Trustee was settling them for. If they thought that Fulson had a shot at\nsuing Columbia Gas via the Corrupt Practices Act, the proper course would have been to seek\nthe Trustee’s cooperation or abandonment, or to seek relief from the automatic stay. But, as the\nBankruptcy Court noted, “filing the Complaint without providing Ransier notice and without\nrequesting the Court grant relief from the automatic stay appears to have been a calculated risk\nby one who believed it more expedient to ask for forgiveness rather than for permission.”\n519 B.R. at 736. It is clear that the Fulson Parties, by filing and continuing the state court\nlawsuit, “act[ed] to obtain possession of the property of the estate . . . or to exercise control over\nproperty of the estate.” 11 U.S.C. § 362(a)(3).\n\n B. The Automatic Stay and The Fee Award\n\n Because Nicole Gas was in bankruptcy, the Trustee was in charge of any claims the\ndebtor-business might hold. Cf. Griffin v. Bonapfel (In re All Am. of Ashburn, Inc.), 805 F.2d\n1515 (11th Cir. 1986) (similar dispute with shareholder suit). If Fulson was considering\npursuing claims belonging to the corporation he owned, then upon the moment of the bankruptcy\nfiling, those claims belonged to the corporation’s bankruptcy estate. In re Van Dresser Corp.,\n\n 5In Kelley, the plaintiff was a shareholder and corporate officer in a company called West Shore\nConstruction that entered bankruptcy proceedings. The suit concerned a failed corporate buyout, and the plaintiff\nalleged that the defendants had conspired to ruin West Shore. Kelley, 2004 WL 1676760, at 1. One of the claims\nwas styled under the Michigan Antitrust Reform Act, Mich. Comp. Laws § 445.778(2), which allows “any other\nperson…injured directly or indirectly…” to sue under the statute for antitrust claims. The Michigan Court of\nAppeals held that because the injured party was the corporation, West Shore, the derivative nature of the suit meant\nthat the claim belonged to the bankruptcy trustee. Kelley, 2004 WL 1676760, at 3.\n 6The Oregon Court of Appeals has concluded that shareholders may not assert derivative claims under the\nOregon RICO statutes. See Loewen v. Galligan, 882 P.2d 104, 113 (Or. Ct. App. 1994) (“[T]he only injury that\nplaintiffs’ [Oregon RICO] claims allege is a diminution in share value that affected all shareholders. Because\nthat injury is derivative, we conclude that plaintiffs do not have standing to bring their [Oregon RICO] claims.”)\n(internal citations omitted). See also Harris v. Orange S.A., 636 F. App’x 476, 483 (11th Cir. 2015) (analyzing\nGeorgia RICO).\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 14\n\n\n128 F.3d at 947 (“[I]f the debtor could have raised a state claim at the commencement of the\nbankruptcy case, then that claim is the exclusive property of the bankruptcy estate…”). The\nFulson Parties argue that Fulson’s individual Corrupt Practices Act claims were not the property\nof the bankruptcy estate because the claims had not accrued at the time of the petition. They\nfurther assert that it was only when the claims were valued at $250,000 by the Trustee that those\nclaims accrued. This is nonsense. Fulson never had any independent claims to assert. The\nBankruptcy Court fully and correctly addressed these arguments in the Contempt Order. To this,\nAppellants retort, if Fulson had no standing under the Corrupt Practices Act, then he could not\nhave violated the stay by asserting “claims that do not exist.” This is, to borrow the Bankruptcy\nCourt’s term, sophistry. To the contrary, because the Corrupt Practices Act claims were property\nof the estate, filing the state court complaint was an impermissible “act to obtain possession of\nthe property of the estate . . . or to exercise control over property of the estate.” 11 U.S.C.\n§ 362(a)(3). Here is the bottom line: whatever corporate wrongs had been visited upon Nicole\nGas, the right to redress those claims belonged to Nicole Gas itself. Upon the filing of the\nbankruptcy petition, those claims passed into the hands of Ransier, who was trying to settle “any\nand all” claims with Columbia Gas. Any Corrupt Practices Act claim that Nicole Gas could have\nasserted fell into that box. Before bankruptcy and after, Fulson did not have the power to sue\nindividually on those claims. But he did, and thus violated the automatic stay.\n\n The automatic stay is one of the most important and powerful features of the bankruptcy\nsystem. Cf. Easley v. Pettibone Mich. Corp., 990 F.2d 905, 911 (6th Cir. 1993) (“[A]ctions\ntaken in violation of the stay are invalid and voidable and shall be voided absent limited\nequitable circumstances.”). Violating the automatic stay constitutes civil contempt. See In re\nCrabtree, 767 F.2d 919, 1985 WL 13441 (6th Cir. 1985) (table). The Bankruptcy Court below\ndid not simply conclude that the Fulson Parties had fumbled their way into violating the\nautomatic stay – it deemed their actions willful and called their credibility into question.\n519 B.R. at 736. Further, as highlighted by the Bankruptcy Appellate Panel, if Fulson had\nsecured a judgment on his Corrupt Practices Act claims in state court, the bankruptcy estate\nwould have been prejudiced. 581 B.R. at 853. The Bankruptcy Court made detailed findings in\nthis regard, and it acted diligently and thoughtfully to protect its own procedures and the\nBankruptcy Code.\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 15\n\n\n With regard to the Fee Order, the Fulson Parties argue that Baker Botts, L.L.P. v.\nASARCO, L.L.C., 135 S. Ct. 2158 (2015), precludes the Bankruptcy Court from awarding fees to\nthe trustee. The Baker Botts case simply held that, “Because § 330(a)(1) does not explicitly\noverride the American Rule with respect to fee-defense litigation, it does not permit bankruptcy\ncourts to award compensation for such litigation.” Id. at 2169. But, as recited by the Bankruptcy\nAppellate Panel, Section 330, which governs compensation for certain professionals, is irrelevant\nhere. 581 B.R. at 854–55. The Bankruptcy Court here relied on 11 U.S.C. § 105(a) to hold\nSanders, Lowe, and Fulson in contempt. 519 B.R. at 736–37. Section 105(a) states that “The\ncourt may issue any order, process, or judgment that is necessary or appropriate to carry out the\nprovisions of this title.” The sole authority the Fulson Parties cite as to their Baker Botts\nargument, City of Philadelphia v. Walker, No. CV-15-01685, 2015 WL 7428501 (E.D. Pa. Nov.\n23, 2015), contains no references to contempt or 11 U.S.C. § 105.\n\n Whatever limits apply to the Bankruptcy Court’s contempt powers, see generally In re\nJohn Richards Homes Bldg. Co., 552 F. App’x 401, 414 (6th Cir. 2013) (“Those powers are\ncircumscribed and have most often been limited to compensatory punitive awards of attorney’s\nfees after findings of bad faith or contempt.”), they do not apply on these facts. See Liberis v.\nCraig, 845 F.2d 326, 1988 WL 37450 at *8 (6th Cir. 1988) (table) (“In the instant case, there is\nno question that the bankruptcy court had the authority to award attorneys’ fees against the\nplaintiffs to compensate the trustee for bringing plaintiffs’ contempt to the court’s attention.”).\nIn an opinion written with “painstaking detail,” 581 B.R. at 855, the Bankruptcy Court found that\nFulson, Sanders, and Lowe were aware of the automatic stay, and had intentionally taken actions\nthat violated it, regardless of their good faith or lack thereof. 519 B.R. at 729–30, 754–55. A\ncontempt finding and accompanying sanctions were appropriate.\n\n III. CONCLUSION\n\n Assuming best intentions, Fulson may have believed he personally had a viable claim to\nassert against Columbia Gas. But by the time he filed the Corrupt Practices Act complaint, it\nwas far too late to make such claims without seeking relief from the stay or the trustee’s\ncooperation. Fulson, Sanders, and Lowe were all aware of the automatic stay, and took action\nthat, we agree, violated it. One of the unfortunate results in this case is that it is unclear precisely\n\f No. 18-3301 In re Nicole Gas Production, Ltd. Page 16\n\n\nhow much Fulson’s claims against Columbia Gas were worth. The Trustee tried to settle them\nfor $250,000, but Fulson obviously believed them to be worth millions more. If Fulson or his\nattorneys had communicated their theory to the Trustee, perhaps the Ohio courts could have\nconfronted head-on the question of indirect pursuit of civil RICO claims under Ohio law. And as\na policy matter, there may be situations in which shareholders possess viable civil RICO claims\nagainst a company that destroyed the shareholder’s business. But instead, we are left to assess\nthe question collaterally in the contempt context, with sanctions against the Fulson Parties riding\non our interpretation. These legal ambiguities could have been addressed with a simple\ncollaborative phone call. Instead, the Bankruptcy Court was forced to expend valuable judicial\nresources assessing whether the conduct was in fact contemptuous.\n\n This is a case where the Bankruptcy Court did its job and did it well. These issues have\nbeen extensively briefed thrice, once at the Bankruptcy Court, once at the Bankruptcy Appellate\nPanel, and again here in the Circuit. The one complex issue in this case – whether the Ohio\nCorrupt Practices Act allows shareholders to pursue claims individually – was convincingly\nhandled by the Bankruptcy Court; the Bankruptcy Appellate Panel agreed and so do we. We\nconclude that the Corrupt Practices Act did not grant Fulson any independent cause of action to\npursue his derivative damages without violating the automatic stay. And Baker Botts does not\napply to the Bankruptcy Court’s fee award here, which was a contempt sanction. Fulson and his\nattorneys should have sought either the trustee’s cooperation or relief from the automatic stay in\norder to file the complaint. For all of the foregoing reasons, and for the reasons articulated by\nthe Bankruptcy Court and the Bankruptcy Appellate Panel below, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370398/", "author_raw": "MERRITT, Circuit Judge"}]}	MERRITT	COOK	LARSEN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593145/	Published	1	0	0	2,019	2	[ { "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...
4,593,530	James KING, Plaintiff-Appellant, v. UNITED STATES of America, Et Al., Defendants, Douglas Brownback; Todd Allen, Defendants-Appellees.	James King v. United States	2019-02-25	17-2101	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Clay, Rogers", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888056/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888057/", "author_raw": ""}, {"author": "CLAY, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0027p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n JAMES KING, ┐\n Plaintiff-Appellant, │\n │\n │\n v. > No. 17-2101\n │\n │\n UNITED STATES OF AMERICA, et al., │\n Defendants, │\n │\n DOUGLAS BROWNBACK; TODD ALLEN, │\n │\n Defendants-Appellees.\n │\n ┘\n\n Appeal from the United States District Court\n for the Western District of Michigan at Grand Rapids.\n No. 1:16-cv-00343—Janet T. Neff, District Judge.\n\n Argued: August 1, 2018\n\n Decided and Filed: February 25, 2019\n\n Before: BOGGS, CLAY, and ROGERS, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: D. Andrew Portinga, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant.\nMichael Shih, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for\nAppellees. ON BRIEF: D. Andrew Portinga, Patrick M. Jaicomo, MILLER JOHNSON, Grand\nRapids, Michigan, for Appellant. Michael Shih, Mark B. Stern, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.\n\n CLAY, J., delivered the opinion of the court in which BOGGS, J., joined. ROGERS, J.\n(pp. 28–32), delivered a separate dissenting opinion.\n\n No. 17-2101 King v. United States Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. James King (“Plaintiff”) appeals the district court’s order granting\nsummary judgment1 for Officers Todd Allen and Douglas Brownback (together “Defendants”)\non Plaintiff’s Fourth Amendment claims arising under 42 U.S.C. § 1983 or, alternatively, under\nthe implied right of action set forth in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.\n388 (1971). The district court also granted summary judgment for two additional defendants,\nincluding the United States, who are not parties to this appeal. With respect to Plaintiff’s § 1983\nor Bivens claims, this Court REVERSES the judgment of the district court for the reasons set\nforth below.\n\n BACKGROUND\n\n A. Factual History\n\n On July 18, 2014, Defendants were searching for a criminal suspect named Aaron\nDavison. Police believed that Davison had committed felony home invasion, and the State of\nMichigan had issued a warrant for his arrest. Defendants were members of a “joint fugitive task\nforce between the FBI and the City of Grand Rapids.” (R. 30 at PageID #108.) Defendant Allen\nwas a detective with the Grand Rapids Police and had been assigned to the FBI task force full-\ntime. Defendant Brownback was a special agent with the FBI. Neither officer was wearing a\nuniform as they conducted their search, but both of them were wearing lanyards with their\nbadges displayed over their plainclothes.\n\n Defendants knew that Davison was a 26 year-old white male between 5ʹ10″ and 6ʹ3″ tall\nwith glasses; short, dark hair; and a thin build. Defendants also knew that Davison had a habit of\n\n\n 1The district court stated that it was dismissing Plaintiff’s claims “under Federal Rule[] of Civil Procedure\n12(b)(1) and (b)(6),” but that it was also granting summary judgment for Defendants “to the extent the Court deems\nit necessary to review [Defendants’] arguments under Rule 56.” (R. 91 at PageID #1006.) Because the district court\ndid not explain this ambiguity in its ruling, and because the district court explained that its decision “relies on [the\nparties’] Joint Statement of Facts . . . unless otherwise indicated,” (id. at 1002), the Court treats the district court’s\nruling as a grant of summary judgment for Defendants.\n\n No. 17-2101 King v. United States Page 3\n\n\nbuying a soft drink from a particular gas station every day between 2:00 p.m. and 4:00 p.m. And\nDefendants had two photographs of Davison. In the first photograph, the lighting was so dark\nthat Davison appeared as the silhouette of a man playing electric guitar. The second photograph,\na driver’s license photo, showed Davison’s face clearly, but the photo was seven years old at the\ntime of the search.\n\n Around 2:30 p.m., Defendants saw Plaintiff walking down the street in an area near the\ngas station where Davison was known to buy his daily soft drinks. Although Plaintiff was\nactually a 21-year-old college student who was walking between his two summer jobs,\nDefendants thought Plaintiff might be their suspect because Plaintiff was a young white male\nbetween 5ʹ10″ and 6ʹ3″ and was wearing glasses. From their unmarked vehicle, Defendants\nstudied Plaintiff’s face and decided that there was a “good possibility” that he was Davison.\n(R. 73 at Page ID #429–30.) Defendants parked near Plaintiff and approached him. According to\nPlaintiff, Defendants never identified themselves as police officers. But Defendants assert that\nAllen identified himself as a police officer when he first approached Plaintiff.\n\n Defendants started asking Plaintiff questions. They asked Plaintiff who he was, and\nPlaintiff truthfully answered that his name was James. Defendants then asked Plaintiff for\nidentification, and Plaintiff said that he had none. Defendants told Plaintiff to put his hands on\nhis head and to face their vehicle. Plaintiff later testified that he complied because Defendants\n“had small badges around their chest, and [he] assumed [Defendants had] some sort of\nauthority.” (Id. at PageID #474, 477.) Defendants asked Plaintiff if he was carrying any\nweapons, and Plaintiff told them that he had a pocketknife. Detective Allen removed the\npocketknife from Plaintiff’s pocket, commented on the size of Plaintiff’s wallet, and then\nremoved that, too, from Plaintiff’s pocket. Plaintiff asked, “[a]re you mugging me?” and\nattempted to run away, but Detective Allen tackled him, grabbed Plaintiff’s neck, and pushed\nhim to the ground. (Id. at PageID #474.) Plaintiff yelled for help and begged passersby to call\nthe police. Detective Allen then put Plaintiff in a chokehold, at which point, Plaintiff claimed, he\nlost consciousness. Several seconds later, when Plaintiff came to, he bit into Detective Allen’s\narm. Detective Allen then started punching Plaintiff in the head and face “as hard as [he] could,\nas fast as [he] could, and as many times as [he] could.” (Id. at PageID #433.) Plaintiff attempted\n\n No. 17-2101 King v. United States Page 4\n\n\nto escape and to fight back and eventually released his bite. But he could not get away; the fight\ncontinued for over sixty seconds.\n\n As Detective Allen continued to punch Plaintiff in the head and face, several bystanders\ncalled the police and began filming the incident. Numerous police officers arrived on the scene,\none of whom ordered the bystanders to delete their videos because the videos could reveal the\nidentities of undercover FBI agents. Some of the bystanders deleted their videos, and footage of\nthe actual altercation was never discovered. The surviving footage from immediately after the\nincident includes one bystander who can be heard saying, “I was worried. . . . They were out of\ncontrol pounding him. . . . They were pounding his fa--head for no reason; they were being\nbrutal.” (Ex. 6, Timestamp 0:47–1:11.) A bystander who called 911 told the operator “[t]hey’re\ngonna kill this man. . . . We can’t see the victim now. They’re over top of him. They look like\nthey’re suffocating him. . . . I understand they have badges on, but I don’t see no undercover\npolice cars, no other—backup, no nothing.” (Ex. 18, Timestamp 1:43–3:21.)\n\n Plaintiff was transported from the scene to the emergency room, where he received\nmedical treatment. The emergency room doctors concluded that Plaintiff’s injuries did not\nrequire him to be admitted for further treatment, and they released him with a prescription for\npainkillers. Upon Plaintiff’s discharge, police arrested him and took him to Kent County Jail.\nPlaintiff spent the weekend in jail before posting bail and visiting another hospital for further\nexamination. Prosecutors pursued charges against Plaintiff, but a jury acquitted him of all\ncharges.\n\n B. Procedural History\n\n Plaintiff brought this suit alleging that Defendants violated his clearly established Fourth\nAmendment rights by conducting an unreasonable seizure and by using excessive force. Plaintiff\nalso asserted a claim against the United States. The district court found that it lacked subject-\nmatter jurisdiction to hear Plaintiff’s claim against the United States, and it granted summary\njudgment for Defendants on the basis that Defendants are entitled to qualified immunity.\nPlaintiff then filed this timely appeal of his claims against Defendants.\n\n No. 17-2101 King v. United States Page 5\n\n\n DISCUSSION\n\n A. The Federal Tort Claims Act Judgment Bar Does Not Preclude Plaintiff’s\n Claims Against Defendants\n\n The Court requested supplemental briefing on whether the judgment bar of the Federal\nTort Claims Act (“FTCA”), see 28 U.S.C. § 2676, prohibits Plaintiff from maintaining his\n§ 1983 or Bivens claims against Defendants. After considering the parties’ arguments and\nexamining the governing statutes and case law, the Court concludes that the FTCA does not\npreclude Plaintiff’s claims.\n\n 1. Analysis\n\n a. Standard of Review\n\n This Court reviews the application of the FTCA judgment bar de novo. See United States\nv. Kuehne, 547 F.3d 667, 678 (6th Cir. 2008) (“Because this issue is a matter of statutory\ninterpretation, we conduct de novo review.” (quoting United States v. VanHoose, 437 F.3d 497,\n501 (6th Cir. 2006))).\n\n b. Relevant Legal Principles\n\n “Absent a waiver, sovereign immunity shields the Federal Government and its agencies\nfrom suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549\n(1988)). Sovereign immunity is jurisdictional in nature. Id.\n\n “In 1946, Congress passed the FTCA, which waived the sovereign immunity of the\nUnited States for certain torts committed by federal employees.” Id. at 475–76. The FTCA’s\nwaiver provides “subject matter jurisdiction for plaintiffs to pursue state law tort claims against\nthe United States.” Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012) (citing\n28 U.S.C. § 1346(b)(1)). “Section 1346(b) [of the FTCA] grants the federal district courts\njurisdiction over a certain category of claims for which the United States has waived its\nsovereign immunity and ‘render[ed]’ itself liable.” Meyer, 510 U.S. at 477 (quoting Richards v.\nUnited States, 369 U.S. 1, 6 (1962)). “A claim comes within this jurisdictional grant” only if it\nis:\n\n No. 17-2101 King v. United States Page 6\n\n\n [1] against the United States, [2] for money damages, . . . [3] for injury or loss of\n property, or personal injury or death [4] caused by the negligent or wrongful act\n or omission of any employee of the Government [5] while acting within the scope\n of his office or employment, [6] under circumstances where the United States, if a\n private person, would be liable to the claimant in accordance with the law of the\n place where the act or omission occurred.\n\nId. (quoting 28 U.S.C. § 1346(b)). If a claim fails to satisfy these six elements, it is not\n“cognizable” under § 1346(b) and does not fall within the FTCA’s “jurisdictional grant.” Id.\n\n The FTCA’s judgment bar provision precludes a plaintiff from bringing additional claims\nconcerning the “same subject matter” as an FTCA claim after judgment is entered on the FTCA\nclaim. 28 U.S.C. § 2676.\n\n “A dismissal for lack of subject-matter jurisdiction does not trigger the § 2676 judgment\nbar. Put bluntly, in the absence of jurisdiction, the court lacks the power to enter judgment.”\nHimmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 579 (6th Cir. 2014); see also Meyer,\n510 U.S. at 478 (holding that if a claim “is not cognizable under § 1346(b), the FTCA does not\nconstitute [a plaintiff’s] ‘exclusive’ remedy” because the FTCA’s judgment bar does not apply).\n\n c. Application to the Matter at Hand\n\n As explained below, the district court dismissed Plaintiff’s FTCA claim for lack of\nsubject-matter jurisdiction. Because the district court did not reach the merits of Plaintiff’s FTCA\nclaim, the FTCA’s judgment bar does not preclude Plaintiff from pursuing his claims against\nDefendants.\n\n “The FTCA waives sovereign immunity where state law would impose liability against a\nprivate individual.” Milligan, 670 F.3d at 692 (citing Myers v. United States, 17 F.3d 890, 894\n(6th Cir. 1994)). Under Michigan law, a government employee is entitled to qualified immunity\nfor intentional torts if he or she establishes that:\n\n (1) the employee’s challenged acts were undertaken during the course of\n employment and that the employee was acting, or reasonably believed he was\n acting, within the scope of his authority, (2) the acts were undertaken in good\n faith, and (3) the acts were discretionary, rather than ministerial, in nature.\n\n No. 17-2101 King v. United States Page 7\n\n\nOdom v. Wayne Cty., 760 N.W.2d 217, 218 (Mich. 2008) (adopting test articulated in Ross v.\nConsumers Power Co., 363 N.W.2d 641 (Mich. 1984)). The district court found that Plaintiff\nfailed to satisfy the Odom/Ross test. According to the district court, the undisputed facts\nindicated that Defendants’ conduct occurred during the course of their employment and within\nthe scope of their authority, was not undertaken with the requisite malice required under\nMichigan law, and was discretionary. (Dist. Ct. Op. at PageID #1029–30.) Because Plaintiff\nfailed to state a claim against the United States under Michigan law, the district court held that\nthe United States was “entitled to immunity under the FTCA.” (Id. at PageID #1030.)\n\n The FTCA does not bar Plaintiff from maintaining his claims against Defendants because\nthe district court lacked subject-matter jurisdiction over Plaintiff’s FTCA claim. Plaintiff failed\nto satisfy the sixth element of the Meyer test—he failed to allege a claim “under circumstances\nwhere the United States, if a private person, would be liable to the claimant in accordance with\nthe law of the place where the act or omission occurred.” Meyer, 510 U.S. at 477. Because\nPlaintiff failed to state a FTCA claim, his claim did not fall within the FTCA’s “jurisdictional\ngrant.” Id. And because the district court lacked subject-matter jurisdiction over Plaintiff’s\nFTCA claim, the district court’s dismissal of his FTCA claim “does not trigger the § 2676\njudgment bar.” Himmelreich, 766 F.3d at 579.\n\n Few circuit courts of appeals have addressed whether the FTCA’s judgment bar applies\nwhen a district court dismisses a plaintiff’s FTCA claims for lack of subject-matter jurisdiction.\nBut the D.C. Circuit reached the same conclusion that this Court reaches here—the FTCA’s\njudgment bar does not apply to dismissals for lack of subject-matter jurisdiction. See Atherton v.\nJewell, 689 F. App’x 643, 644 (D.C. Cir. 2017) (holding that because the district court “correctly\ndetermined that it lacked subject-matter jurisdiction” under the FTCA, the FTCA’s judgment bar\n“is not a basis for the denial of appellant’s motion to amend the complaint” to include a Bivens\nclaim) (citing Simmons v. Himmelreich, 136 S. Ct. 1843, 1847–49 (2016)). The Ninth Circuit\nreached a similar conclusion in Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir. 2008), abrogated\nby Simmons v. Himmelreich, 136 S. Ct. 1843 (2016), where it held that the FTCA’s judgment bar\ndid not preclude a plaintiff from pursuing Bivens claims after the district court dismissed his\nFTCA claims for lack of subject-matter jurisdiction. Arsenault, 543 F.3d at 1041. However, the\n\n No. 17-2101 King v. United States Page 8\n\n\nNinth Circuit stated that the plaintiff’s Bivens claims “are barred to the extent that they rest upon\nthe same misrepresentations alleged” in the FTCA action dismissed for lack of subject-matter\njurisdiction. Id. at 1042. This holding is clearly wrong. If a federal court lacks subject-matter\njurisdiction, it lacks the power to hear a case. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514\n(1868). Therefore, its dismissal for lack of subject-matter jurisdiction does not have any\npreclusive effect. Himmelreich, 766 F.3d at 580.\n\n The government contends that the district court denied Plaintiff’s FTCA claim on the\nmerits because it found that Defendants failed to act with malice as required to defeat qualified\nimmunity under Michigan law. The Court rejects this argument. The district court could not, as\na matter of law, decide the merits of Plaintiff’s FTCA claim—it lacked subject-matter\njurisdiction over that claim. Himmelreich, 766 F.3d at 580. It is true that the district court\nanalyzed Michigan law to determine whether Plaintiff stated a FTCA claim. But stating a claim\nunder state law is a jurisdictional prerequisite without which the FTCA’s waiver of sovereign\nimmunity does not apply. Meyer, 510 U.S. at 477. Therefore, the district court’s conclusion that\nPlaintiff failed to state a claim under Michigan law was not a disposition on the merits. In fact, it\nwas the opposite—it precluded the district court from exercising subject-matter jurisdiction over\nthe FTCA claim and prevented the district court from reaching a decision on the merits.\nHaywood v. Drown, 556 U.S. 729, 755 (2009) (“Subject-matter jurisdiction determines only\nwhether a court has the power to entertain a particular claim—a condition precedent to reaching\nthe merits of a legal dispute.”); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)\n(“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to\ndeclare the law, and when it ceases to exist, the only function remaining to the court is that of\nannouncing the fact and dismissing the cause.” (quoting McCardle, 74 U.S. (7 Wall.) at 514)).\n\n The Supreme Court’s opinion in Simmons v. Himmelreich, 136 S. Ct. 1843 (2016), does\nnot change the result. In Simmons, the Supreme Court affirmed the Sixth Circuit’s ruling and\nheld that the judgment bar does not apply where an FTCA claim was dismissed because it fell\nwithin an enumerated “[e]xception.” Id. at 1845. While Simmons was decided on narrower\ngrounds than Himmelreich, it does not conflict with the unequivocal rule in this Circuit that\n\n No. 17-2101 King v. United States Page 9\n\n\n“[a] dismissal for lack of subject-matter jurisdiction does not trigger the § 2676 judgment bar.”\nHimmelreich, 766 F.3d at 579.\n\n Defendants argue that footnote 5 in Simmons supports their position. This argument fails\nto persuade the Court. Footnote 5 explains that “the [FTCA’s] judgment bar provision functions\nin much the same way” as the “common-law doctrine of claim preclusion.” Simmons, 136 S. Ct.\nat 1850 (internal citations and quotations omitted). It is well-established that “a dismissal for a\nlack of subject-matter jurisdiction carries no preclusive effect.” Himmelreich, 766 F.3d at 580\n(citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 382 (1985)). Thus,\nDefendants fail to appreciate that footnote 5 actually undermines their argument: because the\ndistrict court dismissed Plaintiff’s FTCA claim for lack of subject-matter jurisdiction, its\ndismissal does not carry any preclusive effect. See id. Therefore, under the logic of footnote 5,\nthe FTCA judgment bar does not prevent Plaintiff from pursuing his claims against Defendants.\n\n The cases that Defendants rely on are inapposite. In Harris v. United States, 422 F.3d\n322 (6th Cir. 2005), the district court rejected the plaintiff’s FTCA claim on the merits after a\nbench trial. Id. at 324. This Court held that the FTCA’s judgment bar precluded further\nadjudication of the plaintiff’s Bivens claims against the individual defendants. Id. at 324–25. In\nSerra v. Pichardo, 786 F.2d 237 (6th Cir. 1986), the district court granted judgment for the\nplaintiff on the merits of his FTCA claim. Id. at 237. This Court held that the decision on the\nmerits prevented the plaintiff from maintaining a Bivens action against the individual defendants.\nId. at 238. Defendants’ analogy to Harris and Serra fails. Here, unlike in those cases, the district\ncourt did not reach the merits of the FTCA claim.\n\n 2. Conclusion\n\n Because the district court dismissed Plaintiff’s FTCA claim for lack of subject-matter\njurisdiction, the FTCA’s judgment bar provision does not preclude Plaintiff from pursuing his\nremaining claims against Defendants.\n\n No. 17-2101 King v. United States Page 10\n\n\n B. Qualified Immunity Does Not Shield Defendants\n\n 1. Standard of Review\n\n This Court “review[s] a grant or denial of summary judgment de novo, using the same\nRule 56(c) standard as the district court.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999)\n(en banc). Summary judgment is appropriate when “the pleadings, depositions, answers to\ninterrogatories, and admissions on file, together with the affidavits, if any, show that there is no\ngenuine issue as to any material fact and that the moving party is entitled to a judgment as a\nmatter of law.” Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, this Court\nviews the factual evidence and draws all reasonable inferences in favor of the non-moving party.\nNat’l Enters. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). In order to defeat a motion for\nsummary judgment, the non-movant must show sufficient evidence to create a genuine issue of\nmaterial fact. Klepper v. First Am. Bank, 916 F.2d 337, 341–42 (6th Cir. 1990) (citing Celotex\nCorp. v. Catrett, 477 U.S. 317, 322 (1986)). A mere scintilla of evidence is insufficient; “there\nmust be evidence on which the jury could reasonably find for the [non-movant].” Id. (quoting\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Entry of summary judgment is\nappropriate “against a party who fails to make a showing sufficient to establish the existence of\nan element essential to that party’s case, and on which that party will bear the burden of proof at\ntrial.” Celotex, 477 U.S. at 322.\n\n 2. Analysis\n\n Plaintiff argues that the district court erred when it granted summary judgment for\nDefendants because the evidence leaves material facts in dispute as to whether Defendants are\nentitled to qualified immunity. The doctrine of qualified immunity shields government officials\n“from liability for civil damages if their actions did not violate clearly established statutory or\nconstitutional rights of which a reasonable person would have known.” Webb v. United States,\n789 F.3d 647, 659 (6th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).\nThe qualified immunity analysis involves a two-step inquiry: (1) whether, viewing the record in\nthe light most favorable to the plaintiff, a constitutional right has been violated; and (2) whether\nthe right at issue was “clearly established” at the time the constitutional violation occurred. Id.\n\n No. 17-2101 King v. United States Page 11\n\n\n The Court will first analyze qualified immunity in the context of Plaintiff’s unreasonable\nsearch and seizure claims. The Court will then turn to Plaintiff’s excessive force claims. As\nexplained below, the district court erred by finding that qualified immunity shielded Defendants\nin regard to both sets of claims.\n\n a. Unreasonable Search and Seizure Claims\n\n The Fourth Amendment provides that “[t]he right of the people to be secure in their\npersons, houses, papers, and effects, against unreasonable searches and seizures, shall not be\nviolated[.]” U.S. Const. amend. IV. “A warrantless search or seizure is ‘per se unreasonable\nunder the Fourth Amendment—subject only to a few specifically established and well-delineated\nexceptions.’” United States v. Roark, 36 F.3d 14, 17 (6th Cir. 1994) (quoting Katz v. United\nStates, 389 U.S. 347, 357 (1967)). The Supreme Court has identified three types of reasonable,\nand thus permissible, warrantless encounters between the police and citizens: (1) consensual\nencounters, which may be initiated by a police officer based on a mere hunch or without any\narticulable reason whatsoever; (2) investigative stops (or Terry stops), which are temporary,\ninvoluntary detentions that must be predicated upon “reasonable suspicion;” and (3) arrests,\nwhich must be based upon “probable cause.” United States v. Pearce, 531 F.3d 374, 380 (6th\nCir. 2008) (citing United States v. Alston, 375 F.3d 408, 411 (6th Cir. 2004)). Under this\nframework, an individual is free “to ignore the police and go about [his or her] business,” Illinois\nv. Wardlow, 528 U.S. 119, 125 (2000), unless a police officer has at least reasonable suspicion\nthat the individual has committed, or is about to commit, a crime. See Family Serv. Ass’n ex rel.\nCoil v. Wells Twp., 783 F.3d 600, 604 (6th Cir. 2015).\n\n In this case, Plaintiff argues that Defendants acted unreasonably when they (1) performed\nan investigative stop, (2) performed a protective search, and (3) stopped Plaintiff’s attempt to run\naway. The Court analyzes each argument in turn.\n\n i. Reasonableness of the Investigative Stop\n\n As a threshold matter, Defendants could have arrested Plaintiff without running afoul of\nthe Fourth Amendment if they had reasonably mistaken Plaintiff for Davison. “Arrest warrants\nin the hands of a police officer, unless facially invalid, are presumed valid.” Fettes v.\n\n No. 17-2101 King v. United States Page 12\n\n\nHendershot, 375 F. App’x 528, 532 (6th Cir. 2010). “[P]olice and correction employees may\nrely on facially valid arrest warrants even in the face of vehement claims of innocence by reason\nof mistaken identity or otherwise.” Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989)\n(citing Baker v. McCollan, 443 U.S. 137, 145 (1979)). “[W]hen the police have probable cause\nto arrest one party, and when they reasonably mistake a second party for the first party, then the\narrest of the second party is a valid arrest.” Hill v. California, 401 U.S. 797, 802 (1971) (internal\ncitations and quotation marks omitted); see also Fettes, 375 F. App’x at 532; Ingram v. City of\nColumbus, 185 F.3d 579, 595 (6th Cir. 1999).\n\n But Defendants do not argue that they reasonably mistook Plaintiff for Davison. Instead,\nthey argue that they reasonably suspected that Plaintiff might be Davison, thereby justifying an\ninvestigative stop.2 “[I]f police have a reasonable suspicion, grounded in specific and articulable\nfacts, that a person they encounter was involved in or is wanted in connection with a completed\nfelony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley,\n469 U.S. 221, 229 (1985). Reasonable suspicion is:\n\n more than a mere hunch, but is satisfied by a likelihood of criminal activity less\n than probable cause, and falls considerably short of satisfying a preponderance of\n the evidence standard. If an officer possesses a particularized and objective basis\n for suspecting the particular person . . . based on specific and articulable facts, he\n may conduct a Terry stop.\n\nDorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (quoting United States v. Arvizu, 534 U.S.\n266, 273 (2002)) (citations and internal quotation marks omitted).\n\n Defendants assert that they had reasonable suspicion to believe that Plaintiff was\nDavison. However, the undisputed facts do not show that the officers’ suspicion was reasonable\nunder the totality of the circumstances. The foundation of Defendants’ suspicion was a physical\ndescription of Davison, which described him as a 26-year old white male with a height between\n5ʹ10″ and 6ʹ3″, short dark hair, glasses, and a thin build. But given the broad swath of the\npopulation that matches this physical description and the requirement that reasonable suspicion\n\n 2The parties dispute whether the encounter between Plaintiff and Defendants began as an investigative\nTerry stop or instead as a consensual encounter, but this dispute is ultimately inconsequential because, as explained\ninfra, there is a genuine dispute of material fact as to whether the officers had reasonable suspicion, even by the\npoint that the encounter escalated to what was alleged to constitute a Terry stop.\n\n No. 17-2101 King v. United States Page 13\n\n\nbe based on a “particularized and objective basis for suspecting [a] particular person,” Dorsey,\n517 F.3d at 395 (emphasis added), this physical description of Davison alone would not have\ngiven Defendants a reasonable suspicion that anyone, let alone Plaintiff, was Davison.\n\n Building on their physical description of Davison, the officers had information about one\nof Davison’s habits. Defendants knew that “[a]lmost every day between 2:00 pm and 4:00 pm,\nhe bought a soft drink from the Shell gas station at the intersection of Leonard Street and Alpine\nAvenue.” (Def. Br. 3–4.) This information arguably could have provided Defendants with a\nreasonable basis to detain and request identification from any individual who matched Davison’s\nphysical description and bought a soft drink consistent with Davison’s habit. See Family Serv.\nAss’n, 783 F.3d at 604 (explaining that officers may request identification if relevant to purpose\nof Terry stop); United States v. Orsolini, 300 F.3d 724, 730 (6th Cir. 2002) (“[A]n investigative\ndetention must be temporary and last no longer than is necessary to effectuate the purpose of the\nstop.” (quoting Florida v. Royer, 460 U.S. 491, 500 (1983))). But that is not what happened.\nDefendants cite no evidence to show that Plaintiff bought a soft drink or even entered the\nrelevant gas station, which was located at the intersection of Leonard and Alpine Streets. Rather,\nDefendants say that they merely found Plaintiff “near the intersection of Leonard and Alpine” at\n2:30 p.m. while Plaintiff was “walking down Leonard Street.” (Def. Br. at 4.) In fact, Plaintiff\nwas several blocks away from the relevant intersection. Thus, Defendants could not have\nmistaken Plaintiff for Davison based, in part, on Davison’s habit. Although Defendants found\nPlaintiff in the general neighborhood where they thought Davison might be found, Defendants\nalso do not cite any cases suggesting that officers may detain everyone in an entire neighborhood\nwho matches the vague physical description of a criminal suspect. Fourth Amendment case law\nhas clearly established the contrary. See Dorsey, 517 F.3d at 395.\n\n No. 17-2101 King v. United States Page 14\n\n\n Further building on their description of Davison, the officers had two photographs:\n\n\n\n\nThe first of these photographs depicts the silhouette of a man playing an electric guitar. The man\nis wearing sunglasses, his head is tilted downward, and there is insufficient light to discern\nidentifying characteristics. This photograph adds nothing to the physical description of Davison\nand therefore did not provide additional support for the Terry stop.\n\n The second photograph—a 2007 driver’s license photo—depicts Davison’s face clearly.\nObviously, Plaintiff, whose photograph appears below, is not a match to the driver’s license\nphoto:\n\n No. 17-2101 King v. United States Page 15\n\n\nDefendants admit that they “did not know how Mr. Davison looked in 2014,” (R. 74-1 at PageID\n#610), but they suspected that he “look[ed] more like the [silhouette] photo” than the driver’s\nlicense photo. (R. 73 at PageID #428). Defendants’ theory seems to be that they could have\ndetained anybody who remotely resembled Davison’s old driver’s license photograph, given that\nDavison could have changed his appearance in the intervening seven years. But whether\nPlaintiff resembles the photograph is a question of fact. See Ingram, 185 F.3d at 596\n(“[A] genuine issue of fact existed as to whether the officers’ mistake in identifying [the\nplaintiff] as [a particular fugitive] was a reasonable one.”); Thomas v. Noder-Love, 621 F. App’x\n825, 830 (6th Cir. 2015) (“[D]eciding whether the man in the Footage Photo and the man in the\nBooking Photo looked similar in appearance . . . raises issues of fact that are only properly\nresolvable at trial.”). A jury could reasonably conclude that Plaintiff bears no resemblance\nwhatsoever to Davison’s driver’s license photograph, in which case the photograph could not\nhave supported reasonable suspicion for a Terry stop.\n\n Finally, Defendants assert that their reasonable suspicion was cemented when Plaintiff\n“declined to supply has last name and denied possessing any identification.” (Def. Br. 21.) But\nthere is no evidence in the record to show that Defendants asked Plaintiff for his last name, so he\ncould not have “declined” to provide it.3 Moreover, it would not have been suspicious, as a\nmatter of law, for Plaintiff to refuse to cooperate with Defendants’ investigation. Family Serv.\nAss’n, 783 F.3d at 604 (“Refusing to answer an officer’s questions during an officer’s attempt to\nconduct a consensual encounter does not create reasonable suspicion for a Terry stop.”). Thus,\nunless Defendants already had reasonable suspicion that Plaintiff was Davison when they\napproached him, Plaintiff’s simple refusal to cooperate was not suspicious and could not provide\ngrounds for a Terry stop. See id.\n\n Thus, under the totality of the circumstances, the following factors supported Defendants’\nsuspicion that Plaintiff was Davison: Plaintiff matched a rather incomplete physical description\n\n\n 3Plaintiff also argues that Defendants’ suspicion, if any, should have been dispelled when Plaintiff stated\nthat his name was “James” because the suspect’s name was not James. But if Defendants reasonably suspected that\nPlaintiff matched the photo of Davison, Defendants were not required to believe Plaintiff’s assertions that his name\nwas James. See Masters, 872 F.2d at 1253. As further explained in this opinion, Plaintiff’s response to being asked\nfor his name was largely inconsequential—unless, of course, his answer had been “Aaron.”\n\n No. 17-2101 King v. United States Page 16\n\n\nof Davison that did not include any defining characteristics; Defendants saw Plaintiff walking\nduring the afternoon in a neighborhood near where Davison was known to buy soft drinks in the\nafternoon, but Plaintiff had not purchased a soft drink; and Defendants may have reasonably\nsuspected that Plaintiff resembled a seven-year-old driver’s license photograph of Davison—or a\nphotograph that did not show Davison’s face. The first two factors together could not have\nprovided a “particularized and objective basis for suspecting [a] particular person,” because they\ncould describe any number of people in the neighborhood where Plaintiff was walking. See\nDorsey, 517 F.3d at 395. Thus, under clearly established law, Defendants needed more; they\nneeded to find someone who resembled the photographs of Davison. Because there is a genuine\ndispute about whether a reasonable officer could conclude that Plaintiff resembled the\nphotographs, the district court erred in granting Defendants’ motion for summary judgment on\nthe basis of qualified immunity.\n\n In granting Defendants qualified immunity, the district court correctly explained that\n“‘certainty’ is not ‘the touchstone of reasonableness under the Fourth Amendment’” (R. 91 at\nPageID #1016 (quoting Hill, 401 U.S. at 803–04)) and that “the reasonableness inquiry includes\nsome ‘latitude for honest mistakes’ . . . in the difficult task of finding and arresting fugitives.”\n(Id. (quoting Maryland v. Garrison, 480 U.S. 79, 87 (1987))). Indeed, “the ultimate touchstone\nof the Fourth Amendment is ‘reasonableness.’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403\n(2006). But this standard does not become more forgiving as the quality of evidence (or of\npolice work) decreases. Rather, as the description of a suspect becomes less reliable—due to the\npassage of time or otherwise—an officer’s reliance on that description becomes objectively less\nreasonable and less likely to support a warrantless detention, arrest, or search. When officers\nmistake a person for a criminal suspect, the officers’ “subjective good-faith belief” is irrelevant;\nthe mistake must be “understandable” and based on “sufficient probability.” Hill, 401 U.S. at\n804; see Illinois v. Gates, 462 U.S. 213, 232 (1983) (explaining that the Fourth Amendment\ninquiry requires “the assessment of probabilities in particular factual contexts”).\n\n In support of the district court’s logic, Defendants explain that their mistake was\nreasonable because “[d]espite their best efforts, the officers ‘did not know how . . . Davison\nlooked in 2014’ because they could not find a recent image of his face.” (Def. Br. 23.) But\n\n No. 17-2101 King v. United States Page 17\n\n\nDefendants’ logic is faulty; the old age of a suspect’s photograph cannot increase its reliability\nor, in turn, the chances of finding a match. The less an officer knows about a suspect’s\nappearance, the less reasonable it is for the officer to suspect that any particular person matches\nthat appearance. See Dorsey, 517 F.3d at 395. The greater difficulty in accurately identifying\nanyone as Davison decreases, not increases, the reasonableness of any particular suspicion.\nUnder the totality of the circumstances, the only way for Defendants to have had reasonable\nsuspicion that Plaintiff was Davison was if Defendants’ belief that Plaintiff resembled Davison’s\nold driver’s license photograph was “understandable” in light of the other identifying\ninformation available to Defendants at the time. See Hill, 401 U.S. at 804. This is a question for\nthe jury.\n\n ii. Reasonableness of the Protective Search\n\n Plaintiff also argues that Detective Allen violated his Fourth Amendment right to be free\nfrom unreasonable searches when he frisked Plaintiff for weapons and removed Plaintiff’s wallet\nfrom his pocket.4\n\n For a protective search conducted during a Terry stop to be reasonable, “the police officer\nmust reasonably suspect that the person stopped is armed and dangerous.” Arizona v. Johnson,\n555 U.S. 323, 326–27 (2009). The officer “must be able to point to particular facts from which\nhe reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392\nU.S. 40, 64 (1968). Based on such suspicion, “the officer may conduct a limited search for\nconcealed weapons.” United States v. Strahan, 984 F.2d 155, 158 (6th Cir. 1993). As applicable\nto this case, “Terry allows only an examination for concealed objects and forbids searching for\nanything other than weapons.” Id. (citing Ybarra v. Illinois, 444 U.S. 85, 92–94 (1980)). “If the\nprotective search goes beyond what is necessary to determine if the suspect is armed, it is no\nlonger valid under Terry.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993).\n\n Plaintiff does not dispute that Defendants could have reasonably believed he was armed\nand dangerous, assuming of course that Defendants reasonably believed that he was Aaron\n\n 4If Defendants lacked reasonable suspicion to conduct a Terry stop, clearly established law provides that\nthis frisk was unreasonable in its entirety. Sibron v. New York, 392 U.S. 40, 64 (1968) (“The police officer is not\nentitled to seize and search every person whom he sees on the street or of whom he makes inquiries.”).\n\n No. 17-2101 King v. United States Page 18\n\n\nDavison.5 Rather, Plaintiff argues that Detective Allen exceeded the scope of a lawful protective\nsearch when he removed Plaintiff’s wallet from the back pocket of Plaintiff’s pants.\n\n The Supreme Court has recognized that officers’ training enables them to identify objects\nwith particularity during protective frisks. In Dickerson, for instance, the Supreme Court\narticulated the so-called “plain touch” doctrine: “[i]f a police officer lawfully pats down a\nsuspect’s outer clothing and feels an object whose contour or mass makes its identity\nimmediately apparent, there has been no invasion of the suspect’s privacy beyond that already\nauthorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure\nwould be justified by the same practical considerations that inhere in the plain-view context.” Id.\nat 375–76. This Court has elaborated on the plain touch doctrine and the relevance of an officer’s\ntraining to investigatory decisions made during a frisk:\n\n In assessing whether an object’s incriminatory nature is immediately apparent, the\n court must look to three factors, none of which is necessary but each of which is\n instructive. These factors are: (1) a nexus between the seized object and the\n [suspected criminal activity]; (2) whether the intrinsic nature or appearance of the\n seized object gives probable cause to believe that it is associated with criminal\n activity; and (3) whether the executing officers can at the time of discovery of the\n object on the facts then available to them determine probable cause of the object’s\n incriminating nature.\n\nUnited States v. Pacheco, 841 F.3d 384, 395 (6th Cir. 2016) (quoting United States v. Garcia,\n496 F.3d 495, 510 (6th Cir. 2007)) (citations and internal quotation marks omitted).\n\n Applying these principles, removing Plaintiff’s wallet was not “necessary to determine if\nthe suspect [was] armed” and was therefore unreasonable based on clearly established law. See\nDickerson, 508 U.S. at 373. Detective Allen admits that the object in Plaintiff’s pocket looked\nlike a wallet, felt like a wallet, and was located where one would expect to find a wallet. And\nnothing related to the circumstances of the investigative stop or to the crime that Davison was\nsuspected of committing created a reasonable suspicion that the wallet might be something other\nthan what it immediately appeared to be. Detective Allen points to the existence of razor blades\n\n 5Before the frisk, Plaintiff told Defendants that he was armed with a pocket knife. Because Plaintiff does\nnot press the issue, the Court does not analyze whether Plaintiff’s admission to possessing a pocket knife, combined\nwith reasonable suspicion that Plaintiff was Davison, would give rise to reasonable suspicion that Plaintiff was\narmed and dangerous.\n\n No. 17-2101 King v. United States Page 19\n\n\nand artfully concealed weapons—weapons “that are designed to look like wallets but in fact are\nnot”—but he does not suggest that there was reason to believe that Plaintiff (or Davison) might\nhave been carrying a razor blade or an artfully concealed weapon. (Def. Br. 27.) In the context\nof reasonable suspicion, which requires a “particularized and objective basis” for suspicion\n“based on specific and articulable facts,” Dorsey, 517 F.3d at 395, the fact that razor blades exist\ndoes not give rise to a reasonable inference that there is a razor blade in any particular person’s\nwallet. The same analysis applies to artfully concealed weapons. Indeed, if an officer’s\nsuspicion that a suspect is armed and dangerous were sufficient to also reasonably suspect that\nevery object in a suspect’s pocket either contains a razor blade or is an artfully concealed\nweapon, then there would be no practical distinction between a protective search and a search\nincident to arrest. Cf. United States v. Robinson, 414 U.S. 218, 236 (1973) (“Since it is the fact\nof custodial arrest which gives rise to the authority to search, it is of no moment that [the officer]\ndid not indicate any subjective fear of the respondent or that he did not himself suspect that\nrespondent was armed.”).\n\n Defendants argue that removing Plaintiff’s wallet was reasonable and cite several cases in\nsupport of their assertion, but these cases are easily distinguishable. In Strahan, 984 F.2d at 158,\nwe concluded that an officer was justified in reaching into Strahan’s pockets when the officer\nreasonably believed that Strahan was armed because the officer: (1) was familiar with Strahan;\n(2) had a reliable tip that Strahan was armed; and (3) felt a bulge in Strahan’s pocket during the\nfrisk, which could have been a weapon. In United States v. Brown, 310 F. App’x 776, 781 (6th\nCir. 2009), we concluded that an officer did not violate the Fourth Amendment by taking\nBrown’s wallet from his pocket when the officer was alone, it was late at night, and Brown was\nacting nervous and made a furtive gesture towards his back pocket as he tried to leave the scene.\nIn United States v. Muhammad, 604 F.3d 1022, 1026–27 (8th Cir. 2010), the Eighth Circuit\nconcluded that removing Muhammad’s wallet was permissible when the officer felt a four-inch\nby three-inch hard object in Muhammad’s pocket, the officer could not tell what the object was,\nand Muhammad had been detained for his suspected participation in an armed robbery that had\ntaken place less two hours earlier. Here, by contrast, Defendants were working together in broad\ndaylight and did not suspect Plaintiff’s wallet was a weapon.\n\n No. 17-2101 King v. United States Page 20\n\n\n Accordingly, the district court erred when it concluded that “[n]othing in Plaintiff’s\nallegations supports the proposition that Allen’s ‘search’ was any broader than necessary to\nensure that Plaintiff did not have access to a weapon.” (See R. 91 at PageID #1018.) Detective\nAllen’s interest in searching the contents of Plaintiff’s pocket to avoid “unnecessary risks in the\nperformance of [his] duties” was minimal given that Detective Allen could not have reasonably\nsuspected that the wallet was anything other than a wallet. See Terry, 392 U.S. at 23. Under\nclearly established law, removing Plaintiff’s wallet during a protective search was unreasonable\neven if the protective search was reasonable at its inception. See Dickerson, 508 U.S. at 373.\n\n iii. Stopping Plaintiff’s Attempt to Flee\n\n Assuming that Defendants had detained Plaintiff upon reasonable suspicion and that they\nhad properly identified themselves as police officers, it was not unreasonable for Defendants to\nattempt to stop Plaintiff’s flight. As the Supreme Court has explained:\n\n [U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very\n nature, is not “going about one’s business”; in fact, it is just the opposite.\n Allowing officers confronted with such flight to stop the fugitive and investigate\n further is quite consistent with the [Fourth Amendment].\n\nWardlow, 528 U.S. at 125. Plaintiff is therefore incorrect to the extent that he suggests that the\nFourth Amendment compelled Defendants to permit him to flee from his detention, again,\nassuming that the detention was lawful. But if a jury determines that Plaintiff reasonably\nbelieved he was being mugged rather than being detained by police officers, then extending the\ndetention after Plaintiff attempted to flee was just as unreasonable as detaining Plaintiff in the\nfirst instance.\n\n b. Excessive Force Claim\n\n Plaintiff next asserts that Defendants used excessive force in their attempt to prevent his\nflight. An excessive force claim may be analyzed under the Fourth, Eighth, or Fourteenth\nAmendment: “the applicable amendment depends on the plaintiff’s status at the time of the\nincident: a free citizen in the process of being arrested or seized; a convicted prisoner; or\nsomeone in ‘gray area[s]’ around the two.” Coley v. Lucas Cty., 799 F.3d 530, 537 (6th Cir.\n2015) (quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)). Where a free citizen\n\n No. 17-2101 King v. United States Page 21\n\n\nclaims that a government actor used excessive force during the process of an arrest, seizure, or\ninvestigatory stop, the applicable analysis is governed by the Fourth Amendment. Id.\n\n “[T]he right to be free from the excessive use of force is a clearly established Fourth\nAmendment right.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004)\n(quoting Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001)). The Supreme Court has\nexplained that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a\njudge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396\n(1989). Rather, “the question is whether the officers’ actions [were] ‘objectively reasonable’ in\nlight of the facts and circumstances confronting them, without regard to their underlying intent or\nmotivation.” Id. at 397. “The calculus of reasonableness must embody allowance for the fact\nthat police officers are often forced to make split-second judgments—in circumstances that are\ntense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular\nsituation.” Id. at 396. Therefore, to determine whether the use of force in a particular situation\nwas reasonable, this Court must look to the totality of the circumstances. See id.; Dickerson v.\nMcClellan, 101 F.3d 1151, 1161 (6th Cir. 1996) (citing Tennessee v. Garner, 471 U.S. 1, 8–9\n(1985)). In doing so, the court must assume “the perspective of a reasonable officer on the scene,\nrather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The analysis of\nwhether an officer’s use of force was reasonable is guided by the following three factors: (1) the\nseverity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of\nthe officers or others; and (3) whether the suspect was actively resisting arrest or attempting to\nevade arrest by flight. Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006).\n\n Excessive force cases typically require this Court to “analyze the events in segments.”\nPhelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002) (citing Dickerson, 101 F.3d at 1161–62). In\nPhelps, for instance, this Court analyzed three separate segments: first, the officer arrested\nPhelps and placed him in handcuffs; second, the officer took Phelps to the police station for\nbooking; and third, the officer tackled Phelps to the ground, sat on top of him, and beat him in\nresponse to a gesture by Phelps that the officer claimed he perceived to be threatening. See id. at\n301–02.\n\n No. 17-2101 King v. United States Page 22\n\n\n Plaintiff alleges that Defendants used excessive force in two distinct segments of their\nencounter. First, Plaintiff alleges that Detective Allen used excessive force by continuing to beat\nPlaintiff even after he was subdued. Any level of violent force that an officer uses against a\nsubdued detainee is excessive as a matter of clearly established law. See Champion, 380 F.3d at\n902 (citing cases for the proposition that this Court has “consistently held that various types of\nforce applied after the subduing of a suspect are unreasonable and a violation of a clearly\nestablished right”); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (holding and continuing to\nspray mace in the face of an incapacitated arrestee, if proven, would be unreasonable as a matter\nof law); Darnell v. Caver, No. 97–5297, 1998 WL 416000, at *3 (6th Cir. July 7, 1998)\n(unpublished) (after suspect thrown to ground, unreasonable for officer to lift suspect’s head and\nlet it drop to pavement). But Plaintiff’s allegation has no merit—there is no evidence to support\nit. Plaintiff suggests, without support, that he was subdued the moment that he released his bite.\n(See, e.g., Pl. Br. 45 (“[A] reasonable jury could conclude that Allen beat [Plaintiff] after\n[Plaintiff] released his bite.”)) But Detective Allen testified during Plaintiff’s criminal trial that\nhe “couldn’t gain control of [Plaintiff]” and that he “felt like [he] was losing the fight” until a\nnearby pedestrian provided assistance. (R. 73 at PageID #435.) Detective Allen stated that the\nincident ended only after the pedestrian “control[ed] [Plaintiff’s] legs, at [which] point we were\nable to put the handcuffs on him.” (Id.) The pedestrian also testified that Defendants needed his\nassistance to subdue Plaintiff. (Id. at PageID #448.) Plaintiff presents no evidence to show that\nhe stopped resisting when he stopped biting, and he fails to refute extensive testimony indicating\nthat three people were struggling to subdue him even after he released his bite.6 Accordingly,\nPlaintiff has failed to show that Detective Allen used excessive force after Plaintiff was subdued.\n\n Second, Plaintiff alleges that Defendants used excessive force in subduing him. This\nCourt agrees, especially because a jury could find that Defendants failed to identify themselves\nas police officers.7 It is impossible to resist an arrest (or detention) without knowing that an\n\n\n 6Plaintiff states in his reply brief that he disputes whether the pedestrian helped Defendants subdue him.\nHowever, Plaintiff does not explain his dispute, nor does he cite any evidence that tends to show that Defendants\ncontinued to use force after Plaintiff was subdued.\n 7Detective Allen was primarily responsible for the use of force, but Officer Brownback participated in the\nTerry stop, was present throughout the encounter, did not intervene once the encounter became violent, and at some\n\n No. 17-2101 King v. United States Page 23\n\n\narrest (or detention) is being attempted. Metiva, 31 F.3d at 385 (“[W]hether plaintiff was\nactively resisting arrest or attempting to evade arrest is contested as plaintiff alleges he was never\ntold he was under arrest or why he was being further detained after submitting to two pat-down\nsearches.”). If a jury were to find that Defendants failed to properly identify themselves, then\nPlaintiff’s flight did not constitute “actively resisting arrest or attempting to evade arrest by\nflight” as a matter of law. Id. Indeed, Plaintiff says that he ran away only after asking whether\nDefendants were mugging him. If a jury were to credit Plaintiff’s testimony, then neither\nDefendant is entitled to qualified immunity because any reasonable officer would have known,\nbased on clearly established law, that applying force—tackling Plaintiff to the ground, holding\nhim down, choking him, and beating him into submission—was unreasonable under the\ncircumstances.8 See id.; Atkins v. Twp. of Flint, 94 F. App’x 342, 349 (6th Cir. 2004)\n(concluding that “a reasonable officer would ordinarily inform a suspect . . . that he was being\narrested” for a low-level crime, especially when “there was no reason not to tell him he was\nunder arrest”); Griffith v. Coburn, 473 F.3d 650, 657 (6th Cir. 2007).\n\n But regardless of whether the force was justified at its inception, Detective Allen’s use of\na chokehold, if proven, would be excessive under clearly established law. The use of a\nchokehold constitutes deadly force. See Coley, 799 F.3d at 540. When a suspect resists arrest by\n“wrestling [himself] free from officers and running away,” officers may reasonably use force,\nbut such conduct “does not justify deadly force, especially when the struggle has concluded and\nthe suspect is in flight.” Bouggess v. Mattingly, 482 F.3d 886, 891 (6th Cir. 2007). Thus, “[t]he\nuse of a chokehold on an unresisting—and even an initially resistant—detainee” constitutes\n\n\n\npoint joined Detective Allen in subduing Plaintiff. Without resolving the parties’ factual disputes, the Court cannot\nconclude that Officer Brownback is entitled to qualified immunity for any portion of the encounter.\n 8Even if Defendants reasonably suspected that Plaintiff was Davison, Davison’s suspected crime was not\none for which it might have been reasonable for Detective Allen to tackle Plaintiff to the ground without\nexplanation. Davison’s suspected crime was home invasion, which the evidence indicates was a non-violent crime,\nif moderately severe. The degree of home invasion Davison allegedly committed is unclear. The lowest level of\nhome invasion is a felony punishable by imprisonment for up to five years, a fine of up to $2,000, or both. MCL\n§ 750.110a(7). This degree of home invasion does not necessarily require a perpetrator to commit an act of violence\nor to interact with others. Id. at § 750.110a(3). Thus, viewing the evidence in the light most favorable to Plaintiff,\nDefendants had no reason to think that Plaintiff was a particularly dangerous criminal and no reason to tackle him to\nthe ground without announcing themselves.\n\n No. 17-2101 King v. United States Page 24\n\n\nexcessive force. Coley, 799 F.3d at 540.9 Therefore, any officer should have known based on\nclearly established law that using a chokehold when Plaintiff was attempting to run away was\nobjectively unreasonable. Detective Allen argues that “the Constitution does not prohibit\nofficers from using this technique [a chokehold] to restrain a suspect just seconds after the\nsuspect attempts to punch an officer and to flee.” (Def. Br. 32.) Although Bouggess addressed\nan officer’s use of his firearm, rather than a chokehold, the principle from Bouggess applies to\nthe instant case. Bouggess clearly established that using deadly force, when the struggle has\nconcluded and a suspect is fleeing, is excessive and unconstitutional. See Bouggess, 482 F.3d at\n891. The district court therefore erred by granting Detective Allen qualified immunity as to his\nuse of force.\n\n Therefore, neither Defendant is entitled to qualified immunity on Plaintiff’s excessive\nforce claims.\n\n C. The District Court Correctly Held that Plaintiff’s Claims Against Detective\n Allen are Bivens Claims Rather than § 1983 Claims\n\n 1. Standard of Review\n\n This Court reviews de novo the purely legal question of whether a cause of action arises\nunder § 1983 or instead under the implied right of action recognized in Bivens, 403 U.S. 388. See\nUnited States v. Graham, 484 F.3d 413, 416 (6th Cir. 2007); Rodgers v. Banks, 344 F.3d 587,\n593 (6th Cir. 2003).\n\n 2. Analysis\n\n As explained below, the Court concludes that the district court correctly held that\nPlaintiff’s claims against Detective Allen are Bivens claims rather than § 1983 claims.\n\n\n\n\n 9Although Coley was published after the events giving rise to this case, this Court recognized in Coley that\nprior cases made it “abundantly clear” that “[c]hokeholds are objectively unreasonable where . . . there is no danger\nto others.” Coley, 799 F.3d at 541.\n\n No. 17-2101 King v. United States Page 25\n\n\n a. Relevant Legal Principles\n\n To bring a claim under § 1983, the plaintiff must allege: “1) the defendant acted under\ncolor of state law; and 2) the defendant’s conduct deprived the plaintiff of rights secured under\nfederal law.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing Bloch\nv. Ribar, 156 F.3d 673, 677 (6th Cir. 1998)). “The ultimate issue in determining whether a party\nis subject to liability under 42 U.S.C. § 1983 is whether the alleged infringement of federal rights\nis ‘fairly attributable to the state.’” Crowder v. Conlan, 740 F.2d 447, 449 (6th Cir. 1984)\n(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The question of fair\nattribution involves a two-step inquiry: “[f]irst, the deprivation must be caused by the exercise of\nsome right or privilege created by the State or by a rule of conduct imposed by the [S]tate or by a\nperson for whom the State is responsible.” Lugar, 457 U.S. at 937. In addition, “the party\ncharged with the deprivation must be a person who may fairly be said to be a state actor. This\nmay be because he is a state official, because he has acted together with or has obtained\nsignificant aid from state officials, or because his conduct is otherwise chargeable to the State.”\nId.\n\n A defendant’s actions performed pursuant to a “‘mixed’ federal and state program may\n. . . be actions ‘under color of state law.’” Rowe v. Tennessee, 609 F.2d 259, 266 (6th Cir. 1979).\nThe “evaluation of whether particular conduct constitutes action taken under the color of state [or\ninstead federal] law, must focus on the actual nature and character of that action.” Schultz v.\nWellman, 717 F.2d 301, 304 (6th Cir. 1983). In Schultz, for instance, this Court explained that\nthe decision by a defendant officer in the Kentucky Air National Guard to terminate a lower-\nlevel officer was made under color of state law, not federal law, because “[o]fficers in the\nNational Guard . . . are officers of the state militia until called into active federal duty,” and\nbecause terminations from the National Guard “are ordered by the state Adjutant General, a state\nofficer, and must be approved by the Governor of the state.” Id. at 305.\n\n b. Application to the Matter at Hand\n\n Plaintiff’s claims against Detective Allen may not be brought under § 1983 because\nDetective Allen’s conduct is fairly attributable only to the United States and not to the State of\n\n No. 17-2101 King v. United States Page 26\n\n\nMichigan.10 Although Detective Allen was a detective with the Grand Rapids Police and was\ntherefore employed by the state, Detective Allen was working full time with an FBI task force at\nthe time of the incident at issue. Plaintiff has not alleged or demonstrated that the state was\ninvolved in authorizing or administering the task force; instead, it appears that the FBI managed\nthe operation with the benefit of state resources. Detective Allen’s “official character” at the\ntime of the incident was therefore “such as to lend the weight of the [United States] to his\ndecisions.” See Lugar, 457 U.S. at 937. As a deputized federal agent, Detective Allen carried\nfederal authority and acted under color of that authority rather than under any state authority he\nmay have had as a Grand Rapids Police detective. See Guerrero v. Scarazzini, 274 F. App’x 11,\n12 n.1 (2d Cir. 2008) (“[B]ecause Scarazzini and McAllister were federally deputized for their\nTask Force work, this claim was properly brought . . . as a Bivens action.”); Majors v. City of\nClarksville, 113 F. App’x 659, 659–60 (6th Cir. 2004) (explaining that a § 1983 claim brought\nagainst police officers serving with a DEA task force was “in reality a Bivens claim under the\nFourteenth Amendment”).\n\n Plaintiff argues that Detective Allen acted under color of state law because the task force\nwas enforcing a state warrant for Davison’s arrest at the time the events giving rise to this case\ntook place. But Plaintiff fails to explain why the “nature and character” of a task force should\nchange based on whether the task force chooses to pursue a state fugitive or a federal fugitive.\nSchultz, 717 F.2d at 304. Plaintiff points out that “Davison had committed no federal crime” and\ntherefore “the officers had no authority independent of Michigan state law to arrest Davison.”\n(Pl. Br. 61.) However, the nature and character of a cooperative federal-state program is\ndetermined by the source and implementation of authority for the program, not for the particular\nwork that the agency chooses, in the exercise of its authority, to perform on a given day. Cf. id.\nat 305 (“That an agency of the state chooses to utilize federal substantive and procedural rules in\nthe exercise of its state law authority does not transform the state law character of its actions.”).\nThus, as long as the task force’s decision to apprehend Davison was made by virtue of an\nexercise of federal authority, which Plaintiff does not contest, Detective Allen remained a federal\n\n 10Detective Allen’s potential liability is unchanged by whether Plaintiff’s claims properly arise under\nBivens or § 1983. See Butz v. Economou, 438 U.S. 478, 500–04 (explaining that liability for an actionable claim\nunder Bivens is indistinguishable from an analogous claim under § 1983).\n\n No. 17-2101 King v. United States Page 27\n\n\nagent in the pursuit of a state fugitive. Therefore, the district court correctly concluded that\nPlaintiff’s claims against Detective Allen are Bivens claims and not § 1983 claims.\n\n CONCLUSION\n\n For the reasons explained above, the Court REVERSES the district court’s findings that\n(1) the FTCA judgment bar precludes Plaintiff’s remaining claims and that (2) Defendants are\nentitled to qualified immunity, VACATES the district court’s judgment in favor of Defendants,\nand REMANDS for proceedings consistent with this opinion.\n\n No. 17-2101 King v. United States Page 28\n\n\n _________________\n\n DISSENT\n _________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370783/", "author_raw": "CLAY, Circuit Judge"}, {"author": "ROGERS, Circuit Judge, dissenting", "type": "dissent", "text": "ROGERS, Circuit Judge, dissenting. The district court’s dismissal of King’s FTCA\nclaims against the United States based on the presence of state-law governmental immunity\nconstitutes a “judgment” under 28 U.S.C. § 2676, such that the FTCA’s judgment bar precludes\nKing’s claims against Allen and Brownback.\n\n The FTCA’s judgment bar provides:\n\n The judgment in an action under section 1346(b) of this title shall constitute a\n complete bar to any action by the claimant, by reason of the same subject matter,\n against the employee of the government whose act or omission gave rise to the\n claim.\n\n28 U.S.C. § 2676. King had sued the United States under 28 U.S.C. § 1346(b) based on the\nallegedly tortious acts of Todd Allen and Douglas Brownback. The district court dismissed\nKing’s FTCA claims on state-law grounds. King did not challenge the dismissal of his FTCA\nclaims on appeal, so the decision was final for the purposes of the FTCA’s judgment bar. See\nSerra v. Pichardo, 786 F.2d 237, 239, 242 (6th Cir. 1986). Moreover, King does not dispute that\nthe additional claims against Allen and Brownback arise from the same “subject matter” as his\nFTCA claims. A judgment for or against the United States on an FTCA claim bars claims based\non the same subject matter, “even when ‘the claims [a]re tried together in the same suit and [ ]\nthe judgments [ ] entered simultaneously.’” Harris v. United States, 422 F.3d 322, 334 (6th Cir.\n2005) (quoting Serra, 786 F.2d at 241). The district court’s order in favor of the United States\non King’s FTCA claims accordingly triggers the judgment bar and requires the dismissal of\nKing’s additional claims against Allen and Brownback.\n\n Although the district court’s order established that the district court lacked subject matter\njurisdiction over the FTCA claims, this is because merits determinations under the FTCA are\njurisdictional in that they implicate the sovereign immunity of the United States. The dismissal\nstill amounted to a “judgment” under 28 U.S.C. § 2676. Indeed, the district court dismissed\nKing’s FTCA claims against the United States based on determinations that are legally\n\n No. 17-2101 King v. United States Page 29\n\n\nindistinguishable from determinations that the Supreme Court has identified, albeit in dictum, as\ntriggering the judgment bar. In Simmons v. Himmelreich, 136 S. Ct. 1843, 1849 (2016), the\nCourt explained that the judgment bar applies when FTCA claims are dismissed “because the\n[defendants] were not negligent, because [the plaintiff] was not harmed, or because [the plaintiff]\nsimply failed to prove his claim.” Such dismissals are under § 1346(b), which lifts the sovereign\nimmunity of the United States by granting jurisdiction over a cause of action for money damages\nagainst the government in certain limited circumstances.1 According to the Court, “it would\nmake little sense to give [the plaintiff] a second bite at the money-damages apple by allowing\nsuit against the employees” to proceed in such a case. Id. The hypothetical dismissals “would\nhave given [the plaintiff] a fair chance to recover damages” for the alleged constitutional\nviolations, such that applying the judgment bar to preclude litigation over claims arising from the\nsame subject matter would be appropriate. Id.\n\n This is precisely what happened in King’s lawsuit. The district court dismissed King’s\nFTCA claims against the United States because it determined that Michigan governmental\nimmunity protected Allen and Brownback from liability for their alleged torts. According to the\ncourt, “the parties’ undisputed facts support the finding that [Allen and Brownback’s] actions\nwere not undertaken with the malice required under Michigan law.” The district court’s\ndismissal of King’s FTCA claims was based on an assessment of their merits under Michigan\nlaw. Such a dismissal is warranted by the limits set out in § 1346(b), like those in the Simmons\ndictum. Under § 1346(b), the FTCA creates a cause of action against the United States “for\ninjury or loss of property, or personal injury or death,” only where “the United States, if a private\nperson, would be liable to the claimant in accordance with the law of the place where the act or\nomission occurred.”\n\n\n\n 128 U.S.C. § 1346(b) provides:\n Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive\n jurisdiction of civil actions on claims against the United States, for money damages, accruing on\n and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the\n negligent or wrongful act or omission of any employee of the Government while acting within the\n scope of his office or employment, under circumstances where the United States, if a private\n person, would be liable to the claimant in accordance with the law of the place where the act or\n omission occurred.\n\n No. 17-2101 King v. United States Page 30\n\n\n It is true that a merits-based dismissal under the limits of § 1346(b) is jurisdictional; the\nterms of § 1346(b) explicitly grant jurisdiction to the district courts for such claims against the\ngovernment. But that cannot be sufficient to preclude application of the FTCA judgment bar\nbecause that would effectively nullify the judgment bar with respect to cases where the FTCA\njudgment was in favor of the government. Every case that determines that the elements of the\ncause of action are not met is at the same time a determination that the government’s immunity is\nnot waived and that there is accordingly no jurisdiction. This is true even of a judgment entered\nafter trial. See, e.g., Harris, 422 F.3d at 324–25; Serra, 786 F.2d at 241–42. But as the Supreme\nCourt reasoned in Simmons, such cases are subject to the FTCA judgment bar. See Simmons,\n136 S. Ct. at 1849.\n\n The actual holding in Simmons was that the FTCA’s judgment bar does not apply when a\njudgment is rendered for or against the United States based on one of the FTCA’s “Exceptions”\nset out in 28 U.S.C. § 2680, such as the discretionary function exception. Id. at 1847–48. The\nCourt relied upon the “plain text” of the FTCA for that conclusion. Id. The plain text provision\ndictates that the judgment bar does not apply to cases excepted under 28 U.S.C. § 2680.2 But the\nplain text applied in Simmons by its terms does not apply to dismissals based on the limits of\n§ 1346(b), such as the dismissal in this case and the dismissals explicitly distinguished in the\nCourt’s dictum. See id.\n\n Our decision in Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576 (6th Cir. 2014),\ndoes not require holding that dismissals under § 1346(b) preclude application of the judgment\nbar. That decision was the very court of appeals decision affirmed on different grounds in\nSimmons. In Himmelreich, we determined that “[a] dismissal for lack of subject-matter\njurisdiction does not trigger the § 2676 judgment bar,” because “in the absence of jurisdiction,\nthe court lacks the power to enter judgment.” 766 F.3d at 579. In its review of our Himmelreich\n\n 2The Supreme Court determined:\n The “Exceptions” section of the FTCA reads: “[T]he provisions of this chapter”—Chapter 171—\n \"shall not apply to . . . [a]ny claim based upon . . . the exercise or performance . . . [of] a\n discretionary function or duty.” § 2680(a). The judgment bar is a provision of Chapter 171; the\n plain text of the “Exceptions” section therefore dictates that it does “not apply” to cases that, like\n Himmelreich’s first suit, are based on the performance of a discretionary function.\n136 S. Ct. at 1847–48.\n\n No. 17-2101 King v. United States Page 31\n\n\ndecision, the Supreme Court in Simmons affirmed on narrower grounds, and in dictum reasoned\nin a way that logically requires application of the judgment bar in this case. See Simmons, 136 S.\nCt. at 1849. We can hardly be bound by a rationale that the Supreme Court rejected on review of\nthe very case in which we set it forth, in favor of a more limited rationale (the plain text of\n§ 2680) that flatly does not apply in the case before us.\n\n It could be argued that the Supreme Court’s language regarding § 1346(b) dismissals is\ndictum, whereas our previous decision in that very case—more broadly reasoning that neither\n§ 2680 dismissals nor § 1346(b) dismissals implicate the judgment bar—is holding, and thus still\nbinding on subsequent panels in the Sixth Circuit. Such an argument is anomalous, however,\nand at bottom inconsistent with the theory of stare decisis. “Dicta” encompasses elements of an\nopinion that are not necessary for the resolution of the case. To discern the difference between\nholding and dictum, we cannot simply rely on what a given decision purports to hold. Rather,\nwe determine whether the purported holding was actually necessary for the resolution of the\ncase. A subsequent decision issued by a reviewing court in that same case may inform whether\nthe purported holding of the lower court was in fact necessary. When a lower court rules on a\nparticular theory and the reviewing court affirms on narrower grounds, the affirmance can\nindicate that the broader portion of the lower court’s theory was unnecessary and therefore\ndictum—even if the lower court did not recognize it as such at the time of the decision.\n\n The litigation in Simmons illustrates the point. When we decided Himmelreich, we\npurported to hold that any dismissal of an FTCA claim for lack of subject matter jurisdiction—\nwhich would presumably include dismissals under both § 1346(b) and § 2680—would not\ntrigger the judgment bar. See 766 F.3d at 579. On appeal, the Supreme Court determined that\nthe case could be resolved on narrower grounds and affirmed on a theory that precluded the\njudgment bar from applying to § 2680 dismissals (the type of dismissal before it), while\npermitting in dictum the application of the judgment bar to § 1346(b) dismissals. See Simmons,\n136 S. Ct. at 1849. Once the Supreme Court made the final decision in the Himmelreich\nlitigation in Simmons, the analysis in the court of appeals decision, to the extent that it\nencompassed § 1346(b) dismissals, was effectively rendered dictum, if it was not already dictum.\n\n No. 17-2101 King v. United States Page 32\n\n\nIt was no longer necessary for the ultimate resolution of the case, since the dismissal of the\nFTCA claim in Himmelreich was based on § 2680 and not § 1346(b).\n\n The Supreme Court, in other words, took away from the Sixth Circuit opinion any\nrelevance that its § 1346(b)-related analysis may have had to the resolution of the case before it,\nrendering it the equivalent of dictum with respect to subsequent cases. The Supreme Court did\nso, moreover, before the Himmelreich litigation was final.\n\n This leaves us with Sixth Circuit dictum that precludes the application of the judgment\nbar to § 1346(b) dismissals, and well-considered subsequent Supreme Court dictum that permits\nthe application of the judgment bar to § 1346(b) dismissals. The Supreme Court dictum is far\nmore compelling than our previous inconsistent dictum, and should be followed.\n\n Accordingly, King’s claims against Allen and Brownback, as sympathetic as they are, are\nprecluded by the FTCA judgment bar.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370783/", "author_raw": "ROGERS, Circuit Judge, dissenting"}]}	CLAY	ROGERS	CLAY	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4593530/	Published	1	1	1	2,019	2	[ { "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...
4,593,927	UNITED STATES of America, Plaintiff-Appellee, v. John MADDUX, Jr. (16-6368); Christina Carman (16-6370); Julie Coscia (16-6371); Michael E. Smith (16-6726), Defendants-Appellants.	United States v. Michael E. Smith	2019-02-26	16-6726	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Suhrheinrich, Gibbons, Kethledge", "parties": "", "opinions": [{"author": "KETHLEDGE, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0029p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA, ┐\n Plaintiff-Appellee, │\n │\n │\n v. > Nos. 16-6368/6370/6371/6726\n │\n │\n JOHN MADDUX, JR. (16-6368); CHRISTINA CARMAN │\n (16-6370); JULIE COSCIA (16-6371); MICHAEL E. │\n SMITH (16-6726), │\n Defendants-Appellants. │\n │\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Kentucky at Ashland.\n No. 0:14-cr-00020—David L. Bunning, District Judge.\n\n Argued: May 3, 2018\n\n Decided and Filed: February 26, 2019\n\n Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.\n\n _________________\n\n COUNSEL\n\nARGUED: Kent Wicker, DRESSMAN BENZINGER LA VELLE, Louisville, Kentucky, for\nAppellant in 16-6368. Nicole S. Elver, DRESSMAN BENZINGER LA VELLE, Louisville,\nKentucky, for Appellant in 16-6370. Gregory A. Napolitano, LAUFMAN & NAPOLITANO,\nLLC, Cincinnati, Ohio, for Appellant in 16-6726. John M. Pellettieri, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kent Wicker,\nDRESSMAN BENZINGER LA VELLE, Louisville, Kentucky, for Appellant in 16-6368.\nNicole S. Elver, DRESSMAN BENZINGER LA VELLE, Louisville, Kentucky, for Appellant in\n16-6370. Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for\nAppellant in 16-6726. John M. Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., Laura K. Voorhees, UNITED STATES ATTORNEY’S OFFICE, Lexington,\nKentucky, for Appellee. Gary W. Lanker, LAW OFFICE OF GARY W. LANKER, Memphis,\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 2\n /6726\n\nTennessee, for Appellant in 16-6371. Steven D. Jaeger, THE JAEGER FIRM, PLLC, Erlanger,\nKentucky, Candace Crouse, PINALES, STACHLER, YOUNG, BURRELL, & CROUSE CO.\nLPA, Cincinnati, Ohio, for Amicus Curiae in 16-6370.\n\n _________________\n\n OPINION\n _________________\n\n KETHLEDGE, Circuit Judge. The defendants here took part in a decade-long scheme\nsurreptitiously to sell tax-free cigarettes, thereby defrauding federal, state, and local governments\nof more than $45 million in tax revenue. The federal government eventually uncovered the\nscheme and charged them with 34 counts of various crimes, including conspiracy to commit mail\nor wire fraud in violation of 18 U.S.C. § 1349, conspiracy to launder money in violation of\n18 U.S.C. § 1956(h), and conspiracy against the United States in violation of 18 U.S.C. § 371.\nOne of the defendants, John Maddux, pleaded guilty to 29 counts. The other three—Christina\nCarman, Julie Coscia, and Michael Smith—all went to trial, where a jury convicted each of them\non various counts. These three now challenge their convictions on several grounds. Maddux,\nCarman, and Coscia also challenge their sentences, arguing that the district court erred when\ncalculating their recommended sentences under the Sentencing Guidelines. We reject all these\narguments and affirm.\n\n I.\n\n Cigarettes are heavily taxed. Federal, state, and local governments each add their own\nlayer of taxation, which increases the price dramatically from factory to shelf. In some places, a\npack sells for $13 even though manufacturers sell it for around $5. Beginning in 2003, John\nMaddux, his wife Christina Carman, and their now-deceased business partner, Glenn Herndon,\nbegan selling cigarettes directly to consumers, bypassing governmental taxing authorities. This\nplan enabled them to sell untaxed cigarettes at a steep discount.\n\n The group took several steps to conceal their sales from the federal, state, and local\ngovernments. Many if not most of their customers used credit cards to pay for the cigarettes; and\nMaddux told the company that processed those sales that he and Carman ran a business called\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 3\n /6726\n\n“DSL Ever-Ready Specialty Glass,” which sold “glass for homes and auto.” In fact, their\ncompanies did business under the names of “Your Kentucky Tobacco Resource” and “ESR II.”\nMaddux also told his employees to use email addresses with domain names that disguised the\nnature of the company’s business, like “@asrhomedecor.com.” And Maddux arranged for a\nhotel employee to tip him off whenever officials from the Kentucky Department of Revenue\ncame to town, so that he and Carman could avoid inspections.\n\n Maddux and Carman also failed to report their sales to state authorities as required by\nfederal law. The Jenkins Act, 15 U.S.C. § 376(a) (2006), required cigarette sellers, like Maddux\nand Carman, to file a monthly report detailing (among other things) the names and addresses of\nany customers who had purchased untaxed cigarettes. This report would enable state and local\ngovernments to collect the taxes owed by each customer. If a seller failed to report his sales, the\nAct imposed a strict-liability misdemeanor punishable by six months’ imprisonment. See\n15 U.S.C. § 377 (2006). Maddux and Carman never filed these reports, and made sure their\ncustomers knew as much. Their customers in turn stayed silent about their purchase of untaxed\ncigarettes; and so the taxing authorities never knew about them. Through this plan, Maddux and\nCarman converted monies that should have been revenue for the taxing governments into profits\nfor themselves.\n\n Soon Maddux and Carman recruited two other cigarette sellers, Julie Coscia and Michael\nSmith. Coscia ran “Cigarette Girl,” a company she incorporated as “ASC Properties” to stay—as\nshe put it—“under the radar.” Like Maddux and Carman, she gave a phony description of her\nbusiness to the company that processed her transactions, stating that she sold mail-order gifts.\nSimilarly, Smith ran “Payless Cigs,” which he incorporated as “Payless Enterprises.” He\nlikewise told his credit-card processing company that he sold gifts, novelties, and souvenirs.\nNeither Coscia nor Smith reported their sales as required by the Jenkins Act.\n\n In 2010, Congress passed the Prevent All Cigarette Trafficking Act, which imposed\nfurther restrictions on the sale of untaxed cigarettes. See Pub. L. 111-154, 124 Stat. 1087. The\nTrafficking Act prohibits shipment of cigarettes through the United States Postal Service,\nrequires packages containing cigarettes to be labeled as such, and directs “delivery sellers”—i.e.,\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 4\n /6726\n\nsellers who take orders directly from consumers or ship cigarettes by common carrier—to\ncomply with the tax laws in the state or locality where the cigarettes are shipped. See 15 U.S.C.\n§ 376a(a)(3). The Act also makes it a felony, punishable by three years’ imprisonment,\nknowingly to refuse to report cigarette sales. See 15 U.S.C. § 377(a).\n\n Maddux, Carman, Coscia, and Smith recognized that the Trafficking Act made their\nscheme more difficult to run within the United States, so they converted it to an offshore\noperation. Rather than ship cigarettes through Tobacco Resource, they began shipping through\nMaddux and Carman’s other company, ESR II, which used suppliers in Ukraine, Israel, and\nKyrgyzstan, among other places. The defendants relayed orders of cigarettes to these suppliers,\nwho shipped them directly to customers. To pay the suppliers, Coscia and Smith wired money to\nMaddux and Herndon, who then wired money to several foreign bank accounts located in\nAustria, Latvia, and Cyprus. The suppliers then withdrew money from these accounts and\nshipped cigarettes to the customers in unmarked boxes.\n\n No one—not the defendants, the suppliers, or the customers—ever declared the cigarettes\nto United States Customs and Border Protection, paid the federal excise taxes, or reported the\nsales to state or local governments. Yet officials from customs and the postal service often\nintercepted cigarettes mailed by the overseas suppliers. In response, Maddux and Herndon\ndiscussed disguising the boxes to conceal that they contained cigarettes.\n\n Eventually, the federal government caught up to Maddux, Carman, Coscia, and Smith. In\n2014, a federal grand jury indicted them on 34 counts. All told, the government alleged that they\nhad deprived taxing authorities of over $45 million in tax revenue. Maddux pleaded guilty to\n29 counts, including several fraud and money-laundering charges. See 18 U.S.C. §§ 1349,\n1956(h), 1957, 371, 1001. Coscia, Smith, and Carman went to trial.\n\n The jury convicted all three. Coscia and Smith were convicted on several counts of\nconspiracy to commit mail or wire fraud (four for Coscia and two for Smith) and several counts\nof conspiracy to launder money (three for Coscia and one for Smith). See 18 U.S.C. §§ 1349,\n1956(h). Carman was convicted on two counts—conspiracy to commit mail and wire fraud and\nconspiracy to launder money—and acquitted on 19 others. See 18 U.S.C. §§ 1349, 1956(h).\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 5\n /6726\n\nOn a post-trial motion, however, the district court also acquitted Carman of conspiracy to launder\nmoney.\n\n At sentencing, the defendants objected to the district court’s calculation of the tax\nrevenue lost because of their fraud. The district court overruled those objections, finding\nMaddux responsible for about $48 million in lost taxes, Carman for $22.8 million, and Smith for\n$2.95 million. The district court sentenced Maddux to 120 months’ imprisonment, Carman to\n60 months, Smith to 42 months, and Coscia to 36 months—and then entered judgments\naccordingly. Each of the defendants then filed notices of appeal. Months later, the district court\nalso ordered Carman to forfeit about $17.5 million. (Carman filed a separate notice of appeal\nfrom that order, which we will review in a separate opinion.)\n\n II.\n\n A.\n\n Carman challenges the sufficiency of count one of the indictment, which alleged\nconspiracy to commit mail and wire fraud against state and local governments. We review the\nsufficiency of the indictment de novo. See United States v. White, 846 F.3d 170, 174 (6th Cir.\n2017). An indictment is sufficient (in the sense of stating an offense, see Federal Criminal Rule\n12(b)(3)(B)(v)) if it alleges conduct satisfying every element of the charged offense. United\nStates v. Olive, 804 F.3d 747, 753 (6th Cir. 2015).\n\n The elements of a conspiracy offense are the existence of “an agreement between two or\nmore persons to act together in committing an offense, and an overt act in furtherance of the\nconspiracy.” United States v. Faulkenberry, 614 F.3d 573, 584 (6th Cir. 2010) (citation and\ninternal quotation marks omitted). Here, count one alleges that, from 2008 to 2010, Carman and\nothers agreed to a scheme by which they sold untaxed cigarettes while failing to report those\nsales to state governments as required by the Jenkins Act, among other acts of concealment.\nCarman argues that count one does not allege a conspiracy to commit mail or wire fraud because,\nshe says, the conduct that the alleged conspirators agreed to commit, as described in that count,\ndoes not amount to mail or wire fraud.\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 6\n /6726\n\n Those frauds each comprise three elements: first, “that the defendant devised or willfully\nparticipated in a scheme to defraud”; second, that “he used or caused to be used” an “interstate\nwire communication” or the United States mail in furtherance of the scheme; and third, “that he\nintended to deprive a victim of money or property.” Faulkenberry, 614 F.3d at 580-81 (citation\nand internal quotation marks omitted). Carman’s argument (which Smith “adopts” by reference)\ngoes to the first element, namely whether she participated in a scheme to defraud. “A scheme to\ndefraud is any plan or course of action by which someone intends to deprive another of money or\nproperty by means of false or fraudulent pretenses, representations, or promises.” Id. at 581\n(citation, internal quotation marks, and ellipses omitted). The false or fraudulent representation\nmust be material. Neder v. United States, 527 U.S. 1, 25 (1999). Count one does not describe a\nscheme to defraud, Carman says, because the government did not allege that she “or her co-\ndefendants said anything false, to any person or government, at any time.” Carman Br. at 14.\n\n But one hardly needs to make a false statement to commit fraud. “‘False’ and\n‘fraudulent’ representations do not cover the same thing. Fraud has long been understood to\ninclude a broader range of deceptive conduct.” United States v. Kurlemann, 736 F.3d 439, 446\n(6th Cir. 2013). Specifically, for purposes of the fraud statutes, fraudulent pretenses or\nrepresentations can include “concealment”—where one says nothing “but has a duty to speak[.]”\nId. at 445; accord United States v. Perry, 757 F.3d 166, 176 (4th Cir. 2014); cf. Restatement\n(Second) of Torts § 550 cmt. b (citing Stewart v. Wyo. Cattle-Ranche Co., 128 U.S. 383 (1888)).\n\n The Supreme Court applied this principle in Pasquantino v. United States, 544 U.S. 349,\n357 (2005). There, the defendants “concealed imported liquor from Canadian officials and failed\nto declare those goods on customs forms.” Id. “By this conduct,” the Court said, “they\nrepresented to Canadian customs officials that their drivers had no goods to declare.” Id. “This,\nthen, was a scheme designed to defraud by representations, and therefore a ‘scheme or artifice to\ndefraud[.]’” Id. (internal citation and some quotation marks omitted).\n\n The same reasoning applies here. Carman and her co-defendants had a duty under the\nJenkins Act to file reports for all of their untaxed-cigarette sales. By omitting to file those\nreports, the defendants represented to the states that they had not sold any untaxed cigarettes.\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 7\n /6726\n\nThose omissions were “material,” because they naturally caused the states not to collect taxes on\nthose sales. See Neder, 527 U.S. at 16. And the indictment alleges other acts of concealment—\nincluding that the defendants concealed the true nature of their businesses from credit-card\nprocessors—that confirmed that the defendants’ failure to file reports was not merely\ninadvertent, but fraudulent. Hence count one alleged a scheme involving fraudulent pretenses or\nrepresentations. Faulkenberry, 614 F.3d at 581.\n\n Carman also argues that the scheme was not fraudulent for a different reason, namely\nthat (in her view) it did not deprive the states “of money or property.” Id. Instead, she says, it\ndeprived states only of the information that would have been in the reports. But Pasquantino\nsinks this argument too. There, the Canadian government’s entitlement to excise taxes on the\nsmuggled liquor was no different, for purposes of the federal fraud statutes, from the states’\nentitlement to taxes on the cigarette sales in this case. In both cases the entitlement was a “right\nto be paid money,” which “has long been thought to be a species of property.” 544 U.S. at 356.\nAnd in both cases the defendants’ concealment “deprived [the taxing government] of that\nmoney[.]” Id. That fact distinguishes this case from Cleveland v. United States, 531 U.S. 12\n(2000), which Carman relies upon here. For in Cleveland “[t]here was no suggestion . . . that the\ndefendant aimed at depriving the State of any money[.]” Pasquantino, 544 U.S. at 357. Thus, as\nin Pasquantino, Carman and her co-defendants participated in a scheme by which they\n“intend[ed] to deprive another of money or property by means of false or fraudulent pretenses,\nrepresentations, or promises.” Faulkenberry, 614 F.3d at 581 (internal quotation marks and\nellipses omitted).\n\n Yet Carman argues that a footnote in another Supreme Court decision—Hemi Group,\nLLC v. City of New York, 559 U.S. 1 (2010)—shows that the scheme here was not fraudulent.\nThere, the City of New York brought a civil claim under the RICO statute (18 U.S.C. § 1964(c))\nagainst Hemi Group, a cigarette seller in New Mexico, for the company’s failure to file reports\nunder the Jenkins Act for cigarettes shipped into the city. 559 U.S. at 4-5. To recover on a\nRICO claim, a plaintiff must make two showings: first, that the defendant committed one of the\nstatute’s “so-called predicate acts,” which include mail or wire fraud; and second, that the\npredicate act was the “proximate cause” of the plaintiff’s injury. Id. at 6-9. The Supreme Court\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 8\n /6726\n\nassumed for purposes of argument “that failing to file Jenkins Act material” can amount to mail\nor wire fraud. Id. at 7. The Court then rejected the City’s RICO claim on the ground that\nHemi’s failure to file the reports (with the State of New York, rather than with the City itself)\nwas not the proximate cause of the City’s failure to collect taxes on Hemi’s sales of cigarettes to\nCity residents. Id. at 11-12. But that holding is inapposite here, because—unlike the RICO\nstatute—the mail and wire fraud statutes do not require any proof that the defendant’s fraud\ncaused losses for the victim. See Pasquantino, 544 U.S. at 371 (“[T]he wire fraud statute\npunishes the scheme, not its success” (internal citation and quotation marks omitted)).\n\n In a footnote in Hemi, however, the Court stated in dictum that, “[e]ven if we were\nwilling to look to Hemi’s intent” for purposes of determining causation, “the City would fare no\nbetter. Hemi’s aim was not to defraud the City (or the State, for that matter) of tax revenue, but\nto sell more cigarettes. Hemi itself neither owed taxes nor was obliged to collect and remit them.\nThis all suggests that Hemi’s alleged fraud was directed at its competitors, not the City.”\n559 U.S. at 13 n.1. Per this dictum, Carman asserts, the indictment here did not allege a scheme\nto defraud.\n\n But Carman elides several differences between that case and this one. The first, as shown\nabove, is that the Court’s holding in Pasquantino (as opposed to its dictum in Hemi) makes clear\nthat the indictment here did allege a scheme to defraud. Specifically, the defendants, by their\nomissions and acts of concealment, intended to deprive the states of their entitlement to tax\nrevenue. And on this record any damage to the defendants’ “competitors” was merely collateral.\nSecond, “the only fraudulent conduct alleged” in Hemi was “a violation of the Jenkins Act.” Id.\nat 14. Here, in contrast, the indictment alleged that the defendants engaged in extensive conduct\nto conceal both the nature of their businesses (which Hemi notably did not do) and the very fact\nof the defendants’ cigarette sales.\n\n Nor does it matter—for purposes of the existence of a fraudulent scheme, as opposed to\nRICO causation—that the defendants themselves did not owe the uncollected taxes. Fraudsters\nroutinely divert to themselves monies that a third party owes to the victim. See, e.g., United\nStates v. Cunningham, 679 F.3d 355, 370-73 (6th Cir. 2012) (lawyers diverted the opposing\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 9\n /6726\n\nparty’s settlement payment to the lawyers’ personal accounts). That is exactly what the\ndefendants did here, since their scheme allowed the defendants and their customers to divide\nbetween them monies (the unpaid taxes) that should have been paid to the states.\n\n Carman’s remaining argument as to the indictment’s sufficiency is more policy-based\nthan legal: namely, that we should not allow the government to “‘bootstrap’ a Jenkins Act\nviolation into a mail or wire fraud offense[.]” Carman Br. at 14. As an initial matter, “[t]he\nFederal Criminal Code is replete with provisions that criminalize overlapping conduct.”\nPasquantino, 544 U.S. at 358 n.4. And here the indictment alleged more than a Jenkins Act\nviolation. Instead, as discussed above, the indictment alleged a range of conduct supporting an\ninference that the defendants’ Jenkins Act violations were just one part of a larger fraudulent\nscheme. Moreover, nobody disputes that—unlike a mere failure to file reports under the Act—\nthe scheme here involved use of interstate wire communications and the United States mails.\nWhatever one might think of the proliferation of criminal laws in this country, it was Congress’s\nprerogative to punish this combination of conduct more severely than a violation of the Jenkins\nAct standing alone. The indictment sufficiently alleged a scheme to defraud.\n\n B.\n\n Smith challenges the sufficiency of the government’s evidence for certain counts on\nwhich he was found guilty. We view the evidence in the light most favorable to the government\nand ask whether “any rational trier of fact could have found the essential elements of the crime\nbeyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).\n\n 1.\n\n Smith argues that his convictions for conspiracy to commit fraud (counts five and six of\nthe indictment) are invalid because, he says, the government failed to prove that he intended to\ndefraud anyone. Instead, he contends, the evidence showed only that he was a cigarette seller\nwho sometimes used third-party suppliers to ship cigarettes to his customers. But the\ngovernment proved more than that about Smith’s operation. For starters, Smith failed to report\n(as required by the Jenkins Act) the sale of 157,000 cartons of untaxed cigarettes—which itself\nshows that these violations were not merely an oversight. So does an email in which Maddux\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 10\n /6726\n\nwarned Smith that the federal government had recently started “pursuing the Jenkins Act very\nseriously.” Moreover, a jury may infer fraudulent intent from a defendant’s “efforts to conceal\nthe unlawful activity[.]” See United States v. Smith, 749 F.3d 465, 478 (6th Cir. 2014) (citation\nomitted). And like his co-defendants, Smith concealed the nature of his business from a credit-\ncard processing company, describing the business as selling “gifts and novelties.” Smith also\nknowingly used overseas suppliers who shipped cigarettes in unmarked boxes “to disguise the\ncontents” from federal customs agents. Ample evidence supported Smith’s convictions for\nconspiracy to commit fraud.\n\n 2.\n\n Smith (albeit barely) and Coscia argue that insufficient evidence supports their\nconvictions for conspiracy to commit promotional money laundering in violation of 18 U.S.C.\n§ 1956(h). Under that provision, the government must prove that the defendant “knowingly and\nvoluntarily” agreed with another person to violate the substantive provisions of the money-\nlaundering statute. United States v. Prince, 618 F.3d 551, 554 (6th Cir. 2010). (Unlike other\nconspiracy offenses, conspiracy in violation of § 1956(h) does not require proof of an overt act.\nSee id.)\n\n Here, the relevant “substantive provision” is 18 U.S.C. § 1956(a)(2)(A), which provides\nin relevant part:\n\n Whoever . . . transfers . . . funds from a place in the United States\n to or through a place outside the United States or to a place in the\n United States from or through a place outside the United States—\n (A) with the intent to promote the carrying on of specified\n unlawful activity; . . .\n shall be [subject to criminal liability].\n\n Thus, to violate this section, a defendant must move money into or out of the United\nStates with the specific intent to promote some “specified unlawful activity[.]” See United States\nv. Trejo, 610 F.3d 308, 314-15 (5th Cir. 2010). The statute defines “specified unlawful activity”\nto include mail and wire fraud. See 18 U.S.C. §§ 1956(c)(7)(A), 1961(1)(B). For Smith and\nCoscia to have been guilty of conspiracy to commit promotional money laundering, therefore,\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 11\n /6726\n\neach of them must have knowingly and voluntarily agreed to move money between the United\nStates and another country with the specific intent to promote a scheme to defraud.\n\n Smith’s argument as to these convictions is the same as his argument with respect to his\nconvictions for conspiracy to commit fraud: that he lacked knowledge that anything he was\ndoing was illegal. We reject this argument for the same reasons we rejected the other one.\n\n Coscia, for her part, concedes that the proofs showed “some sort of agreement” between\nthe defendants and that she “knew something illegal was involved” with respect to her cigarette\nsales. Coscia Br. at 17-18. The evidence certainly showed that much: Coscia herself told\nfederal agents that, “if the IRS discovered what she was doing, th[en] she would go to prison for\na long time,” and that she named her business “ASC Properties” to “stay under the radar.” And\nwhen federal agents executed a warrant to search her home, an agent overheard Coscia say,\n“I knew this was going to happen, I’m not surprised they came.” What the evidence did not\nshow, in Coscia’s view, was that she agreed to move money internationally with the specific\nintent to promote a scheme to defraud the states or federal government of tax revenues.\n\n But plenty of evidence showed that Coscia did agree to do those things—and indeed that\nshe did them. Coscia’s own emails showed that she made agreements with suppliers in Israel,\nUkraine, and Kyrgyzstan to buy cigarettes; that she relayed customer orders to those suppliers,\nand transferred thousands of dollars to international accounts to pay them; and that she tracked\nexactly where and to whom that money was sent. The evidence also showed that Coscia used\nphony credit-card and check-processing accounts to conceal that the product she was selling was\ncigarettes. Given that the federal and state governments were entitled to tax revenues from those\nsales, that concealment in particular supported an inference that Coscia intended to defraud them.\nAnd Coscia did not report sales of untaxed cigarettes as required by federal law. Taken together,\nthis evidence was enough for the jury to find that Coscia knowingly and voluntarily agreed to\ntransfer money internationally in furtherance of a scheme to defraud the federal and state\ngovernments of tax revenues.\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 12\n /6726\n\n C.\n\n Carman, Coscia, and Smith challenge the district court’s jury instructions.\n\n 1.\n\n Smith argues that the trial court should have specifically instructed the jury that he was\nnot charged with a violation of either the Jenkins Act or the Trafficking Act. We review the\ndistrict court’s denial of a proposed jury instruction for an abuse of discretion. See United States\nv. Volkman, 797 F.3d 377, 385 (6th Cir. 2015). A district court’s refusal to give a proposed jury\ninstruction is an abuse of discretion only if the proposed instruction (i) correctly states the law,\n(ii) is “not substantially covered” by the instructions actually given, and (iii) concerns a point so\nimportant “that failure to give it substantially impairs the defendant’s defense.” Id.\n\n Here, Smith’s proposed instruction would have rehashed issues already covered by the\ncourt’s instructions. Those instructions already stated that the jury had a “duty to separately\nconsider the evidence against each defendant on each charge”; that “the defendants have been\ncharged with different crimes”; and that the defendants were “only on trial for the particular\ncrimes charged in the indictment.” And the indictment did not charge Smith with violating either\nthe Jenkins Act or the Trafficking Act. Hence the district court did not abuse its discretion when\nit chose not to add Smith’s proposed instruction.\n\n 2.\n\n The next instructional argument is more serious. By way of background, the question\nwhether a defendant’s misrepresentations or concealment were “material” is a factual one for the\njury. Neder, 527 U.S. at 24-25. Carman (joined by Coscia and Smith) argue that the district\ncourt converted that question into a legal one when it instructed the jury as to materiality. The\nrelevant question provided as follows:\n\n A misrepresentation or concealment is “material” if it has a natural tendency to\n influence or is capable of influencing the decision of a person of ordinary\n prudence and comprehension. A material omission, such as a failure to file\n required reports, may constitute a misrepresentation or concealment under the\n Mail and Wire Fraud statutes.\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 13\n /6726\n\n By all accounts the first sentence of this instruction was fine. The problem lies with the\nsecond sentence, which in Carman’s view told the jury not merely that a reporting violation\nunder the Jenkins Act can be a “material omission,” but that it always is. The point is\ngrammatical: the phrase “such as a failure to file required reports” is nonrestrictive, which means\nthat it provides an example of what constitutes a material omission. See, e.g., Strunk & White,\nThe Elements of Style 4-5 (4th ed. 2000). And by offering “a failure to file required reports” as\nan example of a material omission, the sentence tells the reader that such a failure is always\nmaterial. Consider a simpler sentence with the same structure: “Hardwood trees, such as oak and\nash, are good for firewood.” The reader understands not only that oak and ash are good for\nfirewood, but also that they are hardwood trees. The same is true here: the reader understands\nnot only that “a failure to file required reports . . . may constitute a misrepresentation or\nconcealment[,]” but also that such a failure is “a material omission.”\n\n The instruction’s use of the word “may” does not change that understanding. That word\nmodifies only whether the omissions amounted to “a misrepresentation or concealment[,]” not\nwhether they were “material[.]” (By way of contrast, the instruction would have been fine if it\nhad said, “A failure to file required reports may be a material omission.”) The instruction thus\nput a thumb on the scale in favor of finding that the Jenkins Act omissions were material, which\n(per the district court’s other instructions) the jury necessarily found when it convicted the\ndefendants of conspiracy to commit mail and wire fraud.\n\n The problem with Carman’s argument, however, is that she did not present it to the\ndistrict court. “A party who objects to any portion of [the district court’s] instructions . . . must\ninform the court of the specific objection and the grounds for the objection before the jury retires\nto deliberate.” Fed. R. Crim. P. 30(d). “The obvious purpose of this requirement is to inform the\ntrial judge of possible errors, affording an opportunity for correction.” United States v.\nRobinson, 602 F.2d 760, 762 (6th Cir. 1979). Carman did inform the court of her “specific\nobjection,” which was that the instruction suggested to the jury that any failure to file a required\nreport is a material omission. But she did not inform the court of the “grounds for the\nobjection[,]” which are the grammatical grounds described above. And had she done so, the\ndistrict court easily could have fixed the instruction on the spot. Thus, per the Rule’s express\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 14\n /6726\n\nterms, we can review the instruction only for plain error. See Fed. R. Crim. P. 30(d) (“Failure to\nobject in accordance with this rule precludes appellate review, except as permitted under Rule\n52(b).”).\n\n To show plain error under Rule 52(b), Carman must show among other things that the\nerror “affect[ed] [her] substantial rights.” Fed. R. Crim. P. 52(b). She has not made that\nshowing. At trial, the government presented testimony from one federal tax official and five\nstate officials to the effect that they rely upon Jenkins Act reports to collect taxes from sales of\nuntaxed cigarettes. The defendants presented no evidence to the contrary. The challenged\ninstruction therefore did not “produce a grave miscarriage of justice.” See, e.g., United States v.\nMorrison, 594 F.3d 543, 546 (6th Cir. 2010). Carman is not entitled to relief on this ground.\n\n D.\n\n Smith argues that the district court erred under Rule 8 of the Federal Rules of Criminal\nProcedure when it tried him together with Carman and Coscia. But Smith likewise failed to\npresent this argument to the district court, so we review the court’s decision only for plain error.\nSee United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015).\n\n Rule 8(b) permits joinder of defendants alleged to have participated in “the same series of\nacts or transactions,” meaning acts or transactions that are “part of a common scheme or plan.”\nUnited States v. Beverly, 369 F.3d 516, 533 (6th Cir. 2004). We apply that standard by looking\nto the allegations in the indictment. See Fed. R. Crim. P. 8(b); United States v. Rittweger,\n524 F.3d 171, 178 (2d Cir. 2008); cf. United States v. Deitz, 577 F.3d 672, 691 (6th Cir. 2009).\n\n Here, the indictment alleged that each of the defendants—Smith included—shipped\ncigarettes to their customers through Tobacco Resource, used many of the same overseas\nsuppliers, and pooled their money into the same bank accounts to pay those suppliers. The\nindictment thus alleged that Smith and the other defendants participated in a common scheme or\nplan, which means that the district court properly joined them for trial.\n\n Smith also argues that the district court erred when it denied his motion for severance\nunder Criminal Rule 14. But the argument that Smith makes now in support of severance is\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 15\n /6726\n\ndifferent from the argument he made in the district court, so again we review the district court’s\ndecision only for plain error. See United States v. Doxey, 833 F.3d 692, 702 (6th Cir. 2016).\n\n Rule 14 permits a district court to sever a defendant from a joint trial if “consolidation for\ntrial appears to prejudice a defendant[.]” Fed. R. Crim. P. 14(a). Smith’s argument now is that\nhe was a bit player in the conspiracy, and that the evidence pertaining to the other defendants\n“dominated the proceedings” and “spill[ed] over” to him. Smith Br. at 17. But a “spillover of\nevidence from one case to another generally does not require severance, unless [the] defendant\ncan point to specific substantial, undue, or compelling prejudice.” United States v. Fields,\n763 F.3d 443, 457 (6th Cir. 2014) (internal quotations omitted). Smith points to none here—\ninstead his argument is conclusory—and thus he is not entitled to relief.\n\n III.\n\n Apart from their convictions, Maddux, Carman, and Coscia also appeal the district\ncourt’s calculation of “actual loss” under the Sentencing Guidelines. The district court deemed\nthe “actual loss” caused by each defendant’s fraud to be all the unpaid taxes from the sales\nconcealed by each defendant—totaling $48 million for Maddux, about $23 million for Carman,\nand about $700,000 for Coscia. We review de novo the district court’s method for calculating\nthe actual loss, and review its factual findings for clear error. United States v. Warshak, 631 F.3d\n266, 328 (6th Cir. 2010).\n\n The Guidelines instruct a district court to determine the “loss” caused by a defendant’s\nfraudulent conduct. See U.S.S.G. § 2B1.1 cmt. n.3. Loss can be either the “actual loss” or the\n“intended loss,” whichever is greater. Id. “Intended loss” is “the pecuniary harm that the\ndefendant purposely sought to inflict[.]” Id. § 2B1.1 cmt. n.3(A)(ii). “‘Actual loss’ means the\nreasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt.\nn.3(A)(i). And harm is reasonably foreseeable if “the defendant knew, or under the\ncircumstances, reasonably should have known, [that it] was a potential result of the offense.” Id.\n§ 2B1.1 cmt. n.3(A)(iv). The Commission chose “not to use the term ‘consequential damages,’\nor any similar civil law distinction between direct and indirect harms,” because “the reasonable\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 16\n /6726\n\nforeseeability standard provides sufficient guidance to courts[.]” U.S.S.G. Manual app. C, vol.\nII, at 178 (2003).\n\n Here, the defendants obviously knew that the concealment of their cigarette sales could\nresult in unpaid taxes on those sales. Indeed their business model depended on it. The\ndefendants’ principal argument, rather, is that their fraud was not the “proximate cause” of the\ngovernments’ entire loss of unpaid taxes. See, e.g., Carman Br. at 32. In support, the defendants\nagain rely on Hemi, which held that RICO’s proximate-cause element required “some direct\nrelation between the injury asserted and the injurious conduct alleged.” 559 U.S. at 9 (citation\nomitted).\n\n But the Hemi standard of causation is plainly different from the Guidelines standard.\nHemi demanded a “direct relation” between conduct and crime; the Sentencing Commission, in\ncontrast, expressly rejected the use “civil law distinction[s] between direct and indirect harms,”\nand adopted instead a standard of “reasonable foreseeability.” And the defendants do not argue,\nmuch less show, that the losses found by the district court were not reasonably foreseeable.\n\n The defendants also argue that they did not cause the loss of the unpaid taxes because the\ndefendants themselves did not owe them. (Their customers did.) But this argument is just a\nrestatement of their Hemi direct-causation one. It therefore fails for the same reasons.\n\n The defendants next contend that the actual loss from their conduct is zero, because the\nstate and local governments could still collect the unpaid taxes today. But we calculate actual\nloss “at the time the crime was detected[.]” See United States v. Flowers, 55 F.3d 218, 221 (6th\nCir. 1995). Hence this argument too is meritless. Finally, the defendants argue that the victims’\nlosses can be attributed only to the defendants’ corporations, since the Jenkins Act requires\ncorporations, not individuals, to report cigarette sales. But the defendants were not convicted of\nfailing to file Jenkins Act reports. Instead they were convicted of fraud. Thus fraud, not a\nfailure to file reports, was “the offense” that drove the “actual loss” calculation. See U.S.S.G.\n§ 2B1.1 cmt. n.3(A)(i). The defendants therefore have not identified any basis on which to set\naside the district court’s determinations of actual loss.\n\f Nos. 16-6368 /6370 /6371 United States v. Maddux, et al. Page 17\n /6726\n\n * * *\n\n The convictions of Maddux, Coscia, Carman, and Smith are affirmed. Their respective\nterms of imprisonment are affirmed. The district court’s January 17, 2017 forfeiture order will\nbe the subject of a separate opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371180/", "author_raw": "KETHLEDGE, Circuit Judge"}]}	SUHRHEINRICH	GIBBONS	KETHLEDGE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593927/	Published	1	0	0	2,019	2	[ { "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...
4,593,931	In RE: GREEKTOWN HOLDINGS, LLC, Debtor. Buchwald Capital Advisors, LLC, Solely in Its Capacity as Litigation Trustee to the Greektown Litigation Trust, Plaintiff-Appellant, v. Sault Ste. Marie Tribe of Chippewa Indians; Kewadin Casinos Gaming Authority, Defendants-Appellees.	Buchwald Capital Advisors, LLC v. Sault Ste. Marie Tribe of Chippewa Indians (In Re Greektown Holdings, LLC)	2019-02-26	18-1165; 18-1166	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Clay, Zouhary", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888068/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888069/", "author_raw": ""}, {"author": "", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0028p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n IN RE: GREEKTOWN HOLDINGS, LLC, ┐\n Debtor. │\n ___________________________________________ │\n │\n BUCHWALD CAPITAL ADVISORS, LLC, solely in its │\n capacity as Litigation Trustee to the Greektown │\n Litigation Trust, > Nos. 18-1165/1166\n Plaintiff-Appellant, │\n │\n │\n v. │\n │\n SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS; │\n KEWADIN CASINOS GAMING AUTHORITY, │\n │\n Defendants-Appellees.\n ┘\n\n Appeal from the United States District Court\n for the Eastern District of Michigan at Detroit;\n No. 2:14-cv-14103—Paul D. Borman, District Judge.\n\n United States Bankruptcy Court for the Eastern District of Michigan at Detroit;\n Nos. 08-bk-53104; 10-ap-05712—Maria L. Oxholm, Judge.\n\n Argued: October 17, 2018\n\n Decided and Filed: February 26, 2019\n\n Before: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.\n _________________\n\n COUNSEL\n\nARGUED: Gregory G. Rapawy, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK,\nP.L.L.C., Washington, D.C., for Appellant. Grant S. Cowan, FROST BROWN TODD LLC,\nCincinnati, Ohio, for Appellees. ON BRIEF: Gregory G. Rapawy, Michael K. Kellogg,\n\n\n The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by\ndesignation.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 2\n\n\nKatherine C. Cooper, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C.,\nWashington, D.C., Joel D. Applebaum, CLARK HILL PLC, Birmingham, Michigan, for\nAppellant. Grant S. Cowan, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellees.\n\n CLAY, J., delivered the opinion of the court in which GRIFFIN, J., joined. ZOUHARY,\nD.J. (pp. 22–27), delivered a separate dissenting opinion.\n\n _________________\n\n OPINION\n _________________\n\n CLAY, Circuit Judge. Plaintiff Buchwald Capital Advisors, LLC, in its capacity as\nlitigation trustee for the Greektown Litigation Trust, appeals the district court’s January 23, 2018\norder affirming the bankruptcy court’s dismissal of Plaintiff’s complaint on the basis of tribal\nsovereign immunity. Plaintiff’s complaint seeks avoidance and recovery of allegedly fraudulent\ntransfers made to Defendants Sault Ste. Marie Tribe of Chippewa Indians and Kewadin Casinos\nGaming Authority pursuant to the Bankruptcy Code of 1978, 11 U.S.C. §§ 544, 550. For the\nreasons set forth below, we AFFIRM the district court’s dismissal.\n\n BACKGROUND\n\n Factual Background\n\n This case arises out of the bankruptcy of Detroit’s Greektown Casino (the “Casino”) and\nseveral related corporate entities (collectively, the “Debtors”). Under the ownership and\nmanagement of Defendant Sault Ste. Marie Tribe of Chippewa Indians and its political\nsubdivision Defendant Kewadin Casinos Gaming Authority (collectively, the “Tribe”), the\nCasino opened in November 2000 and filed for bankruptcy in May 2008.\n\n From the outset, the Tribe was under serious financial strain due to two obligations\nincurred in connection with the Casino. In 2000, the Tribe entered into an agreement with\nMonroe Partners, LLC (“Monroe”) to pay $265 million in exchange for Monroe’s 50%\nownership interest in the Casino, giving the Tribe a 100% ownership interest in the Casino. And\nin 2002, the Tribe entered into an agreement with the City of Detroit to pay an estimated\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 3\n\n\n$200 million to build a hotel and other facilities at the Casino in exchange for a continued\ngaming license from the Michigan Gaming Control Board (“MGCB”).\n\n In 2005, the Tribe restructured the Casino’s ownership to alleviate this strain. The Tribe\ncreated a new entity, Greektown Holdings, LLC (“Holdings”), which became the owner of the\nCasino, while several pre-existing entities—all owned by the Tribe—became the owners of\nHoldings. This allowed the Tribe to refinance its existing debt, and allowed the intermediate\nentities to take on new debt, all to raise capital so that the Tribe could meet its financial\nobligations. Holdings, for example, took on $375 million of debt in various forms shortly after\nthe restructuring.\n\n The restructuring was subject to, and received, the approval of the MGCB. However, the\nMGCB conditioned its approval on the Tribe’s adherence to strict financial covenants and other\nconditions. If those covenants and conditions were not satisfied, the MGCB could force the\nTribe to sell its ownership interest in the Casino, or place the Casino into conservatorship.\n\n On December 2, 2005, Holdings transferred approximately $177 million to several\ndifferent entities. At least $145.5 million went to the original owners of Monroe—Dimitrios and\nViola Papas, and Ted and Maria Gatzaros. At least $9.5 million went to other entities for the\nbenefit of Dimitrios and Viola Papas, and Ted and Maria Gatzaros. And at least $6 million went\nto the Tribe.\n\n Over the next three years, the Tribe attempted to raise additional capital to fully meet its\nfinancial obligations. However, by April 2008, the strain of these obligations had proved too\nmuch to bear, and the Tribe was in danger of losing both its ownership interest in the Casino—\nthrough failure to comply with the MGCB’s restructuring conditions—and the Casino’s gaming\nlicense—through failure to comply with the City of Detroit’s development requirements.\nAccordingly, on May 29, 2008, the Debtors, including Holdings, the Casino, and other related\ncorporate entities, filed voluntary petitions for Chapter 11 bankruptcy.1\n\n\n\n 1Both the bankruptcy and district courts assumed, for the purposes of considering the Tribe’s motion to\ndismiss the Trustee’s complaint on the basis of tribal sovereign immunity, that the Tribe exerted complete dominion\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 4\n\n\n Under the Debtors’ plan of reorganization, the Greektown Litigation Trust (the “Trust”)\nwas created to pursue claims belonging to the Debtors’ estate for the benefit of unsecured\ncreditors. Plaintiff Buchwald Capital Advisors, LLC (the “Trustee”) was appointed as the\nTrust’s litigation trustee, and in that capacity, the Trustee brought the instant case.\n\n Procedural History\n\n On May 28, 2010, the Trustee filed a complaint in the United States Bankruptcy Court\nfor the Eastern District of Michigan. The Trustee’s complaint alleges that, on December 2, 2005,\nHoldings fraudulently transferred $177 million to or for the benefit of the Tribe, and seeks\navoidance and recovery of that amount pursuant to the Bankruptcy Code of 1978, 11 U.S.C.\n§§ 544, 550. The Tribe then filed a motion to dismiss the complaint on the grounds that the\nTribe possessed tribal sovereign immunity from the Trustee’s claims. The Trustee responded\nthat that the Tribe did not possess tribal sovereignty (1) because Congress abrogated tribal\nsovereign immunity in the Bankruptcy Code of 1978, 11 U.S.C. §§ 106, 101(27), and\n(2) because the Tribe waived tribal sovereign immunity by actually or effectively filing the\nDebtors’ bankruptcy petitions.2 By stipulation of the parties, the bankruptcy court bifurcated the\nTribe’s motion—it would first decide whether Congress had abrogated the Tribe’s immunity and\nthen, if necessary, whether the Tribe had waived its immunity.\n\n Regarding abrogation, the bankruptcy court denied the Tribe’s motion to dismiss, holding\nthat Congress had expressed its “clear, unequivocal, and unambiguous intent to abrogate tribal\nsovereign immunity” in 11 U.S.C. §§ 106, 101(27). (RE 1, Bankruptcy Court Opinion, No. 14-\ncv-14103, PageID # 43.) The Tribe appealed to the district court, which reversed, holding that\nCongress had not “clearly, unequivocally, unmistakably, and without ambiguity abrogate[d]\ntribal sovereign immunity” in 11 U.S.C. §§ 106, 101(27). (RE 5, District Court Opinion, PageID\n\n\nand control over the Debtors such that the Tribe actually or effectively filed the Debtors’ bankruptcy petitions. We\ndo so as well.\n 2The Tribe’s governing Tribal Code waives tribal sovereign immunity only “in accordance with [Code\nSections] 44.105 or 44.108.” (RE 5, Tribal Code, PageID # 307.) Section 44.105 requires a “resolution of the Board\nof Directors expressly waiving the sovereign immunity of the Tribe” with respect to specific claims. (Id.) And\nSection 44.108, at the relevant time, waived sovereign immunity with respect to all claims arising from written\ncontracts that involve “a proprietary function” of the Tribe. (Id. at PageID # 308–10.) Except as otherwise\nindicated, record citations refer to the record in district court action No. 16-cv-13643.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 5\n\n\n# 203.) The district court accordingly remanded the case to the bankruptcy court to decide\nwhether the Tribe had waived its immunity.\n\n Regarding waiver, and in light of the district court’s holding on abrogation, the\nbankruptcy court granted the Tribe’s motion to dismiss, holding (1) that the Tribe’s litigation\nconduct “was insufficient to waive [tribal] sovereign immunity” since tribal law required an\nexpress board resolution, (2) that waiver of tribal sovereign immunity could not be “implied”\nthrough the litigation conduct of a tribe’s alter ego or agent, and (3) that even if both of the above\nwere possible, filing a bankruptcy petition does not waive tribal sovereign immunity “as to an\nadversary proceeding subsequently filed” against the tribe. (Id., Bankruptcy Court Opinion, at\nPageID # 449, 464, 456.) The Trustee appealed to the district court which affirmed, similarly\nholding that no waiver of the Tribe’s sovereign immunity could occur “in the absence of a board\nresolution expressly waiving immunity,” and that the Trustee’s “novel theory of implied waiver”\nthrough the “imputed” conduct of an alter ego or agent was foreclosed by binding precedent.\n(Id., District Court Opinion, at PageID # 730, 744, 737.)\n\n This appeal, regarding both abrogation and waiver, followed.\n\n DISCUSSION\n\n I. Standard of Review\n\n On appeal from a district court’s review of a bankruptcy court’s order, we review the\nbankruptcy court’s order directly rather than the intermediate decision of the district court. In re\nMcKenzie, 716 F.3d 404, 411 (6th Cir. 2013). We review questions of subject matter\njurisdiction, including sovereign immunity, de novo. DRFP, LLC v. Republica Bolivariana de\nVenezuela, 622 F.3d 513, 515 (6th Cir. 2010).\n\n II. Analysis\n\n A. Abrogation of Tribal Sovereign Immunity\n\n Indian tribes have long been recognized as “separate sovereigns pre-existing the\nConstitution.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (quoting Santa\nClara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). As such, they possess the “common-law\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 6\n\n\nimmunity from suit traditionally enjoyed by sovereign powers.” Id. (quoting Santa Clara\nPueblo, 436 U.S. at 58). Yet this immunity is not without limit. Because Indian tribes are\nsubject to Congress’ plenary authority, Congress can abrogate tribal sovereign immunity “as and\nto the extent it wishes.” Id. at 803–04. To do so, Congress must “unequivocally” express that\npurpose. Id. at 790 (quoting Santa Clara Pueblo, 436 U.S. at 58). “The baseline position\n[however], [the Supreme Court] [has] often held, is tribal immunity . . . .” Id. Thus, Indian\ntribes possess this “core aspect[] of sovereignty” unless and until Congress “unequivocally”\nexpresses a contrary intent. Id. at 788, 790.\n\n At issue in this case is whether Congress unequivocally expressed such an intent in the\nBankruptcy Code of 1978, 11 U.S.C. §§ 106, 101(27). Section 106 provides, in relevant part, that\n“[n]ot withstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a\ngovernmental unit to the extent set forth in this section with respect\nto . . . Sections . . . 544 . . . [and] 550 . . . of [the Bankruptcy Code].” (emphasis added). Section\n101(27) then provides that:\n\n [t]he term ‘governmental unit’ means United States; State; Commonwealth;\n District; Territory; municipality; foreign state; department, agency, or\n instrumentality of the United States (but not a United States trustee while serving\n as a trustee in a case under this title), a State, a Commonwealth, a District, a\n Territory, a municipality, or a foreign state; or other foreign or domestic\n government.\n\n(emphasis added). The Trustee asserts that, read together, these sections constitute an\nunequivocal expression of congressional intent to abrogate tribal sovereign immunity. The Tribe\nasserts that that they do not.\n\n In resolving this dispute, a useful place to start is Congress’ knowledge and practice\nregarding the abrogation of tribal sovereign immunity in 1978. As Bay Mills and Santa Clara\nPueblo indicate, an unequivocal expression of congressional intent is as much the requirement\ntoday as it was then. In fact, the Supreme Court decided Santa Clara Pueblo just six months\nbefore Congress enacted the Bankruptcy Code. Given this timing—and the fact that the Court in\nSanta Clara Pueblo simply reaffirmed a requirement already in existence, see United States v.\nKing, 395 U.S. 1, 4 (1969)—the normal assumption that Congress was aware of this requirement\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 7\n\n\nwhen enacting the Bankruptcy Code is well-grounded. See Merck & Co. v. Reynolds, 559 U.S.\n633, 648 (2010) (“We normally assume that, when Congress enacts statutes, it is aware of\nrelevant judicial precedent.”).\n\n We also need not hypothesize whether Congress understood the meaning of\n“unequivocal,” as Congress kindly demonstrated as much in the years immediately preceding its\nenactment of the Bankruptcy Code. See, e.g., Resource Conservation and Recovery Act of 1976,\n42 U.S.C. §§ 6972(a)(1)(A), 6903(13), 6903(15) (authorizing suits against an “Indian tribe”);\nSafe Water Drinking Act of 1974, 42 U.S.C. §§ 300j-9(i)(2)(A), 300f(10), 300f(12) (authorizing\nsuits against an “Indian tribe”).3 The language used by Congress in these statutes accords with\nthe Supreme Court’s clear admonition that “[t]he term ‘unequivocal,’ taken by itself,” means\n“admits no doubt.” Addington v. Texas, 441 U.S. 418, 432 (1979) (citing Webster’s Third New\nInternational Dictionary (1961)). Taken in the context of tribal sovereign immunity—where an\n“eminently sound and vital canon” dictates that any doubt is to be resolved in favor of Indian\ntribes, Bryan v. Itasca Cty., Minn., 426 U.S. 373, 392 (1976)—that definition must be read\nliterally. In order to abrogate tribal sovereign immunity, Congress must leave no doubt about its\nintent.\n\n Ostensibly evidence enough that Congress has left doubt about its intent in 11 U.S.C.\n§§ 106 101(27), this issue “has been analyzed by a handful of courts, leading to two\nirreconcilable conclusions.” In re Greektown Holdings, LLC, 532 B.R. 680, 686–87 (Bankr.\nE.D. Mich. 2015). On one side, the Ninth Circuit held in Krystal Energy Co. v. Navajo Nation\nthat Congress did unequivocally express an intent to abrogate tribal sovereign immunity in\n\n\n\n\n 3At times, Congress also unequivocally—though unnecessarily—expressed its lack of intent to abrogate\ntribal sovereign immunity. See, e.g., Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C.\n§ 5332 (“Nothing in this chapter shall be construed as . . . impairing the sovereign immunity from suit enjoyed by an\nIndian tribe . . . .”). We normally assume congressional awareness of such relevant statutory precedent as well. See\nGoodyear Atomic Corp., 486 U.S. 174, 184–85 (1988). Moreover, both of these practices also continued long after\nthe enactment of the Bankruptcy Code. See, e.g., Fair Debt Collection Procedures Act of 1990, 28 U.S.C. §§ 3104,\n3250, 3002(7), 3002(10) (authorizing suits against an “Indian tribe”); USA PATRIOT Improvement and\nReauthorization Act of 2005, 18 U.S.C. § 2346 (“Nothing in this chapter shall be deemed to abrogate or constitute a\nwaiver of any sovereign immunity of . . . an Indian tribe . . . .”).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 8\n\n\n11 U.S.C. §§ 106, 101(27). See 357 F.3d 1055, 1061 (9th Cir. 2004).4 On the other, the Seventh\nCircuit held in Meyers v. Oneida Tribe of Indians of Wisc. that Congress did not unequivocally\nexpress such an intent in a statute with functionally equivalent language, and in doing so noted\nthe applicability of its reasoning to 11 U.S.C. §§ 106, 101(27). See 836 F.3d 818, 827 (7th Cir.\n2016).5 Unsurprisingly, the arguments made by the Trustee and the Tribe here largely track the\nreasoning used in these cases. Thus, we turn there next.\n\n In Krystal Energy, the court began with the fact that Indian tribes fall within the plain\nmeaning of the terms “domestic” and “government,” and have been repeatedly referred to by the\nSupreme Court as “domestic dependent nations.” 357 F.3d at 1057 (citation omitted). The court\nreasoned that Indian tribes are accordingly “simply a specific member of the group of domestic\ngovernments[] the immunity of which Congress intended to abrogate” when it used the phrase\n“other foreign or domestic government” in 11 U.S.C. § 101(27). Id. at 1058. Analogizing to\nstate sovereign immunity, the court pointed out that “Congress clearly does not have to list all of\nthe specific states, beginning with Alabama and ending with Wyoming;” rather it can instead just\nabrogate the immunity of “all states.” Id. at 1059. Thus, the court concluded that by using the\nphrase “other foreign or domestic government,” Congress effected a “generic abrogation” of\nsovereign immunity that unequivocally encompassed tribal sovereign immunity, “like that of all\nindividual domestic governments.” Id.\n\n In support of its holding, the court in Krystal Energy also noted that it could find “no\nother statute in which Congress effected a generic abrogation of sovereign immunity and because\nof which a court was faced with the question of whether such generic abrogation in turn effected\nspecific abrogation of the immunity of a member of the general class.” Id. However, the\n\n\n\n 4Several bankruptcy courts, using similar reasoning, have agreed. See, e.g., In re Platinum Oil Props.,\nLLC, 465 B.R. 621, 643 (Bankr. D.N.M. 2011); In re Russell, 293 B.R. 34, 44 (Bankr. D. Ariz. 2003); In re Vianese,\n195 B.R. 572, 576 (Bankr. N.D.N.Y. 1995); In re Sandmar Corp., 12 B.R. 910, 916 (Bankr. D.N.M. 1981).\n 5Several district courts, bankruptcy appellate panels, and bankruptcy courts, using similar reasoning, have\nagreed. See, e.g., In re Whitaker, 474 B.R. 687, 695 (B.A.P. 8th Cir. 2012); In re Money Ctrs. of Am., Inc., No. 17-\n318-RGA, 2018 WL 1535464, at 3 (D. Del. Mar. 29, 2018); In re Greektown Holdings, LLC, 532 B.R. 680 (E.D.\nMich. 2015); In re Star Grp. Commc’ns, Inc., 568 B.R. 616 (Bankr. D.N.J. 2016); In re Nat’l Cattle Cong., 247 B.R.\n259, 267 (Bankr. N.D. Iowa 2000); see also In re Mayes, 294 B.R. 145, 148 n.10 (B.A.P. 10th Cir. 2003) (noting\nthat 11 U.S.C. §§ 106 and 101(27) “probably” do not abrogate tribal sovereign immunity).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 9\n\n\nSeventh Circuit in Meyers could and did find such a statute—the Fair and Accurate Credit\nTransactions Act of 2003 (“FACTA”), 15 U.S.C. § 1601 et seq.\n\n FACTA authorizes suits against “person[s]” who accept credit or debit cards and then\nprint certain information about those cards on receipts given to the cardholders. See 15 U.S.C.\n§§ 1681c(g)(1), 1681n, 1681o. FACTA in turn defines “person” as “any individual, partnership,\ntrust, estate, cooperative, association, government, or governmental subdivision or agency, or\nother entity.” Id. § 1681a(b) (emphasis added). In Meyers, Meyers argued that the phrase\n“any . . . government” unequivocally encompassed Indian tribes. 836 F.3d at 826. And in\nsupport of that argument, Meyers pointed to the functionally equivalent language at issue in\nKrystal Energy—“other foreign or domestic government” in 11 U.S.C. § 101(27).6 Id. The\nSeventh Circuit, however, was unconvinced. Id.\n\n In Meyers, the court began with the unequivocal expression of congressional intent\nrequirement, and the canon that all doubt is to be resolved in favor of Indian tribes. Id. at 824.\nThe court then listed statutes enacted around the time of the Bankruptcy Code in which Congress\nhad unequivocally expressed such intent by authorizing suits against “Indian tribe[s].” Id.\nTurning to Meyers’ argument about the phrase “any . . . government,” the court reasoned that\n“[p]erhaps if Congress were writing on a blank slate, this argument would have more teeth, but\nCongress has demonstrated that it knows full and well how to abrogate tribal immunity.” Id.\n“Congress . . . knows how to unequivocally [express that intent]. It did not do so in FACTA.”\nId. at 827.\n\n The court then addressed the Ninth Circuit’s conflicting opinion in Krystal Energy.\nWhile not “weigh[ing] in” on the precise issue of 11 U.S.C. §§ 106, 101(27), the Seventh Circuit\nmade clear the flaw it saw in the Ninth Circuit’s reasoning:\n\n Meyers argues that the district court dismissed his claim based on its erroneous\n conclusion that Indian tribes are not governments. He then dedicates many pages\n to arguing that Indian tribes are indeed governments. Meyers misses the point.\n\n 6The language in FACTA is arguably broader than the language in 11 U.S.C. §§ 106, 101(27), as in\nFACTA the term “government” has no qualifying language preceding it. See Republic Steel Corp. v. Costle,\n621 F.2d 797, 804 (6th Cir. 1980) (“The [statutory] exception was broadened by the elimination of [any] qualifying\nlanguage.”) (quotation omitted).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 10\n\n\n The district court did not dismiss his claim because it concluded that Indian tribes\n are not governments. It dismissed his claim because it could not find a clear,\n unequivocal statement in FACTA that Congress meant to abrogate the sovereign\n immunity of Indian [t]ribes. Meyers has lost sight of the real question in this\n sovereign immunity case—whether an Indian tribe can claim immunity from suit.\n The answer to this question must be ‘yes’ unless Congress has told us in no\n uncertain terms that it is ‘no[,]’ [as] [a]ny ambiguity must be resolved in favor of\n immunity. Of course Meyers wants us to focus on whether the Oneida Tribe is a\n government so that we might shoehorn it into FACTA’s statement that defines\n liable parties to include ‘any government.’ But when it comes to [tribal]\n sovereign immunity, shoehorning is precisely what we cannot do. Congress’\n words must fit like a glove in their unequivocality.\n\nId. at 826–27 (emphasis added) (internal citations omitted).\n\n As for the “the real question”—unequivocality—the court found that the district court’s\nanalysis “hit the nail on the head:”\n\n It is one thing to say ‘any government’ means ‘the United States.’ That is\n an entirely natural reading of ‘any government.’ But it’s another thing to say ‘any\n government’ means ‘Indian Tribes,’ Against the long-held tradition of tribal\n immunity . . . ‘any government’ is equivocal in this regard.\n\nId. at 826 (alteration in original) (quoting Meyers v. Oneida Tribe of Indians of Wisc., No. 15-cv-\n445, 2015 WL 13186223, at 4 (E.D. Wisc. Sept. 4, 2015)). Thus the court concluded that\nFACTA did not abrogate tribal sovereign immunity. Id. at 827. Significantly, a different panel\nof the Ninth Circuit has since favorably cited Meyers for this very heart of its analysis. In a case\nabout the abrogation of federal sovereign immunity in the Fair Credit Reporting Act, the court\nreasoned that “[t]he same logic in Meyers applies with respect to the United States. The ‘real\nquestion’ in this sovereign immunity appeal is not whether the United States is a government; it\nis whether Congress explicitly [abrogated] sovereign immunity.” Daniel v. Nat’l Park Serv.,\n891 F.3d 762, 774 (9th Cir. 2018).\n\n We find the Seventh Circuit’s reasoning in Meyers—as applied to 11 U.S.C. §§ 106,\n101(27)—persuasive. And though Meyers was decided after the district court’s opinion in this\ncase, the district court clearly would have found the reasoning persuasive as well. The district\ncourt correctly acknowledged that “[t]here cannot be reasonable debate that Indian tribes are\nboth ‘domestic’ . . . and also that Indian tribes are fairly characterized as possessing attributes of\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 11\n\n\na ‘government.’” In re Greektown Holdings, 532 B.R. at 692. But that is not the real question.\nThe real question is whether Congress—when it employed the phrase “other foreign or domestic\ngovernment”—unequivocally expressed an intent to abrogate tribal sovereign immunity. “For\nthe Litigation Trustee, it is enough to have established that Indian tribes are both ‘domestic’ and\n‘governments’” to answer that question in the affirmative. Id. at 693. The district court\nhowever, could not say “that Congress combined those terms in a single phrase in § 101(27) to\nclearly, unequivocally, and unmistakably express its intent to include Indian tribes . . . .”7 Id. at\n697. We agree. Establishing that Indian tribes are domestic governments does not lead to the\nconclusion that Congress unequivocally meant to include them when it employed the phrase\n“other foreign or domestic government.”8 Id. at 693.\n\n This reasoning is both intuitive and in accordance with a broader survey of the case law.\nNotably, “there is not one example in all of history where the Supreme Court has found that\nCongress intended to abrogate tribal sovereign immunity without expressly mentioning Indian\ntribes somewhere in the statute.” Meyers, 836 F.3d at 824 (quoting In re Greektown Holdings,\n532 B.R. at 680). And there is only one example at the circuit court level. Id. (referring to the\nNinth Circuit’s decision in Krystal Energy). In contrast, there are numerous examples of circuits\ncourts finding that tribal sovereign immunity was abrogated where the statute specifically\n\n 7The district court also noted that acknowledging the real question in this case provides a persuasive\nresponse to the Krystal Energy court’s analogy to state sovereign immunity. Id. at 697. (“The faulty premise in this\nreasoning [that ‘other foreign or domestic government’ can be read to unequivocally include Indian tribes the same\nway ‘states’ can be read to unequivocally include Arizona] is that it presumes the very fact in contention, i.e., that\n‘domestic government’ is a phrase clearly understood beyond all rational debate to encompass an Indian tribe, just\nas the word ‘state’ is clearly understood beyond all rational debate to encompass Arizona and the other 49 states.”).\n 8The dissent disagrees on this point, framing its analysis around the question, “Is an Indian tribe a domestic\ngovernment?” Dis. Op. at 23. As this approach mirrors that taken by Meyers and by the court in Krystal Energy,\nwe need not engage with it in great detail. However, to the extent that the dissent attempts to highlight the appeal of\nthis approach by stating it as a “simple syllogism”—“Sovereign immunity is abrogated as to all governments.\nIndian tribes are governments. Hence sovereign immunity is abrogated as to Indian tribes.” Id. at 24—we note that\nthe court in Meyers could easily have done the same with FACTA by stating the following: All people are subject to\nsuit. All governments are people. Indian tribes are governments. Hence Indian tribes are subject to suit. And to the\nextent that the dissent attempts to distinguish Meyers based on FACTA’s use of language authorizing suit against\nIndian tribes as opposed to language abolishing Indian tribes’ immunity, that is a distinction without difference.\nCongress can abrogate tribal sovereign immunity by “stat[ing] an intent either to abolish Indian tribes’ immunity or\nto subject tribes to suit.” Fla. Paraplegic Ass’n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 131\n(11th Cir. 1999) (emphasis added). But Congress must state that intent unequivocally. The dissent’s reasoning does\nnothing to disguise the fact that it too has “lost sight of the real question in this sovereign immunity case.” Meyers,\n836 F.3d at 826–27.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 12\n\n\nreferred to an “Indian tribe,” and refusing to do so where it did not. Compare, e.g., Blue Legs v.\nU.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir. 1989) (finding that tribal sovereign\nimmunity was abrogated in the Resource Conservation and Recovery Act of 1976, 42 U.S.C.\n§§ 6972(a)(1)(A), 6903(13), 6903(15)); Osage Tribal Council v. U.S. Dep’t of Labor, 187 F.3d\n1174, 1182 (10th Cir. 1999) (finding that tribal sovereign immunity was abrogated in Safe Water\nDrinking Act of 1974, 42 U.S.C. §§ 300j-9(i)(2)(A), 300f(10), 300f(12)), with Bassett v.\nMashantucket Pequot Tribe, 204 F.3d 343, 357 (2d Cir. 2000) (finding that tribal sovereign\nimmunity was not abrogated in the Copyright Act of 1976, 17 U.S.C. § 101 et seq.);\nFla. Paraplegic Ass’n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1131 (11th\nCir. 1999) (finding that tribal sovereign immunity was not abrogated in the Americans with\nDisabilities Act of 1990, 42 U.S.C. § 12181 et seq.). Here, it is undisputed that no provision of\nthe Bankruptcy Code mentions Indian tribes.9\n\n While it is true that Congress need not use “magic words” to abrogate tribal sovereign\nimmunity, it still must unequivocally express that purpose. F.A.A. v. Cooper, 566 U.S. 284,\n290–91 (2012). The Trustee thus correctly states that “what matters is the clarity of intent, not\nthe particular form of words.” (Brief for Appellant at 32.) We need not—and do not—hold that\nspecific reference to Indian tribes is in all instances required to abrogate tribal sovereign\nimmunity;10 rather we hold that 11 U.S.C. §§ 106, 101(27) lack the requisite clarity of intent to\nabrogate tribal sovereign immunity.\n\n This analysis notwithstanding, the Trustee asserts three additional arguments that it\ncontends dispel any doubt that Congress intended to abrogate the sovereign immunity of Indian\ntribes in 11 U.S.C. §§ 106, 101(27). None are persuasive.\n\n\n\n\n 9The dissent deems this case law “irrelevant to the task of statutory interpretation before us.” Dis Op. at 26.\nTo the contrary, the fact that the Trustee and the dissent ask this Court to reach a holding “that deviates from all\nrelevant decisions by our sister circuits,” save for one, and “that is inconsistent with the Supreme Court’s most\nrecent guidance on the point” is highly relevant. Armalite, Inc. v. Lambert, 544 F.3d 644, 648 (6th Cir. 2008).\n 10For instance, a court might find an unequivocal expression of congressional intent in a statute stating that\n“sovereign immunity is abrogated as to all parties who could otherwise claim sovereign immunity.” Krystal Energy,\n357 F.3d at 1058.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 13\n\n\n First, the Trustee asserts that Indian tribes must be “governmental units” because they\navail themselves of other Bankruptcy Code provisions pertaining to “governmental units.” (See\nBrief for Appellant at 27.) (describing how Indian tribes would have to be “governmental units”\nin order to be creditors or to file requests for payment of administrative expenses, which they\nregularly do). Yet, as the Tribe correctly responds, the Bankruptcy Code defines the entities\ncovered by those provisions using the word “includes”—a term of enlargement. In contrast,\n11 U.S.C. § 101(27) defines “governmental unit” using the word “means”—a term of limitation.\nSee United States v. Whiting, 165 F.3d 631, 633 (8th Cir. 1999) (“When a statute uses the word\n‘includes’ rather than ‘means’ in defining a term, it does not imply that items not listed fall\noutside the definition.”). Thus it is not inconsistent for Indian tribes to be covered by those\nprovisions noted by the Trustee but not covered by 11 U.S.C. § 101(27).\n\n Second, and relatedly, the Trustee asserts that Indian tribes must be “governmental units”\nbecause the Bankruptcy Code provides governmental units with “special rights.” (See Brief for\nAppellant at 30.) (describing how Congress would have shown less regard for the dignity of\nIndian tribes as sovereigns, compared to state, federal, and foreign governments, if they were not\nentitled to these special rights). Yet it could just as easily be said that Congress has shown\ngreater respect for Indian tribes than for other sovereigns by not abrogating their immunity in the\nfirst place—and thus not necessitating the provision of any special rights. The immunities of\nvarious sovereigns also need not be, and in fact are not, co-extensive. Bay Mills, 572 U.S. at\n800–01. Moreover, these first two arguments raised by the Trustee both overlook the important\ndistinction between being subject to a statute and being able to be sued for violating it. See\nKiowa Tribe v. Mfg. Tech., Inc., 523 U.S. 751, 755 (1998). Only in the latter context is there an\nunequivocality requirement. Thus it would also not be inconsistent for Indian tribes to be\nconsidered “governmental units” for some provisions of the Bankruptcy Code but not for\n11 U.S.C. § 106.\n\n Lastly, the Trustee asserts that Indian tribes must be “governmental units” because the\nTribe cannot supply an example of any other entity besides Indian tribes that the phrase “other\nforeign or domestic government” might have been intended to cover. Yet even if Indian tribes\nare the only sovereigns not specifically mentioned in 11 U.S.C. § 101(27), then “why not just\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 14\n\n\nmention them by their specific name, as Congress has always done in the past?” In re\nGreektown Holdings, 532 B.R. at 697. Congress’ failure to do so, after arguably mentioning\nevery other sovereign by its specific name, likely constitutes “circumstances supporting [the]\nsensible inference” that Congress meant to exclude them, pursuant to the familiar expressio unius\ncanon. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002). Such an inference is certainly\nmore sensible than the alternative inference that the Trustee’s argument asks us to make—that\nCongress meant for Indian tribes to be the only sovereign covered by the phrase “other foreign or\ndomestic government.” Regardless, “this Court does not revise legislation . . . just because the\ntext as written creates an apparent anomaly as to some subject it does not address.” Bay Mills,\n572 U.S. at 794.11\n\n “Determining the limits on the sovereign immunity held by Indians is a grave question;\nthe answer will affect all tribes, not just the one before us.” Upper Skagit Indian Tribe v.\nLundgren, 138 S. Ct. 1649, 1654 (2018). It is the graveness of this question that led to the\nrequirement that Congress unequivocally express its intent in order to abrogate tribal sovereign\nimmunity. And that requirement “reflects an enduring principle of Indian law: Although\nCongress has plenary authority over tribes, courts will not lightly assume that Congress in fact\nintends to undermine Indian self-government.” Bay Mills, 572 U.S. at 790. Thus, the Supreme\nCourt has repeatedly reaffirmed the requirement, and warned lower courts against abrogating\ntribal sovereign immunity if there is any doubt about Congress’ intent. See id. at 800 (“[I]t is\nfundamentally Congress’ job, not ours, to determine whether or how to limit tribal immunity.”);\nKiowa, 523 U.S. at 759 (“The capacity of the Legislative Branch to address [this] issue by\ncomprehensive legislation counsels some caution by us in this area.”); Santa Clara Pueblo,\n436 U.S. at 60 (“[A] proper respect both for tribal sovereignty and for the plenary authority of\n\n 11The dissent adds one, equally unpersuasive argument, asserting that Indian tribes must be “governmental\nunits” because abrogation of tribal sovereign immunity aligns with the Bankruptcy Code’s “purpose of establishing\nand enforcing a fair and equitable [asset] distribution procedure.” Dis. Op. at 27. Yet an interest in fairness and\nequity is not unique to bankruptcy. For instance, in Florida Paraplegic, the court held that the Americans with\nDisabilities Act—the purpose of which was “to provide a clear and comprehensive national mandate for the\nelimination of discrimination against individuals with disabilities”—did not abrogate tribal sovereign immunity, and\nin doing so even acknowledged that this “may seem . . . patently unfair.” 166 F.3d at 1128, 1135. Indeed,\n“immunity doctrines [of all kinds] inevitably carry with them the seeds of occasional inequities. . . . Nonetheless, the\ndoctrine of tribal [sovereign] immunity reflects a societal decision that tribal autonomy predominates over other\ninterests.” Wichita and Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 781 (D.C. Cir. 1986).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 15\n\n\nCongress in this area cautions that we tread lightly in the absence of clear indications of\nlegislative intent.”). We heed those warnings, and hold that Congress did not unequivocally\nexpress an intent to abrogate tribal sovereign immunity in 11 U.S.C. §§ 106, 101(27).\n\n B. Waiver\n\n “Similarly [to the unequivocality requirement for congressional abrogation of tribal\nsovereign immunity], a tribe’s waiver [of its sovereign immunity] must be ‘clear.’” C&L\nEnters., Inc. v. Citizen Band of Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001)\n(quoting Okla. Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505,\n509 (1991)). The Trustee’s argument that the Tribe clearly waived any tribal sovereign\nimmunity it possessed has three analytical steps: (1) Indian tribes can waive sovereign immunity\nby litigation conduct, (2) alter egos or agents of Indian tribes can waive tribal sovereign\nimmunity by litigation conduct, and (3) filing a bankruptcy petition waives sovereign immunity\nas to separate, adversarial fraudulent transfer claims. If each step is a correct statement of the\nlaw, then, according to the Trustee, the Tribe may have waived its immunity from the Trustee’s\nfraudulent transfer claim by actually or effectively filing the Debtors’ bankruptcy petitions in\nfederal court. We agree with the first step of the Trustee’s analysis, but we disagree with the\nsecond and third steps. Tribal sovereign immunity can be waived by litigation conduct, but not\nby the litigation conduct of a tribe’s alter ego or agent, and the litigation conduct of filing a\nbankruptcy petition does not waive tribal sovereign immunity as to a separate, adversarial\nfraudulent transfer claim. Accordingly, we hold that the Tribe did not waive its tribal sovereign\nimmunity.\n\n The first step of the Trustee’s argument is that Indian tribes can waive sovereign\nimmunity by litigation conduct. Both the bankruptcy and district courts disagreed, relying\nheavily on part of our decision in Memphis Biofuels, LLC v. Chickasaw Nation Indus., 585 F.3d\n917 (6th Cir. 2009). However, Memphis Biofuels does not foreclose this step.\n\n In Memphis Biofuels, a contract between Memphis Biofuels and a corporation owned by\nthe Chickasaw tribe included a provision by which both parties purported to waive all\nimmunities from suit. Id. at 921–22. However, under the tribal corporation’s charter, any waiver\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 16\n\n\nof sovereign immunity required a resolution approved by the tribe’s board of directors. Id. Such\na resolution was never obtained, and the question arose whether the tribal corporation possessed\nsovereign immunity. Id. We ultimately held that despite the contract provision purporting to\nwaive all immunities, the Chickasaw tribe possessed tribal sovereign immunity because the\ncontractual waiver was an “unauthorized act[]” that was “insufficient to waive tribal-sovereign\nimmunity.” Id. at 922. Because “board approval was not obtained, [the] charter control[led]”\nthe issue. Id.\n\n This holding, combined with the fact that the Tribe’s governing code has a similar board\nresolution requirement that was undisputedly not satisfied, was enough for the bankruptcy and\ndistrict courts to find that the Tribe did not waive its sovereign immunity. However, Memphis\nBiofuels involved no litigation conduct on the part of the Chickasaw tribe, and neither this Court\nnor the parties cited any of the Supreme Court cases pertaining to waiver of sovereign immunity\nby litigation conduct. Accordingly, Memphis Biofuels, like all cases, “cannot be read as\nforeclosing an argument that [it] never dealt with.” Waters v. Churchill, 511 U.S. 661, 678\n(1994).\n\n Thus we have yet to decide whether the doctrine of waiver of sovereign immunity by\nlitigation conduct applies to Indian tribes. While the Supreme Court has long held that such\nwaiver is possible for non-tribal sovereigns, see, e.g., Lapides v. Bd. of Regents of Univ. Sys. of\nGa., 535 U.S. 613, 620 (2002); Gardner v. New Jersey, 329 U.S. 566, 573 (1947); Gunter v. Atl.\nCoast Line RR. Co., 200 U.S. 273, 284 (1906), few courts have had the opportunity to extend the\nSupreme Court’s holdings to Indian tribes. Those that have had the opportunity however, have\nlargely chosen to do so, holding that certain types of litigation conduct by tribes constitute a\nsufficiently clear waiver of tribal sovereign immunity.\n\n For example, two circuits have held that intervening in a lawsuit constitutes waiver. See\nHodel, 788 F.2d at 773 (“By so intervening, a party ‘renders itself vulnerable to complete\nadjudication by the federal court of the issues in litigation between the intervenor and the adverse\nparty.’”) (citation omitted); United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir. 1981) (“By\nsuccessfully intervening, a party makes himself vulnerable to complete adjudication by the\nfederal court of the issues in litigation between the intervenor and the adverse party.”).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 17\n\n\nSimilarly, two circuits have considered the possibility that removal of an action from state to\nfederal court might constitute waiver. See Bodi v. Shingle Springs Band of Miwok Indians,\n832 F.3d 1011, 1023–24 (9th Cir. 2016); Contour Spa at the Hard Rock, Inc. v. Seminole Tribe\nof Fla., 692 F.3d 1200, 1207–08 (11th Cir. 2012). While ultimately holding that removal did not\nconstitute sufficiently clear waiver, these cases serve as additional examples of circuits willing to\naccept that some litigation conduct may constitute sufficiently clear waiver.\n\n More relevant to the facts of this case, three circuits have held that filing a lawsuit\nconstitutes waiver. See Bodi, 832 F.3d at 1017 (“By filing a lawsuit, a tribe may of course\n‘consent to the court’s jurisdiction to determine the claims brought’ and thereby agree to be\nbound by the court’s decision on those claims.”) (citation omitted); Rupp v. Omaha Indian Tribe,\n45 F.3d 1241, 1245 (8th Cir. 1995) (“[B]y initiating this lawsuit, the Tribe ‘necessarily consents\nto the court’s jurisdiction to determine the claims brought adversely to it.’”) (citation omitted);\nJicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1344 (10th Cir. 1982) (“It is recognized,\nhowever, that ‘when the sovereign sues it waives [some of its sovereign immunity].’ . . . This\ndoctrine equally applies to Indian tribes.”) (citation omitted).\n\n Like intervention, and unlike removal, filing a lawsuit manifests a clear intent to waive\ntribal sovereign immunity with respect to the claims brought, and to assume the risk that the\ncourt will make an adverse determination on those claims. To hold otherwise would have\nsignificant implications. See Rupp, 45 F.3d at 1245 (“We will not transmogrify the doctrine of\ntribal sovereign immunity into one which dictates that the tribe never loses a lawsuit.”); Oregon,\n657 F.2d at 1014 (“Otherwise, tribal immunity might be transformed into a rule that tribes may\nnever lose a lawsuit.”). Thus, we hold that Indian tribes can waive their tribal sovereign\nimmunity through sufficiently clear litigation conduct, including by filing a lawsuit.\n\n The second step of the Trustee’s argument is that alter egos or agents of Indian tribes can\nwaive tribal sovereign immunity by litigation conduct. Both the bankruptcy and district courts\ndisagreed, relying on a different part of our decision in Memphis Biofuels. Memphis Biofuels\nforecloses this step.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 18\n\n\n In Memphis Biofuels, we refused to apply “equitable doctrines” such as equitable\nestoppel and actual or apparent authority to attribute to the Indian tribe conduct that allegedly\nconstituted waiver. 585 F.3d at 922. The alter ego doctrine is similarly equitable. Trs. of\nDetroit Carpenters Fringe Benefit Fund v. Indus. Contracting, LLC, 581 F.3d 313, 317–18 (6th\nCir. 2009). Thus, we hold that the litigation conduct of alter egos or agents of Indian tribes\ncannot be attributed to the tribes for the purpose of waiving tribal sovereign immunity. Such\nimputation would require an impermissible implication. See Santa Claro Pueblo, 436 U.S. at 58\n(“It is settled that a waiver of [tribal] sovereign immunity cannot be implied . . . .”).\n\n In urging this Court to hold the opposite, the Trustee relies on First Nat’l Bank v. Banco\nEl Comercio Exterior de Cuba, 462 U.S. 611 (1983) and a handful of circuit court cases applying\nalter-ego and agency doctrines to find that foreign governments and states waived their sovereign\nimmunity. Notably, however, the Trustee cites to no case in which these doctrines were applied\nto Indian tribes, and we can find none. (See Brief for Appellee at 37.) (“The Trustee then takes a\ntortured path—unsupported by a single case from any court anywhere . . . .”); Buchwald Capital\nAdvisors, LLC v. Sault Ste. Marie Tribe of Chippewa Indians, 584 B.R. 706, 719 (Bankr. E.D.\nMich. 2018) (“No court has ever applied the equitable doctrine of alter-ego/veil piercing to find a\nwaiver of an Indian tribe’s sovereign immunity . . . .”).\n\n The Trustee’s cases concerning foreign and state governments are also unpersuasive.\nWhile the Supreme Court has held that the law of foreign sovereign immunity is “[i]nstructive”\nin cases involving tribal sovereign immunity, C&L Enters., 532 U.S. at 421 n.3, that is not the\ncase where there is a clear conflict between the two. Significantly, the Foreign Sovereign\nImmunities Act (“FSIA”) allows foreign governments to waive their sovereign immunity by\nimplication. 28 U.S.C. § 1605(a)(1) (“A foreign state shall not be immune . . . in any case in\nwhich the foreign state has waived its immunity either explicitly or by implication.”). In\ncontrast, Indian tribes cannot waive their immunity by implication. Santa Claro Pueblo, 436\nU.S. at 58 (“It is settled that a waiver of [tribal] sovereign immunity cannot be implied . . . .”);\nAllen v. Gold Country Casino, 464 F.3d 1044 1048 (9th Cir. 2006) (“There is simply no room to\napply the FSIA by analogy. . . . [The FSIA] permits a waiver of immunity to be implied, while\nthe Supreme Court permits no such implied waiver in the case of Indian tribes.”).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 19\n\n\n Analogizing to state sovereign immunity is equally unhelpful. Though it carries a similar\nban on waiver by implication, Coll. Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense\nBd., 527 U.S. 666, 682 (1999), it is “not congruent with” tribal sovereign immunity. Three\nAffiliated Tribes of Fort Berthold v. Wold Eng’g, 476 U.S. 877, 890 (1986); see also Bodi,\n832 F.3d at 1020 (“Tribal immunity is not synonymous with a State’s Eleventh Amendment\nimmunity, and parallels between the two are of limited utility.”). A good example of such\nincongruency is provided by a set of cases dealing precisely with waiver by litigation conduct—\nspecifically, the removal of a case from state to federal court. States that remove cases against\nthem waive their sovereign immunity, while tribes that remove cases against them likely do not.\nCompare Lapides 535 U.S. at 617, with Bodi, 832 F.3d at 1020; Contour Spa, 692 F.3d at 1206,\n1208. Accordingly, we do not place great weight on those cases concerning the litigation\nconduct of alter egos or agents of foreign and state governments.\n\n The third and final step of the Trustee’s argument is that filing a bankruptcy petition\nwaives tribal sovereign immunity as to separate, adversarial fraudulent transfer claims. As the\nanalysis of the first step hinted, whether a waiver of sovereign immunity has occurred is an\ninquiry separate and distinct from a waiver’s scope. For instance, filing a lawsuit constitutes\nwaiver by litigation conduct, but that waiver is a limited one. It waives sovereign immunity as to\nthe court’s decision on the claims brought by the tribe, see Bodi, 832 F.3d at 1017, but not as to\ncounterclaims brought against the tribe, even where compulsory. Okla. Tax, 498 U.S. at 509.12\n\n The Trustee relies on Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006), in contending\nthat filing a bankruptcy petition waives tribal sovereign immunity to separate, adversarial\nfraudulent transfer claims. However, while the Supreme Court did hold as much in Katz, its\nholding pertained only to state sovereign immunity, and does not merit extension. In addition to\nthe limited utility of any parallels between the two doctrines as noted above, the Supreme Court\nin Katz based its holding primarily on the unique relationship between states, the Constitution,\n\n 12Those circuits that have held that filing a lawsuit constitutes a waiver of tribal sovereign immunity\nrecognize an exception to the rule in Okla. Tax for counterclaims sounding in equitable recoupment—a defensive\naction to diminish a plaintiff’s recovery as opposed to one asserting affirmative relief. See, e.g., Quinault Indian\nNation v. Pearson, 868 F.3d. 1093, 1099 (9th Cir. 2017); Rosebud Sioux Tribe v. Val-U Constr. Co. of S.D., 50 F.3d\n560, 562 (8th Cir. 1995); Jicarilla Apache Tribe, 687 F.2d at 1346. We need not decide whether to join these\ncircuits as it is undisputed that the Trustee’s fraudulent transfer claim does not sound in equitable recoupment.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 20\n\n\nand federal bankruptcy law. See id. at 362–63, 378 (“The history of the Bankruptcy Clause, the\nreasons it was inserted in the Constitution, and the legislation both proposed and enacted under\nits auspices immediately following ratification of the Constitution demonstrate that it was\nintended not just as a grant of legislative authority to Congress, but also to authorize limited\nsubordination of state sovereign immunity in the bankruptcy arena. . . . The ineluctable\nconclusion, then, is that States agreed in the plan of the Convention not to assert any sovereign\nimmunity defense they might have had in proceedings brought pursuant to [federal bankruptcy\nlaw]. . . . In ratifying the Bankruptcy Clause, the States acquiesced in a subordination of\nwhatever sovereign immunity they might otherwise have asserted . . . .”).\n\n Because of this reasoning, courts have been reluctant to extend the holding in Katz from\nstates to other sovereigns, and we choose not to do so here. See, e.g., In re Supreme Beef\nProcessors, Inc., 468 F.3d 248, 253 n.6 (5th Cir. 2006) (“Regardless what effect Katz has with\nrespect to some aspects of state or local governmental units’ encounters with bankruptcy, Katz\nhas no effect on this case involving federal sovereign immunity.”). Extension to Indian tribes in\nparticular would certainly not accord with the reasoning in Katz, given the tribes’ obvious\nabsence from the Constitutional Convention. See Blatchford v. Native Village of Noatak,\n501 U.S. 775, 782 (1991) (“[I]t would be absurd to suggest that the tribes surrendered immunity\nin a convention to which they were not even parties.”). Thus, we hold that the filing of a\nbankruptcy petition does not waive tribal sovereign immunity as to separate, adversarial\nfraudulent transfer claims, and ultimately that the Debtors’ doing so did not waive the Tribe’s\ntribal sovereign immunity as to the Trustee’s fraudulent transfer claim.\n\n CONCLUSION\n\n It is not lost on this Court that the Trustee may regard this result—dismissal of its\ncomplaint—as unfair. The Supreme Court has acknowledged that “[t]here are reasons to doubt\nthe wisdom of perpetuating this doctrine” given that tribal sovereign immunity “can harm those\nwho are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who\nhave no choice in the matter.” Kiowa, 523 U.S. at 758. “[B]ut that is the reality of sovereign\nimmunity.” Memphis Biofuels, 585 F.3d at 922. As state above, “[i]mmunity doctrines [of all\nkinds] inevitably carry within them the seeds of occasional inequities. . . . Nonetheless, the\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 21\n\n\ndoctrine of tribal [sovereign] immunity reflects a societal decision that tribal autonomy\npredominates over other interests.” Hodel, 788 F.2d at 781. Accordingly, we defer to Congress\nand the Supreme Court to exercise their judgment in this important area.\n\n For the reasons set forth above, we AFFIRM the district court’s dismissal.\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 22\n\n\n _________________\n\n DISSENT\n _________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371184/", "author_raw": ""}, {"author": "ZOUHARY, District Judge, dissenting", "type": "dissent", "text": "ZOUHARY, District Judge, dissenting.\n\n What we are looking for in the Bankruptcy Code is an “unequivocal expression of . . .\nlegislative intent” to abrogate tribal sovereign immunity. Santa Clara Pueblo v. Martinez,\n436 U.S. 49, 59 (1978). Such an expression need not be stated in “any particular way” nor use\nany “magic words.” FAA v. Cooper, 566 U.S. 284, 291 (2012). The “proper focus” of this\ninquiry is on “the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 231 (1989). When\nwe look for this unequivocal expression, we employ our “traditional tools of statutory\nconstruction.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008).\n\n I\n\n We begin with the text. Section 106(a) of the Code states that “sovereign immunity is\nabrogated as to a governmental unit.” 11 U.S.C. § 106(a). Right off the bat, we have an explicit,\nunmistakable statement from Congress that it intends to abrogate sovereign immunity. The sole\nremaining question is whose sovereign immunity.\n\n For the answer to that question, we turn to Section 101(27), which provides:\n\n The term “governmental unit” means United States; State; Commonwealth;\n District; Territory; municipality; foreign state; department, agency, or\n instrumentality of the United States (but not a United States trustee while serving\n as a trustee in a case under this title), a State, a Commonwealth, a District, a\n Territory, a municipality, or a foreign state; or other foreign or domestic\n government.\n\n11 U.S.C. § 101(27) (emphasis added). In this definition, Congress chose to speak broadly. It\nchose to abrogate the sovereign immunity of all those governmental entities listed explicitly in\nSection 101(27), and, on top of those, any “other foreign or domestic government.” In other\nwords, Congress abrogated the sovereign immunity of any government, of any type, anywhere in\nthe world. See Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1057 (9th Cir. 2004), as\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 23\n\n\namended on denial of reh’g (Apr. 6, 2004) (“[L]ogically, there is no other form of government\noutside the foreign/domestic dichotomy . . . .”).\n\n Because the statute contains clear language that “sovereign immunity is abrogated” and\nthat language applies to domestic governments, the sole remaining question is one the majority\nignores: Is an Indian tribe a domestic government? A tribe is certainly domestic, residing and\nexercising its sovereign authority within the territorial borders of the United States. And a tribe\nis a form of government, exercising political authority on behalf of and over its members.\n\n Supreme Court precedent supports this natural reading. The Court refers to Indian tribes\nas “‘domestic dependent nations’ that exercise inherent sovereign authority over their members\nand territories.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla.,\n498 U.S. 505, 509 (1991) (quoting Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831));\nsee also Blatchford v. Native Village of Noatak, 501 U.S. 775, 782 (1991) (comparing Indian\ntribes to states and foreign sovereigns and concluding that both states and Indian tribes are\n“domestic” sovereigns). The Court says that tribal sovereign immunity itself derives from\n“Indian sovereignty and self-governance.” Three Affiliated Tribes of Fort Berthold Reservation\nv. Wold Eng’g, 476 U.S. 877, 890 (1986). Indeed, the Court explains the basis of tribal\nsovereign immunity by comparing Indian tribes to “other governments.” Turner v. United\nStates, 248 U.S. 354, 357 (1919) (“Like other governments, municipal as well as state, the Creek\nNation was free from liability . . . .”). This comparison to “other governments” makes sense only\nif tribes are themselves governments.\n\n Congress, too, says Indian tribes are domestic governments, as numerous provisions of\nthe United States Code demonstrate. See, e.g., 6 U.S.C. § 572(a) (directing cooperation with\n“State, local, and tribal governments”); 15 U.S.C. § 7451(a)(2) (authorizing various\ncybersecurity activities that include “State, local, and tribal governments”); 19 U.S.C.\n§ 4332(d)(4)(A)(i) (requiring sharing of best practices concerning a safety plan with “State,\nlocal, and tribal governments”); 23 U.S.C. § 202(a)(1)(B)–(C) (providing for funding of certain\nprograms and projects “administered by” or “associated with a tribal government”); 51 U.S.C.\n§ 60302(2) (authorizing research and development “to enhance Federal, State, local, and tribal\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 24\n\n\ngovernments’ use of” certain technologies); see also 25 U.S.C. § 4116(b)(2)(B)(ii)(I) (referring\nto a “government-to-government relationship between the Indian tribes and the United States”).\n\n The clear textual evidence of congressional intent to abrogate tribal sovereign immunity\nin Sections 106(a) and 101(27) is stated as a simple syllogism: Sovereign immunity is abrogated\nas to all governments. Indian tribes are governments. Hence sovereign immunity is abrogated as\nto Indian tribes. See In re Russell, 293 B.R. 34, 40 (Bankr. D. Ariz. 2003) (explaining that\nlogical deduction from express statutory language satisfies a standard of unequivocality). Taken\ntogether, the text of Sections 106(a) and 101(27) form a clear expression of legislative intent to\nabrogate the sovereign immunity of Indian tribes.\n\n II\n\n But if this expression is so clear, the majority asks, then how could two circuit courts\ncome to seemingly opposite conclusions about it? Compare Meyers v. Oneida Tribe of Indians\nof Wis., 836 F.3d 818, 826 (7th Cir. 2016), with Krystal Energy, 357 F.3d at 1061. This alleged\ncircuit split is less of a conflict than the majority opinion suggests. The only appellate court to\nrule previously on this question—whether the Bankruptcy Code abrogates tribal sovereign\nimmunity—is the Ninth Circuit in Krystal Energy. That court held the Code abrogates\nimmunity. Krystal Energy, 357 F.3d at 1061.\n\n The Seventh Circuit in Meyers was looking at different language in a different statute. In\nMeyers, the statute at issue was the Fair and Accurate Credit Transaction Act (FACTA). Meyers\nwanted to sue the Oneida Tribe because he made credit card purchases at tribe-run businesses,\nand those businesses produced receipts revealing his credit card number, in violation of FACTA.\nAt issue was whether FACTA abrogated tribal sovereign immunity. The statute provides, “[N]o\nperson that accepts credit cards or debit cards for the transaction of business shall print more\nthan the last 5 digits of the card number or the expiration date upon any receipt provided to the\ncardholder at the point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1) (emphasis added). It\nstates that any “person” who violates the statute shall be subject to civil liability. 15 U.S.C.\n§§ 1681n, 1681o. FACTA defines a “person” as “any individual, partnership, corporation, trust,\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 25\n\n\nestate, cooperative, association, government or governmental subdivision or agency, or other\nentity.” 15 U.S.C. § 1681a(b) (emphasis added).\n\n The Seventh Circuit held that this statutory language did not abrogate tribal sovereign\nimmunity. It reasoned that the term “government,” as it appears in FACTA, left ambiguity about\nwhether that word alone was intended to abrogate tribal sovereign immunity. Meyers, 836 F.3d\nat 820. But nowhere in Meyers did the Seventh Circuit say that Indian tribes are not\ngovernments. Further, the Seventh Circuit explicitly steered clear of ruling on how the term\n“government,” as it appears in the Bankruptcy Code, might apply to Indian tribes. Id. at 826\n(“We need not weigh in on . . . how to interpret the breadth [of] the term ‘other domestic\ngovernments’ under the Bankruptcy Code . . . .”).\n\n The Seventh Circuit finding of ambiguity in FACTA does not affect our analysis of the\nBankruptcy Code. Consider how different the FACTA text is from that of the Bankruptcy Code.\nThe Bankruptcy Code states, in no mistakable terms, “sovereign immunity is abrogated as to a\ngovernmental unit.” 11 U.S.C. § 106(a). FACTA, on the other hand, merely declares a rule that\napplies to “person[s]” and says that “person[s]” shall be liable for rule violations. See 15 U.S.C.\n§§ 1681c(g)(1), 1681n, 1681o. Where FACTA makes no mention of sovereign immunity, the\nCode targets it directly.\n\n Next, consider the differences in the definition sections. The Bankruptcy Code defines\n“governmental units” using several specific terms and a broad, catch-all term at the end.\n11 U.S.C. § 101(27). And all these terms have one common thread: they are entities that would\notherwise be entitled to sovereign immunity. Contrast that with the FACTA definition of\n“person,” which mostly lists entities that would not otherwise be entitled to sovereign immunity.\nSee 15 U.S.C. § 1681a(b). These definitions are not “functionally equivalent.” Majority Op. at\n8–9. One gives far more evidence of intent to abrogate the sovereign immunity of any\ngovernment of any type.\n\n No wonder the Seventh Circuit could not say “with ‘perfect confidence’” that Congress\nintended FACTA to abrogate tribal sovereign immunity. Meyers, 836 F.3d at 827 (quoting\nDellmuth, 491 U.S. at 231). In contrast, the Bankruptcy Code has no such lack of textual\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 26\n\n\nevidence. This is why the only other circuit court to address this question concluded, “Because\nIndian tribes are domestic governments, Congress has abrogated their sovereign immunity.”\nKrystal Energy, 357 F.3d at 1061.\n\n Although Meyers and Krystal Energy can be reconciled based on these differences in\nstatutory language, there is one point of reasoning upon which they—and I with the majority—\nfundamentally disagree. Meyers and the majority seem to think it important that the Bankruptcy\nCode does not mention the words “Indian tribe” and that “there is not one example in all of\nhistory where the Supreme Court has found that Congress intended to abrogate tribal sovereign\nimmunity without expressly mentioning Indian tribes somewhere in the statute.” Meyers,\n836 F.3d at 824 (quoting In re Greektown Holdings, LLC, 532 B.R. 680, 693 (E.D. Mich. 2015));\nsee also Majority Op. at 11. Such an observation highlights the lack of on-point precedent to\nguide our decision, but it is otherwise irrelevant to the task of statutory interpretation before us.\n\n In the majority’s focus on these “magic words,” Cooper, 566 U.S. at 291, it ignores the\ndifferences in statutory language between the statutes analyzed in other cases and the one before\nus today. The Circuit and Supreme Court opinions referenced by the majority analyzed statutes\nthat featured neither the Bankruptcy Code’s clear language that “sovereign immunity is\nabrogated” nor its all-encompassing, sovereign-focused definition of “governmental unit.” Our\ntask is to determine whether “the language of the statute” contains an unequivocal expression of\nintent to abrogate sovereign immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242\n(1985). Our task is not to hold Congress to a standard of speaking as precisely as it possibly can\nor to demand that it use the same words today as it has in the past.\n\n Justice Scalia, providing the fifth vote in Dellmuth, emphasized this point, saying that\n“congressional elimination of sovereign immunity in statutory text” need not make “explicit\nreference” to any particular terms. Dellmuth, 491 U.S. at 233 (Scalia, J., concurring). So long as\nthe language of the statute, in whatever form, clearly subjects the sovereign to suit, that will\nsuffice to abrogate immunity. Id.; see also United States v. Beasley, 12 F.3d 280, 284 (1st Cir.\n1993) (Breyer, C.J.) (“Congress can embody a similar . . . intent in different ways in different\nstatutes.”).\n\n Nos. 18-1165/1166 In re Greektown Holdings Page 27\n\n\n As Krystal Energy held and as explained above, the Code’s text forms a clear expression\nof legislative intent to abrogate the sovereign immunity of Indian tribes.\n\n III\n\n Where the text gives clear evidence of congressional intent to abrogate, courts may look\nto the larger statutory scheme to “dispel[]” any “conceivable doubt” of that intent. Seminole\nTribe of Fla. v. Florida, 517 U.S. 44, 56–57 (1996); see also Davis v. Michigan Dep’t of\nTreasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the\nwords of a statute must be read in their context and with a view to their place in the overall\nstatutory scheme.”). We next look to the Bankruptcy Code’s purpose.\n\n “[T]he object of bankruptcy laws is the equitable distribution of the debtor’s assets\namongst his creditors . . . .” Kuehner v. Irving Tr. Co., 299 U.S. 445, 451 (1937). “Bankruptcy\nis designed to provide an orderly liquidation procedure under which all creditors are treated\nequally.” S. Rep. No. 95-989, at 49 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5835; H.R.\nRep. No. 95-595, at 340 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963, 6297; see also Begier\nv. I.R.S., 496 U.S. 53, 58 (1990) (“Equality of distribution among creditors is a central policy of\nthe Bankruptcy Code.”).\n\n The Code’s purpose of establishing and enforcing a fair and equitable distribution\nprocedure is consistent with the broad abrogation of Sections 106(a) and 101(27). With a broad\nabrogation of immunity, all governments must play by the rules. This context in no way\ncontradicts the text’s plain meaning—sovereign immunity is abrogated as to any government,\nincluding Indian tribes. Congress expressed its intention unequivocally.\n\n For these reasons, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371184/", "author_raw": "ZOUHARY, District Judge, dissenting"}]}	CLAY	ZOUHARY	CLAY	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4593931/	Published	1	1	1	2,019	2	[ { "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...
4,594,500	Portia A. BOULGER, Plaintiff-Appellant/Cross-Appellee, v. James H. WOODS, Defendant-Appellee/Cross-Appellant.	Portia Boulger v. James Woods	2019-02-27	18-3170/3220	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.", "parties": "", "opinions": [{"author": "COLE, Chief Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0030p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n PORTIA A. BOULGER, ┐\n Plaintiff-Appellant/Cross-Appellee, │\n │\n > Nos. 18-3170/3220\n v. │\n │\n │\n JAMES H. WOODS, │\n Defendant-Appellee/Cross-Appellant. │\n ┘\n\n Appeal from the United States District Court\n for the Southern District of Ohio at Columbus.\n No. 2:17-cv-00186—George C. Smith, District Judge.\n\n Argued: October 16, 2018\n\n Decided and Filed: February 27, 2019\n\n Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.\n _________________\n\n COUNSEL\n\nARGUED: Joseph E. Sandler, SANDLER REIFF LAMB ROSENSTEIN & BIRKENSTOCK,\nP.C., Washington, D.C., for Appellant/Cross-Appellee. Patrick Kasson, REMINGER CO.,\nL.P.A., Columbus, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Joseph E. Sandler,\nSANDLER REIFF LAMB ROSENSTEIN & BIRKENSTOCK, P.C., Washington, D.C.,\nNathaniel Zachary West, Columbus, Ohio, for Appellant/Cross-Appellee. Patrick Kasson, Kari\nD. Hehmeyer, REMINGER CO., L.P.A., Columbus, Ohio, for Appellee/Cross-Appellant.\n\n COLE, C.J., delivered the opinion of the court in which WHITE, J., joined, and\nNALBANDIAN, J., joined in part. NALBANDIAN, J. (pp. 15–18), delivered a separate opinion\nconcurring in part and in the judgment.\n\n Nos. 18-3170/3220 Boulger v. Woods Page 2\n\n\n _________________\n\n OPINION\n _________________\n\n COLE, Chief Judge. Portia Boulger filed an action for defamation and invasion of\nprivacy based upon a tweet by James Woods, a well-known movie actor and producer. The\ndistrict court denied Woods’s motion for summary judgment, due to Boulger’s lack of service,\nbut granted his motion for judgment on the pleadings, finding that the tweet was not an\nactionable statement of fact under Ohio law. Boulger now appeals the grant of the motion for\njudgment on the pleadings as to her defamation claim, and Woods cross-appeals the denial of his\nmotion for summary judgment. For the reasons that follow, we affirm.\n\n I. BACKGROUND\n\n On March 11, 2016, then-presidential candidate Donald Trump held a rally in Chicago,\nIllinois. That evening, the Chicago Tribune newspaper posted a photograph on its Twitter\naccount of a woman at the rally, wearing a Trump T-shirt, and giving a Nazi salute—a salute\nwith her right hand raised straight up in the air. On March 12, 2016, Twitter user @voxday\nposted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption\nidentifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings,\nR. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement,\n“The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account.\nIt’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along\nwith a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders\nagitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000\nfollowers on Twitter.\n\n That same day, March 12, 2016, multiple news outlets identified the woman in the Nazi\nsalute photograph as Birgitt Peterson, a Trump supporter residing in Yorkville, Illinois. Woods\ndid not delete his original tweet, but instead tweeted a follow-up: “Various followers have stated\nthat the Nazi Salute individual and the #Bernie campaign woman are NOT the same person.\n#Chicago #Trump.” (Def. Mot. for J. on the Pleadings, R. 7, PageID 62.)\n\n Nos. 18-3170/3220 Boulger v. Woods Page 3\n\n\n On March 22, 2016, counsel for Boulger wrote to Woods’s attorney, asking that Woods\ndelete his tweet and issue a retraction and apology. Woods deleted the tweet the next day, and\nposted three new tweets:\n\n 1. “I have an opportunity to clarify something I challenged immediately when it hit\n Twitter. Portia A. Boulger was NOT the ‘Nazi salute lady.’”\n 2. “Ms. Boulder [sic] has reached out to me and asked me to use my many followers\n to stop people from harassing her. I am more than happy to do so.”\n 3. “Though she supports @BernieSanders, I am happy to defend her from abuse. I\n only wish his supporters would do the same for other candidates.”\n\n(Comp., R. 1, PageID 5.)\n\n In the eleven days between Woods’s initial tweet and the tweet’s deletion, Boulger\n“received hundreds of obscene and threatening messages, including death threats,” as well as\nnumerous telephone calls. (Id. at 5–6.) Boulger stated that due to Woods’s tweet, she suffered\n“severe emotional distress including sleeplessness, episodes of reasonable apprehension of\npersonal assault or attack, anxiety and depression.” (Id. at 8.)\n\n Boulger subsequently filed the instant action against Woods on March 3, 2017, alleging\ndefamation and invasion of privacy under Ohio law. On June 1, 2017, Boulger filed a motion for\nextension of time to complete service of process on Woods, arguing that, despite her best efforts,\nshe had been unable to serve Woods properly. The district court granted Boulger’s motion,\nextending the service deadline to August 7, 2017.\n\n Despite the extension, Woods filed an answer to the complaint on June 7, 2017, asserting,\ninter alia, insufficient service of process and lack of personal jurisdiction (due to the lack of\nservice). The same day, Woods also filed a motion for judgment on the pleadings, arguing that\nBoulger’s claim for defamation failed as a matter of law because the tweet at issue was a\nquestion and not an actionable statement of fact. The next month, the parties filed a joint report\nunder Federal Rule of Civil Procedure 26(f), in which they recommended that “discovery be\nstayed pending a Decision on the Motion for Judgment on the Pleadings.” (Rule 26(f) Report, R.\n12, PageID 127.) Woods also noted in the Rule 26(f) report that he “contests personal\njurisdiction” and “has not been served.” (Id.)\n\n Nos. 18-3170/3220 Boulger v. Woods Page 4\n\n\n Boulger still failed to serve Woods timely. Accordingly, on August 15, 2017, Woods\nfiled a motion for summary judgment, or in the alternative, motion for dismissal, due to\nBoulger’s failure to perfect service. The district court found, however, that Woods waived his\njurisdictional defenses through his conduct and therefore denied his motion for summary\njudgment. But the court granted Woods’s motion for judgment on the pleadings, finding that\nWoods’s tweet could be interpreted as a question and not a statement of fact, and that the tweet\nwas protected under Ohio’s innocent construction rule.\n\n Boulger now appeals the decision on the merits, and Woods cross-appeals the\njurisdictional issue.\n\n II. ANALYSIS\n\n A. Jurisdiction\n\n We must first decide whether we have jurisdiction to review the merits of Boulger’s\nclaim. In the absence of “proper service of process, consent, waiver, or forfeiture, a court may\nnot exercise personal jurisdiction over a named defendant.” King v. Taylor, 694 F.3d 650, 655\n(6th Cir. 2012) (citations omitted). And without personal jurisdiction, a federal court is\n“powerless to proceed to an adjudication.” Id. (quoting Ruhrgas AG v. Marathon Oil Co.,\n526 U.S. 574, 584 (1999)).\n\n It is undisputed that Woods was never properly served. In the district court, Boulger\nsought to excuse her service failure, arguing that Woods waived his defenses in two ways:\n(1) by failing to include the defenses in his motion for judgment on the pleadings and (2) through\nhis conduct. The district court rejected Boulger’s first argument, but found that Woods had\nwaived his ability to challenge service through his conduct.\n\n We review a district court’s ruling on waiver for an abuse of discretion. King, 694 F.3d\nat 659. “An abuse of discretion occurs if the district court relies on clearly erroneous findings of\nfact, applies the wrong legal standard, misapplies the correct legal standard when reaching a\nconclusion, or makes a clear error of judgment.” Id. at 660 (quoting In re Whirlpool Corp.\nFront-Loading Washer Prods. Liability Litig., 678 F.3d 409, 416 (6th Cir. 2012)).\n\n Nos. 18-3170/3220 Boulger v. Woods Page 5\n\n\n 1. Waiver Through Failure to Include Defenses in Rule 12 Motion\n\n Under the Federal Rules of Civil Procedure, a defendant who files a motion under Rule\n12 and fails to raise the defense of insufficient service of process “waives” that defense. King,\n694 F.3d at 656 (citing Fed. R. Civ. P. 12(b)(1), (g)(2), (h)(1)(A)). 1 A defendant cannot be\ndeemed to have waived defenses, however, that “were not . . . available at the time they could\nfirst have been made.” Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981).\n\n While Woods challenged the sufficiency of service in his answer, he acknowledges that\nhe failed to include the defense in his motion for judgment on the pleadings. But as Woods\nnotes, he filed his motion for judgment on the pleadings in June 2017, two months prior to the\nservice deadline. Accordingly, any argument made by Woods in June 2017 regarding\ninsufficient service of process would have been premature. See King, 694 F.3d at 661\n(“[A] motion to dismiss on the basis of improper service made during the period for service may\nproperly be denied as premature.”). The district court was therefore correct in holding that\nWoods did not waive his insufficient service of process and lack of personal jurisdiction defenses\nby failing to include them in his motion for judgment on the pleadings because, at the time of\nfiling, the defenses were not yet available.\n\n 2. Waiver Through Conduct\n\n “Even where a defendant properly preserves a Rule 12(b) defense by including it in an\nanswer”—as Woods did here—“he may forfeit the right to seek a ruling on the defense at a later\njuncture through his conduct during the litigation.” King, 694 F.3d at 658 (footnote omitted)\n(citing Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999)). Put simply, a defendant’s\nappearances, filings, and actions in the district court may constitute “legal submission to the\njurisdiction of [that] court.” Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011) (quoting Days\nInns Worldwide, Inc. v. Patel, 445 F.3d 899, 905 (6th Cir. 2006)). But not all conduct serves as\n\n\n 1Federal Rule of Civil Procedure 12(g)(2) provides, “[e]xcept as provided in Rule 12(h)(2) or (3) [which\nare inapplicable here], a party that makes a motion under this rule must not make another motion under this rule\nraising a defense or objection that was available to the party but omitted from its earlier motion.” Rule 12(h)(1)\nprovides that “[a] party waives any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the\ncircumstances described in Rule 12(g)(2).”\n\n Nos. 18-3170/3220 Boulger v. Woods Page 6\n\n\nconstructive consent to personal jurisdiction. Instead, courts must ask whether a defendant’s\nconduct “has given the plaintiff ‘a reasonable expectation’ that the defendant will defend the suit\non the merits or whether the defendant has caused the court to ‘go to some effort that would be\nwasted if personal jurisdiction is later found lacking.’” King, 694 F.3d at 659 (quoting Gerber,\n649 F.3d at 519).\n\n “Determining what constitutes waiver by conduct is more [an] art than a science . . . and\nthere is no bright line rule.” State Auto Ins. Co. v. Thomas Landscaping & Constr., Inc., No.\n2:09-cv-735, 2011 WL 3475376, at *6 (S.D. Ohio Aug. 9, 2011) (quoting Pruco Life Ins. Co. v.\nWilmington Trust Co., 616 F. Supp. 2d 210, 216 (D.R.I. 2009), aff’d in relevant part, 494 F.\nApp’x 550 (6th Cir. 2012)). We note though that “it is relatively easier to find forfeiture of a\nservice defense[,]” as opposed to a personal-jurisdiction defense. King, 694 F.3d 650 (noting\n“that service of process is simply the means by which a defendant receives notice of an action\nand is formally brought within a court’s jurisdiction, whereas personal jurisdiction concerns the\nfairness of requiring a defendant to appear and defend in a distant forum”); see also 5B Charles\nA. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353, at 338 (3d ed. 2004)\n(“Although the questions of personal jurisdiction and service of process are closely interrelated,\nservice of process is merely the means by which a federal court gives notice to the defendant and\nasserts jurisdiction over him.”). Ultimately, we must consider all of the relevant circumstances\nin determining whether waiver by conduct has occurred. King, 694 F.3d at 659. And our\nanalysis must be deferential to the district court’s assessment of the situation. Id.\n\n Turning to Woods’s conduct, one filing “stands out as showing the obvious intent of the\ndefendant[] to submit to the personal jurisdiction of the Court.” Gerber, 649 F.3d at 525 (Moore,\nJ., concurring). As the district court noted, although Woods raised the defenses of insufficient\nservice of process and lack of personal jurisdiction in his answer, he immediately filed a motion\nfor judgment on the pleadings in which the defenses were not included. The motion for\njudgment on the pleadings was filed several months early—because Woods had not yet been\nserved—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent\nwith the idea that the district court lacked personal jurisdiction over the defendant[].” Id.\nIndeed, Woods’s actions demonstrate that he sought to have the district court use its power over\n\n Nos. 18-3170/3220 Boulger v. Woods Page 7\n\n\nthe parties to reach a decision on the merits, and required the court to expend significant efforts\nin doing so. See Parchman v. SLM Corp., 896 F.3d 728, 734 (“[T]he voluntary use of certain\ndistrict court procedures serve[s] as constructive consent to the personal jurisdiction of the\ndistrict court . . . .” (alterations in original) (quoting Gerber, 649 F.3d at 519)). Such voluntary\nparticipation in the litigation gave Boulger “a reasonable expectation that [Woods would] defend\nthe suit on the merits.” King, 694 F.3d at 660–61 (quoting Gerber, 649 F.3d at 519).\n\n The filing of the motion for judgment on the pleadings therefore created a reasonable\nexpectation that Woods would defend the suit on the merits. Any other holding would create a\nperverse outcome. One can imagine a litigant asking the court to proceed on the merits, and\nthen, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses. The\ndistrict court thus reasonably concluded that Woods’s actions constituted waiver. And,\nimportantly, that kind of decision is precisely the discretionary judgment that district courts are\nempowered to make in these kinds of circumstances. In another case, the district court might\nreasonably conclude that the appearance of gamesmanship was lower than that here and reach a\ndifferent decision. But the risk is certainly there, and we will not disturb the discretion of the\ndistrict court’s judgment in this case. We therefore proceed to the merits.\n\n B. Defamation\n\n “We review a district court’s judgment on the pleadings ‘using the same de novo standard\nof review employed for a motion to dismiss under Rule 12(b)(6).’” Fed. Deposit Ins. Corp. v.\nAmfin Fin. Corp., 757 F.3d 530, 533 (6th Cir. 2014) (quoting Tucker Middleburg-Legacy Place,\n539 F.3d 545, 549 (6th Cir. 2008)).\n\n “Under Ohio law, ‘it is for the court to decide as a matter of law whether certain\nstatements alleged to be defamatory are actionable or not.’” Susan B. Anthony List v. Driehaus,\n779 F.3d 628, 632 (6th Cir. 2015) (quoting Yeager v. Local Union 20, 453 N.E.2d 666, 669\n(Ohio 1983), overruled on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007)).\nIn order to establish a claim for defamation, a plaintiff “must show (1) that a false statement of\nfact was made, (2) that the statement was defamatory, (3) that the statement was published, (4)\nthat the plaintiff suffered injury as a proximate result of the publication, and (5) that the\n\n Nos. 18-3170/3220 Boulger v. Woods Page 8\n\n\ndefendant acted with the requisite degree of fault in publishing the statement.” Driehaus,\n779 F.3d at 632–33 (quoting Am. Chem. Soc. v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio\n2012) (internal citation omitted)). Failure to establish any one element is fatal to a defamation\nclaim. Id.\n\n Here, only the first element is at issue. The case thus boils down to one question: does\nWoods’s tweet constitute a false statement of fact? See Scott v. News-Herald, 496 N.E.2d 699,\n705 (Ohio 1986) (“Expressions of opinion[,]” as opposed to statements of fact, “are generally\naccorded absolute immunity from liability under the First Amendment.”). The Ohio Supreme\nCourt has held that in determining “whether a statement constitutes protected opinion or\nactionable fact, courts should consider the totality of the circumstances, including factors such\nas: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context\nof the statement; and (4) the broader context in which the statement appeared.” Bentkowski v.\nScene Mag., 637 F.3d 689, 693–94 (6th Cir. 2011) (internal quotation marks omitted) (citing Vail\nv. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 185–86 (Ohio 1995)). Each factor is to be\naddressed, “but the weight given to any one will conceivably vary depending on the\ncircumstances presented.” Vail, 649 N.E.2d at 185.\n\n This case, however, differs slightly from those cases contemplated by the Ohio Supreme\nCourt. Here, rather than determining whether a statement is protected opinion or actionable fact,\nwe are asked to analyze whether Woods’s question constitutes a statement at all. But Ohio case\nlaw indicates that even in a unique circumstance such as this one, the four-prong, totality-of-the-\ncircumstances test is still the appropriate framework. Indeed, in McKimm v. Ohio Elections\nCommission, 729 N.E.2d 364, 371 (Ohio 2000), the Ohio Supreme Court was asked to determine\nwhether a cartoon could be construed as an implied statement of fact. In its analysis, the court\nnoted the four-factor test and explained that “[a]ll four factors of Ohio’s test for distinguishing a\nstatement of fact from an opinion depend on the reasonable reader’s perception of the\nstatement—not on the perception of the publisher.” 729 N.E.2d at 371. While the court’s\nanalysis in McKimm did not explicitly apply the four-prong test, the Ohio Supreme Court made\nclear, and has continued to make clear, that the four-prong test is the appropriate framework in\nanalyzing whether a message can be construed as a statement of fact. See Wampler v. Higgins,\n\n Nos. 18-3170/3220 Boulger v. Woods Page 9\n\n\n752 N.E.2d 962, 971 (Ohio 2001) (explanatory parenthetical states that the court in McKimm\nrelied on the four-prong test). We are thus satisfied that the four-prong test should be utilized in\ndetermining whether Woods’s tweet constituted a statement of fact under Ohio law.\n\n 1. Factor 1 - Specific Language Used\n\n Under the first factor, courts seek “to determine whether the allegedly defamatory\nstatement has a precise meaning and thus is likely to give rise to clear factual implications.”\nBentkowski, 637 F.3d at 694 (quoting Wampler v. Higgins, 752 N.E.2d 962, 978 (Ohio 2001)).\nWoods argues that because the specific language at issue was a question—and thus not likely to\ngive rise to clear factual implications—his tweet was not a statement of fact. In the alternative,\nWoods argues briefly that his tweet was not actionable because the word “Nazi” is “inherently\nimprecise and subject to myriad subject interpretations.” (Appellee Br. 12 (quoting Wampler,\n752 N.E.2d at 979).) However, the cases Woods relies upon—involving statements such as\n“surgery Nazi” and “Little Hitler”—are easily distinguishable from the language used in this\ncase. Consequently, this argument has no merit.\n\n Woods spends more time arguing that his use of a question mark inherently precludes his\ntweet from qualifying as a statement of fact:\n\n Basic grammar establishes that “[a] question mark follows every question for\n which an answer is expected.” BRYAN A. GARNER, GARNER’S MODERN\n ENGLISH USAGE 752 (4th ed. 2016) (emphasis added). The question mark\n signaled to Mr. Woods’ Twitter followers his “lack of definitive knowledge about\n the issue,” and also “invites the readers to consider” various possibilities.\n Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995). From grade school\n on, question marks at the end of a sentence signal the sentence is a question.\n Applying those same basic grammar rules, requires the dismissal of the\n Complaint.\n\n(Appellee Br. 11 (emphasis in original).)\n\n Although this court has never confronted the issue of whether questions can (or cannot)\nbe defamatory, Ohio courts have. In Schoedler v. Motometer Gauge & Equip. Corp., the Ohio\nSupreme Court held that “[a] mere insinuation is as actionable as a positive assertion, if the\nmeaning is plain, and it has been held repeatedly that the putting of the words in the form of a\n\n Nos. 18-3170/3220 Boulger v. Woods Page 10\n\n\nquestion will in no w[ay] reduce the liability of the defendant.” 15 N.E.2d 958, 961 (Ohio 1938)\n(internal citations and quotation marks omitted). We agree, as it is easy to see how\ncommentators and journalists could use questions “as tools to raise doubts . . . about a person’s\nactivities or character while simultaneously avoiding defamation liability.” Abbas v. Foreign\nPolicy Grp., LLC, 783 F.3d 1328, 1338 (D.C. Cir. 2015). For example, “a question’s wording or\ntone or context sometimes may be read as implying the writer’s answer to that question.” Id.\n(emphasis in original); see also Bryan A. Garner, The Chicago Guide to Grammar, Usage, and\nPunctuation (2016) (“[A] rhetorical question is phrased in the interrogative structure but is meant\nas an emphatic or evocative statement.”) (emphasis added). For this reason, a blanket protection\nof defamation liability for any and all questions is inappropriate.\n\n It is worth noting, however, that other circuits have opined that “it is generally settled as a\nmatter of defamation law . . . that a question, ‘however embarrassing or unpleasant to its subject,\nis not accusation.’” Abbas, 783 F.3d at 1338 (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d\n1087, 1094 (4th Cir. 1993)); see also Bugliosi, 56 F.3d at 1157 (holding that a defendant’s use of\na question mark indicates “lack of definitive knowledge about the issue”).2 Even still, these\nholdings do not amount to a per se rule that questions cannot be defamatory.\n\n As to the question in this case, on March 12, 2016, Woods posted two photos—one photo\nof a woman giving the Nazi salute and one of Boulger. These photos had been posted by other\nTwitter users who affirmatively identified Boulger as the woman giving the Nazi salute, yet\nWoods chose to frame his tweet as a question. According to Woods, the question mark\nillustrates that he intended the tweet to ask a question to his followers. But Woods’s intentions\nare irrelevant; all that matters to this court is the reasonable reader’s interpretation of his tweet.\nSee McKimm, 729 N.E.2d at 371.\n\n\n\n\n 2Boulger also likens Woods’s tweet to someone asking, “When did Plaintiff start beating his spouse?” or\n“Can you believe that Plaintiff committed another heinous crime?” (Boulger Reply Br. 9–10.) But these examples\nare potentially defamatory as factual statements because, despite being framed as questions, they are statements of\nfact embedded within the question, i.e., that Plaintiff beats his spouse, and that Plaintiff committed another heinous\ncrime. Thus, these examples do not help Boulger. See, e.g., Abbas, 783 F.3d at 1338 n.7 (noting that “questions that\ncontain embedded factual assertions may sometimes form the basis for a successful defamation claim”).\n\n Nos. 18-3170/3220 Boulger v. Woods Page 11\n\n\n Some readers likely viewed the tweet as an insinuation that the woman in the Nazi salute\nphotograph was Boulger. It seems equally plausible, though, that other readers interpreted the\ntweet as posing a question. It would thus be nearly impossible to say that Woods’s tweet had a\nprecise meaning as required by Ohio law. See Wampler, 752 N.E.2d at 979; see also Abbas,\n783 F.3d at 1338 (“There is no good or predictable way to neatly divide (i) the questions that are\nroutinely posed in America’s robust public forums from (ii) the kinds of questions that would be\nactionable as defamation by implication . . . .”). With this ambiguity in mind, the first factor\nweighs in favor of nonactionability.\n\n 2. Factor 2 - Verifiability\n\n The second factor considers whether the allegedly defamatory statement is verifiable.\n“Where the . . . statement lacks a plausible method of verification, a reasonable reader will not\nbelieve that the statement has specific factual content.” Vail, 649 N.E.2d at 186 (alternation in\noriginal) (citations and internal quotation marks omitted). “A statement is deemed verifiable if:\n(1) the author represents that he has knowledge or evidence that substantiates the statements, and\n(2) there is a plausible method to verify the statements.” SPX Corp. v. Doe, 253 F. Supp. 2d 974,\n980–81 (N.D. Ohio 2003) (citing Scott, 496 N.E.2d at 706–07; Vail, 649 N.E.2d at 186;\nWampler, 752 N.E.2d at 979). For example, a non-verifiable statement would be one that refers\nto an individual’s “internal motivation,” because no plausible method to confirm the veracity\nexists. See Bentkowski, 637 F.3d at 694; see also Ferreri v. Plain Dealer Publ’g Co., 756\nN.E.2d 712, 721 (Ohio Ct. App. 2001) (noting that “[t]here are no objective tests to establish\nwhether someone’s conduct is ‘scandalous,’ whether an individual is ‘beyond the call of reason,’\nhas the ‘qualities that make a mere lawyer into a good jurist,’ or ‘cares a good deal more about\nhimself and his image’ than children”). On the other hand, Ohio courts have held that “an\naccusation of perjury was ‘an articulation of an objectively verifiable event’ that could be proven\n‘with evidence adduced from the transcripts and witnesses present at the hearing.’” Wampler,\n752 N.E.2d at 979 (quoting Scott, 496 N.E.2d at 707).\n\n The district court held that a “question itself cannot be proven or disproven because\nquestions, by their nature, lack truth values.” (Op. & Order, R. 21, PageID 207.) But as we have\nalready noted, a question’s wording, tone, or context can be read as implying a writer is asserting\n\n Nos. 18-3170/3220 Boulger v. Woods Page 12\n\n\na statement of fact. Take a rhetorical question as an example. A person could walk outside, see\nthat it is snowing, and tweet “Is it seriously snowing again?” Read in context, the question can\nbe reasonably interpreted as implying a statement of fact that it is snowing, and such a statement\nis undoubtedly verifiable. Accordingly, a general rule that all questions cannot be verified is\ninappropriate.\n\n This case, of course, does not present so obvious an example. We therefore proceed to\nanalyzing the context of Woods’s tweet.\n\n 3. Factors 3 and 4 - General and Broader Context of the Statement\n\n Consistent with this court’s previous approach, the third and fourth factor—general\ncontext and broader context—are analyzed together. See Bentkowski, 637 F.3d at 695 (“We\nevaluate both factors together for ease of discussion, and use general context to refer to the entire\nwork at issue, and broader context to refer to the publication in which the work appears.”).\n\n The general context is analyzed to determine “the larger objective and subjective context\nof the statement[,]” so that the alleged defamatory statements are not examined in isolation. Id.\n(quoting Scott, 496 N.E.2d at 707). Put another way, the court considers the “immediate\ncontext” in which the allegedly defamatory statement appears. Wampler, 752 N.E.2d at 980; see\nalso id. (“[T]he language surrounding the averred defamatory remarks may place the reasonable\nreader on notice that what is being read is the opinion of the writer.”).\n\n The district court concluded that “because the nature of a ‘tweet’ is fundamentally\ndifferent from a statement appearing in the context of a longer written work,” and because most\nTwitter users do not sit down and read a Twitter account in chronological order, there is no\n‘general context’ to examine. (Op. & Order, R. 21, PageID 209.) While we agree that a tweet\n“does not map neatly” into our prior analysis of general context, that does not end the inquiry.\nInstead, we consider—as both parties suggest—the allegedly defamatory statement in the context\nof Woods’s other tweets on March 12, 2016.\n\n A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted\nnews articles, his tweets were frequently accompanied by his own colorful commentary. For\n\n Nos. 18-3170/3220 Boulger v. Woods Page 13\n\n\nexample, Woods retweeted a USA Today article regarding protesters at Donald Trump’s\nChicago rally, along with his own caption: “Trump blames ‘thugs’ for cancelling Chicago\nrally . . . Rubio, Cruz, Kasich, Clinton blame #Trump. That says something.” (R. 9-2. PageID\n87.) Woods also retweeted an MSNBC article regarding the same protesters with the caption:\n“Bernie Sanders supporters shut down a Trump rally in Chicago \| Try this kind of assault in\nArizona… #dangerous.” (Id. at PageID 88.) Finally, Woods tweeted a picture of a man walking\non an American flag, and stated “Why #Trump is going win [sic]…” (Id. at PageID 87). These\ntweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that\nhe made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen\nin an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general\ncontext could lead a reasonable reader to believe the tweet at issue was not a statement of fact.\n\n Turning to the broader context, “the Ohio Supreme Court has recognized that ‘[d]ifferent\ntypes of writing have . . . widely varying social conventions which signal to the reader the\nlikelihood of a statement[] being either fact or opinion.’” Bentkowski, 637 F.3d at 695 (first and\nsecond alterations in original) (quoting Scott, 496 N.E.2d at 708). “Statements appearing in such\nlocations as forum and commentary newspaper sections, or other venues often associated with\n‘cajoling, invective, and hyperbole,’ are more likely opinion.” SPX Corp., 253 F. Supp. 2d at\n981 (quoting Scott, 496 N.E.2d at 708). Courts must examine the type of medium at issue and\nconsider how it would influence the reader’s viewpoint on whether a message is one of fact or\nopinion. See id.\n\n Twitter is a medium for users to express both opinions and disseminate news. For\nexample, a Twitter user who tweets his or her thoughts on various celebrities is an account that is\nmore analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding\nthat a column that appeared on the Forum page of the newspaper and titled “Commentary” gave\na reader the message that the column would convey the personal opinion of the writer, as\ndistinguished from a news story). But the Twitter account of an online news source, such as the\nNew York Times, is not meaningfully distinguishable from a hard copy news story.\nConsequently, it is clear that Twitter can be used to disseminate both factual accounts and\n\n Nos. 18-3170/3220 Boulger v. Woods Page 14\n\n\nassertions, as well as commentary and opinion. We therefore cannot say that this factor weighs\nin favor of either party.\n\n At base, allegedly defamatory statements will ultimately fall somewhere on the spectrum\n“between paradigmatic statements of fact (such as ‘Mr. Jones had ten drinks at his office party\nand sideswiped two vehicles on his way home’) and paradigmatic statements of opinion (such as\n‘Mr. Jones is a despicable politician’).” Wampler, 752 N.E.2d at 977 (citing Ollman v. Evans,\n750 F.2d 970, 978 (D.C. Cir. 1984)). Here, the factors do not definitively tip the scale in either\ndirection. Accordingly, we turn to Ohio’s innocent construction rule.\n\n 4. Innocent Construction Rule\n\n As both parties acknowledge, the tweet at issue must also be analyzed, in the alternative,\nunder Ohio’s innocent construction rule. See New Olde Vill. Jewelers, Inc. v. Outlet Comm.,\nInc., 202 F.3d 269 (6th Cir. 2000) (table opinion) (“Ohio follows the innocent construction rule\nin adjudging defamatory statements.”). Under the rule, “a statement reasonably susceptible to\nboth a defamatory and an innocent meaning must be construed, as a matter of law, to have an\ninnocent meaning.” Id. “It matters not that the defamatory meaning is the more obvious one.\nSo long as the statement may reasonably be read to have an innocent meaning, the innocent\nconstruction rule commands that the statement be deemed non-defamatory.” Id. (citations\nomitted).\n\n Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that\nWoods was asserting Boulger was the woman giving the Nazi salute—and an innocent\nmeaning—that Woods was merely asking his followers a question. Because Woods’s tweet\ncould reasonably be read to have an innocent meaning, under the innocent construction rule the\ntweet, as a matter of law, is not actionable.\n\n III. CONCLUSION\n\n For those reasons, we affirm the judgment of the district court.\n\n Nos. 18-3170/3220 Boulger v. Woods Page 15\n\n\n ______________________________________________________\n\n CONCURRING IN PART AND IN THE JUDGMENT\n ______________________________________________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371753/", "author_raw": "COLE, Chief Judge"}, {"author": "NALBANDIAN, Circuit Judge, concurring", "type": "concurrence", "text": "NALBANDIAN, Circuit Judge, concurring in part and concurring in judgment. I agree\nwith the majority that James Woods cannot be liable for defamation because his tweet is most\nreasonably understood as posing a genuine question. But I would not apply Ohio’s four-\npronged, totality-of-the-circumstances test to reach this conclusion. That test, which the Ohio\nSupreme Court adopted to distinguish between statements of fact and opinion, fits awkwardly\nhere. I write separately to explain why.\n\n Ohio adopted the totality-of-the-circumstances test to resolve a specific problem. Unlike\nits federal counterpart, Ohio’s constitution provides absolute immunity from liability for\nexpressions of opinion. See Vail v. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 185 (Ohio\n1995); Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990). Two cases helped establish that\nrule. First, in Scott v. News-Herald, 496 N.E.2d 699 (Ohio 1986), the Ohio Supreme Court\nunequivocally (and it turns out, incorrectly) held that the First Amendment shields opinion\nspeech from suit for defamation. Id. at 705. When the United States Supreme Court disagreed in\nMilkovich, Ohio reaffirmed the rule under its own constitution. See Vail, 649 N.E.2d at 185.\nThe Ohio constitution provides a “separate and independent guarantee of protection for opinion,”\nthe court held. Id. Because of that, courts presiding over defamation suits must determine\nwhether—as a matter of law—the offending speech falls within the protected boundary of\nopinion.\n\n To do that, the Ohio Supreme Court adopted the four-pronged, totality-of-the-\ncircumstances test the majority relies on today. See Scott, 496 N.E.2d at 706; Vail, 649 N.E.2d at\n185. That test is “to be used when determining whether a statement is fact or opinion.” Vail,\n649 N.E.2d at 185. Each prong provides a different parameter for making that assessment, and it\nis within this fact/opinion paradigm that courts have continued to use it. See, e.g., Wampler v.\nHiggins, 752 N.E.2d 962, 971 (Ohio 2001) (explaining that statements of opinion are protected if\nthey pass “Scott’s four-part test”); see also Bentkowski v. Scene Magazine, 637 F.3d 689, 693–94\n\n Nos. 18-3170/3220 Boulger v. Woods Page 16\n\n\n(6th Cir. 2011) (citing the four factors “[t]o determine whether a statement constitutes protected\nopinion or actionable fact”).\n\n The hitch, of course, is that our case is not about whether the tweet was a statement of\nfact or opinion—it’s about whether the tweet was a statement at all. The defendant argues that\nhe cannot be liable for defamation because he asked a genuine question. And a question, he\nsays, cannot be defamatory because the first element of the tort requires proving the defendant\nmade a false statement of fact. See Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852\n(Ohio 2012). So our task is to determine whether we ought to construe an ostensible question as\nimplying an actionable statement of fact. That’s a different problem than sorting out fact from\nopinion, and it is one that a mechanical application of the four-pronged test seems ill-suited for.\n\n The problem with applying the four-pronged test presents itself most starkly when trying\nto assess the second factor, verifiability. A statement is verifiable when it is “objectively capable\nof proof or disproof.” Wampler, 752 N.E.2d at 979. This prong helps courts distinguish between\nfacts and opinions because an opinion, lacking any plausible method of verification, cannot be\nproven or disproven. See Vail, 649 N.E.2d at 186. So an accusation of perjury, for example,\nlooks factual, because one can prove or disprove perjury. But an accusation of heartlessness\nlooks like an opinion, because it lacks any objective measure of truth. See Wampler, 752 N.E.2d\nat 979–80.\n\n How, though, could we apply that test in any meaningful way to a case like this, where\nthe speaker posed a question? Asking whether a question is verifiable is like asking how tall an\nelephant weighs. A question is an inquiry, not an assertion, so it’s neither verifiable nor\nunverifiable. To be sure, it might be answered, or it might imply some kind of assertion—both\nof which could be verifiable. But a genuine question lacks a truth value, so asking about\nverifiability only highlights how the Ohio Supreme Court designed the totality test to solve a\ndifferent problem than the one here.\n\n The majority suggests that we should stick with the four-pronged approach because some\nquestions might be verifiable if the tone, wording, or context imply that the writer asserted a fact.\nTake for example, a rhetorical question like, “Is it seriously snowing again?” That question, the\n\n Nos. 18-3170/3220 Boulger v. Woods Page 17\n\n\nmajority correctly explains, implies the assertion that it is snowing outside—an indisputably\nverifiable claim. But what the majority misses is that verifiability does nothing to solve the\nantecedent problem, which is determining whether the question actually implies an assertion of\nfact. And that’s the only issue in our case.\n\n To make this more concrete, consider a different question, similar in tone, wording, and\ncontext as the one offered by the majority: “Is the professor seriously droning on again?” Just\nlike the example used by the majority, this question reasonably implies an assertion—that the\nprofessor is “droning on.” But unlike the first example, the assertion is not verifiable because the\nphrase “droning on” is a “standardless statement[] not amenable to objective proof or disproof.”\nSee Wampler, 752 N.E.2d at 979–80. It is quintessential, unverifiable opinion. Yet the question\nimpliedly asserts a statement for all the same reasons as the majority’s question about snow.\nVerifiability, in other words, is irrelevant. It does nothing to help courts determine whether a\nquestion should be read as implying an assertion.\n\n Rather than try to awkwardly work around this issue, I would resolve this case in a much\nsimpler way by asking whether a reasonable reader would interpret the language as a genuine\nquestion. In McKimm v. Ohio Elections Commission, 729 N.E.2d 364 (Ohio 2000), the Ohio\nSupreme Court applied a reasonable-reader standard to determine whether a cartoon contained an\nimplied factual assertion. Instead of going through the four-pronged totality test, the court\nsimply considered whether a reasonable reader would believe that the cartoon implied an\nassertion of fact. Id. at 371–72.1 While not directly on all fours, the issue in McKimm resembles\nthe one here. Both cases circle around the same problem. Just as the McKimm court asked\nwhether a reasonable reader would interpret the cartoon as implying an assertion, I would resolve\nthis case by asking how a reasonable reader would interpret the offending tweet.\n\n\n 1McKimm referred to the totality-of-the-circumstances test in its opinion, but it did not apply the factors.\nRather, the court pointed to the four factors to explain how Ohio relies on objective standards for assessing the\nmeaning of defamatory language, which ultimately leads the court to adopt a reasonable-reader standard. McKimm,\n729 N.E.2d at 371–72. The majority contends that we can read McKimm as applying the four factors because a later\nopinion, in a parenthetical, suggests that’s what happened. But the McKimm court recites the actual factors only in a\nfootnote and does not employ them in its analysis of the cartoon. Id. at 371–72, n.2. Instead, the court expressly\nstates that it is applying “the reasonable-reader standard.” Id. at 371. The totality test was well established at the\ntime of McKimm, yet the court declined to rely on it.\n\n Nos. 18-3170/3220 Boulger v. Woods Page 18\n\n\n This approach also aligns with the only Ohio case addressing whether questions can be\ndefamatory, Schoedler v. Motometer Gauge & Equipment Corp., 15 N.E.2d 958 (Ohio 1938).\nThere, the court held that “[a] mere insinuation is as actionable as a positive assertion, if the\nmeaning is plain.” Id. at 961. Asking whether the “meaning is plain” looks a lot like asking how\na reasonable reader would interpret the language. If a reasonable reader could interpret the tweet\nas posing a genuine question, rather than implying an assertion of fact, the meaning is not\n“plain.”\n\n Applying this standard, I would affirm the district court because a reasonable reader\nwould interpret the tweet as posing a genuine question. An ordinary person sees a question mark\nand assumes the writer is asking a question. That does not make the punctuation definitive, but it\nsets a baseline. And beyond a bit of awkward syntax, there is no basis to conclude that a\nreasonable reader would find that the question mark simply obscured a defamatory accusation.\nThe question, for example, is not rhetorical. Woods posed the question and provided two\ndifferent pictures that the reader could look at to provide an answer, suggesting he meant it as a\ngenuine inquiry. Nor is this the kind of sentence that implies a secondary accusation in the form\nof a question, such as, “How long have you been stealing from the company?” That kind of\nquestion might be actionable, but it’s not at issue here. So I would affirm the district court’s\ndecision as a matter of law because a reasonable reader would not interpret the tweet as an\nimplied statement of fact.2\n\n Admittedly, the reasonable-reader standard overlaps significantly with the four-pronged\napproach adopted by the majority. How a reasonable reader might interpret a question surely\ntakes into account things like words and context. But the standard we use matters, even if in\npractice it often amounts to “a distinction without a difference.” Vail, 649 N.E.2d at 185. The\nfour-pronged totality test was designed and adopted to separate fact from opinion. Since that’s\nnot the issue here, I would not employ the test to resolve it.\n\n\n\n\n 2Even if it were more ambiguous, Ohio’s innocent-construction rule requires dismissing the claim if there\nis a reasonable, non-defamatory interpretation. See McKimm, 729 N.E.2d at 372.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371753/", "author_raw": "NALBANDIAN, Circuit Judge, concurring"}]}	COLE	WHITE	NALBANDIAN	1	{"COLE": ", Chief", "WHITE": ", Circuit", "NALBANDIAN": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594500/	Published	1	0	0	2,019	2	[ { "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...
4,594,898	Gualterio Lazaro SANTOS-SANTOS, Petitioner, v. William P. BARR, Attorney General, Respondent.	Gualterio Santos-Santos v. William P. Barr	2019-02-28	18-3515	U.S. Court of Appeals for the Sixth Circuit	{"judges": "Siler, Cook, Bush", "parties": "", "opinions": [{"author": "SILER, Circuit Judge", "type": "010combined", "text": "RECOMMENDED FOR FULL-TEXT PUBLICATION\n Pursuant to Sixth Circuit I.O.P. 32.1(b)\n File Name: 19a0031p.06\n\n UNITED STATES COURT OF APPEALS\n FOR THE SIXTH CIRCUIT\n\n\n\n GUALTERIO LAZARO SANTOS-SANTOS, ┐\n Petitioner, │\n │\n > No. 18-3515\n v. │\n │\n │\n WILLIAM P. BARR, Attorney General, │\n Respondent. │\n ┘\n\n On Petition for Review from the Board of Immigration Appeals;\n No. A 076 973 587.\n\n Decided and Filed: February 28, 2019\n\n Before: SILER, COOK, and BUSH, Circuit Judges.\n _________________\n\n COUNSEL\n\nON BRIEF: David W. Williams, Santa Ana, California, for Petitioner. Jeffery R. Leist,\nAnthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for\nRespondent.\n\n _________________\n\n OPINION\n _________________\n\n SILER, Circuit Judge. Gualterio Lazaro Santos-Santos petitions for review of a 2018\norder by the Board of Immigration Appeals (“Board”) that affirmed an immigration judge’s\n(“IJ”) decision denying the motion to reopen an in absentia removal order entered against\nSantos-Santos in 2000. Santos-Santos argues that the Notice to Appear (“NTA”)1 served on him\n\n\n 1Unless otherwise indicated, we use the term Notice to Appear and NTA referred to in 8 C.F.R.\n§§ 1003.13–15.\n\f No. 18-3515 Santos-Santos v. Barr Page 2\n\n\ndid not include the “date, time, and place” at which he was required to appear, and the IJ\ntherefore had no jurisdiction to enter a removal order. We DENY the petition.\n\n I.\n\n Santos-Santos, a citizen of Mexico, entered the United States without inspection near\nNogales, Arizona, in 1999. On March 6, 2000, he and his wife attempted to enter Canada from\nPort Huron, Michigan, but were denied admission by Canadian immigration authorities and\ndirected back to Port Huron. They were referred to secondary inspection and questioned as to\ntheir citizenship and status in the United States. Both admitted to being citizens of Mexico and\nentering the United States illegally. Santos-Santos said he illegally resided in Chicago, Illinois.\nThe Immigration and Naturalization Service (“INS”) personally served Santos-Santos with an\nNTA, charging him with inadmissibility under the Immigration and Nationality Act (“INA”)\n§ 212(a)(6)(A)(i),2 and ordering him to appear for a hearing in Detroit. The NTA listed his\naddress as “2444 South Troy, Chicago, Illinois, 60623,” and indicated that the date and time of\nthe hearing was “to be determined.” On May 19, a “Certificate of Service of Charging\nDocument with the Immigration Court” was issued to Santos-Santos at the same address,\ninforming him that the NTA had been sent to the Detroit immigration court. On May 24, the\nDetroit immigration court issued a Notice of Hearing ordering him to appear on October 20,\n2000; it was mailed to Santos-Santos at “2444 South Troy, Chicago, IL 60623.” Santos-Santos\nfailed to appear at his October 20, 2000, hearing and was ordered removed in absentia. The\norder was mailed to the same address. Santos-Santos claims he did not receive the in absentia\norder and only learned of it when he was involved with immigration proceedings in Los Angeles.\n\n In 2018, Santos-Santos, through counsel, filed a motion to reopen the in absentia order\nwith the immigration court. Santos-Santos argued that he never received notice of his hearing\ndate, and that “[t]he record is silent as to whether the Service even attempted to provide\nRespondent with a Notice of Hearing.” He further contended that, because the NTA did not\ninclude the date and time of his hearing, it was facially defective, rendering the proceedings void\nab initio. In an attached declaration, Santos-Santos said that while he received the NTA that\n\n 2Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 917–18 (Oct. 3, 1965) (codified as\namended at 8 U.S.C. § 1182(a)(6)(A)(i)).\n\f No. 18-3515 Santos-Santos v. Barr Page 3\n\n\nstated the date and time of the hearing were to be determined, he did not receive any other\nnotices.\n\n The Department of Homeland Security (“DHS”)3 filed a response in opposition to\nSantos-Santos’s motion. It noted that a Notice of Hearing was sent on May 24, 2000 instructing\nSantos-Santos to appear on October 20, 2000. DHS contended, inter alia, that the presumption\nof regularity established that the notice was properly delivered and Santos-Santos had not\nadequately rebutted that presumption. DHS further argued that Santos-Santos failed to cite any\nauthority supporting his argument that a lack of date and time of the hearing on the NTA meant\nthat the IJ did not properly exercise jurisdiction over his case.\n\n The IJ denied the motion to reopen for “the reasons stated in the opposition to the\nmotion.” Santos-Santos petitioned the Board, reiterating his claim that he never received notice\nof the hearing and the IJ erred in exercising jurisdiction. The Board dismissed the appeal on\nMay 2, 2018, finding that there was no evidence that either the NTA or the in absentia order was\nreturned to the immigration court. Further, the Board noted that Santos-Santos did not (1) argue\nthat the notice was addressed incorrectly, (2) claim that he was having mail delivery problems at\nthat address, (3) initiate proceedings to obtain relief, or (4) report what efforts he took to\ndetermine the status of his proceedings in the interim seventeen years before his motion to\nreopen. The Board also determined that an NTA need not include the time and date of a removal\nhearing, and that the statutory notice requirements may be satisfied when the information is\nprovided in a subsequent notice. Finally, the Board concluded that Santos-Santos had not shown\nthat sua sponte reopening of his proceedings was warranted. This petition for review followed.\n\n II.\n\n “A motion to reopen is a form of procedural relief that asks the Board to change its\ndecision in light of newly discovered evidence or a change in circumstances since the hearing.”\nDada v. Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted). We review the\nBoard’s denial of such a motion for abuse of discretion. Camaj v. Holder, 625 F.3d 988, 991\n\n 3On March 1, 2003, the INS ceased to exist and its functions were absorbed by DHS. See Homeland\nSecurity Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135 (Nov. 25, 2002).\n\f No. 18-3515 Santos-Santos v. Barr Page 4\n\n\n(6th Cir. 2010). The Board abuses its discretion only when its determination was made “without\na rational explanation, inexplicably departed from established policies, or rested on an\nimpermissible basis such as invidious discrimination against a particular race or group.” Id.\n(quoting Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006)). When the Board provides its\nown reasoning for affirming the denial of relief, we review only the Board’s decision, but to the\nextent that the Board adopts the reasoning of the IJ, we also review that decision. Thompson v.\nLynch, 788 F.3d 638, 642 (6th Cir. 2015) (citation omitted); Al-Ghorbani v. Holder, 585 F.3d\n980, 991 (6th Cir. 2009). Our review of an in absentia order is limited to: (1) the validity of the\nnotice provided to the alien, (2) the reasons for the alien’s not attending the proceedings, and (3)\nwhether the alien is removable. 8 U.S.C. § 1229a(b)(5)(D); Ba v. Holder, 561 F.3d 604, 606 (6th\nCir. 2009) (citation omitted).\n\n III.\n\n Relying on Pereira v Sessions, 138 S. Ct. 2105 (2018), Santos-Santos argues that the\nNTA was facially deficient due to the lack of a time and place of the hearing. This deficiency,\nSantos-Santos contends, renders the removal proceedings void ab initio because the IJ was never\nproperly vested with jurisdiction.\n\n Pereira is distinguishable: that case (1) dealt with whether the narrow “stop-time” rule\ncan be triggered by an NTA omitting the time and place of the initial hearing, and (2) addressed\ntwo statutory provisions distinct from the regulations at issue here. 138 S. Ct. at 2110, 2113–16;\nHernandez-Perez v. Whitaker, 911 F.3d 305, 314 (6th Cir. 2018). Contrary to Santos-Santos’s\nargument regarding jurisdiction, we have recently held that “jurisdiction vests with the\nimmigration court where . . . the mandatory information about the time of the hearing, see 8\nU.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA.” Hernandez-Perez,\n911 F.3d at 314–15. As the Notice of Hearing containing the requisite information was sent to\nSantos-Santos—notwithstanding Santos-Santos’s claim that he did not receive the notice,\naddressed below—the IJ properly exercised jurisdiction.\n\n Alternatively, we find that the INA contains language regarding “proceedings for\ndeciding the inadmissibility or deportability of an alien[,]” but does not address jurisdictional\n\f No. 18-3515 Santos-Santos v. Barr Page 5\n\n\nprerequisites. See 8 U.S.C. § 1229a. Rather, the INA allows the Attorney General to promulgate\nregulations to govern removal hearings, which include provisions for when and how jurisdiction\nvests with the IJ. 8 U.S.C. §§ 1103(g)(2), 1229a(a); 8 C.F.R. §§ 1003.13, 1003.14(a). These\nregulations provide that “[j]urisdiction vests, and proceedings before an Immigration Judge\ncommence, when a charging document is filed with the Immigration Court by the [INS].”\n8 C.F.R. § 1003.14. For proceedings like Santos-Santos’s, which were initiated after April 1,\n1997, the “charging document” includes “a Notice to Appear,4 a Notice of Referral to\nImmigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.”\n8 C.F.R. § 1003.13. The regulation does not cross-reference 8 U.S.C. § 1229(a)(1)’s definition\nof a written “notice to appear.” Instead, the regulations stipulate that an NTA, for purposes of\nvesting jurisdiction, must contain: (1) the nature of the proceedings against the alien; (2) the legal\nauthority under which the proceedings are conducted; (3) the acts or conduct alleged to be in\nviolation of law; (4) the charges against the alien and the statutory provisions alleged to have\nbeen violated; (5) notice that the alien may be represented, at no cost to the government, by\ncounsel or other authorized representative; (6) the address of the Immigration Court where the\nINS will file the show cause order and NTA; (7) a statement that the alien must advise the\nImmigration Court of his or her current address and telephone number, and a statement that\nfailure to do so may result in an in absentia hearing under 8 C.F.R. § 1003.26. 8 C.F.R.\n§ 1003.15(b). An NTA for removal proceedings must also include the alien’s name and any\nknown aliases, the alien’s address, the alien’s registration number, the alien’s alleged nationality\nand citizenship, and the language that the alien understands. 8 C.F.R. § 1003.15(c). Failure to\ninclude this information, however, “shall not be construed as affording the alien any substantive\nor procedural rights.” 8 C.F.R. § 1003.15(c). No references to the time and place of the hearing\n\n\n 4It bears mentioning that the “Notice to Appear” in 8 C.F.R. §§ 1003.13–14 is different from the “Notice to\nAppear” in 8 U.S.C. § 1229(a)(1). Unlike a Notice to appear in 8 U.S.C. § 1229(a)(G)(i), which requires that the\n“time and place at which the proceedings will be held” be included in the notice, the Notice to Appear under 8\nC.F.R. § 1003.15 does not have this requirement. Although the contents of the two documents might be different,\nthis does not mean that the regulation contradicts the statute. Nothing in 8 U.S.C. § 1229 or elsewhere in the code\nrequires the Notice to Appear specified in § 1229(a)(1) to commence immigration proceedings and vest jurisdiction\nwith the IJ. Even though one might question the agency’s wisdom in referring to the document in 8 C.F.R.\n§§ 1003.13–15 as a Notice to Appear in an effort to avoid conflating the two types of Notices to Appear, its\nregulations are consistent with the statute. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S.\n519, 543 (1978).\n\f No. 18-3515 Santos-Santos v. Barr Page 6\n\n\nare required to vest jurisdiction under the regulation. The NTA served on Santos-Santos and\nfiled with the immigration court contained all of the requisite information and satisfies the\nregulation’s definition of a “notice to appear.” Karingithi v. Whitaker, 913 F.3d 1158, 1159-62\n(9th Cir. 2019) (“The regulatory definition, not the one set forth in § 1229(a), governs the\nImmigration Court’s jurisdiction. A notice to appear need not include time and date information\nto satisfy this standard. [The petitioner’s] notice to appear met the regulatory requirements and\ntherefore vested jurisdiction in the IJ.”).\n\n Considered under either argument, Santos-Santos’s position regarding jurisdiction is thus\nunpersuasive.\n\n IV.\n\n In the alternative, the United States argues that Santos-Santos has failed to meet his\nburden of proving that he did not receive proper notice of his October 20, 2000 hearing,\nrendering the denial of the motion to reopen proper.\n\n Santos-Santos bears the burden of demonstrating that he did not receive proper notice of\nthe hearing. 8 U.S.C. § 1229a(b)(5)(C); Scorteanu v. INS, 339 F.3d 407, 411 (6th Cir. 2003)\n(“[I]n seeking recision of an in absentia deportation order, the burden rests on the movant to\ndemonstrate . . . improper notice . . . .”). We review de novo the adequacy of notice, but “accord\na great deal of deference to the Attorney General’s and the [Board]’s permissible constructions\nof the statute which they administer.” Soumah v. Holder, 403 F. App’x 999, 1001 (6th Cir.\n2010) (citations omitted); Mota-Roman v. Holder, 331 F. App’x 379, 382 (6th Cir. 2009)\n(citations omitted).\n\n As an initial matter, Santos-Santos has forfeited any challenge to the Board’s\ndetermination that he failed to overcome the presumption of delivery of the notice of his hearing.\nRamani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004) (holding that “[i]t is proper for an\nappellate court to consider waived all issues not raised in an appellant’s briefs”). The only\nmention of the notice in his briefing are: (1) a statement that he “did not receive notice of\nhearing[,]”; (2) a heading under “Issues Presented” noting “Whether Appellant Received Notice\nof Hearing” without further development; and (3) the unsupported claim that “the file provided\n\f No. 18-3515 Santos-Santos v. Barr Page 7\n\n\nby USCIS clearly establishes that the government took no steps to notify Respondent of his\nhearing.”\n\n Even if we proceed to consider the merits, we still conclude that the Board did not abuse\nits discretion in determining Santos-Santos failed to meet his burden to prove he did not receive\nproper notice. As explained below, notice may be given pursuant to either paragraph (1) or\nparagraph (2) of section 1229(a). Although Santos-Santos may have met his burden in showing\nthat he did not receive a notice in accordance with paragraph (1), he did not meet his burden to\nshow lack of notice in accordance with paragraph (2).\n\n Under the immigration statute, an alien must be provided written notice of his or her\nremoval proceeding. See 8 U.S.C. § 1229(a)(1). The statute also authorizes IJs to issue orders of\nremoval in absentia if the alien fails to appear at the removal proceedings. Id. § 1229a(b)(5)(A).\nAn order of removal in absentia, however, can be issued only when “[a]ny alien, who after\nwritten notice required under paragraph (1) or (2) of section 1229(a) of this title has been\nprovided to the alien or the alien’s counsel of record, does not attend a proceeding under this\nsection . . . if [DHS] establishes by clear, unequivocal, and convincing evidence that the notice\nwas so provided and that the alien is removable.” Id. (emphasis added). The statute also allows\naliens to challenge their orders of removal in absentia. Id. § 1229a(b)(5)(C)(ii). Orders of\nremoval in absentia may be rescinded only “upon a motion to reopen filed at any time if the\nalien demonstrates that the alien did not receive notice in accordance with paragraph (1) or\n(2) of section 1229(a) of this title.” Id. (emphasis added). Thus, for proceedings involving an in\nabsentia removal order, a prerequisite for a properly issued order is that there be a sufficient\nshowing that the alien received notice under either paragraph (1) or paragraph (2) of section\n1229(a). DHS bears the burden of proving by clear and convincing evidence that notice was\ngiven in order to obtain an in absentia removal order. But once the order has been issued, the\nalien has the burden to prove the absence of notice in order to set that order aside.\n\n As noted in § 1229(a), there are two different types of written notices. The written notice\nin paragraph (1) of section 1229(a) (i.e., the “Notice to Appear”) mandates that the notice\n“contain certain required elements, including the nature of the proceedings, the conduct alleged\nto be in violation of the law, and the date, time, and location of the proceedings.” Ba, 561 F.3d\n\f No. 18-3515 Santos-Santos v. Barr Page 8\n\n\nat 606 (citation and internal quotation marks omitted). A written notice to the alien or his\ncounsel in accordance with paragraph (2) of section 1229(a), though similar to the notice\ndescribed in paragraph (1), must specify “the new time or place of the proceedings, and the\nconsequences under section 1229a(b)(5) of this title of failing, except under exceptional\ncircumstances, to attend such proceedings.” 8 U.S.C. § 1229(a)(2)(A)(i)–(ii).\n\n Santos-Santos, an alien who seeks to rescind the in absentia removal order, bears the\nburden to prove that there was no notice under either paragraph (1) or paragraph (2) of section\n1229(a). Santos-Santos met his burden to show that he did not receive notice in accordance with\nparagraph (1). Santos-Santos’s notice to appear did not satisfy the requirements of paragraph\n(1) because it did not include the date and time of the removal proceeding. But Santos-Santos\nmust also show that he did not receive notice in accordance with paragraph (2) of section\n1229(a). 8 U.S.C. § 1229a(b)(5)(C)(ii). Because Santos-Santos’s Notice of Hearing in Removal\nProceedings meets the requirements of paragraph (2), Santos-Santos must rebut the presumption\nby showing that he did not actually receive this notice, as the notice was purportedly mailed to\nhis listed address. See Scorteanu, 339 F.3d at 411. Santos-Santos fails to overcome this\npresumption.\n\n We have previously considered the following non-exhaustive list of potential evidence:\n\n (1) the respondent’s affidavit; (2) affidavits from family members or other\n individuals who are knowledgeable about the facts relevant to whether notice was\n received; (3) the respondent’s actions upon learning of the in absentia order, and\n whether due diligence was exercised in seeking to redress the situation; (4) any\n prior affirmative application for relief, indicating that the respondent had an\n incentive to appear; (5) any prior application for relief filed with the Immigration\n Court or any prima facie evidence in the record or the respondent’s motion of\n statutory eligibility for relief, indicating that the respondent had an incentive to\n appear; (6) the respondent’s previous attendance at Immigration Court hearings, if\n applicable; and (7) any other circumstances or evidence indicating possible\n nonreceipt of notice.\n\nThompson, 788 F.3d at 643 (citation omitted). Santos-Santos’s motion to reopen and affidavit\nstated that he did not receive the NTA, but provided no other evidence supporting his claim of\nnonreceipt. Santos-Santos presented no evidence that he was not removable as charged or that\nhe was eligible for or had pending applications for relief. Further, he has presented no evidence\n\f No. 18-3515 Santos-Santos v. Barr Page 9\n\n\nthat he had difficulties receiving mail at that address of record or that any of the notices and\norder were returned as undeliverable. See Ly v. Holder, 327 F. App’x 616, 622–23 (6th Cir.\n2009) (finding Petitioner failed to rebut presumption that he received notice to appear when he\ndid not present evidence that mail was returned as undeliverable to the listed address). We\ntherefore conclude that Santos-Santos failed to rebut the presumption of delivery and affirm the\ndenial of the motion to reopen.\n\n PETITION FOR REVIEW DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372151/", "author_raw": "SILER, Circuit Judge"}]}	SILER	COOK	BUSH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594898/	Published	1	0	0	2,019	2	[ { "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...
4,586,673		Mack Sims v. William Hyatte	2019-02-01	18-1573	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, HAMILTON, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "William Joseph Bauer", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1573\n\nMACK A. SIMS,\n Petitioner-Appellant,\n\n v.\n\n\nWILLIAM HYATTE,\n Respondent-Appellee.\n\n\n Appeal from the United States District Court for the\n Northern District of Indiana, South Bend Division.\n No. 3:14-cv-01936-RLM — Robert L. Miller, Jr., Judge.\n\n\n\n ARGUED NOVEMBER 27, 2018 — DECIDED FEBRUARY 1, 2019\n\n\n Before BAUER, HAMILTON, and BARRETT, Circuit Judges.\n BAUER, Circuit Judge. Petitioner-appellant Mack Sims seeks\na writ of habeas corpus, arguing his due process rights were\nviolated because the state withheld evidence favorable to his\ncase. In November of 1993, security guard Shane Carey was\nshot in Elkhart, Indiana. Approximately fifteen to twenty\nminutes after the shooting, the Elkhart police found Mack Sims\nnear a walking path around twenty feet from where the\nshooting occurred. After Carey identified him at trial as the\n\n2 No. 18-1573\n\nshooter, Sims was convicted of attempted murder and sen-\ntenced to a term of imprisonment of 35 years. In 2012, during\na post-conviction evidentiary hearing, Sims learned the\nprosecution withheld evidence that Carey, the only witness\nwho could identify the shooter, was hypnotized before trial to\nenhance his recollection of the shooting. After the Indiana\ncourts denied habeas relief, Sims filed a petition for a writ of\nhabeas corpus in federal court. The district court held that the\nIndiana court did not unreasonably apply established federal\nlaw and denied the petition. Because we disagree, we reverse.\n I. BACKGROUND\n A. The Night of the Shooting\n In September of 1993, Shane Carey began working as a\nsecurity guard at Sister Virginia’s Adult Basic Education\n(“Sister Virginia’s”) in Elkhart, Indiana. On November 2, 1993,\nthe school was in session when Carey arrived for his shift at\n6:00 p.m. Shortly after arriving he traversed the premises and\nreturned to his car to read a book after he was satisfied the\nschool was safe. Sister Virginia’s parking lot, where his car sat,\nhad some lighting but was not well lit.\n Around 7:00 p.m., Carey noticed three black men walk\nbehind a nearby building and emerge in the parking lot a few\nminutes later. The men walked toward Carey’s vehicle; two\nwalked to the passenger side and one to the driver’s side.\nWhen about two feet from the car the individual walking\ntowards the driver’s side door grabbed a gun from his coat\nand fired it through the window. Carey did not see the gun,\nbut soon realized he had been shot in the face. He made his\nway into Sister Virginia’s and emergency help was summoned.\nCarey testified at trial that the shooting took place “shortly\nafter 7:00 [p.m.].”\n\nNo. 18-1573 3\n\n Officers Tom Lerner and William Wargo arrived on the\nscene at 7:27 p.m. Lerner instructed Wargo to secure Carey’s\nvehicle and the area around it while he entered Sister Virginia’s\nto speak with Carey. Carey was having difficulty speaking but\nwas able to provide Lerner with a description of the assailant\nas a black male with short hair or a shaved head and a large\nbuild, possibly in his late twenties, wearing a three-quarter-\nlength coat with dark pants and dark combat boots.\n At approximately 7:30 p.m. while standing near Carey’s car,\nOfficer Wargo heard a noise near the train tracks about twenty-\nfive feet southeast of Carey’s vehicle. Wargo then observed a\nblack male crouching behind a dumpster wearing a black\nthree-quarter length jacket and hat looking onto the crime\nscene. This individual was near a walking path that ran next to\nthe train tracks and was often used by locals. The officers\nordered the subject out of the bushes and he came forward\nwithout protest. They identified this individual as Mack Sims\nand patted him down for weapons; none were found.\n Although there were civilian witnesses in the area, none\nwere able to give an identifying description of the shooter.\nPolice officers searched the surrounding area extensively but\nnever found a gun, nor did they recover a shell casing from the\narea or any other physical evidence.\n B. The Trial of Mack Sims\n On November 4, 1993, Sims was charged with attempted\nmurder. His trial began on August 23, 1994. The prosecution\ncalled ten witnesses: six were law enforcement officers that\ndescribed their role in the investigation and three were\nindividuals present at Sister Virginia’s the night of the shooting\nthat were unable to identify the shooter. Thus, the state relied\n\n4 No. 18-1573\n\nalmost exclusively on the only witness who could possibly\nidentify the shooter, Carey, to establish their case against Sims.\n Carey testified that he got a good look at the assailant. He\ndescribed in court what he saw the night of the shooting in\nmore detail than was in the incident report:\n Q: Now, as he approached the car, did you get a look at\n him?\n A: Yeah. I was looking him square in the eyes.\n Q: Describe what you saw.\n A: What I saw was a man with—it was a somewhat full\n face, well—I’d say a well-rounded face. What I mainly\n noticed was the eyes. And I noticed underneath the left\n eye the skin tone, I’d say, or shades were slightly\n different than the other. One side just underneath the\n eye was a little bit lighter and the other side was very\n dark. And I noticed—I did notice the eyes. It was a very\n cold stare.\n Q: Did you see him reach for anything?\n A: I saw him make a hand movement, and that’s about it.\n I saw a flash but nothing more.\n Q: Okay. Do you recognize in this courtroom today the\n person you saw and who shot you on November 2nd,\n 1993?\n A: Yes, I do.\n Q: Where is he?\n A: He’s sitting right there in front of me (indicating).\n Mr. Wicks [ the prosecutor]:\n\nNo. 18-1573 5\n\n I would ask the record reflect the witness has identified\n the defendant, Mack Sims, Your Honor.\n The Court:\n Let the record reflect the witness has identified the\n defendant.\nCarey continued to describe the assailant,\n I noticed the shoes looked somewhat like boots, I would\n say, and dark color pants. What I mainly noticed was\n the coat. The coat was slightly long and dark in color,\n either a dark black or maybe bluish or—like a Navy or\n midnight blue or something to that extent. One of the\n things I did notice on the coat was a patch on the\n arm … It was a small patch. I didn’t really get a good\n look at the shape, but it couldn’t have been more than\n a couple inches in diameter.\nCarey then observed the coat Sims was wearing when he was\narrested and identified a patch on it as being the one he\nwitnessed when the assailant approached his vehicle. Carey\nalso testified that detective John Faigh came to speak with him\nat the hospital the day after his surgery. He recalled being\npresented with six photos. Carey chose a photograph from this\nlineup noting that the picture “looked like” the assailant. Carey\nthen identified in court the photograph of Sims that he picked\nout of that lineup.\n During cross-examination defense counsel pointed out that\nCarey’s identification of the assailant in the photographic\nlineup was not unequivocal. Carey indicated that he had\nunequivocally identified the assailant in a photographic lineup\nthat appeared nowhere in the record:\n\n6 No. 18-1573\n\n A: The identification that I was provided with in the\n emergency room was [unequivocal]. They did show me\n something in the emergency room. It was difficult to\n see, but what I did see, that was him.\n Q: Oh, there was another picture that was shown to you?\n A: There was another picture in the emergency room.\n Q: There is nothing in the reports about that: is that\n correct?\n A: Not that I know of.\n Carey was then asked about a situation shortly before trial\nin which he was unable to identify the assailant in a photo-\ngraphic lineup:\n Q: And you also recall, maybe even last week, looking at\n a photo lineup when Mr. Wicks was around?\n A: Uh-huh.\n Q: And you again said that it looks like but you couldn’t\n be sure because of some facial hair?\n A: Yeah, the facial hair did throw me off, but I will not\n forget the eyes. The eyes are the one thing that I do\n remember.\n Q: Now you indicated—yeah, you have talked about the\n eyes, but you didn’t say anything in your statement\n about the eyes.\n A: That’s the one thing that I do remember.\n Q: But you didn’t tell the police about it at the time?\n A: No. But like I said, I was also very groggy.\n\nNo. 18-1573 7\n\nSims later testified and his mug shot showed that he had facial\nhair, a mustache and goatee, at the time he was arrested.\n Additionally, Carey testified that the photograph of Sims in\nthe emergency room that was not part of the record was shown\nto him by itself and not as part of a photographic lineup:\n Q: And you indicated now that there was another picture\n that you were shown, a single picture you were shown,\n in the emergency room?\n A: I was shown that in the emergency room. If I recall,\n my—my parents were in the emergency room, but I’m\n not sure if they were in there when they showed me\n this picture. They did show me a picture in the emer-\n gency room.\n Carey stated the lighting in the parking lot was “some-\nwhat—subdued would be the word I’d use, somewhat faint.”\nCarey also testified that he was not wearing his glasses the\nnight of the shooting, although his vision was not so poor that\nhe was required to wear them to drive.\n Defense counsel impeached Carey regarding inconsisten-\ncies in his description of the assailant. The defense pointed out\nthat the description of the assailant included that he had short\nhair or was bald. However, Sims later testified that his hair was\nnot short or shaved but was curly and longer at the time he\nwas arrested. The defense pressed Carey on his description of\nthe shoes worn by the assailant. Carey had described the\nassailant as wearing black combat boots; Sims later testified\nthat he was wearing black and white Nike sneakers. The\ndefense also noted that Carey had indicated the assailant was\nwearing black pants, but Sims testified that he was wearing\nblue jeans. The defense asked Carey if there was a hood on the\ncoat, to which Carey responded that his memory had im-\n\n8 No. 18-1573\n\nproved over time on the matter: “I recall—I did not recall it at\nthe time. Later on I did recall a hood, and it was part of the\nway up.” During direct examination Sims testified that he was\nwearing an Orlando Magic baseball cap when he was arrested.\nFurthermore, the defense pointed out that the distinct patch\ndetailed in direct examination and used to identify Sims’s coat\nwas never mentioned in his description of the assailant.\n After Carey stepped down from the witness stand the\ndefense moved for a mistrial based upon the testimony elicited\nfrom Carey:\n [Carey] testified that while he was in the emer-\n gency room immediately after being shot that he\n was shown a single photograph of the defen-\n dant. The defendant would indicate to the Court\n that the type of identification process, being a\n single photograph, is prejudicial and suggestive\n and clearly taints any subsequent identification\n that may have been made in this\n matter … Based on that single photographic\n identification, I believe that the in-court identifi-\n cation was tainted by the suggestive nature of\n the initial identification.\nThe court denied the motion stating there was no evidence\nfrom the state or defendant that indicated a single photograph\nwas ever shown to the victim. The court stated the only way it\ncould be assumed that a single photograph lineup occurred\nwas by accepting everything Carey said was true, which was\nnot required. The court also found the in-court identification\n\nNo. 18-1573 9\n\nsufficient to overcome any undue suggestiveness of a single\nphotograph lineup.1\n Closing argument took place on August 24, 1994. The\nprosecution leaned heavily, almost exclusively, on Carey’s\ntestimony: “He has identified as the shooter this defendant,\nMack Sims, and he has never hesitated a bit in that identifica-\ntion. And that, of course, is what this case is about is the\nvalidity of that identification.” The jury found Sims guilty of\nattempted murder.\n C. The Sentencing and Appeal Process\n Sims was sentenced to 35 years’ imprisonment on Decem-\nber 1, 1994. The defense filed a motion for a new trial on\nDecember 29, 1994, arguing “the Court erred when it allowed\nthe identification evidence of Shane Carey in that it was tainted\n\n\n1\n It is worth noting at this point that gleaning from the record precisely\nwhen photographic lineups were conducted and their result is difficult. It\nappears the first occurred on the night of the shooting. Carey could not\nrecall this lineup taking place, had glass in his eyes (from the shooting\nbecause the shot came through the window), and no record of the lineup\nappeared in the police report, but Faigh testified that Carey identified the\npicture of Sims as the shooter. The second lineup occurred a day or two\nlater in the hospital and Carey merely indicated that the picture of Sims\n“looked like” the shooter. Carey also testified he was shown a single picture\nof Sims in the hospital. Although he was unable to recall precisely when\nthis occurred, he remembered his parents were present in the room. The\nthird lineup took place two weeks later and its result is not indicated in the\nrecord. Carey simply testified, “about two weeks later ... I talked to John\nFaigh—and he put me under quite a bit of stress when he asked me. He was\nasking me a number of questions that irritated me to no end to say the least.\nAnd I don’t know what he was trying to accomplish, but I was not happy.”\nA fourth lineup occurred with Wicks and resulted in a positive identifica-\ntion. Finally, a fifth lineup occurred in which Carey admitted he was\nthrown off by a picture of Sims that included facial hair.\n\n10 No. 18-1573\n\nby an impermissibly suggestive pre-trial viewing of a picture\nof the Defendant by Mr. Carey.” On July 15, 1995, the trial\ncourt dismissed the motion. Its response in full was: “The court\nhas examined this alleged error and having further examined\nits notes, now determines that it believes that no error was\ncommitted or that no impermissible suggestive identification\ntook place and that there is no merit to specification no. 1.”\n Sims did not fare much better on appeal. In an unpublished\nopinion, the Court of Appeals of Indiana opined that the\n“[e]xtra-judicial exhibition of a single photograph to a victim\nis an unduly suggestive identification procedure.” However,\nthe court noted the strength of Carey’s in-court testimony, in\nparticular that he looked Sims directly in the eye, noticed the\nlight-colored patch of skin under one eye, and Sims was only\ntwo or three feet away from Carey when he was shot. These\nfactors considered with the identification of Sims in photo-\ngraphic lineups convinced the court that the totality of the\ncircumstanced provided a sufficient basis, independent of the\nimproper photograph display, to support the admissibility of\nthe in-court identification of Sims.\n D. Post-Conviction Proceedings\n On February 8, 2012, in what was supposed to be an\nevidentiary hearing regarding a post-conviction relief petition\nfiled by Sims, the information that formed the basis of this case\nwas revealed. Graham Polando, a deputy prosecuting attorney\nfor the state of Indiana stated in open court the following: “I\nconsulted with Judge [Charles] Wicks who was the trial deputy\n[for Sim’s attempted murder trial in 1994], he asked me not to\ndisclose what he told me, but he indicated that the victim in\nthis case identified the … defendant, Mr. Sims, only after\nhypnotism.” This fact was never disclosed to defense counsel.\n\nNo. 18-1573 11\n\n On June 8, 2012, the Elkhart County Superior Court held an\nevidentiary hearing to address the hypnotism issue. Carey\ntestified that when viewing the lineup administered by\ndetective Faigh the day after the shooting, he merely stated the\nindividual “looked like” the assailant because “at the time [he]\nwas not extremely sure.” Carey also testified that the prosecut-\ning attorney in the case, Wicks, brought up the idea of hypno-\nsis saying “they could put [him] under hypnosis … but\n[indicated] there might be a problem in court in the future.”\nCarey responded that he did not have a problem with any\nfuture legal issues regarding the hypnosis so long as he was\nable to recall the person who shot him. Carey also testified that\nWicks set up the appointment and the state paid for it.\n Carey testified that he attended one session of hypnosis in\nwhich he “fell asleep … [and] literally entered a dream state in\nwhich I … recall[ed] the shooting itself. And during that time\nI had another opportunity to uh, see the person that shot me.”\nSims’s attorney then asked Carey:\n Q: Okay. So it was really only after this hypnosis that you\n were sure of the person was that shot you?\n A: Yeah.\nCarey indicated the session took place months before trial\n“when [Wicks] and I first started talking about who the\nperpetrator was.” After the session, Wicks created another\nphotographic lineup and this time Carey was able to identify\nSims due to the skin coloration on the face of the assailant that\nCarey noticed while reliving the night of the shooting under\nhypnosis. In fact, Carey stated that only “after the hypnotism\nthe birthmark really stood out.”\n The court reconvened the hearing on June 12 and Charles\nWicks, the prosecutor in Sims’s case and now a Judge for the\n\n12 No. 18-1573\n\nElkhart County Superior Court, testified. He stated that he\ncould not recall whether Carey disclosed he had been hypno-\ntized. A few breaths later Wicks defended not disclosing the\nhypnotism asserting it was not exculpatory in nature because\nCarey never wavered in his identification of Sims as the\nassailant. Wicks then testified that he gave Carey the informa-\ntion of the individual that performed the hypnotism because\neven though Carey had given a “fairly complete summary of\nwhat happened to him that evening, he said he would like to\nbe able to recollect the evening better.” The hypnotist was\nGeorge Atkins, a licensed physician’s assistant who Wicks\nknew from Kiwanis Club and had used in the past to help\npersonal injury clients recall traumatic events.\n Later in the hearing the court questioned deputy prosecut-\ning attorney Polando regarding the statement Wicks made to\nhim, asking whether the following quotation was correct: “‘I\nnever told Jim Stevens’ (meaning Deputy Public Defender\nStevens), ‘that the victim was … only able to identify Mr. Sims\nafter he was hypnotized.” Polando confirmed this was correct,\nand added that Wicks also told him not to tell anyone. When\nWicks retook the stand he stated he did not recall saying this\nto Polando.\n On September 6, 2012, the Elkhart Superior Court entered\nan order denying Sims’s Second Amended Petition for Post-\nConviction Relief. In its order, the court identified the main\nissue as “whether Carey was able to sufficiently identify\nPetitioner before hypnosis.” The court then discounted Wicks’\nstatement to Polando that Carey was only able to identify Sims\nafter hypnosis because Wicks “had not had time to consider the\ncase before speaking with DPA Polando.” The court also gave\nweight to the fact that other evidence contradicted this state-\nment. The court noted that Officer Lerner testified that Carey\n\nNo. 18-1573 13\n\ncould identify the assailant from the beginning and that his\ndescription of the assailant matched Sims. The court then cited\nwith approval the photographic lineup presented to Carey the\nday after the shooting in which Carey noted the picture of Sims\n“looked like” the assailant. The court concluded “[f]rom the\nrecord of the case, Carey was able to identify the Petitioner\nwell before hypnosis.”\n After outlining the test established by Brady v. Maryland,\n373 U.S. 83, 87 (1963), the court noted the evidence was\nfavorable to the defense, at a minimum as impeaching evi-\ndence, that would have been beneficial to the defense to\ndiscredit the state’s only eye-witness. The court then immedi-\nately concluded that the evidence was not material because\nthere was not a reasonable probability that disclosure would\nhave changed the result of the proceeding. It was persuaded\nbecause the defense vigorously cross-examined Carey at trial\nand the Indiana Rules of Evidence only rendered inadmissible\ntestimony of a witness as to matters recalled only through\nhypnosis. Thus, the court reasoned, Carey’s testimony would\nnot have been found inadmissible because Carey could\nsufficiently identify his assailant prior to hypnosis. The court\nalso noted that Carey never identified anyone other than Sims\nfrom a photographic lineup and that his description of the\nassailant did not substantially change after hypnosis.\n On July 15, 2013, the Court of Appeals of Indiana affirmed\nthis decision. The court noted that under Indiana law, evidence\nderived from a hypnotically entranced witness should be\nexcluded because the evidence is affected by confabulation, a\nprocess that causes the subject to fill in memory gaps with\nfantasy. The court also noted that because the subject is\nconfident that the recalled memories are based in fact and\naccurate, the witness will likely be impervious to cross-exami-\n\n14 No. 18-1573\n\nnation. However, the court held that the state had carried its\nburden of demonstrating by clear and convincing evidence the\nwitness’s in-court identification had a factual basis independ-\nent of the hypnosis and therefore would have been admissible\nunder the Indiana Rules of Evidence. The court noted that\nCarey testified at trial that he was able to look directly into the\nface and eyes of his assailant and that Carey’s description of\nSims the night of the shooting matched Sims. The court also\nnoted Carey identified Sims three times in photographic\nlineups before he underwent hypnosis. The court found that\nCarey’s identification had a sufficient pre-hypnosis foundation\nto have been admissible because Carey “was subjected to\nvigorous cross-examination regarding his numerous identifica-\ntions of Sims.” The court also gave weight to Carey’s testimony\nat the evidentiary hearing that the hypnosis did not help him\nidentify Sims, but rather made him “extremely sure” of his\nidentification.\n After the Indiana Supreme Court denied relief, Sims filed\na petition for a writ of habeas corpus in federal court. The\ndistrict court found that the Indiana Court of Appeals’ decision\nwas neither contrary to, nor involved an unreasonable applica-\ntion of, clearly established federal law. The court also found\nthat the state court’s decision was not based on an unreason-\nable determination of the facts. Accordingly, the district court\ndenied habeas relief, but certified its appealability pursuant to\n28 U.S.C. § 2253(c), finding that reasonable jurists could differ\non whether the post-conviction relief court erred in finding\nrelief was not warranted.\n II. ANALYSIS\n We review de novo a district court’s denial of a petition for\nwrit of habeas corpus. Carter v. Thompson, 690 F.3d 837, 843 (7th\n\nNo. 18-1573 15\n\nCir. 2012). This review is governed by the Anti-terrorism and\nEffective Death Penalty Act of 1996 (“AEDPA”). The statute\nsignificantly limits the scope of our review; “habeas relief\ncannot be granted for persons in custody pursuant to a\njudgment of a state court unless the adjudication of the claim:\n‘(1) resulted in a decision that was contrary to, or involved an\nunreasonable application of, clearly established federal law, as\ndetermined by the Supreme Court of the United States; or\n(2) resulted in a decision that was based on an unreasonable\ndetermination of the facts in light of the evidence presented in\nthe State court proceeding.’” Czech v. Melvin, 904 F.3d 570, 573\n(7th Cir. 2018) (quoting 28 U.S.C. § 2254(d)). A federal court\nmay issue a writ of habeas corpus under the “contrary to”\nclauses of AEDPA if the state court applied a rule different\nfrom law set forth in Supreme Court precedent, or if it decides\na materially indistinguishable case differently than the Su-\npreme Court. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing\nWilliams v. Taylor, 529 U.S. 362, 405–406 (2000) (O’Connor, J.,\nconcurring). A state court decision is an “unreasonable\napplication” if it correctly identifies the governing legal rule,\nbut applies it unreasonably. Williams v. Taylor, 529 U.S. 362,\n408–409 (2000).\n On appeal, Sims’s principal argument is that the state\nwithholding the evidence that Carey was hypnotized prior to\ntrial violated Sims’s constitutional rights as established in\nBrady. Under Brady, a defendant’s due process rights are\nviolated if the state withholds favorable evidence from the\ndefense that is material to the defendant’s guilt or punishment.\nBrady, 373 U.S. at 87. The state court found, and the parties do\nnot dispute, the hypnosis evidence would have been favorable\nto the defendant and it was not disclosed by the state. We\nagree. Therefore, the only issue before us is whether the\n\n16 No. 18-1573\n\nIndiana court’s decision, that suppression of evidence that the\nstate’s star witness was hypnotized was not material under\nBrady, is contrary to or an unreasonable application of clearly\nestablished federal law.2 Because the Indiana court’s decision\nwas both, we reverse the district court and grant the writ.\n A. “Clearly Established” Federal Law\n The Supreme Court has clearly established that strong and\nnon-cumulative impeachment evidence related to an important\ntrial witness is material under Brady. A new trial is not\n“automatically require[d] … whenever a combing of the\nprosecutors’ files after the trial has disclosed evidence possibly\nuseful to the defense but not likely to have changed the verdict.\nA finding of materiality of the evidence is required under\nBrady.” Giglio v. United States, 405 U.S. 150, 154 (1972) (internal\ncitations and quotations omitted). Evidence is material under\nBrady if “there is a reasonable probability that, had the evi-\ndence been disclosed, the result of the proceeding would have\nbeen different.” Kyles v. Whitley, 514 U.S. 419, 433. A “reason-\nable probability” exists if the suppression of the favorable\nevidence “undermines confidence in the outcome of the trial.”\nId. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).\n Nearly half a century ago, the Supreme Court held “[w]hen\nthe reliability of a given witness may well be determinative of\nguilt or innocence, nondisclosure of the evidence affecting\n\n\n2\n Although the Court must generally discuss whether the error was\nharmless in its review of a petition for a writ of habeas corpus, the Supreme\nCourt has made it clear that such an inquiry is unnecessary in Brady cases\nbecause the materiality standard contemplated by Brady is a higher burden\non defendants than harmless error. Kyles v. Whitley, 514 U.S. 419, 435–36.\nThus, if a petitioner establishes materiality under Brady, harmless error has\nbeen established and no further analysis is necessary.\n\nNo. 18-1573 17\n\ncredibility” justifies a new trial under Brady. Giglio, 405 U.S. at\n154. In Giglio, the defendant was convicted of passing forged\nmoney orders. Id. at 151. The prosecution’s case centered\naround the testimony of the defendant’s co-conspirator, Robert\nTaliento, who was the only witness able to link the defendant\nto the crime. Id. Taliento confessed and described the scheme\nto a grand jury. Id. At trial, Taliento testified and identified the\ndefendant as the instigator of the scheme. Id. Defense counsel\nvigorously cross-examined Taliento seeking to impeach him\nregarding a possible arrangement for prosecutorial leniency if\nhe agreed to testify. Id. Taliento testified that no agreement had\nbeen reached, but the defendant later discovered he agreed to\ntestify before the grand jury if the state agreed not to prosecute\nhim. Id. at 151–52. Even though the impeachment evidence\nonly went to his credibility, the Court found the information\nwas material under Brady. Id. at 154.\n Conversely, cases in which the Supreme Court has found\nthe suppression of impeachment evidence was not material\nunder Brady are easily distinguishable. For example, in Turner,\nthe Court found suppressed impeachment evidence was not\nmaterial because it was “largely cumulative of impeachment\nevidence petitioners already had and used at trial,” and\nbecause the impeachment evidence only involved minor\nwitnesses. Turner v. United States, 137 S. Ct. 1885, 1894 (2017).\n Thus, the Supreme Court has long recognized that suppres-\nsion of strong and non-cumulative evidence related to the\ncredibility of an important witness is material under Brady, at\nleast when the witness’s testimony is critical to the prosecu-\ntion’s case. See also Kyles, 514 U.S. at 441–42 (holding that the\nstate’s case relied heavily on the testimony of eyewitnesses\nwho identified the defendant as the murderer, therefore failure\nto disclose impeachment evidence related to those witnesses\n\n18 No. 18-1573\n\nwas material under Brady) and Wearry v. Cain, 136 S. Ct. 1002,\n1007 (2016) (withholding impeachment evidence of state’s star\nwitness violated Brady).\n B. “Unreasonable Application of” and “Contrary to”\n Controlling Precedent\n A close reading of the Indiana Court of Appeals’ decision\nshows where that court went astray from the law established\nby the Supreme Court of the United States. The state court\nactually acknowledged that “[e]vidence derived from a\nhypnotically entranced witness is inherently unreliable as not\nhaving probative value and is therefore inadmissible.” 990\nN.E.2d 523, 2013 WL 3526759 at 4 (Ind. Ct. App. 2013), citing\nRowley v. State, 483 N.E.2d 1078, 1081 (Ind. 1985). Rowley, in\nturn, followed Strong v. State, 435 N.E.2d 969, 970 (Ind. 1982),\nwhich reviewed case law from around the country in rejecting\nhypnotically enhanced testimony. Rowley and Strong had gone\non to hold that a witness who has undergone hypnosis may\ntestify to identify a wrongdoer in a criminal trial, nevertheless,\nif the prosecution can show by clear and convincing evidence\nthat the in-court identification has a sufficient independent\nfactual basis.\n In Sims’s case, the Indiana Court of Appeals veered away\nfrom the Brady materiality standard. Instead of deciding\nwhether the concealed evidence was important enough to\nundermine confidence in the result of the trial without it, the\nstate court analyzed whether Carey’s in-court identification of\nSims had a sufficient independent factual basis so as to have\nbeen admissible. We assume that the finding of admissibility\nwas correct under state law. But the state court then made the\nleap that was contrary to, and an unreasonable application of,\nBrady and its progeny: it concluded that because Carey’s\n\nNo. 18-1573 19\n\ntestimony would still have been admissible, “it is not reason-\nably probable that the outcome of Sims’s trial would have been\ndifferent had Carey’s hypnosis been disclosed.”\n That was a clear error. Brady’s materiality standard is not an\nadmissibility test. It requires the court to gauge the potential\neffects on the outcome of the trial if the concealed information\nhad been available to the defendant. See Smith, 56 U.S. at\n75–76; Kyles, 514 U.S. at 453–54; Strickler, 527 U.S. at 289–90.\nThe Indiana court did identify Brady’s overarching rule, but\nfailed to correctly apply, or even recognize, the materiality\nstandard outlined by the Supreme Court. Courts must consider\nthe overall strength of the prosecution case, the importance of\nthe particular witness’s credibility to the prosecution case, the\nstrength of the concealed impeachment material, and how the\nconcealed material compares to other attacks the defense was\nable to make on the witness’s credibility. See Kyles, 514 U.S. at\n441, 445, 451, 454; Giglio, 405 U.S. at 154–55; Smith, 565 U.S. at\n76; Wearry, 136 S. Ct. at 1006–07.\n Giglio, Kyles, Wearry, and Smith all involved concealment of\nstrong and non-cumulative impeachment evidence for the\nwitnesses whose credibility was critical to the prosecution\ncases. They provide a body of clearly established law showing\nwhen impeachment evidence is material under Brady. Turner\nand Strickler, by contrast, show that concealed impeachment\nevidence may not be material when the prosecution case is\nstrong apart from the witness in question and when the\nconcealed impeachment evidence would have added little\nweight to the defendant’s attacks on the witness’s credibility.\n Concealing the hypnosis of Carey in this case falls on the\nmaterial side of the line mapped by these Supreme Court cases.\nWithout Carey’s identification of Sims as the shooter, the\n\n20 No. 18-1573\n\nprosecution had no case. No physical evidence tied Sims to the\nshooting. His presence by the dumpster shortly after the\nshooting was suspicious, of course, but far short of what would\nhave been needed to convince a jury to convict.\n The fact that Carey had been hypnotized would have\nundermined his credibility and changed his cross-examination\nquite dramatically. As the Supreme Court explained in Rock v.\nArkansas, 483 U.S. 44, 59–60 (1987), there are several serious\nproblems that undermine the accuracy and credibility of\nhypnotically enhanced testimony:\n Responses of individuals to hypnosis vary\n greatly. The popular belief that hypnosis guar-\n antees the accuracy of recall is as yet without\n established foundation and, in fact, hypnosis\n often has no effect at all on memory. The most\n common response to hypnosis, however, ap-\n pears to be an increase in both correct and\n incorrect recollections. Three general character-\n istics of hypnosis may lead to the introduction of\n inaccurate memories: the subject becomes\n “suggestible” and may try to please the hypno-\n tist with answers the subject thinks will be met\n with approval; the subject is likely to “confabu-\n late,” that is, to fill in details from the imagina-\n tion in order to make an answer more coherent\n and complete; and, the subject experiences\n “memory hardening,” which gives him great\n confidence in both true and false memories,\n making effective cross-examination more diffi-\n cult.\n\nNo. 18-1573 21\n\n Essentially, “[n]ot only do hypnotized witnesses find it\ndifficult to distinguish their original memories from those\nbrought out under hypnosis, but they also tend to become\nmore confident about their recall despite the fact that it might\ncontain false recollections.” Edie Greene, Kirk Heilbrun,\nWilliam H. Fortune, & Michael T. Nietzel, Wrightsman’s\nPsychology and the Legal System 140 (6th ed. 2007); see also\nSteven Jay Lynn, Elza Boycheva, Amanda Deming, Scott O.\nLilienfeld, & Michael N. Hallquist, Forensic Hypnosis: The\nState of the Science, in Psychological Science in the Courtroom:\nConsensus and Controversy, 85 (Jennifer L. Skeem, Kevin S.\nDouglas, & Scott O. Lilienfeld 2009) (“23 studies have shown\nthat hypnosis either increases confidence relative to a\nnonhypnotic group, or participants confidently report inaccu-\nrate memories of events they earlier denied occurred when\nthey were not hypnotized”).\n The concealed hypnosis thus explains Carey’s puzzling\nstatement at trial that his memory of the incident actually\nimproved over time.3 But more fundamentally, it calls into\nquestion everything Carey said at trial. Based on the Supreme\nCourt’s view of hypnosis, Carey would not know what he was\nable to recall independent of the hypnosis, nor what he was\nable to recall because of the hypnosis, or whether any of his\ntestimony was true or based on fantasy. This is made more\ntroubling by the fact that Carey provided significantly more\ninformation at trial than he did any time before trial. Carey\ndiscussed in detail looking the assailant square in the eyes, that\nhe remembered witnessing a small patch on the assailant’s\njacket, that he remembered a small birthmark on the assailant’s\n\n\n3\n As noted above, Carey stated at trial, “I recall—I did not recall it at the\ntime. Later on I did recall a hood, and it was part of the way up.”\n\n22 No. 18-1573\n\nface. As the defense pointed out at trial, none of these details\nwere in Carey’s description to Officer Lerner nor did they\nappear in the police report. It is reasonable to infer the jury\nfound these details persuasive without knowing that Carey’s\nrecollection of them might have been due entirely to the\nhypnosis session.\n The “memory hardening” effect of hypnosis can explain\nCarey’s admission during post-conviction proceedings that he\nwas sure of who the person was who shot him only after being\nhypnotized. The effect Carey’s increased confidence likely had\non the jury helps to undermine our confidence in the verdict.\nDecades of research confirms that the confidence with which\neyewitnesses identify criminal defendants can be a powerful\npredictor of verdicts regardless of the accuracy of the identification.\nThe more confident the eyewitness is in his identification, the\nmore likely the jury is to believe that the identification is\naccurate and to convict the defendant. See Brian L. Cutler,\nSteven D. Penrod, & Thomas E. Stuve, Juror Decision Making\nin Eyewitness Identification Cases, 12 Law and Human\nBehavior 41 (1988); Steven G. Fox & H.A. Walters, The Impact\nof General versus Specific Expert Testimony and Eyewitness\nConfidence upon Mock Juror Judgment, 10 Law and Human\nBehavior 215 (1986); Michael R. Leippe, Andrew P. Manion, &\nAnn Romanczyk, Eyewitness Persuasion: How and How Well Do\nFact Finders Judge the Accuracy of Adults’ and Children’s Memory\nReports?, 63 Journal of Personality & Social Psychology 181\n(1992); Lynn et al. at 85; Gary L. Wells, What Do We Know About\nEyewitness Identification?, 48 American Psychologist 553, 564\n(1993); Gary L. Wells, R.C.L. Lindsay, & Tamara J. Ferguson,\nAccuracy, Confidence, and Juror Perceptions in Eyewitness Identifi-\ncation, 64 Journal of Applied Psychology 440 (1979).\n\nNo. 18-1573 23\n\n It is not difficult to imagine what Sims’s lawyer could have\ndone at trial with the knowledge that Carey had been hypno-\ntized. The known effects of hypnosis could explain Carey’s\nconfidence, his claim that his memory of the shooting had\nimproved over time, and the otherwise benign changes in his\ndescriptions of the shooter. Reasonable judges cannot be\nconfident that, if the jury had known that Carey had been\nhypnotized before he identified Sims at trial, they would have\nfound his identification beyond reasonable doubt.\n Given the well-known problems that hypnosis poses for\nwitnesses’ memories, we can be confident that Carey’s identifi-\ncation testimony would have been subjected to withering\ncross-examination. As noted, the prosecution’s case against\nSims depended completely on Carey’s credibility, which the\nsuppressed hypnosis evidence would have severely under-\nmined. The evidence would have cast doubt for the jury not\nonly on Carey’s in-court identification, but also on Carey’s\ncredibility as a witness more generally, including the accuracy\nof his prior identifications of Sims. The jury saw Carey identify\nSims only once, in court. The prior identifications were heard\nonly secondhand. If the jurors had known that Carey needed\nto be hypnotized to make the in-court identification, they\nwould have been less likely to believe Carey was confident that\nSims was his assailant, and therefore that his identification was\naccurate. From there and without the ability to observe Carey\nmake his prior, untainted identifications, the jury could easily\nhave questioned Carey’s overall credibility as an eyewitness.\n The Indiana appellate court noted that Carey was able to\ndescribe the clothing and physical attributes of the assailant\nwho matched Sims’s clothing and physical attributes when he\nwas discovered on the scene. However, the trial court tran-\nscript illustrates the defense cross-examined Carey vigorously\n\n24 No. 18-1573\n\nand pointed out several instances in which his description of\nthe assailant did not match Sims’s clothing or physical attrib-\nutes the night of the incident. The undisputed details merely\nprovide the shooter was a black male with a large build\nwearing a three quarter length coat. This is not the kind of\nidentification that instills confidence especially in a case that\nthe prosecution described as being all about “the validity of\nCarey’s identification.”\n The state court noted Carey identified Sims three times in\nphotographic lineups before hypnosis. Carey had glass in his\neyes and did not recall the first lineup and was unable to\nidentify the shooter in a lineup two days later. Furthermore,\nsignificant doubt was cast on these lineups by the fact that\nCarey testified that he was initially only shown a single\npicture. The defense moved for a mistrial, which was denied,\nand the issue was affirmed on appeal. However, the Indiana\nCourt of Appeals affirmed this decision because they were\nconvinced the totality of the circumstances constituted a\nsufficient independent basis to cure any unduly suggestive\nprocedures. But the suppressed evidence of hypnosis now\nbrings this ruling into question.\n The dissent assails our opinion by asserting that Carey\nnever wavered in his identification of Sims. This does not\nexplain why Wicks felt it necessary to take the risk of setting\nup a hypnosis session for Carey without disclosing it. Nor does\nit appear to take into account the instances in which Carey\nequivocated. Furthermore, the only indication as to when the\nhypnosis session took place is Carey’s testimony at the post-\nconviction evidentiary hearing that it was months before trial\nwhen he and Wicks “first started talking about who the\nperpetrator was.”\n\nNo. 18-1573 25\n\n Finally, these problems with hypnosis undercut the Indiana\ncourt’s final reason for refusing post-conviction relief: Carey’s\ntestimony indicated he was able to identify the assailant, but\nhypnosis was able to make him “extremely sure.” No one\nknows what effect the hypnosis had on Carey and it also belies\nthe record for reasons discussed above.\n Considering the overall weakness of the prosecution case\nwithout Carey, the importance of his testimony, the explosive\nstrength of the concealed hypnosis evidence, and the relatively\nmild impeachment of Carey that the defense managed at trial,\nhabeas relief is required. The post-Brady cases involving strong\nconcealed impeachment material for key prosecution wit-\nnesses—Smith, Giglio, Wearry, and Kyles—show beyond\nreasonable dispute that the prosecutor’s deliberate conceal-\nment of the hypnosis evidence undermined confidence in the\nverdict that has kept Sims in prison for more than twenty\nyears.\n III. CONCLUSION\n Given the suppression of the evidence was clearly a\nviolation under Brady, the writ of habeas corpus should have\nbeen granted. Therefore, we reverse and remand the case to the\ndistrict court with instructions to grant the writ of habeas\ncorpus.\n\n26 No. 18-1573", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363926/", "author_raw": "William Joseph Bauer"}, {"author": "BARRETT, Circuit Judge, dissenting", "type": "dissent", "text": "BARRETT, Circuit Judge, dissenting. I dissent from the\nmajority opinion because it fails to give the Indiana Court of\nAppeals the deference required by 28 U.S.C. § 2254(d). Under\nthat provision, a federal court may grant habeas relief only if\nthe state court proceedings (1) “resulted in a decision that was\ncontrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the\nSupreme Court of the United States”; or (2) “resulted in a\ndecision that was based on an unreasonable determination of\nthe facts in light of the evidence presented in the State court\nproceeding.” The majority holds that the Indiana Court of\nAppeals’ decision satisfies § 2254(d)(1). I disagree. Even\nthough I think that the undisclosed evidence of Carey’s\nhypnosis constitutes a Brady violation, it was neither contrary\nto, nor an unreasonable application of, clearly established\nfederal law for the Indiana Court of Appeals to conclude\notherwise.\n I.\n The Indiana Court of Appeals’ decision to deny Sims’s\npetition for post-conviction relief was not “contrary to”\nclearly established law as determined by the Supreme Court\nof the United States. A decision is “contrary to” clearly\nestablished federal law if it (1) “applies a rule different from\nthe governing law set forth in our cases” or (2) “decides a case\ndifferently than [the Supreme Court] ha[s] done on a set of\nmaterially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,\n694 (2002). To apply this standard, we must first consider\nwhat rule has been clearly set forth in the Supreme Court’s\ncaselaw.\n The three elements of a Brady violation have been clearly\nestablished, including the materiality prong at issue here. See,\n\nNo. 18-1573 27\n\ne.2727g., Goudy v. Basinger, 604 F.3d 394, 400 (7th Cir. 2010).\nEvidence is material if there is “a reasonable probability that,\nhad the evidence been disclosed, the result of the proceeding\nwould have been different.” Turner v. United States, 137 S. Ct.\n1885, 1893 (2017) (internal quotation marks and citation\nomitted). A “reasonable probability” is one that “undermines\nconfidence in the outcome of the trial.” Kyles v. Whitley, 514\nU.S. 419, 434 (1995) (internal quotation marks omitted)\n(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In\naddition, the holding in Giglio v. United States, 405 U.S. 150,\n154 (1972), that impeachment evidence “falls within the Brady\nrule,” is likewise clearly established. See Bagley, 473 U.S. at\n676; Collier v. Davis, 301 F.3d 843, 848 (7th Cir. 2002).\n The majority’s first error comes in its description of the\ngeneral rule that Brady establishes with respect to\nimpeachment evidence. The Supreme Court has not held, as\nthe majority would have it, that “‘[w]hen the reliability of a\ngiven witness may well be determinative of guilt or\ninnocence, nondisclosure of the evidence affecting credibility’\njustifies a new trial under Brady.” Maj. Op. at 18 (emphasis\nadded) (citing Giglio, 405 U.S. at 154). The italicized phrase is\nthe majority’s; the full sentence from Giglio is this: “[w]hen the\nreliability of a given witness may well be determinative of\nguilt or innocence, nondisclosure of the evidence affecting\ncredibility falls within [Brady’s] general rule.” See Giglio, 405\nU.S. at 154 (quotation omitted). Again, that general rule asks\nwhether the undisclosed evidence is material. And\nmateriality—whether the evidence at issue is exculpatory or\nimpeaching—is always a fact-intensive inquiry, as the\nsentences in Giglio immediately following the one that the\nmajority quotes make clear:\n\n28 No. 18-1573\n\n When the reliability of a given witness may well be\n determinative of guilt or innocence, nondisclosure\n of evidence affecting credibility falls within [Brady’s]\n general rule. We do not, however, automatically require\n a new trial whenever a combing of the prosecutors’ files\n after the trial has disclosed evidence possibly useful to the\n defense but not likely to have changed the verdict. A\n finding of materiality of the evidence is required under\n Brady.\nId. at 154 (emphasis added) (internal quotation marks,\ncitations, and alteration omitted). In other words,\nimpeachment evidence related to a key witness is material\nonly if it undermines confidence in the verdict. See id. at 154–\n55 (suppressed evidence of bias that called into question a key\nwitness’s entire testimony was material); see also Kyles, 514\nU.S. at 441–42 (undisclosed contradictory statements by a key\nwitness that arguably pointed to a suspect other than the\ndefendant were material because they “substantially\nreduced” or “destroyed” the witness’s value). To be sure,\nimpeachment evidence related to a key witness is more likely\nto be material than impeachment evidence related to a bit\nplayer. But contrary to the majority’s suggestion, the Supreme\nCourt has never announced a hard-and-fast rule requiring a\nnew trial when non-cumulative evidence related to the\ncredibility of an important witness is suppressed. Even when\nit comes to a star witness, Giglio and its progeny require courts\nto evaluate whether the suppressed evidence is in fact\nmaterial—not merely to assume it.\n The majority’s second error lies in its assertion that the\nIndiana Court of Appeals confused the Brady materiality\nstandard with the Indiana Rules of Evidence. The Supreme\n\nNo. 18-1573 29\n\nCourt has explained that “[a] federal habeas court may issue\nthe writ under the ‘contrary to’ clause if the state court applies\na rule different from the governing law set forth in our\ncases….” Bell, 535 U.S. at 694. According to the majority, the\nstate court made that very error here—it says that the state\ncourt concluded that the suppressed evidence was not\nmaterial because Carey’s identification would still have been\nadmissible under state law. Maj. Op. at 20. But that\nfundamentally misreads the state court opinion. The Indiana\nCourt of Appeals did explain that “[e]vidence derived from a\nhypnotically entranced witness” is inadmissible under state\nlaw unless “the State … demonstrate[s] by clear and\nconvincing evidence that the witness’s ‘in-court identification\nhas a factual basis independent of the hypnotic session.’” Ind.\nCt. App. Op. at 7–8 (quoting Rowley v. State, 483 N.E.2d 1078,\n1081 (Ind. 1985)). Yet it did not analyze Sims’s Brady claim\nunder that standard. When it moved to the Brady issue, the\ncourt squarely identified and applied Brady.\n The Indiana Court of Appeals began by describing the trial\ncourt’s post-conviction decision, which held that while the\nevidence of hypnosis satisfied the first two prongs of Brady\nbecause it was both favorable and suppressed, it failed to\nsatisfy the third prong because it was not material. See Ind. Ct.\nApp. Op. at 8. The trial court fully recited the Brady standard,\nincluding the rule that “[e]vidence is material if there is a\nreasonable probability that disclosure would have changed\nthe result in the proceeding.” After discussing the evidence in\ndetail, the trial court concluded: “The evidence presented\nprovides sufficient confidence in the verdict. The record\nreveals that Carey was able to identify Defendant before\nhypnosis. Thus the Court finds that the hypnosis disclosure\n\n30 No. 18-1573\n\nwould not have changed the outcome, and its nondisclosure\ndid not amount to a Brady violation.”\n The Indiana Court of Appeals reviewed this reasoning,\nsetting much of it forth verbatim, and agreed that the\nevidence was not material given the counterbalancing\nstrength of the admissible identification: Carey got a good\nlook at the assailant, gave a detailed description that matched\nSims, and identified Sims in multiple pre-hypnosis photo\nlineups. It concluded that “the findings of fact and the record\nas a whole support the post-conviction court’s determination\nthat it is not reasonably probable that the outcome of Sims’s\ntrial would have been different had Carey’s hypnosis been\ndisclosed.” Ind. Ct. App. Op. at 10. That is the Brady standard.\nSee Turner, 137 S. Ct. at 1893 (explaining that evidence is\nmaterial if there is “a reasonable probability that, had the\nevidence been disclosed, the result of the proceeding would\nhave been different” (quotation omitted)). The majority is\nplainly correct that “Brady’s materiality standard is not an\nadmissibility test,” Maj. Op. at 20, but neither the Indiana\nCourt of Appeals nor the trial court treated it like one.\n A state court decision is “contrary to” clearly established\nlaw “if the state court applies a rule different from the\ngoverning law set forth in [the Supreme Court’s] cases, or if it\ndecides a case differently than [the Supreme Court] ha[s]\ndone on a set of materially indistinguishable facts.” Bell, 535\nU.S. at 694. Here, there is no question that the state court\napplied the Brady materiality standard, and there is no\nattempt to identify a Supreme Court case with materially\nindistinguishable facts. Thus, the state court decision was not\n“contrary to” clearly established federal law.\n\nNo. 18-1573 31\n\n II.\n The majority’s stronger argument is that the Indiana Court\nof Appeals unreasonably applied Brady’s materiality prong to\nthis set of facts. Section 2254(d)(1) prohibits us from\napproaching this question de novo; thus, we cannot simply\nask whether the suppressed evidence of hypnosis creates a\nreasonable probability of a different result. Instead, we must\nask the question that § 2254(d)(1) demands: whether it was\nunreasonable for the state court to conclude that evidence of\nhypnosis did not create a reasonable probability of a different\nresult.\n This is a high bar: the state court’s application of federal\nlaw “must be objectively unreasonable, not merely wrong;\neven clear error will not suffice.” Woods v. Donald, 135 S. Ct.\n1372, 1376 (2015) (per curiam) (internal quotation marks and\ncitation omitted). A prevailing habeas petitioner must “show\nthat the state court’s ruling on the claim being presented in\nfederal court was so lacking in justification that there was an\nerror well understood and comprehended in existing law\nbeyond any possibility for fairminded disagreement.”\nHarrington v. Richter, 562 U.S. 86, 103 (2011); see also Kidd v.\nLemke, 734 F.3d 696, 703 (7th Cir. 2013) (“We must deny the\nwrit if we can posit arguments or theories that could have\nsupported the state court’s decision, and if fairminded jurists\ncould disagree about whether those arguments or theories are\ninconsistent with Supreme Court holdings.”). The Indiana\nCourt of Appeals’ conclusion that the evidence of hypnosis\nwas not material—and thus that failure to disclose the\nevidence did not amount to a Brady violation—does not rise\nto that level.\n\n32 No. 18-1573\n\n The majority finds fault in multiple aspects of the Indiana\nCourt of Appeals’ reasoning. Many of its concerns, however,\nare objections to the facts found by that court. And without\nclear and convincing evidence that the state court was wrong,\nits factual determinations are not open for debate. See 28\nU.S.C. § 2254(e)(1) (“[A] determination of a factual issue made\nby a State court shall be presumed to be correct. The applicant\nshall have the burden of rebutting the presumption of\ncorrectness by clear and convincing evidence.”). 1\n Notably, the majority almost entirely discounts the facts\nthat support the Indiana Court of Appeals’ conclusion that the\nsuppressed evidence was immaterial. The state court found\nthat Carey looked directly into the face of Sims in fair, outside\nlighting at the time of the shooting; offered a detailed\ndescription of Sims on-scene; identified Sims in a photo array\nat the hospital emergency room; and identified Sims again\ntwo days later in a photo array at the prosecutor’s office. The\ndescription and identifications are crucial because they all\noccurred well before Carey underwent a session of hypnosis\nand thus bolster the reliability of the in-court identification\ndespite the evidence of hypnosis.\n\n\n\n 1 Though the majority does not hold, and Sims does not argue, that\nthe state court decision was “based on an unreasonable determination of\nthe facts” under § 2254(d)(2), some of the language in the opinion seems\nto at least raise the question. It is therefore worth noting that\nunreasonableness under § 2254(d)(2) is a very stringent standard. A\nfactual determination is unreasonable if it is “arbitrary,” Ben-Yisrayl v.\nBuss, 540 F.3d 542, 549 (7th Cir. 2008), but not if reasonable minds could\ndisagree on the finding in question, Wood v. Allen, 558 U.S. 290, 301 (2010).\nIn addition, we have held that “§ 2254(e)(1) provides the mechanism for\nproving unreasonableness.” Ben-Yisrayl, 540 F.3d at 549.\n\nNo. 18-1573 33\n\n The majority is particularly skeptical of the Indiana Court\nof Appeals’ finding that Carey identified Sims three times in\nphoto lineups before hypnosis. Maj. Op. at 25–26. It claims\nthat “significant doubt was cast on these lineups by the fact\nthat Carey testified that he was initially only shown a single\npicture.” Id. But there was a factual dispute on this point that\nthe Indiana Court of Appeals resolved: it concluded that\nCarey was presented with a picture lineup in the hospital\nemergency room. 2 The majority has not attempted to\ndemonstrate by clear and convincing evidence that this\nfinding is wrong—nor could it, because Sims has not\nattempted to do so. Thus, we must accept the state court’s\nfinding that Carey positively identified Sims in multiple pre-\nhypnosis photo lineups.\n Relatedly, the majority also suggests that Carey was able\nto identify Sims only after hypnosis. See Maj. Op. at 23, 26; see\nalso id. at 12–13. In the majority’s view, this conclusion is most\nconsistent with the trial record and best explains why Carey\nor the prosecutor would have “felt it necessary” to undergo\n\n\n 2 This issue was first raised when Sims moved for a mistrial after\ntestimony from Carey in which “he indicated that he might have been\nshown a single picture of Sims before he was shown photo arrays which\nincluded Sims’s picture.” The trial court denied the motion and the court\nof appeals affirmed, noting that “there was other testimony and evidence\nto the effect that Carey had never been shown a single photograph, but\nwas only shown arrays of six or seven photos,” and that in any event,\n“there was a sufficient basis, independent of any improper photo display,\nto support the admissibility of the in-court identification of Sims.” The\nissue arose again in the post-conviction proceedings, in which the state\ncourts found that “when the police arrived at the hospital emergency\nroom, they showed Carey photos of Sims and several other men, and\nCarey positively identified Sims as his assailant.”\n\n34 No. 18-1573\n\nhypnosis at all. Id. at 26. But just as § 2254 does not permit us\nto review a state court’s application of federal law de novo, it\nalso does not permit us to reweigh evidence according to our\nown best reading of the trial record. Both the state trial court\nand the Indiana Court of Appeals explicitly rejected the\nnotion that Carey identified Sims only after hypnosis: “the\ncontention that Carey was ‘only’ able to identify Petitioner\nfollowing the hypnosis is at odds with other credible\nevidence … in the record.… From the record of the case,\nCarey was able to identify Petitioner well before hypnosis.”\nInd. Ct. App. Op. at 6–7 (quoting the trial court); see also id. at\n9–10. The majority is not free to question this finding.\n After deciding for itself which facts are undisputed, the\nmajority frames the materiality question this way: could a\nfairminded judge be confident in Sims’s conviction where the\nonly evidence was Sims’s proximity to the scene of the crime\nand Carey’s solid but imperfect on-scene description? See Maj.\nOp. at 21, 25 (acknowledging Sims’s suspicious proximity to\nthe scene and citing Carey’s description as the only other\n“undisputed details”). But that framing stacks the deck by\nsifting out evidence on which the state court relied in\napplying Brady—most significantly, Carey’s identification of\nSims in the photo arrays. Absent clear and convincing\nevidence that the state court’s factual findings were wrong—\nwhich again, is not something that the majority undertakes to\nshow—we are required to take the facts as the state court\nfound them. 28 U.S.C. § 2254(e)(1). 3\n\n\n3 The majority claims that I “assail [its] opinion” by contesting its factual\nfindings with my own. Maj. Op. at 26. But that misses the point entirely.\nSection 2254 requires us to accept the facts as the state court presented\nthem and determine whether, on those facts, the state court’s legal\n\nNo. 18-1573 35\n\n Doing that leaves us with the following facts. Carey gave\nan on-scene description of the shooter that matched, in many\nrespects, a person crouching in the bushes behind a nearby\ndumpster. But the match was not perfect: Carey described a\nperson with short hair and wearing boots, and Sims was\napprehended apparently wearing a hat or hood and Nikes.\nCarey identified Sims in multiple pre-hypnosis photo arrays\nand “never identified any other as his assailant.” At some\npoint, before trial, Carey underwent a single session of\nhypnosis to improve his memory of the event. There is no\nrecord of what happened during this session. At trial, Carey\ngave a more robust description of his assailant than the one\ngiven on-scene—adding details like the discoloration under\nSims’s eye and the patch on his jacket—but he did not\ncontradict his initial description. He testified that his memory\nof certain details had improved over time. Defense counsel\ncross-examined Carey on all inconsistencies with and\nadditions to his initial description of the shooter. An officer\ntestified that, from the very beginning, Carey said that he\ncould identify the assailant, and that Carey’s description of\nthe assailant matched Sims. The government never found the\ngun used to shoot Carey. The jury found Sims guilty of\nattempted murder.\n The Indiana trial court drew two important conclusions\nfrom these facts in its post-conviction review. First, it decided\nthat the government had proven by clear and convincing\nevidence that Carey’s in-court identification of Sims had a\nsufficient factual basis independent of hypnosis. Second, the\n\nconclusions constituted an unreasonable application of federal law. I don’t\ncontest any of the majority’s factual findings, only its authority to make\nthem.\n\n36 No. 18-1573\n\ncourt noted that the distinctive elements of Carey’s trial\ntestimony, compared to his initial description, “were fully\ndeveloped, examined and vigorously discussed in cross\nexamination,” which gave the jury the opportunity to weigh\nCarey’s credibility regarding the differences. Given that the\ngovernment would still have been able to introduce a strong,\nreliable in-court identification of Sims and that, in the court’s\nview, many of the problems raised by hypnosis were already\naddressed by robust cross-examination, the court held that\nthe “evidence presented provides sufficient confidence in the\nverdict.” The Indiana Court of Appeals agreed. It emphasized\nthe independent strength of the in-court identification and the\n“vigorous cross-examination” of Carey before holding that “it\nis not reasonably probable that the outcome of Sims’s trial\nwould have been different had Carey’s hypnosis been\ndisclosed.” Ind. Ct. App. Op. at 10.\n That decision does not involve an objectively\nunreasonable application of clearly established federal law.\nThe state courts suggested that the undisclosed evidence\nwould have been largely cumulative, and therefore not\nmaterial, because the defense was already able to cross-\nexamine Carey about the differences in his testimony. The\nSupreme Court has held that “largely cumulative”\nimpeachment evidence is not material. See Turner, 137 S. Ct.\nat 1894. The majority acknowledges Turner’s holding but\ndisagrees that the hypnosis evidence would have been\ncumulative. In its view, the newly discovered evidence of\nhypnosis would have “changed [Carey’s] cross-examination\nquite dramatically” and “calls into question everything Carey\nsaid at trial.” Maj. Op. at 21, 23. But neither outcome is\nobviously true.\n\nNo. 18-1573 37\n\n Indeed, had the evidence of hypnosis been disclosed,\ndefense counsel would have likely emphasized the dangers of\nhypnotically-refreshed testimony discussed in Rock v.\nArkansas. See 483 U.S. 44, 59–60 (1987). At best, however, the\neffect of that argument would have been to undermine the\nreliability and credibility of any part of Carey’s testimony that\ncould not be traced to his memory prior to hypnosis. It was\nnot objectively unreasonable, then, for the state court to\nconclude that the impeachment evidence was largely\ncumulative: the vulnerable parts of Carey’s testimony—\ndescribing the discoloration under Sims’s eye and the patch\non his jacket—were already undermined by defense counsel’s\ncross-examination stressing that such details appeared\nnowhere in Carey’s on-scene description.\n But that debate is at the periphery. Under Indiana law\nevidence derived from hypnosis is inadmissible. See Ind. Ct.\nApp. Op. at 7 (citing Rowley, 483 N.E.2d at 1081). Thus, the\nquestion is not whether cross-examination of hypnotically-\nrefreshed testimony would have been effective—notably, the\nquestion that Rock speaks to.4 The question is whether without\nthe hypnotically-refreshed testimony, a reasonable jurist\ncould be confident in the conviction. Acknowledging the\neffectiveness of defense counsel’s cross-examination was one\n\n 4 Rock’s discussion of the dangers of hypnotically-refreshed testimony\n\nand the ineffectiveness of cross-examination on such testimony took place\nin the context of considering the admissibility of post-hypnosis testimony.\nSee 483 U.S. 44, 53, 61 (1987) (distinguishing between post-hypnosis\ntestimony and testimony that a litigant could “prove to be the product of\nprehypnosis memory” for the purposes of its analysis). Notably, Rock’s\nholding actually offered some protection for hypnotically-refreshed—that\nis, derived from hypnosis—testimony. See id. at 61 (post-hypnosis\ntestimony is not categorically unreliable).\n\n38 No. 18-1573\n\nway for the state court to test this question—i.e., because the\ndefense counsel cast substantial doubt on the reliability of the\nhypnotically-refreshed testimony, a reasonable jurist could be\nconfident that the pre-hypnosis evidence and testimony\ndrove the verdict.\n As an additional ground for its immateriality decision,\nhowever, the state court considered the pre-hypnosis\nevidence—and admissible identification related to that\nevidence—in isolation and expressed confidence that the jury\nwould have still decided to convict. The only additional boost\nthat the evidence of hypnosis would have given Sims’s\ndefense counsel on cross-examination under these\ncircumstances would have been to raise questions about why\nCarey underwent hypnosis in the first place. Certainly, the\njury might have some discomfort with the fact that Carey felt\nthe need to undergo hypnosis—as the majority does, and as I\ndo. But the key is the reliability of Carey’s identification of\nSims.\n Evidence of hypnosis and Carey’s reduced credibility over\ntime could not have retroactively undermined the reliability\nof his contemporaneous description of the events and the\nassailant or his multiple pre-hypnosis photo-lineup\nidentifications of Sims. Cf. Neil v. Biggers, 409 U.S. 188, 199–\n200 (1972) (identifying “the opportunity of the witness to\nview the criminal at the time of the crime, the witness’ degree\nof attention, the accuracy of the witness’ prior description of\nthe criminal, the level of certainty demonstrated by the\nwitness …, and the length of time between the crime and the\n[identification]” as factors relevant to reliability). Nor could it\nhave changed the fact that the police discovered Sims peering\ndown on the scene behind a nearby dumpster. Thus, unlike\n\nNo. 18-1573 39\n\nthe cases that the majority cites, in which the undisclosed\nevidence either contradicted the witness’s in-court\nidentification or shattered the credibility of a witness with no\ncontemporaneous corroboration for his in-court\nidentification, Carey’s contemporaneous description and pre-\nhypnosis identifications were independently reliable and\nconsistent with his in-court identification. Cf. Wearry v. Cain,\n136 S. Ct. 1002, 1004–05 (2016) (per curiam) (undisclosed\nstatements suggested that the witness was attempting to\nframe the defendant; undisclosed evidence suggested that the\nwitness was biased; undisclosed medical evidence suggested\nthat it would have been impossible for the defendant to have\ndone the things that the witness described); Smith v. Cain, 565\nU.S. 73, 74–76 (2012) (witness’s undisclosed contemporaneous\nstatements directly contradicted the testimony supporting his\nin-court identification); Kyles, 514 U.S. at 441–42 (witness’s\nundisclosed contemporaneous statements contradicted the\nin-court identification).\n In short, the state court concluded that the evidence of\nhypnosis was not only cumulative but also comparatively\nweak in light of the strength and reliability of Carey’s pre-\nhypnosis description and identifications. That conclusion is\nnot “beyond any possibility for fairminded disagreement.”\nSee Harrington, 562 U.S. at 103. Here, Carey’s hypnotically-\nrefreshed testimony was not “the only evidence linking [Sims]\nto the crime.” See Smith, 565 U.S. at 76. With a solid on-scene\ndescription, multiple untainted photo-array identifications,\nand an in-court identification by the victim—not to mention\nSims’s suspicious behavior and proximity to the scene of the\ncrime—a fair-minded jurist could be confident in the jury’s\nverdict, even if we are not. See Kidd, 734 F.3d at 703.\n\n40 No. 18-1573\n\n **\n Again, if I were deciding the question de novo, I would\nagree with the majority that the suppressed evidence of\nhypnosis undermined confidence in the verdict. But because\nI can’t say that the Indiana Court of Appeals’ decision was “so\nlacking in justification that there was an error well\nunderstood and comprehended in existing law beyond any\npossibility for fairminded disagreement,” Harrington, 562 U.S.\nat 103, I would affirm the district court’s denial of Sims’s\nhabeas corpus petition.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363926/", "author_raw": "BARRETT, Circuit Judge, dissenting"}]}	BAUER	HAMILTON	BARRETT	1	{"BAUER": ", Circuit", "HAMILTON": ", Circuit", "BARRETT": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586673/	Published	1	0	0	2,019	2	[ { "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...
4,586,732		Mack Sims v. William Hyatte	2019-02-01	18-1573	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, HAMILTON, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "William Joseph Bauer", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-1573\n\nMACK A. SIMS,\n Petitioner-Appellant,\n\n v.\n\n\nWILLIAM HYATTE,\n Respondent-Appellee.\n\n\n Appeal from the United States District Court for the\n Northern District of Indiana, South Bend Division.\n No. 3:14-cv-01936-RLM — Robert L. Miller, Jr., Judge.\n\n\n\n ARGUED NOVEMBER 27, 2018 — DECIDED FEBRUARY 1, 2019\n\n\n Before BAUER, HAMILTON, and BARRETT, Circuit Judges.\n BAUER, Circuit Judge. Petitioner-appellant Mack Sims seeks\na writ of habeas corpus, arguing his due process rights were\nviolated because the state withheld evidence favorable to his\ncase. In November of 1993, security guard Shane Carey was\nshot in Elkhart, Indiana. Approximately fifteen to twenty\nminutes after the shooting, the Elkhart police found Mack Sims\nnear a walking path around twenty feet from where the\nshooting occurred. After Carey identified him at trial as the\n\n2 No. 18-1573\n\nshooter, Sims was convicted of attempted murder and sen-\ntenced to a term of imprisonment of 35 years. In 2012, during\na post-conviction evidentiary hearing, Sims learned the\nprosecution withheld evidence that Carey, the only witness\nwho could identify the shooter, was hypnotized before trial to\nenhance his recollection of the shooting. After the Indiana\ncourts denied habeas relief, Sims filed a petition for a writ of\nhabeas corpus in federal court. The district court held that the\nIndiana court did not unreasonably apply established federal\nlaw and denied the petition. Because we disagree, we reverse.\n I. BACKGROUND\n A. The Night of the Shooting\n In September of 1993, Shane Carey began working as a\nsecurity guard at Sister Virginia’s Adult Basic Education\n(“Sister Virginia’s”) in Elkhart, Indiana. On November 2, 1993,\nthe school was in session when Carey arrived for his shift at\n6:00 p.m. Shortly after arriving he traversed the premises and\nreturned to his car to read a book after he was satisfied the\nschool was safe. Sister Virginia’s parking lot, where his car sat,\nhad some lighting but was not well lit.\n Around 7:00 p.m., Carey noticed three black men walk\nbehind a nearby building and emerge in the parking lot a few\nminutes later. The men walked toward Carey’s vehicle; two\nwalked to the passenger side and one to the driver’s side.\nWhen about two feet from the car the individual walking\ntowards the driver’s side door grabbed a gun from his coat\nand fired it through the window. Carey did not see the gun,\nbut soon realized he had been shot in the face. He made his\nway into Sister Virginia’s and emergency help was summoned.\nCarey testified at trial that the shooting took place “shortly\nafter 7:00 [p.m.].”\n\nNo. 18-1573 3\n\n Officers Tom Lerner and William Wargo arrived on the\nscene at 7:27 p.m. Lerner instructed Wargo to secure Carey’s\nvehicle and the area around it while he entered Sister Virginia’s\nto speak with Carey. Carey was having difficulty speaking but\nwas able to provide Lerner with a description of the assailant\nas a black male with short hair or a shaved head and a large\nbuild, possibly in his late twenties, wearing a three-quarter-\nlength coat with dark pants and dark combat boots.\n At approximately 7:30 p.m. while standing near Carey’s car,\nOfficer Wargo heard a noise near the train tracks about twenty-\nfive feet southeast of Carey’s vehicle. Wargo then observed a\nblack male crouching behind a dumpster wearing a black\nthree-quarter length jacket and hat looking onto the crime\nscene. This individual was near a walking path that ran next to\nthe train tracks and was often used by locals. The officers\nordered the subject out of the bushes and he came forward\nwithout protest. They identified this individual as Mack Sims\nand patted him down for weapons; none were found.\n Although there were civilian witnesses in the area, none\nwere able to give an identifying description of the shooter.\nPolice officers searched the surrounding area extensively but\nnever found a gun, nor did they recover a shell casing from the\narea or any other physical evidence.\n B. The Trial of Mack Sims\n On November 4, 1993, Sims was charged with attempted\nmurder. His trial began on August 23, 1994. The prosecution\ncalled ten witnesses: six were law enforcement officers that\ndescribed their role in the investigation and three were\nindividuals present at Sister Virginia’s the night of the shooting\nthat were unable to identify the shooter. Thus, the state relied\n\n4 No. 18-1573\n\nalmost exclusively on the only witness who could possibly\nidentify the shooter, Carey, to establish their case against Sims.\n Carey testified that he got a good look at the assailant. He\ndescribed in court what he saw the night of the shooting in\nmore detail than was in the incident report:\n Q: Now, as he approached the car, did you get a look at\n him?\n A: Yeah. I was looking him square in the eyes.\n Q: Describe what you saw.\n A: What I saw was a man with—it was a somewhat full\n face, well—I’d say a well-rounded face. What I mainly\n noticed was the eyes. And I noticed underneath the left\n eye the skin tone, I’d say, or shades were slightly\n different than the other. One side just underneath the\n eye was a little bit lighter and the other side was very\n dark. And I noticed—I did notice the eyes. It was a very\n cold stare.\n Q: Did you see him reach for anything?\n A: I saw him make a hand movement, and that’s about it.\n I saw a flash but nothing more.\n Q: Okay. Do you recognize in this courtroom today the\n person you saw and who shot you on November 2nd,\n 1993?\n A: Yes, I do.\n Q: Where is he?\n A: He’s sitting right there in front of me (indicating).\n Mr. Wicks [ the prosecutor]:\n\nNo. 18-1573 5\n\n I would ask the record reflect the witness has identified\n the defendant, Mack Sims, Your Honor.\n The Court:\n Let the record reflect the witness has identified the\n defendant.\nCarey continued to describe the assailant,\n I noticed the shoes looked somewhat like boots, I would\n say, and dark color pants. What I mainly noticed was\n the coat. The coat was slightly long and dark in color,\n either a dark black or maybe bluish or—like a Navy or\n midnight blue or something to that extent. One of the\n things I did notice on the coat was a patch on the\n arm … It was a small patch. I didn’t really get a good\n look at the shape, but it couldn’t have been more than\n a couple inches in diameter.\nCarey then observed the coat Sims was wearing when he was\narrested and identified a patch on it as being the one he\nwitnessed when the assailant approached his vehicle. Carey\nalso testified that detective John Faigh came to speak with him\nat the hospital the day after his surgery. He recalled being\npresented with six photos. Carey chose a photograph from this\nlineup noting that the picture “looked like” the assailant. Carey\nthen identified in court the photograph of Sims that he picked\nout of that lineup.\n During cross-examination defense counsel pointed out that\nCarey’s identification of the assailant in the photographic\nlineup was not unequivocal. Carey indicated that he had\nunequivocally identified the assailant in a photographic lineup\nthat appeared nowhere in the record:\n\n6 No. 18-1573\n\n A: The identification that I was provided with in the\n emergency room was [unequivocal]. They did show me\n something in the emergency room. It was difficult to\n see, but what I did see, that was him.\n Q: Oh, there was another picture that was shown to you?\n A: There was another picture in the emergency room.\n Q: There is nothing in the reports about that: is that\n correct?\n A: Not that I know of.\n Carey was then asked about a situation shortly before trial\nin which he was unable to identify the assailant in a photo-\ngraphic lineup:\n Q: And you also recall, maybe even last week, looking at\n a photo lineup when Mr. Wicks was around?\n A: Uh-huh.\n Q: And you again said that it looks like but you couldn’t\n be sure because of some facial hair?\n A: Yeah, the facial hair did throw me off, but I will not\n forget the eyes. The eyes are the one thing that I do\n remember.\n Q: Now you indicated—yeah, you have talked about the\n eyes, but you didn’t say anything in your statement\n about the eyes.\n A: That’s the one thing that I do remember.\n Q: But you didn’t tell the police about it at the time?\n A: No. But like I said, I was also very groggy.\n\nNo. 18-1573 7\n\nSims later testified and his mug shot showed that he had facial\nhair, a mustache and goatee, at the time he was arrested.\n Additionally, Carey testified that the photograph of Sims in\nthe emergency room that was not part of the record was shown\nto him by itself and not as part of a photographic lineup:\n Q: And you indicated now that there was another picture\n that you were shown, a single picture you were shown,\n in the emergency room?\n A: I was shown that in the emergency room. If I recall,\n my—my parents were in the emergency room, but I’m\n not sure if they were in there when they showed me\n this picture. They did show me a picture in the emer-\n gency room.\n Carey stated the lighting in the parking lot was “some-\nwhat—subdued would be the word I’d use, somewhat faint.”\nCarey also testified that he was not wearing his glasses the\nnight of the shooting, although his vision was not so poor that\nhe was required to wear them to drive.\n Defense counsel impeached Carey regarding inconsisten-\ncies in his description of the assailant. The defense pointed out\nthat the description of the assailant included that he had short\nhair or was bald. However, Sims later testified that his hair was\nnot short or shaved but was curly and longer at the time he\nwas arrested. The defense pressed Carey on his description of\nthe shoes worn by the assailant. Carey had described the\nassailant as wearing black combat boots; Sims later testified\nthat he was wearing black and white Nike sneakers. The\ndefense also noted that Carey had indicated the assailant was\nwearing black pants, but Sims testified that he was wearing\nblue jeans. The defense asked Carey if there was a hood on the\ncoat, to which Carey responded that his memory had im-\n\n8 No. 18-1573\n\nproved over time on the matter: “I recall—I did not recall it at\nthe time. Later on I did recall a hood, and it was part of the\nway up.” During direct examination Sims testified that he was\nwearing an Orlando Magic baseball cap when he was arrested.\nFurthermore, the defense pointed out that the distinct patch\ndetailed in direct examination and used to identify Sims’s coat\nwas never mentioned in his description of the assailant.\n After Carey stepped down from the witness stand the\ndefense moved for a mistrial based upon the testimony elicited\nfrom Carey:\n [Carey] testified that while he was in the emer-\n gency room immediately after being shot that he\n was shown a single photograph of the defen-\n dant. The defendant would indicate to the Court\n that the type of identification process, being a\n single photograph, is prejudicial and suggestive\n and clearly taints any subsequent identification\n that may have been made in this\n matter … Based on that single photographic\n identification, I believe that the in-court identifi-\n cation was tainted by the suggestive nature of\n the initial identification.\nThe court denied the motion stating there was no evidence\nfrom the state or defendant that indicated a single photograph\nwas ever shown to the victim. The court stated the only way it\ncould be assumed that a single photograph lineup occurred\nwas by accepting everything Carey said was true, which was\nnot required. The court also found the in-court identification\n\nNo. 18-1573 9\n\nsufficient to overcome any undue suggestiveness of a single\nphotograph lineup.1\n Closing argument took place on August 24, 1994. The\nprosecution leaned heavily, almost exclusively, on Carey’s\ntestimony: “He has identified as the shooter this defendant,\nMack Sims, and he has never hesitated a bit in that identifica-\ntion. And that, of course, is what this case is about is the\nvalidity of that identification.” The jury found Sims guilty of\nattempted murder.\n C. The Sentencing and Appeal Process\n Sims was sentenced to 35 years’ imprisonment on Decem-\nber 1, 1994. The defense filed a motion for a new trial on\nDecember 29, 1994, arguing “the Court erred when it allowed\nthe identification evidence of Shane Carey in that it was tainted\n\n\n1\n It is worth noting at this point that gleaning from the record precisely\nwhen photographic lineups were conducted and their result is difficult. It\nappears the first occurred on the night of the shooting. Carey could not\nrecall this lineup taking place, had glass in his eyes (from the shooting\nbecause the shot came through the window), and no record of the lineup\nappeared in the police report, but Faigh testified that Carey identified the\npicture of Sims as the shooter. The second lineup occurred a day or two\nlater in the hospital and Carey merely indicated that the picture of Sims\n“looked like” the shooter. Carey also testified he was shown a single picture\nof Sims in the hospital. Although he was unable to recall precisely when\nthis occurred, he remembered his parents were present in the room. The\nthird lineup took place two weeks later and its result is not indicated in the\nrecord. Carey simply testified, “about two weeks later ... I talked to John\nFaigh—and he put me under quite a bit of stress when he asked me. He was\nasking me a number of questions that irritated me to no end to say the least.\nAnd I don’t know what he was trying to accomplish, but I was not happy.”\nA fourth lineup occurred with Wicks and resulted in a positive identifica-\ntion. Finally, a fifth lineup occurred in which Carey admitted he was\nthrown off by a picture of Sims that included facial hair.\n\n10 No. 18-1573\n\nby an impermissibly suggestive pre-trial viewing of a picture\nof the Defendant by Mr. Carey.” On July 15, 1995, the trial\ncourt dismissed the motion. Its response in full was: “The court\nhas examined this alleged error and having further examined\nits notes, now determines that it believes that no error was\ncommitted or that no impermissible suggestive identification\ntook place and that there is no merit to specification no. 1.”\n Sims did not fare much better on appeal. In an unpublished\nopinion, the Court of Appeals of Indiana opined that the\n“[e]xtra-judicial exhibition of a single photograph to a victim\nis an unduly suggestive identification procedure.” However,\nthe court noted the strength of Carey’s in-court testimony, in\nparticular that he looked Sims directly in the eye, noticed the\nlight-colored patch of skin under one eye, and Sims was only\ntwo or three feet away from Carey when he was shot. These\nfactors considered with the identification of Sims in photo-\ngraphic lineups convinced the court that the totality of the\ncircumstanced provided a sufficient basis, independent of the\nimproper photograph display, to support the admissibility of\nthe in-court identification of Sims.\n D. Post-Conviction Proceedings\n On February 8, 2012, in what was supposed to be an\nevidentiary hearing regarding a post-conviction relief petition\nfiled by Sims, the information that formed the basis of this case\nwas revealed. Graham Polando, a deputy prosecuting attorney\nfor the state of Indiana stated in open court the following: “I\nconsulted with Judge [Charles] Wicks who was the trial deputy\n[for Sim’s attempted murder trial in 1994], he asked me not to\ndisclose what he told me, but he indicated that the victim in\nthis case identified the … defendant, Mr. Sims, only after\nhypnotism.” This fact was never disclosed to defense counsel.\n\nNo. 18-1573 11\n\n On June 8, 2012, the Elkhart County Superior Court held an\nevidentiary hearing to address the hypnotism issue. Carey\ntestified that when viewing the lineup administered by\ndetective Faigh the day after the shooting, he merely stated the\nindividual “looked like” the assailant because “at the time [he]\nwas not extremely sure.” Carey also testified that the prosecut-\ning attorney in the case, Wicks, brought up the idea of hypno-\nsis saying “they could put [him] under hypnosis … but\n[indicated] there might be a problem in court in the future.”\nCarey responded that he did not have a problem with any\nfuture legal issues regarding the hypnosis so long as he was\nable to recall the person who shot him. Carey also testified that\nWicks set up the appointment and the state paid for it.\n Carey testified that he attended one session of hypnosis in\nwhich he “fell asleep … [and] literally entered a dream state in\nwhich I … recall[ed] the shooting itself. And during that time\nI had another opportunity to uh, see the person that shot me.”\nSims’s attorney then asked Carey:\n Q: Okay. So it was really only after this hypnosis that you\n were sure of the person was that shot you?\n A: Yeah.\nCarey indicated the session took place months before trial\n“when [Wicks] and I first started talking about who the\nperpetrator was.” After the session, Wicks created another\nphotographic lineup and this time Carey was able to identify\nSims due to the skin coloration on the face of the assailant that\nCarey noticed while reliving the night of the shooting under\nhypnosis. In fact, Carey stated that only “after the hypnotism\nthe birthmark really stood out.”\n The court reconvened the hearing on June 12 and Charles\nWicks, the prosecutor in Sims’s case and now a Judge for the\n\n12 No. 18-1573\n\nElkhart County Superior Court, testified. He stated that he\ncould not recall whether Carey disclosed he had been hypno-\ntized. A few breaths later Wicks defended not disclosing the\nhypnotism asserting it was not exculpatory in nature because\nCarey never wavered in his identification of Sims as the\nassailant. Wicks then testified that he gave Carey the informa-\ntion of the individual that performed the hypnotism because\neven though Carey had given a “fairly complete summary of\nwhat happened to him that evening, he said he would like to\nbe able to recollect the evening better.” The hypnotist was\nGeorge Atkins, a licensed physician’s assistant who Wicks\nknew from Kiwanis Club and had used in the past to help\npersonal injury clients recall traumatic events.\n Later in the hearing the court questioned deputy prosecut-\ning attorney Polando regarding the statement Wicks made to\nhim, asking whether the following quotation was correct: “‘I\nnever told Jim Stevens’ (meaning Deputy Public Defender\nStevens), ‘that the victim was … only able to identify Mr. Sims\nafter he was hypnotized.” Polando confirmed this was correct,\nand added that Wicks also told him not to tell anyone. When\nWicks retook the stand he stated he did not recall saying this\nto Polando.\n On September 6, 2012, the Elkhart Superior Court entered\nan order denying Sims’s Second Amended Petition for Post-\nConviction Relief. In its order, the court identified the main\nissue as “whether Carey was able to sufficiently identify\nPetitioner before hypnosis.” The court then discounted Wicks’\nstatement to Polando that Carey was only able to identify Sims\nafter hypnosis because Wicks “had not had time to consider the\ncase before speaking with DPA Polando.” The court also gave\nweight to the fact that other evidence contradicted this state-\nment. The court noted that Officer Lerner testified that Carey\n\nNo. 18-1573 13\n\ncould identify the assailant from the beginning and that his\ndescription of the assailant matched Sims. The court then cited\nwith approval the photographic lineup presented to Carey the\nday after the shooting in which Carey noted the picture of Sims\n“looked like” the assailant. The court concluded “[f]rom the\nrecord of the case, Carey was able to identify the Petitioner\nwell before hypnosis.”\n After outlining the test established by Brady v. Maryland,\n373 U.S. 83, 87 (1963), the court noted the evidence was\nfavorable to the defense, at a minimum as impeaching evi-\ndence, that would have been beneficial to the defense to\ndiscredit the state’s only eye-witness. The court then immedi-\nately concluded that the evidence was not material because\nthere was not a reasonable probability that disclosure would\nhave changed the result of the proceeding. It was persuaded\nbecause the defense vigorously cross-examined Carey at trial\nand the Indiana Rules of Evidence only rendered inadmissible\ntestimony of a witness as to matters recalled only through\nhypnosis. Thus, the court reasoned, Carey’s testimony would\nnot have been found inadmissible because Carey could\nsufficiently identify his assailant prior to hypnosis. The court\nalso noted that Carey never identified anyone other than Sims\nfrom a photographic lineup and that his description of the\nassailant did not substantially change after hypnosis.\n On July 15, 2013, the Court of Appeals of Indiana affirmed\nthis decision. The court noted that under Indiana law, evidence\nderived from a hypnotically entranced witness should be\nexcluded because the evidence is affected by confabulation, a\nprocess that causes the subject to fill in memory gaps with\nfantasy. The court also noted that because the subject is\nconfident that the recalled memories are based in fact and\naccurate, the witness will likely be impervious to cross-exami-\n\n14 No. 18-1573\n\nnation. However, the court held that the state had carried its\nburden of demonstrating by clear and convincing evidence the\nwitness’s in-court identification had a factual basis independ-\nent of the hypnosis and therefore would have been admissible\nunder the Indiana Rules of Evidence. The court noted that\nCarey testified at trial that he was able to look directly into the\nface and eyes of his assailant and that Carey’s description of\nSims the night of the shooting matched Sims. The court also\nnoted Carey identified Sims three times in photographic\nlineups before he underwent hypnosis. The court found that\nCarey’s identification had a sufficient pre-hypnosis foundation\nto have been admissible because Carey “was subjected to\nvigorous cross-examination regarding his numerous identifica-\ntions of Sims.” The court also gave weight to Carey’s testimony\nat the evidentiary hearing that the hypnosis did not help him\nidentify Sims, but rather made him “extremely sure” of his\nidentification.\n After the Indiana Supreme Court denied relief, Sims filed\na petition for a writ of habeas corpus in federal court. The\ndistrict court found that the Indiana Court of Appeals’ decision\nwas neither contrary to, nor involved an unreasonable applica-\ntion of, clearly established federal law. The court also found\nthat the state court’s decision was not based on an unreason-\nable determination of the facts. Accordingly, the district court\ndenied habeas relief, but certified its appealability pursuant to\n28 U.S.C. § 2253(c), finding that reasonable jurists could differ\non whether the post-conviction relief court erred in finding\nrelief was not warranted.\n II. ANALYSIS\n We review de novo a district court’s denial of a petition for\nwrit of habeas corpus. Carter v. Thompson, 690 F.3d 837, 843 (7th\n\nNo. 18-1573 15\n\nCir. 2012). This review is governed by the Anti-terrorism and\nEffective Death Penalty Act of 1996 (“AEDPA”). The statute\nsignificantly limits the scope of our review; “habeas relief\ncannot be granted for persons in custody pursuant to a\njudgment of a state court unless the adjudication of the claim:\n‘(1) resulted in a decision that was contrary to, or involved an\nunreasonable application of, clearly established federal law, as\ndetermined by the Supreme Court of the United States; or\n(2) resulted in a decision that was based on an unreasonable\ndetermination of the facts in light of the evidence presented in\nthe State court proceeding.’” Czech v. Melvin, 904 F.3d 570, 573\n(7th Cir. 2018) (quoting 28 U.S.C. § 2254(d)). A federal court\nmay issue a writ of habeas corpus under the “contrary to”\nclauses of AEDPA if the state court applied a rule different\nfrom law set forth in Supreme Court precedent, or if it decides\na materially indistinguishable case differently than the Su-\npreme Court. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing\nWilliams v. Taylor, 529 U.S. 362, 405–406 (2000) (O’Connor, J.,\nconcurring). A state court decision is an “unreasonable\napplication” if it correctly identifies the governing legal rule,\nbut applies it unreasonably. Williams v. Taylor, 529 U.S. 362,\n408–409 (2000).\n On appeal, Sims’s principal argument is that the state\nwithholding the evidence that Carey was hypnotized prior to\ntrial violated Sims’s constitutional rights as established in\nBrady. Under Brady, a defendant’s due process rights are\nviolated if the state withholds favorable evidence from the\ndefense that is material to the defendant’s guilt or punishment.\nBrady, 373 U.S. at 87. The state court found, and the parties do\nnot dispute, the hypnosis evidence would have been favorable\nto the defendant and it was not disclosed by the state. We\nagree. Therefore, the only issue before us is whether the\n\n16 No. 18-1573\n\nIndiana court’s decision, that suppression of evidence that the\nstate’s star witness was hypnotized was not material under\nBrady, is contrary to or an unreasonable application of clearly\nestablished federal law.2 Because the Indiana court’s decision\nwas both, we reverse the district court and grant the writ.\n A. “Clearly Established” Federal Law\n The Supreme Court has clearly established that strong and\nnon-cumulative impeachment evidence related to an important\ntrial witness is material under Brady. A new trial is not\n“automatically require[d] … whenever a combing of the\nprosecutors’ files after the trial has disclosed evidence possibly\nuseful to the defense but not likely to have changed the verdict.\nA finding of materiality of the evidence is required under\nBrady.” Giglio v. United States, 405 U.S. 150, 154 (1972) (internal\ncitations and quotations omitted). Evidence is material under\nBrady if “there is a reasonable probability that, had the evi-\ndence been disclosed, the result of the proceeding would have\nbeen different.” Kyles v. Whitley, 514 U.S. 419, 433. A “reason-\nable probability” exists if the suppression of the favorable\nevidence “undermines confidence in the outcome of the trial.”\nId. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).\n Nearly half a century ago, the Supreme Court held “[w]hen\nthe reliability of a given witness may well be determinative of\nguilt or innocence, nondisclosure of the evidence affecting\n\n\n2\n Although the Court must generally discuss whether the error was\nharmless in its review of a petition for a writ of habeas corpus, the Supreme\nCourt has made it clear that such an inquiry is unnecessary in Brady cases\nbecause the materiality standard contemplated by Brady is a higher burden\non defendants than harmless error. Kyles v. Whitley, 514 U.S. 419, 435–36.\nThus, if a petitioner establishes materiality under Brady, harmless error has\nbeen established and no further analysis is necessary.\n\nNo. 18-1573 17\n\ncredibility” justifies a new trial under Brady. Giglio, 405 U.S. at\n154. In Giglio, the defendant was convicted of passing forged\nmoney orders. Id. at 151. The prosecution’s case centered\naround the testimony of the defendant’s co-conspirator, Robert\nTaliento, who was the only witness able to link the defendant\nto the crime. Id. Taliento confessed and described the scheme\nto a grand jury. Id. At trial, Taliento testified and identified the\ndefendant as the instigator of the scheme. Id. Defense counsel\nvigorously cross-examined Taliento seeking to impeach him\nregarding a possible arrangement for prosecutorial leniency if\nhe agreed to testify. Id. Taliento testified that no agreement had\nbeen reached, but the defendant later discovered he agreed to\ntestify before the grand jury if the state agreed not to prosecute\nhim. Id. at 151–52. Even though the impeachment evidence\nonly went to his credibility, the Court found the information\nwas material under Brady. Id. at 154.\n Conversely, cases in which the Supreme Court has found\nthe suppression of impeachment evidence was not material\nunder Brady are easily distinguishable. For example, in Turner,\nthe Court found suppressed impeachment evidence was not\nmaterial because it was “largely cumulative of impeachment\nevidence petitioners already had and used at trial,” and\nbecause the impeachment evidence only involved minor\nwitnesses. Turner v. United States, 137 S. Ct. 1885, 1894 (2017).\n Thus, the Supreme Court has long recognized that suppres-\nsion of strong and non-cumulative evidence related to the\ncredibility of an important witness is material under Brady, at\nleast when the witness’s testimony is critical to the prosecu-\ntion’s case. See also Kyles, 514 U.S. at 441–42 (holding that the\nstate’s case relied heavily on the testimony of eyewitnesses\nwho identified the defendant as the murderer, therefore failure\nto disclose impeachment evidence related to those witnesses\n\n18 No. 18-1573\n\nwas material under Brady) and Wearry v. Cain, 136 S. Ct. 1002,\n1007 (2016) (withholding impeachment evidence of state’s star\nwitness violated Brady).\n B. “Unreasonable Application of” and “Contrary to”\n Controlling Precedent\n A close reading of the Indiana Court of Appeals’ decision\nshows where that court went astray from the law established\nby the Supreme Court of the United States. The state court\nactually acknowledged that “[e]vidence derived from a\nhypnotically entranced witness is inherently unreliable as not\nhaving probative value and is therefore inadmissible.” 990\nN.E.2d 523, 2013 WL 3526759 at 4 (Ind. Ct. App. 2013), citing\nRowley v. State, 483 N.E.2d 1078, 1081 (Ind. 1985). Rowley, in\nturn, followed Strong v. State, 435 N.E.2d 969, 970 (Ind. 1982),\nwhich reviewed case law from around the country in rejecting\nhypnotically enhanced testimony. Rowley and Strong had gone\non to hold that a witness who has undergone hypnosis may\ntestify to identify a wrongdoer in a criminal trial, nevertheless,\nif the prosecution can show by clear and convincing evidence\nthat the in-court identification has a sufficient independent\nfactual basis.\n In Sims’s case, the Indiana Court of Appeals veered away\nfrom the Brady materiality standard. Instead of deciding\nwhether the concealed evidence was important enough to\nundermine confidence in the result of the trial without it, the\nstate court analyzed whether Carey’s in-court identification of\nSims had a sufficient independent factual basis so as to have\nbeen admissible. We assume that the finding of admissibility\nwas correct under state law. But the state court then made the\nleap that was contrary to, and an unreasonable application of,\nBrady and its progeny: it concluded that because Carey’s\n\nNo. 18-1573 19\n\ntestimony would still have been admissible, “it is not reason-\nably probable that the outcome of Sims’s trial would have been\ndifferent had Carey’s hypnosis been disclosed.”\n That was a clear error. Brady’s materiality standard is not an\nadmissibility test. It requires the court to gauge the potential\neffects on the outcome of the trial if the concealed information\nhad been available to the defendant. See Smith, 56 U.S. at\n75–76; Kyles, 514 U.S. at 453–54; Strickler, 527 U.S. at 289–90.\nThe Indiana court did identify Brady’s overarching rule, but\nfailed to correctly apply, or even recognize, the materiality\nstandard outlined by the Supreme Court. Courts must consider\nthe overall strength of the prosecution case, the importance of\nthe particular witness’s credibility to the prosecution case, the\nstrength of the concealed impeachment material, and how the\nconcealed material compares to other attacks the defense was\nable to make on the witness’s credibility. See Kyles, 514 U.S. at\n441, 445, 451, 454; Giglio, 405 U.S. at 154–55; Smith, 565 U.S. at\n76; Wearry, 136 S. Ct. at 1006–07.\n Giglio, Kyles, Wearry, and Smith all involved concealment of\nstrong and non-cumulative impeachment evidence for the\nwitnesses whose credibility was critical to the prosecution\ncases. They provide a body of clearly established law showing\nwhen impeachment evidence is material under Brady. Turner\nand Strickler, by contrast, show that concealed impeachment\nevidence may not be material when the prosecution case is\nstrong apart from the witness in question and when the\nconcealed impeachment evidence would have added little\nweight to the defendant’s attacks on the witness’s credibility.\n Concealing the hypnosis of Carey in this case falls on the\nmaterial side of the line mapped by these Supreme Court cases.\nWithout Carey’s identification of Sims as the shooter, the\n\n20 No. 18-1573\n\nprosecution had no case. No physical evidence tied Sims to the\nshooting. His presence by the dumpster shortly after the\nshooting was suspicious, of course, but far short of what would\nhave been needed to convince a jury to convict.\n The fact that Carey had been hypnotized would have\nundermined his credibility and changed his cross-examination\nquite dramatically. As the Supreme Court explained in Rock v.\nArkansas, 483 U.S. 44, 59–60 (1987), there are several serious\nproblems that undermine the accuracy and credibility of\nhypnotically enhanced testimony:\n Responses of individuals to hypnosis vary\n greatly. The popular belief that hypnosis guar-\n antees the accuracy of recall is as yet without\n established foundation and, in fact, hypnosis\n often has no effect at all on memory. The most\n common response to hypnosis, however, ap-\n pears to be an increase in both correct and\n incorrect recollections. Three general character-\n istics of hypnosis may lead to the introduction of\n inaccurate memories: the subject becomes\n “suggestible” and may try to please the hypno-\n tist with answers the subject thinks will be met\n with approval; the subject is likely to “confabu-\n late,” that is, to fill in details from the imagina-\n tion in order to make an answer more coherent\n and complete; and, the subject experiences\n “memory hardening,” which gives him great\n confidence in both true and false memories,\n making effective cross-examination more diffi-\n cult.\n\nNo. 18-1573 21\n\n Essentially, “[n]ot only do hypnotized witnesses find it\ndifficult to distinguish their original memories from those\nbrought out under hypnosis, but they also tend to become\nmore confident about their recall despite the fact that it might\ncontain false recollections.” Edie Greene, Kirk Heilbrun,\nWilliam H. Fortune, & Michael T. Nietzel, Wrightsman’s\nPsychology and the Legal System 140 (6th ed. 2007); see also\nSteven Jay Lynn, Elza Boycheva, Amanda Deming, Scott O.\nLilienfeld, & Michael N. Hallquist, Forensic Hypnosis: The\nState of the Science, in Psychological Science in the Courtroom:\nConsensus and Controversy, 85 (Jennifer L. Skeem, Kevin S.\nDouglas, & Scott O. Lilienfeld 2009) (“23 studies have shown\nthat hypnosis either increases confidence relative to a\nnonhypnotic group, or participants confidently report inaccu-\nrate memories of events they earlier denied occurred when\nthey were not hypnotized”).\n The concealed hypnosis thus explains Carey’s puzzling\nstatement at trial that his memory of the incident actually\nimproved over time.3 But more fundamentally, it calls into\nquestion everything Carey said at trial. Based on the Supreme\nCourt’s view of hypnosis, Carey would not know what he was\nable to recall independent of the hypnosis, nor what he was\nable to recall because of the hypnosis, or whether any of his\ntestimony was true or based on fantasy. This is made more\ntroubling by the fact that Carey provided significantly more\ninformation at trial than he did any time before trial. Carey\ndiscussed in detail looking the assailant square in the eyes, that\nhe remembered witnessing a small patch on the assailant’s\njacket, that he remembered a small birthmark on the assailant’s\n\n\n3\n As noted above, Carey stated at trial, “I recall—I did not recall it at the\ntime. Later on I did recall a hood, and it was part of the way up.”\n\n22 No. 18-1573\n\nface. As the defense pointed out at trial, none of these details\nwere in Carey’s description to Officer Lerner nor did they\nappear in the police report. It is reasonable to infer the jury\nfound these details persuasive without knowing that Carey’s\nrecollection of them might have been due entirely to the\nhypnosis session.\n The “memory hardening” effect of hypnosis can explain\nCarey’s admission during post-conviction proceedings that he\nwas sure of who the person was who shot him only after being\nhypnotized. The effect Carey’s increased confidence likely had\non the jury helps to undermine our confidence in the verdict.\nDecades of research confirms that the confidence with which\neyewitnesses identify criminal defendants can be a powerful\npredictor of verdicts regardless of the accuracy of the identification.\nThe more confident the eyewitness is in his identification, the\nmore likely the jury is to believe that the identification is\naccurate and to convict the defendant. See Brian L. Cutler,\nSteven D. Penrod, & Thomas E. Stuve, Juror Decision Making\nin Eyewitness Identification Cases, 12 Law and Human\nBehavior 41 (1988); Steven G. Fox & H.A. Walters, The Impact\nof General versus Specific Expert Testimony and Eyewitness\nConfidence upon Mock Juror Judgment, 10 Law and Human\nBehavior 215 (1986); Michael R. Leippe, Andrew P. Manion, &\nAnn Romanczyk, Eyewitness Persuasion: How and How Well Do\nFact Finders Judge the Accuracy of Adults’ and Children’s Memory\nReports?, 63 Journal of Personality & Social Psychology 181\n(1992); Lynn et al. at 85; Gary L. Wells, What Do We Know About\nEyewitness Identification?, 48 American Psychologist 553, 564\n(1993); Gary L. Wells, R.C.L. Lindsay, & Tamara J. Ferguson,\nAccuracy, Confidence, and Juror Perceptions in Eyewitness Identifi-\ncation, 64 Journal of Applied Psychology 440 (1979).\n\nNo. 18-1573 23\n\n It is not difficult to imagine what Sims’s lawyer could have\ndone at trial with the knowledge that Carey had been hypno-\ntized. The known effects of hypnosis could explain Carey’s\nconfidence, his claim that his memory of the shooting had\nimproved over time, and the otherwise benign changes in his\ndescriptions of the shooter. Reasonable judges cannot be\nconfident that, if the jury had known that Carey had been\nhypnotized before he identified Sims at trial, they would have\nfound his identification beyond reasonable doubt.\n Given the well-known problems that hypnosis poses for\nwitnesses’ memories, we can be confident that Carey’s identifi-\ncation testimony would have been subjected to withering\ncross-examination. As noted, the prosecution’s case against\nSims depended completely on Carey’s credibility, which the\nsuppressed hypnosis evidence would have severely under-\nmined. The evidence would have cast doubt for the jury not\nonly on Carey’s in-court identification, but also on Carey’s\ncredibility as a witness more generally, including the accuracy\nof his prior identifications of Sims. The jury saw Carey identify\nSims only once, in court. The prior identifications were heard\nonly secondhand. If the jurors had known that Carey needed\nto be hypnotized to make the in-court identification, they\nwould have been less likely to believe Carey was confident that\nSims was his assailant, and therefore that his identification was\naccurate. From there and without the ability to observe Carey\nmake his prior, untainted identifications, the jury could easily\nhave questioned Carey’s overall credibility as an eyewitness.\n The Indiana appellate court noted that Carey was able to\ndescribe the clothing and physical attributes of the assailant\nwho matched Sims’s clothing and physical attributes when he\nwas discovered on the scene. However, the trial court tran-\nscript illustrates the defense cross-examined Carey vigorously\n\n24 No. 18-1573\n\nand pointed out several instances in which his description of\nthe assailant did not match Sims’s clothing or physical attrib-\nutes the night of the incident. The undisputed details merely\nprovide the shooter was a black male with a large build\nwearing a three quarter length coat. This is not the kind of\nidentification that instills confidence especially in a case that\nthe prosecution described as being all about “the validity of\nCarey’s identification.”\n The state court noted Carey identified Sims three times in\nphotographic lineups before hypnosis. Carey had glass in his\neyes and did not recall the first lineup and was unable to\nidentify the shooter in a lineup two days later. Furthermore,\nsignificant doubt was cast on these lineups by the fact that\nCarey testified that he was initially only shown a single\npicture. The defense moved for a mistrial, which was denied,\nand the issue was affirmed on appeal. However, the Indiana\nCourt of Appeals affirmed this decision because they were\nconvinced the totality of the circumstances constituted a\nsufficient independent basis to cure any unduly suggestive\nprocedures. But the suppressed evidence of hypnosis now\nbrings this ruling into question.\n The dissent assails our opinion by asserting that Carey\nnever wavered in his identification of Sims. This does not\nexplain why Wicks felt it necessary to take the risk of setting\nup a hypnosis session for Carey without disclosing it. Nor does\nit appear to take into account the instances in which Carey\nequivocated. Furthermore, the only indication as to when the\nhypnosis session took place is Carey’s testimony at the post-\nconviction evidentiary hearing that it was months before trial\nwhen he and Wicks “first started talking about who the\nperpetrator was.”\n\nNo. 18-1573 25\n\n Finally, these problems with hypnosis undercut the Indiana\ncourt’s final reason for refusing post-conviction relief: Carey’s\ntestimony indicated he was able to identify the assailant, but\nhypnosis was able to make him “extremely sure.” No one\nknows what effect the hypnosis had on Carey and it also belies\nthe record for reasons discussed above.\n Considering the overall weakness of the prosecution case\nwithout Carey, the importance of his testimony, the explosive\nstrength of the concealed hypnosis evidence, and the relatively\nmild impeachment of Carey that the defense managed at trial,\nhabeas relief is required. The post-Brady cases involving strong\nconcealed impeachment material for key prosecution wit-\nnesses—Smith, Giglio, Wearry, and Kyles—show beyond\nreasonable dispute that the prosecutor’s deliberate conceal-\nment of the hypnosis evidence undermined confidence in the\nverdict that has kept Sims in prison for more than twenty\nyears.\n III. CONCLUSION\n Given the suppression of the evidence was clearly a\nviolation under Brady, the writ of habeas corpus should have\nbeen granted. Therefore, we reverse and remand the case to the\ndistrict court with instructions to grant the writ of habeas\ncorpus.\n\n26 No. 18-1573", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363985/", "author_raw": "William Joseph Bauer"}, {"author": "BARRETT, Circuit Judge, dissenting", "type": "dissent", "text": "BARRETT, Circuit Judge, dissenting. I dissent from the\nmajority opinion because it fails to give the Indiana Court of\nAppeals the deference required by 28 U.S.C. § 2254(d). Under\nthat provision, a federal court may grant habeas relief only if\nthe state court proceedings (1) “resulted in a decision that was\ncontrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the\nSupreme Court of the United States”; or (2) “resulted in a\ndecision that was based on an unreasonable determination of\nthe facts in light of the evidence presented in the State court\nproceeding.” The majority holds that the Indiana Court of\nAppeals’ decision satisfies § 2254(d)(1). I disagree. Even\nthough I think that the undisclosed evidence of Carey’s\nhypnosis constitutes a Brady violation, it was neither contrary\nto, nor an unreasonable application of, clearly established\nfederal law for the Indiana Court of Appeals to conclude\notherwise.\n I.\n The Indiana Court of Appeals’ decision to deny Sims’s\npetition for post-conviction relief was not “contrary to”\nclearly established law as determined by the Supreme Court\nof the United States. A decision is “contrary to” clearly\nestablished federal law if it (1) “applies a rule different from\nthe governing law set forth in our cases” or (2) “decides a case\ndifferently than [the Supreme Court] ha[s] done on a set of\nmaterially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,\n694 (2002). To apply this standard, we must first consider\nwhat rule has been clearly set forth in the Supreme Court’s\ncaselaw.\n The three elements of a Brady violation have been clearly\nestablished, including the materiality prong at issue here. See,\n\nNo. 18-1573 27\n\ne.2727g., Goudy v. Basinger, 604 F.3d 394, 400 (7th Cir. 2010).\nEvidence is material if there is “a reasonable probability that,\nhad the evidence been disclosed, the result of the proceeding\nwould have been different.” Turner v. United States, 137 S. Ct.\n1885, 1893 (2017) (internal quotation marks and citation\nomitted). A “reasonable probability” is one that “undermines\nconfidence in the outcome of the trial.” Kyles v. Whitley, 514\nU.S. 419, 434 (1995) (internal quotation marks omitted)\n(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In\naddition, the holding in Giglio v. United States, 405 U.S. 150,\n154 (1972), that impeachment evidence “falls within the Brady\nrule,” is likewise clearly established. See Bagley, 473 U.S. at\n676; Collier v. Davis, 301 F.3d 843, 848 (7th Cir. 2002).\n The majority’s first error comes in its description of the\ngeneral rule that Brady establishes with respect to\nimpeachment evidence. The Supreme Court has not held, as\nthe majority would have it, that “‘[w]hen the reliability of a\ngiven witness may well be determinative of guilt or\ninnocence, nondisclosure of the evidence affecting credibility’\njustifies a new trial under Brady.” Maj. Op. at 18 (emphasis\nadded) (citing Giglio, 405 U.S. at 154). The italicized phrase is\nthe majority’s; the full sentence from Giglio is this: “[w]hen the\nreliability of a given witness may well be determinative of\nguilt or innocence, nondisclosure of the evidence affecting\ncredibility falls within [Brady’s] general rule.” See Giglio, 405\nU.S. at 154 (quotation omitted). Again, that general rule asks\nwhether the undisclosed evidence is material. And\nmateriality—whether the evidence at issue is exculpatory or\nimpeaching—is always a fact-intensive inquiry, as the\nsentences in Giglio immediately following the one that the\nmajority quotes make clear:\n\n28 No. 18-1573\n\n When the reliability of a given witness may well be\n determinative of guilt or innocence, nondisclosure\n of evidence affecting credibility falls within [Brady’s]\n general rule. We do not, however, automatically require\n a new trial whenever a combing of the prosecutors’ files\n after the trial has disclosed evidence possibly useful to the\n defense but not likely to have changed the verdict. A\n finding of materiality of the evidence is required under\n Brady.\nId. at 154 (emphasis added) (internal quotation marks,\ncitations, and alteration omitted). In other words,\nimpeachment evidence related to a key witness is material\nonly if it undermines confidence in the verdict. See id. at 154–\n55 (suppressed evidence of bias that called into question a key\nwitness’s entire testimony was material); see also Kyles, 514\nU.S. at 441–42 (undisclosed contradictory statements by a key\nwitness that arguably pointed to a suspect other than the\ndefendant were material because they “substantially\nreduced” or “destroyed” the witness’s value). To be sure,\nimpeachment evidence related to a key witness is more likely\nto be material than impeachment evidence related to a bit\nplayer. But contrary to the majority’s suggestion, the Supreme\nCourt has never announced a hard-and-fast rule requiring a\nnew trial when non-cumulative evidence related to the\ncredibility of an important witness is suppressed. Even when\nit comes to a star witness, Giglio and its progeny require courts\nto evaluate whether the suppressed evidence is in fact\nmaterial—not merely to assume it.\n The majority’s second error lies in its assertion that the\nIndiana Court of Appeals confused the Brady materiality\nstandard with the Indiana Rules of Evidence. The Supreme\n\nNo. 18-1573 29\n\nCourt has explained that “[a] federal habeas court may issue\nthe writ under the ‘contrary to’ clause if the state court applies\na rule different from the governing law set forth in our\ncases….” Bell, 535 U.S. at 694. According to the majority, the\nstate court made that very error here—it says that the state\ncourt concluded that the suppressed evidence was not\nmaterial because Carey’s identification would still have been\nadmissible under state law. Maj. Op. at 20. But that\nfundamentally misreads the state court opinion. The Indiana\nCourt of Appeals did explain that “[e]vidence derived from a\nhypnotically entranced witness” is inadmissible under state\nlaw unless “the State … demonstrate[s] by clear and\nconvincing evidence that the witness’s ‘in-court identification\nhas a factual basis independent of the hypnotic session.’” Ind.\nCt. App. Op. at 7–8 (quoting Rowley v. State, 483 N.E.2d 1078,\n1081 (Ind. 1985)). Yet it did not analyze Sims’s Brady claim\nunder that standard. When it moved to the Brady issue, the\ncourt squarely identified and applied Brady.\n The Indiana Court of Appeals began by describing the trial\ncourt’s post-conviction decision, which held that while the\nevidence of hypnosis satisfied the first two prongs of Brady\nbecause it was both favorable and suppressed, it failed to\nsatisfy the third prong because it was not material. See Ind. Ct.\nApp. Op. at 8. The trial court fully recited the Brady standard,\nincluding the rule that “[e]vidence is material if there is a\nreasonable probability that disclosure would have changed\nthe result in the proceeding.” After discussing the evidence in\ndetail, the trial court concluded: “The evidence presented\nprovides sufficient confidence in the verdict. The record\nreveals that Carey was able to identify Defendant before\nhypnosis. Thus the Court finds that the hypnosis disclosure\n\n30 No. 18-1573\n\nwould not have changed the outcome, and its nondisclosure\ndid not amount to a Brady violation.”\n The Indiana Court of Appeals reviewed this reasoning,\nsetting much of it forth verbatim, and agreed that the\nevidence was not material given the counterbalancing\nstrength of the admissible identification: Carey got a good\nlook at the assailant, gave a detailed description that matched\nSims, and identified Sims in multiple pre-hypnosis photo\nlineups. It concluded that “the findings of fact and the record\nas a whole support the post-conviction court’s determination\nthat it is not reasonably probable that the outcome of Sims’s\ntrial would have been different had Carey’s hypnosis been\ndisclosed.” Ind. Ct. App. Op. at 10. That is the Brady standard.\nSee Turner, 137 S. Ct. at 1893 (explaining that evidence is\nmaterial if there is “a reasonable probability that, had the\nevidence been disclosed, the result of the proceeding would\nhave been different” (quotation omitted)). The majority is\nplainly correct that “Brady’s materiality standard is not an\nadmissibility test,” Maj. Op. at 20, but neither the Indiana\nCourt of Appeals nor the trial court treated it like one.\n A state court decision is “contrary to” clearly established\nlaw “if the state court applies a rule different from the\ngoverning law set forth in [the Supreme Court’s] cases, or if it\ndecides a case differently than [the Supreme Court] ha[s]\ndone on a set of materially indistinguishable facts.” Bell, 535\nU.S. at 694. Here, there is no question that the state court\napplied the Brady materiality standard, and there is no\nattempt to identify a Supreme Court case with materially\nindistinguishable facts. Thus, the state court decision was not\n“contrary to” clearly established federal law.\n\nNo. 18-1573 31\n\n II.\n The majority’s stronger argument is that the Indiana Court\nof Appeals unreasonably applied Brady’s materiality prong to\nthis set of facts. Section 2254(d)(1) prohibits us from\napproaching this question de novo; thus, we cannot simply\nask whether the suppressed evidence of hypnosis creates a\nreasonable probability of a different result. Instead, we must\nask the question that § 2254(d)(1) demands: whether it was\nunreasonable for the state court to conclude that evidence of\nhypnosis did not create a reasonable probability of a different\nresult.\n This is a high bar: the state court’s application of federal\nlaw “must be objectively unreasonable, not merely wrong;\neven clear error will not suffice.” Woods v. Donald, 135 S. Ct.\n1372, 1376 (2015) (per curiam) (internal quotation marks and\ncitation omitted). A prevailing habeas petitioner must “show\nthat the state court’s ruling on the claim being presented in\nfederal court was so lacking in justification that there was an\nerror well understood and comprehended in existing law\nbeyond any possibility for fairminded disagreement.”\nHarrington v. Richter, 562 U.S. 86, 103 (2011); see also Kidd v.\nLemke, 734 F.3d 696, 703 (7th Cir. 2013) (“We must deny the\nwrit if we can posit arguments or theories that could have\nsupported the state court’s decision, and if fairminded jurists\ncould disagree about whether those arguments or theories are\ninconsistent with Supreme Court holdings.”). The Indiana\nCourt of Appeals’ conclusion that the evidence of hypnosis\nwas not material—and thus that failure to disclose the\nevidence did not amount to a Brady violation—does not rise\nto that level.\n\n32 No. 18-1573\n\n The majority finds fault in multiple aspects of the Indiana\nCourt of Appeals’ reasoning. Many of its concerns, however,\nare objections to the facts found by that court. And without\nclear and convincing evidence that the state court was wrong,\nits factual determinations are not open for debate. See 28\nU.S.C. § 2254(e)(1) (“[A] determination of a factual issue made\nby a State court shall be presumed to be correct. The applicant\nshall have the burden of rebutting the presumption of\ncorrectness by clear and convincing evidence.”). 1\n Notably, the majority almost entirely discounts the facts\nthat support the Indiana Court of Appeals’ conclusion that the\nsuppressed evidence was immaterial. The state court found\nthat Carey looked directly into the face of Sims in fair, outside\nlighting at the time of the shooting; offered a detailed\ndescription of Sims on-scene; identified Sims in a photo array\nat the hospital emergency room; and identified Sims again\ntwo days later in a photo array at the prosecutor’s office. The\ndescription and identifications are crucial because they all\noccurred well before Carey underwent a session of hypnosis\nand thus bolster the reliability of the in-court identification\ndespite the evidence of hypnosis.\n\n\n\n 1 Though the majority does not hold, and Sims does not argue, that\nthe state court decision was “based on an unreasonable determination of\nthe facts” under § 2254(d)(2), some of the language in the opinion seems\nto at least raise the question. It is therefore worth noting that\nunreasonableness under § 2254(d)(2) is a very stringent standard. A\nfactual determination is unreasonable if it is “arbitrary,” Ben-Yisrayl v.\nBuss, 540 F.3d 542, 549 (7th Cir. 2008), but not if reasonable minds could\ndisagree on the finding in question, Wood v. Allen, 558 U.S. 290, 301 (2010).\nIn addition, we have held that “§ 2254(e)(1) provides the mechanism for\nproving unreasonableness.” Ben-Yisrayl, 540 F.3d at 549.\n\nNo. 18-1573 33\n\n The majority is particularly skeptical of the Indiana Court\nof Appeals’ finding that Carey identified Sims three times in\nphoto lineups before hypnosis. Maj. Op. at 25–26. It claims\nthat “significant doubt was cast on these lineups by the fact\nthat Carey testified that he was initially only shown a single\npicture.” Id. But there was a factual dispute on this point that\nthe Indiana Court of Appeals resolved: it concluded that\nCarey was presented with a picture lineup in the hospital\nemergency room. 2 The majority has not attempted to\ndemonstrate by clear and convincing evidence that this\nfinding is wrong—nor could it, because Sims has not\nattempted to do so. Thus, we must accept the state court’s\nfinding that Carey positively identified Sims in multiple pre-\nhypnosis photo lineups.\n Relatedly, the majority also suggests that Carey was able\nto identify Sims only after hypnosis. See Maj. Op. at 23, 26; see\nalso id. at 12–13. In the majority’s view, this conclusion is most\nconsistent with the trial record and best explains why Carey\nor the prosecutor would have “felt it necessary” to undergo\n\n\n 2 This issue was first raised when Sims moved for a mistrial after\ntestimony from Carey in which “he indicated that he might have been\nshown a single picture of Sims before he was shown photo arrays which\nincluded Sims’s picture.” The trial court denied the motion and the court\nof appeals affirmed, noting that “there was other testimony and evidence\nto the effect that Carey had never been shown a single photograph, but\nwas only shown arrays of six or seven photos,” and that in any event,\n“there was a sufficient basis, independent of any improper photo display,\nto support the admissibility of the in-court identification of Sims.” The\nissue arose again in the post-conviction proceedings, in which the state\ncourts found that “when the police arrived at the hospital emergency\nroom, they showed Carey photos of Sims and several other men, and\nCarey positively identified Sims as his assailant.”\n\n34 No. 18-1573\n\nhypnosis at all. Id. at 26. But just as § 2254 does not permit us\nto review a state court’s application of federal law de novo, it\nalso does not permit us to reweigh evidence according to our\nown best reading of the trial record. Both the state trial court\nand the Indiana Court of Appeals explicitly rejected the\nnotion that Carey identified Sims only after hypnosis: “the\ncontention that Carey was ‘only’ able to identify Petitioner\nfollowing the hypnosis is at odds with other credible\nevidence … in the record.… From the record of the case,\nCarey was able to identify Petitioner well before hypnosis.”\nInd. Ct. App. Op. at 6–7 (quoting the trial court); see also id. at\n9–10. The majority is not free to question this finding.\n After deciding for itself which facts are undisputed, the\nmajority frames the materiality question this way: could a\nfairminded judge be confident in Sims’s conviction where the\nonly evidence was Sims’s proximity to the scene of the crime\nand Carey’s solid but imperfect on-scene description? See Maj.\nOp. at 21, 25 (acknowledging Sims’s suspicious proximity to\nthe scene and citing Carey’s description as the only other\n“undisputed details”). But that framing stacks the deck by\nsifting out evidence on which the state court relied in\napplying Brady—most significantly, Carey’s identification of\nSims in the photo arrays. Absent clear and convincing\nevidence that the state court’s factual findings were wrong—\nwhich again, is not something that the majority undertakes to\nshow—we are required to take the facts as the state court\nfound them. 28 U.S.C. § 2254(e)(1). 3\n\n\n3 The majority claims that I “assail [its] opinion” by contesting its factual\nfindings with my own. Maj. Op. at 26. But that misses the point entirely.\nSection 2254 requires us to accept the facts as the state court presented\nthem and determine whether, on those facts, the state court’s legal\n\nNo. 18-1573 35\n\n Doing that leaves us with the following facts. Carey gave\nan on-scene description of the shooter that matched, in many\nrespects, a person crouching in the bushes behind a nearby\ndumpster. But the match was not perfect: Carey described a\nperson with short hair and wearing boots, and Sims was\napprehended apparently wearing a hat or hood and Nikes.\nCarey identified Sims in multiple pre-hypnosis photo arrays\nand “never identified any other as his assailant.” At some\npoint, before trial, Carey underwent a single session of\nhypnosis to improve his memory of the event. There is no\nrecord of what happened during this session. At trial, Carey\ngave a more robust description of his assailant than the one\ngiven on-scene—adding details like the discoloration under\nSims’s eye and the patch on his jacket—but he did not\ncontradict his initial description. He testified that his memory\nof certain details had improved over time. Defense counsel\ncross-examined Carey on all inconsistencies with and\nadditions to his initial description of the shooter. An officer\ntestified that, from the very beginning, Carey said that he\ncould identify the assailant, and that Carey’s description of\nthe assailant matched Sims. The government never found the\ngun used to shoot Carey. The jury found Sims guilty of\nattempted murder.\n The Indiana trial court drew two important conclusions\nfrom these facts in its post-conviction review. First, it decided\nthat the government had proven by clear and convincing\nevidence that Carey’s in-court identification of Sims had a\nsufficient factual basis independent of hypnosis. Second, the\n\nconclusions constituted an unreasonable application of federal law. I don’t\ncontest any of the majority’s factual findings, only its authority to make\nthem.\n\n36 No. 18-1573\n\ncourt noted that the distinctive elements of Carey’s trial\ntestimony, compared to his initial description, “were fully\ndeveloped, examined and vigorously discussed in cross\nexamination,” which gave the jury the opportunity to weigh\nCarey’s credibility regarding the differences. Given that the\ngovernment would still have been able to introduce a strong,\nreliable in-court identification of Sims and that, in the court’s\nview, many of the problems raised by hypnosis were already\naddressed by robust cross-examination, the court held that\nthe “evidence presented provides sufficient confidence in the\nverdict.” The Indiana Court of Appeals agreed. It emphasized\nthe independent strength of the in-court identification and the\n“vigorous cross-examination” of Carey before holding that “it\nis not reasonably probable that the outcome of Sims’s trial\nwould have been different had Carey’s hypnosis been\ndisclosed.” Ind. Ct. App. Op. at 10.\n That decision does not involve an objectively\nunreasonable application of clearly established federal law.\nThe state courts suggested that the undisclosed evidence\nwould have been largely cumulative, and therefore not\nmaterial, because the defense was already able to cross-\nexamine Carey about the differences in his testimony. The\nSupreme Court has held that “largely cumulative”\nimpeachment evidence is not material. See Turner, 137 S. Ct.\nat 1894. The majority acknowledges Turner’s holding but\ndisagrees that the hypnosis evidence would have been\ncumulative. In its view, the newly discovered evidence of\nhypnosis would have “changed [Carey’s] cross-examination\nquite dramatically” and “calls into question everything Carey\nsaid at trial.” Maj. Op. at 21, 23. But neither outcome is\nobviously true.\n\nNo. 18-1573 37\n\n Indeed, had the evidence of hypnosis been disclosed,\ndefense counsel would have likely emphasized the dangers of\nhypnotically-refreshed testimony discussed in Rock v.\nArkansas. See 483 U.S. 44, 59–60 (1987). At best, however, the\neffect of that argument would have been to undermine the\nreliability and credibility of any part of Carey’s testimony that\ncould not be traced to his memory prior to hypnosis. It was\nnot objectively unreasonable, then, for the state court to\nconclude that the impeachment evidence was largely\ncumulative: the vulnerable parts of Carey’s testimony—\ndescribing the discoloration under Sims’s eye and the patch\non his jacket—were already undermined by defense counsel’s\ncross-examination stressing that such details appeared\nnowhere in Carey’s on-scene description.\n But that debate is at the periphery. Under Indiana law\nevidence derived from hypnosis is inadmissible. See Ind. Ct.\nApp. Op. at 7 (citing Rowley, 483 N.E.2d at 1081). Thus, the\nquestion is not whether cross-examination of hypnotically-\nrefreshed testimony would have been effective—notably, the\nquestion that Rock speaks to.4 The question is whether without\nthe hypnotically-refreshed testimony, a reasonable jurist\ncould be confident in the conviction. Acknowledging the\neffectiveness of defense counsel’s cross-examination was one\n\n 4 Rock’s discussion of the dangers of hypnotically-refreshed testimony\n\nand the ineffectiveness of cross-examination on such testimony took place\nin the context of considering the admissibility of post-hypnosis testimony.\nSee 483 U.S. 44, 53, 61 (1987) (distinguishing between post-hypnosis\ntestimony and testimony that a litigant could “prove to be the product of\nprehypnosis memory” for the purposes of its analysis). Notably, Rock’s\nholding actually offered some protection for hypnotically-refreshed—that\nis, derived from hypnosis—testimony. See id. at 61 (post-hypnosis\ntestimony is not categorically unreliable).\n\n38 No. 18-1573\n\nway for the state court to test this question—i.e., because the\ndefense counsel cast substantial doubt on the reliability of the\nhypnotically-refreshed testimony, a reasonable jurist could be\nconfident that the pre-hypnosis evidence and testimony\ndrove the verdict.\n As an additional ground for its immateriality decision,\nhowever, the state court considered the pre-hypnosis\nevidence—and admissible identification related to that\nevidence—in isolation and expressed confidence that the jury\nwould have still decided to convict. The only additional boost\nthat the evidence of hypnosis would have given Sims’s\ndefense counsel on cross-examination under these\ncircumstances would have been to raise questions about why\nCarey underwent hypnosis in the first place. Certainly, the\njury might have some discomfort with the fact that Carey felt\nthe need to undergo hypnosis—as the majority does, and as I\ndo. But the key is the reliability of Carey’s identification of\nSims.\n Evidence of hypnosis and Carey’s reduced credibility over\ntime could not have retroactively undermined the reliability\nof his contemporaneous description of the events and the\nassailant or his multiple pre-hypnosis photo-lineup\nidentifications of Sims. Cf. Neil v. Biggers, 409 U.S. 188, 199–\n200 (1972) (identifying “the opportunity of the witness to\nview the criminal at the time of the crime, the witness’ degree\nof attention, the accuracy of the witness’ prior description of\nthe criminal, the level of certainty demonstrated by the\nwitness …, and the length of time between the crime and the\n[identification]” as factors relevant to reliability). Nor could it\nhave changed the fact that the police discovered Sims peering\ndown on the scene behind a nearby dumpster. Thus, unlike\n\nNo. 18-1573 39\n\nthe cases that the majority cites, in which the undisclosed\nevidence either contradicted the witness’s in-court\nidentification or shattered the credibility of a witness with no\ncontemporaneous corroboration for his in-court\nidentification, Carey’s contemporaneous description and pre-\nhypnosis identifications were independently reliable and\nconsistent with his in-court identification. Cf. Wearry v. Cain,\n136 S. Ct. 1002, 1004–05 (2016) (per curiam) (undisclosed\nstatements suggested that the witness was attempting to\nframe the defendant; undisclosed evidence suggested that the\nwitness was biased; undisclosed medical evidence suggested\nthat it would have been impossible for the defendant to have\ndone the things that the witness described); Smith v. Cain, 565\nU.S. 73, 74–76 (2012) (witness’s undisclosed contemporaneous\nstatements directly contradicted the testimony supporting his\nin-court identification); Kyles, 514 U.S. at 441–42 (witness’s\nundisclosed contemporaneous statements contradicted the\nin-court identification).\n In short, the state court concluded that the evidence of\nhypnosis was not only cumulative but also comparatively\nweak in light of the strength and reliability of Carey’s pre-\nhypnosis description and identifications. That conclusion is\nnot “beyond any possibility for fairminded disagreement.”\nSee Harrington, 562 U.S. at 103. Here, Carey’s hypnotically-\nrefreshed testimony was not “the only evidence linking [Sims]\nto the crime.” See Smith, 565 U.S. at 76. With a solid on-scene\ndescription, multiple untainted photo-array identifications,\nand an in-court identification by the victim—not to mention\nSims’s suspicious behavior and proximity to the scene of the\ncrime—a fair-minded jurist could be confident in the jury’s\nverdict, even if we are not. See Kidd, 734 F.3d at 703.\n\n40 No. 18-1573\n\n **\n Again, if I were deciding the question de novo, I would\nagree with the majority that the suppressed evidence of\nhypnosis undermined confidence in the verdict. But because\nI can’t say that the Indiana Court of Appeals’ decision was “so\nlacking in justification that there was an error well\nunderstood and comprehended in existing law beyond any\npossibility for fairminded disagreement,” Harrington, 562 U.S.\nat 103, I would affirm the district court’s denial of Sims’s\nhabeas corpus petition.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363985/", "author_raw": "BARRETT, Circuit Judge, dissenting"}]}	BAUER	HAMILTON	BARRETT	1	{"BAUER": ", Circuit", "HAMILTON": ", Circuit", "BARRETT": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586732/	Published	1	0	0	2,019	2	[ { "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...
4,586,733	Jeffery A. KOPPLIN, Plaintiff-Appellant, v. WISCONSIN CENTRAL LIMITED, D/B/A CN, Defendant-Appellee.	Jeffery Kopplin v. Wisconsin Central Limited	2019-02-01	17-3602	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Sykes, Barrett, Eve", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3602\nJEFFERY A. KOPPLIN,\n Plaintiff-Appellant,\n v.\n\nWISCONSIN CENTRAL LIMITED,\nd/b/a CN,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court\n for the Eastern District of Wisconsin.\n No. 16-cv-588 — Pamela Pepper, Judge.\n ____________________\n\n ARGUED SEPTEMBER 18, 2018 — DECIDED FEBRUARY 1, 2019\n ____________________\n\n Before SYKES, BARRETT, and ST. EVE, Circuit Judges.\n SYKES, Circuit Judge. Jeffery Kopplin brought two claims\nagainst the Wisconsin Central railroad under the Federal\nEmployers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq.\nBoth rest on the same allegation: that Kopplin injured his\nelbow in an effort to operate a broken railroad switch while\nemployed by Wisconsin Central. The district court entered\nsummary judgment for the railroad in part because Kopplin\n\f2 No. 17-3602\n\ncould not prove that the broken switch caused his injury.\nWhile the parties raise several other questions, that alone is\nsufficient to affirm.\n I. Background\n Prior to his injury, Kopplin worked for Wisconsin\nCentral as a train conductor. On January 24, 2014, he pulled\na train into the Fond du Lac yard. To bring the train onto the\ncorrect track, Kopplin had to get out and “throw” a switch,\nwhich involves pulling a handle to correctly align the tracks.\nThe weather that morning was severe, with below-freezing\ntemperatures and 20- to 30-mile-per-hour winds. As a result\nice and snow had built up inside the switch’s mechanisms.\nKopplin tried to remove the ice and snow with a simple\nbroom—the only tool Wisconsin Central had provided—but\nafter straining himself for several minutes, the switch would\nnot budge.\n Kopplin claims that this effort was the initial cause of a\nlong-term elbow disability, though the evidence is less than\nclear. A video of the incident shows no immediate signs of\ninjury. And Kopplin never mentioned any pain symptoms to\nhis coworkers until two hours later—time in which he\ncontinued to perform other physical tasks.\n After his physician diagnosed him with medial and lat-\neral epicondylitis, Kopplin took time off work to receive\ntreatment. Among other things, he received an effective\npain-relief injection in February. By April the injury had\nfully healed. But in August the pain suddenly reemerged\nwhen Kopplin tried to drive a riding lawnmower one-\nhanded while holding his son. After that his career as a\nconductor was effectively over.\n\fNo. 17-3602 3\n\n Kopplin then brought two related FELA claims against\nWisconsin Central, both alleging that the railroad was\nresponsible for the broken switch and the injury it allegedly\ncaused. The first is a run-of-the-mill negligence claim. The\nsecond is a negligence per se claim premised on Wisconsin\nCentral’s alleged failure to comply with 49 C.F.R. § 213.135,\nthe regulation that sets national standards for switches.\nKopplin’s sole causation expert was Dr. Etienne Mejia, who\ntestified by deposition that the pain-relief injection Kopplin\nreceived often provides only temporary relief, which could\nexplain the pain’s reemergence. However, Dr. Mejia conced-\ned that he never investigated whether something other than\nthe January 24 incident could have caused the initial injury.\nIn fact, he testified that he knew so little about Kopplin’s job\nthat it would be mere speculation to say throwing a switch\neven could cause the elbow injury. Moreover, he admitted\nthat he did not investigate whether Kopplin’s other physical\nactivities—say, riding a lawnmower in a dangerous fash-\nion—could have caused the renewed elbow problems in\nAugust.\n For two months after the deposition, Kopplin made no\nattempt to supplement Dr. Mejia’s testimony. But after\nWisconsin Central moved for summary judgment, Kopplin\nattached to his response a new affidavit by Dr. Mejia. The\ncontents of that affidavit were markedly different than the\ndeposition testimony. Dr. Mejia definitively stated that the\nJanuary 24 incident caused the elbow injury, explaining that\nthe nature of the injury was so clear that there was no need\nto even consider other potential causes. In the end, Kopplin’s\neffort to bolster his causation evidence was in vain. The\njudge refused to consider the affidavit because it contradict-\ned sworn deposition testimony. And without the affidavit,\n\f4 No. 17-3602\n\nshe found Dr. Mejia’s testimony unreliable under Daubert v.\nMerrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As a\nresult, Kopplin had no causation evidence at all.\n The judge addressed several other questions, including\nthe extent to which regulations promulgated under the\nFederal Railroad Safety Act define the standard of care for\nFELA actions and the extent to which 49 C.F.R. § 213.5(a)\nimposes a notice requirement for negligence per se claims.\nBecause the failure to prove causation is fatal to both FELA\nclaims, see Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 364 (7th\nCir. 1992), we need not reach those issues here.\n II. Discussion\n We review a summary judgment de novo, asking wheth-\ner the movant has shown “that there is no genuine dispute\nas to any material fact.” Hansen v. Fincantieri Marine Grp.,\nLLC, 763 F.3d 832, 836 (7th Cir. 2014) (quotation marks\nomitted). We review the exclusion of the affidavit “for abuse\nof discretion, giving the trial judge much deference.” Buckner\nv. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Finally,\n“we review de novo a district court’s application of the\nDaubert framework. If the district court properly adhered to\nthe Daubert framework, then we review its decision to\nexclude (or not to exclude) expert testimony for abuse of\ndiscretion.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827,\n835 (7th Cir. 2015) (citations omitted).\n We start with the admissibility of Dr. Mejia’s affidavit.\nAs the judge explained, a party may not “create an issue of\nfact by submitting an affidavit whose conclusions contradict\nprior deposition or other sworn testimony.” Buckner, 75 F.3d\nat 292. The affidavit here contradicts Dr. Mejia’s testimony in\n\fNo. 17-3602 5\n\nat least two ways. First, Dr. Mejia was asked at his deposi-\ntion whether “there could be other various causes of this\ntype of condition” besides the January 24 incident. He\nanswered unequivocally, “Yes.” But then in his affidavit,\nDr. Mejia wrote that there was no need to consider other\ncauses because “[t]he etiology and diagnosis [were] clear”\nthat “the patient suffered from left traumatic medial epicon-\ndylitis as a result of the injury of January 24, 2014.” That\nclearly contradicts his original statement that other causes\ncould be at play.\n Second, Dr. Mejia was asked at his deposition whether\nthrowing a switch “seem[ed] like the kind of activity that\ncould lead to the tendinosis,” and he answered, “It would be\nspeculation on my part … .” That admission is squarely at\nodds with his affidavit’s definitive conclusion that Kopplin\ninjured his elbow throwing the switch. See id. at 293 (exclud-\ning a supplemental affidavit’s detailed description of a fact\nwhen the affiant had disclaimed knowledge of that same fact\nat her deposition).\n To be sure, we have carved out several exceptions to the\ngeneral rule barring contradictory supplemental affidavits.\nNone apply here. For instance, we’ve said that a party may\noffer an affidavit in response to a summary-judgment mo-\ntion “to clarify ambiguous or confusing testimony.” Bank of\nIll. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1171 (7th\nCir. 1996). Yet nothing about Dr. Mejia’s deposition testimo-\nny was ambiguous or confusing: without qualification, he\nsaid that other factors could have caused this condition.\nSimilarly, while we have held that an affidavit may contra-\ndict sworn deposition testimony if “it is based on newly\ndiscovered evidence,” id. at 1172, even Kopplin concedes\n\f6 No. 17-3602\n\nthat Dr. Mejia received all of the materials supporting his\naffidavit before his deposition. Finally, a new affidavit may\nbe appropriate if the earlier testimony was “the result of a\nmemory lapse.” Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir.\n2015). Kopplin argues that this exception applies because\nDr. Mejia did not have the full medical record at his finger-\ntips during the deposition itself. But nothing in Dr. Mejia’s\nresponses indicates that he was struggling to recall what\nthose records said. To the contrary, his responses were direct\nand honest admissions that he never considered certain\nissues at all.\n Even if the affidavit were perfectly consistent with\nDr. Mejia’s prior statements, a larger problem remains. In\nessence the affidavit sets forth a brand new expert opinion\non a topic beyond the scope of anything in Dr. Mejia’s prior\ndisclosures. In his original expert report, Dr. Mejia discussed\nKopplin’s treatment history and prognosis but never ex-\nplained how the switch actually caused the disability. The\nissue surfaced for the first time—at least to any meaningful\ndegree—in the affidavit itself. By then, the time had long\npassed to disclose a new report on a previously unexplored\ntopic: Kopplin attached it as an exhibit to his summary-\njudgment response on June 27, 2017, months after the district\ncourt’s December 30, 2016 deadline for Kopplin’s expert\nreports. See FED. R. CIV. P. 26(a)(2)(D) (“A party must make\n[expert] disclosures at the time and in the sequence that the\ncourt orders.”).\n Without the affidavit the Daubert analysis is relatively\nstraightforward. Under Daubert the court considers “wheth-\ner the expert is proposing to testify to (1) scientific\nknowledge that (2) will assist the trier of fact to understand\n\fNo. 17-3602 7\n\nor determine a fact in issue.” 509 U.S. at 592. The ultimate\nquestion is whether the expert’s approach is scientifically\nvalid, which requires a careful examination of its “eviden-\ntiary relevance and reliability.” Id. at 594–95. The focus is on\nthe expert’s methodology, not his ultimate conclusions. See\nid. at 595.\n Both relevance and reliability are problems here. As to\nreliability, the judge identified a number of causation ques-\ntions that Dr. Mejia conceded he never considered. Each\nconcession significantly undermined the validity of his\nmethods. The most troubling were his admissions that he\nnever considered whether factors other than the switch\ncould have caused the initial injury in January, nor whether\nother factors could have caused the renewed symptoms in\nAugust. The judge found this unacceptable, and that was not\nan abuse of discretion. See Brown v. Burlington N. Santa Fe Ry.\nCo., 765 F.3d 765, 773–74 (7th Cir. 2014) (faulting an expert’s\ndifferential etiology not just for failing to “rule in” the\nalleged cause but also for failing to “rule out” other potential\ncauses).\n As to relevance, only one of the opinions Dr. Mejia gave\nat his deposition is even probative of causation: his testimo-\nny that the pain may have resurfaced in August because the\npain-relief injection Kopplin received often wears off. That\nis, Dr. Mejia had one theory for how the January injury\ncould have had long-term effects. Even that is a partial\ntheory because he admitted that he did not know whether\nthrowing the switch could have caused the January injury in\nthe first place. He testified that it would be “speculation” to\nsay one way or another. Because Dr. Mejia’s opinion is only\n\f8 No. 17-3602\n\nmarginally relevant, there is little reason to think that his\ntestimony would be helpful to the trier of fact.\n Kopplin has two final objections. First, he argues that\neven without the affidavit and despite all the problems with\nDr. Mejia’s deposition testimony, he should prevail because\nthe injury’s origin is obvious. It is true that we do not require\nexpert testimony when causation is so clear that “a layper-\nson can understand what caused the injury.” Myers v. Ill.\nCent. R.R. Co., 629 F.3d 639, 643 (7th Cir. 2010). For example,\na pedestrian hit by a truck would generally not need an\nexpert to prove the cause of his broken leg. See id. But this\ncase is much different. There are several steps between\nKopplin’s effort to fix the switch and his long-term disabil-\nity, and none is clear. For instance, take the fact that the\ninjury resurfaced when Kopplin attempted to hold his son\nwhile riding a lawnmower. To put it mildly, we are skeptical\nthat the average layperson knows whether operating heavy\nmachinery one-handed can contribute to medial and lateral\nepicondylitis. And because it would not be obvious to a\nlayperson, expert testimony was indeed necessary.\n Second, Kopplin insists that his claims should survive\nbecause Wisconsin Central’s expert Dr. Jan Bax noted in a\nreport that “Mr. Kopplin sustained a work-related strain to\nhis left-elbow on January 14.” But that one stray line does\nvery little work. To start, the report never says that the\nbroken switch caused the injury. It says only that the injury\nwas “work-related,” which could refer to a number of\ndifferent things. The report also oddly says the injury began\non January 14, ten days before Kopplin operated the broken\nswitch. Moreover, Dr. Bax faces many of the same problems\nas Dr. Mejia—namely, that there is no evidence he consid-\n\fNo. 17-3602 9\n\nered whether other factors may have caused the injury. In\nfact, there is no evidence at all that Dr. Bax’s testimony\nwould have been admissible under Daubert. Perhaps the\ngreatest flaw is that he never said a word about the\nreemergence of the injury in August. One way or another,\nKopplin still needs admissible expert testimony that the\nJanuary 24 incident caused a long-term disability. That\nreport is not it.\n As mentioned, causation is a necessary element of every\nFELA claim. See Walden, 975 F.2d at 364. So Kopplin’s failure\nto present reliable expert testimony on that issue is fatal.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363986/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586733/	Published	1	0	0	2,019	2	[ { "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...
4,586,751		Jeffery Kopplin v. Wisconsin Central Limited	2019-02-01	17-3602	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SYKES, BARRETT, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3602\nJEFFERY A. KOPPLIN,\n Plaintiff-Appellant,\n v.\n\nWISCONSIN CENTRAL LIMITED,\nd/b/a CN,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court\n for the Eastern District of Wisconsin.\n No. 16-cv-588 — Pamela Pepper, Judge.\n ____________________\n\n ARGUED SEPTEMBER 18, 2018 — DECIDED FEBRUARY 1, 2019\n ____________________\n\n Before SYKES, BARRETT, and ST. EVE, Circuit Judges.\n SYKES, Circuit Judge. Jeffery Kopplin brought two claims\nagainst the Wisconsin Central railroad under the Federal\nEmployers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq.\nBoth rest on the same allegation: that Kopplin injured his\nelbow in an effort to operate a broken railroad switch while\nemployed by Wisconsin Central. The district court entered\nsummary judgment for the railroad in part because Kopplin\n\f2 No. 17-3602\n\ncould not prove that the broken switch caused his injury.\nWhile the parties raise several other questions, that alone is\nsufficient to affirm.\n I. Background\n Prior to his injury, Kopplin worked for Wisconsin\nCentral as a train conductor. On January 24, 2014, he pulled\na train into the Fond du Lac yard. To bring the train onto the\ncorrect track, Kopplin had to get out and “throw” a switch,\nwhich involves pulling a handle to correctly align the tracks.\nThe weather that morning was severe, with below-freezing\ntemperatures and 20- to 30-mile-per-hour winds. As a result\nice and snow had built up inside the switch’s mechanisms.\nKopplin tried to remove the ice and snow with a simple\nbroom—the only tool Wisconsin Central had provided—but\nafter straining himself for several minutes, the switch would\nnot budge.\n Kopplin claims that this effort was the initial cause of a\nlong-term elbow disability, though the evidence is less than\nclear. A video of the incident shows no immediate signs of\ninjury. And Kopplin never mentioned any pain symptoms to\nhis coworkers until two hours later—time in which he\ncontinued to perform other physical tasks.\n After his physician diagnosed him with medial and lat-\neral epicondylitis, Kopplin took time off work to receive\ntreatment. Among other things, he received an effective\npain-relief injection in February. By April the injury had\nfully healed. But in August the pain suddenly reemerged\nwhen Kopplin tried to drive a riding lawnmower one-\nhanded while holding his son. After that his career as a\nconductor was effectively over.\n\fNo. 17-3602 3\n\n Kopplin then brought two related FELA claims against\nWisconsin Central, both alleging that the railroad was\nresponsible for the broken switch and the injury it allegedly\ncaused. The first is a run-of-the-mill negligence claim. The\nsecond is a negligence per se claim premised on Wisconsin\nCentral’s alleged failure to comply with 49 C.F.R. § 213.135,\nthe regulation that sets national standards for switches.\nKopplin’s sole causation expert was Dr. Etienne Mejia, who\ntestified by deposition that the pain-relief injection Kopplin\nreceived often provides only temporary relief, which could\nexplain the pain’s reemergence. However, Dr. Mejia conced-\ned that he never investigated whether something other than\nthe January 24 incident could have caused the initial injury.\nIn fact, he testified that he knew so little about Kopplin’s job\nthat it would be mere speculation to say throwing a switch\neven could cause the elbow injury. Moreover, he admitted\nthat he did not investigate whether Kopplin’s other physical\nactivities—say, riding a lawnmower in a dangerous fash-\nion—could have caused the renewed elbow problems in\nAugust.\n For two months after the deposition, Kopplin made no\nattempt to supplement Dr. Mejia’s testimony. But after\nWisconsin Central moved for summary judgment, Kopplin\nattached to his response a new affidavit by Dr. Mejia. The\ncontents of that affidavit were markedly different than the\ndeposition testimony. Dr. Mejia definitively stated that the\nJanuary 24 incident caused the elbow injury, explaining that\nthe nature of the injury was so clear that there was no need\nto even consider other potential causes. In the end, Kopplin’s\neffort to bolster his causation evidence was in vain. The\njudge refused to consider the affidavit because it contradict-\ned sworn deposition testimony. And without the affidavit,\n\f4 No. 17-3602\n\nshe found Dr. Mejia’s testimony unreliable under Daubert v.\nMerrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As a\nresult, Kopplin had no causation evidence at all.\n The judge addressed several other questions, including\nthe extent to which regulations promulgated under the\nFederal Railroad Safety Act define the standard of care for\nFELA actions and the extent to which 49 C.F.R. § 213.5(a)\nimposes a notice requirement for negligence per se claims.\nBecause the failure to prove causation is fatal to both FELA\nclaims, see Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 364 (7th\nCir. 1992), we need not reach those issues here.\n II. Discussion\n We review a summary judgment de novo, asking wheth-\ner the movant has shown “that there is no genuine dispute\nas to any material fact.” Hansen v. Fincantieri Marine Grp.,\nLLC, 763 F.3d 832, 836 (7th Cir. 2014) (quotation marks\nomitted). We review the exclusion of the affidavit “for abuse\nof discretion, giving the trial judge much deference.” Buckner\nv. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Finally,\n“we review de novo a district court’s application of the\nDaubert framework. If the district court properly adhered to\nthe Daubert framework, then we review its decision to\nexclude (or not to exclude) expert testimony for abuse of\ndiscretion.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827,\n835 (7th Cir. 2015) (citations omitted).\n We start with the admissibility of Dr. Mejia’s affidavit.\nAs the judge explained, a party may not “create an issue of\nfact by submitting an affidavit whose conclusions contradict\nprior deposition or other sworn testimony.” Buckner, 75 F.3d\nat 292. The affidavit here contradicts Dr. Mejia’s testimony in\n\fNo. 17-3602 5\n\nat least two ways. First, Dr. Mejia was asked at his deposi-\ntion whether “there could be other various causes of this\ntype of condition” besides the January 24 incident. He\nanswered unequivocally, “Yes.” But then in his affidavit,\nDr. Mejia wrote that there was no need to consider other\ncauses because “[t]he etiology and diagnosis [were] clear”\nthat “the patient suffered from left traumatic medial epicon-\ndylitis as a result of the injury of January 24, 2014.” That\nclearly contradicts his original statement that other causes\ncould be at play.\n Second, Dr. Mejia was asked at his deposition whether\nthrowing a switch “seem[ed] like the kind of activity that\ncould lead to the tendinosis,” and he answered, “It would be\nspeculation on my part … .” That admission is squarely at\nodds with his affidavit’s definitive conclusion that Kopplin\ninjured his elbow throwing the switch. See id. at 293 (exclud-\ning a supplemental affidavit’s detailed description of a fact\nwhen the affiant had disclaimed knowledge of that same fact\nat her deposition).\n To be sure, we have carved out several exceptions to the\ngeneral rule barring contradictory supplemental affidavits.\nNone apply here. For instance, we’ve said that a party may\noffer an affidavit in response to a summary-judgment mo-\ntion “to clarify ambiguous or confusing testimony.” Bank of\nIll. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1171 (7th\nCir. 1996). Yet nothing about Dr. Mejia’s deposition testimo-\nny was ambiguous or confusing: without qualification, he\nsaid that other factors could have caused this condition.\nSimilarly, while we have held that an affidavit may contra-\ndict sworn deposition testimony if “it is based on newly\ndiscovered evidence,” id. at 1172, even Kopplin concedes\n\f6 No. 17-3602\n\nthat Dr. Mejia received all of the materials supporting his\naffidavit before his deposition. Finally, a new affidavit may\nbe appropriate if the earlier testimony was “the result of a\nmemory lapse.” Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir.\n2015). Kopplin argues that this exception applies because\nDr. Mejia did not have the full medical record at his finger-\ntips during the deposition itself. But nothing in Dr. Mejia’s\nresponses indicates that he was struggling to recall what\nthose records said. To the contrary, his responses were direct\nand honest admissions that he never considered certain\nissues at all.\n Even if the affidavit were perfectly consistent with\nDr. Mejia’s prior statements, a larger problem remains. In\nessence the affidavit sets forth a brand new expert opinion\non a topic beyond the scope of anything in Dr. Mejia’s prior\ndisclosures. In his original expert report, Dr. Mejia discussed\nKopplin’s treatment history and prognosis but never ex-\nplained how the switch actually caused the disability. The\nissue surfaced for the first time—at least to any meaningful\ndegree—in the affidavit itself. By then, the time had long\npassed to disclose a new report on a previously unexplored\ntopic: Kopplin attached it as an exhibit to his summary-\njudgment response on June 27, 2017, months after the district\ncourt’s December 30, 2016 deadline for Kopplin’s expert\nreports. See FED. R. CIV. P. 26(a)(2)(D) (“A party must make\n[expert] disclosures at the time and in the sequence that the\ncourt orders.”).\n Without the affidavit the Daubert analysis is relatively\nstraightforward. Under Daubert the court considers “wheth-\ner the expert is proposing to testify to (1) scientific\nknowledge that (2) will assist the trier of fact to understand\n\fNo. 17-3602 7\n\nor determine a fact in issue.” 509 U.S. at 592. The ultimate\nquestion is whether the expert’s approach is scientifically\nvalid, which requires a careful examination of its “eviden-\ntiary relevance and reliability.” Id. at 594–95. The focus is on\nthe expert’s methodology, not his ultimate conclusions. See\nid. at 595.\n Both relevance and reliability are problems here. As to\nreliability, the judge identified a number of causation ques-\ntions that Dr. Mejia conceded he never considered. Each\nconcession significantly undermined the validity of his\nmethods. The most troubling were his admissions that he\nnever considered whether factors other than the switch\ncould have caused the initial injury in January, nor whether\nother factors could have caused the renewed symptoms in\nAugust. The judge found this unacceptable, and that was not\nan abuse of discretion. See Brown v. Burlington N. Santa Fe Ry.\nCo., 765 F.3d 765, 773–74 (7th Cir. 2014) (faulting an expert’s\ndifferential etiology not just for failing to “rule in” the\nalleged cause but also for failing to “rule out” other potential\ncauses).\n As to relevance, only one of the opinions Dr. Mejia gave\nat his deposition is even probative of causation: his testimo-\nny that the pain may have resurfaced in August because the\npain-relief injection Kopplin received often wears off. That\nis, Dr. Mejia had one theory for how the January injury\ncould have had long-term effects. Even that is a partial\ntheory because he admitted that he did not know whether\nthrowing the switch could have caused the January injury in\nthe first place. He testified that it would be “speculation” to\nsay one way or another. Because Dr. Mejia’s opinion is only\n\f8 No. 17-3602\n\nmarginally relevant, there is little reason to think that his\ntestimony would be helpful to the trier of fact.\n Kopplin has two final objections. First, he argues that\neven without the affidavit and despite all the problems with\nDr. Mejia’s deposition testimony, he should prevail because\nthe injury’s origin is obvious. It is true that we do not require\nexpert testimony when causation is so clear that “a layper-\nson can understand what caused the injury.” Myers v. Ill.\nCent. R.R. Co., 629 F.3d 639, 643 (7th Cir. 2010). For example,\na pedestrian hit by a truck would generally not need an\nexpert to prove the cause of his broken leg. See id. But this\ncase is much different. There are several steps between\nKopplin’s effort to fix the switch and his long-term disabil-\nity, and none is clear. For instance, take the fact that the\ninjury resurfaced when Kopplin attempted to hold his son\nwhile riding a lawnmower. To put it mildly, we are skeptical\nthat the average layperson knows whether operating heavy\nmachinery one-handed can contribute to medial and lateral\nepicondylitis. And because it would not be obvious to a\nlayperson, expert testimony was indeed necessary.\n Second, Kopplin insists that his claims should survive\nbecause Wisconsin Central’s expert Dr. Jan Bax noted in a\nreport that “Mr. Kopplin sustained a work-related strain to\nhis left-elbow on January 14.” But that one stray line does\nvery little work. To start, the report never says that the\nbroken switch caused the injury. It says only that the injury\nwas “work-related,” which could refer to a number of\ndifferent things. The report also oddly says the injury began\non January 14, ten days before Kopplin operated the broken\nswitch. Moreover, Dr. Bax faces many of the same problems\nas Dr. Mejia—namely, that there is no evidence he consid-\n\fNo. 17-3602 9\n\nered whether other factors may have caused the injury. In\nfact, there is no evidence at all that Dr. Bax’s testimony\nwould have been admissible under Daubert. Perhaps the\ngreatest flaw is that he never said a word about the\nreemergence of the injury in August. One way or another,\nKopplin still needs admissible expert testimony that the\nJanuary 24 incident caused a long-term disability. That\nreport is not it.\n As mentioned, causation is a necessary element of every\nFELA claim. See Walden, 975 F.2d at 364. So Kopplin’s failure\nto present reliable expert testimony on that issue is fatal.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364004/", "author_raw": "Diane S. Sykes"}]}	SYKES	BARRETT	ST EVE	1	{"SYKES": ", Circuit", "BARRETT": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586751/	Published	1	0	0	2,019	2	[ { "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...
4,587,162	UNITED STATES of America, Plaintiff-Appellee, v. Artez BREWER, Defendant-Appellant.	United States v. Artez Brewer	2019-02-04	18-2035	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, ROVNER, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2035\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nARTEZ BREWER,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Indiana, Hammond Division.\n No. 2:16-cr-00084-JVB-JEM-1 — Joseph S. Van Bokkelen, Judge.\n ____________________\n\n ARGUED NOVEMBER 5, 2018 — DECIDED FEBRUARY 4, 2019\n ____________________\n\n Before BAUER, ROVNER, and ST. EVE, Circuit Judges.\n ST. EVE, Circuit Judge. Artez Brewer and his girlfriend,\nRobin Pawlak, traveled the country robbing banks, à la Bon-\nnie and Clyde. Agents today, however, have investigative\ntools that their Great Depression predecessors lacked. With a\nwarrant for real-time, Global-Positioning-System (GPS) vehi-\ncle monitoring, a task force tracked Brewer’s car to Califor-\nnia where he and Pawlak committed another robbery. Brew-\ner was arrested and essentially confessed to the crime spree.\n\f2 No. 18-2035\n\nThe government charged him with three counts of bank rob-\nbery, 18 U.S.C. § 2113(a), and a jury convicted him on each\ncount.\n Brewer appeals. He argues that the government violated\nthe Fourth Amendment by tracking him to California when\nthe warrant only permitted monitoring in Indiana. But the\nin-state limitation did not reflect a probable-cause finding or\na particularity requirement, and the Fourth Amendment is\nunconcerned with state borders. Brewer also argues that the\ndistrict court abused its discretion in admitting evidence of\nunindicted robberies. Yet that other-act evidence was direct-\nly probative of Brewer’s identity, modus operandi, and in-\ntent, and it therefore fell within the bounds of Federal Rule\nof Evidence 404(b)(2). We affirm.\n I. Background\n Five bank robberies, committed in three states over the\ncourse of about six weeks, led to Artez Brewer’s arrest and\nprosecution.\n The first robbery happened on April 28, 2016. The day\nbefore, a young man entered Centier Bank in Griffith, Indi-\nana, and made an odd request: he asked for change in two-\ndollar bills. The next day, a woman walked into the bank\nwearing a jogging suit, gloves, and a mask while carrying a\nyard-long wooden stick, a black bag, and a note. She put the\nstick in between the bank’s entrance doors, approached the\nteller counter, and held up the note, which read, “All money\nin drawer, no bait.” She received $162, exited the bank, and\nran into the alley. Security footage showed a dark Chevrolet\nImpala fleeing the scene.\n\fNo. 18-2035 3\n\n The day after the first robbery, on April 29, 2016, a young\nman walked into State Bank & Trust in Perrysburg, Ohio. He\nlingered, waited in line for a couple of minutes, pulled out\nhis cell phone, and left without being assisted. The man was\nthen seen loitering across the street from the bank. After re-\nlieving himself on a nearby garbage bin, the man got back\ninto his car—a black sedan—where he sat facing the bank. A\nbit later, a woman entered the bank dressed head to toe in\ndark clothing, carrying a stick, a black bag, and a note. The\nwoman dropped the stick at the bank’s entrance doors, ap-\nproached the teller counter, and handed up a note demand-\ning cash. She left with over $1,000.\n On the morning of May 6, 2016, a young man entered the\nMainSource Bank in Crown Point, Indiana. He approached\nthe teller and made a request she thought odd: change in\ntwo-dollar bills. That afternoon, a beige Toyota sedan pulled\nup near the bank. A woman got out, wearing all black and\ncarrying a long stick, a purple and black bag, and a note. She\nput the stick at the front doors, reached the teller desk, and\nheld up a note demanding money. She received all the mon-\ney in the teller’s top drawer, about $1,700. She fled, got back\ninto the Toyota, and took off.\n About three weeks later, in the late afternoon of May 26,\n2016, a young man walked into Horizon Bank in Whiting,\nIndiana. He approached the teller desk and requested\nchange in one-dollar gold coins, which the teller found unu-\nsual. The next morning, on May 27, a Toyota Corolla pulled\nup to an auto-shop lot next to the bank. A woman dressed in\ndark clothing entered the bank, carrying a bag and a note.\nWithout saying a word, she approached the teller desk and\nheld up the note demanding money. She made off with a lit-\n\f4 No. 18-2035\n\ntle more than $6,000 before jumping into the Toyota. The\nrobber left behind a stick wedged between the doors.\n These (and other) heists drew the attention of an FBI task\nforce, which pinned Brewer as the young man present at the\nbanks just before the robberies. It conducted surveillance\nand gathered that Brewer lived with a woman, Robin Paw-\nlak, in Gary, Indiana. Officers observed a Toyota matching\nthe one from the robberies parked outside their residence,\nand they later discovered that Brewer sometimes drove an-\nother car—a silver Volvo. A task-force officer sought a war-\nrant from a state-court magistrate to monitor the Volvo with\nGPS tracking. The officer’s supporting affidavit referenced\neleven bank robberies, in Indiana, Illinois, and Ohio. The\nmagistrate issued the warrant, which permitted the use of a\n“tracking device … in any public or private area in any ju-\nrisdiction, within the State of Indiana, for a period of 45 days.”\nThe in-state limitation was, apparently, an anomaly. The task\nforce had obtained multiple GPS vehicle-monitoring war-\nrants during the investigation from the same magistrate,\nnone of which included the limitation.\n The task force quickly installed the GPS tracker, con-\nsistent with the warrant’s terms. A few days later, on June 7,\n2016, a task-force officer noticed that the Volvo was on the\nmove heading west. He monitored the car as it left Indiana\nand traveled through Illinois and continued westward until\nit arrived in Los Angeles, California. The officer was una-\nware that the warrant limited the monitoring to Indiana, and\nhe failed to consult it while tracking the car. Once in L.A.,\nthe officer noticed that the Volvo was circling a bank.\n The officer called the FBI’s bank-robbery coordinator in\nL.A. to give him the heads-up about Brewer’s presence near\n\fNo. 18-2035 5\n\nBanner Bank. On the morning of June 10, 2016, officers ob-\nserved Brewer and Pawlak in the Volvo near the bank. Brew-\ner got out of the car, walked around the bank for about thirty\nminutes, occasionally staring through its large windows.\nThat afternoon, the Volvo again approached the bank. A\nwoman got out of the car, dressed in black and carrying a\nstick. She dropped the stick at the door, approached the tell-\ners, and held up a note, which read, “ALL the money No\ncops No DYE OR your dead.” She received about $1,000 in\ncash, and then ran out of the bank and into the Volvo. Offic-\ners stopped the car, arrested Brewer and Pawlak, and found\na bag of cash.\n Agents questioned Brewer at the stationhouse. They told\nhim that he was seen at Horizon Bank in Indiana just before\nit was robbed, but Brewer claimed to be a coin collector.\nWhen an agent pressed, however, and asked whether any-\none else was involved in the robberies, Brewer said:\n I tell you what, I can tell you, I told you about this\n shit, I didn’t come up with it by my damn self, I can\n tell you that shit right now but like, ya know. I was\n not uh—I was not uh—It was like a spur of the\n moment shit like fuck ya know….\n\nAgents later searched Brewer’s residence. They found car\ntitles to an Impala and a Corolla. They also found clothes\nmatching those worn by the young man who had been pre-\nsent before many of the robberies.\n A grand jury returned an indictment against Brewer\ncharging him with three counts of bank robbery, 18 U.S.C.\n§ 2113(a), for each of the three Indiana robberies. After\nBrewer lost a motion to suppress regarding, in part, the\ntracking of his Volvo outside of Indiana, he went to trial. At\n\f6 No. 18-2035\n\ntrial, and over Brewer’s objection, the government presented\nevidence of the Ohio and California robberies pursuant to\nRule 404(b). Eyewitness testimony identified Brewer as the\nyoung man present before many of the robberies, and sur-\nveillance footage showed the same. The government also\npresented a recording of Brewer’s post-arrest statements.\n The jury convicted Brewer on all three counts, and the\ndistrict court sentenced him to 137 months in prison. He had\nalready been convicted in the Central District of California\nfor the L.A. robbery, and sentenced to 125 months in prison\nfor that crime. The net effect of the district court’s sentence\nbelow was therefore an additional twelve months in custody.\nBrewer appealed.\n II. Discussion\n Brewer offers three reasons for a new trial: (1) the district\ncourt should have excluded certain evidence under the\nFourth Amendment; (2) the district court erred in admitting\nevidence of the unindicted robberies under Rule 404(b); and\n(3) the government used surveillance-footage evidence that\nhad questionable authenticity under Rule 901. We address\nthese points in turn and conclude that none merits reversal.\nA. The Fourth Amendment and the Tracking Warrant\n GPS vehicle monitoring generally requires a warrant,\nUnited States v. Jones, 565 U.S. 400, 404 (2012), and the gov-\nernment obtained one here. Brewer argues that by not abid-\ning by the in-state limitation set forth in the warrant the gov-\nernment effectively conducted a warrantless search, so the\nevidence of the California robbery and his confession were\nfruits of the poisonous tree. See Wong Sun v. United States,\n\fNo. 18-2035 7\n\n371 U.S. 471, 488 (1963). Two principles of the Fourth\nAmendment lead us to disagree.\n The first is that violating a search warrant is not the same\nas violating the Fourth Amendment. We know from as far\nback as Marron v. United States, 275 U.S. 192, 196 (1927), that\nofficers generally cannot search more than the particular\nplaces or things described in the warrant, and that they vio-\nlate the Fourth Amendment if they do. See also Horton v. Cali-\nfornia, 496 U.S. 128, 140 (1990); United States v. Mann, 592 F.3d\n779, 782 (7th Cir. 2010). That rule makes sense: the Fourth\nAmendment entrusts judges, not law enforcement, to deter-\nmine the particular places and things that probable cause\njustifies searching and seizing. But not everything in a war-\nrant is so inviolable. In Richards v. Wisconsin, 520 U.S. 385,\n395–96 (1997), for example, the Supreme Court held that a\nno-knock search was reasonable even though the warrant\nexpressly declined to authorize no-knock entry. Courts, simi-\nlarly, have held that reasonable noncompliance with a war-\nrant’s time limitations does not offend the Fourth Amend-\nment. See, e.g., United States v. Burgess, 576 F.3d 1078, 1097\n(10th Cir. 2009); United States v. Gerber, 994 F.2d 1556, 1558–59\n(11th Cir. 1993); see also United States v. Martin, 399 F.3d 879,\n881 (7th Cir. 2005). This, too, makes sense: while the Fourth\nAmendment entrusts judges to authorize the particular plac-\nes or things to be searched, it does not require judges to con-\nstrain officers with other “unenumerated” particularities. See\nUnited States v. Grubbs, 547 U.S. 90, 97–98 (2006); Dalia v.\nUnited States, 441 U.S. 238, 255–58 (1979); see also United States\nv. Patrick, 842 F.3d 540, 544 (7th Cir. 2016); Shell v. United\nStates, 448 F.3d 951, 957 (7th Cir. 2006).\n\f8 No. 18-2035\n\n The second Fourth Amendment principle is similar. Like\ncertain warrant terms, state law does not by proxy heighten\nthe Fourth Amendment’s protections. See Virginia v. Moore,\n553 U.S. 164, 168–73 (2008); California v. Greenwood, 486 U.S.\n35, 43–44 (1988). If, for example, law enforcement executes a\nstate-issued warrant beyond the limits of state law, the\nsearch may nevertheless comply with the Fourth Amend-\nment. See United States v. Gilbert, 942 F.2d 1537, 1541–1542\n(11th Cir. 1991). We recognized as much in United States v.\nCastetter, 865 F.3d 977, 978–79 (7th Cir. 2017), where we put it\nsimply: “the Fourth Amendment does not concern state bor-\nders.”\n Other courts have applied these Fourth Amendment\nprinciples to cases like this one. In United States v. Faulkner,\n826 F.3d 1139 (8th Cir. 2016), cert. denied, 137 S. Ct. 2092\n(2017), for example, the Eighth Circuit held that the installa-\ntion of a GPS tracker outside of the county where the war-\nrant authorized the installation to occur did not implicate the\nFourth Amendment. That the installation violated the war-\nrant and state law was irrelevant, according to Faulkner, be-\ncause the Fourth Amendment’s requirements of probable\ncause and particularity were satisfied. 826 F.3d at 1145–46.\nEven more on point is United States v. Simms, 385 F.3d 1347\n(11th Cir. 2004) (Cudahy, J., sitting by designation). In Simms,\nthe Eleventh Circuit held that the GPS tracking of a vehicle\ninto Alabama, even though the authorizing court order only\nallowed tracking in Texas, did not violate the Fourth\nAmendment. The Fourth Amendment’s requirements were\nmet, and the warrant’s in-state limitation was, at most, a\nstate-law problem. Simms, 385 F.3d at 1355–56.\n\fNo. 18-2035 9\n\n We hold the same. Upon a good-faith affidavit, the war-\nrant to track Brewer’s car issued from (1) an independent\nmagistrate, (2) based on probable cause, (3) with a particular\ndescription of the place or thing (the Volvo) to be searched.\nBrewer therefore received all he was entitled to under the\nFourth Amendment. E.g., Dalia, 441 U.S. at 255; Archer v.\nChisholm, 870 F.3d 603, 614 (7th Cir. 2017).\n Brewer nevertheless submits that the task force should\nhave obeyed the in-state limitation. Yet he does not argue\nthat it reflected a constitutional requirement—that is, a\nprobable-cause determination or a description of the particu-\nlar search authorized. Cf. Horton, 496 U.S. at 140. For good\nreason: Judges must describe the specific person, phone, or\nvehicle to be tracked to satisfy the Fourth Amendment’s par-\nticularity requirement. They need not specify (or limit) the\ntracking to a geographic location. United States v. Sanchez-\nJara, 889 F.3d 418, 421 (7th Cir. 2018), cert. denied, 139 S. Ct.\n282 (2018); Wayne R. LaFave, 2 SEARCH & SEIZURE: A\nTREATISE ON THE FOURTH AMENDMENT § 4.5(e) (5th ed. 2018).\nNor was there any reason to do so here. The affidavit sup-\nporting the warrant in this case described a multistate bank-\nrobbery spree, and we do not see how such evidence could\njustify monitoring only within Indiana. Brewer may have\nhad a constitutionally protected privacy interest in his\nwhereabouts, see Carpenter v. United States, 138 S. Ct. 2206,\n2215–17 (2018), but that interest was no greater on Indiana\nroads than it was on Illinois or California roads.\n\f10 No. 18-2035\n\n What we are left with, then, is the task force’s noncompli-\nance with a state-based, ancillary restriction in the warrant.1\nThe Fourth Amendment gives no remedy for that.\nB. Rule 404(b) and the Unindicted Robberies\n Brewer also submits that the district court erred in admit-\nting evidence of the unindicted robberies in Ohio and Cali-\nfornia under Federal Rule of Evidence 404(b). We review\nRule 404(b) decisions, like most evidentiary decisions, for an\nabuse of discretion. United States v. Norweathers, 895 F.3d 485,\n490 (7th Cir. 2018).\n Rule 404(b)(1) bars evidence of uncharged misdeeds to\nprove that the defendant had a propensity for committing\ncrime. Rule 404(b)(2), on the other hand, permits the intro-\nduction of such evidence for other purposes, including to\nprove identity, modus operandi, or intent. Fed. R. Evid.\n404(b)(2); United States v. Carson, 870 F.3d 584, 599 (7th Cir.\n2017), cert. denied, 138 S. Ct. 2011 (2018). In United States v.\nGomez, 763 F.3d 845 (7th Cir. 2014) (en banc), we set the\nroadmap for determining which camp a particular piece of\nother-act evidence falls into. Per Gomez, after a Rule 404(b)\nobjection, the proponent of the other-act evidence must\ndemonstrate that the evidence is relevant to a legitimate\npurpose “through a chain of reasoning that does not rely on\nthe forbidden inference that the person has a certain charac-\n\n 1We do not know for certain why the warrant included the in-state\nlimitation. Perhaps there were state-law reasons, although neither party\nhas pointed to any, or perhaps, as counsel for the government suggested\nat oral argument, the limitation was a vestige from some stock template.\nThe answer is unimportant. On this record, we can rule out the only rea-\nsons that would matter—a probable-cause finding or a particularity re-\nquirement.\n\fNo. 18-2035 11\n\nter and acted in accordance with that character on the occa-\nsion charged in the case.” 763 F.3d at 860. If the proponent\ndoes so, the district court must then use Rule 403 to deter-\nmine “whether the probative value of the other-act evidence\nis substantially outweighed by the risk of unfair prejudice,”\ntaking into account “the extent to which the non-propensity\nfact for which the evidence is offered actually is at issue in\nthe case.” Id.; see also United States v. Thomas, 897 F.3d 807,\n813 (7th Cir. 2018).\n The district court followed course in admitting evidence\nof the Ohio and California robberies. The government of-\nfered that other-act evidence to prove identity through mo-\ndus operandi and to show Brewer’s intent. See Gomez, 763\nF.3d at 864. It supplied propensity-free reasoning for those\npurposes, too. That Brewer lingered around banks in Ohio\nand California just before they were robbed by a person\nclothed head to toe, who used a stick and a give-me-the-cash\nnote, makes it more likely that he was the individual record-\ned at the Indiana banks just before they were robbed by a\nperson who dressed similarly and used similar methods.\nThat is so not because Brewer has a propensity for commit-\nting crimes, or even bank robberies, but because he and his\npartner had established an idiosyncratic way of doing so. See\nUnited States v. Price, 516 F.3d 597, 603–04 (7th Cir. 2008);\nUnited States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996).\n Urging a different conclusion, Brewer points out dissimi-\nlarities among the robberies. In California, for example, the\nrobber dropped the stick at the door, rather than jamming it\nin between the doors. And in neither Ohio nor California did\nhe make a strange change request, as he did before the Indi-\nana robberies. Our cases, however, have considered modus\n\f12 No. 18-2035\n\noperandi to mean a “distinctive”—not identical—“method\nof operation.” Carson, 870 F.3d at 599; see also, e.g., United\nStates v. Robinson, 161 F.3d 463, 468–69 (7th Cir. 1998); United\nStates v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989). Brewer\nidentifies slightly different tactics, but those differences do\nnot undermine the distinct resemblance among the rob-\nberies.\n The district court also properly weighed the evidence\nunder Rule 403, as Gomez requires. Brewer offered two lines\nof defense at trial—that he was not the person identified be-\nfore the Indiana robberies, and that, even if he was, he was\nthere for the innocent purpose of obtaining gold coins and\ntwo-dollar bills. He repeatedly cross-examined eyewitnesses\non these topics and made the arguments in closing. Brewer’s\nidentity and intent were therefore central to the case. Gomez,\n763 F.3d at 857, 860; cf. United States v. Miller, 673 F.3d 688,\n697 (7th Cir. 2012). For reasons we just explained, the other-\nact evidence was probative of his identity as the person pre-\nsent at the Indiana banks. It was equally probative in show-\ning that he was there for bank-casing purposes, not numis-\nmatic ones. The evidence of the Ohio and California rob-\nberies was of course prejudicial—all other-act evidence is—\nbut given that Brewer put his identity and intent squarely at\nissue, it was not unfairly so. See Fed. R. Evid. 403.\n Brewer takes an additional issue with the evidence of the\nOhio robbery, arguing that there was not enough proof tying\nhim to it. There was plenty. A State Bank & Trust teller au-\nthenticated surveillance footage (as we discuss below) that\ndepicted a man resembling Brewer. What is more, a man\nwith his appearance, wearing clothes matching what the\nman who lingered in the bank wore, was seen loitering\n\fNo. 18-2035 13\n\nacross the street for so long that he needed to relieve his\nbladder next to his car, a car which matched a title found in\nBrewer’s home.\n Brewer also makes a passing challenge to the jury in-\nstructions, but we see no problem there either. The district\ncourt twice instructed the jury to consider the evidence of\nthe Ohio and California robberies only if it first found that\nBrewer likely participated in them. See Pattern Criminal Jury\nInstructions of the Seventh Circuit 3.11 (2012 ed.). The court\nfurther made clear that the jury could only use the evidence\nto help it decide “the defendant’s motive, intent, knowledge\nand modus operandi during” the charged robberies—\nprecisely as Rule 404(b)(2) allows.\n On the whole, the district court showed sensitivity to\nRule 404(b)’s pitfalls throughout the prosecution. It excluded\nevidence of Brewer’s conviction for the California robbery. It\ndid the same for several arrest photos of Brewer and Pawlak.\nIn admitting the other-act evidence that it did, the district\nidentified the propensity-free chain of reasoning and careful-\nly performed the Rule 403 balancing. There was no abuse of\ndiscretion.\nC. Rule 901 and Footage of the Ohio Robbery\n Brewer’s third and final challenge concerns the govern-\nment’s evidence of the Ohio robbery. He contends that the\ngovernment did not properly authenticate surveillance foot-\nage of his presence at State Bank & Trust a few hours before\nthe robbery. We review the district court’s contrary decision\nfor an abuse of discretion. See Mathin v. Kerry, 782 F.3d 804,\n812 (7th Cir. 2015).\n\f14 No. 18-2035\n\n A party seeking to admit evidence must first establish a\nfoundation for its authenticity. United States v. Fluker, 698\nF.3d 988, 999 (7th Cir. 2012); United States v. Emerson, 501 F.3d\n804, 813 (7th Cir. 2007). Federal Rule of Evidence 901 states\nthat “[t]o satisfy the requirement of authenticating or identi-\nfying an item of evidence, the proponent must produce evi-\ndence sufficient to support a finding that the item is what\nthe proponent claims it is.” Fed. R. Evid. 901(a). Rule 901\ndoes not expressly describe how videotape evidence may be\nauthenticated, but we have held that the government can au-\nthenticate a recording “by offering testimony of an eyewit-\nness that the recording accurately reflects” the events as they\noccurred. United States v. Eberhart, 467 F.3d 659, 667 (7th Cir.\n2006); see also United States v. Cejas, 761 F.3d 717, 723 (7th Cir.\n2014). That is what the government did here. It called Sarah\nFelzer to testify, the teller on duty when Brewer visited State\nBank just before the robbery. She testified that the footage\n“fairly and accurately depict[ed] the events as they hap-\npened” that day.\n On cross-examination, Felzer’s recollection seemed fog-\ngier. She testified that she did not have an “independent rec-\nollection” of that day, and she seemed to suggest that she\ncould not distinguish that day from any other day that\nBrewer visited the bank. Brewer is right that this testimony\nwas inconsistent with Felzer’s direct-examination testimony.\nBut he is wrong to think it required exclusion of the footage.\nFelzer’s initial testimony was clear and sufficient under Rule\n901, see Eberhart, 467 F.3d at 667, so the district court did not\nabuse its discretion in finding that the government met its\nthreshold burden. It fell to the jury to decide “the evidence’s\ntrue authenticity and probative value.” Fluker, 698 F.3d at\n999.\n\fNo. 18-2035 15\n\n Even if it were otherwise, we would find harmless error.\nFed. R. Crim. P. 52(a). Take away the footage of Brewer at\nState Bank and the jury still heard about his confession and\nhis all-too-coincidental presence at the four other banks just\nbefore they were robbed. It heard five tellers—from the Indi-\nana robberies alone—identify Brewer. The jury also heard\nabout the compelling evidence the government recovered\nfrom Brewer and Pawlak’s home, including titles for vehicles\nthat matched the getaway cars. The government’s case\nwould not have been made significantly less persuasive ab-\nsent the State Bank footage. See, e.g., United States v. Jett, 908\nF.3d 252, 267 (7th Cir. 2018).\n III. Conclusion\n There was no Fourth Amendment violation in the task\nforce’s execution of the warrant. There was no error in the\ndistrict court’s evidentiary decisions. We AFFIRM the district\ncourt’s judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364415/", "author_raw": "ST. EVE, Circuit Judge"}]}	BAUER	ROVNER	ST EVE	1	{"BAUER": ", Circuit", "ROVNER": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587162/	Published	1	0	0	2,019	2	[ { "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...
4,587,268	UNITED STATES of America, Plaintiff-Appellee, v. Luis A. FERNANDEZ, Defendant-Appellant.	United States v. Luis Fernandez	2019-02-04	17-3421	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Manion, Rovner", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3421\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nLUIS A. FERNANDEZ,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 2:17-cr-00052-PP-1 — Pamela Pepper, Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED FEBRUARY 4, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Luis Fernandez of\nbeing a felon in possession of a firearm, see 18 U.S.C.\n§ 922(g)(1). Fernandez appeals his conviction, contending that\nthe district court committed three evidentiary errors that\ndeprived him of a fair trial. We affirm.\n\f2 No. 17-3421\n\n I.\n The charge against Fernandez arose out of a traffic stop\nconducted by police in Franklin, Wisconsin (a Milwaukee\nsuburb) on November 20, 2016. Fernandez was sitting in the\nfront passenger seat of a black Chevrolet Caprice, his friend\nAdam Voecks was driving, and Voecks’ fiancée Valerie\nStramowski was in the back seat. Police officer Gabriel Frusti\ninitiated the stop after observing the car move across multiple\nlanes of traffic without signaling and quickly decelerating to a\nhalt. (Voecks would later testify that the car’s engine had died.)\nMoments later, officer Adam Rogge arrived on the scene in\nresponse to Frusti’s request for backup. When Rogge ap-\nproached the driver’s side of the vehicle to speak with Voecks\n(Frusti was speaking with Fernandez on the passenger side), he\nnoticed an odor of marijuana emanating from the interior of\nthe car. Voecks was asked to step out of the car. When asked if\nhe was armed, Voecks disclosed that he had a gun in his right\nfront pocket; officers removed a holstered Kel Tec .380 caliber\npistol from that pocket.\n Ultimately all three of the occupants of the car were taken\ninto police custody. Although Voecks had no criminal record\nand had purchased the gun found on his person legally, he did\nnot have a permit to carry a concealed weapon and was\narrested on that basis. Fernandez and Stramowski were\narrested on outstanding warrants, and Stramowski had also\ngiven the officers a false name in an attempt to evade arrest.\n When the interior of the car was searched, police discov-\nered a second gun—a Springfield Armory .45 caliber pistol—in\nthe center console between the front driver and passenger\n\fNo. 17-3421 3\n\nseats. A pat-down of Voecks’ person also produced a folding\nknife, a crack pipe, and two bullets, one of which was a .38\ncaliber bullet (the same caliber as the pistol found in his pocket)\nand the second of which was a .45 caliber bullet (the same\ncaliber as the pistol discovered in the console).\n The occupants of the car were transported in a police van\nto the Franklin police department for processing and question-\ning. As Fernandez was being placed into the van, officer Adam\nGraf overheard him call out to Voecks, “[D]on’t worry[,] it’s\nonly a misdemeanor for you to have a gun.” R. 40 at 90; see also\nR. 40 at 128.\n Voecks was interviewed twice at the police station, and\nover the course of the two interviews he gave three different\nstatements as to who had possessed the .45 caliber pistol found\nin the car and who had placed it in the center console. Officer\nFrusti conducted both interviews (with officer Rogge sitting\nin). During the first interview, Voecks claimed ownership of\nthat gun and told Frusti that he had obtained it from a friend\nwho had since died. Voecks was subsequently bailed out of jail\nby his father. As he was preparing to leave the station, Ser-\ngeant Dan Morris approached Voecks and warned him that the\npolice would run a trace on the gun, and if they discovered\nthat the gun had been used in any crime, “it was going to come\nback on [him].” R. 40 at 135. Voecks at that point became\nvisibly pale and nervous, and Morris offered him the opportu-\nnity to be interviewed for a second time about the gun; Voecks\naccepted the invitation. During the second interview, Voecks\ntold Frusti that the gun was not his. At first Voecks said that he\ndid not see who had placed it in the center console of the car,\nalthough he suggested it was more likely that Fernandez had\n\f4 No. 17-3421\n\ndone so than Stramowski. But when he was confronted with\ncertain inconsistencies in that new version of events, Voecks\nultimately averred that the gun belonged to Fernandez. Voecks\nstated that when officer Frusti had pulled up behind the car,\nFernandez had panicked, voicing concern that he could “go\naway for 20 years” and not be able to see his four children. At\nFernandez’s urging, Voecks had agreed to claim possession of\nthe gun. While Frusti was calling for backup, Fernandez had\nplaced the gun into the center console. Voecks picked up a\nbullet from the gun that had landed on his seat and placed it\ninto his pocket.\n Voecks became the key prosecution witness against\nFernandez at trial. (No fingerprints were found on the .45\ncaliber pistol, and the government had not had the gun tested\nfor DNA evidence.) Voecks explained that he had first claimed\nownership of the .45 caliber pistol in order to protect his friend,\nFernandez, but changed his mind after being warned that he\nwould be implicated if the police discovered that the gun had\nbeen used in a crime. When defense counsel was cross-examin-\ning Voecks regarding the divergent accounts he had given to\npolice as to whom the gun belonged, the district court sus-\ntained hearsay objections to questions as to what officer Frusti\nhad asked of or said to Voecks during questioning. R. 40 at\n150–51, 152, 155. Defense counsel was able to ask Voecks what\nhe had told Frusti, but not what he was responding to. On\ncertain points, Voecks professed an inability to recall what\nspecifically he had said to Frusti. In particular, when defense\ncounsel asked Voecks about his second story regarding the\ngun, Voecks said that he lacked any recollection of telling\nFrusti that he did not see who placed the .45 caliber pistol in\n\fNo. 17-3421 5\n\nthe center console of the car. R. 40 at 154–55. “I’m not saying I\ndidn’t say it, I’m just saying I don’t remember saying that,”\nVoecks testified. R. 40 at 155. But he did otherwise acknowl-\nedge the first and third accounts he had given Frusti as to\nwhom the gun belonged and how it had come to be in the\ncenter console of the car.\n When Frusti subsequently testified for the government,\ndefense counsel attempted to cross-examine him about the\nvarious statements Voecks had made to him during the two\ninterrogations Frusti had conducted. But the court sustained\nthe government’s hearsay objections to such questions. R. 40 at\n182, 186; see also R. 40 at 220. Thus, for example, when defense\ncounsel asked Frusti what Voecks had said during the initial\ninterrogation, the court sustained a hearsay objection, although\ncounsel was then able to elicit from Frusti (without objection)\nthat Voecks’ initial account involved him having obtained the\n.45 caliber gun from another individual. R. 40 at 182. When the\ncross-examination turned to the second interrogation (after\nVoecks had posted bail), defense counsel was able to elicit from\nFrusti what he said to Voecks during that interrogation, but\n(with one exception) not what Voecks said in response to\nquestioning. R. 40 at 186. The defense was only able to have\nFrusti confirm that Voecks gave inconsistent accounts with\nrespect to the gun. R. 40 at 187–88.\n Voecks, when he was on the witness stand, was also cross-\nexamined regarding certain text messages he allegedly sent to\nStramowski in the days immediately before trial. The two were\nno longer engaged at that point, and Voecks had recently\nbecome aware that Stramowski and Fernandez either were or\nhad been in a relationship with one another. Voecks admitted\n\f6 No. 17-3421\n\nthat the news made him angry. R. 40 at 139. The purported\ntexts from Voecks to Stramowski stated, among other things:\n Have fun talking to your[ ] Boyfriend cause he’s\n gonna do 20-life! I’m testifying, he’s fcked. Hope\n it’s worth it[,] look what he did. To both of us … .\n I told u a[ ]long time ago, only one of us would\n survive, and it wouldn’t be him! Either way he’s\n fcked whether it’s by my hands or the court[‘s]. …\n Ur both gonna get urs[.]\n I met with the usa[ ] prosecuting attorney. Luis is\n f*cked. He done a[n]d a fed inmate for life! Keep\n wasting ur money on him. …\nR. 46–2 at 2–6 (sanitizing ours); see also R. 40 at 159–61.\nStramowski had provided screen-shots of these texts to defense\ncounsel (who in turn produced them to the government’s\ncounsel) midway through the first day of trial, just before\nopening statements were to commence. The government\nobjected to any reference to the texts; but as the texts were\nprobative of Voecks’ potential bias and motive to testify, the\ndistrict court allowed the defense to cross-examine Voecks\nabout the texts, as defense counsel had proposed, but indicated\nthat the defense would not be permitted to introduce extrinsic\nevidence of the texts. R. 40 at 36–37, 39–40, 221–22. During the\ncross-examination of Voecks, counsel established that he had\nsent texts to Stramowski in advance of the trial and that his cell\nphone number was the same as the number from which the\ntexts on Stramowski’s phone purportedly came. Counsel then\nread several of the texts to Voecks and asked him whether he\n\fNo. 17-3421 7\n\nhad sent them to Stramowski. In each instance, Voecks\nanswered that he did not recall sending such a text to her.\n Stramowski subsequently testified as a defense witness. She\nindicated that she had not seen any guns in the car on the date\nof the traffic stop, nor had she heard any discussion between\nVoecks and Fernandez regarding the .45 caliber weapon later\ndiscovered in the console. She testified that Voecks owned\nmultiple guns and at one point had possessed as many as five\nwhen she was living with him. When defense counsel at-\ntempted to ask her about the substance of texts she claimed to\nhave received from Voecks in the run-up to the trial, the\ndistrict court sustained the government’s hearsay objection.\nR. 40 at 205. Stramowski did confirm that Voecks was upset to\nlearn that she was in a relationship with Fernandez, and that\nhe told her he was going to “get back at [her]” for that. R. 40 at\n205–06.\n At the conclusion of the trial, the jury found Fernandez\nguilty of the felon-in-possession charge; and the district court\nlater denied his motion for a new trial. The court noted that\ndespite the hearsay objections it had sustained when the\ndefense had attempted to ask Voecks what officer Frusti had\nsaid while interrogating him and to ask Frusti how Voecks had\nresponded to Frusti’s questions, the defense had managed to\nestablish how Voecks’ story had evolved during questioning.\nR. 62 at 9–10. As to the texts Voecks had allegedly sent to\nStramowski, the court pointed out that the defense had read\nthose texts to Voecks on cross-examination, so that the jury\nwas aware of what the texts said notwithstanding the fact that\nthe court had not allowed the defense to present extrinsic\nevidence of the texts. R. 62 at 16–18.\n\f8 No. 17-3421\n\n At sentencing, Judge Pepper ordered Fernandez to serve a\nprison term of 27 months, which was at the low end of the\nrange advised by the Sentencing Guidelines.\n II.\nA. Hearsay objections regarding police interrogation of Voecks\n There is no dispute that Voecks gave Frusti contradictory\naccounts as to whom the .45 caliber gun belonged and who had\nplaced it in the center console of the car. As the interrogations\nof Voecks were recorded and transcribed, the parties knew\nexactly what Frusti had said to Voecks during the questioning\nand what Voecks had said to Frusti in response. Frusti and\nVoecks both testified at trial, and the defense wanted leeway\nto question each of them about both sides of the interrogation;\nbut as noted, when the defense attempted to ask Voecks about\nwhat Frusti had said to him and vice-versa, the district court\nsustained the government’s hearsay objections, essentially\nconfining the cross-examination of each witness to his own\nstatements.\n Fernandez argues that the district court erred in imposing\nthese limitations. He contends that “[t]he government’s case\nagainst Fernandez depended entirely on the credibility of\nAdam Voecks, … [s]o it was essential for the defense to\nhighlight each step in Voecks’ ever-evolving story and to\nexplain what led him to shift blame to Fernandez.” Fernandez\nBr. 8. The district court’s hearsay rulings effectively prevented\nthe defense from accomplishing that task, Fernandez asserts,\nand thus denied him the ability to confront his accuser and\npresent a full defense. It was, in his view, confusing and\nunnecessary to restrict the cross-examination of Voecks and\n\fNo. 17-3421 9\n\nFrusti to their respective halves of the interrogations. And\nbecause Voecks professed inability to recall certain of the\nstatements he made during questioning, and Fernandez’s\ncounsel was prohibited from asking Frusti to fill in those gaps,\nthe defense was unable to establish the full content and context\nof Voecks’ changing stories. Ultimately, in Fernandez’s view,\nthe jury was only given the bare outlines of the inconsistent\nstatements that Voecks gave and was kept ignorant of the\ndetails which demonstrated how and why his accounts\nchanged. On appeal, Fernandez suggests for the first time that\nthe error was so serious that it deprived him of his Sixth\nAmendment right to confront Voecks effectively.\n We agree it was error to sustain the hearsay objections to\nquestions aimed at eliciting what questions officer Frusti asked\nof Voecks during the interrogations. It is common ground\nbetween the parties that the statements Voecks made during\ninterrogation were fair game for the impeachment of his\ntestimony at trial. See Fed. R. Evid. 801(d)(1)(A). To that end, it\nwas entirely reasonable to question Voecks about what he had\ntold Frusti at the police station, and the district court allowed\nthe defense to do so. But interrogations are an inherently\ninteractive process, and so Frusti’s half of the interrogations\nwere material to the context of Voecks’ answers. What Frusti\nasked of or said to Voecks during interrogation was not offered\nfor its truth, but rather to establish what questions or state-\nments Voecks was responding to and the effect the former had\non Voecks as the listener. This was a legitimate non-hearsay\npurpose aimed at providing the jury with the full context of\nVoecks’ prior statements. See, e.g., Estate of Moreland v. Dieter,\n395 F.3d 747, 753–54 (7th Cir. 2005) (recognizing that interroga-\n\f10 No. 17-3421\n\ntor’s questions were offered to provide context for defendant’s\nanswers and as such were not hearsay) (citing United States v.\nWoods, 301 F.3d 556, 561 (7th Cir. 2002) (informant’s side of\nrecorded conversation with defendant admissible to provide\ncontext)); United States v. Gajo, 290 F.3d 922, 929–30 (7th Cir.\n2002) (statements of non-conspirator, in recorded conversation\nwith co-conspirator, admissible to provide context for co-\nconspirator’s statements) (collecting cases); United States v.\nGutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988) (co-defendant’s\nstatements introduced not for their truth but only to show they\nwere uttered). The judge may have been misled by the de-\nfense’s first foray into Frusti’s side of the interrogations, which\nasked Voecks to recount what Frusti had told him on a\nparticular point. R. 40 at 150–51. There may well be instances\nin which a party improperly seeks to elicit an interrogator’s\nstatement during questioning (representing what another\nwitness has told the authorities, for example) for its truth\nrather than to establish the context of what the person being\ninterrogated said next. If that were the evident aim of defense\ncounsel’s questioning here, then we would agree that the\ninquiries were barred by the hearsay rule. But it soon became\nclear that Fernandez’s attorney was attempting to elicit Frusti’s\nstatements and questions for legitimate non-hearsay purposes.\nCounsel’s next question, for example, was what Frusti had\nasked Voecks, and the court sustained the government’s\nobjection to that inquiry as well. R. 40 at 151. Consequently, the\nhearsay rule did not support the court’s decision to preclude\nthe defense from establishing both sides of the interrogations\nthrough Voecks himself.\n\fNo. 17-3421 11\n\n The defense had a legitimate purpose in examining Voecks\nabout the various contradictory stories he had told to Frusti\nabout the gun, and as part of that inquiry it was entirely proper\nfor the defense to establish what Frusti said and asked during\nthe interrogations in order to place Voecks’ answers in context.\nTo the extent Frusti may have been leading or cajoling Voecks\nto change his story, for example, Frusti’s side of the interroga-\ntions would be relevant to the jury’s assessment of Voecks’\ncredibility in pointing the finger at Fernandez. Insisting that\nFernandez’s counsel instead wait to ask Frusti about his half of\nthe conversations was at best a cumbersome alternative, and\none that precluded the defense from eliciting what Voecks\nunderstood Frusti to be saying to him.\n The converse restriction the court imposed on the cross-\nexamination of Frusti was also problematic, but less trouble-\nsome on the record as it stands. Fernandez points out that\nVoecks professed an inability to recall certain statements he\nmade during the second interrogation, during which Voecks\nchanged course and ultimately attributed possession of the .45\ncaliber gun to Fernandez. At that point, Fernandez argues, he\nshould have been permitted to establish through Frusti the\nstatements that Voecks was purportedly unable to recall. See\npursuant to Fed. R. Evid. 613(b)1; United States v. DeMarco, 784\nF.3d 388, 394 (7th Cir. 2015) (extrinsic evidence of witness’s\nprior statement is admissible pursuant to Rule 613(b) for\n\n\n1\n Rule 613(b) provides: “Extrinsic evidence of a witness’s prior inconsistent\nstatement is admissible only if the witness is given an opportunity to\nexplain or deny the statement and an adverse party is given the opportunity\nto examine the witness about it, or if justice so requires.”\n\f12 No. 17-3421\n\npurpose of impeaching witness so long as witness has first\nbeen given opportunity to explain or deny statement); see also\nUnited States v. Lopez, 870 F.3d 573, 582 (7th Cir. 2017) (constru-\ning rule broadly to permit extrinsic evidence even when\nwitness has acknowledged prior statement) (collecting cases).\nBut the logical first step the defense could have taken in this\nregard was to present Voecks with the transcript of the\ninterrogation and ask him whether that refreshed his recollec-\ntion as to what he said. See, e.g., United States v. Vasquez, 635\nF.3d 889, 895 (7th Cir. 2011), cert. dismissed, 566 U.S. 376, 132\nS. Ct. 1532 (2012). If Voecks was responding to these inquiries\nin good faith, then a review of the transcript might have caused\nhim to recall and acknowledge the statements in question. If so,\nthen the defense’s need to question Frusti on these points\nwould have been reduced, as a practical matter, if not elimi-\nnated. But see Lopez, 870 F.3d at 581 (“[E]ven when a witness\nadmits to making a prior inconsistent statement, Federal Rule\nof Evidence 613(b) should be read broadly to allow a party ‘to\nintroduce extrinsic evidence to emphasize the fact that the\nwitness made the prior statement.’”) (quoting United States v.\nLashmett, 965 F.2d 179, 182 (7th Cir. 1992)). If, at the other\nextreme, Voecks denied making the statements, then of course\nit would have been entirely proper to ask Frusti what Voecks\nhad said. See DeMarco, 784 F.3d at 394 (once witness has denied\nmaking prior statement, Rule 613(b) permits extrinsic proof of\nthat statement). And if, instead of either acknowledging or\ndenying his prior statements, Voecks had continued to profess\na lack of recollection, then it would have been up to the district\njudge to decide whether his professed lapse of memory was\ngenuine. If the court were to conclude that Voecks was simply\n\fNo. 17-3421 13\n\nbeing evasive, then establishing his statements through Frusti\nagain would have been permissible. Cf. United States v. DiCaro,\n772 F.2d 1314, 1322 (7th Cir. 1985) (where district court found\nwitness lied in professing amnesia, court did not abuse its\ndiscretion in admitting witness’s prior grand jury testimony\nper Rule 801(d)(1)(A)). On the other hand, if the court believed\nthat Voecks’ failure of memory was genuine, then the admissi-\nbility of Voecks’ prior statements through Frusti would have\npresented a closer question. Compare United States v. Brown, 788\nF.3d 830, 834 (8th Cir. 2015) (it is within trial judge’s discretion\nto exclude extrinsic evidence of witness’s prior statement\nwhere witness asserts in good faith she cannot recall making\nthe statement), with United States v. Bullcalf, 563 F. App’x 535,\n536 (9th Cir. 2014) (unpublished) (witness’s inability to recall\nprior statement should be treated as denial for purposes of\nRule 613(b)). The defense did not attempt to refresh Voecks’\nrecollection using the transcript of his interrogations, so\narguably it did not lay the requisite groundwork for admitting\nthe statements through Frusti.2\n Even assuming, on the broadest reading of Rule 613(b), that\nthe court should have allowed Frusti to be questioned about\nVoecks’ statements once Voecks himself professed not to\nremember making them, any error with respect to the restric-\ntions imposed on cross-examination of Frusti—as well as\nVoecks—was harmless. The jury certainly was aware that\nVoecks gave multiple, contradictory statements to the police\n\n\n2\n By contrast, the defense did present Frusti with a transcript of the\ninterrogation in order to refresh his recollection as to a point Frusti claimed\nan inability to recall. R. 40 at 183.\n\f14 No. 17-3421\n\nwhich began with the claim that the gun belonged to him and\nended with the claim that the gun belonged to Fernandez. It is\ntrue that the defense was not able to elicit every detail of the\nvarious accounts that Voecks had given to Frusti. (For exam-\nple, in his first version, Voecks told Frusti that he had met the\nman from whom he had obtained the gun at a methadone\nclinic.) It is also true that the defense was not able to establish\nthe particulars of what prompted Voecks to abandon his\nsecond version (that he did not see anyone put the gun into the\nfront-seat console of the car) for his third and final version (that\nFernandez put the gun there). However, we are not convinced\nthat such details were vital to the defense. The jury was fully\naware that Voecks had first claimed the gun was his, but\nduring the second interrogation had abandoned his first\naccount and claimed the gun was Fernandez’s. Critically, the\njury was also made aware of the fact that it was the warning\nfrom Sergeant Morris that Voecks would be held to account for\nany crimes connected to that gun which prompted Voecks to\nreconsider the first story and agree to the second interview,\nwhere he ultimately incriminated Fernandez. We can readily\nappreciate that eliciting the specifics of what Frusti said to and\nasked of Voecks, and what Voecks said in response, would\ndemonstrate both Voecks’ facility with inventing details and\nhis clumsiness in contradicting himself on such key points as\nto whether he knew there was a gun in the center console of\nthe car. The restrictions imposed on the cross-examinations of\nVoecks and Frusti made it an unnecessarily difficult task for\nthe defense to lay bare the full evolution and context of\nVoecks’ statements regarding the .45 caliber pistol. But the\ndefense nonetheless was able to establish the gist of the two\n\fNo. 17-3421 15\n\ncontradictory accounts of the gun’s ownership and the trigger\nfor Voecks’ decision to abandon his original statement and\nattribute possession of the gun to Fernandez. Defense counsel\nmade full use of the (purportedly self-serving) evolution of\nVoecks’ account in closing argument. R. 41 at 265–68.\nFernandez has not shown us why any of the omitted details of\nFrusti’s interrogations of Voecks mattered so much as to\ndemonstrate reversible error. And although Fernandez did not\ninvoke his Confrontation Clause rights below and arguably\nforfeited any constitutional claim, for the sake of completeness,\nwe note that his ability to raise the essential points as to\nVoecks’ change of story defeats any claim of plain error in this\nregard.\nB. Admissibility of the text messages\n Fernandez next contends that the district court erred in\nprecluding him from questioning defense witness Stramowski\nabout the content of the texts she had purportedly received\nfrom Voecks in the run-up to the trial. Once Voecks was\nconfronted with and essentially denied having sent those texts,\nFernandez argues, he should have been permitted to introduce\nextrinsic evidence of the texts in order to establish Voecks’ bias\nagainst both Fernandez and Stramowski and his motive to\ninculpate Fernandez at trial. The district court’s understanding\nthat Rule 608(b) forbade extrinsic evidence of a witness’s prior\nstatements for these purposes was mistaken, he contends.3\n\n\n3\n In relevant part, Rule 608(b) provides: “Except for a criminal conviction\nunder Rule 609, extrinsic evidence is not admissible to prove specific\ninstances of a witness’s conduct in order to attack or support the witness’s\n (continued...)\n\f16 No. 17-3421\n\n We do not disagree with Fernandez that evidence as to the\ntexts, if they were indeed sent by Voecks, was admissible to\nestablish Voecks’ bias and motive as a witness for the govern-\nment. See United States v. DeMarco, supra, 784 F.3d at 394\n(noting that Fed. R. Evid. 608(b) allows proof of specific\ninstances of conduct to establish bias or prior inconsistent\nstatement) (citing United States v. McGee, 408 F.3d 966, 981–82\n(7th Cir. 2005)). Statements in the texts to the effect that both\nFernandez and Stramowski were going to “get yours” and\nthat, as between Fernandez and Voecks, only one was going to\n“survive” and it was not going to be Fernandez, certainly\ncould be understood to reflect that Voecks had an axe to grind\nagainst Fernandez and a motive to help himself by testifying\nfor the government at Fernandez’s expense. Once Voecks was\nconfronted with the texts and effectively denied sending them,\nthe door was opened to extrinsic evidence of the texts pursuant\nto Rule 613(b), contrary to the district court’s understanding.\nDeMarco, 784 F.3d at 394.\n But for two reasons, we do not think the district court erred\nin sustaining the government’s objections when the defense\nbegan to ask Stramowski about these texts. First, when the\nmatter of the texts was first raised with the district judge prior\nto opening statements, Fernandez’s attorneys indicated that it\nwas not their intent to establish the substance of the texts\n\n\n3\n (...continued)\ncharacter for truthfulness. But the court may, on cross-examination, allow\nthem to be inquired into if they are probative of the character for truthful-\nness or untruthfulness of: (1) the witness; or (2) another witness whose\ncharacter the witness being cross-examined has testified about. …\n\fNo. 17-3421 17\n\nthrough extrinsic evidence; instead, counsel simply wanted the\nopportunity to question Voecks about the texts. R. 40 at 33, 35.\nThe court readily acceded to that limited request. We inquired\nat oral argument whether, after Voecks had been confronted\nwith the texts and denied having sent them, defense counsel\never argued to the court that circumstances had changed and\nthat the defense should now be permitted to prove the exis-\ntence and contents of the texts through extrinsic evidence.\nCounsel answered that question in the negative. The district\ncourt can hardly be faulted for barring evidence that the\ndefense had disclaimed an intent to introduce.\n Second, given the late hour at which the texts came to\nlight—just as opening statements and the presentation of\nevidence was about to begin—there was very little opportunity\nfor either party to establish the authenticity of the texts. The\ncourt rightly flagged the authenticity of the texts as a concern\nfrom the start, and we may safely assume that it would have\ntaken some amount of time to investigate this. But the presen-\ntation of evidence at trial began and concluded on the same\nday that the texts were first raised; and given that the defense\nhad originally indicated it would be satisfied with the opportu-\nnity to question Voecks about the texts, the government was\nnot on notice that it needed to task someone to explore the\nprovenance and authenticity of the texts. The district court was\nthus well within its discretion to prohibit the defense from\nattempting to provide the existence and content of the texts\nthrough Stramowski.\n\f18 No. 17-3421\n\nC. Disclosure of Fernandez’s arrest on outstanding warrant\n Finally, Fernandez contends that the district court erred in\npermitting the government to establish that he was arrested\nduring the November 2016 traffic stop on an outstanding\nwarrant for a probation violation. The government argued, and\nthe district court agreed, that the arrest was necessary to\ncomplete the picture of what occurred during the stop and in\nparticular to explain why Fernandez was loaded into the police\nvan, which was when officer Graf heard him tell Voecks not to\nworry about possession of a gun, because that was only a\nmisdemeanor offense for Voecks. Fernandez contends that\ndisclosure to the jury of his arrest and the reason for it amount-\ned to evidence of a prior bad act that was not probative of his\nguilt on the felon-in-possession charge, and that the court’s\nrationale in allowing it tracks the “inextricably related”\nrationale of which we disapproved in United States v. Gorman,\n613 F.3d 711, 717–19 (7th Cir. 2010).\n Any potential error in the court’s decision to admit this\nevidence was harmless, however. Because having a prior\nfelony conviction was an element of the offense with which\nFernandez was charged, the jury was necessarily aware that he\nhad a criminal record. See R. 28 ¶ 1; R. 40 at 189 (stipulation\nthat Fernandez previously had been convicted of a felony\noffense). That he was also arrested for a probation violation at\nthe time of the traffic stop was a relatively benign fact. Given\nthe limited purpose for which it was admitted, we are not\nconvinced that disclosure of the arrest was unduly prejudicial\nto Fernandez.\n\fNo. 17-3421 19\n\n III.\n We AFFIRM the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364521/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	MANION	ROVNER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587268/	Published	1	0	0	2,019	2	[ { "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...
4,587,269		United States v. Artez Brewer	2019-02-04	18-2035	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, ROVNER, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2035\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nARTEZ BREWER,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Indiana, Hammond Division.\n No. 2:16-cr-00084-JVB-JEM-1 — Joseph S. Van Bokkelen, Judge.\n ____________________\n\n ARGUED NOVEMBER 5, 2018 — DECIDED FEBRUARY 4, 2019\n ____________________\n\n Before BAUER, ROVNER, and ST. EVE, Circuit Judges.\n ST. EVE, Circuit Judge. Artez Brewer and his girlfriend,\nRobin Pawlak, traveled the country robbing banks, à la Bon-\nnie and Clyde. Agents today, however, have investigative\ntools that their Great Depression predecessors lacked. With a\nwarrant for real-time, Global-Positioning-System (GPS) vehi-\ncle monitoring, a task force tracked Brewer’s car to Califor-\nnia where he and Pawlak committed another robbery. Brew-\ner was arrested and essentially confessed to the crime spree.\n\f2 No. 18-2035\n\nThe government charged him with three counts of bank rob-\nbery, 18 U.S.C. § 2113(a), and a jury convicted him on each\ncount.\n Brewer appeals. He argues that the government violated\nthe Fourth Amendment by tracking him to California when\nthe warrant only permitted monitoring in Indiana. But the\nin-state limitation did not reflect a probable-cause finding or\na particularity requirement, and the Fourth Amendment is\nunconcerned with state borders. Brewer also argues that the\ndistrict court abused its discretion in admitting evidence of\nunindicted robberies. Yet that other-act evidence was direct-\nly probative of Brewer’s identity, modus operandi, and in-\ntent, and it therefore fell within the bounds of Federal Rule\nof Evidence 404(b)(2). We affirm.\n I. Background\n Five bank robberies, committed in three states over the\ncourse of about six weeks, led to Artez Brewer’s arrest and\nprosecution.\n The first robbery happened on April 28, 2016. The day\nbefore, a young man entered Centier Bank in Griffith, Indi-\nana, and made an odd request: he asked for change in two-\ndollar bills. The next day, a woman walked into the bank\nwearing a jogging suit, gloves, and a mask while carrying a\nyard-long wooden stick, a black bag, and a note. She put the\nstick in between the bank’s entrance doors, approached the\nteller counter, and held up the note, which read, “All money\nin drawer, no bait.” She received $162, exited the bank, and\nran into the alley. Security footage showed a dark Chevrolet\nImpala fleeing the scene.\n\fNo. 18-2035 3\n\n The day after the first robbery, on April 29, 2016, a young\nman walked into State Bank & Trust in Perrysburg, Ohio. He\nlingered, waited in line for a couple of minutes, pulled out\nhis cell phone, and left without being assisted. The man was\nthen seen loitering across the street from the bank. After re-\nlieving himself on a nearby garbage bin, the man got back\ninto his car—a black sedan—where he sat facing the bank. A\nbit later, a woman entered the bank dressed head to toe in\ndark clothing, carrying a stick, a black bag, and a note. The\nwoman dropped the stick at the bank’s entrance doors, ap-\nproached the teller counter, and handed up a note demand-\ning cash. She left with over $1,000.\n On the morning of May 6, 2016, a young man entered the\nMainSource Bank in Crown Point, Indiana. He approached\nthe teller and made a request she thought odd: change in\ntwo-dollar bills. That afternoon, a beige Toyota sedan pulled\nup near the bank. A woman got out, wearing all black and\ncarrying a long stick, a purple and black bag, and a note. She\nput the stick at the front doors, reached the teller desk, and\nheld up a note demanding money. She received all the mon-\ney in the teller’s top drawer, about $1,700. She fled, got back\ninto the Toyota, and took off.\n About three weeks later, in the late afternoon of May 26,\n2016, a young man walked into Horizon Bank in Whiting,\nIndiana. He approached the teller desk and requested\nchange in one-dollar gold coins, which the teller found unu-\nsual. The next morning, on May 27, a Toyota Corolla pulled\nup to an auto-shop lot next to the bank. A woman dressed in\ndark clothing entered the bank, carrying a bag and a note.\nWithout saying a word, she approached the teller desk and\nheld up the note demanding money. She made off with a lit-\n\f4 No. 18-2035\n\ntle more than $6,000 before jumping into the Toyota. The\nrobber left behind a stick wedged between the doors.\n These (and other) heists drew the attention of an FBI task\nforce, which pinned Brewer as the young man present at the\nbanks just before the robberies. It conducted surveillance\nand gathered that Brewer lived with a woman, Robin Paw-\nlak, in Gary, Indiana. Officers observed a Toyota matching\nthe one from the robberies parked outside their residence,\nand they later discovered that Brewer sometimes drove an-\nother car—a silver Volvo. A task-force officer sought a war-\nrant from a state-court magistrate to monitor the Volvo with\nGPS tracking. The officer’s supporting affidavit referenced\neleven bank robberies, in Indiana, Illinois, and Ohio. The\nmagistrate issued the warrant, which permitted the use of a\n“tracking device … in any public or private area in any ju-\nrisdiction, within the State of Indiana, for a period of 45 days.”\nThe in-state limitation was, apparently, an anomaly. The task\nforce had obtained multiple GPS vehicle-monitoring war-\nrants during the investigation from the same magistrate,\nnone of which included the limitation.\n The task force quickly installed the GPS tracker, con-\nsistent with the warrant’s terms. A few days later, on June 7,\n2016, a task-force officer noticed that the Volvo was on the\nmove heading west. He monitored the car as it left Indiana\nand traveled through Illinois and continued westward until\nit arrived in Los Angeles, California. The officer was una-\nware that the warrant limited the monitoring to Indiana, and\nhe failed to consult it while tracking the car. Once in L.A.,\nthe officer noticed that the Volvo was circling a bank.\n The officer called the FBI’s bank-robbery coordinator in\nL.A. to give him the heads-up about Brewer’s presence near\n\fNo. 18-2035 5\n\nBanner Bank. On the morning of June 10, 2016, officers ob-\nserved Brewer and Pawlak in the Volvo near the bank. Brew-\ner got out of the car, walked around the bank for about thirty\nminutes, occasionally staring through its large windows.\nThat afternoon, the Volvo again approached the bank. A\nwoman got out of the car, dressed in black and carrying a\nstick. She dropped the stick at the door, approached the tell-\ners, and held up a note, which read, “ALL the money No\ncops No DYE OR your dead.” She received about $1,000 in\ncash, and then ran out of the bank and into the Volvo. Offic-\ners stopped the car, arrested Brewer and Pawlak, and found\na bag of cash.\n Agents questioned Brewer at the stationhouse. They told\nhim that he was seen at Horizon Bank in Indiana just before\nit was robbed, but Brewer claimed to be a coin collector.\nWhen an agent pressed, however, and asked whether any-\none else was involved in the robberies, Brewer said:\n I tell you what, I can tell you, I told you about this\n shit, I didn’t come up with it by my damn self, I can\n tell you that shit right now but like, ya know. I was\n not uh—I was not uh—It was like a spur of the\n moment shit like fuck ya know….\n\nAgents later searched Brewer’s residence. They found car\ntitles to an Impala and a Corolla. They also found clothes\nmatching those worn by the young man who had been pre-\nsent before many of the robberies.\n A grand jury returned an indictment against Brewer\ncharging him with three counts of bank robbery, 18 U.S.C.\n§ 2113(a), for each of the three Indiana robberies. After\nBrewer lost a motion to suppress regarding, in part, the\ntracking of his Volvo outside of Indiana, he went to trial. At\n\f6 No. 18-2035\n\ntrial, and over Brewer’s objection, the government presented\nevidence of the Ohio and California robberies pursuant to\nRule 404(b). Eyewitness testimony identified Brewer as the\nyoung man present before many of the robberies, and sur-\nveillance footage showed the same. The government also\npresented a recording of Brewer’s post-arrest statements.\n The jury convicted Brewer on all three counts, and the\ndistrict court sentenced him to 137 months in prison. He had\nalready been convicted in the Central District of California\nfor the L.A. robbery, and sentenced to 125 months in prison\nfor that crime. The net effect of the district court’s sentence\nbelow was therefore an additional twelve months in custody.\nBrewer appealed.\n II. Discussion\n Brewer offers three reasons for a new trial: (1) the district\ncourt should have excluded certain evidence under the\nFourth Amendment; (2) the district court erred in admitting\nevidence of the unindicted robberies under Rule 404(b); and\n(3) the government used surveillance-footage evidence that\nhad questionable authenticity under Rule 901. We address\nthese points in turn and conclude that none merits reversal.\nA. The Fourth Amendment and the Tracking Warrant\n GPS vehicle monitoring generally requires a warrant,\nUnited States v. Jones, 565 U.S. 400, 404 (2012), and the gov-\nernment obtained one here. Brewer argues that by not abid-\ning by the in-state limitation set forth in the warrant the gov-\nernment effectively conducted a warrantless search, so the\nevidence of the California robbery and his confession were\nfruits of the poisonous tree. See Wong Sun v. United States,\n\fNo. 18-2035 7\n\n371 U.S. 471, 488 (1963). Two principles of the Fourth\nAmendment lead us to disagree.\n The first is that violating a search warrant is not the same\nas violating the Fourth Amendment. We know from as far\nback as Marron v. United States, 275 U.S. 192, 196 (1927), that\nofficers generally cannot search more than the particular\nplaces or things described in the warrant, and that they vio-\nlate the Fourth Amendment if they do. See also Horton v. Cali-\nfornia, 496 U.S. 128, 140 (1990); United States v. Mann, 592 F.3d\n779, 782 (7th Cir. 2010). That rule makes sense: the Fourth\nAmendment entrusts judges, not law enforcement, to deter-\nmine the particular places and things that probable cause\njustifies searching and seizing. But not everything in a war-\nrant is so inviolable. In Richards v. Wisconsin, 520 U.S. 385,\n395–96 (1997), for example, the Supreme Court held that a\nno-knock search was reasonable even though the warrant\nexpressly declined to authorize no-knock entry. Courts, simi-\nlarly, have held that reasonable noncompliance with a war-\nrant’s time limitations does not offend the Fourth Amend-\nment. See, e.g., United States v. Burgess, 576 F.3d 1078, 1097\n(10th Cir. 2009); United States v. Gerber, 994 F.2d 1556, 1558–59\n(11th Cir. 1993); see also United States v. Martin, 399 F.3d 879,\n881 (7th Cir. 2005). This, too, makes sense: while the Fourth\nAmendment entrusts judges to authorize the particular plac-\nes or things to be searched, it does not require judges to con-\nstrain officers with other “unenumerated” particularities. See\nUnited States v. Grubbs, 547 U.S. 90, 97–98 (2006); Dalia v.\nUnited States, 441 U.S. 238, 255–58 (1979); see also United States\nv. Patrick, 842 F.3d 540, 544 (7th Cir. 2016); Shell v. United\nStates, 448 F.3d 951, 957 (7th Cir. 2006).\n\f8 No. 18-2035\n\n The second Fourth Amendment principle is similar. Like\ncertain warrant terms, state law does not by proxy heighten\nthe Fourth Amendment’s protections. See Virginia v. Moore,\n553 U.S. 164, 168–73 (2008); California v. Greenwood, 486 U.S.\n35, 43–44 (1988). If, for example, law enforcement executes a\nstate-issued warrant beyond the limits of state law, the\nsearch may nevertheless comply with the Fourth Amend-\nment. See United States v. Gilbert, 942 F.2d 1537, 1541–1542\n(11th Cir. 1991). We recognized as much in United States v.\nCastetter, 865 F.3d 977, 978–79 (7th Cir. 2017), where we put it\nsimply: “the Fourth Amendment does not concern state bor-\nders.”\n Other courts have applied these Fourth Amendment\nprinciples to cases like this one. In United States v. Faulkner,\n826 F.3d 1139 (8th Cir. 2016), cert. denied, 137 S. Ct. 2092\n(2017), for example, the Eighth Circuit held that the installa-\ntion of a GPS tracker outside of the county where the war-\nrant authorized the installation to occur did not implicate the\nFourth Amendment. That the installation violated the war-\nrant and state law was irrelevant, according to Faulkner, be-\ncause the Fourth Amendment’s requirements of probable\ncause and particularity were satisfied. 826 F.3d at 1145–46.\nEven more on point is United States v. Simms, 385 F.3d 1347\n(11th Cir. 2004) (Cudahy, J., sitting by designation). In Simms,\nthe Eleventh Circuit held that the GPS tracking of a vehicle\ninto Alabama, even though the authorizing court order only\nallowed tracking in Texas, did not violate the Fourth\nAmendment. The Fourth Amendment’s requirements were\nmet, and the warrant’s in-state limitation was, at most, a\nstate-law problem. Simms, 385 F.3d at 1355–56.\n\fNo. 18-2035 9\n\n We hold the same. Upon a good-faith affidavit, the war-\nrant to track Brewer’s car issued from (1) an independent\nmagistrate, (2) based on probable cause, (3) with a particular\ndescription of the place or thing (the Volvo) to be searched.\nBrewer therefore received all he was entitled to under the\nFourth Amendment. E.g., Dalia, 441 U.S. at 255; Archer v.\nChisholm, 870 F.3d 603, 614 (7th Cir. 2017).\n Brewer nevertheless submits that the task force should\nhave obeyed the in-state limitation. Yet he does not argue\nthat it reflected a constitutional requirement—that is, a\nprobable-cause determination or a description of the particu-\nlar search authorized. Cf. Horton, 496 U.S. at 140. For good\nreason: Judges must describe the specific person, phone, or\nvehicle to be tracked to satisfy the Fourth Amendment’s par-\nticularity requirement. They need not specify (or limit) the\ntracking to a geographic location. United States v. Sanchez-\nJara, 889 F.3d 418, 421 (7th Cir. 2018), cert. denied, 139 S. Ct.\n282 (2018); Wayne R. LaFave, 2 SEARCH & SEIZURE: A\nTREATISE ON THE FOURTH AMENDMENT § 4.5(e) (5th ed. 2018).\nNor was there any reason to do so here. The affidavit sup-\nporting the warrant in this case described a multistate bank-\nrobbery spree, and we do not see how such evidence could\njustify monitoring only within Indiana. Brewer may have\nhad a constitutionally protected privacy interest in his\nwhereabouts, see Carpenter v. United States, 138 S. Ct. 2206,\n2215–17 (2018), but that interest was no greater on Indiana\nroads than it was on Illinois or California roads.\n\f10 No. 18-2035\n\n What we are left with, then, is the task force’s noncompli-\nance with a state-based, ancillary restriction in the warrant.1\nThe Fourth Amendment gives no remedy for that.\nB. Rule 404(b) and the Unindicted Robberies\n Brewer also submits that the district court erred in admit-\nting evidence of the unindicted robberies in Ohio and Cali-\nfornia under Federal Rule of Evidence 404(b). We review\nRule 404(b) decisions, like most evidentiary decisions, for an\nabuse of discretion. United States v. Norweathers, 895 F.3d 485,\n490 (7th Cir. 2018).\n Rule 404(b)(1) bars evidence of uncharged misdeeds to\nprove that the defendant had a propensity for committing\ncrime. Rule 404(b)(2), on the other hand, permits the intro-\nduction of such evidence for other purposes, including to\nprove identity, modus operandi, or intent. Fed. R. Evid.\n404(b)(2); United States v. Carson, 870 F.3d 584, 599 (7th Cir.\n2017), cert. denied, 138 S. Ct. 2011 (2018). In United States v.\nGomez, 763 F.3d 845 (7th Cir. 2014) (en banc), we set the\nroadmap for determining which camp a particular piece of\nother-act evidence falls into. Per Gomez, after a Rule 404(b)\nobjection, the proponent of the other-act evidence must\ndemonstrate that the evidence is relevant to a legitimate\npurpose “through a chain of reasoning that does not rely on\nthe forbidden inference that the person has a certain charac-\n\n 1We do not know for certain why the warrant included the in-state\nlimitation. Perhaps there were state-law reasons, although neither party\nhas pointed to any, or perhaps, as counsel for the government suggested\nat oral argument, the limitation was a vestige from some stock template.\nThe answer is unimportant. On this record, we can rule out the only rea-\nsons that would matter—a probable-cause finding or a particularity re-\nquirement.\n\fNo. 18-2035 11\n\nter and acted in accordance with that character on the occa-\nsion charged in the case.” 763 F.3d at 860. If the proponent\ndoes so, the district court must then use Rule 403 to deter-\nmine “whether the probative value of the other-act evidence\nis substantially outweighed by the risk of unfair prejudice,”\ntaking into account “the extent to which the non-propensity\nfact for which the evidence is offered actually is at issue in\nthe case.” Id.; see also United States v. Thomas, 897 F.3d 807,\n813 (7th Cir. 2018).\n The district court followed course in admitting evidence\nof the Ohio and California robberies. The government of-\nfered that other-act evidence to prove identity through mo-\ndus operandi and to show Brewer’s intent. See Gomez, 763\nF.3d at 864. It supplied propensity-free reasoning for those\npurposes, too. That Brewer lingered around banks in Ohio\nand California just before they were robbed by a person\nclothed head to toe, who used a stick and a give-me-the-cash\nnote, makes it more likely that he was the individual record-\ned at the Indiana banks just before they were robbed by a\nperson who dressed similarly and used similar methods.\nThat is so not because Brewer has a propensity for commit-\nting crimes, or even bank robberies, but because he and his\npartner had established an idiosyncratic way of doing so. See\nUnited States v. Price, 516 F.3d 597, 603–04 (7th Cir. 2008);\nUnited States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996).\n Urging a different conclusion, Brewer points out dissimi-\nlarities among the robberies. In California, for example, the\nrobber dropped the stick at the door, rather than jamming it\nin between the doors. And in neither Ohio nor California did\nhe make a strange change request, as he did before the Indi-\nana robberies. Our cases, however, have considered modus\n\f12 No. 18-2035\n\noperandi to mean a “distinctive”—not identical—“method\nof operation.” Carson, 870 F.3d at 599; see also, e.g., United\nStates v. Robinson, 161 F.3d 463, 468–69 (7th Cir. 1998); United\nStates v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989). Brewer\nidentifies slightly different tactics, but those differences do\nnot undermine the distinct resemblance among the rob-\nberies.\n The district court also properly weighed the evidence\nunder Rule 403, as Gomez requires. Brewer offered two lines\nof defense at trial—that he was not the person identified be-\nfore the Indiana robberies, and that, even if he was, he was\nthere for the innocent purpose of obtaining gold coins and\ntwo-dollar bills. He repeatedly cross-examined eyewitnesses\non these topics and made the arguments in closing. Brewer’s\nidentity and intent were therefore central to the case. Gomez,\n763 F.3d at 857, 860; cf. United States v. Miller, 673 F.3d 688,\n697 (7th Cir. 2012). For reasons we just explained, the other-\nact evidence was probative of his identity as the person pre-\nsent at the Indiana banks. It was equally probative in show-\ning that he was there for bank-casing purposes, not numis-\nmatic ones. The evidence of the Ohio and California rob-\nberies was of course prejudicial—all other-act evidence is—\nbut given that Brewer put his identity and intent squarely at\nissue, it was not unfairly so. See Fed. R. Evid. 403.\n Brewer takes an additional issue with the evidence of the\nOhio robbery, arguing that there was not enough proof tying\nhim to it. There was plenty. A State Bank & Trust teller au-\nthenticated surveillance footage (as we discuss below) that\ndepicted a man resembling Brewer. What is more, a man\nwith his appearance, wearing clothes matching what the\nman who lingered in the bank wore, was seen loitering\n\fNo. 18-2035 13\n\nacross the street for so long that he needed to relieve his\nbladder next to his car, a car which matched a title found in\nBrewer’s home.\n Brewer also makes a passing challenge to the jury in-\nstructions, but we see no problem there either. The district\ncourt twice instructed the jury to consider the evidence of\nthe Ohio and California robberies only if it first found that\nBrewer likely participated in them. See Pattern Criminal Jury\nInstructions of the Seventh Circuit 3.11 (2012 ed.). The court\nfurther made clear that the jury could only use the evidence\nto help it decide “the defendant’s motive, intent, knowledge\nand modus operandi during” the charged robberies—\nprecisely as Rule 404(b)(2) allows.\n On the whole, the district court showed sensitivity to\nRule 404(b)’s pitfalls throughout the prosecution. It excluded\nevidence of Brewer’s conviction for the California robbery. It\ndid the same for several arrest photos of Brewer and Pawlak.\nIn admitting the other-act evidence that it did, the district\nidentified the propensity-free chain of reasoning and careful-\nly performed the Rule 403 balancing. There was no abuse of\ndiscretion.\nC. Rule 901 and Footage of the Ohio Robbery\n Brewer’s third and final challenge concerns the govern-\nment’s evidence of the Ohio robbery. He contends that the\ngovernment did not properly authenticate surveillance foot-\nage of his presence at State Bank & Trust a few hours before\nthe robbery. We review the district court’s contrary decision\nfor an abuse of discretion. See Mathin v. Kerry, 782 F.3d 804,\n812 (7th Cir. 2015).\n\f14 No. 18-2035\n\n A party seeking to admit evidence must first establish a\nfoundation for its authenticity. United States v. Fluker, 698\nF.3d 988, 999 (7th Cir. 2012); United States v. Emerson, 501 F.3d\n804, 813 (7th Cir. 2007). Federal Rule of Evidence 901 states\nthat “[t]o satisfy the requirement of authenticating or identi-\nfying an item of evidence, the proponent must produce evi-\ndence sufficient to support a finding that the item is what\nthe proponent claims it is.” Fed. R. Evid. 901(a). Rule 901\ndoes not expressly describe how videotape evidence may be\nauthenticated, but we have held that the government can au-\nthenticate a recording “by offering testimony of an eyewit-\nness that the recording accurately reflects” the events as they\noccurred. United States v. Eberhart, 467 F.3d 659, 667 (7th Cir.\n2006); see also United States v. Cejas, 761 F.3d 717, 723 (7th Cir.\n2014). That is what the government did here. It called Sarah\nFelzer to testify, the teller on duty when Brewer visited State\nBank just before the robbery. She testified that the footage\n“fairly and accurately depict[ed] the events as they hap-\npened” that day.\n On cross-examination, Felzer’s recollection seemed fog-\ngier. She testified that she did not have an “independent rec-\nollection” of that day, and she seemed to suggest that she\ncould not distinguish that day from any other day that\nBrewer visited the bank. Brewer is right that this testimony\nwas inconsistent with Felzer’s direct-examination testimony.\nBut he is wrong to think it required exclusion of the footage.\nFelzer’s initial testimony was clear and sufficient under Rule\n901, see Eberhart, 467 F.3d at 667, so the district court did not\nabuse its discretion in finding that the government met its\nthreshold burden. It fell to the jury to decide “the evidence’s\ntrue authenticity and probative value.” Fluker, 698 F.3d at\n999.\n\fNo. 18-2035 15\n\n Even if it were otherwise, we would find harmless error.\nFed. R. Crim. P. 52(a). Take away the footage of Brewer at\nState Bank and the jury still heard about his confession and\nhis all-too-coincidental presence at the four other banks just\nbefore they were robbed. It heard five tellers—from the Indi-\nana robberies alone—identify Brewer. The jury also heard\nabout the compelling evidence the government recovered\nfrom Brewer and Pawlak’s home, including titles for vehicles\nthat matched the getaway cars. The government’s case\nwould not have been made significantly less persuasive ab-\nsent the State Bank footage. See, e.g., United States v. Jett, 908\nF.3d 252, 267 (7th Cir. 2018).\n III. Conclusion\n There was no Fourth Amendment violation in the task\nforce’s execution of the warrant. There was no error in the\ndistrict court’s evidentiary decisions. We AFFIRM the district\ncourt’s judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364522/", "author_raw": "ST. EVE, Circuit Judge"}]}	BAUER	ROVNER	ST EVE	1	{"BAUER": ", Circuit", "ROVNER": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587269/	Published	1	0	0	2,019	2	[ { "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...
4,587,322		United States v. Luis Fernandez	2019-02-04	17-3421	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, MANION, and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 17-3421\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nLUIS A. FERNANDEZ,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 2:17-cr-00052-PP-1 — Pamela Pepper, Judge.\n\n\n\n ARGUED SEPTEMBER 13, 2018 — DECIDED FEBRUARY 4, 2019\n\n\n Before FLAUM, MANION, and ROVNER, Circuit Judges.\n ROVNER, Circuit Judge. A jury convicted Luis Fernandez of\nbeing a felon in possession of a firearm, see 18 U.S.C.\n§ 922(g)(1). Fernandez appeals his conviction, contending that\nthe district court committed three evidentiary errors that\ndeprived him of a fair trial. We affirm.\n\f2 No. 17-3421\n\n I.\n The charge against Fernandez arose out of a traffic stop\nconducted by police in Franklin, Wisconsin (a Milwaukee\nsuburb) on November 20, 2016. Fernandez was sitting in the\nfront passenger seat of a black Chevrolet Caprice, his friend\nAdam Voecks was driving, and Voecks’ fiancée Valerie\nStramowski was in the back seat. Police officer Gabriel Frusti\ninitiated the stop after observing the car move across multiple\nlanes of traffic without signaling and quickly decelerating to a\nhalt. (Voecks would later testify that the car’s engine had died.)\nMoments later, officer Adam Rogge arrived on the scene in\nresponse to Frusti’s request for backup. When Rogge ap-\nproached the driver’s side of the vehicle to speak with Voecks\n(Frusti was speaking with Fernandez on the passenger side), he\nnoticed an odor of marijuana emanating from the interior of\nthe car. Voecks was asked to step out of the car. When asked if\nhe was armed, Voecks disclosed that he had a gun in his right\nfront pocket; officers removed a holstered Kel Tec .380 caliber\npistol from that pocket.\n Ultimately all three of the occupants of the car were taken\ninto police custody. Although Voecks had no criminal record\nand had purchased the gun found on his person legally, he did\nnot have a permit to carry a concealed weapon and was\narrested on that basis. Fernandez and Stramowski were\narrested on outstanding warrants, and Stramowski had also\ngiven the officers a false name in an attempt to evade arrest.\n When the interior of the car was searched, police discov-\nered a second gun—a Springfield Armory .45 caliber pistol—in\nthe center console between the front driver and passenger\n\fNo. 17-3421 3\n\nseats. A pat-down of Voecks’ person also produced a folding\nknife, a crack pipe, and two bullets, one of which was a .38\ncaliber bullet (the same caliber as the pistol found in his pocket)\nand the second of which was a .45 caliber bullet (the same\ncaliber as the pistol discovered in the console).\n The occupants of the car were transported in a police van\nto the Franklin police department for processing and question-\ning. As Fernandez was being placed into the van, officer Adam\nGraf overheard him call out to Voecks, “[D]on’t worry[,] it’s\nonly a misdemeanor for you to have a gun.” R. 40 at 90; see also\nR. 40 at 128.\n Voecks was interviewed twice at the police station, and\nover the course of the two interviews he gave three different\nstatements as to who had possessed the .45 caliber pistol found\nin the car and who had placed it in the center console. Officer\nFrusti conducted both interviews (with officer Rogge sitting\nin). During the first interview, Voecks claimed ownership of\nthat gun and told Frusti that he had obtained it from a friend\nwho had since died. Voecks was subsequently bailed out of jail\nby his father. As he was preparing to leave the station, Ser-\ngeant Dan Morris approached Voecks and warned him that the\npolice would run a trace on the gun, and if they discovered\nthat the gun had been used in any crime, “it was going to come\nback on [him].” R. 40 at 135. Voecks at that point became\nvisibly pale and nervous, and Morris offered him the opportu-\nnity to be interviewed for a second time about the gun; Voecks\naccepted the invitation. During the second interview, Voecks\ntold Frusti that the gun was not his. At first Voecks said that he\ndid not see who had placed it in the center console of the car,\nalthough he suggested it was more likely that Fernandez had\n\f4 No. 17-3421\n\ndone so than Stramowski. But when he was confronted with\ncertain inconsistencies in that new version of events, Voecks\nultimately averred that the gun belonged to Fernandez. Voecks\nstated that when officer Frusti had pulled up behind the car,\nFernandez had panicked, voicing concern that he could “go\naway for 20 years” and not be able to see his four children. At\nFernandez’s urging, Voecks had agreed to claim possession of\nthe gun. While Frusti was calling for backup, Fernandez had\nplaced the gun into the center console. Voecks picked up a\nbullet from the gun that had landed on his seat and placed it\ninto his pocket.\n Voecks became the key prosecution witness against\nFernandez at trial. (No fingerprints were found on the .45\ncaliber pistol, and the government had not had the gun tested\nfor DNA evidence.) Voecks explained that he had first claimed\nownership of the .45 caliber pistol in order to protect his friend,\nFernandez, but changed his mind after being warned that he\nwould be implicated if the police discovered that the gun had\nbeen used in a crime. When defense counsel was cross-examin-\ning Voecks regarding the divergent accounts he had given to\npolice as to whom the gun belonged, the district court sus-\ntained hearsay objections to questions as to what officer Frusti\nhad asked of or said to Voecks during questioning. R. 40 at\n150–51, 152, 155. Defense counsel was able to ask Voecks what\nhe had told Frusti, but not what he was responding to. On\ncertain points, Voecks professed an inability to recall what\nspecifically he had said to Frusti. In particular, when defense\ncounsel asked Voecks about his second story regarding the\ngun, Voecks said that he lacked any recollection of telling\nFrusti that he did not see who placed the .45 caliber pistol in\n\fNo. 17-3421 5\n\nthe center console of the car. R. 40 at 154–55. “I’m not saying I\ndidn’t say it, I’m just saying I don’t remember saying that,”\nVoecks testified. R. 40 at 155. But he did otherwise acknowl-\nedge the first and third accounts he had given Frusti as to\nwhom the gun belonged and how it had come to be in the\ncenter console of the car.\n When Frusti subsequently testified for the government,\ndefense counsel attempted to cross-examine him about the\nvarious statements Voecks had made to him during the two\ninterrogations Frusti had conducted. But the court sustained\nthe government’s hearsay objections to such questions. R. 40 at\n182, 186; see also R. 40 at 220. Thus, for example, when defense\ncounsel asked Frusti what Voecks had said during the initial\ninterrogation, the court sustained a hearsay objection, although\ncounsel was then able to elicit from Frusti (without objection)\nthat Voecks’ initial account involved him having obtained the\n.45 caliber gun from another individual. R. 40 at 182. When the\ncross-examination turned to the second interrogation (after\nVoecks had posted bail), defense counsel was able to elicit from\nFrusti what he said to Voecks during that interrogation, but\n(with one exception) not what Voecks said in response to\nquestioning. R. 40 at 186. The defense was only able to have\nFrusti confirm that Voecks gave inconsistent accounts with\nrespect to the gun. R. 40 at 187–88.\n Voecks, when he was on the witness stand, was also cross-\nexamined regarding certain text messages he allegedly sent to\nStramowski in the days immediately before trial. The two were\nno longer engaged at that point, and Voecks had recently\nbecome aware that Stramowski and Fernandez either were or\nhad been in a relationship with one another. Voecks admitted\n\f6 No. 17-3421\n\nthat the news made him angry. R. 40 at 139. The purported\ntexts from Voecks to Stramowski stated, among other things:\n Have fun talking to your[ ] Boyfriend cause he’s\n gonna do 20-life! I’m testifying, he’s fcked. Hope\n it’s worth it[,] look what he did. To both of us … .\n I told u a[ ]long time ago, only one of us would\n survive, and it wouldn’t be him! Either way he’s\n fcked whether it’s by my hands or the court[‘s]. …\n Ur both gonna get urs[.]\n I met with the usa[ ] prosecuting attorney. Luis is\n f*cked. He done a[n]d a fed inmate for life! Keep\n wasting ur money on him. …\nR. 46–2 at 2–6 (sanitizing ours); see also R. 40 at 159–61.\nStramowski had provided screen-shots of these texts to defense\ncounsel (who in turn produced them to the government’s\ncounsel) midway through the first day of trial, just before\nopening statements were to commence. The government\nobjected to any reference to the texts; but as the texts were\nprobative of Voecks’ potential bias and motive to testify, the\ndistrict court allowed the defense to cross-examine Voecks\nabout the texts, as defense counsel had proposed, but indicated\nthat the defense would not be permitted to introduce extrinsic\nevidence of the texts. R. 40 at 36–37, 39–40, 221–22. During the\ncross-examination of Voecks, counsel established that he had\nsent texts to Stramowski in advance of the trial and that his cell\nphone number was the same as the number from which the\ntexts on Stramowski’s phone purportedly came. Counsel then\nread several of the texts to Voecks and asked him whether he\n\fNo. 17-3421 7\n\nhad sent them to Stramowski. In each instance, Voecks\nanswered that he did not recall sending such a text to her.\n Stramowski subsequently testified as a defense witness. She\nindicated that she had not seen any guns in the car on the date\nof the traffic stop, nor had she heard any discussion between\nVoecks and Fernandez regarding the .45 caliber weapon later\ndiscovered in the console. She testified that Voecks owned\nmultiple guns and at one point had possessed as many as five\nwhen she was living with him. When defense counsel at-\ntempted to ask her about the substance of texts she claimed to\nhave received from Voecks in the run-up to the trial, the\ndistrict court sustained the government’s hearsay objection.\nR. 40 at 205. Stramowski did confirm that Voecks was upset to\nlearn that she was in a relationship with Fernandez, and that\nhe told her he was going to “get back at [her]” for that. R. 40 at\n205–06.\n At the conclusion of the trial, the jury found Fernandez\nguilty of the felon-in-possession charge; and the district court\nlater denied his motion for a new trial. The court noted that\ndespite the hearsay objections it had sustained when the\ndefense had attempted to ask Voecks what officer Frusti had\nsaid while interrogating him and to ask Frusti how Voecks had\nresponded to Frusti’s questions, the defense had managed to\nestablish how Voecks’ story had evolved during questioning.\nR. 62 at 9–10. As to the texts Voecks had allegedly sent to\nStramowski, the court pointed out that the defense had read\nthose texts to Voecks on cross-examination, so that the jury\nwas aware of what the texts said notwithstanding the fact that\nthe court had not allowed the defense to present extrinsic\nevidence of the texts. R. 62 at 16–18.\n\f8 No. 17-3421\n\n At sentencing, Judge Pepper ordered Fernandez to serve a\nprison term of 27 months, which was at the low end of the\nrange advised by the Sentencing Guidelines.\n II.\nA. Hearsay objections regarding police interrogation of Voecks\n There is no dispute that Voecks gave Frusti contradictory\naccounts as to whom the .45 caliber gun belonged and who had\nplaced it in the center console of the car. As the interrogations\nof Voecks were recorded and transcribed, the parties knew\nexactly what Frusti had said to Voecks during the questioning\nand what Voecks had said to Frusti in response. Frusti and\nVoecks both testified at trial, and the defense wanted leeway\nto question each of them about both sides of the interrogation;\nbut as noted, when the defense attempted to ask Voecks about\nwhat Frusti had said to him and vice-versa, the district court\nsustained the government’s hearsay objections, essentially\nconfining the cross-examination of each witness to his own\nstatements.\n Fernandez argues that the district court erred in imposing\nthese limitations. He contends that “[t]he government’s case\nagainst Fernandez depended entirely on the credibility of\nAdam Voecks, … [s]o it was essential for the defense to\nhighlight each step in Voecks’ ever-evolving story and to\nexplain what led him to shift blame to Fernandez.” Fernandez\nBr. 8. The district court’s hearsay rulings effectively prevented\nthe defense from accomplishing that task, Fernandez asserts,\nand thus denied him the ability to confront his accuser and\npresent a full defense. It was, in his view, confusing and\nunnecessary to restrict the cross-examination of Voecks and\n\fNo. 17-3421 9\n\nFrusti to their respective halves of the interrogations. And\nbecause Voecks professed inability to recall certain of the\nstatements he made during questioning, and Fernandez’s\ncounsel was prohibited from asking Frusti to fill in those gaps,\nthe defense was unable to establish the full content and context\nof Voecks’ changing stories. Ultimately, in Fernandez’s view,\nthe jury was only given the bare outlines of the inconsistent\nstatements that Voecks gave and was kept ignorant of the\ndetails which demonstrated how and why his accounts\nchanged. On appeal, Fernandez suggests for the first time that\nthe error was so serious that it deprived him of his Sixth\nAmendment right to confront Voecks effectively.\n We agree it was error to sustain the hearsay objections to\nquestions aimed at eliciting what questions officer Frusti asked\nof Voecks during the interrogations. It is common ground\nbetween the parties that the statements Voecks made during\ninterrogation were fair game for the impeachment of his\ntestimony at trial. See Fed. R. Evid. 801(d)(1)(A). To that end, it\nwas entirely reasonable to question Voecks about what he had\ntold Frusti at the police station, and the district court allowed\nthe defense to do so. But interrogations are an inherently\ninteractive process, and so Frusti’s half of the interrogations\nwere material to the context of Voecks’ answers. What Frusti\nasked of or said to Voecks during interrogation was not offered\nfor its truth, but rather to establish what questions or state-\nments Voecks was responding to and the effect the former had\non Voecks as the listener. This was a legitimate non-hearsay\npurpose aimed at providing the jury with the full context of\nVoecks’ prior statements. See, e.g., Estate of Moreland v. Dieter,\n395 F.3d 747, 753–54 (7th Cir. 2005) (recognizing that interroga-\n\f10 No. 17-3421\n\ntor’s questions were offered to provide context for defendant’s\nanswers and as such were not hearsay) (citing United States v.\nWoods, 301 F.3d 556, 561 (7th Cir. 2002) (informant’s side of\nrecorded conversation with defendant admissible to provide\ncontext)); United States v. Gajo, 290 F.3d 922, 929–30 (7th Cir.\n2002) (statements of non-conspirator, in recorded conversation\nwith co-conspirator, admissible to provide context for co-\nconspirator’s statements) (collecting cases); United States v.\nGutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988) (co-defendant’s\nstatements introduced not for their truth but only to show they\nwere uttered). The judge may have been misled by the de-\nfense’s first foray into Frusti’s side of the interrogations, which\nasked Voecks to recount what Frusti had told him on a\nparticular point. R. 40 at 150–51. There may well be instances\nin which a party improperly seeks to elicit an interrogator’s\nstatement during questioning (representing what another\nwitness has told the authorities, for example) for its truth\nrather than to establish the context of what the person being\ninterrogated said next. If that were the evident aim of defense\ncounsel’s questioning here, then we would agree that the\ninquiries were barred by the hearsay rule. But it soon became\nclear that Fernandez’s attorney was attempting to elicit Frusti’s\nstatements and questions for legitimate non-hearsay purposes.\nCounsel’s next question, for example, was what Frusti had\nasked Voecks, and the court sustained the government’s\nobjection to that inquiry as well. R. 40 at 151. Consequently, the\nhearsay rule did not support the court’s decision to preclude\nthe defense from establishing both sides of the interrogations\nthrough Voecks himself.\n\fNo. 17-3421 11\n\n The defense had a legitimate purpose in examining Voecks\nabout the various contradictory stories he had told to Frusti\nabout the gun, and as part of that inquiry it was entirely proper\nfor the defense to establish what Frusti said and asked during\nthe interrogations in order to place Voecks’ answers in context.\nTo the extent Frusti may have been leading or cajoling Voecks\nto change his story, for example, Frusti’s side of the interroga-\ntions would be relevant to the jury’s assessment of Voecks’\ncredibility in pointing the finger at Fernandez. Insisting that\nFernandez’s counsel instead wait to ask Frusti about his half of\nthe conversations was at best a cumbersome alternative, and\none that precluded the defense from eliciting what Voecks\nunderstood Frusti to be saying to him.\n The converse restriction the court imposed on the cross-\nexamination of Frusti was also problematic, but less trouble-\nsome on the record as it stands. Fernandez points out that\nVoecks professed an inability to recall certain statements he\nmade during the second interrogation, during which Voecks\nchanged course and ultimately attributed possession of the .45\ncaliber gun to Fernandez. At that point, Fernandez argues, he\nshould have been permitted to establish through Frusti the\nstatements that Voecks was purportedly unable to recall. See\npursuant to Fed. R. Evid. 613(b)1; United States v. DeMarco, 784\nF.3d 388, 394 (7th Cir. 2015) (extrinsic evidence of witness’s\nprior statement is admissible pursuant to Rule 613(b) for\n\n\n1\n Rule 613(b) provides: “Extrinsic evidence of a witness’s prior inconsistent\nstatement is admissible only if the witness is given an opportunity to\nexplain or deny the statement and an adverse party is given the opportunity\nto examine the witness about it, or if justice so requires.”\n\f12 No. 17-3421\n\npurpose of impeaching witness so long as witness has first\nbeen given opportunity to explain or deny statement); see also\nUnited States v. Lopez, 870 F.3d 573, 582 (7th Cir. 2017) (constru-\ning rule broadly to permit extrinsic evidence even when\nwitness has acknowledged prior statement) (collecting cases).\nBut the logical first step the defense could have taken in this\nregard was to present Voecks with the transcript of the\ninterrogation and ask him whether that refreshed his recollec-\ntion as to what he said. See, e.g., United States v. Vasquez, 635\nF.3d 889, 895 (7th Cir. 2011), cert. dismissed, 566 U.S. 376, 132\nS. Ct. 1532 (2012). If Voecks was responding to these inquiries\nin good faith, then a review of the transcript might have caused\nhim to recall and acknowledge the statements in question. If so,\nthen the defense’s need to question Frusti on these points\nwould have been reduced, as a practical matter, if not elimi-\nnated. But see Lopez, 870 F.3d at 581 (“[E]ven when a witness\nadmits to making a prior inconsistent statement, Federal Rule\nof Evidence 613(b) should be read broadly to allow a party ‘to\nintroduce extrinsic evidence to emphasize the fact that the\nwitness made the prior statement.’”) (quoting United States v.\nLashmett, 965 F.2d 179, 182 (7th Cir. 1992)). If, at the other\nextreme, Voecks denied making the statements, then of course\nit would have been entirely proper to ask Frusti what Voecks\nhad said. See DeMarco, 784 F.3d at 394 (once witness has denied\nmaking prior statement, Rule 613(b) permits extrinsic proof of\nthat statement). And if, instead of either acknowledging or\ndenying his prior statements, Voecks had continued to profess\na lack of recollection, then it would have been up to the district\njudge to decide whether his professed lapse of memory was\ngenuine. If the court were to conclude that Voecks was simply\n\fNo. 17-3421 13\n\nbeing evasive, then establishing his statements through Frusti\nagain would have been permissible. Cf. United States v. DiCaro,\n772 F.2d 1314, 1322 (7th Cir. 1985) (where district court found\nwitness lied in professing amnesia, court did not abuse its\ndiscretion in admitting witness’s prior grand jury testimony\nper Rule 801(d)(1)(A)). On the other hand, if the court believed\nthat Voecks’ failure of memory was genuine, then the admissi-\nbility of Voecks’ prior statements through Frusti would have\npresented a closer question. Compare United States v. Brown, 788\nF.3d 830, 834 (8th Cir. 2015) (it is within trial judge’s discretion\nto exclude extrinsic evidence of witness’s prior statement\nwhere witness asserts in good faith she cannot recall making\nthe statement), with United States v. Bullcalf, 563 F. App’x 535,\n536 (9th Cir. 2014) (unpublished) (witness’s inability to recall\nprior statement should be treated as denial for purposes of\nRule 613(b)). The defense did not attempt to refresh Voecks’\nrecollection using the transcript of his interrogations, so\narguably it did not lay the requisite groundwork for admitting\nthe statements through Frusti.2\n Even assuming, on the broadest reading of Rule 613(b), that\nthe court should have allowed Frusti to be questioned about\nVoecks’ statements once Voecks himself professed not to\nremember making them, any error with respect to the restric-\ntions imposed on cross-examination of Frusti—as well as\nVoecks—was harmless. The jury certainly was aware that\nVoecks gave multiple, contradictory statements to the police\n\n\n2\n By contrast, the defense did present Frusti with a transcript of the\ninterrogation in order to refresh his recollection as to a point Frusti claimed\nan inability to recall. R. 40 at 183.\n\f14 No. 17-3421\n\nwhich began with the claim that the gun belonged to him and\nended with the claim that the gun belonged to Fernandez. It is\ntrue that the defense was not able to elicit every detail of the\nvarious accounts that Voecks had given to Frusti. (For exam-\nple, in his first version, Voecks told Frusti that he had met the\nman from whom he had obtained the gun at a methadone\nclinic.) It is also true that the defense was not able to establish\nthe particulars of what prompted Voecks to abandon his\nsecond version (that he did not see anyone put the gun into the\nfront-seat console of the car) for his third and final version (that\nFernandez put the gun there). However, we are not convinced\nthat such details were vital to the defense. The jury was fully\naware that Voecks had first claimed the gun was his, but\nduring the second interrogation had abandoned his first\naccount and claimed the gun was Fernandez’s. Critically, the\njury was also made aware of the fact that it was the warning\nfrom Sergeant Morris that Voecks would be held to account for\nany crimes connected to that gun which prompted Voecks to\nreconsider the first story and agree to the second interview,\nwhere he ultimately incriminated Fernandez. We can readily\nappreciate that eliciting the specifics of what Frusti said to and\nasked of Voecks, and what Voecks said in response, would\ndemonstrate both Voecks’ facility with inventing details and\nhis clumsiness in contradicting himself on such key points as\nto whether he knew there was a gun in the center console of\nthe car. The restrictions imposed on the cross-examinations of\nVoecks and Frusti made it an unnecessarily difficult task for\nthe defense to lay bare the full evolution and context of\nVoecks’ statements regarding the .45 caliber pistol. But the\ndefense nonetheless was able to establish the gist of the two\n\fNo. 17-3421 15\n\ncontradictory accounts of the gun’s ownership and the trigger\nfor Voecks’ decision to abandon his original statement and\nattribute possession of the gun to Fernandez. Defense counsel\nmade full use of the (purportedly self-serving) evolution of\nVoecks’ account in closing argument. R. 41 at 265–68.\nFernandez has not shown us why any of the omitted details of\nFrusti’s interrogations of Voecks mattered so much as to\ndemonstrate reversible error. And although Fernandez did not\ninvoke his Confrontation Clause rights below and arguably\nforfeited any constitutional claim, for the sake of completeness,\nwe note that his ability to raise the essential points as to\nVoecks’ change of story defeats any claim of plain error in this\nregard.\nB. Admissibility of the text messages\n Fernandez next contends that the district court erred in\nprecluding him from questioning defense witness Stramowski\nabout the content of the texts she had purportedly received\nfrom Voecks in the run-up to the trial. Once Voecks was\nconfronted with and essentially denied having sent those texts,\nFernandez argues, he should have been permitted to introduce\nextrinsic evidence of the texts in order to establish Voecks’ bias\nagainst both Fernandez and Stramowski and his motive to\ninculpate Fernandez at trial. The district court’s understanding\nthat Rule 608(b) forbade extrinsic evidence of a witness’s prior\nstatements for these purposes was mistaken, he contends.3\n\n\n3\n In relevant part, Rule 608(b) provides: “Except for a criminal conviction\nunder Rule 609, extrinsic evidence is not admissible to prove specific\ninstances of a witness’s conduct in order to attack or support the witness’s\n (continued...)\n\f16 No. 17-3421\n\n We do not disagree with Fernandez that evidence as to the\ntexts, if they were indeed sent by Voecks, was admissible to\nestablish Voecks’ bias and motive as a witness for the govern-\nment. See United States v. DeMarco, supra, 784 F.3d at 394\n(noting that Fed. R. Evid. 608(b) allows proof of specific\ninstances of conduct to establish bias or prior inconsistent\nstatement) (citing United States v. McGee, 408 F.3d 966, 981–82\n(7th Cir. 2005)). Statements in the texts to the effect that both\nFernandez and Stramowski were going to “get yours” and\nthat, as between Fernandez and Voecks, only one was going to\n“survive” and it was not going to be Fernandez, certainly\ncould be understood to reflect that Voecks had an axe to grind\nagainst Fernandez and a motive to help himself by testifying\nfor the government at Fernandez’s expense. Once Voecks was\nconfronted with the texts and effectively denied sending them,\nthe door was opened to extrinsic evidence of the texts pursuant\nto Rule 613(b), contrary to the district court’s understanding.\nDeMarco, 784 F.3d at 394.\n But for two reasons, we do not think the district court erred\nin sustaining the government’s objections when the defense\nbegan to ask Stramowski about these texts. First, when the\nmatter of the texts was first raised with the district judge prior\nto opening statements, Fernandez’s attorneys indicated that it\nwas not their intent to establish the substance of the texts\n\n\n3\n (...continued)\ncharacter for truthfulness. But the court may, on cross-examination, allow\nthem to be inquired into if they are probative of the character for truthful-\nness or untruthfulness of: (1) the witness; or (2) another witness whose\ncharacter the witness being cross-examined has testified about. …\n\fNo. 17-3421 17\n\nthrough extrinsic evidence; instead, counsel simply wanted the\nopportunity to question Voecks about the texts. R. 40 at 33, 35.\nThe court readily acceded to that limited request. We inquired\nat oral argument whether, after Voecks had been confronted\nwith the texts and denied having sent them, defense counsel\never argued to the court that circumstances had changed and\nthat the defense should now be permitted to prove the exis-\ntence and contents of the texts through extrinsic evidence.\nCounsel answered that question in the negative. The district\ncourt can hardly be faulted for barring evidence that the\ndefense had disclaimed an intent to introduce.\n Second, given the late hour at which the texts came to\nlight—just as opening statements and the presentation of\nevidence was about to begin—there was very little opportunity\nfor either party to establish the authenticity of the texts. The\ncourt rightly flagged the authenticity of the texts as a concern\nfrom the start, and we may safely assume that it would have\ntaken some amount of time to investigate this. But the presen-\ntation of evidence at trial began and concluded on the same\nday that the texts were first raised; and given that the defense\nhad originally indicated it would be satisfied with the opportu-\nnity to question Voecks about the texts, the government was\nnot on notice that it needed to task someone to explore the\nprovenance and authenticity of the texts. The district court was\nthus well within its discretion to prohibit the defense from\nattempting to provide the existence and content of the texts\nthrough Stramowski.\n\f18 No. 17-3421\n\nC. Disclosure of Fernandez’s arrest on outstanding warrant\n Finally, Fernandez contends that the district court erred in\npermitting the government to establish that he was arrested\nduring the November 2016 traffic stop on an outstanding\nwarrant for a probation violation. The government argued, and\nthe district court agreed, that the arrest was necessary to\ncomplete the picture of what occurred during the stop and in\nparticular to explain why Fernandez was loaded into the police\nvan, which was when officer Graf heard him tell Voecks not to\nworry about possession of a gun, because that was only a\nmisdemeanor offense for Voecks. Fernandez contends that\ndisclosure to the jury of his arrest and the reason for it amount-\ned to evidence of a prior bad act that was not probative of his\nguilt on the felon-in-possession charge, and that the court’s\nrationale in allowing it tracks the “inextricably related”\nrationale of which we disapproved in United States v. Gorman,\n613 F.3d 711, 717–19 (7th Cir. 2010).\n Any potential error in the court’s decision to admit this\nevidence was harmless, however. Because having a prior\nfelony conviction was an element of the offense with which\nFernandez was charged, the jury was necessarily aware that he\nhad a criminal record. See R. 28 ¶ 1; R. 40 at 189 (stipulation\nthat Fernandez previously had been convicted of a felony\noffense). That he was also arrested for a probation violation at\nthe time of the traffic stop was a relatively benign fact. Given\nthe limited purpose for which it was admitted, we are not\nconvinced that disclosure of the arrest was unduly prejudicial\nto Fernandez.\n\fNo. 17-3421 19\n\n III.\n We AFFIRM the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364575/", "author_raw": "Ilana Kara Diamond Rovner"}]}	FLAUM	MANION	ROVNER	1	{"FLAUM": ", Circuit", "MANION": ", Circuit", "ROVNER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587322/	Published	1	0	0	2,019	2	[ { "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...
4,587,569	UNITED STATES of America, Plaintiff-Appellee, v. Josue VARGAS, Defendant-Appellant.	United States v. Josue Vargas	2019-02-05	18-1250	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Kanne", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1250\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\nJOSUE VARGAS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 14 CR 579 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED FEBRUARY 5, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. Convicted of two cocaine\noﬀenses, 21 U.S.C. §841(a)(1), Josue Vargas has been sen-\ntenced to 72 months’ imprisonment. His principal appellate\nargument is that the district judge should have suppressed\npackages of that drug seized from his truck.\n\f2 No. 18-1250\n\n Vargas rented a parking place for his truck in a lot that\nlacked assigned spaces. Agents in Ohio arrested Luis Hueter\nas he transported three kilograms of cocaine that, Hueter as-\nserted, he had purchased from Vargas the day before at his\nparked truck. Hueter described Vargas, the truck, and the\nlot. They immediately called agents in Illinois, who entered\nthe lot by following someone through the gate. Approaching\na truck that met Hueter’s description, the agents in Chicago\nsent a photo to the agents in Ohio; Hueter identiﬁed the\ntruck as Vargas’s. A dog was called in and alerted to the\nodor of drugs. Agents then broke a window of the truck,\nopened the door, and found eight more kilos of cocaine.\n Vargas contends that the agents’ and the dog’s entry into\nthe lot violated his rights. He does not say that it was im-\nproper to break into the truck without a warrant; by the time\nthe agents did this they had probable cause, based on\nHueter’s statements plus conﬁrmation (from the photo and\nthe dog) that they had the right truck. But, citing Florida v.\nJardines, 569 U.S. 1 (2013), and United States v. Jones, 565 U.S.\n400 (2012), Vargas observes that an invasion of property is as\nmuch within the Fourth Amendment as an invasion of pri-\nvacy, and he insists that when the agents entered the lot they\nlacked probable cause—and a parking lot is not a vehicle, so\nthe agents could not beneﬁt from the automobile exception\nto the warrant requirement.\n The argument is a dud, because Vargas neither owned\nthe parking lot nor had a leasehold interest in any particular\npart of it. Vargas was entitled to park his truck in any open\nspace but not to exclude anyone else. Many other people al-\nso parked there, and each could admit third parties. This is\nwhy agents normally do not need probable cause or a war-\n\fNo. 18-1250 3\n\nrant to enter the vestibule of a multi-tenant building. See\nUnited States v. Correa, 908 F.3d 208, 221–22 (7th Cir. 2018).\n The only person whose property interest the agents in-\nvaded was the lot’s owner, who isn’t complaining—and at\nall events an invasion of the owner’s property (or privacy)\nrights would not entitle Vargas to any remedy. Rights under\nthe Fourth Amendment are personal; only someone whose\nown rights have been transgressed is entitled to relief. See,\ne.g., United States v. Payner, 447 U.S. 727 (1980); United States\nv. Sweeney, 821 F.3d 893, 900 (7th Cir. 2016). No more need be\nsaid about the search and seizure.\n All of Vargas’s remaining arguments concern the conduct\nof the trial. According to Vargas, the judge upbraided his\nlawyer more often (and more sternly) than the prosecution’s\nlawyer and erred in admiiing or excluding evidence. The\ndistrict court considered and rejected these arguments when\ndenying Vargas’s motion for a new trial. 2016 U.S. Dist. LEXIS\n99021 (N.D. Ill. July 27, 2016). Vargas hopes that we will ﬁnd\nthe contentions stronger than did the district judge.\n Vargas presents almost all of his argument in constitu-\ntional terms, asserting that the judge violated the Due Pro-\ncess Clause of the Fifth Amendment. He mentions Fed. R.\nEvid. 613 but in the main ignores both the Federal Rules of\nEvidence and the Federal Rules of Criminal Procedure. He\ndoes not maintain that any of these rules is unconstitutional\nto the extent it allowed the judge to proceed as he did; in-\nstead Vargas bypasses the rules in favor of the Constitution.\nNor does he contend that the judge transgressed any super-\nvisory rule laid down by the Supreme Court or by this court.\nIt is, for him, the Constitution or nothing (the invocation of\nRule 613 is so cursory that we need not discuss it), and the\n\f4 No. 18-1250\n\nConstitution at a high level of generality rather than any\nconcrete rule of criminal procedure to be found in the Con-\nfrontation Clause or anywhere else.\n This is a hopeless strategy, because courts are obliged to\nconsider statutory and rule-based arguments ahead of con-\nstitutional ones. See, e.g., New York Transit Authority v. Beazer,\n440 U.S. 568, 582–83 (1979). “Lawyers all too often invoke the\nConstitution as if it were a panacea and bypass seemingly\nmundane arguments based on statutes and regulations.\nMimicking Gresham’s Law, ﬂabby constitutional generalities\ndrive out sound legal points.” Magala v. Gonzales, 434 F.3d\n523, 526–27 (7th Cir. 2005). “Why counsel should start with\nthe Constitution rather than the statutes and regulations that\ngovern [these] proceedings is beyond us. Non-constitutional\narguments always come ﬁrst; constitutional contentions\nmust be set aside until their resolution is unavoida-\nble.” Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006).\n“Before taking up a constitutional issue, a federal court\nshould satisfy itself that there is no available non-\nconstitutional ground of decision.” There to Care, Inc. v.\nCommissioner of the Indiana Department of Revenue, 19 F.3d\n1165, 1167 (7th Cir. 1994) (citing Spector Motor Service, Inc. v.\nMcLaughlin, 323 U.S. 101, 105 (1944)). See also BrockeL v. Spo-\nkane Arcades, Inc., 472 U.S. 491, 501 (1985).\n We illustrate this by considering one of Vargas’s eviden-\ntiary arguments—the strongest one, as it seems to us, but\none on which he has missed critical points.\n During discovery, Vargas asked the prosecutor to identi-\nfy any expert witnesses and describe the nature of the ex-\nperts’ testimony. The prosecution made a reciprocal de-\nmand. One potential witness identiﬁed by the prosecution\n\fNo. 18-1250 5\n\nwas Joseph Raschke, who would testify about how infor-\nmation from cell towers could be used to locate Vargas and\nHueter on the critical days. After the parties agreed to a\nstipulation about cell-site evidence, the prosecution told the\njudge that it would not call Raschke as a witness in its case-\nin-chief. When Vargas tried to call Raschke in his own case,\nthe prosecutor objected, because Vargas had not disclosed\nRaschke as an expert for the defense or described the sub-\njects of his testimony. The judge sustained the objection.\nVargas now asserts that this was absurd—after all, the pros-\necutor had to know what Raschke would have said on the\nstand—and that absurd decisions must be unconstitutional.\n Whether the judge erred depends not on the Due Process\nClause but on Fed. R. Crim. P. 16(b)(1)(C), which provides\nthat at the prosecution’s request any defendant who has\nmade an equivalent demand for expert disclosure must\n“give to the government a wriien summary of any testimo-\nny that the defense intends to use under Rules 702, 703, or\n705 of the Federal Rules of Evidence … . This summary must\ndescribe the witness’s opinions, the bases and reasons for\nthose opinions, and the witness’s qualiﬁcations”. Vargas did\nnot do this about Raschke; the omission is why the district\njudge barred Vargas from calling Raschke at trial. And un-\nless the defense plans to call an expert, already designated\nby the prosecution, for exactly the maiers covered in the\nprosecutor’s disclosure, it can’t be called absurd (let alone\nunconstitutional) for the judge to enforce the Rule as wriien.\nRule 16(b)(1)(C) thus sinks Vargas’s appellate argument un-\nless courts have read this Rule, despite its text, as inapplica-\nble to defendants who want to call witnesses already dis-\nclosed by the prosecutor.\n\f6 No. 18-1250\n\n We could not ﬁnd any decision holding that disclosure of\nan expert by the prosecutor relieves the defense of a duty to\nprovide its own disclosure, if the defense wants to call that\nexpert. Nor could we ﬁnd any decision in the other direction\n(that is, we couldn’t ﬁnd any decision holding that disclo-\nsure by the defense relieved the prosecutor of its duty to dis-\nclose the testimony that the same expert would give if called\nby the prosecutor). The Rule is designed to ensure that each\nside knows what an expert’s testimony would cover. See,\ne.g., United States v. Bresil, 767 F.3d 124, 127 (1st Cir. 2014);\nUnited States v. Barile, 286 F.3d 749, 758 (4th Cir. 2002). The\npossibility that one side will take an expert in a direction\ndiﬀerent from the other side’s planned destination aﬀords a\ngood reason why each must identify the potential “witness’s\nopinions, the bases and reasons for those opinions”, no\nmaier what the other side has disclosed.\n Vargas has not addressed any of these subjects, because\nhis brief does not mention Rule 16. When asked why at oral\nargument, Vargas’s counsel asserted that no one pays any\naiention to this Rule, so he did not need to bother. That is a\nstaggering assertion. The prosecutor paid aiention; that’s\nwhy an objection was made. The district judge enforced Rule\n16 by sustaining the objection. And we enforce rules by in-\nsisting that counsel address rather than ignore them. “There\nis no general constitutional right to discovery in a criminal\ncase, and Brady [v. Maryland, 373 U.S. 83 (1963)] did not cre-\nate one; as the Court wrote recently, ‘the Due Process Clause\nhas liile to say regarding the amount of discovery which the\nparties must be aﬀorded … .’ Wardius v. Oregon, 412 U.S. 470,\n474 (1973).” Weatherford v. Bursey, 429 U.S. 545, 559 (1977).\nSanctions for violating discovery rules also generally are\nmaiers for the rules or statutes. See Michigan v. Lucas, 500\n\fNo. 18-1250 7\n\nU.S. 145 (1991) (judge entitled to exclude evidence after de-\nfense failed to comply with a notice obligation). Only close\naiention to Rule 16 might have oﬀered Vargas a chance to\nprevail.\n None of Vargas’s other arguments requires discussion.\nWe agree with him that the district judge should have been\nmore even-handed (at least when the jury could overhear his\nadmonitions to defense counsel), but neither on that subject\nnor any other did the judge violate the Due Process Clause,\nwhich in criminal cases deals with only egregious transgres-\nsions of trial rules and decorum. Donnelly v. DeChristoforo,\n416 U.S. 637 (1974).\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364822/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK	KANNE	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587569/	Published	1	0	0	2,019	2	[ { "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...
4,587,570	Jeryme MORGAN, Plaintiff-Appellant, v. Minh SCHOTT, Tim Veath, and Hudson Maynard, Defendants-Appellees.	Jeryme Morgan v. Minh Schott	2019-02-05	16-2384	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Kanne, Sykes, Eve", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2384\nJERYME MORGAN,\n Plaintiff-Appellant,\n v.\n\nMINH SCHOTT, TIM VEATH,\nand HUDSON MAYNARD,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Southern District of Illinois.\n No. 13-cv-0881-SCW — Stephen C. Williams, Magistrate Judge.\n ____________________\n\n ARGUED SEPTEMBER 5, 2018 — DECIDED FEBRUARY 5, 2019\n ____________________\n\n Before KANNE, SYKES, and ST. EVE, Circuit Judges.\n SYKES, Circuit Judge. Illinois prison officials issued a dis-\nciplinary report charging inmate Jeryme Morgan with\noffenses stemming from a violent assault on fellow prison-\ners. Morgan disputed the charges and asked the authorities\nto call a witness to testify at his Adjustment Committee\nhearing. But the Committee never called Morgan’s witness.\nHe was found guilty and the Committee imposed punish-\n\f2 No. 16-2384\n\nment of one year of segregation, various status and access\nrestrictions, and revocation of three months of good-time\ncredits. Morgan filed a grievance challenging his punish-\nment on due-process grounds and appealed its subsequent\ndenial to the Administrative Review Board (“the Board”).\nThe Board adjusted the revocation of good-time credits to\none month but affirmed the Committee’s due-process ruling,\nconcluding that Morgan’s witness request did not comply\nwith prison rules.\n Alleging a raft of constitutional violations, Morgan sued\nthree officers for damages under 42 U.S.C. § 1983 claiming\nthat the failure to call his witness violated his right to due\nprocess. The officers moved for summary judgment citing\nthe favorable-termination rule announced in Heck v.\nHumphrey, 512 U.S. 477 (1994). Heck holds that “when a state\nprisoner seeks damages in a § 1983 suit, the district court\nmust consider whether a judgment in [his] favor … would\nnecessarily imply the invalidity of his conviction or sen-\ntence.” Id. at 487. Where a favorable judgment would have\nthat effect, no § 1983 claim has accrued and “the complaint\nmust be dismissed unless the plaintiff can demonstrate that\nthe conviction or sentence has already been invalidated.” Id.\nMorgan countered that Heck is inapplicable due to his waiv-\ner of all claims relating to the revocation of his good-time\ncredits. A magistrate judge rejected Morgan’s attempt to skirt\nHeck and ruled that his due-process claim was not cogniza-\nble under § 1983.\n We affirm. Prisoners cannot make an end run around\nHeck by filing an affidavit waiving challenges to the portion\nof their punishment that revokes good-time credits. We\nrecently addressed that very tactic and found it incompatible\n\fNo. 16-2384 3\n\nwith the Heck line of cases. Haywood v. Hathaway, 842 F.3d\n1026 (7th Cir. 2016). Morgan provides no reason to question\nHaywood, and we reaffirm its reasoning. Morgan’s attempt to\nanalogize his case to Wilkinson v. Dotson, 544 U.S. 74 (2005),\nand Skinner v. Switzer, 562 U.S. 521 (2011), misunderstands\nthose decisions. Judgment in Morgan’s favor would neces-\nsarily imply the invalidity of his prison discipline. Thus, no\n§ 1983 claim has accrued. This suit is premature and must be\ndismissed without prejudice.\n I. Background\n Morgan is serving sentences for robbery, armed robbery,\nand sexual assault. For most of his incarceration—and at all\ntimes relevant to this case—he has been housed at Menard\nCorrectional Center (“Menard”). In January 2012 Officer\nHudson Maynard issued a disciplinary report accusing\nMorgan of taking part in an assault that occurred three\nmonths earlier in Menard’s east yard. The report charged\nMorgan with conspiring to attack the victims, joining the\nattack, possessing dangerous contraband, causing a disturb-\nance, interfering with prison investigations, and engaging in\nunauthorized organizational activities.\n Menard gives prisoners an opportunity to formally re-\nquest witnesses at a disciplinary hearing; the disciplinary\nreport provides a space to do so. If called, those witnesses\ntestify at the prisoner’s Adjustment Committee hearing.\nMorgan’s request was not a model of clarity. On the line\nrequesting a description of the subject of the witness’s testi-\nmony, Morgan wrote the name “James Lewis” followed by\nthe words “where abouts.” On the line reserved for the\nwitness’s name and other identifying information, Morgan\nagain wrote “James Lewis” but nothing else.\n\f4 No. 16-2384\n\n At Morgan’s Adjustment Committee hearing on\nJanuary 31, prison officials did not call James Lewis. The\nCommittee, which included Lieutenant Minh Schott and\nOfficer Tim Veath, found Morgan guilty and recommended\nrevoking three months of good-time credits and adding one\nyear of segregation, one year of lowered status, and several\naccess restrictions. Morgan filed a grievance arguing that the\nCommittee’s failure to call Lewis violated his right to due\nprocess. Morgan’s grievance was denied, so he appealed to\nthe Board. The Board ruled that Morgan’s witness request\ndid not meet the minimum requirements under prison rules.\nIllinois regulations require that such requests “shall be in\nwriting on the space provided in the disciplinary report and\nshall include an explanation of what the witnesses would\nstate.” ILL. ADMIN. CODE tit. 20, § 504.80(f)(2). Because\nMorgan failed to adequately identify his witness or describe\nhis testimony, and because officials failed to locate a James\nLewis at Menard, the Board concluded that Morgan’s hear-\ning comported with due process.\n Rather than challenge the Board’s ruling in state court,\nMorgan filed a pro se complaint in the Southern District of\nIllinois seeking damages under § 1983. He alleged numerous\nconstitutional violations ranging from excessive force to\ndeliberate indifference. Those claims were severed and\nproceeded as a separate case. The district court did not\ninitially identify a due-process claim in Morgan’s complaint.\nHowever, a magistrate judge later found that Morgan had\nadequately alleged a violation of due process against\nLieutenant Schott and Officer Veath based on the Commit-\ntee’s failure to call James Lewis. Schott and Veath moved for\nsummary judgment, arguing that Morgan’s claim was barred\n\fNo. 16-2384 5\n\nby Heck, no reasonable jury could find a constitutional\nviolation, and qualified immunity applies.\n As part of Morgan’s strategy to avoid the Heck bar, he\nfiled an affidavit purporting to “abandon any and all present\nand future challenges” and “waiv[e] for all times all claims”\npertaining to the portion of his punishment that impacted\nthe duration of his confinement. He preserved only “claims\nchallenging the sanctions affecting the conditions of [his]\nconfinement.” Morgan argued that his affidavit rendered\nHeck inapplicable, citing the Second Circuit’s decision in\nPeralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006).\n The magistrate judge concluded that Heck barred\nMorgan’s suit and entered summary judgment for Schott\nand Veath, dismissing Morgan’s due-process claim with\nprejudice. The judge rejected Morgan’s attempt to use strate-\ngic waiver to “dodge” Heck. He said Morgan’s due-process\nclaim “call[s] into question the validity of the prison disci-\npline[] because to accept that claim necessarily implie[s] that\nthe discipline was somehow invalid.”\n II. Discussion\n We review a summary judgment de novo, reading the\nrecord in the light most favorable to Morgan and drawing all\nreasonable inferences in his favor. Tolliver v. City of Chicago,\n820 F.3d 237, 241 (7th Cir. 2016). Morgan renews his strate-\ngic-waiver argument in an effort to avoid the Heck bar. He\nalso attempts to evade Heck by arguing that success on the\nmerits would mean at most a new hearing, not a reduction\nof his term of imprisonment.\n We begin with an overview of the favorable-termination\nrule established in Heck v. Humphrey. Federal law affords\n\f6 No. 16-2384\n\nstate prisoners two venerable gateways to relief: the Civil\nRights Act of 1871, codified at 42 U.S.C. § 1983, and habeas\ncorpus review of state adjudications under 28 U.S.C. § 2254.\nThey are not interchangeable. The Supreme Court made this\nfact crystal clear in a line of cases barring § 1983 suits predi-\ncated on claims reserved for habeas challenges. In Preiser v.\nRodriguez, 411 U.S. 475, 476 (1973), the Court evaluated a\n§ 1983 claim attacking prison discipline proceedings on\nconstitutional grounds and seeking restoration of good-time\ncredits. The Court explained that habeas corpus—not\n§ 1983—is the “specific instrument to obtain release” from\nunlawful imprisonment. Id. at 486. Thus, when a prisoner\nchallenges “the fact or duration of his confinement,” he fails\nto state a cognizable § 1983 claim. Id. at 489.\n The Court expanded on Preiser in Heck v. Humphrey,\n512 U.S. at 486–87, in which the prisoner–plaintiff sought\ndamages for wrongful conviction. Heck claimed that Indiana\nprosecutors had destroyed exculpatory evidence and en-\ngaged in an “unlawful, unreasonable, and arbitrary investi-\ngation.” Id. at 479. The Court held that\n in order to recover damages for [an] allegedly\n unconstitutional conviction or imprisonment,\n or for other harm caused by actions whose un-\n lawfulness would render a conviction or sen-\n tence invalid, a § 1983 plaintiff must prove that\n the conviction or sentence has been reversed\n on direct appeal, expunged by executive order,\n declared invalid by a state tribunal authorized\n to make such determination, or called into\n question by a federal court’s issuance of a writ\n of habeas corpus.\n\fNo. 16-2384 7\n\nId. at 486–87. The Court distinguished Wolff v. McDonnell,\n418 U.S. 539 (1974), in which there was no “reason to be-\nlieve[] that using the wrong procedures necessarily vitiated\nthe denial of good-time credits.” Heck, 512 U.S. at 483. Con-\nversely, a judgment in Heck’s favor would “necessarily\nimply the invalidity of [Heck’s] conviction or sentence.” Id. at\n487. When a judgment for the plaintiff would have that\neffect, no § 1983 claim accrues until the plaintiff succeeds in\ninvalidating the underlying conviction or sentence.\n The Court extended Heck to the prison-discipline context\nin Edwards v. Balisok, 520 U.S. 641 (1997). Balisok alleged that\nthe presiding officer at his conduct hearing was biased and\ndeprived him of the opportunity to present exculpatory\nwitness testimony. Id. at 643. Some of Balisok’s good-time\ncredits were revoked. He did not challenge the result of the\nproceeding or the punishment he received. Instead, he\nclaimed in a § 1983 suit that he was deprived of due process.\nId. at 645. The Court held that judgment for Balisok would\nnecessarily imply the invalidity of his disciplinary sentence.\nId. at 648. The Court reasoned that denial of the opportunity\nto present witnesses was “an obvious procedural defect, and\nstate and federal courts have reinstated good-time credits\n(absent a new hearing) when it is established.” Id. at 647.\nThus, Heck’s favorable-termination rule applied. Id. at 648.\nA. Strategic Waiver\n Morgan argues that challenges to the conditions of a pris-\noner’s confinement—as opposed to the duration of that\nconfinement—do not implicate Heck, so a prisoner should be\npermitted to challenge a disciplinary proceeding via § 1983 if\nhe waives all challenges to duration-of-confinement sanc-\n\f8 No. 16-2384\n\ntions. Morgan’s is not a novel argument. We have rejected it\nbefore and see no reason to change course.\n When an inmate is found guilty of a disciplinary viola-\ntion, prison officials can apply sanctions reducing the in-\nmate’s privileges within the facility. They can also revoke\ngood-time credits, a sanction that has the effect of lengthen-\ning the inmate’s term of confinement. Morgan relies on\nPeralta v. Vasquez, 467 F.3d 98, in which the Second Circuit\nconsidered the mixed-sanctions scenario and chose to em-\nbrace strategic waiver as a means of removing the Heck bar.\nThe court held that a prisoner facing condition-of-\nconfinement sanctions and duration-of-confinement sanc-\ntions could challenge the former under § 1983 without\ncomplying with Heck’s favorable-termination requirement.\nId. at 104. All the prisoner must do is “abandon, not just now,\nbut also in any future proceeding, any claims he may have\nwith respect to the duration of his confinement that arise out\nof the proceeding he is attacking.” Id.\n We rejected Peralta in Haywood v. Hathaway, 842 F.3d 1026.\nThe approach Morgan urges us to adopt rests on a misun-\nderstanding of Heck. The favorable-termination rule is more\nthan a procedural hurdle that plaintiffs can skirt with artful\ncomplaint drafting or opportunistic affidavits. Rather, it is\ngrounded in substantive concerns about allowing conflicting\njudgments. As we explained in Haywood, the Heck rule is “a\nversion of issue preclusion (collateral estoppel), under which\nthe outstanding criminal judgment or disciplinary sanction,\nas long as it stands, blocks any inconsistent civil judgment.”\n842 F.3d at 1029. Neither Peralta nor Morgan can account for\nthis aspect of Heck.\n\fNo. 16-2384 9\n\n Endorsing Morgan’s arguments would undercut another\nfeature of the Court’s favorable-termination jurisprudence.\nHeck held that “a § 1983 cause of action for damages at-\ntributable to an unconstitutional conviction or sentence does\nnot accrue until the conviction or sentence has been invali-\ndated.” 512 U.S. at 489–90 (emphasis added). Morgan’s\nargument is incompatible with that holding. If a prisoner’s\nchallenge to a disciplinary hearing implies the invalidity of\nthe resulting sanctions, no § 1983 claim has accrued. And\n“[i]f the claim has not accrued, it cannot matter what relief a\nprisoner seeks.” Haywood, 842 F.3d at 1028. Selective waiver\nsimply doesn’t alter the analysis.\n Morgan concedes that Haywood controls his case and asks\nus to overrule it. But we do not reverse our precedents\nlightly; we need “compelling reasons” to do so. Russ v.\nWatts, 414 F.3d 783, 788 (7th Cir. 2005). The Supreme Court\nhas not cast doubt on Haywood, and it does not represent a\nminority approach among our sister circuits. See Glaser v.\nWound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009)\n(discussing circumstances in which we reconsider our\nprecedents). Moreover, we remain convinced that “Peralta is\nincompatible with Heck and its successors.” Haywood,\n842 F.3d at 1030. State prisoners cannot avoid the favorable-\ntermination rule by engaging in strategic waiver. If judgment\nfor a § 1983 plaintiff would necessarily imply the invalidity\nof his punishment, the Heck rule applies and favorable\ntermination of the underlying proceeding is a prerequisite to\nrelief. See Nelson v. Campbell, 541 U.S. 637, 646 (2004).\nB. Dotson and Skinner\n Morgan also compares his case to Wilkinson v. Dotson,\n544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011),\n\f10 No. 16-2384\n\nbut the analogy is inapt. In Dotson the Court dealt with two\n§ 1983 suits challenging the retroactivity of certain state\nparole-hearing procedures on due-process grounds. The\nplaintiffs sought declaratory relief and an injunction order-\ning parole hearings under a different set of rules. Dotson,\n544 U.S. at 76–77. The Court held that the plaintiffs’ claims\nwere cognizable under § 1983 because success would mean\n“new [parole] eligibility review” for one plaintiff and “a new\nparole hearing” for the other, neither of which would “nec-\nessarily spell immediate or speedier release” or imply the\ninvalidity of their sentences. Id. at 81 (emphasis omitted). In\nSkinner the Court allowed a Texas prisoner to seek postcon-\nviction DNA testing using a § 1983 suit because “[s]uccess …\ngains for the prisoner only access to the DNA evidence,\nwhich may prove exculpatory, inculpatory, or inconclusive.”\n562 U.S. at 525. Thus, judgment for the plaintiff wouldn’t\nnecessarily imply unlawful confinement by the State.\n It’s not clear that Morgan made this argument below. But\nin the interest of completeness, we address it here. Morgan\nmisses a key distinction between his case and Dotson and\nSkinner—a distinction we’ve discussed before. See Burd v.\nSessler, 702 F.3d 429, 432–34 (7th Cir. 2012). The plaintiffs in\nDotson and Skinner sought purely prospective relief: parole\nhearings under different rules in Dotson; DNA testing in\nSkinner. As we explained in Burd, the Dotson and Skinner\nplaintiffs sought entirely forward-looking relief: access to\n“procedural pathways that, if successfully employed, might\n[have led] to the overturning of the underlying conviction.”\nBurd, 702 F.3d at 433 (emphasis added). Judgment for those\nplaintiffs would not have implied the invalidity of their\nconvictions or sentences.\n\fNo. 16-2384 11\n\n Morgan’s claim, in contrast, is entirely backward looking.\nHe alleges a due-process violation at the hearing that gener-\nated his disciplinary sanctions. A damages judgment for\nMorgan would amount to a judicial determination that\nprison officials infringed Morgan’s constitutional rights by\nfailing to call a witness in his defense, rendering the pro-\nceeding unfair. Such a judgment would straightforwardly\nimply the invalidity of his punishment, triggering Heck’s\nfavorable-termination rule. Balisok, 520 U.S. at 648; see also\nLusz v. Scott, 126 F.3d 1018, 1022 (7th Cir. 1997) (applying the\nHeck bar where the plaintiff argued “that he was denied the\nopportunity to call requested witnesses in his favor”). We’ve\nclarified before that “‘[i]mply’ is not synonymous with\n‘invalidate.’” Hill v. Murphy, 785 F.3d 242, 248 (7th Cir. 2015).\nJudgment in Morgan’s favor would allow him “to argue that\nhe had been determined by a court to have been unjustly”\npunished—an outcome that “Heck forbids.” Id.\n Morgan argues that Illinois regulations make all the dif-\nference. By rule, “[t]he Director, Deputy Director or Chief\nAdministrative Officer shall remand the decision to the\nAdjustment Committee for new proceedings if the proceed-\nings are found to be defective due to[] … [i]mproper exclu-\nsion of witnesses.” ILL. ADMIN. CODE tit. 20, § 504.90(a)(3). In\nMorgan’s view this provision makes his case like Dotson and\nSkinner, where success merely meant access to new proceed-\nings. Morgan claims that a judgment in his favor would\nbring “a new hearing that appropriately considers previous-\nly excluded evidence.” The hearing could go either way—\nlike the parole hearings in Dotson or the testing in Skinner—\nso Heck poses no problem for Morgan’s suit.\n\f12 No. 16-2384\n\n We disagree. Heck is not inapplicable merely because\nstate prison regulations call for replacement proceedings in\ncertain situations. Heck prevents the entry of any judgment\nthat would cast doubt on the validity of the plaintiff’s pun-\nishment or conviction. Burd, 702 F.3d at 433. To repeat, in\nDotson the plaintiffs sought entirely forward-looking relief in\nthe form of new hearings under a different set of rules.\nJudgment granting that relief wouldn’t impugn their sen-\ntences. Morgan seeks money damages—a classic retrospec-\ntive remedy. That Morgan might receive additional\nadministrative proceedings as a collateral consequence of\nreceiving a damages judgment does not render that hypo-\nthetical judgment any more consistent with the validity of\nhis disciplinary punishment.\n It’s worth noting that Morgan could have challenged the\nBoard’s ruling in other ways. Id. at 436 (holding that “Heck\napplies where a § 1983 plaintiff could have sought collateral\nrelief … but declined the opportunity”). Under Illinois law\nthe writ of certiorari empowers circuit courts to review\nadministrative determinations “when the act conferring\npower on the agency does not expressly adopt the Adminis-\ntrative Review Law and provides for no other form of re-\nview.” Hanrahan v. Williams, 673 N.E.2d 251, 253 (Ill. 1996).\nIllinois statutes governing prison discipline do not provide\nfor judicial review, so “prison disciplinary proceedings are\nreviewable in an action for certiorari.” Fillmore v. Taylor,\n80 N.E.3d 835, 849 (Ill. App. Ct. 2017). Alternatively, Morgan\ncould have asked a state court to issue a writ of mandamus\nordering Menard officials to conduct a new hearing. Dye v.\nPierce, 868 N.E.2d 293, 296 (Ill. App. Ct. 2006) (“An allegation\nof a due-process-rights violation … states a cause of action in\nmandamus.”). And after exhausting state review, he could\n\fNo. 16-2384 13\n\nhave sought relief under the federal habeas corpus statute.\nInstead he immediately sued for money damages under\n§ 1983—and ran directly into Heck.\n Although Morgan does not currently have a cognizable\n§ 1983 claim, it is at least possible that he could convince a\nstate court to provide the favorable termination required by\nHeck. Illinois courts apply a six-month limitations period to\ncertiorari actions, but a court might hear a late certiorari\naction if no “public detriment or inconvenience would result\nfrom [the] delay.” Alicea v. Snyder, 748 N.E.2d 285, 290 (Ill.\nApp. Ct. 2001).\n Heck-barred claims must be dismissed. Johnson v.\nWinstead, 900 F.3d 428, 436 (7th Cir. 2018). But given the\npossibility of future state-court proceedings, Morgan’s claim\nshould have been dismissed without prejudice. See Moore v.\nBurge, 771 F.3d 444, 446 (7th Cir. 2014); Polzin v. Gage,\n636 F.3d 834, 839 (7th Cir. 2011). We modify the judgment to\nreflect a dismissal without prejudice. As modified, the\njudgment is affirmed.\n AFFIRMED AS MODIFIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364823/", "author_raw": "Diane S. Sykes"}]}	KANNE	SYKES		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587570/	Published	1	0	0	2,019	2	[ { "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...
4,587,668		United States v. Josue Vargas	2019-02-05	18-1250	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1250\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\nJOSUE VARGAS,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 14 CR 579 — Charles R. Norgle, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2018 — DECIDED FEBRUARY 5, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and KANNE,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. Convicted of two cocaine\noﬀenses, 21 U.S.C. §841(a)(1), Josue Vargas has been sen-\ntenced to 72 months’ imprisonment. His principal appellate\nargument is that the district judge should have suppressed\npackages of that drug seized from his truck.\n\f2 No. 18-1250\n\n Vargas rented a parking place for his truck in a lot that\nlacked assigned spaces. Agents in Ohio arrested Luis Hueter\nas he transported three kilograms of cocaine that, Hueter as-\nserted, he had purchased from Vargas the day before at his\nparked truck. Hueter described Vargas, the truck, and the\nlot. They immediately called agents in Illinois, who entered\nthe lot by following someone through the gate. Approaching\na truck that met Hueter’s description, the agents in Chicago\nsent a photo to the agents in Ohio; Hueter identiﬁed the\ntruck as Vargas’s. A dog was called in and alerted to the\nodor of drugs. Agents then broke a window of the truck,\nopened the door, and found eight more kilos of cocaine.\n Vargas contends that the agents’ and the dog’s entry into\nthe lot violated his rights. He does not say that it was im-\nproper to break into the truck without a warrant; by the time\nthe agents did this they had probable cause, based on\nHueter’s statements plus conﬁrmation (from the photo and\nthe dog) that they had the right truck. But, citing Florida v.\nJardines, 569 U.S. 1 (2013), and United States v. Jones, 565 U.S.\n400 (2012), Vargas observes that an invasion of property is as\nmuch within the Fourth Amendment as an invasion of pri-\nvacy, and he insists that when the agents entered the lot they\nlacked probable cause—and a parking lot is not a vehicle, so\nthe agents could not beneﬁt from the automobile exception\nto the warrant requirement.\n The argument is a dud, because Vargas neither owned\nthe parking lot nor had a leasehold interest in any particular\npart of it. Vargas was entitled to park his truck in any open\nspace but not to exclude anyone else. Many other people al-\nso parked there, and each could admit third parties. This is\nwhy agents normally do not need probable cause or a war-\n\fNo. 18-1250 3\n\nrant to enter the vestibule of a multi-tenant building. See\nUnited States v. Correa, 908 F.3d 208, 221–22 (7th Cir. 2018).\n The only person whose property interest the agents in-\nvaded was the lot’s owner, who isn’t complaining—and at\nall events an invasion of the owner’s property (or privacy)\nrights would not entitle Vargas to any remedy. Rights under\nthe Fourth Amendment are personal; only someone whose\nown rights have been transgressed is entitled to relief. See,\ne.g., United States v. Payner, 447 U.S. 727 (1980); United States\nv. Sweeney, 821 F.3d 893, 900 (7th Cir. 2016). No more need be\nsaid about the search and seizure.\n All of Vargas’s remaining arguments concern the conduct\nof the trial. According to Vargas, the judge upbraided his\nlawyer more often (and more sternly) than the prosecution’s\nlawyer and erred in admiiing or excluding evidence. The\ndistrict court considered and rejected these arguments when\ndenying Vargas’s motion for a new trial. 2016 U.S. Dist. LEXIS\n99021 (N.D. Ill. July 27, 2016). Vargas hopes that we will ﬁnd\nthe contentions stronger than did the district judge.\n Vargas presents almost all of his argument in constitu-\ntional terms, asserting that the judge violated the Due Pro-\ncess Clause of the Fifth Amendment. He mentions Fed. R.\nEvid. 613 but in the main ignores both the Federal Rules of\nEvidence and the Federal Rules of Criminal Procedure. He\ndoes not maintain that any of these rules is unconstitutional\nto the extent it allowed the judge to proceed as he did; in-\nstead Vargas bypasses the rules in favor of the Constitution.\nNor does he contend that the judge transgressed any super-\nvisory rule laid down by the Supreme Court or by this court.\nIt is, for him, the Constitution or nothing (the invocation of\nRule 613 is so cursory that we need not discuss it), and the\n\f4 No. 18-1250\n\nConstitution at a high level of generality rather than any\nconcrete rule of criminal procedure to be found in the Con-\nfrontation Clause or anywhere else.\n This is a hopeless strategy, because courts are obliged to\nconsider statutory and rule-based arguments ahead of con-\nstitutional ones. See, e.g., New York Transit Authority v. Beazer,\n440 U.S. 568, 582–83 (1979). “Lawyers all too often invoke the\nConstitution as if it were a panacea and bypass seemingly\nmundane arguments based on statutes and regulations.\nMimicking Gresham’s Law, ﬂabby constitutional generalities\ndrive out sound legal points.” Magala v. Gonzales, 434 F.3d\n523, 526–27 (7th Cir. 2005). “Why counsel should start with\nthe Constitution rather than the statutes and regulations that\ngovern [these] proceedings is beyond us. Non-constitutional\narguments always come ﬁrst; constitutional contentions\nmust be set aside until their resolution is unavoida-\nble.” Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006).\n“Before taking up a constitutional issue, a federal court\nshould satisfy itself that there is no available non-\nconstitutional ground of decision.” There to Care, Inc. v.\nCommissioner of the Indiana Department of Revenue, 19 F.3d\n1165, 1167 (7th Cir. 1994) (citing Spector Motor Service, Inc. v.\nMcLaughlin, 323 U.S. 101, 105 (1944)). See also BrockeL v. Spo-\nkane Arcades, Inc., 472 U.S. 491, 501 (1985).\n We illustrate this by considering one of Vargas’s eviden-\ntiary arguments—the strongest one, as it seems to us, but\none on which he has missed critical points.\n During discovery, Vargas asked the prosecutor to identi-\nfy any expert witnesses and describe the nature of the ex-\nperts’ testimony. The prosecution made a reciprocal de-\nmand. One potential witness identiﬁed by the prosecution\n\fNo. 18-1250 5\n\nwas Joseph Raschke, who would testify about how infor-\nmation from cell towers could be used to locate Vargas and\nHueter on the critical days. After the parties agreed to a\nstipulation about cell-site evidence, the prosecution told the\njudge that it would not call Raschke as a witness in its case-\nin-chief. When Vargas tried to call Raschke in his own case,\nthe prosecutor objected, because Vargas had not disclosed\nRaschke as an expert for the defense or described the sub-\njects of his testimony. The judge sustained the objection.\nVargas now asserts that this was absurd—after all, the pros-\necutor had to know what Raschke would have said on the\nstand—and that absurd decisions must be unconstitutional.\n Whether the judge erred depends not on the Due Process\nClause but on Fed. R. Crim. P. 16(b)(1)(C), which provides\nthat at the prosecution’s request any defendant who has\nmade an equivalent demand for expert disclosure must\n“give to the government a wriien summary of any testimo-\nny that the defense intends to use under Rules 702, 703, or\n705 of the Federal Rules of Evidence … . This summary must\ndescribe the witness’s opinions, the bases and reasons for\nthose opinions, and the witness’s qualiﬁcations”. Vargas did\nnot do this about Raschke; the omission is why the district\njudge barred Vargas from calling Raschke at trial. And un-\nless the defense plans to call an expert, already designated\nby the prosecution, for exactly the maiers covered in the\nprosecutor’s disclosure, it can’t be called absurd (let alone\nunconstitutional) for the judge to enforce the Rule as wriien.\nRule 16(b)(1)(C) thus sinks Vargas’s appellate argument un-\nless courts have read this Rule, despite its text, as inapplica-\nble to defendants who want to call witnesses already dis-\nclosed by the prosecutor.\n\f6 No. 18-1250\n\n We could not ﬁnd any decision holding that disclosure of\nan expert by the prosecutor relieves the defense of a duty to\nprovide its own disclosure, if the defense wants to call that\nexpert. Nor could we ﬁnd any decision in the other direction\n(that is, we couldn’t ﬁnd any decision holding that disclo-\nsure by the defense relieved the prosecutor of its duty to dis-\nclose the testimony that the same expert would give if called\nby the prosecutor). The Rule is designed to ensure that each\nside knows what an expert’s testimony would cover. See,\ne.g., United States v. Bresil, 767 F.3d 124, 127 (1st Cir. 2014);\nUnited States v. Barile, 286 F.3d 749, 758 (4th Cir. 2002). The\npossibility that one side will take an expert in a direction\ndiﬀerent from the other side’s planned destination aﬀords a\ngood reason why each must identify the potential “witness’s\nopinions, the bases and reasons for those opinions”, no\nmaier what the other side has disclosed.\n Vargas has not addressed any of these subjects, because\nhis brief does not mention Rule 16. When asked why at oral\nargument, Vargas’s counsel asserted that no one pays any\naiention to this Rule, so he did not need to bother. That is a\nstaggering assertion. The prosecutor paid aiention; that’s\nwhy an objection was made. The district judge enforced Rule\n16 by sustaining the objection. And we enforce rules by in-\nsisting that counsel address rather than ignore them. “There\nis no general constitutional right to discovery in a criminal\ncase, and Brady [v. Maryland, 373 U.S. 83 (1963)] did not cre-\nate one; as the Court wrote recently, ‘the Due Process Clause\nhas liile to say regarding the amount of discovery which the\nparties must be aﬀorded … .’ Wardius v. Oregon, 412 U.S. 470,\n474 (1973).” Weatherford v. Bursey, 429 U.S. 545, 559 (1977).\nSanctions for violating discovery rules also generally are\nmaiers for the rules or statutes. See Michigan v. Lucas, 500\n\fNo. 18-1250 7\n\nU.S. 145 (1991) (judge entitled to exclude evidence after de-\nfense failed to comply with a notice obligation). Only close\naiention to Rule 16 might have oﬀered Vargas a chance to\nprevail.\n None of Vargas’s other arguments requires discussion.\nWe agree with him that the district judge should have been\nmore even-handed (at least when the jury could overhear his\nadmonitions to defense counsel), but neither on that subject\nnor any other did the judge violate the Due Process Clause,\nwhich in criminal cases deals with only egregious transgres-\nsions of trial rules and decorum. Donnelly v. DeChristoforo,\n416 U.S. 637 (1974).\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364921/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK	KANNE	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "KANNE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587668/	Published	1	0	0	2,019	2	[ { "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...
4,587,669		Jeryme Morgan v. Minh Schott	2019-02-05	16-2384	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE, SYKES, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 16-2384\nJERYME MORGAN,\n Plaintiff-Appellant,\n v.\n\nMINH SCHOTT, TIM VEATH,\nand HUDSON MAYNARD,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court\n for the Southern District of Illinois.\n No. 13-cv-0881-SCW — Stephen C. Williams, Magistrate Judge.\n ____________________\n\n ARGUED SEPTEMBER 5, 2018 — DECIDED FEBRUARY 5, 2019\n ____________________\n\n Before KANNE, SYKES, and ST. EVE, Circuit Judges.\n SYKES, Circuit Judge. Illinois prison officials issued a dis-\nciplinary report charging inmate Jeryme Morgan with\noffenses stemming from a violent assault on fellow prison-\ners. Morgan disputed the charges and asked the authorities\nto call a witness to testify at his Adjustment Committee\nhearing. But the Committee never called Morgan’s witness.\nHe was found guilty and the Committee imposed punish-\n\f2 No. 16-2384\n\nment of one year of segregation, various status and access\nrestrictions, and revocation of three months of good-time\ncredits. Morgan filed a grievance challenging his punish-\nment on due-process grounds and appealed its subsequent\ndenial to the Administrative Review Board (“the Board”).\nThe Board adjusted the revocation of good-time credits to\none month but affirmed the Committee’s due-process ruling,\nconcluding that Morgan’s witness request did not comply\nwith prison rules.\n Alleging a raft of constitutional violations, Morgan sued\nthree officers for damages under 42 U.S.C. § 1983 claiming\nthat the failure to call his witness violated his right to due\nprocess. The officers moved for summary judgment citing\nthe favorable-termination rule announced in Heck v.\nHumphrey, 512 U.S. 477 (1994). Heck holds that “when a state\nprisoner seeks damages in a § 1983 suit, the district court\nmust consider whether a judgment in [his] favor … would\nnecessarily imply the invalidity of his conviction or sen-\ntence.” Id. at 487. Where a favorable judgment would have\nthat effect, no § 1983 claim has accrued and “the complaint\nmust be dismissed unless the plaintiff can demonstrate that\nthe conviction or sentence has already been invalidated.” Id.\nMorgan countered that Heck is inapplicable due to his waiv-\ner of all claims relating to the revocation of his good-time\ncredits. A magistrate judge rejected Morgan’s attempt to skirt\nHeck and ruled that his due-process claim was not cogniza-\nble under § 1983.\n We affirm. Prisoners cannot make an end run around\nHeck by filing an affidavit waiving challenges to the portion\nof their punishment that revokes good-time credits. We\nrecently addressed that very tactic and found it incompatible\n\fNo. 16-2384 3\n\nwith the Heck line of cases. Haywood v. Hathaway, 842 F.3d\n1026 (7th Cir. 2016). Morgan provides no reason to question\nHaywood, and we reaffirm its reasoning. Morgan’s attempt to\nanalogize his case to Wilkinson v. Dotson, 544 U.S. 74 (2005),\nand Skinner v. Switzer, 562 U.S. 521 (2011), misunderstands\nthose decisions. Judgment in Morgan’s favor would neces-\nsarily imply the invalidity of his prison discipline. Thus, no\n§ 1983 claim has accrued. This suit is premature and must be\ndismissed without prejudice.\n I. Background\n Morgan is serving sentences for robbery, armed robbery,\nand sexual assault. For most of his incarceration—and at all\ntimes relevant to this case—he has been housed at Menard\nCorrectional Center (“Menard”). In January 2012 Officer\nHudson Maynard issued a disciplinary report accusing\nMorgan of taking part in an assault that occurred three\nmonths earlier in Menard’s east yard. The report charged\nMorgan with conspiring to attack the victims, joining the\nattack, possessing dangerous contraband, causing a disturb-\nance, interfering with prison investigations, and engaging in\nunauthorized organizational activities.\n Menard gives prisoners an opportunity to formally re-\nquest witnesses at a disciplinary hearing; the disciplinary\nreport provides a space to do so. If called, those witnesses\ntestify at the prisoner’s Adjustment Committee hearing.\nMorgan’s request was not a model of clarity. On the line\nrequesting a description of the subject of the witness’s testi-\nmony, Morgan wrote the name “James Lewis” followed by\nthe words “where abouts.” On the line reserved for the\nwitness’s name and other identifying information, Morgan\nagain wrote “James Lewis” but nothing else.\n\f4 No. 16-2384\n\n At Morgan’s Adjustment Committee hearing on\nJanuary 31, prison officials did not call James Lewis. The\nCommittee, which included Lieutenant Minh Schott and\nOfficer Tim Veath, found Morgan guilty and recommended\nrevoking three months of good-time credits and adding one\nyear of segregation, one year of lowered status, and several\naccess restrictions. Morgan filed a grievance arguing that the\nCommittee’s failure to call Lewis violated his right to due\nprocess. Morgan’s grievance was denied, so he appealed to\nthe Board. The Board ruled that Morgan’s witness request\ndid not meet the minimum requirements under prison rules.\nIllinois regulations require that such requests “shall be in\nwriting on the space provided in the disciplinary report and\nshall include an explanation of what the witnesses would\nstate.” ILL. ADMIN. CODE tit. 20, § 504.80(f)(2). Because\nMorgan failed to adequately identify his witness or describe\nhis testimony, and because officials failed to locate a James\nLewis at Menard, the Board concluded that Morgan’s hear-\ning comported with due process.\n Rather than challenge the Board’s ruling in state court,\nMorgan filed a pro se complaint in the Southern District of\nIllinois seeking damages under § 1983. He alleged numerous\nconstitutional violations ranging from excessive force to\ndeliberate indifference. Those claims were severed and\nproceeded as a separate case. The district court did not\ninitially identify a due-process claim in Morgan’s complaint.\nHowever, a magistrate judge later found that Morgan had\nadequately alleged a violation of due process against\nLieutenant Schott and Officer Veath based on the Commit-\ntee’s failure to call James Lewis. Schott and Veath moved for\nsummary judgment, arguing that Morgan’s claim was barred\n\fNo. 16-2384 5\n\nby Heck, no reasonable jury could find a constitutional\nviolation, and qualified immunity applies.\n As part of Morgan’s strategy to avoid the Heck bar, he\nfiled an affidavit purporting to “abandon any and all present\nand future challenges” and “waiv[e] for all times all claims”\npertaining to the portion of his punishment that impacted\nthe duration of his confinement. He preserved only “claims\nchallenging the sanctions affecting the conditions of [his]\nconfinement.” Morgan argued that his affidavit rendered\nHeck inapplicable, citing the Second Circuit’s decision in\nPeralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006).\n The magistrate judge concluded that Heck barred\nMorgan’s suit and entered summary judgment for Schott\nand Veath, dismissing Morgan’s due-process claim with\nprejudice. The judge rejected Morgan’s attempt to use strate-\ngic waiver to “dodge” Heck. He said Morgan’s due-process\nclaim “call[s] into question the validity of the prison disci-\npline[] because to accept that claim necessarily implie[s] that\nthe discipline was somehow invalid.”\n II. Discussion\n We review a summary judgment de novo, reading the\nrecord in the light most favorable to Morgan and drawing all\nreasonable inferences in his favor. Tolliver v. City of Chicago,\n820 F.3d 237, 241 (7th Cir. 2016). Morgan renews his strate-\ngic-waiver argument in an effort to avoid the Heck bar. He\nalso attempts to evade Heck by arguing that success on the\nmerits would mean at most a new hearing, not a reduction\nof his term of imprisonment.\n We begin with an overview of the favorable-termination\nrule established in Heck v. Humphrey. Federal law affords\n\f6 No. 16-2384\n\nstate prisoners two venerable gateways to relief: the Civil\nRights Act of 1871, codified at 42 U.S.C. § 1983, and habeas\ncorpus review of state adjudications under 28 U.S.C. § 2254.\nThey are not interchangeable. The Supreme Court made this\nfact crystal clear in a line of cases barring § 1983 suits predi-\ncated on claims reserved for habeas challenges. In Preiser v.\nRodriguez, 411 U.S. 475, 476 (1973), the Court evaluated a\n§ 1983 claim attacking prison discipline proceedings on\nconstitutional grounds and seeking restoration of good-time\ncredits. The Court explained that habeas corpus—not\n§ 1983—is the “specific instrument to obtain release” from\nunlawful imprisonment. Id. at 486. Thus, when a prisoner\nchallenges “the fact or duration of his confinement,” he fails\nto state a cognizable § 1983 claim. Id. at 489.\n The Court expanded on Preiser in Heck v. Humphrey,\n512 U.S. at 486–87, in which the prisoner–plaintiff sought\ndamages for wrongful conviction. Heck claimed that Indiana\nprosecutors had destroyed exculpatory evidence and en-\ngaged in an “unlawful, unreasonable, and arbitrary investi-\ngation.” Id. at 479. The Court held that\n in order to recover damages for [an] allegedly\n unconstitutional conviction or imprisonment,\n or for other harm caused by actions whose un-\n lawfulness would render a conviction or sen-\n tence invalid, a § 1983 plaintiff must prove that\n the conviction or sentence has been reversed\n on direct appeal, expunged by executive order,\n declared invalid by a state tribunal authorized\n to make such determination, or called into\n question by a federal court’s issuance of a writ\n of habeas corpus.\n\fNo. 16-2384 7\n\nId. at 486–87. The Court distinguished Wolff v. McDonnell,\n418 U.S. 539 (1974), in which there was no “reason to be-\nlieve[] that using the wrong procedures necessarily vitiated\nthe denial of good-time credits.” Heck, 512 U.S. at 483. Con-\nversely, a judgment in Heck’s favor would “necessarily\nimply the invalidity of [Heck’s] conviction or sentence.” Id. at\n487. When a judgment for the plaintiff would have that\neffect, no § 1983 claim accrues until the plaintiff succeeds in\ninvalidating the underlying conviction or sentence.\n The Court extended Heck to the prison-discipline context\nin Edwards v. Balisok, 520 U.S. 641 (1997). Balisok alleged that\nthe presiding officer at his conduct hearing was biased and\ndeprived him of the opportunity to present exculpatory\nwitness testimony. Id. at 643. Some of Balisok’s good-time\ncredits were revoked. He did not challenge the result of the\nproceeding or the punishment he received. Instead, he\nclaimed in a § 1983 suit that he was deprived of due process.\nId. at 645. The Court held that judgment for Balisok would\nnecessarily imply the invalidity of his disciplinary sentence.\nId. at 648. The Court reasoned that denial of the opportunity\nto present witnesses was “an obvious procedural defect, and\nstate and federal courts have reinstated good-time credits\n(absent a new hearing) when it is established.” Id. at 647.\nThus, Heck’s favorable-termination rule applied. Id. at 648.\nA. Strategic Waiver\n Morgan argues that challenges to the conditions of a pris-\noner’s confinement—as opposed to the duration of that\nconfinement—do not implicate Heck, so a prisoner should be\npermitted to challenge a disciplinary proceeding via § 1983 if\nhe waives all challenges to duration-of-confinement sanc-\n\f8 No. 16-2384\n\ntions. Morgan’s is not a novel argument. We have rejected it\nbefore and see no reason to change course.\n When an inmate is found guilty of a disciplinary viola-\ntion, prison officials can apply sanctions reducing the in-\nmate’s privileges within the facility. They can also revoke\ngood-time credits, a sanction that has the effect of lengthen-\ning the inmate’s term of confinement. Morgan relies on\nPeralta v. Vasquez, 467 F.3d 98, in which the Second Circuit\nconsidered the mixed-sanctions scenario and chose to em-\nbrace strategic waiver as a means of removing the Heck bar.\nThe court held that a prisoner facing condition-of-\nconfinement sanctions and duration-of-confinement sanc-\ntions could challenge the former under § 1983 without\ncomplying with Heck’s favorable-termination requirement.\nId. at 104. All the prisoner must do is “abandon, not just now,\nbut also in any future proceeding, any claims he may have\nwith respect to the duration of his confinement that arise out\nof the proceeding he is attacking.” Id.\n We rejected Peralta in Haywood v. Hathaway, 842 F.3d 1026.\nThe approach Morgan urges us to adopt rests on a misun-\nderstanding of Heck. The favorable-termination rule is more\nthan a procedural hurdle that plaintiffs can skirt with artful\ncomplaint drafting or opportunistic affidavits. Rather, it is\ngrounded in substantive concerns about allowing conflicting\njudgments. As we explained in Haywood, the Heck rule is “a\nversion of issue preclusion (collateral estoppel), under which\nthe outstanding criminal judgment or disciplinary sanction,\nas long as it stands, blocks any inconsistent civil judgment.”\n842 F.3d at 1029. Neither Peralta nor Morgan can account for\nthis aspect of Heck.\n\fNo. 16-2384 9\n\n Endorsing Morgan’s arguments would undercut another\nfeature of the Court’s favorable-termination jurisprudence.\nHeck held that “a § 1983 cause of action for damages at-\ntributable to an unconstitutional conviction or sentence does\nnot accrue until the conviction or sentence has been invali-\ndated.” 512 U.S. at 489–90 (emphasis added). Morgan’s\nargument is incompatible with that holding. If a prisoner’s\nchallenge to a disciplinary hearing implies the invalidity of\nthe resulting sanctions, no § 1983 claim has accrued. And\n“[i]f the claim has not accrued, it cannot matter what relief a\nprisoner seeks.” Haywood, 842 F.3d at 1028. Selective waiver\nsimply doesn’t alter the analysis.\n Morgan concedes that Haywood controls his case and asks\nus to overrule it. But we do not reverse our precedents\nlightly; we need “compelling reasons” to do so. Russ v.\nWatts, 414 F.3d 783, 788 (7th Cir. 2005). The Supreme Court\nhas not cast doubt on Haywood, and it does not represent a\nminority approach among our sister circuits. See Glaser v.\nWound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009)\n(discussing circumstances in which we reconsider our\nprecedents). Moreover, we remain convinced that “Peralta is\nincompatible with Heck and its successors.” Haywood,\n842 F.3d at 1030. State prisoners cannot avoid the favorable-\ntermination rule by engaging in strategic waiver. If judgment\nfor a § 1983 plaintiff would necessarily imply the invalidity\nof his punishment, the Heck rule applies and favorable\ntermination of the underlying proceeding is a prerequisite to\nrelief. See Nelson v. Campbell, 541 U.S. 637, 646 (2004).\nB. Dotson and Skinner\n Morgan also compares his case to Wilkinson v. Dotson,\n544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011),\n\f10 No. 16-2384\n\nbut the analogy is inapt. In Dotson the Court dealt with two\n§ 1983 suits challenging the retroactivity of certain state\nparole-hearing procedures on due-process grounds. The\nplaintiffs sought declaratory relief and an injunction order-\ning parole hearings under a different set of rules. Dotson,\n544 U.S. at 76–77. The Court held that the plaintiffs’ claims\nwere cognizable under § 1983 because success would mean\n“new [parole] eligibility review” for one plaintiff and “a new\nparole hearing” for the other, neither of which would “nec-\nessarily spell immediate or speedier release” or imply the\ninvalidity of their sentences. Id. at 81 (emphasis omitted). In\nSkinner the Court allowed a Texas prisoner to seek postcon-\nviction DNA testing using a § 1983 suit because “[s]uccess …\ngains for the prisoner only access to the DNA evidence,\nwhich may prove exculpatory, inculpatory, or inconclusive.”\n562 U.S. at 525. Thus, judgment for the plaintiff wouldn’t\nnecessarily imply unlawful confinement by the State.\n It’s not clear that Morgan made this argument below. But\nin the interest of completeness, we address it here. Morgan\nmisses a key distinction between his case and Dotson and\nSkinner—a distinction we’ve discussed before. See Burd v.\nSessler, 702 F.3d 429, 432–34 (7th Cir. 2012). The plaintiffs in\nDotson and Skinner sought purely prospective relief: parole\nhearings under different rules in Dotson; DNA testing in\nSkinner. As we explained in Burd, the Dotson and Skinner\nplaintiffs sought entirely forward-looking relief: access to\n“procedural pathways that, if successfully employed, might\n[have led] to the overturning of the underlying conviction.”\nBurd, 702 F.3d at 433 (emphasis added). Judgment for those\nplaintiffs would not have implied the invalidity of their\nconvictions or sentences.\n\fNo. 16-2384 11\n\n Morgan’s claim, in contrast, is entirely backward looking.\nHe alleges a due-process violation at the hearing that gener-\nated his disciplinary sanctions. A damages judgment for\nMorgan would amount to a judicial determination that\nprison officials infringed Morgan’s constitutional rights by\nfailing to call a witness in his defense, rendering the pro-\nceeding unfair. Such a judgment would straightforwardly\nimply the invalidity of his punishment, triggering Heck’s\nfavorable-termination rule. Balisok, 520 U.S. at 648; see also\nLusz v. Scott, 126 F.3d 1018, 1022 (7th Cir. 1997) (applying the\nHeck bar where the plaintiff argued “that he was denied the\nopportunity to call requested witnesses in his favor”). We’ve\nclarified before that “‘[i]mply’ is not synonymous with\n‘invalidate.’” Hill v. Murphy, 785 F.3d 242, 248 (7th Cir. 2015).\nJudgment in Morgan’s favor would allow him “to argue that\nhe had been determined by a court to have been unjustly”\npunished—an outcome that “Heck forbids.” Id.\n Morgan argues that Illinois regulations make all the dif-\nference. By rule, “[t]he Director, Deputy Director or Chief\nAdministrative Officer shall remand the decision to the\nAdjustment Committee for new proceedings if the proceed-\nings are found to be defective due to[] … [i]mproper exclu-\nsion of witnesses.” ILL. ADMIN. CODE tit. 20, § 504.90(a)(3). In\nMorgan’s view this provision makes his case like Dotson and\nSkinner, where success merely meant access to new proceed-\nings. Morgan claims that a judgment in his favor would\nbring “a new hearing that appropriately considers previous-\nly excluded evidence.” The hearing could go either way—\nlike the parole hearings in Dotson or the testing in Skinner—\nso Heck poses no problem for Morgan’s suit.\n\f12 No. 16-2384\n\n We disagree. Heck is not inapplicable merely because\nstate prison regulations call for replacement proceedings in\ncertain situations. Heck prevents the entry of any judgment\nthat would cast doubt on the validity of the plaintiff’s pun-\nishment or conviction. Burd, 702 F.3d at 433. To repeat, in\nDotson the plaintiffs sought entirely forward-looking relief in\nthe form of new hearings under a different set of rules.\nJudgment granting that relief wouldn’t impugn their sen-\ntences. Morgan seeks money damages—a classic retrospec-\ntive remedy. That Morgan might receive additional\nadministrative proceedings as a collateral consequence of\nreceiving a damages judgment does not render that hypo-\nthetical judgment any more consistent with the validity of\nhis disciplinary punishment.\n It’s worth noting that Morgan could have challenged the\nBoard’s ruling in other ways. Id. at 436 (holding that “Heck\napplies where a § 1983 plaintiff could have sought collateral\nrelief … but declined the opportunity”). Under Illinois law\nthe writ of certiorari empowers circuit courts to review\nadministrative determinations “when the act conferring\npower on the agency does not expressly adopt the Adminis-\ntrative Review Law and provides for no other form of re-\nview.” Hanrahan v. Williams, 673 N.E.2d 251, 253 (Ill. 1996).\nIllinois statutes governing prison discipline do not provide\nfor judicial review, so “prison disciplinary proceedings are\nreviewable in an action for certiorari.” Fillmore v. Taylor,\n80 N.E.3d 835, 849 (Ill. App. Ct. 2017). Alternatively, Morgan\ncould have asked a state court to issue a writ of mandamus\nordering Menard officials to conduct a new hearing. Dye v.\nPierce, 868 N.E.2d 293, 296 (Ill. App. Ct. 2006) (“An allegation\nof a due-process-rights violation … states a cause of action in\nmandamus.”). And after exhausting state review, he could\n\fNo. 16-2384 13\n\nhave sought relief under the federal habeas corpus statute.\nInstead he immediately sued for money damages under\n§ 1983—and ran directly into Heck.\n Although Morgan does not currently have a cognizable\n§ 1983 claim, it is at least possible that he could convince a\nstate court to provide the favorable termination required by\nHeck. Illinois courts apply a six-month limitations period to\ncertiorari actions, but a court might hear a late certiorari\naction if no “public detriment or inconvenience would result\nfrom [the] delay.” Alicea v. Snyder, 748 N.E.2d 285, 290 (Ill.\nApp. Ct. 2001).\n Heck-barred claims must be dismissed. Johnson v.\nWinstead, 900 F.3d 428, 436 (7th Cir. 2018). But given the\npossibility of future state-court proceedings, Morgan’s claim\nshould have been dismissed without prejudice. See Moore v.\nBurge, 771 F.3d 444, 446 (7th Cir. 2014); Polzin v. Gage,\n636 F.3d 834, 839 (7th Cir. 2011). We modify the judgment to\nreflect a dismissal without prejudice. As modified, the\njudgment is affirmed.\n AFFIRMED AS MODIFIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364922/", "author_raw": "Diane S. Sykes"}]}	KANNE	SYKES	ST EVE	1	{"KANNE": ", Circuit", "SYKES": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587669/	Published	1	0	0	2,019	2	[ { "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...
4,588,108	JACKSON COUNTY BANK, Plaintiff-Appellee, v. Mathew R. DUSABLON, Defendant-Appellant.	Jackson County Bank v. Mathew DuSablon	2019-02-06	18-2809	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2809\nJACKSON COUNTY BANK,\n Plaintiff-Appellee,\n v.\n\nMATHEW R. DUSABLON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:18-cv-01346 — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 14, 2019 — DECIDED FEBRUARY 6, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir-\ncuit Judges.\n ST. EVE, Circuit Judge. Jackson County Bank sued its former\nemployee, Mathew R. DuSablon, in Indiana state court, as-\nserting various state law claims, including theft of property\nand breach of contract. Following his unsuccessful motion to\ndismiss, DuSablon removed the case to federal court. The dis-\ntrict court remanded the case to state court for want of juris-\ndiction and untimely removal and further ordered DuSablon\n\f2 No. 18-2809\n\nto pay the costs and fees for the wrongful removal. DuSablon\nnow appeals the remand order and the district court’s impo-\nsition of sanctions. We dismiss the appeal of the district\ncourt’s remand order and aﬃrm its award of costs and fees.\n I. Background\n Jackson County Bank (“JCB”) is an Indiana state-chartered\nbank. Although not a registered broker-dealer, JCB had a\nthird-party agreement with INVEST Financial Corporation, a\nregistered broker-dealer, to offer securities to JCB customers.\n Mathew R. DuSablon, who resides in Indiana, began\nworking for JCB in 2007. In July 2017, JCB assigned DuSablon\nto assist the bank in identifying and establishing an invest-\nment business with a new third-party broker-dealer. DuSa-\nblon, however, failed to perform his job and abruptly re-\nsigned on January 8, 2018. JCB thereafter learned that DuSa-\nblon had transferred customers’ accounts from JCB’s former\nthird-party broker-dealer, INVEST, into his own name and\nhad started a business to compete with JCB.\n On February 28, 2018, JCB filed suit in Indiana state court,\nseeking a preliminary injunction and asserting state-law\nclaims against DuSablon, including violation of the Indiana\nUniform Trade Secrets Act, breach of contract, breach of fidu-\nciary duty, tortious interference, unfair competition, civil con-\nversion, and computer trespass. DuSablon moved to dismiss,\narguing with references to federal law that JCB is an unli-\ncensed broker-dealer and therefore lacks standing to enforce\nits rights in the information at issue; and that Financial Indus-\ntry Regulatory Authority, Inc. (“FINRA”) rules bar the suit.\nJCB responded that it had standing and is not subject to\nFINRA rules. The court denied the motion on April 20, 2018.\n\fNo. 18-2809 3\n\n Days later, on May 2, 2018, DuSablon removed this case to\nthe United States District Court for the Southern District of\nIndiana, asserting that the federal district court “has exclusive\njurisdiction pursuant to 15 U.S.C. § 78aa and the Securities\nand Exchange Act of 1934.” Acknowledging that JCB did not\nplead a federal claim, DuSablon contended that JCB’s re-\nsponse to his motion to dismiss in state court “raises a federal\nquestion as all of [JCB’s] claims against [DuSablon] rest upon\nthe legality of direct participation in the securities industry\nwhich is determined and regulated by the [Securities] Act.”\n On May 11, 2018, JCB moved to remand for lack of juris-\ndiction, and also argued, among other things, that DuSablon\nused the removal statute inappropriately to postpone prelim-\ninary injunction proceedings in state court and “run the\nclock” on his non-compete. The district court granted the mo-\ntion, concluding that it lacked jurisdiction and that the re-\nmoval was untimely. The district court accordingly remanded\nthe case to state court and additionally ordered DuSablon to\npay JCB costs and fees of $9,035.61 under 28 U.S.C. § 1447(c).\n II. Discussion\n DuSablon appeals the district court’s remand and sanc-\ntions orders. JCB, for its part, requests additional costs and\nfees under § 1447(c) for its defense of this appeal.\n DuSablon challenges the district court’s order remanding\nthis case to state court. But “[a]n order remanding a case to\nthe State court from which it was removed is not reviewable\non appeal or otherwise,” subject to exceptions not pertinent\nhere. 28 U.S.C. § 1447(d); see also PNC Bank, N.A. v. Spencer,\n763 F.3d 650 (7th Cir. 2014) (per curiam). We therefore dismiss\nthis aspect of DuSablon’s appeal for lack of jurisdiction. See\n\f4 No. 18-2809\n\nAdkins v. Illinois Cent. R.R. Co., 326 F.3d 828, 834 (7th Cir. 2003)\n(“[T]he rule of nonreviewability … in § 1447(d) means that\neven remands based on an erroneous belief in the lack of fed-\neral subject matter jurisdiction cannot be reviewed….”).\n DuSablon next challenges the district court’s award of\ncosts and fees to JCB pursuant to 28 U.S.C. § 1447(c). This we\ncan review. See, e.g., Garbie v. DaimlerChrysler Corp., 211 F.3d\n407, 409–10 (7th Cir. 2000) (holding that an appellate court has\njurisdiction to review sanctions under § 1447(c)). Under\n§ 1447(c), “‘[a]n order remanding a removed case to state\ncourt ‘may require payment of just costs and any actual ex-\npenses, including attorney fees, incurred as a result of the re-\nmoval.’” Martin v. Franklin Cap. Corp., 546 U.S. 132, 134 (2005)\n(quoting 28 U.S.C. § 1447(c)). A district court may award fees\nunder § 1447(c) where “the removing party lacked an ‘objec-\ntively reasonable basis’” for seeking removal. Wolf v. Kennelly,\n574 F.3d 406, 411 (7th Cir. 2009) (quoting Martin, 546 U.S. at\n141). Sanctions may be awarded when removal is clearly im-\nproper, id., but not necessarily frivolous, Martin, 546 U.S. at\n138–40 (further explaining the rationale for fee-shifting in ap-\npropriate cases).\n We review a district court’s decision to award sanctions\nfor abuse of discretion. See Wolf, 574 F.3d at 410. And here, we\nfind no abuse of discretion, as we agree that DuSablon lacked\nan objectively reasonable basis to remove this case to federal\ncourt. The impropriety of removal, as the district court ob-\nserved, was “not a close question.” JCB did not plead any fed-\neral claim nor is any federal question apparent from the face\nof its complaint. See Bastien v. AT&T Wireless Servs, Inc., 205\nF.3d 983, 986 (7th Cir. 2000). The complaint is based entirely\non state law and any potential federal defense cannot form the\n\fNo. 18-2809 5\n\nbasis for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386,\n392 (1987); Studer v. Katherine Shaw Bethea Hosp., 867 F.3d 721,\n723 (7th Cir. 2017).\n DuSablon nonetheless argues that JCB’s state law claims\ninvolve significant questions of federal securities laws. But\nDuSablon cannot manufacture a basis for removal by inject-\ning federal issues into a case under these circumstances. See\nPanther Brands, LLC v. Indy Racing League, LLC, 827 F.3d 586,\n589 (7th Cir. 2016) (holding in a breach of contract action that\nan allegation that a defendant violated federal statutes is in-\nsufficient to create subject-matter jurisdiction). This is partic-\nularly so because, as the district court observed, DuSablon\ncited no cases supporting his position nor attempted to apply\ncontrolling law, namely Grable & Sons Metal Prods., Inc. v. Da-\nrue Eng’r & Mfg., 545 U.S. 308, 314–15 (2005) (invoking federal\njurisdiction over state law claim to quiet title to property\nseized by federal government where the validity of the sei-\nzure was “the only legal or factual issue[] in the case”).\n Other considerations support the district court’s exercise\nof discretion. The first is the court’s finding that “DuSablon’s\nconduct in defending the motion to remand” suggested that\n“removal was undertaken at least in part to delay a resolution\nof the noncompete issues to his benefit and to allow for a sec-\nond bite at the apple after losing his motion to dismiss in state\ncourt.” We see no clear error in this finding. The second con-\nsideration is the untimeliness of DuSablon’s removal. Despite\nhis claimed ignorance of the supposed substantial federal\nquestion until JCB responded to his motion to dismiss, DuSa-\nblon’s motion itself raised many issues of federal law. The dis-\ntrict court properly determined that DuSablon was or should\n\f6 No. 18-2809\n\nhave been aware of his asserted grounds for removal more\nthan 30 days prior to his notice of removal.\n Accordingly, the district court did not abuse its discretion\nin determining that DuSablon lacked an objectively reasona-\nble basis to remove the case to federal court.\n Finally, JCB requests an award of costs and fees incurred\nin defending this appeal.1 “[L]itigants who receive an award\nof fees in the district court under § 1447(c) automatically re-\nceive reimbursement for the expense of defending that award\non appeal.” MB Fin., N.A. v. Stevens, 678 F.3d 497, 500 (7th Cir.\n2012). JCB is therefore “entitled to an award of ‘legal fees for\nthe cost of work reasonably performed in defense of the dis-\ntrict court’s decision.’” PNC Bank, 763 F.3d at 655 (quoting\nM.B. Fin., 678 F.3d at 500). JCB has fourteen days from the date\nof this decision to submit a statement of fees. DuSablon will\nhave fourteen days to respond.\n III. Conclusion\n We DISMISS the appeal of the district court’s remand or-\nder and AFFIRM its award of costs and fees.\n\n\n\n\n 1In its brief, JCB also requests fees under Federal Rule of Appellate\nProcedure 38. But JCB did not file a separate motion under Rule 38, so we\ndeny its request. See Vexol, S.A. de C.V. v. Berry Plastics Corp., 882 F.3d 633,\n638 (7th Cir. 2018) (denying request for sanctions where party did not sub-\nmit a “‘separately filed motion’” for sanctions) (quoting FED. R. APP. P. 38).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365361/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	BRENNAN	ST EVE	1	{"WOOD": ", Chief", "BRENNAN": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588108/	Published	1	0	0	2,019	2	[ { "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...
4,588,130		Jackson County Bank v. Mathew DuSablon	2019-02-06	18-2809	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2809\nJACKSON COUNTY BANK,\n Plaintiff-Appellee,\n v.\n\nMATHEW R. DUSABLON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:18-cv-01346 — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 14, 2019 — DECIDED FEBRUARY 6, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir-\ncuit Judges.\n ST. EVE, Circuit Judge. Jackson County Bank sued its former\nemployee, Mathew R. DuSablon, in Indiana state court, as-\nserting various state law claims, including theft of property\nand breach of contract. Following his unsuccessful motion to\ndismiss, DuSablon removed the case to federal court. The dis-\ntrict court remanded the case to state court for want of juris-\ndiction and untimely removal and further ordered DuSablon\n\f2 No. 18-2809\n\nto pay the costs and fees for the wrongful removal. DuSablon\nnow appeals the remand order and the district court’s impo-\nsition of sanctions. We dismiss the appeal of the district\ncourt’s remand order and aﬃrm its award of costs and fees.\n I. Background\n Jackson County Bank (“JCB”) is an Indiana state-chartered\nbank. Although not a registered broker-dealer, JCB had a\nthird-party agreement with INVEST Financial Corporation, a\nregistered broker-dealer, to offer securities to JCB customers.\n Mathew R. DuSablon, who resides in Indiana, began\nworking for JCB in 2007. In July 2017, JCB assigned DuSablon\nto assist the bank in identifying and establishing an invest-\nment business with a new third-party broker-dealer. DuSa-\nblon, however, failed to perform his job and abruptly re-\nsigned on January 8, 2018. JCB thereafter learned that DuSa-\nblon had transferred customers’ accounts from JCB’s former\nthird-party broker-dealer, INVEST, into his own name and\nhad started a business to compete with JCB.\n On February 28, 2018, JCB filed suit in Indiana state court,\nseeking a preliminary injunction and asserting state-law\nclaims against DuSablon, including violation of the Indiana\nUniform Trade Secrets Act, breach of contract, breach of fidu-\nciary duty, tortious interference, unfair competition, civil con-\nversion, and computer trespass. DuSablon moved to dismiss,\narguing with references to federal law that JCB is an unli-\ncensed broker-dealer and therefore lacks standing to enforce\nits rights in the information at issue; and that Financial Indus-\ntry Regulatory Authority, Inc. (“FINRA”) rules bar the suit.\nJCB responded that it had standing and is not subject to\nFINRA rules. The court denied the motion on April 20, 2018.\n\fNo. 18-2809 3\n\n Days later, on May 2, 2018, DuSablon removed this case to\nthe United States District Court for the Southern District of\nIndiana, asserting that the federal district court “has exclusive\njurisdiction pursuant to 15 U.S.C. § 78aa and the Securities\nand Exchange Act of 1934.” Acknowledging that JCB did not\nplead a federal claim, DuSablon contended that JCB’s re-\nsponse to his motion to dismiss in state court “raises a federal\nquestion as all of [JCB’s] claims against [DuSablon] rest upon\nthe legality of direct participation in the securities industry\nwhich is determined and regulated by the [Securities] Act.”\n On May 11, 2018, JCB moved to remand for lack of juris-\ndiction, and also argued, among other things, that DuSablon\nused the removal statute inappropriately to postpone prelim-\ninary injunction proceedings in state court and “run the\nclock” on his non-compete. The district court granted the mo-\ntion, concluding that it lacked jurisdiction and that the re-\nmoval was untimely. The district court accordingly remanded\nthe case to state court and additionally ordered DuSablon to\npay JCB costs and fees of $9,035.61 under 28 U.S.C. § 1447(c).\n II. Discussion\n DuSablon appeals the district court’s remand and sanc-\ntions orders. JCB, for its part, requests additional costs and\nfees under § 1447(c) for its defense of this appeal.\n DuSablon challenges the district court’s order remanding\nthis case to state court. But “[a]n order remanding a case to\nthe State court from which it was removed is not reviewable\non appeal or otherwise,” subject to exceptions not pertinent\nhere. 28 U.S.C. § 1447(d); see also PNC Bank, N.A. v. Spencer,\n763 F.3d 650 (7th Cir. 2014) (per curiam). We therefore dismiss\nthis aspect of DuSablon’s appeal for lack of jurisdiction. See\n\f4 No. 18-2809\n\nAdkins v. Illinois Cent. R.R. Co., 326 F.3d 828, 834 (7th Cir. 2003)\n(“[T]he rule of nonreviewability … in § 1447(d) means that\neven remands based on an erroneous belief in the lack of fed-\neral subject matter jurisdiction cannot be reviewed….”).\n DuSablon next challenges the district court’s award of\ncosts and fees to JCB pursuant to 28 U.S.C. § 1447(c). This we\ncan review. See, e.g., Garbie v. DaimlerChrysler Corp., 211 F.3d\n407, 409–10 (7th Cir. 2000) (holding that an appellate court has\njurisdiction to review sanctions under § 1447(c)). Under\n§ 1447(c), “‘[a]n order remanding a removed case to state\ncourt ‘may require payment of just costs and any actual ex-\npenses, including attorney fees, incurred as a result of the re-\nmoval.’” Martin v. Franklin Cap. Corp., 546 U.S. 132, 134 (2005)\n(quoting 28 U.S.C. § 1447(c)). A district court may award fees\nunder § 1447(c) where “the removing party lacked an ‘objec-\ntively reasonable basis’” for seeking removal. Wolf v. Kennelly,\n574 F.3d 406, 411 (7th Cir. 2009) (quoting Martin, 546 U.S. at\n141). Sanctions may be awarded when removal is clearly im-\nproper, id., but not necessarily frivolous, Martin, 546 U.S. at\n138–40 (further explaining the rationale for fee-shifting in ap-\npropriate cases).\n We review a district court’s decision to award sanctions\nfor abuse of discretion. See Wolf, 574 F.3d at 410. And here, we\nfind no abuse of discretion, as we agree that DuSablon lacked\nan objectively reasonable basis to remove this case to federal\ncourt. The impropriety of removal, as the district court ob-\nserved, was “not a close question.” JCB did not plead any fed-\neral claim nor is any federal question apparent from the face\nof its complaint. See Bastien v. AT&T Wireless Servs, Inc., 205\nF.3d 983, 986 (7th Cir. 2000). The complaint is based entirely\non state law and any potential federal defense cannot form the\n\fNo. 18-2809 5\n\nbasis for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386,\n392 (1987); Studer v. Katherine Shaw Bethea Hosp., 867 F.3d 721,\n723 (7th Cir. 2017).\n DuSablon nonetheless argues that JCB’s state law claims\ninvolve significant questions of federal securities laws. But\nDuSablon cannot manufacture a basis for removal by inject-\ning federal issues into a case under these circumstances. See\nPanther Brands, LLC v. Indy Racing League, LLC, 827 F.3d 586,\n589 (7th Cir. 2016) (holding in a breach of contract action that\nan allegation that a defendant violated federal statutes is in-\nsufficient to create subject-matter jurisdiction). This is partic-\nularly so because, as the district court observed, DuSablon\ncited no cases supporting his position nor attempted to apply\ncontrolling law, namely Grable & Sons Metal Prods., Inc. v. Da-\nrue Eng’r & Mfg., 545 U.S. 308, 314–15 (2005) (invoking federal\njurisdiction over state law claim to quiet title to property\nseized by federal government where the validity of the sei-\nzure was “the only legal or factual issue[] in the case”).\n Other considerations support the district court’s exercise\nof discretion. The first is the court’s finding that “DuSablon’s\nconduct in defending the motion to remand” suggested that\n“removal was undertaken at least in part to delay a resolution\nof the noncompete issues to his benefit and to allow for a sec-\nond bite at the apple after losing his motion to dismiss in state\ncourt.” We see no clear error in this finding. The second con-\nsideration is the untimeliness of DuSablon’s removal. Despite\nhis claimed ignorance of the supposed substantial federal\nquestion until JCB responded to his motion to dismiss, DuSa-\nblon’s motion itself raised many issues of federal law. The dis-\ntrict court properly determined that DuSablon was or should\n\f6 No. 18-2809\n\nhave been aware of his asserted grounds for removal more\nthan 30 days prior to his notice of removal.\n Accordingly, the district court did not abuse its discretion\nin determining that DuSablon lacked an objectively reasona-\nble basis to remove the case to federal court.\n Finally, JCB requests an award of costs and fees incurred\nin defending this appeal.1 “[L]itigants who receive an award\nof fees in the district court under § 1447(c) automatically re-\nceive reimbursement for the expense of defending that award\non appeal.” MB Fin., N.A. v. Stevens, 678 F.3d 497, 500 (7th Cir.\n2012). JCB is therefore “entitled to an award of ‘legal fees for\nthe cost of work reasonably performed in defense of the dis-\ntrict court’s decision.’” PNC Bank, 763 F.3d at 655 (quoting\nM.B. Fin., 678 F.3d at 500). JCB has fourteen days from the date\nof this decision to submit a statement of fees. DuSablon will\nhave fourteen days to respond.\n III. Conclusion\n We DISMISS the appeal of the district court’s remand or-\nder and AFFIRM its award of costs and fees.\n\n\n\n\n 1In its brief, JCB also requests fees under Federal Rule of Appellate\nProcedure 38. But JCB did not file a separate motion under Rule 38, so we\ndeny its request. See Vexol, S.A. de C.V. v. Berry Plastics Corp., 882 F.3d 633,\n638 (7th Cir. 2018) (denying request for sanctions where party did not sub-\nmit a “‘separately filed motion’” for sanctions) (quoting FED. R. APP. P. 38).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365383/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	BRENNAN	ST EVE	1	{"WOOD": ", Chief", "BRENNAN": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588130/	Published	1	0	0	2,019	2	[ { "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...
4,588,161		Jackson County Bank v. Mathew DuSablon	2019-02-06	18-2809	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2809\nJACKSON COUNTY BANK,\n Plaintiff-Appellee,\n v.\n\nMATHEW R. DUSABLON,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:18-cv-01346 — Sarah Evans Barker, Judge.\n ____________________\n\n ARGUED JANUARY 14, 2019 — DECIDED FEBRUARY 6, 2019\n ____________________\n\n Before WOOD, Chief Judge, and BRENNAN and ST. EVE, Cir-\ncuit Judges.\n ST. EVE, Circuit Judge. Jackson County Bank sued its former\nemployee, Mathew R. DuSablon, in Indiana state court, as-\nserting various state law claims, including theft of property\nand breach of contract. Following his unsuccessful motion to\ndismiss, DuSablon removed the case to federal court. The dis-\ntrict court remanded the case to state court for want of juris-\ndiction and untimely removal and further ordered DuSablon\n\f2 No. 18-2809\n\nto pay the costs and fees for the wrongful removal. DuSablon\nnow appeals the remand order and the district court’s impo-\nsition of sanctions. We dismiss the appeal of the district\ncourt’s remand order and aﬃrm its award of costs and fees.\n I. Background\n Jackson County Bank (“JCB”) is an Indiana state-chartered\nbank. Although not a registered broker-dealer, JCB had a\nthird-party agreement with INVEST Financial Corporation, a\nregistered broker-dealer, to offer securities to JCB customers.\n Mathew R. DuSablon, who resides in Indiana, began\nworking for JCB in 2007. In July 2017, JCB assigned DuSablon\nto assist the bank in identifying and establishing an invest-\nment business with a new third-party broker-dealer. DuSa-\nblon, however, failed to perform his job and abruptly re-\nsigned on January 8, 2018. JCB thereafter learned that DuSa-\nblon had transferred customers’ accounts from JCB’s former\nthird-party broker-dealer, INVEST, into his own name and\nhad started a business to compete with JCB.\n On February 28, 2018, JCB filed suit in Indiana state court,\nseeking a preliminary injunction and asserting state-law\nclaims against DuSablon, including violation of the Indiana\nUniform Trade Secrets Act, breach of contract, breach of fidu-\nciary duty, tortious interference, unfair competition, civil con-\nversion, and computer trespass. DuSablon moved to dismiss,\narguing with references to federal law that JCB is an unli-\ncensed broker-dealer and therefore lacks standing to enforce\nits rights in the information at issue; and that Financial Indus-\ntry Regulatory Authority, Inc. (“FINRA”) rules bar the suit.\nJCB responded that it had standing and is not subject to\nFINRA rules. The court denied the motion on April 20, 2018.\n\fNo. 18-2809 3\n\n Days later, on May 2, 2018, DuSablon removed this case to\nthe United States District Court for the Southern District of\nIndiana, asserting that the federal district court “has exclusive\njurisdiction pursuant to 15 U.S.C. § 78aa and the Securities\nand Exchange Act of 1934.” Acknowledging that JCB did not\nplead a federal claim, DuSablon contended that JCB’s re-\nsponse to his motion to dismiss in state court “raises a federal\nquestion as all of [JCB’s] claims against [DuSablon] rest upon\nthe legality of direct participation in the securities industry\nwhich is determined and regulated by the [Securities] Act.”\n On May 11, 2018, JCB moved to remand for lack of juris-\ndiction, and also argued, among other things, that DuSablon\nused the removal statute inappropriately to postpone prelim-\ninary injunction proceedings in state court and “run the\nclock” on his non-compete. The district court granted the mo-\ntion, concluding that it lacked jurisdiction and that the re-\nmoval was untimely. The district court accordingly remanded\nthe case to state court and additionally ordered DuSablon to\npay JCB costs and fees of $9,035.61 under 28 U.S.C. § 1447(c).\n II. Discussion\n DuSablon appeals the district court’s remand and sanc-\ntions orders. JCB, for its part, requests additional costs and\nfees under § 1447(c) for its defense of this appeal.\n DuSablon challenges the district court’s order remanding\nthis case to state court. But “[a]n order remanding a case to\nthe State court from which it was removed is not reviewable\non appeal or otherwise,” subject to exceptions not pertinent\nhere. 28 U.S.C. § 1447(d); see also PNC Bank, N.A. v. Spencer,\n763 F.3d 650 (7th Cir. 2014) (per curiam). We therefore dismiss\nthis aspect of DuSablon’s appeal for lack of jurisdiction. See\n\f4 No. 18-2809\n\nAdkins v. Illinois Cent. R.R. Co., 326 F.3d 828, 834 (7th Cir. 2003)\n(“[T]he rule of nonreviewability … in § 1447(d) means that\neven remands based on an erroneous belief in the lack of fed-\neral subject matter jurisdiction cannot be reviewed….”).\n DuSablon next challenges the district court’s award of\ncosts and fees to JCB pursuant to 28 U.S.C. § 1447(c). This we\ncan review. See, e.g., Garbie v. DaimlerChrysler Corp., 211 F.3d\n407, 409–10 (7th Cir. 2000) (holding that an appellate court has\njurisdiction to review sanctions under § 1447(c)). Under\n§ 1447(c), “‘[a]n order remanding a removed case to state\ncourt ‘may require payment of just costs and any actual ex-\npenses, including attorney fees, incurred as a result of the re-\nmoval.’” Martin v. Franklin Cap. Corp., 546 U.S. 132, 134 (2005)\n(quoting 28 U.S.C. § 1447(c)). A district court may award fees\nunder § 1447(c) where “the removing party lacked an ‘objec-\ntively reasonable basis’” for seeking removal. Wolf v. Kennelly,\n574 F.3d 406, 411 (7th Cir. 2009) (quoting Martin, 546 U.S. at\n141). Sanctions may be awarded when removal is clearly im-\nproper, id., but not necessarily frivolous, Martin, 546 U.S. at\n138–40 (further explaining the rationale for fee-shifting in ap-\npropriate cases).\n We review a district court’s decision to award sanctions\nfor abuse of discretion. See Wolf, 574 F.3d at 410. And here, we\nfind no abuse of discretion, as we agree that DuSablon lacked\nan objectively reasonable basis to remove this case to federal\ncourt. The impropriety of removal, as the district court ob-\nserved, was “not a close question.” JCB did not plead any fed-\neral claim nor is any federal question apparent from the face\nof its complaint. See Bastien v. AT&T Wireless Servs, Inc., 205\nF.3d 983, 986 (7th Cir. 2000). The complaint is based entirely\non state law and any potential federal defense cannot form the\n\fNo. 18-2809 5\n\nbasis for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386,\n392 (1987); Studer v. Katherine Shaw Bethea Hosp., 867 F.3d 721,\n723 (7th Cir. 2017).\n DuSablon nonetheless argues that JCB’s state law claims\ninvolve significant questions of federal securities laws. But\nDuSablon cannot manufacture a basis for removal by inject-\ning federal issues into a case under these circumstances. See\nPanther Brands, LLC v. Indy Racing League, LLC, 827 F.3d 586,\n589 (7th Cir. 2016) (holding in a breach of contract action that\nan allegation that a defendant violated federal statutes is in-\nsufficient to create subject-matter jurisdiction). This is partic-\nularly so because, as the district court observed, DuSablon\ncited no cases supporting his position nor attempted to apply\ncontrolling law, namely Grable & Sons Metal Prods., Inc. v. Da-\nrue Eng’r & Mfg., 545 U.S. 308, 314–15 (2005) (invoking federal\njurisdiction over state law claim to quiet title to property\nseized by federal government where the validity of the sei-\nzure was “the only legal or factual issue[] in the case”).\n Other considerations support the district court’s exercise\nof discretion. The first is the court’s finding that “DuSablon’s\nconduct in defending the motion to remand” suggested that\n“removal was undertaken at least in part to delay a resolution\nof the noncompete issues to his benefit and to allow for a sec-\nond bite at the apple after losing his motion to dismiss in state\ncourt.” We see no clear error in this finding. The second con-\nsideration is the untimeliness of DuSablon’s removal. Despite\nhis claimed ignorance of the supposed substantial federal\nquestion until JCB responded to his motion to dismiss, DuSa-\nblon’s motion itself raised many issues of federal law. The dis-\ntrict court properly determined that DuSablon was or should\n\f6 No. 18-2809\n\nhave been aware of his asserted grounds for removal more\nthan 30 days prior to his notice of removal.\n Accordingly, the district court did not abuse its discretion\nin determining that DuSablon lacked an objectively reasona-\nble basis to remove the case to federal court.\n Finally, JCB requests an award of costs and fees incurred\nin defending this appeal.1 “[L]itigants who receive an award\nof fees in the district court under § 1447(c) automatically re-\nceive reimbursement for the expense of defending that award\non appeal.” MB Fin., N.A. v. Stevens, 678 F.3d 497, 500 (7th Cir.\n2012). JCB is therefore “entitled to an award of ‘legal fees for\nthe cost of work reasonably performed in defense of the dis-\ntrict court’s decision.’” PNC Bank, 763 F.3d at 655 (quoting\nM.B. Fin., 678 F.3d at 500). JCB has fourteen days from the date\nof this decision to submit a statement of fees. DuSablon will\nhave fourteen days to respond.\n III. Conclusion\n We DISMISS the appeal of the district court’s remand or-\nder and AFFIRM its award of costs and fees.\n\n\n\n\n 1In its brief, JCB also requests fees under Federal Rule of Appellate\nProcedure 38. But JCB did not file a separate motion under Rule 38, so we\ndeny its request. See Vexol, S.A. de C.V. v. Berry Plastics Corp., 882 F.3d 633,\n638 (7th Cir. 2018) (denying request for sanctions where party did not sub-\nmit a “‘separately filed motion’” for sanctions) (quoting FED. R. APP. P. 38).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365414/", "author_raw": "ST. EVE, Circuit Judge"}]}	WOOD	BRENNAN	ST EVE	1	{"WOOD": ", Chief", "BRENNAN": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588161/	Published	1	0	0	2,019	2	[ { "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...
4,588,398	UNITED STATES of America, Plaintiff-Appellee, v. Dandre MOODY, Defendant-Appellant.	United States v. Dandre Moody	2019-02-07	18-1837	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Ripple, Barrett", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1837\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDANDRE MOODY,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15-CR-350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019\n ____________________\n\n Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit\nJudges.\n BARRETT, Circuit Judge. Within two days of helping his\ncodefendants steal more than 100 guns from a train car, Dan-\ndre Moody sold 13 of them to anonymous buyers who tele-\nphoned him after they “heard about it.” He pleaded guilty to\npossessing a firearm as a felon, 18 U.S.C. § 922(g)(1); pos-\nsessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659,\nfor which he was sentenced to 93 months’ imprisonment.\n\f2 No. 18-1837\n\n Moody now appeals his sentence. He challenges, for the\nfirst time, a four-level guideline enhancement under U.S.S.G.\n§ 2K2.1(b)(5) for trafficking firearms to people he knew (or\nhad reason to know) were unlawful users or possessors.1\n We agree with Moody that the district court plainly erred\nby imposing this enhancement. Nothing in the record sug-\ngests that Moody had reason to believe that his buyers were\nunlawful gun users or possessors. By finding that Moody had\nsuch knowledge, the court plainly crossed the line that sepa-\nrates permissible commonsense inference from impermissible\nspeculation. We therefore vacate the judgment and remand\nfor further sentencing proceedings.\n I.\n One night in April 2015, Moody drove a train-theft crew\nto a railyard on the south side of Chicago. There, while part\n\n\n 1 Moody has abandoned a different argument: that the district court\nengaged in impermissible double-counting under U.S.S.G. § 2K2.1(b) by\napplying both the four-level trafficking enhancement and a four-level en-\nhancement for possessing a firearm in connection with another felony.\nMoody asked to incorporate by reference this argument from a codefend-\nant’s brief in an appeal that was not consolidated with this one. We need\nnot address this argument for two reasons. First, as Moody conceded in\nhis briefing, we rejected this double-counting theory from a codefendant’s\nappeal, United States v. Shelton, 905 F.3d 1026, 1035 (7th Cir. 2018), and\nMoody posits no grounds for overruling that decision. Second, because\nthis case was not consolidated with Shelton’s, Moody was not permitted\nto incorporate by reference his codefendant’s arguments. See Albrechtsen\nv. Bd. Of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 435–36 (7th Cir.\n2002) (“[A]ppellate briefs may not incorporate other documents by refer-\nence.”); see also Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 924\n(7th Cir. 2012) (rejecting defendants’ attempt to incorporate by reference\narguments in their prior district-court brief).\n\fNo. 18-1837 3\n\nof the crew broke into a parked train car and stole 111 guns,\nMoody waited, ready to drive away with any merchandise\nthat the crew might retrieve.\n Moody’s share of the loot was 13 guns. Within two days,\naccording to his uncontradicted testimony at his change-of-\nplea hearing, he sold them to different anonymous buyers\nwho phoned him after they had “heard about it.” Moody was\nnot asked follow-up questions on the record about the nature\nof “it,” and the presentence investigation report did nothing\nto further clarify what the callers had heard. Of the crew’s sto-\nlen guns, 33 were recovered before sentencing—17 at crime\nscenes. The sentencing record does not, however, tie Moody\nto any of the recovered guns. Moody pleaded guilty to pos-\nsessing a gun as a felon, possessing a stolen gun, and cargo\ntheft.\n Sentencing followed. The district court began the sentenc-\ning hearing by confirming that Moody had reviewed the\nPSR’s guidelines calculation (which included the enhance-\nment at issue here, but not any factual detail on that point)\nwith counsel, had filed no objections, and planned to make\nnone. The court calculated an advisory Guidelines range of\n121 to 151 months’ imprisonment. In doing so, it applied three\nenhancements from the 2016 Guidelines Manual, including a\nfour-level enhancement pursuant to 2K2.1(b)(5) because the\noffense involved trafficking in firearms. The court reasoned\nthat this enhancement applied because Moody had sold his\nshare of stolen guns “literally to anyone who called express-\ning an interest in getting” them, and the court presumed that\nat least several of these people would use them in future\ncrimes. The court said that this conduct posed a danger to the\n\f4 No. 18-1837\n\ncommunity because “many [of the guns] have been recovered\nin Chicago, many of them at crime scenes.” It continued:\n I know, Mr. Moody, that you don’t for a second\n believe that any of those folks were interested in\n lawfully possessing a firearm. There is abso-\n lutely no question that the people that were\n seeking to buy those firearms wanted those fire-\n arms to support other unlawful activity beyond\n their possession of the firearms. Whether it was\n drug trafficking, whether it was violent crime,\n whether it was burglary, robbery, that’s who\n buys guns that have been stolen off a train.\n The court sentenced Moody to a prison term of 93 months,\nwhich was below the advisory Guidelines range.\n II.\n Moody argues that the district court wrongly applied the\nfirearm-traﬃcking enhancement under U.S.S.G. § 2K2.1(b)(5).\nHe maintains that the government did not provide suﬃcient\nevidence that he had reason to believe that 2 or more of the 13\nbuyers either were legally barred from firearm possession (by\nvirtue of a prior conviction for, say, a crime of violence like\naggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2)), or\nwould use the guns in other crimes. Based on this record, he\ncontends, someone in his shoes could at most reasonably\nthink only that the callers wished to make an unlawful pur-\nchase but not that they were otherwise barred from firearm\npossession or would use the guns unlawfully.\n Before tackling the merits of Moody’s argument, we must\naddress a threshold issue: the parties’ dispute about whether\nMoody’s failure to object in the district court to this\n\fNo. 18-1837 5\n\nenhancement means that he “waived” or merely “forfeited”\nthis argument. Whether a defendant had reason to know of a\ngun-buyer’s nefarious purpose is the kind of factual question\nwe review for clear error if the issue is preserved. United States\nv. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). But the even more\ndeferential standard of plain-error review applies when an\nobjection has been forfeited, and no review is available when\nit has been waived. United States v. Oliver, 873 F.3d 601, 607\n(7th Cir. 2017). An issue is waived when a defendant inten-\ntionally relinquishes a known right; it is merely forfeited\nwhen a defendant neglects to timely object. Id.\n Here, the better view is that Moody forfeited rather than\nwaived the objection. “The touchstone of waiver is a knowing\nand intentional decision.” United States v. Jaimes-Jaimes, 406\nF.3d 845, 848 (7th Cir. 2005). If the government cannot proffer\nany strategic justification for a defendant’s omission, we will\npresume an inadvertent forfeiture rather than an intentional\nrelinquishment. Oliver, 873 F.3d at 607; cf. United States v.\nYoung, 908 F.3d 241, 246–47 (7th Cir. 2018). No one has pro-\nposed a strategic reason for Moody to have bypassed a chal-\nlenge to a four-level enhancement. Thus, the claim is forfeited,\nand we will review the district court’s decision for plain-error.\nOliver, 873 F.3d at 607.\n Under the plain-error standard, Moody must show that\nthe error is not subject to reasonable dispute, that it affected\nhis substantial rights, and that it diminished the fairness, in-\ntegrity, or reputation of the judicial proceedings. Id.; Molina-\nMartinez v. United States, 136 S. Ct. 1338, 1343 (2016); Fed. R.\nCrim. P. 52(b). Although that standard is demanding, Moody\nmeets it.\n\f6 No. 18-1837\n\n U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defend-\nant’s offense level by four for the “trafficking” of firearms. As\nrelevant here, this means that the defendant “knew or had\nreason to believe” that, for at least two guns, the recipient in-\ntended to use the weapon in a further crime or was already a\nperson prohibited, by federal law on specified grounds, from\npossessing guns. U.S.S.G. § 2K2.1 n.13(A). A “person prohib-\nited” is narrowly defined as someone “whose possession or\nreceipt of the firearm would be unlawful.” Id. Such a person\n“(i) has a prior conviction for a crime of violence, a controlled\nsubstance offense, or a misdemeanor crime of domestic vio-\nlence; or (ii) at the time of the offense was under a criminal justice\nsentence, including probation, parole, supervised release, im-\nprisonment, work release, or escape status.” Id. at n.13(B) (em-\nphasis added). The government bears the burden of proving\nby a preponderance of the evidence that this enhancement is\nwarranted. United States v. Johnson, 743 F.3d 196, 201 (7th Cir.\n2014).\n Moody attacks as impermissibly speculative the district\ncourt’s conclusion that he had reason to believe that his buy-\ners were barred from gun possession or that they intended to\nuse the guns in crimes. In his view, the court assumed that the\ncallers had heard about the train theft and were seeking to\nbuy guns that they knew were stolen. And from that premise,\nthe court inferred that the callers planned to use these guns in\nother crimes, and, further, that Moody had reason to know it.\nThe PSR and sentencing memoranda, meanwhile, offered no\nsubstantiation for this chain of inferences.\n The government counters that while Moody did not know\nhis buyers’ identities, he surely knew that they were in the\nmarket for stolen guns. Common sense, the government adds,\n\fNo. 18-1837 7\n\nwould say that few, if any, of these 13 anonymous buyers of\nstolen guns would be permitted by federal law to possess\nguns generally.\n But the only evidence that the government offered on this\npoint is Moody’s remark that he sold his share of the guns to\n“different people who heard about it.” But what “it” refers to\nis impossible to discern from the record. “It” might refer to\nthe train heist, or “it” might refer to a bunch of guns (which\nmay or may not be stolen) available for an off-the-books sale.\nIf “it” merely refers to a load of guns for sale, then Moody’s\nstatement simply establishes that he possessed stolen fire-\narms. But that criminal act is already accounted for by his con-\nviction for possessing a stolen firearm and does not justify the\nenhancement. See 18 U.S.C. § 922(g)(1). And the anonymous\nparticipants’ interest in off-the-books gun sales might have\ngiven Moody reason to believe that their purchases were un-\nlawful, but not that their possession or use of the guns is un-\nlawful. As Moody emphasizes, those who purchase guns un-\nlawfully do not necessarily fall into the prohibited category\ndefined by U.S.S.G. § 2K2.1(b)(5). For example, Lori Shelton,\na lawful gun-owner identified in a codefendant’s sentencing\nrecord, bought firearms from the heist. Shelton carried a valid\nfirearm license and intended to give the guns to her adult chil-\ndren once they, too, obtained licenses. The government cor-\nrectly notes that Shelton’s intentional purchase of stolen prop-\nerty was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but\nthis did not make her a prohibited person under U.S.S.G. §\n2K2.1 n.13(B).\n Moody’s case thus stands in contrast to those in which the\nseller knew something more about the buyers than that they\nwere in the market for a gun. See, e.g., United States v.\n\f8 No. 18-1837\n\nRodriguez, 884 F.3d 679, 679–81 (7th Cir. 2018) (upholding en-\nhancement where defendant and recipient discussed using\nguns unlawfully); United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001) (reasoning that it would be “naïve” to conclude\nthat Jemison had no reason to think guns he sold to a gang\nwould be used to commit other felonies; “the public [is] not\nblissfully ignorant of the connection between criminal vio-\nlence and street gangs”). Indeed, Moody’s case also stands in\ncontrast to that of his codefendants because in their case, the\ngovernment introduced evidence that they knew specific\nbuyers were prohibited persons.2 His case is more like United\nStates v. Green, 360 F. App’x. 521, 522–25 (5th Cir. 2010) (non-\nprecedential disposition), in which the Fifth Circuit rejected\nthe enhancement for a defendant who smuggled five guns to\ntwo people in Mexico. The enhancement was based on the\ndistrict court’s supposition that guns in Mexico are predomi-\nnantly used by drug-trafficking organizations. The Fifth Cir-\ncuit held that this supposition was too big a leap. Id. at 525.\n In short, the government’s evidence that Moody sold guns\nto “different people who heard about it” is an insufficient ba-\nsis for concluding that Moody sold guns to 2 or more people\nwho satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A).\nIn concluding otherwise, the district court relied on a series of\ninferences that were plainly too speculative to support a\n\n\n 2 We might feel differently about this case if the government had pre-\nsented more evidence (e.g., if the government had shown that Moody’s\nbuyers were connected to him and his train heist). But it is not clear from\nthe record—not even the presentence investigation report or the govern-\nment’s sentencing memo—what Moody knew or had reason to know\nabout who his buyers were or why they wanted guns, beyond his admis-\nsion that his callers had “heard about it.”\n\fNo. 18-1837 9\n\nfinding by a preponderance of the evidence. We therefore\nagree with Moody that the enhancement was plainly im-\nproper.\n In so holding, we are mindful that our precedents allow a\ndistrict court great leeway to make commonsense inferences.\nSee, e.g., United States v. Gilmore, 60 F.3d 392, 393–94 (7th Cir.\n1995); see also United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001). In Gilmore, we held that a district court did not\nerr by inferring that the defendant had reason to believe the\nguns he “lost” would be used unlawfully, even though the\nonly evidence was that one of the guns was found at a crime\nscene and Gilmore (the original gunowner) did not know the\nidentities of the new owners. 60 F.3d at 394. But in Moody’s\ncase, no such inference is available. Although 17 of the crew’s\n111 firearms were found at crime scenes, no evidence ties any\nof the guns found at crime scenes to those sold by Moody.\nBecause the inferential leap required by common sense is too\ngreat here, the government has not met its burden of proof.\n Of course, this error is not reversible simply because it is\nplain—we must also conclude that it affected Moody’s sub-\nstantial rights and diminished the fairness, integrity, or repu-\ntation of the judicial proceedings. The Supreme Court has re-\npeatedly emphasized that when an unpreserved guideline er-\nror is plain, it typically affects both fundamental rights and\nfairness by setting an incorrect range for the probable sen-\ntence. See generally Molina-Martinez v. United States, 136 S. Ct.\n1338 (2016); Rosales-Mireles v. United States, 138 S. Ct. 1897\n(2018). That is true here. The district court gave no indication\nthat it chose a sentence “irrespective of the Guidelines range.”\nMolina-Martinez, 136 S. Ct. at 1346. And without the enhance-\nment, Moody’s advisory Guidelines range would drop from\n\f10 No. 18-1837\n\n121–151 months to 78–97 months. Because the district court’s\ncurrent 93-month sentence was designed to fall below the\nrange the judge had calculated, we cannot be confident that\nthe court would have been unwilling to go even lower.\n None of this is to say that Moody is assured a lighter sen-\ntence on remand. Perhaps a revised PSR or other evidence\nwill cure any ambiguity. And even if the gun-traﬃcking\nguideline does not apply, the district court may consider\nwhether, as a matter of the sentencing factors under 18 U.S.C.\n§ 3553(a), Moody’s blindness to his buyers’ identities makes it\nreasonable to refrain from going any lower. These possibili-\nties are for the district court to consider in the first instance.\n III.\n The judgment of the district court is VACATED and\nREMANDED for further proceedings consistent with this de-\ncision.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365651/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	RIPPLE	BARRETT	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588398/	Published	1	0	0	2,019	2	[ { "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...
4,588,427		United States v. Dandre Moody	2019-02-07	18-1837	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1837\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDANDRE MOODY,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15-CR-350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019\n ____________________\n\n Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit\nJudges.\n BARRETT, Circuit Judge. Within two days of helping his\ncodefendants steal more than 100 guns from a train car, Dan-\ndre Moody sold 13 of them to anonymous buyers who tele-\nphoned him after they “heard about it.” He pleaded guilty to\npossessing a firearm as a felon, 18 U.S.C. § 922(g)(1); pos-\nsessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659,\nfor which he was sentenced to 93 months’ imprisonment.\n\f2 No. 18-1837\n\n Moody now appeals his sentence. He challenges, for the\nfirst time, a four-level guideline enhancement under U.S.S.G.\n§ 2K2.1(b)(5) for trafficking firearms to people he knew (or\nhad reason to know) were unlawful users or possessors.1\n We agree with Moody that the district court plainly erred\nby imposing this enhancement. Nothing in the record sug-\ngests that Moody had reason to believe that his buyers were\nunlawful gun users or possessors. By finding that Moody had\nsuch knowledge, the court plainly crossed the line that sepa-\nrates permissible commonsense inference from impermissible\nspeculation. We therefore vacate the judgment and remand\nfor further sentencing proceedings.\n I.\n One night in April 2015, Moody drove a train-theft crew\nto a railyard on the south side of Chicago. There, while part\n\n\n 1 Moody has abandoned a different argument: that the district court\nengaged in impermissible double-counting under U.S.S.G. § 2K2.1(b) by\napplying both the four-level trafficking enhancement and a four-level en-\nhancement for possessing a firearm in connection with another felony.\nMoody asked to incorporate by reference this argument from a codefend-\nant’s brief in an appeal that was not consolidated with this one. We need\nnot address this argument for two reasons. First, as Moody conceded in\nhis briefing, we rejected this double-counting theory from a codefendant’s\nappeal, United States v. Shelton, 905 F.3d 1026, 1035 (7th Cir. 2018), and\nMoody posits no grounds for overruling that decision. Second, because\nthis case was not consolidated with Shelton’s, Moody was not permitted\nto incorporate by reference his codefendant’s arguments. See Albrechtsen\nv. Bd. Of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 435–36 (7th Cir.\n2002) (“[A]ppellate briefs may not incorporate other documents by refer-\nence.”); see also Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 924\n(7th Cir. 2012) (rejecting defendants’ attempt to incorporate by reference\narguments in their prior district-court brief).\n\fNo. 18-1837 3\n\nof the crew broke into a parked train car and stole 111 guns,\nMoody waited, ready to drive away with any merchandise\nthat the crew might retrieve.\n Moody’s share of the loot was 13 guns. Within two days,\naccording to his uncontradicted testimony at his change-of-\nplea hearing, he sold them to different anonymous buyers\nwho phoned him after they had “heard about it.” Moody was\nnot asked follow-up questions on the record about the nature\nof “it,” and the presentence investigation report did nothing\nto further clarify what the callers had heard. Of the crew’s sto-\nlen guns, 33 were recovered before sentencing—17 at crime\nscenes. The sentencing record does not, however, tie Moody\nto any of the recovered guns. Moody pleaded guilty to pos-\nsessing a gun as a felon, possessing a stolen gun, and cargo\ntheft.\n Sentencing followed. The district court began the sentenc-\ning hearing by confirming that Moody had reviewed the\nPSR’s guidelines calculation (which included the enhance-\nment at issue here, but not any factual detail on that point)\nwith counsel, had filed no objections, and planned to make\nnone. The court calculated an advisory Guidelines range of\n121 to 151 months’ imprisonment. In doing so, it applied three\nenhancements from the 2016 Guidelines Manual, including a\nfour-level enhancement pursuant to 2K2.1(b)(5) because the\noffense involved trafficking in firearms. The court reasoned\nthat this enhancement applied because Moody had sold his\nshare of stolen guns “literally to anyone who called express-\ning an interest in getting” them, and the court presumed that\nat least several of these people would use them in future\ncrimes. The court said that this conduct posed a danger to the\n\f4 No. 18-1837\n\ncommunity because “many [of the guns] have been recovered\nin Chicago, many of them at crime scenes.” It continued:\n I know, Mr. Moody, that you don’t for a second\n believe that any of those folks were interested in\n lawfully possessing a firearm. There is abso-\n lutely no question that the people that were\n seeking to buy those firearms wanted those fire-\n arms to support other unlawful activity beyond\n their possession of the firearms. Whether it was\n drug trafficking, whether it was violent crime,\n whether it was burglary, robbery, that’s who\n buys guns that have been stolen off a train.\n The court sentenced Moody to a prison term of 93 months,\nwhich was below the advisory Guidelines range.\n II.\n Moody argues that the district court wrongly applied the\nfirearm-traﬃcking enhancement under U.S.S.G. § 2K2.1(b)(5).\nHe maintains that the government did not provide suﬃcient\nevidence that he had reason to believe that 2 or more of the 13\nbuyers either were legally barred from firearm possession (by\nvirtue of a prior conviction for, say, a crime of violence like\naggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2)), or\nwould use the guns in other crimes. Based on this record, he\ncontends, someone in his shoes could at most reasonably\nthink only that the callers wished to make an unlawful pur-\nchase but not that they were otherwise barred from firearm\npossession or would use the guns unlawfully.\n Before tackling the merits of Moody’s argument, we must\naddress a threshold issue: the parties’ dispute about whether\nMoody’s failure to object in the district court to this\n\fNo. 18-1837 5\n\nenhancement means that he “waived” or merely “forfeited”\nthis argument. Whether a defendant had reason to know of a\ngun-buyer’s nefarious purpose is the kind of factual question\nwe review for clear error if the issue is preserved. United States\nv. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). But the even more\ndeferential standard of plain-error review applies when an\nobjection has been forfeited, and no review is available when\nit has been waived. United States v. Oliver, 873 F.3d 601, 607\n(7th Cir. 2017). An issue is waived when a defendant inten-\ntionally relinquishes a known right; it is merely forfeited\nwhen a defendant neglects to timely object. Id.\n Here, the better view is that Moody forfeited rather than\nwaived the objection. “The touchstone of waiver is a knowing\nand intentional decision.” United States v. Jaimes-Jaimes, 406\nF.3d 845, 848 (7th Cir. 2005). If the government cannot proffer\nany strategic justification for a defendant’s omission, we will\npresume an inadvertent forfeiture rather than an intentional\nrelinquishment. Oliver, 873 F.3d at 607; cf. United States v.\nYoung, 908 F.3d 241, 246–47 (7th Cir. 2018). No one has pro-\nposed a strategic reason for Moody to have bypassed a chal-\nlenge to a four-level enhancement. Thus, the claim is forfeited,\nand we will review the district court’s decision for plain-error.\nOliver, 873 F.3d at 607.\n Under the plain-error standard, Moody must show that\nthe error is not subject to reasonable dispute, that it affected\nhis substantial rights, and that it diminished the fairness, in-\ntegrity, or reputation of the judicial proceedings. Id.; Molina-\nMartinez v. United States, 136 S. Ct. 1338, 1343 (2016); Fed. R.\nCrim. P. 52(b). Although that standard is demanding, Moody\nmeets it.\n\f6 No. 18-1837\n\n U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defend-\nant’s offense level by four for the “trafficking” of firearms. As\nrelevant here, this means that the defendant “knew or had\nreason to believe” that, for at least two guns, the recipient in-\ntended to use the weapon in a further crime or was already a\nperson prohibited, by federal law on specified grounds, from\npossessing guns. U.S.S.G. § 2K2.1 n.13(A). A “person prohib-\nited” is narrowly defined as someone “whose possession or\nreceipt of the firearm would be unlawful.” Id. Such a person\n“(i) has a prior conviction for a crime of violence, a controlled\nsubstance offense, or a misdemeanor crime of domestic vio-\nlence; or (ii) at the time of the offense was under a criminal justice\nsentence, including probation, parole, supervised release, im-\nprisonment, work release, or escape status.” Id. at n.13(B) (em-\nphasis added). The government bears the burden of proving\nby a preponderance of the evidence that this enhancement is\nwarranted. United States v. Johnson, 743 F.3d 196, 201 (7th Cir.\n2014).\n Moody attacks as impermissibly speculative the district\ncourt’s conclusion that he had reason to believe that his buy-\ners were barred from gun possession or that they intended to\nuse the guns in crimes. In his view, the court assumed that the\ncallers had heard about the train theft and were seeking to\nbuy guns that they knew were stolen. And from that premise,\nthe court inferred that the callers planned to use these guns in\nother crimes, and, further, that Moody had reason to know it.\nThe PSR and sentencing memoranda, meanwhile, offered no\nsubstantiation for this chain of inferences.\n The government counters that while Moody did not know\nhis buyers’ identities, he surely knew that they were in the\nmarket for stolen guns. Common sense, the government adds,\n\fNo. 18-1837 7\n\nwould say that few, if any, of these 13 anonymous buyers of\nstolen guns would be permitted by federal law to possess\nguns generally.\n But the only evidence that the government offered on this\npoint is Moody’s remark that he sold his share of the guns to\n“different people who heard about it.” But what “it” refers to\nis impossible to discern from the record. “It” might refer to\nthe train heist, or “it” might refer to a bunch of guns (which\nmay or may not be stolen) available for an off-the-books sale.\nIf “it” merely refers to a load of guns for sale, then Moody’s\nstatement simply establishes that he possessed stolen fire-\narms. But that criminal act is already accounted for by his con-\nviction for possessing a stolen firearm and does not justify the\nenhancement. See 18 U.S.C. § 922(g)(1). And the anonymous\nparticipants’ interest in off-the-books gun sales might have\ngiven Moody reason to believe that their purchases were un-\nlawful, but not that their possession or use of the guns is un-\nlawful. As Moody emphasizes, those who purchase guns un-\nlawfully do not necessarily fall into the prohibited category\ndefined by U.S.S.G. § 2K2.1(b)(5). For example, Lori Shelton,\na lawful gun-owner identified in a codefendant’s sentencing\nrecord, bought firearms from the heist. Shelton carried a valid\nfirearm license and intended to give the guns to her adult chil-\ndren once they, too, obtained licenses. The government cor-\nrectly notes that Shelton’s intentional purchase of stolen prop-\nerty was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but\nthis did not make her a prohibited person under U.S.S.G. §\n2K2.1 n.13(B).\n Moody’s case thus stands in contrast to those in which the\nseller knew something more about the buyers than that they\nwere in the market for a gun. See, e.g., United States v.\n\f8 No. 18-1837\n\nRodriguez, 884 F.3d 679, 679–81 (7th Cir. 2018) (upholding en-\nhancement where defendant and recipient discussed using\nguns unlawfully); United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001) (reasoning that it would be “naïve” to conclude\nthat Jemison had no reason to think guns he sold to a gang\nwould be used to commit other felonies; “the public [is] not\nblissfully ignorant of the connection between criminal vio-\nlence and street gangs”). Indeed, Moody’s case also stands in\ncontrast to that of his codefendants because in their case, the\ngovernment introduced evidence that they knew specific\nbuyers were prohibited persons.2 His case is more like United\nStates v. Green, 360 F. App’x. 521, 522–25 (5th Cir. 2010) (non-\nprecedential disposition), in which the Fifth Circuit rejected\nthe enhancement for a defendant who smuggled five guns to\ntwo people in Mexico. The enhancement was based on the\ndistrict court’s supposition that guns in Mexico are predomi-\nnantly used by drug-trafficking organizations. The Fifth Cir-\ncuit held that this supposition was too big a leap. Id. at 525.\n In short, the government’s evidence that Moody sold guns\nto “different people who heard about it” is an insufficient ba-\nsis for concluding that Moody sold guns to 2 or more people\nwho satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A).\nIn concluding otherwise, the district court relied on a series of\ninferences that were plainly too speculative to support a\n\n\n 2 We might feel differently about this case if the government had pre-\nsented more evidence (e.g., if the government had shown that Moody’s\nbuyers were connected to him and his train heist). But it is not clear from\nthe record—not even the presentence investigation report or the govern-\nment’s sentencing memo—what Moody knew or had reason to know\nabout who his buyers were or why they wanted guns, beyond his admis-\nsion that his callers had “heard about it.”\n\fNo. 18-1837 9\n\nfinding by a preponderance of the evidence. We therefore\nagree with Moody that the enhancement was plainly im-\nproper.\n In so holding, we are mindful that our precedents allow a\ndistrict court great leeway to make commonsense inferences.\nSee, e.g., United States v. Gilmore, 60 F.3d 392, 393–94 (7th Cir.\n1995); see also United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001). In Gilmore, we held that a district court did not\nerr by inferring that the defendant had reason to believe the\nguns he “lost” would be used unlawfully, even though the\nonly evidence was that one of the guns was found at a crime\nscene and Gilmore (the original gunowner) did not know the\nidentities of the new owners. 60 F.3d at 394. But in Moody’s\ncase, no such inference is available. Although 17 of the crew’s\n111 firearms were found at crime scenes, no evidence ties any\nof the guns found at crime scenes to those sold by Moody.\nBecause the inferential leap required by common sense is too\ngreat here, the government has not met its burden of proof.\n Of course, this error is not reversible simply because it is\nplain—we must also conclude that it affected Moody’s sub-\nstantial rights and diminished the fairness, integrity, or repu-\ntation of the judicial proceedings. The Supreme Court has re-\npeatedly emphasized that when an unpreserved guideline er-\nror is plain, it typically affects both fundamental rights and\nfairness by setting an incorrect range for the probable sen-\ntence. See generally Molina-Martinez v. United States, 136 S. Ct.\n1338 (2016); Rosales-Mireles v. United States, 138 S. Ct. 1897\n(2018). That is true here. The district court gave no indication\nthat it chose a sentence “irrespective of the Guidelines range.”\nMolina-Martinez, 136 S. Ct. at 1346. And without the enhance-\nment, Moody’s advisory Guidelines range would drop from\n\f10 No. 18-1837\n\n121–151 months to 78–97 months. Because the district court’s\ncurrent 93-month sentence was designed to fall below the\nrange the judge had calculated, we cannot be confident that\nthe court would have been unwilling to go even lower.\n None of this is to say that Moody is assured a lighter sen-\ntence on remand. Perhaps a revised PSR or other evidence\nwill cure any ambiguity. And even if the gun-traﬃcking\nguideline does not apply, the district court may consider\nwhether, as a matter of the sentencing factors under 18 U.S.C.\n§ 3553(a), Moody’s blindness to his buyers’ identities makes it\nreasonable to refrain from going any lower. These possibili-\nties are for the district court to consider in the first instance.\n III.\n The judgment of the district court is VACATED and\nREMANDED for further proceedings consistent with this de-\ncision.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365680/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	RIPPLE	BARRETT	1	{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588427/	Published	1	0	0	2,019	2	[ { "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...
4,588,441		United States v. Travis Vaccaro	2019-02-07	18-1753	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1753 \nUNITED STATES OF AMERICA, \n Plaintiff‐Appellee, \n v. \n\nTRAVIS S. VACCARO, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Eastern District of Wisconsin. \n No. 17‐CR‐84‐JPS — J.P. Stadtmueller, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit \nJudges. \n BARRETT, Circuit Judge. Travis Vaccaro entered a condi‐\ntional guilty plea to possessing a firearm as a felon, 18 U.S.C. \n§ 922(g), preserving his right to appeal the denial of his mo‐\ntion to suppress the gun. Vaccaro contests both the pat‐down \nsearch that occurred seconds after police oﬃcers pulled over \nhis car and the search of the car that yielded the gun. The pat‐\ndown was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The \n\f2 No. 18‐1753 \n\nsweep of the car, which the district court upheld under Mich‐\nigan v. Long, 463 U.S. 1032 (1983), is a closer call, but we con‐\nclude that it too was permissible. Accordingly, we aﬃrm. \n Our summary of the facts is taken from an evidentiary \nhearing on Vaccaro’s motion to suppress. Milwaukee police \noﬃcers Aaron Frantal and Matthew Tracy stopped Vaccaro \nfor running a red light. Oﬃcer Frantal testified that Vaccaro \nstopped his car and made a “very ferocious move” by “bend‐\ning at the waist.” Vaccaro then leaned toward the passenger \nseat and “made another aggressive move with his entire top \ntorso and both arms into the back seat of the vehicle.” Oﬃcer \nTracy added that he saw Vaccaro “double over bending at the \nwaist” and then reach toward the passenger side of the car. \nOﬃcer Frantal testified that Vaccaro’s movements took under \nfive seconds. Afraid that Vaccaro might be trying to “gain con‐\ntrol of something from the back seat,” Oﬃcer Frantal drew his \ngun and ordered Vaccaro out of his car. The oﬃcers immedi‐\nately handcuﬀed Vaccaro, and Oﬃcer Frantal patted him \ndown. \n Meanwhile, Oﬃcer Tracy asked Vaccaro questions about \nhis movements. Vaccaro expressed frustration to the oﬃcers \nand mentioned that “people are trying to kill me.” Vaccaro \nalso said that he merely “took [his] coat oﬀ” when he pulled \nover. After saying that he was going to search the car, Oﬃcer \nTracy asked Vaccaro seven times whether there was a gun in \nthe car. Vaccaro responded once to reiterate that someone was \ntrying to kill him and another time to say “I don’t have any‐\nthing.” Oﬃcer Tracy added that Vaccaro appeared to be “ex‐\ntremely nervous” and in a “real amped‐up state,” which con‐\ntributed to the oﬃcer’s belief that Vaccaro was under the in‐\nfluence of drugs. \n\fNo. 18‐1753 3 \n\n As Oﬃcer Tracy questioned Vaccaro, Oﬃcer Frantal \nfound a GPS monitor on Vaccaro’s ankle. Vaccaro confirmed \nthat he was on supervision for “false imprisonment,” which \nthe oﬃcers understood to be a felony. Oﬃcer Frantal did not \ndiscover a weapon during the frisk. But both oﬃcers testified \nthat they noticed a rifle case in the backseat. Neither oﬃcer \nsaid anything, they testified, for fear of their safety; they did \nnot want to alert an “agitated” Vaccaro that they had seen the \ncase. \n The oﬃcers then locked Vaccaro, still handcuﬀed, in the \nbackseat of their squad car. Oﬃcer Frantal testified that Vac‐\ncaro “did not appear to be fully stable” as he was led to the \ncar. Oﬃcer Frantal called in the traﬃc violation to dispatch, \nwhich drew back‐up oﬃcers to the scene. \n Meanwhile, Oﬃcer Tracy returned to Vaccaro’s car and \nbegan searching the front seats. Oﬃcer Frantal then ap‐\nproached the vehicle. He soon remarked that he saw a rifle \ncase in the backseat. The oﬃcers then removed a coat on top \nof the rifle case and eventually confirmed that a rifle was in‐\nside it. \n The magistrate judge recommended that the district court \ndeny Vaccaro’s motion to suppress. She credited the oﬃcers’ \ntestimony that Vaccaro had made furtive movements because \nVaccaro had admitted to taking oﬀ his jacket; therefore, she \nsaid, the oﬃcers had reasonable suspicion to frisk Vaccaro for \nweapons. But she discredited the oﬃcers’ testimony that they \nhad seen a rifle case in the back of Vaccaro’s car before locking \nhim in the squad car. The legality of the search therefore de‐\npended on whether Vaccaro’s furtive gestures provided the \noﬃcers with reasonable suspicion to search the passenger \n\f4 No. 18‐1753 \n\ncompartment of the car in addition to Vaccaro’s person. She \nconcluded that they did. \n Vaccaro objected to the magistrate judge’s report and rec‐\nommendation, arguing that the immediate frisk was not jus‐\ntified by reasonable suspicion and that the search of the car \nwas not a lawful protective search under Long. The govern‐\nment argued that both the frisk and car search were reasona‐\nble. Vaccaro’s furtive movements justified the pat‐down \nsearch, the government said, and locking Vaccaro in the squad \ncar before the vehicle search enabled the oﬃcers to “avert[] a \ncalamitous and explosive event.” \n The district judge sided with the government and denied \nVaccaro’s motion to suppress. The judge accepted the magis‐\ntrate judge’s findings of fact and discredited the oﬃcers’ tes‐\ntimony that they had observed the rifle case in the backseat \nbefore they searched the car. But Vaccaro’s furtive movements \nprovided the oﬃcers with reasonable suspicion that he had \n“potentially armed himself or concealed a firearm,” which \nwarranted a protective frisk. The district judge also concluded \nthat the vehicle search was reasonable under Long. Although \nVaccaro was handcuﬀed and locked in a squad car during the \nsearch, he was not under arrest and could still be “dangerous” \nor gain “immediate access” to weapons. While the oﬃcers’ \n“stated bases for their suspicion of dangerousness … are \nfew,” the judge observed, he was “constrained” to find that \nthe oﬃcers had reasonable suspicion that Vaccaro was dan‐\ngerous based on his “furtive movements,” the “relatively \nlate” time of the stop, and the oﬃcers’ belief that Vaccaro was \non drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. \n2004), the judge further explained that, had “the traﬃc stop \nresulted only in the issuance of a citation for running a red \n\fNo. 18‐1753 5 \n\nlight, Vaccaro would have been permitted to re‐enter his ve‐\nhicle.” \n Vaccaro then conditionally pleaded guilty to knowingly \npossessing a firearm as a felon. 18 U.S.C. § 922(g). He ex‐\npressly reserved the right to challenge the denial of his motion \nto suppress. \n On appeal, Vaccaro renews his challenge to the pat‐down \nfrisk and to the search of his car. We review the district court’s \nunderlying factual findings for clear error, and we review de \nnovo the district court’s legal conclusions, including its deter‐\nminations of reasonable suspicion. See Ornelas v. United States, \n517 U.S. 690, 699 (1996); United States v. Ruiz, 785 F.3d 1134, \n1140–41 (7th Cir. 2015). \n Vaccaro contends that the district court mistakenly cred‐\nited the oﬃcers’ testimony that he made furtive movements \nbefore exiting his car. This argument can be dispatched \nquickly. Vaccaro protests that because the oﬃcers lied about \nseeing the rifle case before locking him in the squad car, they \nwere also incorrect (or untruthful) about his movements. But \nthe district court may credit all or part of a witness’s testi‐\nmony, especially when there is more than one permissible \nreading of the evidence. See United States v. McGraw, 571 F.3d \n624, 629 (7th Cir. 2009). And although Vaccaro maintains that \nthe oﬃcers’ views through the rear window were obstructed \nby the headrests and a temporary license card, the judge cred‐\nited the oﬃcers’ testimony about the movements they ob‐\nserved, bolstered by Vaccaro’s own admission that he took oﬀ \nhis coat when he was pulled over. In light of Vaccaro’s admis‐\nsion that he was indeed moving around, we are not left with \na “definite and firm conviction” that the district court mistak‐\nenly credited the oﬃcers’ testimony. See United States v. \n\f6 No. 18‐1753 \n\nThurman, 889 F.3d 356, 363–64 (7th Cir. 2018) (finding no clear \nerror when court faced with “he said versus they said” situa‐\ntion). \n Because Vaccaro cannot show that the district court clearly \nerred in finding that he made furtive movements before leav‐\ning the car, he cannot show that the pat‐down was unlawful. \nVaccaro’s movements, including bending forward at the waist \nand reaching toward the passenger and rear seats, reasonably \nsuggested that he could be reaching for or concealing a \nweapon. See United States v. Evans, 994 F.2d 317, 321 (7th Cir. \n1993); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985). \nMoreover, Vaccaro appeared to be “having diﬃculty with \nsomething that the oﬃcer could not see,” so the oﬃcers had \nreasonable suspicion to order him out of the car and to per‐\nform a pat‐down search. See United States v. Hendricks, 319 \nF.3d 993, 1004 (7th Cir. 2003). Vaccaro oﬀered an innocent ex‐\nplanation for his movements, but an oﬃcer need not be abso‐\nlutely certain that a suspect is armed before conducting a pro‐\ntective pat‐down. See Terry, 392 U.S. at 27; United States v. Ford, \n872 F.3d 412, 415 (7th Cir. 2017). \n Vaccaro also protests that the frisk was unreasonable be‐\ncause the oﬃcers handcuﬀed him unnecessarily. Handcuﬃng \na suspect during a pat‐down search for weapons should be \nthe rare case. See United States v. Smith, 3 F.3d 1088, 1094 (7th \nCir. 1993). But there is “a limited set of circumstances in which \nhandcuﬀs are appropriate without converting a Terry stop \ninto a full arrest,” and “[c]hief among them is oﬃcer safety \nand the possibility of the presence of a weapon.” Howell v. \nSmith, 853 F.3d 892, 898 (7th Cir. 2017). Based on the oﬃcers’ \nconcern that Vaccaro might have armed himself with a \n\fNo. 18‐1753 7 \n\nweapon when they observed his “aggressive” movements, \nhandcuﬃng him to conduct the frisk was reasonable. \n Vaccaro next argues that the district court should have \nsuppressed the rifle because the oﬃcers discovered it during \nan unlawful search of his car. The government asserts that \nMichigan v. Long justified the search. The Long exception to the \nwarrant requirement permits the police to search a vehicle \nwhen there are “genuine safety or evidentiary concerns.” Ar‐\nizona v. Gant, 556 U.S. 332, 347 (2009). Long holds: “[T]he \nsearch of the passenger compartment of an automobile, lim‐\nited to those areas in which a weapon may be placed or hid‐\nden, is permissible if the police oﬃcer possesses a reasonable \nbelief based on ‘specific and articulable facts which, taken to‐\ngether with the rational inferences from those facts, reasona‐\nbly warrant’ the oﬃcers in believing that the suspect is dan‐\ngerous and the suspect may gain immediate control of weap‐\nons.” 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 21). In ap‐\nplying this test, the key question is whether the search was \nreasonable. See United States v. Correa, 908 F.3d 208, 217 (7th \nCir. 2018). Long searches are grounded in concern for oﬃcer \nsafety, see 463 U.S. at 1050, so if that concern is not present, \nLong does not justify the search. See Gant, 556 U.S. at 338–39 \n(discussing how searches incident to arrest are not reasonable \nif concerns underlying exception to warrant requirement are \nabsent). \n Long’s first prong is satisfied here because the oﬃcers had \nreasonable suspicion to believe that Vaccaro was dangerous \nat the time they searched the car. In addition to Vaccaro’s fur‐\ntive movements, the oﬃcers suspected that Vaccaro was un‐\nder the influence of drugs, which gave them greater reason to \nfear for their safety. See Long, 463 U.S. at 1050; United States v. \n\f8 No. 18‐1753 \n\nKenerson, 585 F.3d 389, 392 (7th Cir. 2009). The oﬃcers also \ndiscovered that Vaccaro was on probation for “false impris‐\nonment,” and prior criminal activity is one factor that can con‐\ntribute to reasonable suspicion. See United States v. Johnson, \n427 F.3d 1053, 1057 (7th Cir. 2005). \n The second prong of the Long inquiry requires the govern‐\nment to establish that the oﬃcers reasonably suspected that \nVaccaro could gain “immediate control” of weapons in the ve‐\nhicle. See 463 U.S. at 1049–50; United States v. Stewart, 902 F.3d \n664, 674 (7th Cir. 2018). Vaccaro claims that he could not have \nimmediately obtained weapons because he was handcuﬀed \nand locked in the back of a squad car. He insists that this case \nis controlled by Arizona v. Gant, in which the Supreme Court \nheld that oﬃcer‐safety concerns did not justify a search inci‐\ndent to the arrest of a driver who had been handcuﬀed and \nlocked in the back seat of a squad car. 556 U.S. at 335. The \ngovernment, on the other hand, contends that Gant doesn’t \ngovern because Vaccaro wasn’t arrested. When a suspect is \nmerely detained, the government argues, United States v. Ar‐\nnold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir. \n2004). \n In Arnold, which we decided before Gant, the motorist \nmade furtive movements upon being stopped by police. 388 \nF.3d at 238. The oﬃcer asked him to step out of the vehicle, \npatted him down, and “placed [the motorist] in the back seat \nof the patrol car so that he could ensure that the traﬃc stop \nwas completed safely.” Id. The oﬃcer then decided to have \nthe car towed because the defendant had been driving with a \nlearner’s permit without a licensed driver. Id. Before towing \nthe vehicle, however, the oﬃcer searched it and discovered a \nfirearm. Id. at 238–39. We held that oﬃcer‐safety concerns \n\fNo. 18‐1753 9 \n\njustified the search under Long. Id. at 241. This was a traﬃc \nstop, not an arrest, and the oﬃcer “may have permitted [the \nmotorist] to gather items from the car before leaving the scene \neven if the oﬃcer would not have permitted him to drive the \nvehicle.” Id. We also noted that while the motorist was in the \nback seat of the squad car, he was not handcuﬀed and there‐\nfore “could have broken away from [the oﬃcer’s] control.” Id. \n At oral argument, we asked the government whether Gant \nlimited or overruled Arnold, and it maintained that Arnold is \nstill good law. We agree. In Arnold, it was reasonable to be‐\nlieve that the defendant, who was not under arrest, could \nhave regained access to his vehicle. See id. at 238, 241; see also \nGant, 556 U.S. at 352 (Scalia, J., concurring) (“In the no‐arrest \ncase, the possibility of access to weapons in the vehicle always \nexists, since the driver or passenger will be allowed to return \nto the vehicle when the interrogation is completed.”). In Gant, \nthe opposite was true: the defendants were not going to return \nto the vehicle because they were arrested, handcuﬀed, and \nlocked in squad cars. See 556 U.S. at 336–37, 344. The cases \ntherefore do not conflict: Arnold applies to Terry stops; Gant \napplies to arrests. \n Thus, if Vaccaro had been under arrest, Gant would con‐\ntrol. And if Vaccaro contended that he had been under arrest, \nwe would face the diﬃcult task of determining whether this \nTerry stop became an arrest. See, e.g., United States v. Bullock, \n632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not \nargue that the oﬃcers arrested him. To the contrary, he con‐\nceded at oral argument that he had been subjected to a Terry \nstop, not an arrest, and that he would have been allowed back \nto his vehicle at the conclusion of his brief detention if the \n\f10 No. 18‐1753 \n\noﬃcers had found no contraband.1 Vaccaro’s concession dic‐\ntates the disposition of this case. By admitting that he would \nhave been allowed to return to his car, Vaccaro conceded that \nhe could have gained “immediate control of weapons” inside \nthe vehicle. The search was therefore lawful under Long. 463 \nU.S. at 1049; Arnold, 388 F.3d at 241. \n The judgment of the district court is AFFIRMED. \n \n \n \n\n\n\n\n \n1 Vaccaro also conceded that he did not argue in the district court that his \n\ndetention amounted to an arrest, rather than a Terry stop.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365694/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	RIPPLE	BARRETT	1	{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588441/	Published	1	0	0	2,019	2	[ { "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...
4,588,443		United States v. Dandre Moody	2019-02-07	18-1837	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1837\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nDANDRE MOODY,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 15-CR-350 — John J. Tharp, Jr., Judge.\n ____________________\n\n ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019\n ____________________\n\n Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit\nJudges.\n BARRETT, Circuit Judge. Within two days of helping his\ncodefendants steal more than 100 guns from a train car, Dan-\ndre Moody sold 13 of them to anonymous buyers who tele-\nphoned him after they “heard about it.” He pleaded guilty to\npossessing a firearm as a felon, 18 U.S.C. § 922(g)(1); pos-\nsessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659,\nfor which he was sentenced to 93 months’ imprisonment.\n\f2 No. 18-1837\n\n Moody now appeals his sentence. He challenges, for the\nfirst time, a four-level guideline enhancement under U.S.S.G.\n§ 2K2.1(b)(5) for trafficking firearms to people he knew (or\nhad reason to know) were unlawful users or possessors.1\n We agree with Moody that the district court plainly erred\nby imposing this enhancement. Nothing in the record sug-\ngests that Moody had reason to believe that his buyers were\nunlawful gun users or possessors. By finding that Moody had\nsuch knowledge, the court plainly crossed the line that sepa-\nrates permissible commonsense inference from impermissible\nspeculation. We therefore vacate the judgment and remand\nfor further sentencing proceedings.\n I.\n One night in April 2015, Moody drove a train-theft crew\nto a railyard on the south side of Chicago. There, while part\n\n\n 1 Moody has abandoned a different argument: that the district court\nengaged in impermissible double-counting under U.S.S.G. § 2K2.1(b) by\napplying both the four-level trafficking enhancement and a four-level en-\nhancement for possessing a firearm in connection with another felony.\nMoody asked to incorporate by reference this argument from a codefend-\nant’s brief in an appeal that was not consolidated with this one. We need\nnot address this argument for two reasons. First, as Moody conceded in\nhis briefing, we rejected this double-counting theory from a codefendant’s\nappeal, United States v. Shelton, 905 F.3d 1026, 1035 (7th Cir. 2018), and\nMoody posits no grounds for overruling that decision. Second, because\nthis case was not consolidated with Shelton’s, Moody was not permitted\nto incorporate by reference his codefendant’s arguments. See Albrechtsen\nv. Bd. Of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 435–36 (7th Cir.\n2002) (“[A]ppellate briefs may not incorporate other documents by refer-\nence.”); see also Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 924\n(7th Cir. 2012) (rejecting defendants’ attempt to incorporate by reference\narguments in their prior district-court brief).\n\fNo. 18-1837 3\n\nof the crew broke into a parked train car and stole 111 guns,\nMoody waited, ready to drive away with any merchandise\nthat the crew might retrieve.\n Moody’s share of the loot was 13 guns. Within two days,\naccording to his uncontradicted testimony at his change-of-\nplea hearing, he sold them to different anonymous buyers\nwho phoned him after they had “heard about it.” Moody was\nnot asked follow-up questions on the record about the nature\nof “it,” and the presentence investigation report did nothing\nto further clarify what the callers had heard. Of the crew’s sto-\nlen guns, 33 were recovered before sentencing—17 at crime\nscenes. The sentencing record does not, however, tie Moody\nto any of the recovered guns. Moody pleaded guilty to pos-\nsessing a gun as a felon, possessing a stolen gun, and cargo\ntheft.\n Sentencing followed. The district court began the sentenc-\ning hearing by confirming that Moody had reviewed the\nPSR’s guidelines calculation (which included the enhance-\nment at issue here, but not any factual detail on that point)\nwith counsel, had filed no objections, and planned to make\nnone. The court calculated an advisory Guidelines range of\n121 to 151 months’ imprisonment. In doing so, it applied three\nenhancements from the 2016 Guidelines Manual, including a\nfour-level enhancement pursuant to 2K2.1(b)(5) because the\noffense involved trafficking in firearms. The court reasoned\nthat this enhancement applied because Moody had sold his\nshare of stolen guns “literally to anyone who called express-\ning an interest in getting” them, and the court presumed that\nat least several of these people would use them in future\ncrimes. The court said that this conduct posed a danger to the\n\f4 No. 18-1837\n\ncommunity because “many [of the guns] have been recovered\nin Chicago, many of them at crime scenes.” It continued:\n I know, Mr. Moody, that you don’t for a second\n believe that any of those folks were interested in\n lawfully possessing a firearm. There is abso-\n lutely no question that the people that were\n seeking to buy those firearms wanted those fire-\n arms to support other unlawful activity beyond\n their possession of the firearms. Whether it was\n drug trafficking, whether it was violent crime,\n whether it was burglary, robbery, that’s who\n buys guns that have been stolen off a train.\n The court sentenced Moody to a prison term of 93 months,\nwhich was below the advisory Guidelines range.\n II.\n Moody argues that the district court wrongly applied the\nfirearm-traﬃcking enhancement under U.S.S.G. § 2K2.1(b)(5).\nHe maintains that the government did not provide suﬃcient\nevidence that he had reason to believe that 2 or more of the 13\nbuyers either were legally barred from firearm possession (by\nvirtue of a prior conviction for, say, a crime of violence like\naggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2)), or\nwould use the guns in other crimes. Based on this record, he\ncontends, someone in his shoes could at most reasonably\nthink only that the callers wished to make an unlawful pur-\nchase but not that they were otherwise barred from firearm\npossession or would use the guns unlawfully.\n Before tackling the merits of Moody’s argument, we must\naddress a threshold issue: the parties’ dispute about whether\nMoody’s failure to object in the district court to this\n\fNo. 18-1837 5\n\nenhancement means that he “waived” or merely “forfeited”\nthis argument. Whether a defendant had reason to know of a\ngun-buyer’s nefarious purpose is the kind of factual question\nwe review for clear error if the issue is preserved. United States\nv. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). But the even more\ndeferential standard of plain-error review applies when an\nobjection has been forfeited, and no review is available when\nit has been waived. United States v. Oliver, 873 F.3d 601, 607\n(7th Cir. 2017). An issue is waived when a defendant inten-\ntionally relinquishes a known right; it is merely forfeited\nwhen a defendant neglects to timely object. Id.\n Here, the better view is that Moody forfeited rather than\nwaived the objection. “The touchstone of waiver is a knowing\nand intentional decision.” United States v. Jaimes-Jaimes, 406\nF.3d 845, 848 (7th Cir. 2005). If the government cannot proffer\nany strategic justification for a defendant’s omission, we will\npresume an inadvertent forfeiture rather than an intentional\nrelinquishment. Oliver, 873 F.3d at 607; cf. United States v.\nYoung, 908 F.3d 241, 246–47 (7th Cir. 2018). No one has pro-\nposed a strategic reason for Moody to have bypassed a chal-\nlenge to a four-level enhancement. Thus, the claim is forfeited,\nand we will review the district court’s decision for plain-error.\nOliver, 873 F.3d at 607.\n Under the plain-error standard, Moody must show that\nthe error is not subject to reasonable dispute, that it affected\nhis substantial rights, and that it diminished the fairness, in-\ntegrity, or reputation of the judicial proceedings. Id.; Molina-\nMartinez v. United States, 136 S. Ct. 1338, 1343 (2016); Fed. R.\nCrim. P. 52(b). Although that standard is demanding, Moody\nmeets it.\n\f6 No. 18-1837\n\n U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defend-\nant’s offense level by four for the “trafficking” of firearms. As\nrelevant here, this means that the defendant “knew or had\nreason to believe” that, for at least two guns, the recipient in-\ntended to use the weapon in a further crime or was already a\nperson prohibited, by federal law on specified grounds, from\npossessing guns. U.S.S.G. § 2K2.1 n.13(A). A “person prohib-\nited” is narrowly defined as someone “whose possession or\nreceipt of the firearm would be unlawful.” Id. Such a person\n“(i) has a prior conviction for a crime of violence, a controlled\nsubstance offense, or a misdemeanor crime of domestic vio-\nlence; or (ii) at the time of the offense was under a criminal justice\nsentence, including probation, parole, supervised release, im-\nprisonment, work release, or escape status.” Id. at n.13(B) (em-\nphasis added). The government bears the burden of proving\nby a preponderance of the evidence that this enhancement is\nwarranted. United States v. Johnson, 743 F.3d 196, 201 (7th Cir.\n2014).\n Moody attacks as impermissibly speculative the district\ncourt’s conclusion that he had reason to believe that his buy-\ners were barred from gun possession or that they intended to\nuse the guns in crimes. In his view, the court assumed that the\ncallers had heard about the train theft and were seeking to\nbuy guns that they knew were stolen. And from that premise,\nthe court inferred that the callers planned to use these guns in\nother crimes, and, further, that Moody had reason to know it.\nThe PSR and sentencing memoranda, meanwhile, offered no\nsubstantiation for this chain of inferences.\n The government counters that while Moody did not know\nhis buyers’ identities, he surely knew that they were in the\nmarket for stolen guns. Common sense, the government adds,\n\fNo. 18-1837 7\n\nwould say that few, if any, of these 13 anonymous buyers of\nstolen guns would be permitted by federal law to possess\nguns generally.\n But the only evidence that the government offered on this\npoint is Moody’s remark that he sold his share of the guns to\n“different people who heard about it.” But what “it” refers to\nis impossible to discern from the record. “It” might refer to\nthe train heist, or “it” might refer to a bunch of guns (which\nmay or may not be stolen) available for an off-the-books sale.\nIf “it” merely refers to a load of guns for sale, then Moody’s\nstatement simply establishes that he possessed stolen fire-\narms. But that criminal act is already accounted for by his con-\nviction for possessing a stolen firearm and does not justify the\nenhancement. See 18 U.S.C. § 922(g)(1). And the anonymous\nparticipants’ interest in off-the-books gun sales might have\ngiven Moody reason to believe that their purchases were un-\nlawful, but not that their possession or use of the guns is un-\nlawful. As Moody emphasizes, those who purchase guns un-\nlawfully do not necessarily fall into the prohibited category\ndefined by U.S.S.G. § 2K2.1(b)(5). For example, Lori Shelton,\na lawful gun-owner identified in a codefendant’s sentencing\nrecord, bought firearms from the heist. Shelton carried a valid\nfirearm license and intended to give the guns to her adult chil-\ndren once they, too, obtained licenses. The government cor-\nrectly notes that Shelton’s intentional purchase of stolen prop-\nerty was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but\nthis did not make her a prohibited person under U.S.S.G. §\n2K2.1 n.13(B).\n Moody’s case thus stands in contrast to those in which the\nseller knew something more about the buyers than that they\nwere in the market for a gun. See, e.g., United States v.\n\f8 No. 18-1837\n\nRodriguez, 884 F.3d 679, 679–81 (7th Cir. 2018) (upholding en-\nhancement where defendant and recipient discussed using\nguns unlawfully); United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001) (reasoning that it would be “naïve” to conclude\nthat Jemison had no reason to think guns he sold to a gang\nwould be used to commit other felonies; “the public [is] not\nblissfully ignorant of the connection between criminal vio-\nlence and street gangs”). Indeed, Moody’s case also stands in\ncontrast to that of his codefendants because in their case, the\ngovernment introduced evidence that they knew specific\nbuyers were prohibited persons.2 His case is more like United\nStates v. Green, 360 F. App’x. 521, 522–25 (5th Cir. 2010) (non-\nprecedential disposition), in which the Fifth Circuit rejected\nthe enhancement for a defendant who smuggled five guns to\ntwo people in Mexico. The enhancement was based on the\ndistrict court’s supposition that guns in Mexico are predomi-\nnantly used by drug-trafficking organizations. The Fifth Cir-\ncuit held that this supposition was too big a leap. Id. at 525.\n In short, the government’s evidence that Moody sold guns\nto “different people who heard about it” is an insufficient ba-\nsis for concluding that Moody sold guns to 2 or more people\nwho satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A).\nIn concluding otherwise, the district court relied on a series of\ninferences that were plainly too speculative to support a\n\n\n 2 We might feel differently about this case if the government had pre-\nsented more evidence (e.g., if the government had shown that Moody’s\nbuyers were connected to him and his train heist). But it is not clear from\nthe record—not even the presentence investigation report or the govern-\nment’s sentencing memo—what Moody knew or had reason to know\nabout who his buyers were or why they wanted guns, beyond his admis-\nsion that his callers had “heard about it.”\n\fNo. 18-1837 9\n\nfinding by a preponderance of the evidence. We therefore\nagree with Moody that the enhancement was plainly im-\nproper.\n In so holding, we are mindful that our precedents allow a\ndistrict court great leeway to make commonsense inferences.\nSee, e.g., United States v. Gilmore, 60 F.3d 392, 393–94 (7th Cir.\n1995); see also United States v. Jemison, 237 F.3d 911, 918\n(7th Cir. 2001). In Gilmore, we held that a district court did not\nerr by inferring that the defendant had reason to believe the\nguns he “lost” would be used unlawfully, even though the\nonly evidence was that one of the guns was found at a crime\nscene and Gilmore (the original gunowner) did not know the\nidentities of the new owners. 60 F.3d at 394. But in Moody’s\ncase, no such inference is available. Although 17 of the crew’s\n111 firearms were found at crime scenes, no evidence ties any\nof the guns found at crime scenes to those sold by Moody.\nBecause the inferential leap required by common sense is too\ngreat here, the government has not met its burden of proof.\n Of course, this error is not reversible simply because it is\nplain—we must also conclude that it affected Moody’s sub-\nstantial rights and diminished the fairness, integrity, or repu-\ntation of the judicial proceedings. The Supreme Court has re-\npeatedly emphasized that when an unpreserved guideline er-\nror is plain, it typically affects both fundamental rights and\nfairness by setting an incorrect range for the probable sen-\ntence. See generally Molina-Martinez v. United States, 136 S. Ct.\n1338 (2016); Rosales-Mireles v. United States, 138 S. Ct. 1897\n(2018). That is true here. The district court gave no indication\nthat it chose a sentence “irrespective of the Guidelines range.”\nMolina-Martinez, 136 S. Ct. at 1346. And without the enhance-\nment, Moody’s advisory Guidelines range would drop from\n\f10 No. 18-1837\n\n121–151 months to 78–97 months. Because the district court’s\ncurrent 93-month sentence was designed to fall below the\nrange the judge had calculated, we cannot be confident that\nthe court would have been unwilling to go even lower.\n None of this is to say that Moody is assured a lighter sen-\ntence on remand. Perhaps a revised PSR or other evidence\nwill cure any ambiguity. And even if the gun-traﬃcking\nguideline does not apply, the district court may consider\nwhether, as a matter of the sentencing factors under 18 U.S.C.\n§ 3553(a), Moody’s blindness to his buyers’ identities makes it\nreasonable to refrain from going any lower. These possibili-\nties are for the district court to consider in the first instance.\n III.\n The judgment of the district court is VACATED and\nREMANDED for further proceedings consistent with this de-\ncision.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365696/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	RIPPLE	BARRETT	1	{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588443/	Published	1	0	0	2,019	2	[ { "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...
4,588,515		United States v. Travis Vaccaro	2019-02-07	18-1753	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges.", "parties": "", "opinions": [{"author": "BARRETT, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐1753 \nUNITED STATES OF AMERICA, \n Plaintiff‐Appellee, \n v. \n\nTRAVIS S. VACCARO, \n Defendant‐Appellant. \n ____________________ \n\n Appeal from the United States District Court for the \n Eastern District of Wisconsin. \n No. 17‐CR‐84‐JPS — J.P. Stadtmueller, Judge. \n ____________________ \n\n ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019 \n ____________________ \n\n Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit \nJudges. \n BARRETT, Circuit Judge. Travis Vaccaro entered a condi‐\ntional guilty plea to possessing a firearm as a felon, 18 U.S.C. \n§ 922(g), preserving his right to appeal the denial of his mo‐\ntion to suppress the gun. Vaccaro contests both the pat‐down \nsearch that occurred seconds after police oﬃcers pulled over \nhis car and the search of the car that yielded the gun. The pat‐\ndown was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The \n\f2 No. 18‐1753 \n\nsweep of the car, which the district court upheld under Mich‐\nigan v. Long, 463 U.S. 1032 (1983), is a closer call, but we con‐\nclude that it too was permissible. Accordingly, we aﬃrm. \n Our summary of the facts is taken from an evidentiary \nhearing on Vaccaro’s motion to suppress. Milwaukee police \noﬃcers Aaron Frantal and Matthew Tracy stopped Vaccaro \nfor running a red light. Oﬃcer Frantal testified that Vaccaro \nstopped his car and made a “very ferocious move” by “bend‐\ning at the waist.” Vaccaro then leaned toward the passenger \nseat and “made another aggressive move with his entire top \ntorso and both arms into the back seat of the vehicle.” Oﬃcer \nTracy added that he saw Vaccaro “double over bending at the \nwaist” and then reach toward the passenger side of the car. \nOﬃcer Frantal testified that Vaccaro’s movements took under \nfive seconds. Afraid that Vaccaro might be trying to “gain con‐\ntrol of something from the back seat,” Oﬃcer Frantal drew his \ngun and ordered Vaccaro out of his car. The oﬃcers immedi‐\nately handcuﬀed Vaccaro, and Oﬃcer Frantal patted him \ndown. \n Meanwhile, Oﬃcer Tracy asked Vaccaro questions about \nhis movements. Vaccaro expressed frustration to the oﬃcers \nand mentioned that “people are trying to kill me.” Vaccaro \nalso said that he merely “took [his] coat oﬀ” when he pulled \nover. After saying that he was going to search the car, Oﬃcer \nTracy asked Vaccaro seven times whether there was a gun in \nthe car. Vaccaro responded once to reiterate that someone was \ntrying to kill him and another time to say “I don’t have any‐\nthing.” Oﬃcer Tracy added that Vaccaro appeared to be “ex‐\ntremely nervous” and in a “real amped‐up state,” which con‐\ntributed to the oﬃcer’s belief that Vaccaro was under the in‐\nfluence of drugs. \n\fNo. 18‐1753 3 \n\n As Oﬃcer Tracy questioned Vaccaro, Oﬃcer Frantal \nfound a GPS monitor on Vaccaro’s ankle. Vaccaro confirmed \nthat he was on supervision for “false imprisonment,” which \nthe oﬃcers understood to be a felony. Oﬃcer Frantal did not \ndiscover a weapon during the frisk. But both oﬃcers testified \nthat they noticed a rifle case in the backseat. Neither oﬃcer \nsaid anything, they testified, for fear of their safety; they did \nnot want to alert an “agitated” Vaccaro that they had seen the \ncase. \n The oﬃcers then locked Vaccaro, still handcuﬀed, in the \nbackseat of their squad car. Oﬃcer Frantal testified that Vac‐\ncaro “did not appear to be fully stable” as he was led to the \ncar. Oﬃcer Frantal called in the traﬃc violation to dispatch, \nwhich drew back‐up oﬃcers to the scene. \n Meanwhile, Oﬃcer Tracy returned to Vaccaro’s car and \nbegan searching the front seats. Oﬃcer Frantal then ap‐\nproached the vehicle. He soon remarked that he saw a rifle \ncase in the backseat. The oﬃcers then removed a coat on top \nof the rifle case and eventually confirmed that a rifle was in‐\nside it. \n The magistrate judge recommended that the district court \ndeny Vaccaro’s motion to suppress. She credited the oﬃcers’ \ntestimony that Vaccaro had made furtive movements because \nVaccaro had admitted to taking oﬀ his jacket; therefore, she \nsaid, the oﬃcers had reasonable suspicion to frisk Vaccaro for \nweapons. But she discredited the oﬃcers’ testimony that they \nhad seen a rifle case in the back of Vaccaro’s car before locking \nhim in the squad car. The legality of the search therefore de‐\npended on whether Vaccaro’s furtive gestures provided the \noﬃcers with reasonable suspicion to search the passenger \n\f4 No. 18‐1753 \n\ncompartment of the car in addition to Vaccaro’s person. She \nconcluded that they did. \n Vaccaro objected to the magistrate judge’s report and rec‐\nommendation, arguing that the immediate frisk was not jus‐\ntified by reasonable suspicion and that the search of the car \nwas not a lawful protective search under Long. The govern‐\nment argued that both the frisk and car search were reasona‐\nble. Vaccaro’s furtive movements justified the pat‐down \nsearch, the government said, and locking Vaccaro in the squad \ncar before the vehicle search enabled the oﬃcers to “avert[] a \ncalamitous and explosive event.” \n The district judge sided with the government and denied \nVaccaro’s motion to suppress. The judge accepted the magis‐\ntrate judge’s findings of fact and discredited the oﬃcers’ tes‐\ntimony that they had observed the rifle case in the backseat \nbefore they searched the car. But Vaccaro’s furtive movements \nprovided the oﬃcers with reasonable suspicion that he had \n“potentially armed himself or concealed a firearm,” which \nwarranted a protective frisk. The district judge also concluded \nthat the vehicle search was reasonable under Long. Although \nVaccaro was handcuﬀed and locked in a squad car during the \nsearch, he was not under arrest and could still be “dangerous” \nor gain “immediate access” to weapons. While the oﬃcers’ \n“stated bases for their suspicion of dangerousness … are \nfew,” the judge observed, he was “constrained” to find that \nthe oﬃcers had reasonable suspicion that Vaccaro was dan‐\ngerous based on his “furtive movements,” the “relatively \nlate” time of the stop, and the oﬃcers’ belief that Vaccaro was \non drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. \n2004), the judge further explained that, had “the traﬃc stop \nresulted only in the issuance of a citation for running a red \n\fNo. 18‐1753 5 \n\nlight, Vaccaro would have been permitted to re‐enter his ve‐\nhicle.” \n Vaccaro then conditionally pleaded guilty to knowingly \npossessing a firearm as a felon. 18 U.S.C. § 922(g). He ex‐\npressly reserved the right to challenge the denial of his motion \nto suppress. \n On appeal, Vaccaro renews his challenge to the pat‐down \nfrisk and to the search of his car. We review the district court’s \nunderlying factual findings for clear error, and we review de \nnovo the district court’s legal conclusions, including its deter‐\nminations of reasonable suspicion. See Ornelas v. United States, \n517 U.S. 690, 699 (1996); United States v. Ruiz, 785 F.3d 1134, \n1140–41 (7th Cir. 2015). \n Vaccaro contends that the district court mistakenly cred‐\nited the oﬃcers’ testimony that he made furtive movements \nbefore exiting his car. This argument can be dispatched \nquickly. Vaccaro protests that because the oﬃcers lied about \nseeing the rifle case before locking him in the squad car, they \nwere also incorrect (or untruthful) about his movements. But \nthe district court may credit all or part of a witness’s testi‐\nmony, especially when there is more than one permissible \nreading of the evidence. See United States v. McGraw, 571 F.3d \n624, 629 (7th Cir. 2009). And although Vaccaro maintains that \nthe oﬃcers’ views through the rear window were obstructed \nby the headrests and a temporary license card, the judge cred‐\nited the oﬃcers’ testimony about the movements they ob‐\nserved, bolstered by Vaccaro’s own admission that he took oﬀ \nhis coat when he was pulled over. In light of Vaccaro’s admis‐\nsion that he was indeed moving around, we are not left with \na “definite and firm conviction” that the district court mistak‐\nenly credited the oﬃcers’ testimony. See United States v. \n\f6 No. 18‐1753 \n\nThurman, 889 F.3d 356, 363–64 (7th Cir. 2018) (finding no clear \nerror when court faced with “he said versus they said” situa‐\ntion). \n Because Vaccaro cannot show that the district court clearly \nerred in finding that he made furtive movements before leav‐\ning the car, he cannot show that the pat‐down was unlawful. \nVaccaro’s movements, including bending forward at the waist \nand reaching toward the passenger and rear seats, reasonably \nsuggested that he could be reaching for or concealing a \nweapon. See United States v. Evans, 994 F.2d 317, 321 (7th Cir. \n1993); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985). \nMoreover, Vaccaro appeared to be “having diﬃculty with \nsomething that the oﬃcer could not see,” so the oﬃcers had \nreasonable suspicion to order him out of the car and to per‐\nform a pat‐down search. See United States v. Hendricks, 319 \nF.3d 993, 1004 (7th Cir. 2003). Vaccaro oﬀered an innocent ex‐\nplanation for his movements, but an oﬃcer need not be abso‐\nlutely certain that a suspect is armed before conducting a pro‐\ntective pat‐down. See Terry, 392 U.S. at 27; United States v. Ford, \n872 F.3d 412, 415 (7th Cir. 2017). \n Vaccaro also protests that the frisk was unreasonable be‐\ncause the oﬃcers handcuﬀed him unnecessarily. Handcuﬃng \na suspect during a pat‐down search for weapons should be \nthe rare case. See United States v. Smith, 3 F.3d 1088, 1094 (7th \nCir. 1993). But there is “a limited set of circumstances in which \nhandcuﬀs are appropriate without converting a Terry stop \ninto a full arrest,” and “[c]hief among them is oﬃcer safety \nand the possibility of the presence of a weapon.” Howell v. \nSmith, 853 F.3d 892, 898 (7th Cir. 2017). Based on the oﬃcers’ \nconcern that Vaccaro might have armed himself with a \n\fNo. 18‐1753 7 \n\nweapon when they observed his “aggressive” movements, \nhandcuﬃng him to conduct the frisk was reasonable. \n Vaccaro next argues that the district court should have \nsuppressed the rifle because the oﬃcers discovered it during \nan unlawful search of his car. The government asserts that \nMichigan v. Long justified the search. The Long exception to the \nwarrant requirement permits the police to search a vehicle \nwhen there are “genuine safety or evidentiary concerns.” Ar‐\nizona v. Gant, 556 U.S. 332, 347 (2009). Long holds: “[T]he \nsearch of the passenger compartment of an automobile, lim‐\nited to those areas in which a weapon may be placed or hid‐\nden, is permissible if the police oﬃcer possesses a reasonable \nbelief based on ‘specific and articulable facts which, taken to‐\ngether with the rational inferences from those facts, reasona‐\nbly warrant’ the oﬃcers in believing that the suspect is dan‐\ngerous and the suspect may gain immediate control of weap‐\nons.” 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 21). In ap‐\nplying this test, the key question is whether the search was \nreasonable. See United States v. Correa, 908 F.3d 208, 217 (7th \nCir. 2018). Long searches are grounded in concern for oﬃcer \nsafety, see 463 U.S. at 1050, so if that concern is not present, \nLong does not justify the search. See Gant, 556 U.S. at 338–39 \n(discussing how searches incident to arrest are not reasonable \nif concerns underlying exception to warrant requirement are \nabsent). \n Long’s first prong is satisfied here because the oﬃcers had \nreasonable suspicion to believe that Vaccaro was dangerous \nat the time they searched the car. In addition to Vaccaro’s fur‐\ntive movements, the oﬃcers suspected that Vaccaro was un‐\nder the influence of drugs, which gave them greater reason to \nfear for their safety. See Long, 463 U.S. at 1050; United States v. \n\f8 No. 18‐1753 \n\nKenerson, 585 F.3d 389, 392 (7th Cir. 2009). The oﬃcers also \ndiscovered that Vaccaro was on probation for “false impris‐\nonment,” and prior criminal activity is one factor that can con‐\ntribute to reasonable suspicion. See United States v. Johnson, \n427 F.3d 1053, 1057 (7th Cir. 2005). \n The second prong of the Long inquiry requires the govern‐\nment to establish that the oﬃcers reasonably suspected that \nVaccaro could gain “immediate control” of weapons in the ve‐\nhicle. See 463 U.S. at 1049–50; United States v. Stewart, 902 F.3d \n664, 674 (7th Cir. 2018). Vaccaro claims that he could not have \nimmediately obtained weapons because he was handcuﬀed \nand locked in the back of a squad car. He insists that this case \nis controlled by Arizona v. Gant, in which the Supreme Court \nheld that oﬃcer‐safety concerns did not justify a search inci‐\ndent to the arrest of a driver who had been handcuﬀed and \nlocked in the back seat of a squad car. 556 U.S. at 335. The \ngovernment, on the other hand, contends that Gant doesn’t \ngovern because Vaccaro wasn’t arrested. When a suspect is \nmerely detained, the government argues, United States v. Ar‐\nnold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir. \n2004). \n In Arnold, which we decided before Gant, the motorist \nmade furtive movements upon being stopped by police. 388 \nF.3d at 238. The oﬃcer asked him to step out of the vehicle, \npatted him down, and “placed [the motorist] in the back seat \nof the patrol car so that he could ensure that the traﬃc stop \nwas completed safely.” Id. The oﬃcer then decided to have \nthe car towed because the defendant had been driving with a \nlearner’s permit without a licensed driver. Id. Before towing \nthe vehicle, however, the oﬃcer searched it and discovered a \nfirearm. Id. at 238–39. We held that oﬃcer‐safety concerns \n\fNo. 18‐1753 9 \n\njustified the search under Long. Id. at 241. This was a traﬃc \nstop, not an arrest, and the oﬃcer “may have permitted [the \nmotorist] to gather items from the car before leaving the scene \neven if the oﬃcer would not have permitted him to drive the \nvehicle.” Id. We also noted that while the motorist was in the \nback seat of the squad car, he was not handcuﬀed and there‐\nfore “could have broken away from [the oﬃcer’s] control.” Id. \n At oral argument, we asked the government whether Gant \nlimited or overruled Arnold, and it maintained that Arnold is \nstill good law. We agree. In Arnold, it was reasonable to be‐\nlieve that the defendant, who was not under arrest, could \nhave regained access to his vehicle. See id. at 238, 241; see also \nGant, 556 U.S. at 352 (Scalia, J., concurring) (“In the no‐arrest \ncase, the possibility of access to weapons in the vehicle always \nexists, since the driver or passenger will be allowed to return \nto the vehicle when the interrogation is completed.”). In Gant, \nthe opposite was true: the defendants were not going to return \nto the vehicle because they were arrested, handcuﬀed, and \nlocked in squad cars. See 556 U.S. at 336–37, 344. The cases \ntherefore do not conflict: Arnold applies to Terry stops; Gant \napplies to arrests. \n Thus, if Vaccaro had been under arrest, Gant would con‐\ntrol. And if Vaccaro contended that he had been under arrest, \nwe would face the diﬃcult task of determining whether this \nTerry stop became an arrest. See, e.g., United States v. Bullock, \n632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not \nargue that the oﬃcers arrested him. To the contrary, he con‐\nceded at oral argument that he had been subjected to a Terry \nstop, not an arrest, and that he would have been allowed back \nto his vehicle at the conclusion of his brief detention if the \n\f10 No. 18‐1753 \n\noﬃcers had found no contraband.1 Vaccaro’s concession dic‐\ntates the disposition of this case. By admitting that he would \nhave been allowed to return to his car, Vaccaro conceded that \nhe could have gained “immediate control of weapons” inside \nthe vehicle. The search was therefore lawful under Long. 463 \nU.S. at 1049; Arnold, 388 F.3d at 241. \n The judgment of the district court is AFFIRMED. \n \n \n \n\n\n\n\n \n1 Vaccaro also conceded that he did not argue in the district court that his \n\ndetention amounted to an arrest, rather than a Terry stop.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365768/", "author_raw": "BARRETT, Circuit Judge"}]}	WOOD	RIPPLE	BARRETT	1	{"WOOD": ", Chief", "RIPPLE": ", Circuit", "BARRETT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588515/	Published	1	0	0	2,019	2	[ { "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...
4,588,517	UNITED STATES of America, Plaintiff-Appellee, v. Anastacia v. MACLIN, Defendant-Appellant.	United States v. Anastacia Maclin	2019-02-07	18-2158	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Kanne, Brennan", "parties": "", "opinions": [{"author": "William Joseph Bauer", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-2158\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nANASTACIA V. MACLIN,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Northern District of Indiana, Hammond Division.\n No. 2:16-cr-00179-PPS-JEM-1 — Philip P. Simon, Judge.\n\n\n\n ARGUED DECEMBER 4, 2018 — DECIDED FEBRUARY 7, 2019\n\n\n Before BAUER, KANNE, and BRENNAN, Circuit Judges.\n BAUER, Circuit Judge. After a jury found Anastacia Vann\nMaclin guilty of two counts of Medicaid theft she was sen-\ntenced to 15 months’ imprisonment. Maclin embezzled funds\nfrom Dr. Farzana Khan’s medical practice after being hired to\nhandle its electronic billing. Maclin raises two issues on appeal.\nFirst, is whether a comment by a prospective juror (“Prospec-\n\f2 No. 18-2158\n\ntive Juror No. 11”) that Dr. Khan had a “home for autism”\nrequired voir dire to be restarted with a new jury panel.\nSecond, is whether the district court properly applied a\nvulnerable victim sentence enhancement based on Dr. Khan’s\ncomputer illiteracy. For the following reasons, we affirm.\n I. BACKGROUND\n In January 2015, Dr. Khan hired Maclin to handle the\nbusiness side of Khan’s medical practice, Iliana Psychiatric\nAssociates (“Iliana”). In April 2015, Maclin used Dr. Khan’s\nusername and password to log into the Medicaid system to\nredirect Iliana’s Medicaid reimbursements from Dr. Khan’s\nChase business account to Maclin’s personal account at Centier\nBank, and changed the reimbursement method from paper\nchecks to electronic fund transfers. Maclin also enrolled Iliana\nin Medicaid’s electronic incentive program, against the wishes\nof Dr. Khan and without her knowledge, and caused a one-\ntime bonus of $21,250 intended for healthcare providers who\ndigitized their paperwork to be deposited in Maclin’s personal\naccount. In total, more than $80,000 was deposited into\nMaclin’s account from April 2015 through July 2016.\n Iliana’s tax preparer noticed the missing funds and in-\nformed Dr. Khan. With the help of another employee, Angela\nRuiz, Dr. Khan reached out to Medicaid to investigate. Since\nthe user information had been changed, it took Dr. Khan and\nRuiz several days to unlock the Medicaid account and discover\nthat the money had been diverted to Maclin’s personal\naccount. Dr. Khan fired Maclin and filed a police report. A\ngrand jury returned a two-count indictment against Maclin for\n\fNo. 18-2158 3\n\nstealing Medicaid reimbursements and the incentive check in\nviolation of 18 U.S.C. § 669.\n Before trial, Maclin filed a motion in limine to preclude the\ngovernment, or any of its witnesses, from mentioning that\nDr. Khan had an adult child with severe autism. The district\ncourt granted the motion in part, and directed the government\nto “sanitize” Dr. Khan’s family circumstances to avoid drawing\nparticular attention to her autistic son.\n During voir dire prospective jurors were asked whether\nthey knew any of the witnesses. The witness list included\nDr. Khan but did not indicate she was the victim in the case.\nTen jurors were chosen after each declared under oath that\nthey could be impartial and decide the case on the evidence\npresented. Prospective Juror No. 11 stated that she knew\nDr. Khan because she worked as the administrator of “plan-\nning and building” in Schererville. Prospective Juror No. 11\nstated that she “worked with [Dr. Khan] on developing her\nproperty. She has a home for autism.” Prospective Juror No. 11\nwas excused from the jury because she knew Dr. Khan. Two\nmore jurors were selected; both swore they could be impartial.\n At the end of voir dire, Maclin filed a motion for a mistrial.\nMaclin sought to restart voir dire with a new jury panel,\narguing that Prospective Juror No. 11's statement was prejudi-\ncial in light of the ruling on the motion in limine. The district\ncourt denied the motion and offered a curative instruction,\nwhich Maclin’s defense counsel declined.\n Prior to the trial the jury was instructed that their “first\nduty is to decide the facts from the evidence that you see and\nhear here in court” without letting “sympathy, prejudice, fear,\n\f4 No. 18-2158\n\nor public opinion influence you in any way.” The court told the\njury to base their verdict “exclusively on the law as I give it to\nyou and the evidence that was presented in the courtroom.”\nThe court gave similar instructions to the jury a second time,\nafter closing arguments, stating that “evidence includes only\nwhat the witnesses said when they were testifying under oath,\nthe exhibits that I allowed into evidence, and the stipulations\nthat the lawyers agreed to … . Nothing else is evidence.”\n The jury found Maclin guilty of both counts. Maclin again\nmoved for a mistrial, making the same arguments as her earlier\nmotion. The district court denied the motion concluding that\n“the fleeting remark, with little in the way of context or\nexplanation, could not possibly have had created such sympa-\nthy for Dr. Kahn as to have a prejudicial effect on the jury's\nverdict finding Maclin guilty.” United States v. Maclin, 2017 U.S.\nDist. LEXIS 208125, at *4 (N.D. Ind. Dec. 19, 2017).\n The Presentence Report recommended Maclin receive a\ntwo-level sentencing enhancement because Dr. Khan was a\n“vulnerable victim” on the basis of her computer illiteracy. At\nthe sentencing hearing Dr. Khan testified that she did not\nunderstand how to use a computer, did not bank electronically,\ndid not send her own e-mails, and did not even use ATMs.\nDr. Khan further testified that Maclin knew of her complete\ninability to use computers. Maclin objected to the enhancement\narguing that Dr. Khan was not vulnerable.\n The district court overruled the objection and applied the\nenhancement. The district court stated it had never seen\nanyone as technologically unsophisticated as Dr. Khan, and\nconcluded that this made her especially vulnerable to Maclin’s\n\fNo. 18-2158 5\n\ncomputer-based theft scheme. The court noted that the\nenhancement resulted in an advisory sentence of 15 to 21\nmonths, which overlapped with the 10 to 16 month range that\nwould have been recommended without the enhancement. The\ncourt found that Maclin had preyed on Dr. Khan and showed\nno contrition. The court also considered the fact that Maclin\nwas still paying restitution for a prior offense where she did\n“basically, the same thing to another physician.” The court\nimposed a 15-month sentence, noting that the sentence would\nhave been the same without the vulnerable victim enhance-\nment because “15 months captures about correctly the gravity\nof the case.”\n II. ANALYSIS\n Rule 33 authorizes the court to “vacate any judgment and\ngrant a new trial if the interest of justice so requires.” Fed. R.\nCrim. P. 33. The applicable standard under Rule 33 requires a\nnew trial “only if there is a reasonable possibility that the trial\nerror had a prejudicial effect on the jury's verdict.” United\nStates v. Flournoy, 842 F.3d 524, 530 (7th Cir. 2016). We review\nthe district court’s decision to deny motions for a mistrial and\nmotions for a new trial for abuses of discretion. See United\nStates v. Lawrence, 788 F.3d 234, 243 (7th Cir. 2015); Flournoy,\n842 F.3d at 528. “Each case must turn on its special facts, and in\neach case the crucial factor is the degree and pervasiveness of\nthe prejudicial influence possibly resulting from the jury's\nexposure to the extraneous material.” United States v. Wiesner,\n789 F.2d 1264, 1269 (7th Cir. 1986) (citing United States v.\nWeisman, 736 F.2d 421, 424 (7th Cir. 1984)).\n\f6 No. 18-2158\n\n Maclin relies extensively on Mach v. Stewart, 137 F.3d 630\n(9th Cir. 1998). In Mach, the defendant was on trial for sexually\nabusing a child. Id. at 631–32. The potential juror, a social\nworker, stated that every time her clients alleged sexual\nassault, the allegations were later confirmed to be true. Id. at\n632. The juror repeated the statement several times, and also\nstated that she had taken psychology courses and worked\nclosely with psychologists and psychiatrists. Id. The Ninth\nCircuit reversed the verdict based on the “nature of [the]\nstatements, the certainty with which they were delivered, the\nyears of experience that led to them, and the number of times\nthat they were repeated” and presumed “that at least one juror\nwas tainted and entered into jury deliberations with the\nconviction that children simply never lie about being sexually\nabused.” Id. at 633.\n This case could not be more different than Mach.\nProspective Juror No. 11 provided a vague factual statement\nabout Dr. Khan, not an opinion about the trustworthiness of\nany witness. Prospective Juror No. 11's statement did not\nimplicate Maclin’s guilt and was entirely unrelated to the\ncrimes Maclin was charged with. The statement was neither\nmaterial to an issue in the case, nor was it inflammatory in any\nway. It is implausible that the statement could have had a\nprejudicial effect on the jury’s verdict. The district court was\nnot required under these circumstances to empanel a new\nvenire. It was also not required to question each impaneled\njuror regarding their ability to be impartial given the nature of\nthe statement and the clear jury instructions given prior to trial\nand after the closing arguments.\n\fNo. 18-2158 7\n\n As to the vulnerable victim enhancement, the court found\nthat Dr. Khan was financially and technologically unsophisti-\ncated. This made her particularly vulnerable to Maclin’s\nscheme to use the electronic Medicaid billing system to divert\nfunds to her own personal account. Maclin argues that the\nrecord does not support the district court’s conclusion that\nDr. Khan was financially unsophisticated, and that Dr. Khan\nwas able to overcome any technological illiteracy by meeting\nwith people at her bank directly. Maclin relies heavily on\nUnited States v. Esterman, 324 F.3d 565, 573–74 (7th Cir. 2003).\nThere, this court found it was a clear error to apply a vulnera-\nble victim enhancement based solely on a victim’s limited\nEnglish proficiency, where the victim was financially sophisti-\ncated and monitored his finances through interpreters.\n A vulnerable victim is defined by the Guidelines as\n“someone who is unusually vulnerable due to age, physical or\nmental condition, or who is otherwise particularly susceptible\nto the criminal conduct.” U.S.S.G. § 3A1.1. We review the\ndistrict court’s application of the vulnerable victim enhance-\nment for clear error. Whether a victim is vulnerable “is the type\nof fact which the trial court is uniquely well-positioned to\nassess because the trial judge can observe the demeanor of the\ndefendant and witnesses and has an opportunity to review and\nanalyze each of the documents and exhibits and hear the\ntestimony while observing the mental, physical, and emotional\nstates of the victims in order to assist him with assessing the\ndamages inflicted upon them.” United States v. Christiansen, 594\nF.3d 571, 574 (7th Cir. 2010)(internal citations omitted). There\nmust be “some link between the vulnerability and the charac-\nteristic in question.” United States v. Lewis, 842 F.3d 467, 476\n\f8 No. 18-2158\n\n(7th Cir. 2016) (vulnerable victim enhancement warranted\nwhere defendant abused trust of victims who “lacked basic\ncomputer skills”); see also United States v. Sullivan, 765 F.3d\n712, 717 (7th Cir. 2014) (evidence supported enhancement\nbecause it showed the defendants targeted victims who were\nelderly and financially unsophisticated); United States v. Parolin,\n239 F.3d 922 (7th Cir. 2001) (vulnerable victim enhancement\nappropriate due to defendant’s knowledge of victims’ lack of\nfinancial sophistication).\n The district court found that Dr. Khan was remarkably\ncomputer illiterate. She did not “do e-mail” and her attempts\nto access computer systems routinely resulted in failure\nbecause she inadvertently triggered security mechanisms. The\ncourt noted that Dr. Khan “totally entrusted this to Ms. Maclin,\nthe operation of the financial side of her business, and\nMs. Maclin knew that.” Maclin used that knowledge to\ndefraud Dr. Khan using the electronic billing system. The\ndistrict court noted that Dr. Khan was intelligent, and that it\nwas a “close call” but concluded that “literally—in 15 years, I\nhave never seen somebody so technologically unsophisticated\nas this victim to the point where she literally has never\nused e-mail even. She doesn’t have the ability to check her\naccounts.”\n This Court held in Esterman that it was clear error by the\ndistrict court to “consider[] “the linguistic factor in isolation.”\nEsterman, 324 F.3d at 573–74. Esterman argued that the district\ncourt improperly ignored the victim’s “sophistication as a\nbusinessperson, his ability to communicate with the bank\nthrough an interpreter, his ability to dispatch deputies, and his\nfamiliarity with the legal system as evidenced by his filing of\n\fNo. 18-2158 9\n\ncriminal and civil complaints.” Id. Unlike in Esterman, the\ndistrict court here considered the mitigating factor that\nDr. Khan was generally an intelligent person, but found she\nwas so technologically illiterate that it made her particularly\nvulnerable to electronic billing fraud. While Dr. Khan could\nmeet in person at the bank to go over her accounts, had she\nbeen able to check her accounts electronically she would have\ndiscovered the fraud much sooner.\n Additionally, the district court noted the 15-month sentence\nwas within Guidelines range whether or not the vulnerable\nvictim enhancement was applied, and declared 15 months\nwould be the sentence “irrespective of how that decision fell\nout.” The court stated that the enhancement “wouldn’t have\nchanged my judgment on the case one way or the other”\nbecause “15 months captures about correctly the gravity of the\ncase” considering Maclin stole a substantial sum of money\nfrom Dr. Khan while still paying restitution for an almost\nidentical crime.\n “A district court facing a tricky but technical issue under\nthe Guidelines may exercise its discretion under section 3553(a)\nand may spell out on the record whether and to what extent\nthe resolution of the guideline issue affected the court's final\ndecision on the sentence.” United States v. Snyder, 865 F.3d 490,\n500 (7th Cir. 2017) (citing United States v. Lopez, 634 F.3d 948,\n954 (7th Cir. 2011)); see, e.g., United States v. Sanner, 565 F.3d\n400, 406 (7th Cir. 2009) (affirming an above-guideline sentence\nwithout regard for the correct resolution of guideline issue);\nUnited States v. Abbas, 560 F.3d 660, 666–67 (7th Cir. 2009)\n(holding a guideline error was harmless based on judge's\nexplanation of alternative basis for same sentence). We find no\n\f10 No. 18-2158\n\nerror in the district court’s application of the vulnerable victim\nenhancement and, regardless, any error would have been\nharmless.\n III. CONCLUSION\n The district court’s denial of the motions for mistrial, and\nthe district court’s sentencing, are hereby AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365770/", "author_raw": "William Joseph Bauer"}]}	BAUER	KANNE	BRENNAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588517/	Published	1	0	0	2,019	2	[ { "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...
4,588,518	Diane RHONE, Plaintiff-Appellee, v. MEDICAL BUSINESS BUREAU, LLC, Defendant-Appellant.	Diane Rhone v. Medical Business Bureau, LLC	2019-02-07	17-3408	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Rovner", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3408\nDIANE RHONE,\n Plaintiff-Appellee,\n\n v.\n\nMEDICAL BUSINESS BUREAU, LLC,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 C 5215 — Virginia M. Kendall, Judge.\n ____________________\n\n ARGUED SEPTEMBER 26, 2018 — DECIDED FEBRUARY 7, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. This case is about character—\nthe character of a debt. A debt collector must not make any\n“false representation” about “the character, amount, or legal\nstatus of any debt”. 15 U.S.C. §1692e(2)(A). A district court\nconcluded that a debt collector misrepresented a debt’s\n“character” by reporting to a credit bureau that the debtor\nhad nine unpaid bills of $60 rather than one of $540. We\n\f2 No. 17-3408\n\nhold, to the contrary, that arithmetic does not aﬀect a debt’s\n“character.” The statutory word “amount” rather than the\nword “character” is what governs reporting the debt’s size.\n Diane Rhone received physical therapy from Illinois\nBone and Joint Institute, which billed her $134 for each ses-\nsion. Insurance covered all but a $60 co-pay per session.\nRhone did not remit her part of the bills, however, and the\nInstitute turned to the Medical Business Bureau for debt col-\nlection. After three years of dunning legers did not work, the\nBureau reported to Equifax that Rhone owes nine debts of\n$60 each. That led to this suit, in which Rhone contends that\nthe Bureau had to report the aggregate debt of $540 rather\nthan nine $60 debts. Judge Der-Yeghiayan agreed with that\nsubmission. 2017 U.S. Dist. LEXIS 177800 (N.D. Ill. Oct. 25,\n2017). After he retired the case was assigned to Judge Ken-\ndall, who imposed a $1,000 penalty. 2018 U.S. Dist. LEXIS\n188433 (N.D. Ill. Apr. 27, 2018).\n The credit report was factually correct. Rhone incurred\nnine debts of $60 each. Judge Der-Yeghiayan did not explain\nwhy the diﬀerence between 1 × $540 and 9 × $60 misrepre-\nsents the “character” of a debt. Neither the district judge nor\nRhone oﬀered a deﬁnition of the word “character.” Asked at\noral argument whether a debt collector should report one\ndebt, or two, if a person buys two cars from a single dealer\nand does not pay for either car, Rhone’s lawyer replied: “It\nwould depend.” Counsel told us that a judge should consid-\ner “all the facts and circumstances” once litigation is under-\nway. Yet what a court (or for that mager a debt collector)\nneeds is a rule of law to apply to those facts and circum-\nstances. This is a statutory suit, not a common-law action.\nThe word “character” either requires aggregation of debts\n\fNo. 17-3408 3\n\narising from multiple transactions with a single entity, or it\ndoes not.\n The statute refers separately to the “character” and the\n“amount” of a debt. Rhone does not contend that the Bureau\nmisrepresented the “amount” of the debt by telling Equifax\nthat Rhone owes $60 for each of nine medical treatments. We\ncan imagine a regulation specifying whether debts to a sin-\ngle creditor should be aggregated (or perhaps reported both\nsingly and in the aggregate)—consistency contributes to clar-\nity—but Rhone does not point to such a regulation, nor\ncould we ﬁnd one. One beneﬁt of identifying each amount\nseparately is that a debtor then can identify exactly which\ntransactions are at issue. If the Bureau had reported one $540\ndebt, Rhone might well have asserted that the report was\nmisleading—after all, she does not owe $540 for any transac-\ntion. Per-transaction reporting also shows whether some of\nthe debts are stale (that is, whether the statute of limitations\nbars collection). Consumers and credit bureaus alike may\nﬁnd that information valuable.\n A search through decisions from this court and the other\ncourts of appeals did not turn up any discussing whether\naggregation (or not) of all amounts owed to a single creditor\nconcerns the “character” of a debt. Indeed, few decisions\ndiscuss the meaning of that word in any debt-related con-\ntext. In this circuit, Fields v. Wilbur Law Firm, P.C., 383 F.3d\n562 (7th Cir. 2004), holds that presenting a debt plus agor-\nneys’ fees as a single undiﬀerentiated sum misstates the\ndebt’s character, while Hahn v. Triumph Partnerships LLC, 557\nF.3d 755 (7th Cir. 2009), holds that combining principal and\ninterest does not do so. Agorneys’ fees diﬀer in character\nfrom the main debt, while interest does not. Elsewhere,\n\f4 No. 17-3408\n\nDonohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.\n2010), agrees with Hahn, while Miller v. Javitch, Block &\nRathbone, 561 F.3d 588, 592–94 (6th Cir. 2009), holds that de-\nscribing a debt as a loan rather than an account receivable\ndoes not misstate its character. None of these decisions holds\nor implies that it magers to a debt’s “character” whether\namounts due for individual purchases from a single mer-\nchant are stated separately or as a total.\n The absence of authoritative or even persuasive guidance\nleaves us on our own. To our ears, “character” sounds like a\nreference to the kind of obligation. (That is essentially how\nFields heard it, too.) A secured auto loan would be of one\ncharacter, an unsecured credit-card debt another, a judgment\ndebt a third, and a subordinated debenture (an instrument\njunior by contract) a fourth. Keeping these kinds of obliga-\ntion distinct reduces the potential for confusion about their\nnature and relative priority. But the number of transactions\nbetween a debtor and a single merchant does not aﬀect the\ngenesis, nature, or priority of the debt and so does not con-\ncern its character. The statute names “character, amount, or\nlegal status” as distinct agributes, and it would undercut this\ndisjunction to treat arithmetic as concerning the debt’s\n“character” rather than its “amount.”\n The district court’s opinion, and the parties’ briefs, de-\nvote considerable agention to whether the Bureau made a\nproper report of “tradelines.” This is a word that Equifax us-\nes in the conduct of its own business. It does not appear in\nthe statute or any relevant regulation. (The word “tradeline”\nor the phrase “trade line” appears four times in the Code of\nFederal Regulations. None of the regulations deﬁnes it, and\nnone concerns debt collectors’ reports to credit bureaus.)\n\fNo. 17-3408 5\n\nWhether Equifax has a grievance against Medical Business\nBureau—and whether Equifax oﬀers debtors some remedy if\ncreditors or debt collectors err in implementing Equifax’s\npolicies—are neither here nor there for our purposes.\nEquifax might have a duty to correct its report if an error\nwith respect to the number of tradelines aﬀects a consumer’s\ncredit rating. See 15 U.S.C. §1681i(a). But this suit rests on\n§1692e(2)(A), not on Equifax’s vocabulary.\n Medical Business Bureau did not misstate the “character”\nof Rhone’s debt to the Illinois Bone and Joint Institute, so the\njudgment of the district court is\n REVERSED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365771/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK	ROVNER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588518/	Published	1	0	0	2,019	2	[ { "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...
4,588,617		United States v. Anastacia Maclin	2019-02-07	18-2158	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, KANNE, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "William Joseph Bauer", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 18-2158\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\n\nANASTACIA V. MACLIN,\n Defendant-Appellant.\n\n\n Appeal from the United States District Court for the\n Northern District of Indiana, Hammond Division.\n No. 2:16-cr-00179-PPS-JEM-1 — Philip P. Simon, Judge.\n\n\n\n ARGUED DECEMBER 4, 2018 — DECIDED FEBRUARY 7, 2019\n\n\n Before BAUER, KANNE, and BRENNAN, Circuit Judges.\n BAUER, Circuit Judge. After a jury found Anastacia Vann\nMaclin guilty of two counts of Medicaid theft she was sen-\ntenced to 15 months’ imprisonment. Maclin embezzled funds\nfrom Dr. Farzana Khan’s medical practice after being hired to\nhandle its electronic billing. Maclin raises two issues on appeal.\nFirst, is whether a comment by a prospective juror (“Prospec-\n\f2 No. 18-2158\n\ntive Juror No. 11”) that Dr. Khan had a “home for autism”\nrequired voir dire to be restarted with a new jury panel.\nSecond, is whether the district court properly applied a\nvulnerable victim sentence enhancement based on Dr. Khan’s\ncomputer illiteracy. For the following reasons, we affirm.\n I. BACKGROUND\n In January 2015, Dr. Khan hired Maclin to handle the\nbusiness side of Khan’s medical practice, Iliana Psychiatric\nAssociates (“Iliana”). In April 2015, Maclin used Dr. Khan’s\nusername and password to log into the Medicaid system to\nredirect Iliana’s Medicaid reimbursements from Dr. Khan’s\nChase business account to Maclin’s personal account at Centier\nBank, and changed the reimbursement method from paper\nchecks to electronic fund transfers. Maclin also enrolled Iliana\nin Medicaid’s electronic incentive program, against the wishes\nof Dr. Khan and without her knowledge, and caused a one-\ntime bonus of $21,250 intended for healthcare providers who\ndigitized their paperwork to be deposited in Maclin’s personal\naccount. In total, more than $80,000 was deposited into\nMaclin’s account from April 2015 through July 2016.\n Iliana’s tax preparer noticed the missing funds and in-\nformed Dr. Khan. With the help of another employee, Angela\nRuiz, Dr. Khan reached out to Medicaid to investigate. Since\nthe user information had been changed, it took Dr. Khan and\nRuiz several days to unlock the Medicaid account and discover\nthat the money had been diverted to Maclin’s personal\naccount. Dr. Khan fired Maclin and filed a police report. A\ngrand jury returned a two-count indictment against Maclin for\n\fNo. 18-2158 3\n\nstealing Medicaid reimbursements and the incentive check in\nviolation of 18 U.S.C. § 669.\n Before trial, Maclin filed a motion in limine to preclude the\ngovernment, or any of its witnesses, from mentioning that\nDr. Khan had an adult child with severe autism. The district\ncourt granted the motion in part, and directed the government\nto “sanitize” Dr. Khan’s family circumstances to avoid drawing\nparticular attention to her autistic son.\n During voir dire prospective jurors were asked whether\nthey knew any of the witnesses. The witness list included\nDr. Khan but did not indicate she was the victim in the case.\nTen jurors were chosen after each declared under oath that\nthey could be impartial and decide the case on the evidence\npresented. Prospective Juror No. 11 stated that she knew\nDr. Khan because she worked as the administrator of “plan-\nning and building” in Schererville. Prospective Juror No. 11\nstated that she “worked with [Dr. Khan] on developing her\nproperty. She has a home for autism.” Prospective Juror No. 11\nwas excused from the jury because she knew Dr. Khan. Two\nmore jurors were selected; both swore they could be impartial.\n At the end of voir dire, Maclin filed a motion for a mistrial.\nMaclin sought to restart voir dire with a new jury panel,\narguing that Prospective Juror No. 11's statement was prejudi-\ncial in light of the ruling on the motion in limine. The district\ncourt denied the motion and offered a curative instruction,\nwhich Maclin’s defense counsel declined.\n Prior to the trial the jury was instructed that their “first\nduty is to decide the facts from the evidence that you see and\nhear here in court” without letting “sympathy, prejudice, fear,\n\f4 No. 18-2158\n\nor public opinion influence you in any way.” The court told the\njury to base their verdict “exclusively on the law as I give it to\nyou and the evidence that was presented in the courtroom.”\nThe court gave similar instructions to the jury a second time,\nafter closing arguments, stating that “evidence includes only\nwhat the witnesses said when they were testifying under oath,\nthe exhibits that I allowed into evidence, and the stipulations\nthat the lawyers agreed to … . Nothing else is evidence.”\n The jury found Maclin guilty of both counts. Maclin again\nmoved for a mistrial, making the same arguments as her earlier\nmotion. The district court denied the motion concluding that\n“the fleeting remark, with little in the way of context or\nexplanation, could not possibly have had created such sympa-\nthy for Dr. Kahn as to have a prejudicial effect on the jury's\nverdict finding Maclin guilty.” United States v. Maclin, 2017 U.S.\nDist. LEXIS 208125, at *4 (N.D. Ind. Dec. 19, 2017).\n The Presentence Report recommended Maclin receive a\ntwo-level sentencing enhancement because Dr. Khan was a\n“vulnerable victim” on the basis of her computer illiteracy. At\nthe sentencing hearing Dr. Khan testified that she did not\nunderstand how to use a computer, did not bank electronically,\ndid not send her own e-mails, and did not even use ATMs.\nDr. Khan further testified that Maclin knew of her complete\ninability to use computers. Maclin objected to the enhancement\narguing that Dr. Khan was not vulnerable.\n The district court overruled the objection and applied the\nenhancement. The district court stated it had never seen\nanyone as technologically unsophisticated as Dr. Khan, and\nconcluded that this made her especially vulnerable to Maclin’s\n\fNo. 18-2158 5\n\ncomputer-based theft scheme. The court noted that the\nenhancement resulted in an advisory sentence of 15 to 21\nmonths, which overlapped with the 10 to 16 month range that\nwould have been recommended without the enhancement. The\ncourt found that Maclin had preyed on Dr. Khan and showed\nno contrition. The court also considered the fact that Maclin\nwas still paying restitution for a prior offense where she did\n“basically, the same thing to another physician.” The court\nimposed a 15-month sentence, noting that the sentence would\nhave been the same without the vulnerable victim enhance-\nment because “15 months captures about correctly the gravity\nof the case.”\n II. ANALYSIS\n Rule 33 authorizes the court to “vacate any judgment and\ngrant a new trial if the interest of justice so requires.” Fed. R.\nCrim. P. 33. The applicable standard under Rule 33 requires a\nnew trial “only if there is a reasonable possibility that the trial\nerror had a prejudicial effect on the jury's verdict.” United\nStates v. Flournoy, 842 F.3d 524, 530 (7th Cir. 2016). We review\nthe district court’s decision to deny motions for a mistrial and\nmotions for a new trial for abuses of discretion. See United\nStates v. Lawrence, 788 F.3d 234, 243 (7th Cir. 2015); Flournoy,\n842 F.3d at 528. “Each case must turn on its special facts, and in\neach case the crucial factor is the degree and pervasiveness of\nthe prejudicial influence possibly resulting from the jury's\nexposure to the extraneous material.” United States v. Wiesner,\n789 F.2d 1264, 1269 (7th Cir. 1986) (citing United States v.\nWeisman, 736 F.2d 421, 424 (7th Cir. 1984)).\n\f6 No. 18-2158\n\n Maclin relies extensively on Mach v. Stewart, 137 F.3d 630\n(9th Cir. 1998). In Mach, the defendant was on trial for sexually\nabusing a child. Id. at 631–32. The potential juror, a social\nworker, stated that every time her clients alleged sexual\nassault, the allegations were later confirmed to be true. Id. at\n632. The juror repeated the statement several times, and also\nstated that she had taken psychology courses and worked\nclosely with psychologists and psychiatrists. Id. The Ninth\nCircuit reversed the verdict based on the “nature of [the]\nstatements, the certainty with which they were delivered, the\nyears of experience that led to them, and the number of times\nthat they were repeated” and presumed “that at least one juror\nwas tainted and entered into jury deliberations with the\nconviction that children simply never lie about being sexually\nabused.” Id. at 633.\n This case could not be more different than Mach.\nProspective Juror No. 11 provided a vague factual statement\nabout Dr. Khan, not an opinion about the trustworthiness of\nany witness. Prospective Juror No. 11's statement did not\nimplicate Maclin’s guilt and was entirely unrelated to the\ncrimes Maclin was charged with. The statement was neither\nmaterial to an issue in the case, nor was it inflammatory in any\nway. It is implausible that the statement could have had a\nprejudicial effect on the jury’s verdict. The district court was\nnot required under these circumstances to empanel a new\nvenire. It was also not required to question each impaneled\njuror regarding their ability to be impartial given the nature of\nthe statement and the clear jury instructions given prior to trial\nand after the closing arguments.\n\fNo. 18-2158 7\n\n As to the vulnerable victim enhancement, the court found\nthat Dr. Khan was financially and technologically unsophisti-\ncated. This made her particularly vulnerable to Maclin’s\nscheme to use the electronic Medicaid billing system to divert\nfunds to her own personal account. Maclin argues that the\nrecord does not support the district court’s conclusion that\nDr. Khan was financially unsophisticated, and that Dr. Khan\nwas able to overcome any technological illiteracy by meeting\nwith people at her bank directly. Maclin relies heavily on\nUnited States v. Esterman, 324 F.3d 565, 573–74 (7th Cir. 2003).\nThere, this court found it was a clear error to apply a vulnera-\nble victim enhancement based solely on a victim’s limited\nEnglish proficiency, where the victim was financially sophisti-\ncated and monitored his finances through interpreters.\n A vulnerable victim is defined by the Guidelines as\n“someone who is unusually vulnerable due to age, physical or\nmental condition, or who is otherwise particularly susceptible\nto the criminal conduct.” U.S.S.G. § 3A1.1. We review the\ndistrict court’s application of the vulnerable victim enhance-\nment for clear error. Whether a victim is vulnerable “is the type\nof fact which the trial court is uniquely well-positioned to\nassess because the trial judge can observe the demeanor of the\ndefendant and witnesses and has an opportunity to review and\nanalyze each of the documents and exhibits and hear the\ntestimony while observing the mental, physical, and emotional\nstates of the victims in order to assist him with assessing the\ndamages inflicted upon them.” United States v. Christiansen, 594\nF.3d 571, 574 (7th Cir. 2010)(internal citations omitted). There\nmust be “some link between the vulnerability and the charac-\nteristic in question.” United States v. Lewis, 842 F.3d 467, 476\n\f8 No. 18-2158\n\n(7th Cir. 2016) (vulnerable victim enhancement warranted\nwhere defendant abused trust of victims who “lacked basic\ncomputer skills”); see also United States v. Sullivan, 765 F.3d\n712, 717 (7th Cir. 2014) (evidence supported enhancement\nbecause it showed the defendants targeted victims who were\nelderly and financially unsophisticated); United States v. Parolin,\n239 F.3d 922 (7th Cir. 2001) (vulnerable victim enhancement\nappropriate due to defendant’s knowledge of victims’ lack of\nfinancial sophistication).\n The district court found that Dr. Khan was remarkably\ncomputer illiterate. She did not “do e-mail” and her attempts\nto access computer systems routinely resulted in failure\nbecause she inadvertently triggered security mechanisms. The\ncourt noted that Dr. Khan “totally entrusted this to Ms. Maclin,\nthe operation of the financial side of her business, and\nMs. Maclin knew that.” Maclin used that knowledge to\ndefraud Dr. Khan using the electronic billing system. The\ndistrict court noted that Dr. Khan was intelligent, and that it\nwas a “close call” but concluded that “literally—in 15 years, I\nhave never seen somebody so technologically unsophisticated\nas this victim to the point where she literally has never\nused e-mail even. She doesn’t have the ability to check her\naccounts.”\n This Court held in Esterman that it was clear error by the\ndistrict court to “consider[] “the linguistic factor in isolation.”\nEsterman, 324 F.3d at 573–74. Esterman argued that the district\ncourt improperly ignored the victim’s “sophistication as a\nbusinessperson, his ability to communicate with the bank\nthrough an interpreter, his ability to dispatch deputies, and his\nfamiliarity with the legal system as evidenced by his filing of\n\fNo. 18-2158 9\n\ncriminal and civil complaints.” Id. Unlike in Esterman, the\ndistrict court here considered the mitigating factor that\nDr. Khan was generally an intelligent person, but found she\nwas so technologically illiterate that it made her particularly\nvulnerable to electronic billing fraud. While Dr. Khan could\nmeet in person at the bank to go over her accounts, had she\nbeen able to check her accounts electronically she would have\ndiscovered the fraud much sooner.\n Additionally, the district court noted the 15-month sentence\nwas within Guidelines range whether or not the vulnerable\nvictim enhancement was applied, and declared 15 months\nwould be the sentence “irrespective of how that decision fell\nout.” The court stated that the enhancement “wouldn’t have\nchanged my judgment on the case one way or the other”\nbecause “15 months captures about correctly the gravity of the\ncase” considering Maclin stole a substantial sum of money\nfrom Dr. Khan while still paying restitution for an almost\nidentical crime.\n “A district court facing a tricky but technical issue under\nthe Guidelines may exercise its discretion under section 3553(a)\nand may spell out on the record whether and to what extent\nthe resolution of the guideline issue affected the court's final\ndecision on the sentence.” United States v. Snyder, 865 F.3d 490,\n500 (7th Cir. 2017) (citing United States v. Lopez, 634 F.3d 948,\n954 (7th Cir. 2011)); see, e.g., United States v. Sanner, 565 F.3d\n400, 406 (7th Cir. 2009) (affirming an above-guideline sentence\nwithout regard for the correct resolution of guideline issue);\nUnited States v. Abbas, 560 F.3d 660, 666–67 (7th Cir. 2009)\n(holding a guideline error was harmless based on judge's\nexplanation of alternative basis for same sentence). We find no\n\f10 No. 18-2158\n\nerror in the district court’s application of the vulnerable victim\nenhancement and, regardless, any error would have been\nharmless.\n III. CONCLUSION\n The district court’s denial of the motions for mistrial, and\nthe district court’s sentencing, are hereby AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365870/", "author_raw": "William Joseph Bauer"}]}	BAUER	KANNE	BRENNAN	1	{"BAUER": ", Circuit", "KANNE": ", Circuit", "BRENNAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588617/	Published	1	0	0	2,019	2	[ { "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...
4,588,618		Diane Rhone v. Medical Business Bureau, LLC	2019-02-07	17-3408	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-3408\nDIANE RHONE,\n Plaintiff-Appellee,\n\n v.\n\nMEDICAL BUSINESS BUREAU, LLC,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 C 5215 — Virginia M. Kendall, Judge.\n ____________________\n\n ARGUED SEPTEMBER 26, 2018 — DECIDED FEBRUARY 7, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. This case is about character—\nthe character of a debt. A debt collector must not make any\n“false representation” about “the character, amount, or legal\nstatus of any debt”. 15 U.S.C. §1692e(2)(A). A district court\nconcluded that a debt collector misrepresented a debt’s\n“character” by reporting to a credit bureau that the debtor\nhad nine unpaid bills of $60 rather than one of $540. We\n\f2 No. 17-3408\n\nhold, to the contrary, that arithmetic does not aﬀect a debt’s\n“character.” The statutory word “amount” rather than the\nword “character” is what governs reporting the debt’s size.\n Diane Rhone received physical therapy from Illinois\nBone and Joint Institute, which billed her $134 for each ses-\nsion. Insurance covered all but a $60 co-pay per session.\nRhone did not remit her part of the bills, however, and the\nInstitute turned to the Medical Business Bureau for debt col-\nlection. After three years of dunning legers did not work, the\nBureau reported to Equifax that Rhone owes nine debts of\n$60 each. That led to this suit, in which Rhone contends that\nthe Bureau had to report the aggregate debt of $540 rather\nthan nine $60 debts. Judge Der-Yeghiayan agreed with that\nsubmission. 2017 U.S. Dist. LEXIS 177800 (N.D. Ill. Oct. 25,\n2017). After he retired the case was assigned to Judge Ken-\ndall, who imposed a $1,000 penalty. 2018 U.S. Dist. LEXIS\n188433 (N.D. Ill. Apr. 27, 2018).\n The credit report was factually correct. Rhone incurred\nnine debts of $60 each. Judge Der-Yeghiayan did not explain\nwhy the diﬀerence between 1 × $540 and 9 × $60 misrepre-\nsents the “character” of a debt. Neither the district judge nor\nRhone oﬀered a deﬁnition of the word “character.” Asked at\noral argument whether a debt collector should report one\ndebt, or two, if a person buys two cars from a single dealer\nand does not pay for either car, Rhone’s lawyer replied: “It\nwould depend.” Counsel told us that a judge should consid-\ner “all the facts and circumstances” once litigation is under-\nway. Yet what a court (or for that mager a debt collector)\nneeds is a rule of law to apply to those facts and circum-\nstances. This is a statutory suit, not a common-law action.\nThe word “character” either requires aggregation of debts\n\fNo. 17-3408 3\n\narising from multiple transactions with a single entity, or it\ndoes not.\n The statute refers separately to the “character” and the\n“amount” of a debt. Rhone does not contend that the Bureau\nmisrepresented the “amount” of the debt by telling Equifax\nthat Rhone owes $60 for each of nine medical treatments. We\ncan imagine a regulation specifying whether debts to a sin-\ngle creditor should be aggregated (or perhaps reported both\nsingly and in the aggregate)—consistency contributes to clar-\nity—but Rhone does not point to such a regulation, nor\ncould we ﬁnd one. One beneﬁt of identifying each amount\nseparately is that a debtor then can identify exactly which\ntransactions are at issue. If the Bureau had reported one $540\ndebt, Rhone might well have asserted that the report was\nmisleading—after all, she does not owe $540 for any transac-\ntion. Per-transaction reporting also shows whether some of\nthe debts are stale (that is, whether the statute of limitations\nbars collection). Consumers and credit bureaus alike may\nﬁnd that information valuable.\n A search through decisions from this court and the other\ncourts of appeals did not turn up any discussing whether\naggregation (or not) of all amounts owed to a single creditor\nconcerns the “character” of a debt. Indeed, few decisions\ndiscuss the meaning of that word in any debt-related con-\ntext. In this circuit, Fields v. Wilbur Law Firm, P.C., 383 F.3d\n562 (7th Cir. 2004), holds that presenting a debt plus agor-\nneys’ fees as a single undiﬀerentiated sum misstates the\ndebt’s character, while Hahn v. Triumph Partnerships LLC, 557\nF.3d 755 (7th Cir. 2009), holds that combining principal and\ninterest does not do so. Agorneys’ fees diﬀer in character\nfrom the main debt, while interest does not. Elsewhere,\n\f4 No. 17-3408\n\nDonohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.\n2010), agrees with Hahn, while Miller v. Javitch, Block &\nRathbone, 561 F.3d 588, 592–94 (6th Cir. 2009), holds that de-\nscribing a debt as a loan rather than an account receivable\ndoes not misstate its character. None of these decisions holds\nor implies that it magers to a debt’s “character” whether\namounts due for individual purchases from a single mer-\nchant are stated separately or as a total.\n The absence of authoritative or even persuasive guidance\nleaves us on our own. To our ears, “character” sounds like a\nreference to the kind of obligation. (That is essentially how\nFields heard it, too.) A secured auto loan would be of one\ncharacter, an unsecured credit-card debt another, a judgment\ndebt a third, and a subordinated debenture (an instrument\njunior by contract) a fourth. Keeping these kinds of obliga-\ntion distinct reduces the potential for confusion about their\nnature and relative priority. But the number of transactions\nbetween a debtor and a single merchant does not aﬀect the\ngenesis, nature, or priority of the debt and so does not con-\ncern its character. The statute names “character, amount, or\nlegal status” as distinct agributes, and it would undercut this\ndisjunction to treat arithmetic as concerning the debt’s\n“character” rather than its “amount.”\n The district court’s opinion, and the parties’ briefs, de-\nvote considerable agention to whether the Bureau made a\nproper report of “tradelines.” This is a word that Equifax us-\nes in the conduct of its own business. It does not appear in\nthe statute or any relevant regulation. (The word “tradeline”\nor the phrase “trade line” appears four times in the Code of\nFederal Regulations. None of the regulations deﬁnes it, and\nnone concerns debt collectors’ reports to credit bureaus.)\n\fNo. 17-3408 5\n\nWhether Equifax has a grievance against Medical Business\nBureau—and whether Equifax oﬀers debtors some remedy if\ncreditors or debt collectors err in implementing Equifax’s\npolicies—are neither here nor there for our purposes.\nEquifax might have a duty to correct its report if an error\nwith respect to the number of tradelines aﬀects a consumer’s\ncredit rating. See 15 U.S.C. §1681i(a). But this suit rests on\n§1692e(2)(A), not on Equifax’s vocabulary.\n Medical Business Bureau did not misstate the “character”\nof Rhone’s debt to the Illinois Bone and Joint Institute, so the\njudgment of the district court is\n REVERSED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365871/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK	ROVNER	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "ROVNER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588618/	Published	1	0	0	2,019	2	[ { "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...
8,443,875	United States v. Travis S. VACCARO	United States v. Vaccaro	2019-02-07	No. 18-1753	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Barrett, Ripple, Wood", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415304/", "author_raw": ""}]}	BARRETT	RIPPLE	WOOD	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443875/	Published	0	1	0	2,019	2	[ { "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...
4,588,867	Vipul B. PATEL, Et Al., Plaintiffs-Appellants, v. ZILLOW, INC., and Zillow Group, Inc., Defendants-Appellees.	Vipul Patel v. Zillow, Inc.	2019-02-08	18-2130	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Bauer, Easterbrook, Scudder", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-2130\nVIPUL B. PATEL, et al.,\n Plaintiffs-Appellants,\n\n v.\n\nZILLOW, INC., and ZILLOW GROUP, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 17-CV-4008 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED OCTOBER 29, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.\n EASTERBROOK, Circuit Judge. A Zestimate is an estimated\nvalue for real estate, available on the Zillow web site for\nabout 100 million parcels. Zillow generates Zestimates by\napplying a proprietary algorithm to public data, such as a\nbuilding’s location, tax assessment, number of rooms, and\nthe recent selling prices for nearby parcels. But because Zil-\nlow does not inspect the building, it cannot adjust for the\nfact that any given parcel may be more a\\ractive and be\\er\n\f2 No. 18-2130\n\nmaintained, raising its likely selling price, or the reverse. Zil-\nlow states that its median error (comparing a Zestimate with\na later transaction price) is less than 6%, though the Zesti-\nmate is oﬀ by more than 20% in about 15% of all sales. Zil-\nlow informs users that none of the parcels has been inspect-\ned and that Zestimates may be inaccurate, though Zillow\ntouts them as useful starting points.\n Plaintiﬀs ﬁled this suit after learning that the Zestimates\nfor their parcels were below the amounts they hoped to real-\nize. For example, Vipul Patel listed his home with an asking\nprice of $1.495 million and contends that the Zestimate of\n$1,333,350 scared away potential buyers. Plaintiﬀs asked Zil-\nlow either to increase the Zestimates for their parcels or re-\nmove them from the database. When it declined to take ei-\nther step, they ﬁled this suit, under the diversity jurisdiction,\ninvoking the Illinois Real Estate Appraiser Licensing Act, 225\nILCS 458/1 to 458/999-99, which forbids the appraisal of real\nestate without a license, and the Illinois Uniform Deceptive\nTrade Practices Act, 815 ILCS 510/1 to 510/7, which forbids\nunfair or misleading trade practices. Plaintiﬀs contend that a\nZestimate is an appraisal and not only unfair but also mis-\nleading because (plaintiﬀs assert) it is inaccurate yet Zillow\ndoes not accommodate requests for change or removal. The\nsuit began in state court and was removed to federal court\nunder the diversity jurisdiction. The district court dismissed\nall of plaintiﬀs’ claims for failure to state a claim on which\nrelief may be granted. See Fed. R. Civ. P. 12(b)(6). 2017 U.S.\nDist. LEXIS 134785 (N.D. Ill. Aug. 23, 2017); 2018 U.S. Dist.\nLEXIS 76245 (N.D. Ill. May 7, 2018). The court’s ﬁrst opinion\ndismisses the licensing claim with prejudice, and the second\nterminates all other claims.\n\fNo. 18-2130 3\n\n The district court’s comprehensive opinions make it un-\nnecessary for us to write at length. We oﬀer only a few\nwords to supplement the district judge’s analysis and indi-\ncate which parts of it undergird our decision.\n The licensing claim failed in the district court for two\nprincipal reasons. First, the judge concluded that an “auto-\nmated valuation model” diﬀers from an “appraisal” as a\nma\\er of law under 225 ILCS 458/5-5(g). 2017 U.S. Dist.\nLEXIS 134785 at 11–15. Second, the judge held that plaintiﬀs\nlack a private right of action to enforce the appraisal statute.\nId. at 15–26. We aﬃrm for the second reason and need not\nconsider the ﬁrst.\n The licensing statute omits a private right of action. In-\nstead it makes unlicensed appraisal a Class A misdemeanor\n(ﬁrst oﬀense) and a Class 4 felony for any repetition. 225\nILCS 458/5-5(a). An administrative agency may impose ﬁnes\nof up to $25,000 per unlicensed appraisal, see §458/1-10,\n458/15-5(a), and issue cease-and-desist le\\ers that can be en-\nforced by injunctions, see §458/15-5(d). Illinois courts create\na non-statutory private right of action “only in cases where\nthe statute would be ineﬀective, as a practical ma\\er, unless\nsuch action were implied.” Me:ger v. DaRosa, 209 Ill. 2d 30,\n39 (2004) (citation omi\\ed). The district court found that the\nmultiple means of enforcing the licensing act, and the stiﬀ\npenalties for noncompliance, show that a private action is\nnot necessary to make the statute eﬀective. We concur.\n As for the trade practices act, the district judge was right\nto observe that the statute deals with statements of fact,\nwhile Zestimates are opinions, which canonically are not ac-\ntionable. See, e.g., Sampen v. Dabrowski, 222 Ill. App. 3d 918,\n924–25 (1st Dist. 1991) (where a valuation is explicitly la-\n\f4 No. 18-2130\n\nbeled an estimate, there is no deception); Hartigan v. Maclean\nHunter Publishing Corp., 119 Ill. App. 3d 1049, 1059 (1st Dist.\n1983) (“If clearly labeled as an opinion a qualitative evalua-\ntion of worth is not a violation of the Act. The Act prohibits\ndeception rather than error.”). Plaintiﬀs want us to brush\nthis rule aside because, they say, Zillow refuses to alter or\nremove Zestimates on request. This does not make a Zesti-\nmate less an opinion, however. And plaintiﬀs are mistaken\nto think that the accuracy of an algorithmic appraisal system\ncan be improved by changing or removing particular esti-\nmates.\n Suppose plaintiﬀs are right to think that the Zestimates\nfor their properties are too low. Removing them from the da-\ntabase would skew the distribution, because all mistakes\nthat favored property owners would remain, not oﬀset by er-\nrors in the other direction. Potential buyers would be made\nworse oﬀ. Suppose instead that plaintiﬀs are wrong—that\nthey have overestimated the value of their properties, while\nthe Zestimates are closer to the truth. Then removing them\nfrom the database would not just skew the distribution but\nalso increase the average error of estimates. Potential buyers\nof plaintiﬀs’ properties would be deprived of valuable\nknowledge. Finally, suppose that plaintiﬀs are behaving\nstrategically—that they know the Zestimates to be accurate\n(or at least closer to the likely sales price than are plaintiﬀs’\nasking prices). Then removing their parcels from the data-\nbase, or “correcting” the Zestimates to match plaintiﬀs’ ask-\ning prices, would degrade the accuracy of the database as a\nwhole without any oﬀse\\ing beneﬁts to the real-estate mar-\nket. In general, the accuracy of algorithmic estimates cannot\nbe improved by plucking some numbers out of the distribu-\ntion or “improving” others in ways that depart from the al-\n\fNo. 18-2130 5\n\ngorithm’s output. The process is more accurate, overall,\nwhen errors are not biased to favor sellers or buyers.\n That Zillow sells ads to real estate brokers does not aﬀect\nthe statutory analysis. Having labeled Zestimates as esti-\nmates (something built into the word “Zestimate”), Zillow is\noutside the scope of the trade practices act. Almost all web\nsites, like almost all newspapers and magazines, try to ﬁ-\nnance their operations by selling ads. That they do so with-\nout telling customers exactly what pitches are being made to\npotential advertisers does not convert a declared estimate\ninto an inaccurate statement of fact.\n In addition to the trade practices act, plaintiﬀs invoke the\nIllinois Consumer Fraud and Deceptive Business Practices\nAct, 815 ILCS 505/1 to 505/12. The district court’s second\nopinion shows that this claim fails for essentially the same\nreasons as the trade practices act claim fails, and for the fur-\nther reason that plaintiﬀs are not buyers of real estate. 2018\nU.S. Dist. LEXIS 76245 at *20–26. The subject does not require\nadditional discussion.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366120/", "author_raw": "Frank Hoover Easterbrook"}]}	BAUER	EASTERBROOK	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588867/	Published	1	0	0	2,019	2	[ { "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...
4,588,978		Vipul Patel v. Zillow, Inc.	2019-02-08	18-2130	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-2130\nVIPUL B. PATEL, et al.,\n Plaintiffs-Appellants,\n\n v.\n\nZILLOW, INC., and ZILLOW GROUP, INC.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 17-CV-4008 — Amy J. St. Eve, Judge.\n ____________________\n\n ARGUED OCTOBER 29, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.\n EASTERBROOK, Circuit Judge. A Zestimate is an estimated\nvalue for real estate, available on the Zillow web site for\nabout 100 million parcels. Zillow generates Zestimates by\napplying a proprietary algorithm to public data, such as a\nbuilding’s location, tax assessment, number of rooms, and\nthe recent selling prices for nearby parcels. But because Zil-\nlow does not inspect the building, it cannot adjust for the\nfact that any given parcel may be more a\\ractive and be\\er\n\f2 No. 18-2130\n\nmaintained, raising its likely selling price, or the reverse. Zil-\nlow states that its median error (comparing a Zestimate with\na later transaction price) is less than 6%, though the Zesti-\nmate is oﬀ by more than 20% in about 15% of all sales. Zil-\nlow informs users that none of the parcels has been inspect-\ned and that Zestimates may be inaccurate, though Zillow\ntouts them as useful starting points.\n Plaintiﬀs ﬁled this suit after learning that the Zestimates\nfor their parcels were below the amounts they hoped to real-\nize. For example, Vipul Patel listed his home with an asking\nprice of $1.495 million and contends that the Zestimate of\n$1,333,350 scared away potential buyers. Plaintiﬀs asked Zil-\nlow either to increase the Zestimates for their parcels or re-\nmove them from the database. When it declined to take ei-\nther step, they ﬁled this suit, under the diversity jurisdiction,\ninvoking the Illinois Real Estate Appraiser Licensing Act, 225\nILCS 458/1 to 458/999-99, which forbids the appraisal of real\nestate without a license, and the Illinois Uniform Deceptive\nTrade Practices Act, 815 ILCS 510/1 to 510/7, which forbids\nunfair or misleading trade practices. Plaintiﬀs contend that a\nZestimate is an appraisal and not only unfair but also mis-\nleading because (plaintiﬀs assert) it is inaccurate yet Zillow\ndoes not accommodate requests for change or removal. The\nsuit began in state court and was removed to federal court\nunder the diversity jurisdiction. The district court dismissed\nall of plaintiﬀs’ claims for failure to state a claim on which\nrelief may be granted. See Fed. R. Civ. P. 12(b)(6). 2017 U.S.\nDist. LEXIS 134785 (N.D. Ill. Aug. 23, 2017); 2018 U.S. Dist.\nLEXIS 76245 (N.D. Ill. May 7, 2018). The court’s ﬁrst opinion\ndismisses the licensing claim with prejudice, and the second\nterminates all other claims.\n\fNo. 18-2130 3\n\n The district court’s comprehensive opinions make it un-\nnecessary for us to write at length. We oﬀer only a few\nwords to supplement the district judge’s analysis and indi-\ncate which parts of it undergird our decision.\n The licensing claim failed in the district court for two\nprincipal reasons. First, the judge concluded that an “auto-\nmated valuation model” diﬀers from an “appraisal” as a\nma\\er of law under 225 ILCS 458/5-5(g). 2017 U.S. Dist.\nLEXIS 134785 at 11–15. Second, the judge held that plaintiﬀs\nlack a private right of action to enforce the appraisal statute.\nId. at 15–26. We aﬃrm for the second reason and need not\nconsider the ﬁrst.\n The licensing statute omits a private right of action. In-\nstead it makes unlicensed appraisal a Class A misdemeanor\n(ﬁrst oﬀense) and a Class 4 felony for any repetition. 225\nILCS 458/5-5(a). An administrative agency may impose ﬁnes\nof up to $25,000 per unlicensed appraisal, see §458/1-10,\n458/15-5(a), and issue cease-and-desist le\\ers that can be en-\nforced by injunctions, see §458/15-5(d). Illinois courts create\na non-statutory private right of action “only in cases where\nthe statute would be ineﬀective, as a practical ma\\er, unless\nsuch action were implied.” Me:ger v. DaRosa, 209 Ill. 2d 30,\n39 (2004) (citation omi\\ed). The district court found that the\nmultiple means of enforcing the licensing act, and the stiﬀ\npenalties for noncompliance, show that a private action is\nnot necessary to make the statute eﬀective. We concur.\n As for the trade practices act, the district judge was right\nto observe that the statute deals with statements of fact,\nwhile Zestimates are opinions, which canonically are not ac-\ntionable. See, e.g., Sampen v. Dabrowski, 222 Ill. App. 3d 918,\n924–25 (1st Dist. 1991) (where a valuation is explicitly la-\n\f4 No. 18-2130\n\nbeled an estimate, there is no deception); Hartigan v. Maclean\nHunter Publishing Corp., 119 Ill. App. 3d 1049, 1059 (1st Dist.\n1983) (“If clearly labeled as an opinion a qualitative evalua-\ntion of worth is not a violation of the Act. The Act prohibits\ndeception rather than error.”). Plaintiﬀs want us to brush\nthis rule aside because, they say, Zillow refuses to alter or\nremove Zestimates on request. This does not make a Zesti-\nmate less an opinion, however. And plaintiﬀs are mistaken\nto think that the accuracy of an algorithmic appraisal system\ncan be improved by changing or removing particular esti-\nmates.\n Suppose plaintiﬀs are right to think that the Zestimates\nfor their properties are too low. Removing them from the da-\ntabase would skew the distribution, because all mistakes\nthat favored property owners would remain, not oﬀset by er-\nrors in the other direction. Potential buyers would be made\nworse oﬀ. Suppose instead that plaintiﬀs are wrong—that\nthey have overestimated the value of their properties, while\nthe Zestimates are closer to the truth. Then removing them\nfrom the database would not just skew the distribution but\nalso increase the average error of estimates. Potential buyers\nof plaintiﬀs’ properties would be deprived of valuable\nknowledge. Finally, suppose that plaintiﬀs are behaving\nstrategically—that they know the Zestimates to be accurate\n(or at least closer to the likely sales price than are plaintiﬀs’\nasking prices). Then removing their parcels from the data-\nbase, or “correcting” the Zestimates to match plaintiﬀs’ ask-\ning prices, would degrade the accuracy of the database as a\nwhole without any oﬀse\\ing beneﬁts to the real-estate mar-\nket. In general, the accuracy of algorithmic estimates cannot\nbe improved by plucking some numbers out of the distribu-\ntion or “improving” others in ways that depart from the al-\n\fNo. 18-2130 5\n\ngorithm’s output. The process is more accurate, overall,\nwhen errors are not biased to favor sellers or buyers.\n That Zillow sells ads to real estate brokers does not aﬀect\nthe statutory analysis. Having labeled Zestimates as esti-\nmates (something built into the word “Zestimate”), Zillow is\noutside the scope of the trade practices act. Almost all web\nsites, like almost all newspapers and magazines, try to ﬁ-\nnance their operations by selling ads. That they do so with-\nout telling customers exactly what pitches are being made to\npotential advertisers does not convert a declared estimate\ninto an inaccurate statement of fact.\n In addition to the trade practices act, plaintiﬀs invoke the\nIllinois Consumer Fraud and Deceptive Business Practices\nAct, 815 ILCS 505/1 to 505/12. The district court’s second\nopinion shows that this claim fails for essentially the same\nreasons as the trade practices act claim fails, and for the fur-\nther reason that plaintiﬀs are not buyers of real estate. 2018\nU.S. Dist. LEXIS 76245 at *20–26. The subject does not require\nadditional discussion.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366231/", "author_raw": "Frank Hoover Easterbrook"}]}	BAUER	EASTERBROOK	SCUDDER	1	{"BAUER": ", Circuit", "EASTERBROOK": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588978/	Published	1	0	0	2,019	2	[ { "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...
4,588,979	UNITED STATES of America, Plaintiff-Appellee, v. Ruben DELHORNO, Defendant-Appellant.	United States v. Ruben Delhorno	2019-02-08	18-1707	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Kanne, Hamilton, Eve", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1707\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRUBEN DELHORNO,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 11-CR-46 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 23, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.\n HAMILTON, Circuit Judge. Defendant-appellant Ruben Del-\nhorno filed a petition for a writ of coram nobis, a rare form of\ncollateral attack on a criminal judgment. This ancient com-\nmon-law remedy is available to correct errors of fact and law\nin criminal cases, but only when: “(1) the error alleged is ‘of\nthe most fundamental character’ as to render the criminal con-\nviction ‘invalid’; (2) there are ‘sound reasons’ for the defend-\nant’s ‘failure to seek earlier relief’; and (3) ‘the defendant\n\f2 No. 18-1707\n\ncontinues to suﬀer from his conviction even though he is out\nof custody.’” United States v. Wilkozek, 822 F.3d 364, 368 (7th\nCir. 2016), citing United States v. Sloan, 505 F.3d 685, 697 (7th\nCir. 2007), and United States v. Keane, 852 F.2d 199, 203 (7th\nCir. 1988). Delhorno fails the second requirement. He cannot\noﬀer “sound reasons” for failing to seek earlier relief through\na direct appeal or habeas corpus petition. We therefore aﬃrm\nthe district court’s decision denying Delhorno’s writ of coram\nnobis.\nI. Factual and Procedural Background\n Delhorno, age 42, was born in Mexico but came to the\nUnited States with his parents when he was just three years\nold. He was living in the United States as a lawful permanent\nresident. (He could have applied for citizenship but never\ndid.) In 2011, Delhorno was pulled over for speeding. While\nthe oﬃcer was writing a speeding ticket, another oﬃcer ar-\nrived with his drug-detection canine. The dog sniﬀed the ve-\nhicle and alerted to the presence of drugs. Another oﬃcer at\nthe scene had been instructed in the installation of “trap”\ncompartments in vehicles and noticed that Delhorno’s vehicle\ncontained unusual wiring. The oﬃcers discovered four kilo-\ngrams of cocaine in a trap compartment in Delhorno’s vehicle.\n Delhorno was indicted by a grand jury in the Eastern Dis-\ntrict of Wisconsin for one count of possessing cocaine with in-\ntent to distribute in violation of 21 U.S.C. §§ 841(a)(1) &\n841(b)(1)(B). Delhorno pleaded guilty to the indictment on\nJanuary 26, 2012. At the change of plea hearing, Delhorno\nstated that he was born in Mexico and was a permanent resi-\ndent of the United States. However, there was no discussion\nabout the immigration consequences of his guilty plea, even\nthough the hearing took place more than a year after the\n\fNo. 18-1707 3\n\nSupreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010),\nthat a criminal defense lawyer provided ineﬀective assistance\nof counsel by failing to advise his client that his guilty plea\nwould subject him to automatic deportation.\n Following the change of plea hearing, the United States\nProbation Oﬃce prepared a presentence report that included\nthis passage:\n 49. Mr. Delhorno explains he was born in Mex-\n ico, but came with his parents to the United\n States when he was three years old. His family\n settled in Chicago Heights, Illinois. Mr. Del-\n horno notes his parents came to the United\n States illegally, seeking better opportunities for\n themselves and their children. In 1988, his par-\n ents were able to take advantage of an amnesty\n program and were granted legal residency sta-\n tus. Mr. Delhorno notes at that time he also was\n granted legal resident status. He acknowledges\n at the age of 18, he could have applied for citi-\n zenship, but he has not done so. Mr. Delhorno\n understood all his friends were born in the\n United States so he never thought of himself dif-\n ferently, so he did not pursue citizenship. Mr.\n Delhorno understands this may present problems for\n him, but he is trying to make arrangements to remain\n in the United States.\n 50. Bureau of Immigrations and Customs En-\n forcement confirmed Mr. Delhorno was granted\n legal permanent resident status on 4/29/89. At\n this time, the defendant is not under investigation\n\f4 No. 18-1707\n\n for deportation, but upon entry of judgement, the\n matter will be investigated.\nPresentence Report ¶¶ 49–50 (emphasis added).\n Delhorno was sentenced on October 5, 2012. His lawyer\ntold the judge that Delhorno was seeking a “visa to remain in\nthe United States because he is a resident alien and never\nsought citizenship[.]” Delhorno’s Sentencing Guideline range\nwas 78 to 97 months in prison. He was sentenced to 60 months\nin prison, followed by a supervised release term of four years.\nThe court entered the written judgment and commitment or-\nder that same day. Delhorno never filed a direct appeal or a\nhabeas corpus petition.\n On February 26, 2015, while Delhorno was in prison, he\nfiled a motion to modify his term of imprisonment pursuant\nto 18 U.S.C. § 3582(c)(2), based on a retroactive change to the\nSentencing Guidelines. After briefing, this motion was de-\nnied. On May 26, 2016, Delhorno filed an amended motion to\nmodify his term of imprisonment pursuant to § 3582, which\nwas also denied.\n On approximately May 1, 2017, Delhorno completed his\nprison sentence and was transferred to the custody of the U.S.\nImmigration and Customs Enforcement (“ICE”) for removal\nprocedures. On October 13, 2017, Delhorno filed his petition\nfor a writ of coram nobis. In the petition and attached aﬃda-\nvit, Delhorno argued that he received ineﬀective assistance of\ncounsel in his criminal case because his lawyer failed to ad-\nvise him that pleading guilty subjected him to mandatory de-\nportation. He contended that if he had known this, he would\nnever have pleaded guilty. Delhorno referenced and included\nthe transcript from his change of plea hearing which shows\n\fNo. 18-1707 5\n\nthat the court also failed to address the immigration conse-\nquences of his guilty plea. In support of his arguments, he\ncited Lee v. United States, 137 S. Ct. 1958 (2017), Padilla v. Ken-\ntucky, 559 U.S. 356 (2010), and Hill v. Lockhart, 474 U.S. 52, 59\n(1985).\n The government responded, stating that it believed the\nrecord needed to be developed further through a hearing be-\nfore the court ruled on the petition. The district court disa-\ngreed and denied Delhorno’s petition without a hearing. Del-\nhorno argues on appeal that this was a mistake. We review\nthe district court’s decision to deny an evidentiary hearing for\nan abuse of discretion. See Blanton v. United States, 94 F.3d 227,\n235 (6th Cir. 1996), citing Green v. United States, 65 F.3d 546,\n548 (6th Cir. 1995); see also United States v. Fuller, 86 F.3d 105,\n107 (7th Cir. 1996) (judge “had no duty to conduct an eviden-\ntiary hearing if, by analogy to summary judgment, he could\ndetermine on the basis of aﬃdavits, depositions, or other doc-\numentary materials of evidentiary quality that there was no\ngenuinely contestable issue of fact”). As we explain below, the\nrecord here provided a suﬃcient basis to deny the petition\nwithout a hearing, so the district court acted within its discre-\ntion in denying a hearing.\n Delhorno filed a timely notice of appeal on April 2, 2018.\nHe also filed a motion in the Eleventh Circuit for a stay of re-\nmoval. That motion was denied on May 27, 2018, and Del-\nhorno was deported to Mexico.\nII. Analysis\n The writ of coram nobis is a means for a collateral attack\non a criminal conviction alleging errors of law or fact that af-\nfect the fundamental character of the conviction, including\n\f6 No. 18-1707\n\ninadequate counsel. Chaidez v. United States, 568 U.S. 342\n(2013). It is similar to a habeas corpus petition and aﬀords the\nsame type of relief, United States v. Bonansinga, 855 F.2d 476,\n478 (7th Cir. 1988), but it is available only when a defendant\nis no longer in custody and thus can no longer take advantage\nof habeas corpus relief. Stanbridge v. Scott, 791 F.3d 715, 720\nn.3 (7th Cir. 2015). According to the Supreme Court, the writ\nof coram nobis is to be used only in “extraordinary cases pre-\nsenting circumstances compelling its use to achieve justice,”\nwhere alternative remedies are not available. United States v.\nDenedo, 556 U.S. 904, 911 (2009), citing United States v. Morgan,\n346 U.S. 502, 511 (1954) (internal quotation marks omitted).\nWe have explained that a successful coram nobis petition\nmust satisfy three prongs: “(1) the error alleged is ‘of the most\nfundamental character’ as to render the criminal conviction\n‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘fail-\nure to seek earlier relief’; and (3) ‘the defendant continues to\nsuﬀer from his conviction even though he is out of custody.’”\nUnited States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016).\n In reviewing a district court’s denial of a writ of coram\nnobis without a hearing, this court conducts a de novo analysis\nof the legal conclusions and a factual review for clear error. Id.\nWe consider the three factors in a diﬀerent order here than set\nforth above. We conclude that Delhorno continues to suﬀer\nfrom his conviction, but he likely cannot demonstrate funda-\nmental error, and he certainly cannot justify his failure to seek\nearlier relief. We aﬃrm the denial of his petition for a writ of\ncoram nobis.\n\fNo. 18-1707 7\n\n 1. Continued Suﬀering\n First, we have no doubt that Delhorno continues to suﬀer\nfrom his conviction even though he is out of custody. We have\nexplained that coram nobis is\n a postconviction remedy, equivalent to habeas\n corpus or (for persons convicted in federal\n court) section 2255, for petitioners who have\n served their sentences and so cannot invoke ei-\n ther of those remedies but who as a result of\n having been convicted are laboring under some\n serious civil disability that they’d like to elimi-\n nate by setting aside their conviction—and re-\n moval from the United States is serious, civil,\n and a consequence of the petitioner’s convic-\n tion.\nClarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013); see\nalso Martignoni v. United States, No. 10 Civ. 6671 JFK, 2011 WL\n4834217, at *12 (S.D.N.Y. Oct. 12, 2011) (“Deportation is clearly\na legal consequence of conviction suﬃcient to warrant coram\nnobis relief where all other requirements are satisfied[.]”). Del-\nhorno is no longer in prison and is not on supervised release,\nso a writ of coram nobis is an appropriate means to challenge\nthe immigration consequences of his conviction. See Clarke,\n703 F.3d at 1101–02 (defendant on supervised release is in cus-\ntody for purposes of habeas corpus and therefore cannot seek\na writ of coram nobis).\n Delhorno has been deported from the country where he\nlived since he was three years old, back to a country where he\nlikely has minimal ties. His children and fiancée live in the\nUnited States, and he will not be able to return unless his\n\f8 No. 18-1707\n\nconviction is vacated. This is a significant additional penalty\nthat followed his term of imprisonment. These continuing ef-\nfects satisfy this prong of the coram nobis analysis.\n 2. Fundamental Error\n To secure a writ of coram nobis, the error in the defend-\nant’s criminal conviction must be “of the most fundamental\ncharacter” so as to render the conviction “invalid.” Wilkozek,\n822 F.3d at 368. Delhorno attempts to satisfy this prong\nthrough a claim for ineﬀective assistance of counsel pursuant\nto Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To do\nthis, he must demonstrate that counsel’s performance was ob-\njectively unreasonable and that the deficient performance\nprejudiced the defense. Id. While we do not base our decision\non a failure to meet this prong of the coram nobis analysis\nwithout a hearing, it is very unlikely Delhorno could demon-\nstrate that he was prejudiced.\n In Padilla v. Kentucky, the Supreme Court held that crimi-\nnal defense attorneys must inform non-citizen clients of the\nrisks of deportation arising from guilty pleas. 559 U.S. 356,\n366–68 (2010); see also Chaidez v. United States, 568 U.S. 342,\n345–47 (2013) (concluding that Padilla adopted a new rule and\nwas not retroactive). Delhorno’s guilty plea and sentencing\noccurred more than a year after Padilla was issued, and we are\ntroubled that apparently neither his counsel, the prosecutor,\nnor the court raised the issue of the mandatory immigration\nconsequences with him.1\n\n\n 1Delhorno’s lawyer alluded to these consequences at the sentencing\nhearing when he explained that Delhorno was seeking a visa to remain in\nthe United States. There does not appear to have been any discussion of\nmandatory deportation as a result of the conviction.\n\fNo. 18-1707 9\n\n We are not convinced, however, that this apparently defi-\ncient performance prejudiced Delhorno, as required for relief\nunder Strickland. Delhorno must show “there is a reasonable\nprobability that, but for counsel’s errors, [he] would not have\npled guilty and would have insisted on going to trial.” United\nStates v. Reeves, 695 F.3d 637, 639 (7th Cir. 2012), quoting Bethel\nv. United States, 458 F.3d 711, 716 (7th Cir. 2006); see also Lee\nv. United States, 137 S. Ct. 1958, 1965 (2017). The evidence\nagainst Delhorno was very strong: he was stopped while driv-\ning with four kilograms of cocaine hidden in a trap compart-\nment. Delhorno himself showed the oﬃcers how to operate\nthe trap. Delhorno concedes that success at trial was a “long\nshot.” Given the likelihood of conviction at trial and a poten-\ntially longer prison sentence, coupled with the fact that Del-\nhorno was at least aware of the immigration issues, we find it\nunlikely that Delhorno would have proceeded to trial if he\nhad been given proper Padilla warnings.\n We are unpersuaded by Delhorno’s comparison of his sit-\nuation to that in Lee v. United States, a case in which the Su-\npreme Court found that the defendant established a reason-\nable probability that he would not have pleaded guilty if he\nhad known of the immigration consequences. 137 S. Ct. 1958,\n1969 (2017). In Lee, before the defendant pleaded guilty to an\naggravated felony, he had asked his attorney multiple times\nwhether he would be deported. Id. at 1967–68. His attorney\naﬃrmatively told him that he would not be deported. Id. at\n1963. Lee also specifically told the sentencing judge that de-\nportation would aﬀect his decision to plead guilty. Id. at 1968.\nAfter discovering that he would be deported, Lee immedi-\nately filed a § 2255 motion. Id. at 1963. Both Lee and his attor-\nney testified at the subsequent hearing that he would not have\npleaded guilty if he had known he would be deported. Id.\n\f10 No. 18-1707\n\n In contrast, Delhorno has produced no contemporaneous\nevidence showing that he would not have pleaded guilty. His\nprotests appear to be more in the category of “post hoc asser-\ntions from a defendant about how he would have pleaded but\nfor his attorney’s deficiencies.” Id. at 1967. These do not weigh\nin favor of upsetting Delhorno’s guilty plea through a writ of\ncoram nobis. Id. Despite our skepticism, though, the district\ncourt denied Delhorno’s request for a hearing to present his\nargument and evidence. If this prong were dispositive, it\nmight be necessary to remand for a hearing. Delhorno fails to\nsatisfy the final prong, however, so we need not reach a firm\nconclusion on whether a hearing was necessary on the merits.\n 3. Sound Reasons for Delay\n We agree with the district court that Delhorno failed to\ntake any steps regarding his immigration status until he filed\nthis coram nobis petition, five years after he was sentenced.\nAs noted, a person seeking a writ of coram nobis must oﬀer\nsound reasons for his failure to seek relief earlier. Wilkozek,\n822 F.3d at 368. Delhorno has failed to justify his delay, and\non this ground we aﬃrm the denial of his petition.\n Based on his presentence report, which was filed in April\n2012 in advance of his October 2012 sentencing, Delhorno\nknew or should have known that his conviction could lead to\nhis deportation. The report said that Delhorno knew his non-\ncitizenship could present problems for him and that he was\n“trying to make arrangements to remain in the United States.”\nThe report also said that ICE would investigate his case for\ndeportation following the entry of judgment. With this\nknowledge, Delhorno went ahead and pleaded guilty. At his\nsentencing hearing, his lawyer explained to the court that Del-\nhorno was seeking a visa because he was a resident alien and\n\fNo. 18-1707 11\n\nhad never sought citizenship. Also, as the district court noted,\nDelhorno would have likely discovered this immigration is-\nsue when he was classified as a “deportable alien” by the Fed-\neral Bureau of Prisons when he was taken into custody.2\n At the time when he knew or should have known about\nhis immigration issues, Delhorno had multiple avenues for re-\nlief. He could have filed a direct appeal. He also could have\nfiled a habeas corpus petition under 28 U.S.C. § 2255. He did\nneither. The statute of limitations for a habeas corpus petition\nwould have run from “the date on which the facts supporting\nthe claim or claims presented could have been discovered\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4)\n(emphasis added). A reasonably diligent defendant would\nhave discovered the immigration issues by reviewing the\npresentence report, paying attention at the sentencing hear-\ning, and noticing his BOP classification. Delhorno had an en-\ntire year—until October 2013—to file a habeas petition.\n Delhorno has oﬀered no justification for failing to seek ear-\nlier relief through less extraordinary channels. The record\nshows conclusively that he knew or should have known about\nhis immigration issues before, during, and after his\n\n 2 We assume for purposes of this appeal that no one ever told Del-\nhorno that he would certainly be deported (i.e., that he was subject to man-\ndatory deportation). At oral argument in this appeal, Delhorno’s counsel\nexplained that Delhorno may have pleaded guilty knowing there were im-\nmigration issues but with the understanding that there could be avenues\nfor him to continue living in the United States through some sort of visa.\nWe do not believe the distinction between a warning of mandatory depor-\ntation as opposed to likely deportation matters for our present purposes.\nDelhorno was clearly aware that there were immigration consequences to\nhis guilty plea. He chose to go ahead with his plea and did not raise any\nchallenges for five years.\n\f12 No. 18-1707\n\nsentencing. Delhorno’s five-year delay in addressing this is-\nsue was unreasonable and prevents the federal courts from\ngranting relief through the extraordinary form of a writ of co-\nram nobis. The district court’s denial of Delhorno’s petition is\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366232/", "author_raw": "David Frank Hamilton"}]}	KANNE	HAMILTON		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588979/	Published	1	0	0	2,019	2	[ { "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...
4,588,980	UNITED STATES of America, Plaintiff-Appellee, v. Hiram Omar GRAHAM, Defendant-Appellant.	United States v. Hiram Graham	2019-02-08	18-2156	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2156\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nHIRAM OMAR GRAHAM,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 17-CR-220 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019— DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE and ST. EVE, Cir-\ncuit Judges.\n PER CURIAM. Hiram Graham pleaded guilty to Hobbs Act\nrobbery and using a firearm during a crime of violence. At\nsentencing, he argued that his financial hardships, his extraor-\ndinary family situation, and his lack of a criminal record\nshould mitigate his sentence. He now contends that the dis-\ntrict court failed to address these arguments or adequately ex-\nplain his 144-month, below-guidelines prison sentence. But\n\f2 No. 18-2156\n\nthe district court did not commit these procedural errors, so\nwe affirm the judgment.\n I. BACKGROUND\n Over a five-month period, Graham robbed six Aldi gro-\ncery stores at gunpoint. He had worked at an Aldi in Milwau-\nkee for six years, before he was fired four months before the\nfirst robbery for stealing food. Graham targeted Aldi stores\nbecause of his insider knowledge, including his knowledge\nthat Aldi trains employees to acquiesce to robbers. Graham\nwould enter a store a few minutes before closing, hide until it\nclosed, then approach employees with his gun drawn and in-\nstruct them to empty the safe. Two weeks after the sixth rob-\nbery, Graham was arrested, and he later confessed.\n Graham pleaded guilty to six counts of Hobbs Act rob-\nbery, 18 U.S.C. § 1951(a), and one count of using a firearm\nduring of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). In\ncalculating the applicable imprisonment range under the Sen-\ntencing Guidelines, the district court found that Graham had\na total offense level of 28 and criminal history category of I,\ngiving him a range of 78 to 97 months for each robbery, fol-\nlowed by a mandatory consecutive sentence of 84 months for\nthe § 924(c) conviction. See 18 U.S.C. § 924(c)(1)(D)(ii) (man-\ndating that sentence for 924(c) conviction be imposed consec-\nutively). Consistent with Graham’s plea agreement, the gov-\nernment recommended a within-guidelines sentence.\n At sentencing, Graham argued that he should receive the\n“least restrictive sentence available”—just 84 months’ impris-\nonment for the § 924(c) conviction and no additional time—\nbecause his case was unique. For thirty years, Graham had\nbeen a productive member of society, graduating high school\n\fNo. 18-2156 3\n\nand working two full-time jobs to support his girlfriend and\nsix children. Counsel recounted that Graham had lived a\ncrime-free life until the financial pressures of six children, one\nwith serious medical issues, overwhelmed him and drove\nhim to use drugs, steal food, and, finally, rob his former em-\nployer under the influence of cocaine. Counsel stressed that\nGraham had learned his lesson, was statistically “unlikely to\nreoffend,” and that, because of his family support, there was\nevery reason to believe that he would be rehabilitated.\n Before hearing the parties’ arguments, the district court\nstated that it had reviewed Graham’s twelve-page sentencing\nmemorandum and other submissions. And after hearing all\nthe arguments, the court commented that it understood that\nGraham, “like so many,” had been “confronted with financial\nchallenges,” which “may serve as an explanation for” his con-\nduct. But, the court continued, this did “not provide a mean-\ningful excuse for anyone to take matters into their own hands\nand go about taking from others.” Graham’s criminal con-\nduct, the court emphasized, had not been “spur of the mo-\nment,” but “well-planned, executed such that it took law en-\nforcement” additional time to discover who the perpetrator\nwas, and that there was “too much in the way of criminal con-\nduct” to justify the sentence Graham requested.\n Next, the district court discussed at some length the exor-\nbitant costs of incarceration and the ballooning prison popu-\nlation. It explained that “this branch of the court and others\nare beginning to factor into their analysis of the cost benefit to\nsociety” this issue in deciding “how much is enough.”\n The court then determined that, considering “uniformity,\nproportionality, certainty, and cost,” concurrent sentences of\n60 months’ imprisonment for each robbery was appropriate,\n\f4 No. 18-2156\n\nfollowed by the mandatory consecutive sentence of 84\nmonths for the firearm conviction, for a total sentence of 144\nmonths. The sentence was justified, the court concluded, by\nthe “totality of the facts and circumstances” underlying the\nsix robberies.\n II. ANALYSIS\n We review claimed procedural errors de novo. See United\nStates v. Lockwood, 840 F.3d 896, 900 (7th Cir. 2016). Graham\nfirst argues that the district court procedurally erred when it\nfailed to address his mitigation arguments and adequately ex-\nplain its consideration of them. At sentencing, a court must\naddress the parties’ principal arguments, and “where a de-\nfendant’s principal argument is not so weak as not to merit\ndiscussion, the court must explain its reason for rejecting that\nargument.” United States v. Reed, 859 F.3d 468, 472 (7th Cir.\n2017) (internal quotation marks omitted).\n As to the primary factor concerning the sentence imposed,\nwe turn first to Graham’s claim of financial hardship. Alt-\nhough the district court did not say much about how this mit-\nigation argument influenced its sentence, its remarks demon-\nstrate that it was unpersuaded that Graham’s severe and es-\ncalating financial troubles outweighed the aggravating cir-\ncumstances of his six robberies. The court acknowledged Gra-\nham’s financial challenges but responded that they did not of-\nfer an excuse for armed robbery. Graham maintains that this\nstatement alone was insufficient, but a “short explanation” for\nrejecting a mitigating argument “will suffice where the con-\ntext and record make clear the reasoning underlying the dis-\ntrict court’s conclusion.” United States v. Schroeder, 536 F.3d\n746, 755 (7th Cir. 2008) (citing Rita v. United States, 551 U.S.\n\fNo. 18-2156 5\n\n338, 358–59 (2007)); see United States v. Castaldi, 743 F.3d 589,\n595 (7th Cir. 2014).\n Here, directly after mentioning Graham’s financial hard-\nship, the court noted that the robberies were “not spur of the\nmoment,” but “well-planned,” and involved conduct too\negregious—“heinous” and “contrary to every moral pre-\ncept”—to allow it to sentence him as leniently as his counsel\nhad advocated.\n As to the other mitigating factors Graham raised—his lack\nof a criminal record, strong family ties, and drug use—he is\ncorrect; the district court did not discuss them. And a court\nthat fails to mention a ground of recognized legal merit likely\nerrs. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.\n2005). But the requirement that a court specifically address the\ndefendant’s principal arguments “applies with less force”\nwhere it receives written and oral sentencing arguments and\nimposes a prison sentence “significantly below the applicable\nguidelines range.” United States v. Poetz, 582 F.3d 835, 837\n(7th Cir. 2009). And a court’s statement that it has read the\ndefendant’s submissions is often “enough to satisfy us that [it\nhas] considered the argument and rejected it.” United States\nv. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007). That is\nwhat happened here: the district court stated that it had re-\nviewed Graham’s submissions and heard oral argument be-\nfore explaining its below-guidelines sentence. Besides, the ob-\nligation to address mitigating arguments decreases when a\ndefendant presents “stock arguments … about his family sit-\nuation and lack of criminal history,” as Graham did. United\nStates v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008) (internal\nquotation marks and alterations omitted). These “are pre-\ncisely the types of routine contentions that a sentencing court\n\f6 No. 18-2156\n\nis certainly free to reject without discussion.” Id. (internal quo-\ntation marks omitted).\n Graham also faults the district court for failing to address\nhis extraordinary family circumstances as a father and pro-\nvider for six children, one with medical issues. He points to\ncases in which we remanded because the district court did not\ndiscuss a defendant’s unusual family situation. True enough,\na defendant’s family circumstances may be a legitimate basis\nfor a below-guidelines sentence if the district court finds “that\na defendant’s family ties and responsibilities … are so unu-\nsual that they may be characterized as extraordinary.”\nSchroeder, 536 F.3d at 755–56 (alteration in original and cita-\ntions omitted). But Graham did not argue that his incarcera-\ntion would leave his children in imminent danger or com-\npletely without care—he argued that the financial strain on\nthe family would only increase if he was incarcerated. See id.\nat 750–51, 756 (defendant was primary caregiver for daughter\nwhose significant medical problems made daycare unsafe\nand defendant’s absence would make arranging care impos-\nsible). Sadly, as we have observed: “Most families suffer emo-\ntional and financial harm when a parent is imprisoned. Any\nexperienced district judge has heard about those effects many\ntimes and must recognize that those effects are consequences\nof the parent’s crime, not the sentence imposed.” United States\nv. Gary, 613 F.3d 706, 710 (7th Cir. 2010). Graham’s contention\nthat his large family would lose its main breadwinner and\nthat his children would suffer from their father’s absence, was\nnot extraordinary enough to warrant specific discussion.\nSee Martinez, 520 F.3d at 753. Moreover, the focus of Graham’s\nargument about his family was how the financial pressures of\nproviding for them led Graham to commit these crimes, and\nthe court addressed that mitigating argument.\n\fNo. 18-2156 7\n\n Next, Graham says that the court improperly focused on\nthe costs of incarceration to the exclusion of his substantial\nmitigating arguments, and therefore failed to adequately ex-\nplain the sentence. But even with this incidental policy dis-\ncussion, the district court did address Graham’s strongest\nmitigating argument (financial hardship) and explained that\nit was imposing 60 months for each armed robbery to account\nfor the egregiousness of Graham’s criminal conduct. That is\nenough “to allow for meaningful appellate review and to pro-\nmote the perception of fair sentencing.” Gall v. United States,\n552 U.S. 38, 590 (2007); see also United States v. Washington,\n739 F.3d 1080, 1081 (7th Cir. 2014).\n And the court’s discussion about incarceration costs, alt-\nhough not explicitly mentioned in 18 U.S.C. § 3553(a), played\ninto its “analysis of the cost benefit to society, [and] the benefit\nto the inmate.” See United States v. DuPriest, 794 F.3d 881, 884\n(7th Cir. 2015) (noting that same district judge’s commentary\non prison costs was proper in the context of discussing\n§ 3553(a) sentencing factors). In any event, the court reduced\nthe sentence because of its views on the costs of incarceration,\nso Graham arguably benefited from the court raising a miti-\ngating argument it found more persuasive.\n III. CONCLUSION\n The district court reviewed the § 3553(a) factors, ad-\ndressed Graham’s primary mitigation argument, and stressed\nthe aggravating fact that Graham had committed six rob-\nberies. This explanation allows for deferential appellate re-\nview, and thus we affirm the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366233/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588980/	Published	1	0	0	2,019	2	[ { "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...
4,589,047		United States v. Ruben Delhorno	2019-02-08	18-1707	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1707\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nRUBEN DELHORNO,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 11-CR-46 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED OCTOBER 23, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.\n HAMILTON, Circuit Judge. Defendant-appellant Ruben Del-\nhorno filed a petition for a writ of coram nobis, a rare form of\ncollateral attack on a criminal judgment. This ancient com-\nmon-law remedy is available to correct errors of fact and law\nin criminal cases, but only when: “(1) the error alleged is ‘of\nthe most fundamental character’ as to render the criminal con-\nviction ‘invalid’; (2) there are ‘sound reasons’ for the defend-\nant’s ‘failure to seek earlier relief’; and (3) ‘the defendant\n\f2 No. 18-1707\n\ncontinues to suﬀer from his conviction even though he is out\nof custody.’” United States v. Wilkozek, 822 F.3d 364, 368 (7th\nCir. 2016), citing United States v. Sloan, 505 F.3d 685, 697 (7th\nCir. 2007), and United States v. Keane, 852 F.2d 199, 203 (7th\nCir. 1988). Delhorno fails the second requirement. He cannot\noﬀer “sound reasons” for failing to seek earlier relief through\na direct appeal or habeas corpus petition. We therefore aﬃrm\nthe district court’s decision denying Delhorno’s writ of coram\nnobis.\nI. Factual and Procedural Background\n Delhorno, age 42, was born in Mexico but came to the\nUnited States with his parents when he was just three years\nold. He was living in the United States as a lawful permanent\nresident. (He could have applied for citizenship but never\ndid.) In 2011, Delhorno was pulled over for speeding. While\nthe oﬃcer was writing a speeding ticket, another oﬃcer ar-\nrived with his drug-detection canine. The dog sniﬀed the ve-\nhicle and alerted to the presence of drugs. Another oﬃcer at\nthe scene had been instructed in the installation of “trap”\ncompartments in vehicles and noticed that Delhorno’s vehicle\ncontained unusual wiring. The oﬃcers discovered four kilo-\ngrams of cocaine in a trap compartment in Delhorno’s vehicle.\n Delhorno was indicted by a grand jury in the Eastern Dis-\ntrict of Wisconsin for one count of possessing cocaine with in-\ntent to distribute in violation of 21 U.S.C. §§ 841(a)(1) &\n841(b)(1)(B). Delhorno pleaded guilty to the indictment on\nJanuary 26, 2012. At the change of plea hearing, Delhorno\nstated that he was born in Mexico and was a permanent resi-\ndent of the United States. However, there was no discussion\nabout the immigration consequences of his guilty plea, even\nthough the hearing took place more than a year after the\n\fNo. 18-1707 3\n\nSupreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010),\nthat a criminal defense lawyer provided ineﬀective assistance\nof counsel by failing to advise his client that his guilty plea\nwould subject him to automatic deportation.\n Following the change of plea hearing, the United States\nProbation Oﬃce prepared a presentence report that included\nthis passage:\n 49. Mr. Delhorno explains he was born in Mex-\n ico, but came with his parents to the United\n States when he was three years old. His family\n settled in Chicago Heights, Illinois. Mr. Del-\n horno notes his parents came to the United\n States illegally, seeking better opportunities for\n themselves and their children. In 1988, his par-\n ents were able to take advantage of an amnesty\n program and were granted legal residency sta-\n tus. Mr. Delhorno notes at that time he also was\n granted legal resident status. He acknowledges\n at the age of 18, he could have applied for citi-\n zenship, but he has not done so. Mr. Delhorno\n understood all his friends were born in the\n United States so he never thought of himself dif-\n ferently, so he did not pursue citizenship. Mr.\n Delhorno understands this may present problems for\n him, but he is trying to make arrangements to remain\n in the United States.\n 50. Bureau of Immigrations and Customs En-\n forcement confirmed Mr. Delhorno was granted\n legal permanent resident status on 4/29/89. At\n this time, the defendant is not under investigation\n\f4 No. 18-1707\n\n for deportation, but upon entry of judgement, the\n matter will be investigated.\nPresentence Report ¶¶ 49–50 (emphasis added).\n Delhorno was sentenced on October 5, 2012. His lawyer\ntold the judge that Delhorno was seeking a “visa to remain in\nthe United States because he is a resident alien and never\nsought citizenship[.]” Delhorno’s Sentencing Guideline range\nwas 78 to 97 months in prison. He was sentenced to 60 months\nin prison, followed by a supervised release term of four years.\nThe court entered the written judgment and commitment or-\nder that same day. Delhorno never filed a direct appeal or a\nhabeas corpus petition.\n On February 26, 2015, while Delhorno was in prison, he\nfiled a motion to modify his term of imprisonment pursuant\nto 18 U.S.C. § 3582(c)(2), based on a retroactive change to the\nSentencing Guidelines. After briefing, this motion was de-\nnied. On May 26, 2016, Delhorno filed an amended motion to\nmodify his term of imprisonment pursuant to § 3582, which\nwas also denied.\n On approximately May 1, 2017, Delhorno completed his\nprison sentence and was transferred to the custody of the U.S.\nImmigration and Customs Enforcement (“ICE”) for removal\nprocedures. On October 13, 2017, Delhorno filed his petition\nfor a writ of coram nobis. In the petition and attached aﬃda-\nvit, Delhorno argued that he received ineﬀective assistance of\ncounsel in his criminal case because his lawyer failed to ad-\nvise him that pleading guilty subjected him to mandatory de-\nportation. He contended that if he had known this, he would\nnever have pleaded guilty. Delhorno referenced and included\nthe transcript from his change of plea hearing which shows\n\fNo. 18-1707 5\n\nthat the court also failed to address the immigration conse-\nquences of his guilty plea. In support of his arguments, he\ncited Lee v. United States, 137 S. Ct. 1958 (2017), Padilla v. Ken-\ntucky, 559 U.S. 356 (2010), and Hill v. Lockhart, 474 U.S. 52, 59\n(1985).\n The government responded, stating that it believed the\nrecord needed to be developed further through a hearing be-\nfore the court ruled on the petition. The district court disa-\ngreed and denied Delhorno’s petition without a hearing. Del-\nhorno argues on appeal that this was a mistake. We review\nthe district court’s decision to deny an evidentiary hearing for\nan abuse of discretion. See Blanton v. United States, 94 F.3d 227,\n235 (6th Cir. 1996), citing Green v. United States, 65 F.3d 546,\n548 (6th Cir. 1995); see also United States v. Fuller, 86 F.3d 105,\n107 (7th Cir. 1996) (judge “had no duty to conduct an eviden-\ntiary hearing if, by analogy to summary judgment, he could\ndetermine on the basis of aﬃdavits, depositions, or other doc-\numentary materials of evidentiary quality that there was no\ngenuinely contestable issue of fact”). As we explain below, the\nrecord here provided a suﬃcient basis to deny the petition\nwithout a hearing, so the district court acted within its discre-\ntion in denying a hearing.\n Delhorno filed a timely notice of appeal on April 2, 2018.\nHe also filed a motion in the Eleventh Circuit for a stay of re-\nmoval. That motion was denied on May 27, 2018, and Del-\nhorno was deported to Mexico.\nII. Analysis\n The writ of coram nobis is a means for a collateral attack\non a criminal conviction alleging errors of law or fact that af-\nfect the fundamental character of the conviction, including\n\f6 No. 18-1707\n\ninadequate counsel. Chaidez v. United States, 568 U.S. 342\n(2013). It is similar to a habeas corpus petition and aﬀords the\nsame type of relief, United States v. Bonansinga, 855 F.2d 476,\n478 (7th Cir. 1988), but it is available only when a defendant\nis no longer in custody and thus can no longer take advantage\nof habeas corpus relief. Stanbridge v. Scott, 791 F.3d 715, 720\nn.3 (7th Cir. 2015). According to the Supreme Court, the writ\nof coram nobis is to be used only in “extraordinary cases pre-\nsenting circumstances compelling its use to achieve justice,”\nwhere alternative remedies are not available. United States v.\nDenedo, 556 U.S. 904, 911 (2009), citing United States v. Morgan,\n346 U.S. 502, 511 (1954) (internal quotation marks omitted).\nWe have explained that a successful coram nobis petition\nmust satisfy three prongs: “(1) the error alleged is ‘of the most\nfundamental character’ as to render the criminal conviction\n‘invalid’; (2) there are ‘sound reasons’ for the defendant’s ‘fail-\nure to seek earlier relief’; and (3) ‘the defendant continues to\nsuﬀer from his conviction even though he is out of custody.’”\nUnited States v. Wilkozek, 822 F.3d 364, 368 (7th Cir. 2016).\n In reviewing a district court’s denial of a writ of coram\nnobis without a hearing, this court conducts a de novo analysis\nof the legal conclusions and a factual review for clear error. Id.\nWe consider the three factors in a diﬀerent order here than set\nforth above. We conclude that Delhorno continues to suﬀer\nfrom his conviction, but he likely cannot demonstrate funda-\nmental error, and he certainly cannot justify his failure to seek\nearlier relief. We aﬃrm the denial of his petition for a writ of\ncoram nobis.\n\fNo. 18-1707 7\n\n 1. Continued Suﬀering\n First, we have no doubt that Delhorno continues to suﬀer\nfrom his conviction even though he is out of custody. We have\nexplained that coram nobis is\n a postconviction remedy, equivalent to habeas\n corpus or (for persons convicted in federal\n court) section 2255, for petitioners who have\n served their sentences and so cannot invoke ei-\n ther of those remedies but who as a result of\n having been convicted are laboring under some\n serious civil disability that they’d like to elimi-\n nate by setting aside their conviction—and re-\n moval from the United States is serious, civil,\n and a consequence of the petitioner’s convic-\n tion.\nClarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013); see\nalso Martignoni v. United States, No. 10 Civ. 6671 JFK, 2011 WL\n4834217, at *12 (S.D.N.Y. Oct. 12, 2011) (“Deportation is clearly\na legal consequence of conviction suﬃcient to warrant coram\nnobis relief where all other requirements are satisfied[.]”). Del-\nhorno is no longer in prison and is not on supervised release,\nso a writ of coram nobis is an appropriate means to challenge\nthe immigration consequences of his conviction. See Clarke,\n703 F.3d at 1101–02 (defendant on supervised release is in cus-\ntody for purposes of habeas corpus and therefore cannot seek\na writ of coram nobis).\n Delhorno has been deported from the country where he\nlived since he was three years old, back to a country where he\nlikely has minimal ties. His children and fiancée live in the\nUnited States, and he will not be able to return unless his\n\f8 No. 18-1707\n\nconviction is vacated. This is a significant additional penalty\nthat followed his term of imprisonment. These continuing ef-\nfects satisfy this prong of the coram nobis analysis.\n 2. Fundamental Error\n To secure a writ of coram nobis, the error in the defend-\nant’s criminal conviction must be “of the most fundamental\ncharacter” so as to render the conviction “invalid.” Wilkozek,\n822 F.3d at 368. Delhorno attempts to satisfy this prong\nthrough a claim for ineﬀective assistance of counsel pursuant\nto Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To do\nthis, he must demonstrate that counsel’s performance was ob-\njectively unreasonable and that the deficient performance\nprejudiced the defense. Id. While we do not base our decision\non a failure to meet this prong of the coram nobis analysis\nwithout a hearing, it is very unlikely Delhorno could demon-\nstrate that he was prejudiced.\n In Padilla v. Kentucky, the Supreme Court held that crimi-\nnal defense attorneys must inform non-citizen clients of the\nrisks of deportation arising from guilty pleas. 559 U.S. 356,\n366–68 (2010); see also Chaidez v. United States, 568 U.S. 342,\n345–47 (2013) (concluding that Padilla adopted a new rule and\nwas not retroactive). Delhorno’s guilty plea and sentencing\noccurred more than a year after Padilla was issued, and we are\ntroubled that apparently neither his counsel, the prosecutor,\nnor the court raised the issue of the mandatory immigration\nconsequences with him.1\n\n\n 1Delhorno’s lawyer alluded to these consequences at the sentencing\nhearing when he explained that Delhorno was seeking a visa to remain in\nthe United States. There does not appear to have been any discussion of\nmandatory deportation as a result of the conviction.\n\fNo. 18-1707 9\n\n We are not convinced, however, that this apparently defi-\ncient performance prejudiced Delhorno, as required for relief\nunder Strickland. Delhorno must show “there is a reasonable\nprobability that, but for counsel’s errors, [he] would not have\npled guilty and would have insisted on going to trial.” United\nStates v. Reeves, 695 F.3d 637, 639 (7th Cir. 2012), quoting Bethel\nv. United States, 458 F.3d 711, 716 (7th Cir. 2006); see also Lee\nv. United States, 137 S. Ct. 1958, 1965 (2017). The evidence\nagainst Delhorno was very strong: he was stopped while driv-\ning with four kilograms of cocaine hidden in a trap compart-\nment. Delhorno himself showed the oﬃcers how to operate\nthe trap. Delhorno concedes that success at trial was a “long\nshot.” Given the likelihood of conviction at trial and a poten-\ntially longer prison sentence, coupled with the fact that Del-\nhorno was at least aware of the immigration issues, we find it\nunlikely that Delhorno would have proceeded to trial if he\nhad been given proper Padilla warnings.\n We are unpersuaded by Delhorno’s comparison of his sit-\nuation to that in Lee v. United States, a case in which the Su-\npreme Court found that the defendant established a reason-\nable probability that he would not have pleaded guilty if he\nhad known of the immigration consequences. 137 S. Ct. 1958,\n1969 (2017). In Lee, before the defendant pleaded guilty to an\naggravated felony, he had asked his attorney multiple times\nwhether he would be deported. Id. at 1967–68. His attorney\naﬃrmatively told him that he would not be deported. Id. at\n1963. Lee also specifically told the sentencing judge that de-\nportation would aﬀect his decision to plead guilty. Id. at 1968.\nAfter discovering that he would be deported, Lee immedi-\nately filed a § 2255 motion. Id. at 1963. Both Lee and his attor-\nney testified at the subsequent hearing that he would not have\npleaded guilty if he had known he would be deported. Id.\n\f10 No. 18-1707\n\n In contrast, Delhorno has produced no contemporaneous\nevidence showing that he would not have pleaded guilty. His\nprotests appear to be more in the category of “post hoc asser-\ntions from a defendant about how he would have pleaded but\nfor his attorney’s deficiencies.” Id. at 1967. These do not weigh\nin favor of upsetting Delhorno’s guilty plea through a writ of\ncoram nobis. Id. Despite our skepticism, though, the district\ncourt denied Delhorno’s request for a hearing to present his\nargument and evidence. If this prong were dispositive, it\nmight be necessary to remand for a hearing. Delhorno fails to\nsatisfy the final prong, however, so we need not reach a firm\nconclusion on whether a hearing was necessary on the merits.\n 3. Sound Reasons for Delay\n We agree with the district court that Delhorno failed to\ntake any steps regarding his immigration status until he filed\nthis coram nobis petition, five years after he was sentenced.\nAs noted, a person seeking a writ of coram nobis must oﬀer\nsound reasons for his failure to seek relief earlier. Wilkozek,\n822 F.3d at 368. Delhorno has failed to justify his delay, and\non this ground we aﬃrm the denial of his petition.\n Based on his presentence report, which was filed in April\n2012 in advance of his October 2012 sentencing, Delhorno\nknew or should have known that his conviction could lead to\nhis deportation. The report said that Delhorno knew his non-\ncitizenship could present problems for him and that he was\n“trying to make arrangements to remain in the United States.”\nThe report also said that ICE would investigate his case for\ndeportation following the entry of judgment. With this\nknowledge, Delhorno went ahead and pleaded guilty. At his\nsentencing hearing, his lawyer explained to the court that Del-\nhorno was seeking a visa because he was a resident alien and\n\fNo. 18-1707 11\n\nhad never sought citizenship. Also, as the district court noted,\nDelhorno would have likely discovered this immigration is-\nsue when he was classified as a “deportable alien” by the Fed-\neral Bureau of Prisons when he was taken into custody.2\n At the time when he knew or should have known about\nhis immigration issues, Delhorno had multiple avenues for re-\nlief. He could have filed a direct appeal. He also could have\nfiled a habeas corpus petition under 28 U.S.C. § 2255. He did\nneither. The statute of limitations for a habeas corpus petition\nwould have run from “the date on which the facts supporting\nthe claim or claims presented could have been discovered\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4)\n(emphasis added). A reasonably diligent defendant would\nhave discovered the immigration issues by reviewing the\npresentence report, paying attention at the sentencing hear-\ning, and noticing his BOP classification. Delhorno had an en-\ntire year—until October 2013—to file a habeas petition.\n Delhorno has oﬀered no justification for failing to seek ear-\nlier relief through less extraordinary channels. The record\nshows conclusively that he knew or should have known about\nhis immigration issues before, during, and after his\n\n 2 We assume for purposes of this appeal that no one ever told Del-\nhorno that he would certainly be deported (i.e., that he was subject to man-\ndatory deportation). At oral argument in this appeal, Delhorno’s counsel\nexplained that Delhorno may have pleaded guilty knowing there were im-\nmigration issues but with the understanding that there could be avenues\nfor him to continue living in the United States through some sort of visa.\nWe do not believe the distinction between a warning of mandatory depor-\ntation as opposed to likely deportation matters for our present purposes.\nDelhorno was clearly aware that there were immigration consequences to\nhis guilty plea. He chose to go ahead with his plea and did not raise any\nchallenges for five years.\n\f12 No. 18-1707\n\nsentencing. Delhorno’s five-year delay in addressing this is-\nsue was unreasonable and prevents the federal courts from\ngranting relief through the extraordinary form of a writ of co-\nram nobis. The district court’s denial of Delhorno’s petition is\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366300/", "author_raw": "David Frank Hamilton"}]}	KANNE	HAMILTON	ST EVE	1	{"KANNE": ", Circuit", "HAMILTON": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589047/	Published	1	0	0	2,019	2	[ { "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...
4,589,048		United States v. Hiram Graham	2019-02-08	18-2156	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE and ST. EVE, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2156\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nHIRAM OMAR GRAHAM,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 17-CR-220 — J.P. Stadtmueller, Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019— DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE and ST. EVE, Cir-\ncuit Judges.\n PER CURIAM. Hiram Graham pleaded guilty to Hobbs Act\nrobbery and using a firearm during a crime of violence. At\nsentencing, he argued that his financial hardships, his extraor-\ndinary family situation, and his lack of a criminal record\nshould mitigate his sentence. He now contends that the dis-\ntrict court failed to address these arguments or adequately ex-\nplain his 144-month, below-guidelines prison sentence. But\n\f2 No. 18-2156\n\nthe district court did not commit these procedural errors, so\nwe affirm the judgment.\n I. BACKGROUND\n Over a five-month period, Graham robbed six Aldi gro-\ncery stores at gunpoint. He had worked at an Aldi in Milwau-\nkee for six years, before he was fired four months before the\nfirst robbery for stealing food. Graham targeted Aldi stores\nbecause of his insider knowledge, including his knowledge\nthat Aldi trains employees to acquiesce to robbers. Graham\nwould enter a store a few minutes before closing, hide until it\nclosed, then approach employees with his gun drawn and in-\nstruct them to empty the safe. Two weeks after the sixth rob-\nbery, Graham was arrested, and he later confessed.\n Graham pleaded guilty to six counts of Hobbs Act rob-\nbery, 18 U.S.C. § 1951(a), and one count of using a firearm\nduring of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). In\ncalculating the applicable imprisonment range under the Sen-\ntencing Guidelines, the district court found that Graham had\na total offense level of 28 and criminal history category of I,\ngiving him a range of 78 to 97 months for each robbery, fol-\nlowed by a mandatory consecutive sentence of 84 months for\nthe § 924(c) conviction. See 18 U.S.C. § 924(c)(1)(D)(ii) (man-\ndating that sentence for 924(c) conviction be imposed consec-\nutively). Consistent with Graham’s plea agreement, the gov-\nernment recommended a within-guidelines sentence.\n At sentencing, Graham argued that he should receive the\n“least restrictive sentence available”—just 84 months’ impris-\nonment for the § 924(c) conviction and no additional time—\nbecause his case was unique. For thirty years, Graham had\nbeen a productive member of society, graduating high school\n\fNo. 18-2156 3\n\nand working two full-time jobs to support his girlfriend and\nsix children. Counsel recounted that Graham had lived a\ncrime-free life until the financial pressures of six children, one\nwith serious medical issues, overwhelmed him and drove\nhim to use drugs, steal food, and, finally, rob his former em-\nployer under the influence of cocaine. Counsel stressed that\nGraham had learned his lesson, was statistically “unlikely to\nreoffend,” and that, because of his family support, there was\nevery reason to believe that he would be rehabilitated.\n Before hearing the parties’ arguments, the district court\nstated that it had reviewed Graham’s twelve-page sentencing\nmemorandum and other submissions. And after hearing all\nthe arguments, the court commented that it understood that\nGraham, “like so many,” had been “confronted with financial\nchallenges,” which “may serve as an explanation for” his con-\nduct. But, the court continued, this did “not provide a mean-\ningful excuse for anyone to take matters into their own hands\nand go about taking from others.” Graham’s criminal con-\nduct, the court emphasized, had not been “spur of the mo-\nment,” but “well-planned, executed such that it took law en-\nforcement” additional time to discover who the perpetrator\nwas, and that there was “too much in the way of criminal con-\nduct” to justify the sentence Graham requested.\n Next, the district court discussed at some length the exor-\nbitant costs of incarceration and the ballooning prison popu-\nlation. It explained that “this branch of the court and others\nare beginning to factor into their analysis of the cost benefit to\nsociety” this issue in deciding “how much is enough.”\n The court then determined that, considering “uniformity,\nproportionality, certainty, and cost,” concurrent sentences of\n60 months’ imprisonment for each robbery was appropriate,\n\f4 No. 18-2156\n\nfollowed by the mandatory consecutive sentence of 84\nmonths for the firearm conviction, for a total sentence of 144\nmonths. The sentence was justified, the court concluded, by\nthe “totality of the facts and circumstances” underlying the\nsix robberies.\n II. ANALYSIS\n We review claimed procedural errors de novo. See United\nStates v. Lockwood, 840 F.3d 896, 900 (7th Cir. 2016). Graham\nfirst argues that the district court procedurally erred when it\nfailed to address his mitigation arguments and adequately ex-\nplain its consideration of them. At sentencing, a court must\naddress the parties’ principal arguments, and “where a de-\nfendant’s principal argument is not so weak as not to merit\ndiscussion, the court must explain its reason for rejecting that\nargument.” United States v. Reed, 859 F.3d 468, 472 (7th Cir.\n2017) (internal quotation marks omitted).\n As to the primary factor concerning the sentence imposed,\nwe turn first to Graham’s claim of financial hardship. Alt-\nhough the district court did not say much about how this mit-\nigation argument influenced its sentence, its remarks demon-\nstrate that it was unpersuaded that Graham’s severe and es-\ncalating financial troubles outweighed the aggravating cir-\ncumstances of his six robberies. The court acknowledged Gra-\nham’s financial challenges but responded that they did not of-\nfer an excuse for armed robbery. Graham maintains that this\nstatement alone was insufficient, but a “short explanation” for\nrejecting a mitigating argument “will suffice where the con-\ntext and record make clear the reasoning underlying the dis-\ntrict court’s conclusion.” United States v. Schroeder, 536 F.3d\n746, 755 (7th Cir. 2008) (citing Rita v. United States, 551 U.S.\n\fNo. 18-2156 5\n\n338, 358–59 (2007)); see United States v. Castaldi, 743 F.3d 589,\n595 (7th Cir. 2014).\n Here, directly after mentioning Graham’s financial hard-\nship, the court noted that the robberies were “not spur of the\nmoment,” but “well-planned,” and involved conduct too\negregious—“heinous” and “contrary to every moral pre-\ncept”—to allow it to sentence him as leniently as his counsel\nhad advocated.\n As to the other mitigating factors Graham raised—his lack\nof a criminal record, strong family ties, and drug use—he is\ncorrect; the district court did not discuss them. And a court\nthat fails to mention a ground of recognized legal merit likely\nerrs. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.\n2005). But the requirement that a court specifically address the\ndefendant’s principal arguments “applies with less force”\nwhere it receives written and oral sentencing arguments and\nimposes a prison sentence “significantly below the applicable\nguidelines range.” United States v. Poetz, 582 F.3d 835, 837\n(7th Cir. 2009). And a court’s statement that it has read the\ndefendant’s submissions is often “enough to satisfy us that [it\nhas] considered the argument and rejected it.” United States\nv. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007). That is\nwhat happened here: the district court stated that it had re-\nviewed Graham’s submissions and heard oral argument be-\nfore explaining its below-guidelines sentence. Besides, the ob-\nligation to address mitigating arguments decreases when a\ndefendant presents “stock arguments … about his family sit-\nuation and lack of criminal history,” as Graham did. United\nStates v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008) (internal\nquotation marks and alterations omitted). These “are pre-\ncisely the types of routine contentions that a sentencing court\n\f6 No. 18-2156\n\nis certainly free to reject without discussion.” Id. (internal quo-\ntation marks omitted).\n Graham also faults the district court for failing to address\nhis extraordinary family circumstances as a father and pro-\nvider for six children, one with medical issues. He points to\ncases in which we remanded because the district court did not\ndiscuss a defendant’s unusual family situation. True enough,\na defendant’s family circumstances may be a legitimate basis\nfor a below-guidelines sentence if the district court finds “that\na defendant’s family ties and responsibilities … are so unu-\nsual that they may be characterized as extraordinary.”\nSchroeder, 536 F.3d at 755–56 (alteration in original and cita-\ntions omitted). But Graham did not argue that his incarcera-\ntion would leave his children in imminent danger or com-\npletely without care—he argued that the financial strain on\nthe family would only increase if he was incarcerated. See id.\nat 750–51, 756 (defendant was primary caregiver for daughter\nwhose significant medical problems made daycare unsafe\nand defendant’s absence would make arranging care impos-\nsible). Sadly, as we have observed: “Most families suffer emo-\ntional and financial harm when a parent is imprisoned. Any\nexperienced district judge has heard about those effects many\ntimes and must recognize that those effects are consequences\nof the parent’s crime, not the sentence imposed.” United States\nv. Gary, 613 F.3d 706, 710 (7th Cir. 2010). Graham’s contention\nthat his large family would lose its main breadwinner and\nthat his children would suffer from their father’s absence, was\nnot extraordinary enough to warrant specific discussion.\nSee Martinez, 520 F.3d at 753. Moreover, the focus of Graham’s\nargument about his family was how the financial pressures of\nproviding for them led Graham to commit these crimes, and\nthe court addressed that mitigating argument.\n\fNo. 18-2156 7\n\n Next, Graham says that the court improperly focused on\nthe costs of incarceration to the exclusion of his substantial\nmitigating arguments, and therefore failed to adequately ex-\nplain the sentence. But even with this incidental policy dis-\ncussion, the district court did address Graham’s strongest\nmitigating argument (financial hardship) and explained that\nit was imposing 60 months for each armed robbery to account\nfor the egregiousness of Graham’s criminal conduct. That is\nenough “to allow for meaningful appellate review and to pro-\nmote the perception of fair sentencing.” Gall v. United States,\n552 U.S. 38, 590 (2007); see also United States v. Washington,\n739 F.3d 1080, 1081 (7th Cir. 2014).\n And the court’s discussion about incarceration costs, alt-\nhough not explicitly mentioned in 18 U.S.C. § 3553(a), played\ninto its “analysis of the cost benefit to society, [and] the benefit\nto the inmate.” See United States v. DuPriest, 794 F.3d 881, 884\n(7th Cir. 2015) (noting that same district judge’s commentary\non prison costs was proper in the context of discussing\n§ 3553(a) sentencing factors). In any event, the court reduced\nthe sentence because of its views on the costs of incarceration,\nso Graham arguably benefited from the court raising a miti-\ngating argument it found more persuasive.\n III. CONCLUSION\n The district court reviewed the § 3553(a) factors, ad-\ndressed Graham’s primary mitigation argument, and stressed\nthe aggravating fact that Graham had committed six rob-\nberies. This explanation allows for deferential appellate re-\nview, and thus we affirm the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366301/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Cir cuit", "ST EVE": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589048/	Published	1	0	0	2,019	2	[ { "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...
4,589,049		Ronnie L. Winsted, Jr. v. Nancy A. Berryhill	2019-02-08	18-2228	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐2228 \nRONNIE L. WINSTED, JR., \n Plaintiff‐Appellant, \n v. \n\nNANCY A. BERRYHILL, \nActing Commissioner of Social Security, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court \n for the Southern District of Indiana, Terre Haute Division. \n No. 2:17‐cv‐00137‐MJD‐WTL — Mark J. Dinsmore, Magistrate Judge. \n\n ____________________ \n\n ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 8, 2019 \n ____________________ \n\n Before MANION, BRENNAN, and SCUDDER, Circuit Judges. \n BRENNAN, Circuit Judge. Ronnie Winsted applied for disa‐\nbility insurance benefits and supplemental security income \nclaiming disability based on numerous conditions, including \ndegenerative disc disease, osteoarthritis, and anxiety. An \nadministrative law judge denied benefits, finding that Win‐\nsted could work with certain limitations. After the district \n\f2 No. 18‐2228 \n\ncourt upheld this denial, Winsted appealed, arguing the ALJ \ndid not consider his difficulties with concentration, persis‐\ntence, and pace. We agree—the ALJ did not adequately \nexplain how the limitations he placed on Winsted’s residual \nfunctional capacity accounted for the claimant’s mental diffi‐\nculties, so we remand to the agency. \n I. Background \n Winsted was 42 years old when he applied for benefits, \nasserting an onset date of October 2010. Although he initially \nalleged he became disabled in 2005, two prior applications \nalleging this onset date were denied and deemed administra‐\ntively final. \n \n\n Winsted suffers from multiple physical impairments, \nmostly associated with his previous work in hard labor as an \nindustrial truck driver, a highway maintenance worker, and \nan operating engineer. MRIs taken in 2010 and 2011 showed \nhe had focal, isolated degenerative disc disease. Other tests \nrevealed osteoarthritis, mild carpal tunnel syndrome in his \nhands, and cavus (high‐arched) foot that he treats with special \nshoes. \n \n\n Winsted complained of shortness of breath in May 2011 \nand was diagnosed with acute bronchitis and chronic obstruc‐\ntive pulmonary disease (“COPD”). Although he wheezed at \ntimes, he often responded well to medication. Throughout the \nrelevant period, Winsted sometimes complained of wheez‐\ning, but often his lungs were clear. A pulmonary function test \nin 2013, however, showed Winsted had moderate obstructive \nlung disease and possibly restrictive lung disease. \n \n\n Winsted began seeing an internist, Dr. Nedu Gopala, for \nback pain in August 2013. The doctor prescribed medication \n\fNo. 18‐2228 3\n\nfor Winsted’s breathing, chest pain, back pain, and anxiety. \nAt appointments throughout 2013 and into March 2015, \nWinsted’s range of motion in his arms and legs alternated \nfrom full, to limited. He maintained a chronic cough, mild \nshortness of breath, and wheezing, though a 2014 pulmonary \nfunction test did not show any evidence of lung obstruction. \n \n\n To address stress‐related heart issues, Winsted sought \nmental‐health treatment in 2012. A therapist diagnosed him \nwith a panic disorder, post‐traumatic stress disorder, and \nmajor depressive disorder. Winsted had a guarded attitude, \n“very little insight,” “below average” intellect, and was \nassigned a Global Assessment of Function (“GAF”) of 51, \nindicating he had moderate difficulty in social and occupa‐\ntional functioning.1 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND \nSTATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). \nIn his therapy appointments, Winsted regularly complained \nabout altercations with neighbors. \n \n\n Later that year, Winsted sought treatment from a psychia‐\ntrist, who diagnosed major depressive disorder and assigned \na GAF of 45, indicating a serious impairment in social or \noccupational functioning. AM. PSYCHIATRIC ASS’N, supra. The \npsychiatrist reported that Winsted was tense, anxious, “very \nrestless,” and moderately depressed. He prescribed medica‐\ntion for anxiety and depression and continued to treat Win‐\nsted. \n \n\n \n1 The GAF, which assesses an “individual’s overall level of functioning,” \n\nCraft v. Astrue, 539 F.3d 668, 676 n.7 (7th Cir. 2008), is no longer widely \nused by psychiatrists and psychologists, but it was sometimes referred to \nin social security disability hearings during Winsted’s proceedings. \nSee Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015). \n\f4 No. 18‐2228 \n\n Between September 2013 and February 2015, Winsted’s \nmental health fluctuated. In September 2013, Winsted’s \npsychiatrist reported that his affect was appropriate, his \nmood was not depressed, and “on the whole [he was] doing \nbetter.” But two months later, Winsted’s affect was anxious, \nhis mood was depressed, he was “feeling more irritable, \nanxious, and restless,” and he suffered panic attacks. At a \ntherapy session in July 2014, a therapist reported Winsted’s \n“symptoms of depression and worry impair overall function‐\ning,” and in August and November 2014, he was “mildly \ndepressed.” But in February 2015, Winsted presented with an \nappropriate affect and a not‐depressed mood. The same was \ntrue in April 2015, though Winsted reported he sometimes felt \n“tense and anxious” and stress continued to cause him to \n“become overwhelmed.” \n \n\n The disability application also triggered an examination in \n2013 from an agency psychologist, Dr. Steven Marlow, who \ndiagnosed Winsted with major depressive disorder, a gener‐\nalized anxiety disorder, and a panic disorder. Specifically, he \nreported Winsted “has a[n] avoidant, hostile, and easily \ndistracted attitude.” Dr. Marlow determined Winsted had \nbelow average levels of mental control, understanding and \nmemory, and concentration; poor levels of persistence; and he \ndid not do well in social situations. \n \n\n A state‐agency physician, Dr. George Siderys, also exam‐\nined Winsted in 2013 and opined he had a mild functional \nimpairment. This included: “mild decrease in range of mo‐\ntion,” pain that would be “expected to cause him problems \nwith prolonged standing, walking, or heavy lifting,” and a \nhistory of heart difficulties that would cause him to “wear out \nif he participated in prolonged walking or lifting.” \n\fNo. 18‐2228 5\n\n \n\n In connection with Winsted’s disability claim, treating \nphysician Dr. Gopala completed a physical residual func‐\ntional capacity (“RFC”) questionnaire in early 2015 and \nreported Winsted suffered from hypertension, COPD, and \nback pain, and described Winsted’s prognosis for back pain \nas “poor.” He determined Winsted had a “painful range of \nmovement” and was incapable of performing even “low \nstress” work. Dr. Gopala also wrote that Winsted’s symptoms \nwould affect his attention and concentration frequently; he \ncould walk only about one block; and he could sit or stand for \nonly 15 minutes at a time. \n \n\n In April 2015, treating therapist Jessica Nevill filled out a \nmental RFC questionnaire. She opined Winsted had marked \nimpairments in his abilities to: relate to other people, respond \nto supervision, respond to work pressures, and respond \nappropriately to changes in the work setting. She wrote \nWinsted would miss work three to four days per month \nbecause of his impairments. \n \n\n After the Social Security Administration denied Winsted’s \napplication, he had a hearing before an ALJ. Winsted testified \nhe used an inhaler twice a day, slept with a CPAP machine, \nused a nebulizer for breathing every three months, and con‐\ntinued to smoke a half‐a‐pack of cigarettes per day. He said \nhe could not grip a two‐liter bottle with his left hand. Due to \nthe pain in his knees and feet, he said he could stand for only \na few minutes and, even then, he could not stand still. He also \nsaid he could walk only a few blocks before needing to stop \nand catch his breath, and experienced chest pain three to four \ntimes per week. He noted he has trouble getting along with \npeople and does not like to be around groups. \n \n\f6 No. 18‐2228 \n\n After Winsted testified, the ALJ asked the vocational \nexpert (“VE”) three hypothetical questions. First, the ALJ \nasked the VE to consider an individual of the same age, \neducation, and work experience as Winsted. He continued: \n \n\n This hypothetical individual would be capable \n of light work, but four hours maximum stand‐\n ing and walking in an eight hour day, only \n occasional climbing of ramps, and stairs, but no \n ropes, ladders, or scaffolds, only occasional bal‐\n ancing, stooping, kneeling, crouching, and \n crawling. Frequent, but not constant handling \n and fingering bilaterally. This individual would \n need to avoid concentrated exposure to breath‐\n ing irritants, such as fumes, orders, dust, and \n gasses, as well as wet, slippery surfaces, and \n unprotected heights and would further be \n limited to only simply reaching, repetitive tasks, \n with few workplace changes, no team work, \n and no interactions with the public. \n \n\nThe expert determined such a person could work as a bench \nassembler, electronics worker, or production assembler. In \nthe second hypothetical, the ALJ asked about an individual \nwith the same limitations as in the first hypothetical, but who \nalso “due to impair‐related symptoms, such as the need to lay \ndown during the day to relieve pain would be off task 20% of \nthe work day.” The VE replied that such an individual could \nnot sustain employment. Finally, the ALJ asked about a per‐\nson with all the same limitations as provided in the first hy‐\npothetical, “but due to the frequency of bad days versus good \ndays, this individual would have two unscheduled absences \n\fNo. 18‐2228 7\n\nper month.” Again, the VE answered, “there would be no \njobs.” \n \n\n The ALJ conducted the Administration’s 5‐step analysis, \nsee 20 C.F.R. § 404.1520(a), § 416.920(a), and found Winsted \nnot disabled. At Step 1 the ALJ determined Winsted had not \nengaged in substantial gainful activity since October 22, 2010. \nAt Step 2 the ALJ identified Winsted’s severe impairments as \ndegenerative disc disease of the lumbar spine, bilateral carpal \ntunnel syndrome, osteoarthritis in his left knee, bilateral \ncavus foot, COPD, obstructive sleep apnea, obesity, an affec‐\ntive disorder, and an anxiety disorder. At Step 3 the ALJ \nacknowledged Winsted had moderate difficulty with social \nfunctioning and concentration, persistence, and pace because \nof his mental‐health issues, but concluded these severe \nimpairments did not meet a listing for presumptive disability. \nBetween Steps 3 and 4 the ALJ determined Winsted had the \nrequisite RFC to perform light work with certain limitations \n(as provided in the first hypothetical, and including being \nlimited to “simple, routine, repetitive tasks with few work‐\nplace changes, no team work, and no interaction with the pub‐\nlic”) but his limitations precluded him from performing his \npast relevant work (Step 4). At Step 5 the ALJ concluded, \nbased on Winsted’s age, education, work experience, and \nRFC, that he was capable of successfully changing to other \nwork. \n \n\n Winsted appealed to the agency’s Appeals Council, which \ndenied review. He then sought judicial review, and the par‐\nties agreed to have a magistrate judge adjudicate this case. \nSee 28 U.S.C. § 636(c). That judge upheld the ALJ’s decision. \n\f8 No. 18‐2228 \n\n II. Analysis \n \n\n A. ALJ’s Evaluation of Winsted’s Limitations in Concen‐\n tration, Persistence, and Pace \n \n\n Winsted argues neither the ALJ’s RFC nor his first hypo‐\nthetical question properly accounted for the finding that he \nhas “moderate” difficulties with concentration, persistence, \nand pace. He submits the ALJ’s proposed limitations—that \nWinsted perform only “simple, routine, repetitive tasks with \nfew workplace changes”—fail to address his concentra‐\ntion‐functioning deficits because “both the hypothetical \nposed to the VE and the ALJ’s RFC assessment must incorpo‐\nrate all of the claimant’s limitations supported by the medical \nrecord.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). \n \n\n Winsted’s argument here is correct. Again and again, we \nhave said that when an ALJ finds there are documented \nlimitations of concentration, persistence, and pace, the hypo‐\nthetical question presented to the VE must account for these \nlimitations. Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. \n2018); Varga, 794 F.3d at 814‐15; OʹConnor‐Spinner v. Astrue, \n627 F.3d 614, 620 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d \n679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 \n(7th Cir. 2003); see also Young v. Barnhart, 362 F.3d 995, 1003 \n(7th Cir. 2004). We have also made clear that in most cases \n“employing terms like ‘simple, repetitive tasks on their own \nwill not necessarily exclude from the VE’s consideration those \npositions that present significant problems of concentration, \npersistence and pace,” and thus, alone, are insufficient to pre‐\nsent the claimant’s limitations in this area. OʹConnor‐Spinner, \n627 F.3d at 620; see Moreno, 882 F.3d at 730. Here, at Step 3 the \nALJ found Winsted’s moderate difficulties with \n\fNo. 18‐2228 9\n\nconcentration, persistence, and pace could cause problems \nwith concentration and following written instructions, as well \nas stress with changes in his routine. And Winsted’s psychia‐\ntrist and therapist both remarked that stress caused Winsted \nto “become overwhelmed” and his depression impaired his \noverall functioning. \n \n\n But the first hypothetical the ALJ posed to the VE did not \ndirect the expert to consider problems with concentration, \npersistence, and pace, which is the hypothetical the ALJ relied \non for the RFC. Though particular words need not be \nincanted, we cannot look at the absence of the phrase “moder‐\nate difficulties with concentration, persistence, and pace” and \nfeel confident this limitation was properly incorporated in the \nRFC and in the hypothetical question. See OʹConnor‐Spinner, \n627 F.3d at 619. The ALJ may have thought, as the agency \nproposes, he was addressing Winsted’s concentration diffi‐\nculties by including limitations that would minimize social \ninteraction. But that restriction could just have likely been \nmeant to account for Winsted’s moderate difficulty with \nsocial functioning—the ALJ acknowledged Winsted experi‐\nences anxiety, panic attacks, and irritability when he is around \npeople. Nothing in the hypothetical question and the RFC, \nhowever, accounted for the ALJ’s discussion of how \nWinsted’s low GAF scores reflect serious mental‐health \nsymptoms or his mention that Winsted often “appeared tense, \nanxious, and/or restless” without interacting with other people. \nAdditionally, where a claimant’s limitations are stress‐\nrelated, as Winsted’s appear to be, the hypothetical question \nshould account for the level of stress a claimant can handle. \nSee Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007); \nJohansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002). \n\f10 No. 18‐2228 \n\nBut there was no restriction related to stress in the RFC or \nhypothetical question. \n \n\n Notably, it appears the ALJ disregarded testimony from \nthe VE about a person with limitations in concentration, per‐\nsistence, and pace. The ALJ asked two additional hypothetical \nquestions of the VE about an individual who would either be \noff task 20% of the workday or would have two unscheduled \nabsences per month—presumably assuming someone with \n“moderate difficulties with concentration, persistence, and \npace.” The VE responded that neither individual could \nsustain employment. But these responses are not reflected in \nthe ALJ’s decision, which means it cannot stand. \n \n\n B. ALJ’s Evaluation of the Medical Opinion Evidence \n \n\n Winsted also challenges the evidentiary weight the ALJ \ngave to four medical opinions, two from treating medical \nprofessionals (Dr. Gopala and Ms. Nevill) and two from state \nagency doctors (examining psychologist Dr. Marlow and \nconsultative examiner Dr. Siderys). \n \n\n Before reaching the merits of this argument, we must \naddress the agency’s contention that Winsted waived it. The \nagency is not correct on this; Winsted never “knowingly and \nintelligently relinquished” his claim, Wood v. Milyard, 566 U.S. \n463, 470 n.4 (2012). That he developed the argument poorly \nmeans at most he forfeited it. Brown v. Colvin, 845 F.3d 247, \n254 (7th Cir. 2016). \n \n\n Forfeited or not, this argument fails. In the decision, the \nALJ adequately articulated why he gave each opinion the \nweight he did, entitling his decision, in this respect, to our \ndeference. See Elder v. Astrue, 529 F.3d 408, 413, 416 (7th Cir. \n\fNo. 18‐2228 11\n\n2008). Starting with Dr. Gopala, the ALJ appropriately ques‐\ntioned the doctor’s conclusion—that Winsted had a painful \nrange of motion that made him incapable of engaging in \n“low‐stress” work—in light of other record evidence. This \nincluded Dr. Gopala’s own notes, which showed Winsted \nregularly had a full range of motion, no gross sensory or \nmotor deficits, fine motor skills within normal limits, and \nlungs that “have often been clear.” And though treating phy‐\nsician’s opinions, like Dr. Gopala’s, are usually entitled to \ncontrolling weight, see 20 C.F.R. § 404.1527(c)(2); SSR 96‐2p,2 \nan ALJ may discredit the opinion if it is inconsistent with the \nrecord. See Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016); \nCampbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); 20 C.F.R. \n§ 404.1527(c)(2). \n \n\n Next, Winsted argues the ALJ erred in giving little eviden‐\ntiary weight to Ms. Nevill’s mental RFC assessment. But the \nALJ wrote he discounted her report because she was a \nnon‐medical professional, and thus not an “acceptable medi‐\ncal source” See 20 CFR § 404.1513(a), § 416.913(a). Also, her \nfindings were “based solely on [Winsted’s] subjective \ncomplaints”—an appropriate reason for an ALJ to discount \nan opinion, see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. \n2008). Additionally, he found Ms. Nevill’s report, like Dr. Go‐\npala’s, was inconsistent with Winsted’s medical‐health record \nas a whole. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012) \n(citing 20 C.F.R. § 404.1527(c)(2)‐(3)). \n \n\n\n\n \n2 The treating‐physician rule, which was eliminated for claims filed after \n\nMarch 27, 2017, see 20 C.F.R. § 404.1520c (2017), still applies to Winsted’s \nearlier filed claim, see Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018); \n20 C.F.R. § 404.1527. \n\f12 No. 18‐2228 \n\n Finally, Winsted claims the ALJ gave short shrift to the \ntwo state examiners’ 2013 opinions, asserting the ALJ erred in \ndiscussing the state psychologist’s evaluation “in one \nsentence” and the state physician’s opinion in a footnote. But \nas the agency points out, the ALJ discussed these opinions \nthroughout the decision. The ALJ cited the state psycholo‐\ngist’s findings when discussing Winsted’s mental‐health \ndiagnosis, and referred repeatedly to the state physician’s \nopinion throughout his discussion of Winsted’s gait, grip \nstrength, and scattered wheezing. The court applies a \ncommon‐sense reading to the entirety of an ALJ’s decision. \nRice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004); Shramek \nv. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). Here, the ALJ ade‐\nquately articulated his reasons for discounting these two \nopinions—both reports were based on only one evaluation \nand largely reflected Winsted’s subjective reporting. See Elder, \n529 F.3d at 416; Rice, 384 F.3d at 371 (ALJs should rely on \nmedical opinions “based on objective observations,” not \n“subjective complaints.”); 20 C.F.R. § 404.1527(c)(i) (ALJs \nshould consider “frequency of examination” in weight it \nassigns opinion). \n \n\n III. Conclusion \n \n\n Because the ALJ’s hypothetical question to the vocational \nexaminer and the residual function capacity did not capture \none of Winsted’s most significant problems—his concentra‐\ntion‐functioning deficits—we conclude further proceedings \nare necessary on that issue only. Therefore, we REVERSE the \ndistrict court judgment and REMAND this case to the Social \nSecurity Administration.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366302/", "author_raw": "BRENNAN, Circuit Judge"}]}	MANION	BRENNAN	SCUDDER	1	{"MANION": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589049/	Published	1	0	0	2,019	2	[ { "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...
4,589,050		Linda Reed v. Columbia St. Mary's Hospital	2019-02-08	17-1469	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1469 \nLINDA REED, \n Plaintiff‐Appellant, \n v. \n\nCOLUMBIA ST. MARY’S HOSPITAL, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Eastern District of Wisconsin. \n No. 14‐CV‐330 — J.P. Stadtmueller, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 12, 2018 — DECIDED FEBRUARY 8, 2019 \n ____________________ \n\n Before EASTERBROOK, ROVNER, and HAMILTON, Circuit \nJudges. \n HAMILTON, Circuit Judge. Plaintiﬀ‐appellant Linda Reed al‐\nleges that she suﬀered discrimination on the basis of her dis‐\nabilities while she was a patient at defendant‐appellee Colum‐\nbia St. Mary’s Hospital in March 2012. Among other things, \nshe contends that the hospital failed to accommodate her dis‐\nabilities by deliberately withholding from her a device she \nused to speak and discriminated against her by putting her in \n\f2 No. 17‐1469 \n\na “seclusion” room to punish her. She brought claims under \nTitle III of the Americans with Disabilities Act (“ADA”), 42 \nU.S.C. § 12181, which governs public accommodations of‐\nfered by private entities, including hospitals, as well as Sec‐\ntion 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Wis‐\nconsin Mental Health Act, Wis. Stat. § 51.61. \n The district court granted the hospital’s motion for sum‐\nmary judgment, dismissing the federal claims with prejudice \nand declining to exercise supplemental jurisdiction over the \nremaining state‐law claims. Reed v. Columbia St. Mary’s Hospi‐\ntal, 236 F. Supp. 3d 1091 (E.D. Wis. 2017). The court held that \nthe hospital did not need to comply with Title III of the ADA \nbecause it fell within the Act’s exemption for entities con‐\ntrolled by religious organizations. Id. at 1103–04, citing 42 \nU.S.C. § 12187. The court also dismissed Reed’s Rehabilitation \nAct claims, finding that the hospital’s alleged mistreatment of \nReed was not premised solely on Reed’s disability. Id. at 1105–\n08. \n We reverse. The hospital raised its religious exemption af‐\nfirmative defense to the ADA claims for the first time after \ndiscovery, in its motion for summary judgment. We explain \nbelow why we conclude it was an abuse of discretion to ex‐\ncuse the hospital’s failure to raise this aﬃrmative defense ear‐\nlier. We also reverse the dismissal of Reed’s Rehabilitation Act \nclaims on the merits because they depend on disputed facts. \nI. Factual & Procedural Background \n A. Reed’s Stay in the Hospital \n Our statement of facts reflects our standard of review for \na grant of summary judgment. We cannot vouch for the ob‐\njective truth of every detail. We review the facts and draw all \n\fNo. 17‐1469 3\n\ninferences from conflicting evidence in the light reasonably \nmost favorable to Reed as the non‐moving party. Greengrass \nv. International Monetary Systems Ltd., 776 F.3d 481, 485 (7th \nCir. 2015). \n Reed suﬀers from several disabilities, including tardive \ndyskinesia (“TD”), bipolar disorder, and post‐traumatic stress \ndisorder. TD is a neurological disorder that causes involun‐\ntary facial and limb movements and makes speaking diﬃcult. \nReed has been prescribed a portable communication device \ncalled a Dynavox that she can use to generate speech. \n Reed entered the hospital’s emergency department on \nMarch 8, 2012. She reported suicidal thoughts. She was admit‐\nted to the inpatient behavioral health unit and left on March \n12. Reed alleges that during her four‐day stay at the hospital \nshe was discriminated against in multiple ways. She claims \nthat she was denied the use of her Dynavox; that hospital staﬀ \nattempted to give her medication she was allergic to; that she \nwas denied timely access to her medical records; that she was \ndenied the use of a telephone to call her case manager (about \nwhom the record reveals little); that she was denied access to \na chaplain; and that she was physically escorted oﬀ the prem‐\nises by two security guards. Notably, the hospital’s corporate \nrepresentative and nursing supervisor, William Fry, testified \nin his deposition that the Dynavox was locked up outside \nReed’s room at night and that she had access to it during the \nday only “as long as her behavior was appropriate.” \n The most severe of Reed’s allegations is that on March 11, \nhospital staﬀ refused to give her the Dynavox and took her to \na seclusion room, where she was dropped on a mattress on \nthe floor and later attempted suicide. Reed and the hospital \ngive diﬀering accounts of what exactly took place during this \n\f4 No. 17‐1469 \n\nincident. Reed claims that she asked for her Dynavox, that \nhospital staﬀ refused to give it to her, that her TD‐related \nmovements caused her to spill coﬀee on herself and to fall to \nthe ground, and that patient‐care assistant Andrew Miller \ngrabbed her and put her in the seclusion room for about two \nhours. Miller testified, on the other hand, that Reed was on \nthe ground in a hallway crying and he told her she needed to \nget out of the hallway. When he was walking her back to her \nroom, he claims, she began to scream and he and nursing su‐\npervisor Fry decided to take her to the seclusion room. On re‐\nview of a grant of summary judgment for the defendant, of \ncourse, we must accept the plaintiﬀ’s version of events. Reed \nwas discharged the day after this incident. According to Reed, \nher Dynavox and other possessions were thrown into a cab, \nand she was pushed into it by a security guard and sent oﬀ. \n B. The District Court Proceedings \n Reed filed her first complaint pro se in February 2014. The \ndistrict court dismissed that case without prejudice. The next \nmonth, Reed filed this new lawsuit, which the court construed \nas raising claims under the ADA and the Rehabilitation Act. \nThe district court dismissed again, holding that the dismissal \nof the prior suit had preclusive eﬀect and alternatively that \nReed failed to state a claim. Reed appealed pro se. We vacated \nand remanded because the first case had been dismissed with‐\nout prejudice and thus did not preclude the second. Reed v. \nColumbia St. Mary’s Hospital, 782 F.3d 331, 335–36 (7th Cir. \n2015). We also held that Reed stated viable claims under the \nADA and the Rehabilitation Act. Id. at 337. \n On remand, the district court recruited counsel for Reed. \nHer amended complaint asserted claims under the ADA for \nintentional discrimination, denial of reasonable modification, \n\fNo. 17‐1469 5\n\nand retaliation and intimidation; claims under the Rehabilita‐\ntion Act for intentional discrimination and denial of reasona‐\nble accommodation; and patients’‐rights claims under Wis‐\nconsin state law. The hospital filed answers to both the origi‐\nnal complaint and the amended complaint. Each answer as‐\nserted several aﬃrmative defenses. Neither answer men‐\ntioned a religious exemption from the ADA. Discovery was \nconducted from September 2015 to August 2016. In October \n2016, the hospital moved for summary judgment, which the \ndistrict court granted. \nII. Analysis \n This appeal presents one procedural issue and a cluster of \nsubstantive issues. The procedural issue is whether the dis‐\ntrict court abused its discretion in allowing the hospital to \nraise for the first time on summary judgment the aﬃrmative \ndefense of the ADA’s Title III religious exemption. The sub‐\nstantive issues concern the merits of the Rehabilitation Act \nclaims. \n A. The ADA Claims \n 1. The Religious Exemption Defense Under ADA Title III \n Title III of the ADA prohibits disability discrimination by \n“public accommodations,” including hospitals. See 42 U.S.C. \n§ 12181(7). Title III provides: “No individual shall be discrim‐\ninated against on the basis of disability in the full and equal \nenjoyment of the goods, services, facilities, privileges, ad‐\nvantages, or accommodations of any place of public accom‐\nmodation.” 42 U.S.C. § 12182(a). It is unlawful to “fail[] to take \nsuch steps as may be necessary to ensure that no individual \nwith a disability is excluded, denied services, segregated or \notherwise treated diﬀerently than other individuals because \n\f6 No. 17‐1469 \n\nof the absence of auxiliary aids and services,” unless the de‐\nfendant can show that such accommodation “would funda‐\nmentally alter the nature of the good, service, facility, privi‐\nlege, advantage, or accommodation being oﬀered or would \nresult in an undue burden.” § 12182(b)(2)(A)(iii). A physical \nor mental impairment that “substantially limits one or more \nmajor life activities,” including “speaking,” qualifies as a dis‐\nability under both the ADA and the Rehabilitation Act (dis‐\ncussed below). See 42 U.S.C. § 12102(1)(A), (2)(A); 29 U.S.C. \n§ 705(20)(B); 34 C.F.R. § 104.3(j)(2)(ii); 45 C.F.R. § 84.3(j)(2)(ii). \n Title III of the ADA applies generally to hospitals, but Title \nIII exempts from its requirements “religious organizations” \nand “entities controlled by religious organizations, including \nplaces of worship.” 42 U.S.C. § 12187. This exemption is an \naﬃrmative defense. A defendant invoking it must plead it in \nthe answer. See Fed. R. Civ. P. 8(c); Castro v. Chicago Housing \nAuthority, 360 F.3d 721, 735 (7th Cir. 2004). Rule 8(c) applies to \n“any avoidance or aﬃrmative defense,” and lists a number of \nparticular defenses that must be pleaded. The religious ex‐\nemption in Title III of the ADA is an aﬃrmative defense be‐\ncause it assumes the plaintiﬀ can prove everything she must \nto establish her claim but may still act to defeat her claim.1 \n It makes sense for the defendant claiming the Title III reli‐\ngious exemption to bear the burden of pleading and proving \nits religious control. We have said that a defense not listed in \nRule 8(c) is an aﬃrmative defense that must be pleaded if the \n \n 1 “An affirmative defense is one that admits the allegations in the com‐\n\nplaint, but avoids liability, in whole or in part, by new allegations of ex‐\ncuse, justification or other negating matters.” Divine v. Volunteers of Amer‐\nica of Illinois, 319 F. Supp. 3d 994, 1003 (N.D. Ill. 2018), quoting Riemer v. \nChase Bank USA, N.A., 274 F.R.D. 637, 639 (N.D. Ill. 2011). \n\fNo. 17‐1469 7\n\ndefendant bears the burden of proof on the issue under state \nlaw or if the defense does not controvert the plaintiﬀ’s proof. \nWinforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, 872 (7th \nCir. 2012). The religious exemption defense does not contro‐\nvert the plaintiﬀ’s proof. It also draws on facts ordinarily \nwithin the knowledge and control of the defendant. See Gomez \nv. Toledo, 446 U.S. 635, 640–41 (1980) (qualified immunity is \naﬃrmative defense under 42 U.S.C. § 1983; relevant facts are \npeculiarly within knowledge and control of defendant); \nWright & Miller, Federal Practice & Procedure § 1271. An \nADA plaintiﬀ should not need to spend the money to antici‐\npate this defense without fair and timely notice that the de‐\nfendant intends to rely upon it. \n 2. Consequences of Failure to Plead a Defense \n A defendant’s failure to plead an aﬃrmative defense may \nresult in a waiver of the defense if the defendant has relin‐\nquished it knowingly and intelligently, or forfeiture if the de‐\nfendant merely failed to preserve the defense by pleading it. \nSee Wood v. Milyard, 566 U.S. 463, 470 & n.4 (2012). Some of \nour opinions use the terms waiver and forfeiture interchange‐\nably, but Wood shows that we need to pay attention to the dif‐\nference. Whether courts apply waiver or forfeiture in re‐\nsponse to a failure to plead, the purpose of the pleading re‐\nquirement for an aﬃrmative defense “is to avoid surprise and \nundue prejudice to the plaintiﬀ by providing her notice and \nthe opportunity to demonstrate why the defense should not \nprevail.” Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. \n1997). \n We have explained, however, that “the rule that forfeits an \naﬃrmative defense not pleaded in the answer (or by an earlier \nmotion) is, we want to make clear, not to be applied rigidly.” \n\f8 No. 17‐1469 \n\nGarofalo v. Village of Hazel Crest, 754 F.3d 428, 436 (7th Cir. \n2014), citing Matthews v. Wisconsin Energy Corp., Inc., 642 F.3d \n565, 570 (7th Cir. 2011). We will generally find that the failure \nto plead an aﬃrmative defense in the answer works a forfei‐\nture “only if the plaintiﬀ is harmed by the defendant’s delay \nin asserting it.” Id. There are limits, though, and in exercising \ntheir discretion in such matters, district courts must be alert \nto the real and practical harms that can result from failures to \nplead. We have explained that \n the district court has the discretion to allow an \n answer to be amended to assert an aﬃrmative \n defense not raised at the outset. The pertinence \n of a particular defense may only become appar‐\n ent after discovery, for example, in which case it \n would be reasonable for the court to permit the \n belated assertion of that defense. Nonetheless, \n the defendant remains obligated to act in timely \n fashion. Once the availability of an aﬃrmative \n defense is reasonably apparent, the defendant \n must alert the parties and the court to his intent \n to pursue that defense. A defendant should not \n be permitted to “lie behind a log” and ambush \n a plaintiﬀ with an unexpected defense. The ap‐\n propriate thing for the defendant to do, of \n course, is to promptly seek the court’s leave to \n amend his answer. His failure to do [so] risks a \n finding that he has waived the defense. \nVenters, 123 F.3d at 967–68 (internal citations and quotation \nmarks omitted). \n Pleadings shape the litigation, including the scope and \ncost of discovery. Based on the claims and defenses raised in \n\fNo. 17‐1469 9\n\nthe pleadings, the parties can discover information that is rel‐\nevant, not privileged, and proportional to the needs of the \ncase. See Fed. R. Civ. P. 26. Many eﬃciencies are lost when \nclaims or defenses are left out of pleadings and a party then \nattempts to assert them at later stages. At the same time, it is \nnot unusual for parties to discover new theories for claims or \ndefenses in the course of discovery. Timely motions to amend \npleadings for such newly discovered theories are appropriate \nunder Federal Rule of Civil Procedure 15(a). \n We see these problems more often when plaintiﬀs try to \nraise new theories or claims for the first time in opposing sum‐\nmary judgment. The concerns about unfair surprise and prej‐\nudice with unpleaded aﬃrmative defenses are similar: \n When a new argument is made in summary \n judgment briefing, the correct first step is to con‐\n sider whether it changes the complaint’s factual \n theory, or just the legal theories [the] plaintiﬀ \n has pursued so far. In the former situation, the \n plaintiﬀ may be attempting in eﬀect to amend \n its complaint, and the district court has discre‐\n tion to deny the de facto amendment and to re‐\n fuse to consider the new factual claims. In the \n latter, the court should consider the conse‐\n quences of allowing the plaintiﬀ’s new theory. \n If it would, for example, cause unreasonable de‐\n lay, or make it more costly or diﬃcult to defend \n the suit, the district court can and should hold \n the plaintiﬀ to his original theory. \nBRC Rubber & Plastics, Inc. v. Cont’l Carbon Co., 900 F.3d 529, \n540 (7th Cir. 2018) (citations and internal quotation marks \n\f10 No. 17‐1469 \n\nomitted), quoting Chessie Logistics Co. v. Krinos Holdings, Inc., \n867 F.3d 852, 860 (7th Cir. 2017). \n We routinely enforce this stricture against plaintiﬀs who \nwait until summary‐judgment briefing to raise a new claim, \ndespite the absence of an express pleading requirement, since \ncomplaints need not identify legal theories. See, e.g., Anderson \nv. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (pro se plaintiﬀ); \nWhitaker v. Milwaukee County, 772 F.3d 802, 808 (7th Cir. 2014); \nTrade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 412 (7th \nCir. 2009); Conner v. Illinois Dep’t of Natural Resources, 413 F.3d \n675, 679–80 (7th Cir. 2005); Griﬃn v. Potter, 356 F.3d 824, 830 \n(7th Cir. 2004); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. \n2002); Whitaker v. T.J. Snow Co., 151 F.3d 661, 663–64 (7th Cir. \n1998); Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir. 1997); \nShanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996); \nKostovetsky v. Ambit Energy Holdings, LLC, 242 F. Supp. 3d 708, \n718–19 (N.D. Ill. 2017) (reviewing Seventh Circuit case law). \nIn much the same way, late assertions of aﬃrmative de‐\nfenses—like the religious exemption to Title III of the ADA—\nmake litigation more costly and diﬃcult and can make it un‐\nfairly diﬃcult for a plaintiﬀ to pursue her claims. \n 3. The District Court’s Ruling \n The district court held that the hospital did not waive or \nforfeit its religious exemption aﬃrmative defense. The court \nacknowledged that the hospital raised the defense for the first \ntime in its motion for summary judgment but explained that \nsince this defense is not expressly listed in Federal Rule of \nCivil Procedure 8(c), “it is not clear that failure to assert it in \nthe answer waives it.” 236 F. Supp. 3d at 1101. That rationale \nwill not hold water here. Precedent oﬀers suﬃciently clear \nguidance on when defenses not enumerated in Rule 8(c) must \n\fNo. 17‐1469 11\n\nbe pleaded. See, e.g., Gomez v. Toledo, 446 U.S. 635, 640–41 \n(1980); Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, \n872 (7th Cir. 2012); Sundstrand Corp. v. Standard Kollsman In‐\ndustries, Inc., 488 F.2d 807, 813 (7th Cir. 1973); Brunswick Leas‐\ning Corp. v. Wisconsin Cent., Ltd., 136 F.3d 521, 530 (7th Cir. \n1998). The statutory exemption here is based on facts in a de‐\nfendant’s control and clearly falls within the category of af‐\nfirmative defenses. \n The district court also held that Reed was not prejudiced \nby the hospital’s delay in asserting this defense. For support, \nthe court relied on an exchange during the deposition of nurs‐\ning supervisor William Fry in February 2016, six months be‐\nfore the close of discovery, to find that Reed knew “for a sub‐\nstantial period that the religious exemption defense was a \npossibility.” Reed, 236 F. Supp. 3d at 1101. We respectfully dis‐\nagree. Here is the entire discussion from Fry’s deposition: \n Q And so who – what is your understanding of \n the ownership of Columbia St. Mary’s Hospital \n Milwaukee? \n MR. FOLEY: Object to form and foundation. \n THE WITNESS: I don’t really know the answer \n to that. I don’t really understand – I don’t know \n the answer to that. \n BY MS. BARNES: Who owns the organization? \n MR. FOLEY: Object to form and foundation. \n THE WITNESS: I’ll try to answer that. Ascen‐\n sion Healthcare is our parent sponsor of this \n ministry. \n\f12 No. 17‐1469 \n\n BY MS. BARNES: What does that mean, spon‐\n sor? \n MR. FOLEY: Object to form. \n THE WITNESS: Ascension Healthcare has mul‐\n tiple hospitals in multiple states across the \n country. That is, again, our – as far as I under‐\n stand it, our parent ownership structure. \n BY MS. BARNES: Okay. And is Ascension a re‐\n ligious organization? \n A Yes. \n Q What type of religious organization? \n A It’s a mission of the Roman Catholic Church. \n Q A mission? \n A Um‐hum. \n Q So is it – is it – \n A A ministry, I should have said. I ministry of \n the Roman Catholic Church. \n Q So is it – does it follow the principles of the \n Catholic church, when you say “ministry”? \n MR. FOLEY: I’ll object to form and foundation. \n I think this is far afield of – \n THE WITNESS: Yeah, this is beyond my \n knowledge and expertise. \n MR. FOLEY: – his knowledge. But if you can an‐\n swer, go ahead. \n\fNo. 17‐1469 13\n\n THE WITNESS: As far as I know, yes. I guess I \n don’t really understand the question. \n BY MS. BARNES: What does it mean to be a \n ministry, I guess? I’m trying to understand it as \n well. \n A Well, we’re a not for profit in the ministry of \n providing healthcare. \nFry Dep. at 13–15. \n This brief exchange was with a witness who obviously did \nnot understand the issue or identify the exemption, let alone \ntry to assert the exemption. It is not comparable to a lawyer’s \nstatement that the party intends to assert a defense. The ex‐\nchange did not put Reed on fair notice that the hospital would \nbe asserting the religious exemption and that she needed to \nspend the time and money to conduct full‐bore discovery on \nwhether the hospital could satisfy the ADA’s religious ex‐\nemption. \n The district court also thought that Reed knew when she \nfiled suit that the hospital was at least nominally associated \nwith the Catholic faith. Nominal association told plaintiﬀ and \ntells us nothing about the availability of the religious exemp‐\ntion. The statutory test is “control.” 42 U.S.C. § 12187. Count‐\nless entities have names that are associated with religions but \nare not subject to religious control. \n Finally, the district court noted that Reed’s response to the \nhospital’s motion for summary judgment showed that she \nhad studied the hospital’s corporate structure and governing \ndocuments (or at least those submitted by the hospital). We \n\f14 No. 17‐1469 \n\nhave a limited record before us on this issue.2 The structure \nappears to be as follows: the hospital’s sole corporate member \nis Columbia St. Mary’s Inc. In turn, Columbia St. Mary’s Inc. \nis “sponsored by” its two corporate members: Ascension \nHealth (a Catholic national health system) and Columbia \nHealth System, Inc. (a non‐sectarian community health sys‐\ntem). Ascension Health is a subsidiary of Ascension Health \nAlliance, which is a subsidiary of Ascension Health Minis‐\ntries. The Congregation of Consecrated Life and Societies of \nApostolic Life of the Vatican conferred public juridic person‐\nality on Ascension Health Ministries in June 2011. Ascension \nHealth Ministries’ governing documents state that it shall be \ngoverned in accordance with canon law. Thus, the hospital is \nsubject to two lines of control: (1) a Catholic one (Ascension \nHealth Ministries —> Ascension Health Alliance —> Ascen‐\nsion Health —> Columbia St. Mary’s Inc. —> the hospital); \nand (2) a non‐sectarian one (Columbia Health System —> Co‐\nlumbia St. Mary’s Inc. —> the hospital). \n The hospital’s bylaws reflect these two lines of control: \nthey say that the hospital “shall be and remain a Catholic fa‐\ncility or institution” but also that the hospital will “respect the \nnonsectarian traditions and values of Columbia Health Sys‐\ntem.” Similarly reflecting these two lines of control but revers‐\ning the emphasis, the bylaws of Columbia St. Mary’s Inc. (the \nhospital’s sole corporate member) say that it “shall not be a \nCatholic facility or institution” but that it will not perform \n\n \n 2 The record is limited since this defense was sprung on Reed in the \n\nmotion for summary judgment. Most of the relevant evidence comes from \nthe documents the hospital chose to submit. Even those documents show \na complicated corporate legal structure and an ambiguous relationship \nwith the hospital’s Catholic affiliates. \n\fNo. 17‐1469 15\n\nmedical procedures inconsistent with Catholic ethical direc‐\ntives. Columbia St. Mary’s Inc.’s bylaws reserve certain pow‐\ners to both Ascension Health and Columbia Health System.3 \nColumbia St. Mary’s Inc.’s oﬃcers and board members “serve \nex oﬃcio” as the hospital’s oﬃcers and board members. Im‐\nportant for the issue of control, the board members are recom‐\nmended by Columbia St. Mary’s Inc.’s existing board for ap‐\npointment by Ascension Health and are intended to “be \nbroadly representative of the communities served.” Relying \non this corporate structure as disclosed by the hospital in its \nsummary judgment materials, the district court determined \nthat the hospital was suﬃciently controlled by the Catholic \nChurch as to fall within Title III’s religious exemption and to \nmake it immune to Reed’s ADA claims. \n 4. Abuse of Discretion \n We express no opinion on whether, after full discovery \nand fair litigation of the issue on a more complete record, the \nhospital might fit within the exemption for entities controlled \nby religious organizations. Instead, we find that the district \ncourt abused its discretion by considering this aﬃrmative de‐\nfense at all. \n Several factors point in this direction. First, the defendant \nhospital has oﬀered no excuse or explanation for failing to \nplead the defense in it answers or for raising the defense so \nlate. Without a credible excuse for the delay, the hospital’s late \ninvocation of the defense looks like a straight ambush of the \nplaintiﬀ when it was too late for her to put together a \n \n 3 We are told that these dual lines of control are also detailed in the \n\nterms of an Affiliation Agreement, but that document has not been pro‐\nduced to Reed or included in the record. \n\f16 No. 17‐1469 \n\ncomprehensive rebuttal. Second, the religious‐exemption de‐\nfense should not ordinarily depend on discovery from the \nplaintiﬀ, as will often be the case with other aﬃrmative de‐\nfenses such as statutes of limitations, estoppels, waivers, and \nothers. Instead, the religious‐exemption defense will ordinar‐\nily depend on facts within the knowledge and control of the \ndefendant itself. Third, the defendant did not deploy this de‐\nfense until after discovery had closed, meaning both parties \nhad already invested a good deal of time and money in the \ncase on the legitimate expectation that they knew what the is‐\nsues were. Allowing a last‐minute defense that introduces \nsuch new factual and legal issues after discovery has closed \nraises the costs of litigation and allows the party that was at \nleast negligent in failing to plead its defense to take unfair ad‐\nvantage of its opposing party. Fourth, the district court’s ra‐\ntionale for allowing the defense to be raised so late simply \ndoes not withstand scrutiny. In this case, a few facts relevant \nto this potential aﬃrmative defense came up briefly in one \ndeposition. As we explained above, that cannot be reasonably \ntreated as fair notice that the hospital would actually assert \nthe defense and that the plaintiﬀ would need to spend the \ntime and money needed to meet that defense. The plaintiﬀ \nwas entitled to rely on Rule 8(c) and the hospital’s silence in \nits pleadings. \n The situation here is similar to that in Venters v. City of Del‐\nphi, where we concluded that the defendants waived their \nstatute of limitations aﬃrmative defense. 123 F.3d 956, 967–69 \n(7th Cir. 1997). There, the defendants failed to include the de‐\nfense in their answers to the original and amended com‐\nplaints. We could “discern no justification for the delay” when \nthey asserted the defense for the first time in their reply mem‐\norandum in support of their motion for summary judgment. \n\fNo. 17‐1469 17\n\nId. at 968. While a diﬀerence here is that Reed was at least \ngiven notice of the defense in the motion for summary judg‐\nment itself and could attempt to respond, she was still at a \nserious disadvantage. That notice came after the parties had \ncompleted discovery. As in Venters, we “cannot overlook the \nfailure to comply with Rule 8(c) in this context. Intentionally \nor not, [plaintiﬀ] was bushwacked.” Id. at 969. Put simply, “it \nwas not [plaintiﬀ’s] obligation to raise the defense, and if Rule \n8(c) is not to become a nullity, we must not countenance at‐\ntempts to invoke such defenses at the eleventh hour, without \nexcuse and without adequate notice to the plaintiﬀ.” Id.4 \n Finally, the prejudice to Reed from the delayed assertion \nof the defense is especially acute here because the relevant law \nand facts simply are not clear. The ADA does not define what \nit means to be considered a “religious organization” or to be \n“controlled by a religious organization.” See 42 U.S.C. § \n12187. To our knowledge, no federal appellate court has yet \nconstrued this religious exemption. Several district courts \nhave—including the veteran judge who decided this case. \nSee Rose v. Cahee, 727 F. Supp. 2d 728, 747 (E.D. Wis. 2010).5 \n\n \n 4 In contrast, we held that a district court did not abuse its discretion \n\nin Robinson v. Sappington when it allowed the defendants to amend their \npleadings at summary judgment to add affirmative defenses. 351 F.3d 317, \n332–33 (7th Cir. 2003). There, the record showed that the plaintiff had suf‐\nficient notice that the defendants might pursue the defenses because de‐\nfense counsel had explored them in detail during discovery. Id. Further, \nthe plaintiff did not suggest she was prejudiced in any way by the late \namendment. Id. \n 5 In Rose, the court applied the religious exemption where a Roman \n\nCatholic institute sponsored a healthcare corporation and occupied a pri‐\nmary role in the corporation’s corporate governance structure, the insti‐\ntute members made up the entirety of one class of corporate membership, \n\f18 No. 17‐1469 \n\nThese district court decisions show that the issue can be com‐\nplex, both factually and legally. These decisions have cited \nand relied on the following Department of Justice interpreta‐\ntion of the religious exemption: \n The ADA’s exemption of religious organiza‐\n tions and religious entities controlled by reli‐\n gious organizations is very broad, encompass‐\n ing a wide variety of situations. Religious or‐\n ganizations and entities controlled by religious \n organizations have no obligations under the \n ADA. Even when a religious organization car‐\n ries out activities that would otherwise make it \n a public accommodation, the religious organi‐\n zation is exempt from ADA coverage. Thus, if a \n church itself operates a day care center, a \n\n \nand the institute’s class members had the sole authority to amend or re‐\npeal the corporation’s articles of incorporation and bylaws. 727 F. Supp. \n2d at 747. As for the other district court cases applying the exemption, \nReed correctly points out that in none was the defense raised late, and in \nall there was greater evidence of religious control. See Cole v. Saint Francis \nMedical Ctr., No. 1:15‐CV‐98(ACL), 2016 WL 7474988, at 4‐6 (E.D. Mo. \nDec. 29, 2016) (exemption was “properly raised by Defendant as an affirm‐\native defense” and hospital was “under the jurisdiction of the Bishop of \nthe Roman Catholic Dioceses[.]”); Marshall v. Sisters of the Holy Family of \nNazareth, 399 F. Supp. 2d 597, 606 (E.D. Pa. 2005) (school “solely operated \nand controlled by” order of nuns); White v. Denver Seminary, 157 F. Supp. \n2d 1171, 1173–74 (D. Colo. 2001) (seminary was founded by Baptist asso‐\nciation and employees were required to be active Christians). By contrast, \nin Sloan v. Community Christian Day School, LLC, a Christian school was \nfound to not be exempt since the school was not owned, affiliated with, or \nfinancially supported by any recognized religious group and was instead \nowned by two individuals who were not ministers. No. 3–15–0551, 2015 \nWL 10437824, at 3, (M.D. Tenn. Dec. 11, 2015). \n\fNo. 17‐1469 19\n\n nursing home, a private school, or a diocesan \n school system, the operations of the center, \n home, school, or schools would not be subject to \n the requirements of the ADA or this part. The \n religious entity would not lose its exemption \n merely because the services provided were \n open to the general public. The test is whether \n the church or other religious organization oper‐\n ates the public accommodation, not which indi‐\n viduals receive the public accommodationʹs ser‐\n vices. \n Religious entities that are controlled by reli‐\n gious organizations are also exempt from the \n ADA’s requirements. Many religious organiza‐\n tions in the United States use lay boards and \n other secular or corporate mechanisms to oper‐\n ate schools and an array of social services. The \n use of a lay board or other mechanism does not \n itself remove the ADA’s religious exemption. \n Thus, a parochial school, having religious doc‐\n trine in its curriculum and sponsored by a reli‐\n gious order, could be exempt either as a reli‐\n gious organization or as an entity controlled by \n a religious organization, even if it has a lay \n board. The test remains a factual one – whether the \n church or other religious organization controls the \n operations of the school or of the service or whether \n the school or service is itself a religious organization. \n28 C.F.R. ch. 1., pt. 36, App’x C (emphasis added). \n For this appeal, the critical points are that the law govern‐\ning the hospital’s aﬃrmative defense is still highly contestable \n\f20 No. 17‐1469 \n\nand its application may well depend on a host of facts that \nwould need to be explored in some depth. Before summary \njudgment briefing, plaintiﬀ Reed had no notice that she \nneeded to prepare to meet the defense. \n We have considered the possibility of a response less dras‐\ntic than treating the hospital’s religious‐exemption defense as \nforfeited. One possibility would be to allow the parties to pur‐\nsue further discovery on that issue and to have the hospital \npay for plaintiﬀ’s reasonable costs and attorney fees for that \nprocess. In this case, however, the hospital has oﬀered no \ncredible excuse for its delay, and the normal rule is forfeiture \nof unpleaded defenses. The remedy of reopening discovery \nwould also impose additional delay on Reed. We see no miti‐\ngating factors here that would favor anything other than en‐\nforcement of Rule 8(c) as written and treating the defense as \nforfeited. We therefore reverse summary judgment for the \nhospital on the ADA claims. \n B. Rehabilitation Act Claims \n 1. Legal Standard \n We now turn to the merits of Reed’s Rehabilitation Act \nclaims. Section 504 of the Rehabilitation Act provides: “No \notherwise qualified individual with a disability … shall, \nsolely by reason of her or his disability, be excluded from the \nparticipation in, be denied the benefits of, or be subjected to \ndiscrimination under any program or activity receiving Fed‐\neral financial assistance[.]” 29 U.S.C. § 794(a). Four elements \nmust be satisfied to establish a violation of Section 504: (1) the \nplaintiﬀ must be a handicapped individual as defined by the \nAct; (2) the plaintiﬀ must be “otherwise qualified” for partic‐\nipation in the program; (3) the program must receive federal \n\fNo. 17‐1469 21\n\nfinancial assistance; and (4) the plaintiﬀ must have been “de‐\nnied the benefits of the program solely because of his handi‐\ncap.” See Mallet v. Wisconsin Div. of Vocational Rehabilitation, \n130 F.3d 1245, 1257 (7th Cir. 1997). The hospital contests only \nthis fourth element of sole cause. The ADA and the Rehabili‐\ntation Act are otherwise very similar, but the Rehabilitation \nAct prohibits discrimination only if it is “solely by reason of” \na person’s disability. The ADA permits mixed‐motive claims. \nSee Whitaker v. Wisconsin Dep’t of Health Servs., 849 F.3d 681, \n684 (7th Cir. 2017). \n A plaintiﬀ suing under the Rehabilitation Act can assert \nthat she was intentionally discriminated against or that the \ndefendant failed to aﬀord her a reasonable accommodation \nfor her disability. The Rehabilitation Act does not contain an \nexplicit accommodation requirement, but the Supreme Court \nhas located a duty to accommodate in the statute generally. \nWe have written that in Alexander v. Choate, 469 U.S. 287 \n(1985), \n the Court explained that “‘a refusal to modify \n an existing program might become unreasona‐\n ble and discriminatory.’” Id. at 300 (quoting \n Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, \n 413 (1979)). The Rehabilitation Act’s promise of \n “meaningful access” to state benefits, according \n to the Court, means that “reasonable accommo‐\n dations in the grantee’s program or benefit may \n have to be made.” Id. at 301. \nWisconsin Community Services, Inc. v. City of Milwaukee, 465 \nF.3d 737, 747 (7th Cir. 2006). We explained further: \n\f22 No. 17‐1469 \n\n Following Choate, several courts of appeals have \n adopted the view that the Rehabilitation Act re‐\n quires public entities to modify federally as‐\n sisted programs if such a modification is neces‐\n sary to ensure that the disabled have equal ac‐\n cess to the benefits of that program. See, e.g., \n Henrietta D. v. Bloomberg, 331 F.3d 261, 274–75 \n (2d Cir. 2003). These circuits, including ours, \n also follow the corollary principle implicit in the \n Choate decision that the Rehabilitation Act helps \n disabled individuals obtain access to benefits \n only when they would have diﬃculty obtaining \n those benefits “by reason of” their disabilities, \n and not because of some quality that they share \n generally with the public. \nId. at 748. \n 2. Analysis of the Rehabilitation Act Claims \n We review de novo the district court’s grant of summary \njudgment on the merits. Whitaker, 849 F.3d at 684. Summary \njudgment is proper when the moving party shows that there \nis no genuine dispute as to any material fact and that it is en‐\ntitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). \n We reverse the dismissal of Reed’s intentional discrimina‐\ntion claim, which is based only on the seclusion‐room inci‐\ndent. The district court determined that the undisputed facts \nshow that the “seclusion incident” was motivated at least in \npart by factors other than Reed’s disability. The court stated \nthat Reed “admits that she spilled her coﬀee and thereafter \nfell to the floor screaming. She further concedes that Miller \n\fNo. 17‐1469 23\n\ntold her that she could not remain on the floor in the middle \nof the hallway. (Docket # 55 ¶ 43).” Reed, 236 F. Supp. at 1106. \n The district court either misconstrued or exaggerated \nReed’s concessions. Reed has not conceded any of the reasons \nMiller cited for taking her to the seclusion room. The district \ncourt did not include a record citation for its assertion that \nReed admitted she fell to the floor “screaming.” We have not \nseen such an admission in the record. Reed admits that she \nspilled coﬀee and was on the floor of the hallway. She specif‐\nically denies she was screaming. See Dkt. 55, ¶¶ 38–45, citing \nReed Aﬃdavit, Ex. A, Dkt. 55‐26. According to the district \ncourt, this disturbance at least partially motivated the hospital \nstaﬀ to put her in seclusion. \n The undisputed facts show that Reed spilled coﬀee on her‐\nself and was on the floor of the hallway. We agree with the \ndistrict court that Miller was responding to this situation (and \nnot solely to Reed’s disabilities) when he picked her up oﬀ the \nfloor. So far, so good. But Miller himself testified that, at that \npoint, he started to take Reed back to her own room (not the \nseclusion room). It was only during the walk to her room that, \nbecause of her screaming, the decision was made to take her \nto the seclusion room. Thus, a jury could find that nothing \nReed has conceded (spilling coﬀee and lying on the floor) led \nMiller to take her to the seclusion room. Spilling the coﬀee \nand lying on the floor prompted Miller only to take Reed back \nto her own room. It was the action that Reed specifically de‐\nnies (screaming during the walk) that Miller says led him and \nFry to take Reed to the seclusion room. Reed has not conceded \nthat she did anything disruptive during the walk to her room, \nwhen hospital staﬀ decided to take her to the seclusion room. \nThe material facts that led to her being placed in seclusion are \n\f24 No. 17‐1469 \n\ndisputed. Crediting Reed’s version of the event, a reasonable \njury could find that the hospital intentionally discriminated \nagainst Reed solely on the basis of her disability.6 \n We also reverse the dismissal of Reed’s reasonable accom‐\nmodation claim. This claim is based on all of the allegations \nReed asserts in her complaint (seclusion‐room incident; with‐\nholding Dynavox; security escort oﬀ the premises; and denial \nof requests to use telephone, to see a chaplain, and to see med‐\nical records). While medical professionals certainly are enti‐\ntled to discretion in managing their patients, the hospital has \nnot argued that it withheld the Dynavox in the exercise of pro‐\nfessional judgment to treat Reed’s mental illness. Withhold‐\ning the Dynavox in particular may support a viable failure‐to‐\n\n \n 6 The parties have not addressed another issue that may arise on re‐\n\nmand. The Rehabilitation Act and the Americans with Disabilities Act do \nnot create a remedy for medical malpractice. See Grzan v. Charter Hosp., \n104 F.3d 116, 122–23 (7th Cir. 1997), abrogated on other grounds as stated \nin Amundson v. Wisc. Dep’t of Health Svcs., 721 F.3d 871, 874 (7th Cir. 2013); \nBryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (prisoner’s claim); ac‐\ncord, e.g., McGugan v. Aldana‐Bernier, 752 F.3d 224, 231–32 (2d Cir. 2014); \nBurger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005); Schiavo ex rel. Schindler \nv. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005); Fitzgerald v. Corrections Corp. \nof America, 403 F.3d 1134, 1144 (10th Cir. 2005). As the Second Circuit ex‐\nplained in McGugan, the term “discrimination” can have a benign (and \nperfectly lawful) sense, in which a health care provider makes a discrimi‐\nnating professional judgment about the type of treatment to provide to a \npatient, but can also have a pejorative sense that describes actions taken \nbased on irrelevant criteria under the influence of irrational bias. See 752 \nF.3d at 231–32, comparing United States v. University Hosp., 729 F.2d 144, \n156 (2d Cir. 1984), and Green v. City of New York, 465 F.3d 65, 78 (2d Cir. \n2006). In this appeal, the hospital has not argued that it withheld Reed’s \nDynavox from her as a benign form of discrimination, i.e., as an exercise \nof medical judgment for her appropriate treatment. \n\fNo. 17‐1469 25\n\naccommodate claim under the Rehabilitation Act, subject to \nthe considerations discussed above in note 6. \n The district court’s grant of summary judgment in favor of \nthe hospital is REVERSED and the case is REMANDED for \nproceedings consistent with this opinion. On remand, Circuit \nRule 36 shall apply.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366303/", "author_raw": "David Frank Hamilton"}]}	EASTERBROOK	ROVNER	HAMILTON	1	{"EASTERBROOK": ", Circuit", "ROVNER": ", Circuit", "HAMILTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589050/	Published	1	0	0	2,019	2	[ { "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...
4,589,051	Joseph MILLER, Plaintiff-Appellant, v. Michael DOWNEY, Et Al., Defendants-Appellees.	Joseph Miller v. Michael Downey	2019-02-08	17-1507	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Flaum, Rovner, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1507\nJOSEPH MILLER,\n Plaintiff-Appellant,\n v.\n\nMICHAEL DOWNEY, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 2:14-cv-2211 — Colin S. Bruce, Judge.\n ____________________\n\n ARGUED DECEMBER 5, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Between 2012 and 2013, the Jerome\nCombs Detention Center in Kankakee, Illinois, prohibited\ninmates from receiving any newspapers. While awaiting trial\non bank robbery charges, Joseph Miller’s family bought him\na $279 subscription to the Chicago Daily Law Bulletin to help\nhim with his case. Deeming the Law Bulletin a newspaper, jail\noﬃcials precluded Miller from receiving it. Miller responded\nwith a lawsuit challenging the jail’s prohibition and\n\f2 No. 17-1507\n\nconfiscation of the publication and seeking to recover the\nsubscription fee. The district court construed the lawsuit as\nrequiring it to answer, not the narrow question of whether\nMiller had a right to receive a legal publication like the Law\nBulletin, but instead the broader question of whether the jail’s\nban on all newspapers oﬀended the First Amendment. In the\nend, the district court upheld the newspaper ban and\nawarded summary judgment to the defendant jail oﬃcials.\nBecause the district court erred in reaching and resolving such\na broad constitutional question—and the record was not fully\ndeveloped as it pertains to the jail’s restriction on legal\npublications—we vacate the district court’s judgment and\nremand for further proceedings.\n I\n A\n Pursuant to an agreement between the United States\nMarshals Service and the Kankakee County Sheriﬀ’s Oﬃce,\nJoseph Miller was detained at the Jerome Combs Detention\nCenter or JCDC from February 2012 to August 2014 while\nawaiting trial and sentencing on federal charges. Because the\njail did not provide inmates access to federal case law, Miller,\na federal prisoner, asked his family to buy him a subscription\nto a legal publication covering federal criminal law. He\nwanted to better understand his case and assist with his\ndefense, so his family ordered a one-year subscription to the\nChicago Daily Law Bulletin and arranged for delivery to him at\nthe facility.\n Miller never received his subscription. He instead learned\nthat the publication was deemed contraband because, accord-\ning to Assistant Chief of Corrections Chad Kolitwenzew,\n\fNo. 17-1507 3\n\n“[t]he Inmate Handbook states [the jail does] not allow news-\npapers.” Issues of the Law Bulletin, therefore, were intercepted\nevery day for ten months and disposed of by jail staﬀ without\nany notice to Miller.\n The JCDC’s policy on inmate mail was not a model of clar-\nity during the relevant period. The jail did not maintain a\nwritten policy listing what items inmates were prohibited\nfrom receiving. Rather, and as best we can tell, the jail consid-\nered newspapers contraband because the Inmate Handbook\ndid not expressly say inmates could possess them. Jail oﬃcials\nviewed the Law Bulletin as a newspaper because (and appar-\nently only because) it was printed on newsprint.\n Adding to the confusion, however, is that during this same\nperiod the jail permitted inmates to receive personal\nsubscriptions to Prison Legal News. This was so even though\nPrison Legal News, just like the Law Bulletin, is printed on\nnewsprint. So, too, was Prison Legal News not listed as a\npermitted item in the JCDC Inmate Handbook.\n B\n In 2014, after learning that copies of the Law Bulletin had\nbeen delivered to the JCDC and filing multiple grievances\nwith the jail, Miller filed a pro se complaint alleging that the\njail’s disposal of the publication, especially with no notice to\nhim, violated the First Amendment and the Due Process\nClause of the Fourteenth Amendment.\n Upon screening Miller’s complaint pursuant to 28 U.S.C.\n§ 1915A, the district court determined that Miller stated a\ncolorable First Amendment claim against three jail oﬃcials\nand the Kankakee County Sheriﬀ. Following discovery the\ndefendants moved for summary judgment. Although Miller’s\n\f4 No. 17-1507\n\nsuit focused narrowly on the JCDC’s prohibition of the Law\nBulletin—which he repeatedly stressed and explained was a\nlegal publication and not a daily newspaper akin to the\nChicago Tribune—the defendants’ motion instead asked the\ndistrict court to treat Miller’s claims as broadly challenging\nthe JCDC’s newspaper ban. They argued that safety and\nsecurity risks posed by excess paper in the jail warranted a\ntotal ban on newspapers, including the Law Bulletin.\n The district court accepted the defendants’ framing of the\nissue and granted their motion. Applying the four-factor test\nannounced in Turner v. Safley, 482 U.S. 78 (1987), the court con-\ncluded that the newspaper ban was permissible given the\njail’s security, safety, and staﬃng concerns. The summary\njudgment record, as the district court saw it, showed that in-\nmates had used newspapers to flood cells and conceal contra-\nband—circumstances justifying a categorical ban. The court\nalso found that the defendants provided evidence that allow-\ning inmates personal newspaper subscriptions “would un-\nnecessarily strain staﬀ resources in monitoring the amount of\npaper within the facility and sorting the incoming mail.” The\npolicy was not an “exaggerated response to legitimate peno-\nlogical concerns,” the court continued, because the jail af-\nforded inmates alternative ways to stay current on the news\n(for example, by watching television) and to work on their le-\ngal cases by reading Prison Legal News and using the jail’s law\nlibrary.\n On appeal, and now represented by counsel, Miller re-\nnews his contention that the confiscation of the Law Bulletin\nviolated his rights under the First Amendment. He also ar-\ngues the district court committed error by altogether failing to\n\fNo. 17-1507 5\n\naddress, and perhaps implicitly rejecting, his due process\nclaim.\n II\n A\n The district court painted with much too broad a brush\nand resolved a case never brought by Joseph Miller. Miller is\na gifted writer and his pro se complaint, prepared in pencil on\nnotebook paper, was remarkable for its clarity and precision.\nHe alleged that the defendant jail oﬃcials violated his consti-\ntutional rights by confiscating not a newspaper of general cir-\nculation, but rather a legal publication, the Law Bulletin. He\nexplained that he needed the publication because the JCDC\nhad neither a law library nor any research materials concern-\ning federal case law.\n Miller took the same care in opposing the defendants’ mo-\ntion for summary judgment, emphasizing that permitting him\n(and other federal inmates housed in the Kankakee facility) to\nreceive the Law Bulletin (or another legal publication) would\nnot flood the facility with paper, overwhelm mailroom staﬀ,\nor create excessive security risks. In plain and simple terms,\nMiller implored the district court to treat his claims for what\nthey were—a lawsuit challenging the JCDC’s prohibition and\nconfiscation of a legal publication—and not for what they\nwere not—a request to receive a newspaper.\n Though Miller may not have realized it, his submissions\nto the district court aligned perfectly with the precept that\nfederal courts, as courts of limited jurisdiction, should strive\nto decide constitutional cases narrowly and refrain from an-\nswering questions broader than necessary to resolve the case\nor controversy before them. The symmetry between Miller’s\n\f6 No. 17-1507\n\nposition and the principle of narrow constitutional decision-\nmaking jumps oﬀ the pages of his submissions to the district\ncourt. And it is this exact principle that charts a straightfor-\nward course for resolving Miller’s claims.\n The resolution of Miller’s claims on summary judgment\ndid not require the district court to answer whether a jail’s\nblanket ban on newspapers oﬀends the First Amendment.\nMiller’s counsel rightly observes that the trendline on that\nquestion favors Miller. But the defendants are equally right to\nobserve that the question entails complexity because some of\nthe pertinent precedent, including our prior decision in\nKincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982), predates the\nSupreme Court’s decision in Turner. In Turner the Court\nmodified preexisting law by announcing a new four-factor\ntest for assessing prison regulations that impinge on inmates’\nconstitutional rights. See 482 U.S. at 89–91. There is no dispute\nthat the Turner test applies where, as here, a policy implicates\na prisoner’s First Amendment rights, including the right to\nread while detained. See King v. Fed. Bureau of Prisons, 415 F.3d\n634, 638 (7th Cir. 2005) (“Freedom of speech is not merely\nfreedom to speak; it is also freedom to read.”). And so too are\nthe defendants right to observe that a proper analysis of\nMiller’s claim would have to consider whether qualified\nimmunity shielded them from liability if the JCDC’s blanket\nnewspaper ban transgressed the First Amendment.\n Another factor counseling in favor of taking Miller’s claim\nas he pleaded it is that the Kankakee facility overhauled its\npublication policy in June 2015. The JCDC now supplies the\nfacility with multiple daily copies of USA Today and permits\ninmates to receive subscriptions to up to four magazines per\nmonth. This change suggests that broadly ruling on the\n\fNo. 17-1507 7\n\nconstitutionality of the JCDC’s prior policy was unnecessary.\nAnd this is particularly so given that just days after Miller\nfiled his complaint—seeking not only money damages but\nalso declaratory and injunctive relief—the district court\nlearned he was transferred to another facility, rendering his\nrequest for injunctive relief moot. Put diﬀerently, when faced\nwith a First Amendment challenge to an outdated policy\nbrought by an inmate no longer housed at the facility in ques-\ntion, the district court should have resolved the case on nar-\nrower grounds, focusing precisely on the case and contro-\nversy brought by Miller. See generally ISI Int’l v. Borden Ladner\nGervais LLP, 256 F.3d 548, 552 (7th Cir. 2001) (emphasizing\nthat “federal courts are supposed to do what they can to avoid\nmaking constitutional decisions, and strive doubly to avoid\nmaking unnecessary constitutional decisions”).\n The proper path was to answer the narrow and specific\nclaim advanced by Miller—whether the jail’s confiscation of\nhis subscription to the Law Bulletin violated the First Amend-\nment. See Hedgwood v. City of Eau Claire, 676 F.3d 600, 603 (7th\nCir. 2012) (explaining that principles of “judicial restraint”\ncounsel in favor of resolving “as-applied challenges before fa-\ncial ones in an eﬀort to decide constitutional attacks on the\nnarrowest possible grounds and to avoid reaching unneces-\nsary constitutional issues”).\n B\n Similar considerations caution against us reaching the\nmerits of Miller’s First Amendment claim in the first instance.\nThe better approach is to allow the district court and parties\nthe initial opportunity to address the issues presented anew\nand through the narrower frame of how the Turner factors\n\f8 No. 17-1507\n\napply to the JCDC’s confiscation of Miller’s subscription to a\nlegal publication, the Law Bulletin.\n Suﬃce it for us to oﬀer but a few observations relevant to\na narrowed consideration of the Turner factors. The district\ncourt’s initial assessment of Miller’s claim rooted itself in facts\nunsupported by the summary judgment record. For example,\nthe court assessed the second Turner factor (whether alterna-\ntive means of exercising the asserted right—here the right to\nreceive and read legal publications—remain available to the\ninmate) on the view that the JCDC had a law library with re-\nsources on federal case law available to federal inmates like\nMiller. The record shows otherwise. The JCDC had no law li-\nbrary, and while inmates had access to an electronic database\nwith Illinois legal resources, Miller contends that there was a\ndearth of material on federal law in the jail—a point that went\nuncontested by the defendants.\n On this same factor, it appears that the JCDC’s policy\n(throughout Miller’s detention) allowed inmates to receive\nsubscriptions to Prison Legal News. The district court viewed\nthis access as important without recognizing that the record\nleft unclear whether, contrary to the jail’s policy, inmates were\nin fact being allowed to receive the publication. Regardless, it\nis not enough to say, as the district court suggested, that one\nlegal publication is just like the next and thus Prison Legal\nNews suﬃced to serve a federal inmate’s every legal need.\nWhat is more, the district court failed to recognize that Prison\nLegal News—just like the Law Bulletin—is published on news-\nprint, a fact casting at least some doubt on the JCDCʹs conten-\ntion that banning all newsprint publications was essential to\nprison safety, a consideration relevant to the first Turner fac-\ntor.\n\fNo. 17-1507 9\n\n On remand, the right analysis asks whether permitting in-\nmates to receive subscriptions to legal publications (subject to\nreasonable limitations) jeopardized institutional objectives to\nsuch an extent as to justify the JCDC’s confiscation of the Law\nBulletin. On this front we make three final observations. First,\nthe district court did not consider whether the JCDC’s change\nof policy in 2015—to allow inmates to receive up to four mag-\nazine subscriptions—warranted discounting the rationale\nsupporting the JCDC’s decision to ban the Law Bulletin (and,\nif so, to what degree) due to concerns associated with excess\npaper. See Turner, 482 U.S. at 89 (“[T]here must be a ‘valid,\nrational connection’ between the prison regulation and the le-\ngitimate governmental interest put forward to justify it.”)\n(quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).\n Second, the record on summary judgment contained very\nfew examples of any publications being used to create safety\nrisks within the facility. And none of the examples the defend-\nants did provide relate to newsprint publications. Though\nmindful that courts must aﬀord substantial deference to\nprison administrators on matters of institutional security, see\nOverton v. Bazzetta, 539 U.S. 126, 132 (2003), that latitude is not\nboundless: defendants still must present evidence “demon-\nstrating a specific security concern that bears a nexus to the\nprohibited conduct.” Riker v. Lemmon, 798 F.3d 546, 557 (7th\nCir. 2015).\n Third, we note based on the public record that the JCDC’s\nprohibition of the Law Bulletin seems in substantial tension, if\nnot direct conflict, with the County Jail Standards promul-\ngated by the State of Illinois. See Ill. Admin. Code tit. 20,\n§ 701.180 (providing that inmates in county facilities “may re-\nceive … periodicals subject to inspection and approval by jail\n\f10 No. 17-1507\n\npersonnel”). The record is silent as to whether the JCDC is a\nfacility subject to the County Jail Standards, and, if so, what\nspecific security concerns prevented the facility from adher-\ning to the regulation and allowing Miller to receive his sub-\nscription to the Law Bulletin. That the Jail Standards seem to\npermit inmates to receive all periodicals, while still ensuring\nprison safety, suggests that Kankakee’s prohibition of an even\nnarrower class of publications (specifically, legal publica-\ntions) was an exaggerated response to its proﬀered security\nconcerns, a consideration relevant to the entire Turner analy-\nsis. See Beard v. Banks, 548 U.S. 521, 528 (2006). This too war-\nrants consideration on remand.\n III\n We owe a final word to Miller’s procedural due process\nclaim. Miller alleged that jail oﬃcials confiscated and de-\nstroyed his copies of the Law Bulletin without any notice or\nopportunity for him to appeal this action. In his amended\ncomplaint, he expressly cast this allegation in terms of a vio-\nlation of the Fourteenth Amendment’s Due Process Clause.\nThe district court, however, did not address this claim, per-\nhaps on the view that it was entirely duplicative of Miller’s\nFirst Amendment claim. But that is not so. Indeed, at a\nbroader level, the imperative of fair process may take on\nadded significance in the domain of free speech. See, e.g.,\nHenry P. Monaghan, First Amendment “Due Process,” 83 Harv.\nL. Rev. 518 (1970).\n Due process requires that the decision to censor inmate\nmail must be accompanied by “minimum procedural safe-\nguards.” Procunier v. Martinez, 416 U.S. 396, 417 (1974), over-\nruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401\n(1989); see also Perry v. Secʹy, Fla. Depʹt of Corr., 664 F.3d 1359,\n\fNo. 17-1507 11\n\n1368 (11th Cir. 2011) (applying this standard to a due process\nclaim). This standard has generally required oﬃcials to pro-\nvide inmates with notice and an opportunity to object to a\nconfiscation of their mail. See Martinez, 416 U.S. at 418. Miller\ndeserves the opportunity on remand to have this claim con-\nsidered under these standards.\n For these reasons, we VACATE the judgment of the district\ncourt and REMAND for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366304/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	ROVNER	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589051/	Published	1	0	0	2,019	2	[ { "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...
4,589,154		Ronnie L. Winsted, Jr. v. Nancy A. Berryhill	2019-02-08	18-2228	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before MANION, BRENNAN, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "BRENNAN, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 18‐2228 \nRONNIE L. WINSTED, JR., \n Plaintiff‐Appellant, \n v. \n\nNANCY A. BERRYHILL, \nActing Commissioner of Social Security, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court \n for the Southern District of Indiana, Terre Haute Division. \n No. 2:17‐cv‐00137‐MJD‐WTL — Mark J. Dinsmore, Magistrate Judge. \n\n ____________________ \n\n ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 8, 2019 \n ____________________ \n\n Before MANION, BRENNAN, and SCUDDER, Circuit Judges. \n BRENNAN, Circuit Judge. Ronnie Winsted applied for disa‐\nbility insurance benefits and supplemental security income \nclaiming disability based on numerous conditions, including \ndegenerative disc disease, osteoarthritis, and anxiety. An \nadministrative law judge denied benefits, finding that Win‐\nsted could work with certain limitations. After the district \n\f2 No. 18‐2228 \n\ncourt upheld this denial, Winsted appealed, arguing the ALJ \ndid not consider his difficulties with concentration, persis‐\ntence, and pace. We agree—the ALJ did not adequately \nexplain how the limitations he placed on Winsted’s residual \nfunctional capacity accounted for the claimant’s mental diffi‐\nculties, so we remand to the agency. \n I. Background \n Winsted was 42 years old when he applied for benefits, \nasserting an onset date of October 2010. Although he initially \nalleged he became disabled in 2005, two prior applications \nalleging this onset date were denied and deemed administra‐\ntively final. \n \n\n Winsted suffers from multiple physical impairments, \nmostly associated with his previous work in hard labor as an \nindustrial truck driver, a highway maintenance worker, and \nan operating engineer. MRIs taken in 2010 and 2011 showed \nhe had focal, isolated degenerative disc disease. Other tests \nrevealed osteoarthritis, mild carpal tunnel syndrome in his \nhands, and cavus (high‐arched) foot that he treats with special \nshoes. \n \n\n Winsted complained of shortness of breath in May 2011 \nand was diagnosed with acute bronchitis and chronic obstruc‐\ntive pulmonary disease (“COPD”). Although he wheezed at \ntimes, he often responded well to medication. Throughout the \nrelevant period, Winsted sometimes complained of wheez‐\ning, but often his lungs were clear. A pulmonary function test \nin 2013, however, showed Winsted had moderate obstructive \nlung disease and possibly restrictive lung disease. \n \n\n Winsted began seeing an internist, Dr. Nedu Gopala, for \nback pain in August 2013. The doctor prescribed medication \n\fNo. 18‐2228 3\n\nfor Winsted’s breathing, chest pain, back pain, and anxiety. \nAt appointments throughout 2013 and into March 2015, \nWinsted’s range of motion in his arms and legs alternated \nfrom full, to limited. He maintained a chronic cough, mild \nshortness of breath, and wheezing, though a 2014 pulmonary \nfunction test did not show any evidence of lung obstruction. \n \n\n To address stress‐related heart issues, Winsted sought \nmental‐health treatment in 2012. A therapist diagnosed him \nwith a panic disorder, post‐traumatic stress disorder, and \nmajor depressive disorder. Winsted had a guarded attitude, \n“very little insight,” “below average” intellect, and was \nassigned a Global Assessment of Function (“GAF”) of 51, \nindicating he had moderate difficulty in social and occupa‐\ntional functioning.1 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND \nSTATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). \nIn his therapy appointments, Winsted regularly complained \nabout altercations with neighbors. \n \n\n Later that year, Winsted sought treatment from a psychia‐\ntrist, who diagnosed major depressive disorder and assigned \na GAF of 45, indicating a serious impairment in social or \noccupational functioning. AM. PSYCHIATRIC ASS’N, supra. The \npsychiatrist reported that Winsted was tense, anxious, “very \nrestless,” and moderately depressed. He prescribed medica‐\ntion for anxiety and depression and continued to treat Win‐\nsted. \n \n\n \n1 The GAF, which assesses an “individual’s overall level of functioning,” \n\nCraft v. Astrue, 539 F.3d 668, 676 n.7 (7th Cir. 2008), is no longer widely \nused by psychiatrists and psychologists, but it was sometimes referred to \nin social security disability hearings during Winsted’s proceedings. \nSee Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015). \n\f4 No. 18‐2228 \n\n Between September 2013 and February 2015, Winsted’s \nmental health fluctuated. In September 2013, Winsted’s \npsychiatrist reported that his affect was appropriate, his \nmood was not depressed, and “on the whole [he was] doing \nbetter.” But two months later, Winsted’s affect was anxious, \nhis mood was depressed, he was “feeling more irritable, \nanxious, and restless,” and he suffered panic attacks. At a \ntherapy session in July 2014, a therapist reported Winsted’s \n“symptoms of depression and worry impair overall function‐\ning,” and in August and November 2014, he was “mildly \ndepressed.” But in February 2015, Winsted presented with an \nappropriate affect and a not‐depressed mood. The same was \ntrue in April 2015, though Winsted reported he sometimes felt \n“tense and anxious” and stress continued to cause him to \n“become overwhelmed.” \n \n\n The disability application also triggered an examination in \n2013 from an agency psychologist, Dr. Steven Marlow, who \ndiagnosed Winsted with major depressive disorder, a gener‐\nalized anxiety disorder, and a panic disorder. Specifically, he \nreported Winsted “has a[n] avoidant, hostile, and easily \ndistracted attitude.” Dr. Marlow determined Winsted had \nbelow average levels of mental control, understanding and \nmemory, and concentration; poor levels of persistence; and he \ndid not do well in social situations. \n \n\n A state‐agency physician, Dr. George Siderys, also exam‐\nined Winsted in 2013 and opined he had a mild functional \nimpairment. This included: “mild decrease in range of mo‐\ntion,” pain that would be “expected to cause him problems \nwith prolonged standing, walking, or heavy lifting,” and a \nhistory of heart difficulties that would cause him to “wear out \nif he participated in prolonged walking or lifting.” \n\fNo. 18‐2228 5\n\n \n\n In connection with Winsted’s disability claim, treating \nphysician Dr. Gopala completed a physical residual func‐\ntional capacity (“RFC”) questionnaire in early 2015 and \nreported Winsted suffered from hypertension, COPD, and \nback pain, and described Winsted’s prognosis for back pain \nas “poor.” He determined Winsted had a “painful range of \nmovement” and was incapable of performing even “low \nstress” work. Dr. Gopala also wrote that Winsted’s symptoms \nwould affect his attention and concentration frequently; he \ncould walk only about one block; and he could sit or stand for \nonly 15 minutes at a time. \n \n\n In April 2015, treating therapist Jessica Nevill filled out a \nmental RFC questionnaire. She opined Winsted had marked \nimpairments in his abilities to: relate to other people, respond \nto supervision, respond to work pressures, and respond \nappropriately to changes in the work setting. She wrote \nWinsted would miss work three to four days per month \nbecause of his impairments. \n \n\n After the Social Security Administration denied Winsted’s \napplication, he had a hearing before an ALJ. Winsted testified \nhe used an inhaler twice a day, slept with a CPAP machine, \nused a nebulizer for breathing every three months, and con‐\ntinued to smoke a half‐a‐pack of cigarettes per day. He said \nhe could not grip a two‐liter bottle with his left hand. Due to \nthe pain in his knees and feet, he said he could stand for only \na few minutes and, even then, he could not stand still. He also \nsaid he could walk only a few blocks before needing to stop \nand catch his breath, and experienced chest pain three to four \ntimes per week. He noted he has trouble getting along with \npeople and does not like to be around groups. \n \n\f6 No. 18‐2228 \n\n After Winsted testified, the ALJ asked the vocational \nexpert (“VE”) three hypothetical questions. First, the ALJ \nasked the VE to consider an individual of the same age, \neducation, and work experience as Winsted. He continued: \n \n\n This hypothetical individual would be capable \n of light work, but four hours maximum stand‐\n ing and walking in an eight hour day, only \n occasional climbing of ramps, and stairs, but no \n ropes, ladders, or scaffolds, only occasional bal‐\n ancing, stooping, kneeling, crouching, and \n crawling. Frequent, but not constant handling \n and fingering bilaterally. This individual would \n need to avoid concentrated exposure to breath‐\n ing irritants, such as fumes, orders, dust, and \n gasses, as well as wet, slippery surfaces, and \n unprotected heights and would further be \n limited to only simply reaching, repetitive tasks, \n with few workplace changes, no team work, \n and no interactions with the public. \n \n\nThe expert determined such a person could work as a bench \nassembler, electronics worker, or production assembler. In \nthe second hypothetical, the ALJ asked about an individual \nwith the same limitations as in the first hypothetical, but who \nalso “due to impair‐related symptoms, such as the need to lay \ndown during the day to relieve pain would be off task 20% of \nthe work day.” The VE replied that such an individual could \nnot sustain employment. Finally, the ALJ asked about a per‐\nson with all the same limitations as provided in the first hy‐\npothetical, “but due to the frequency of bad days versus good \ndays, this individual would have two unscheduled absences \n\fNo. 18‐2228 7\n\nper month.” Again, the VE answered, “there would be no \njobs.” \n \n\n The ALJ conducted the Administration’s 5‐step analysis, \nsee 20 C.F.R. § 404.1520(a), § 416.920(a), and found Winsted \nnot disabled. At Step 1 the ALJ determined Winsted had not \nengaged in substantial gainful activity since October 22, 2010. \nAt Step 2 the ALJ identified Winsted’s severe impairments as \ndegenerative disc disease of the lumbar spine, bilateral carpal \ntunnel syndrome, osteoarthritis in his left knee, bilateral \ncavus foot, COPD, obstructive sleep apnea, obesity, an affec‐\ntive disorder, and an anxiety disorder. At Step 3 the ALJ \nacknowledged Winsted had moderate difficulty with social \nfunctioning and concentration, persistence, and pace because \nof his mental‐health issues, but concluded these severe \nimpairments did not meet a listing for presumptive disability. \nBetween Steps 3 and 4 the ALJ determined Winsted had the \nrequisite RFC to perform light work with certain limitations \n(as provided in the first hypothetical, and including being \nlimited to “simple, routine, repetitive tasks with few work‐\nplace changes, no team work, and no interaction with the pub‐\nlic”) but his limitations precluded him from performing his \npast relevant work (Step 4). At Step 5 the ALJ concluded, \nbased on Winsted’s age, education, work experience, and \nRFC, that he was capable of successfully changing to other \nwork. \n \n\n Winsted appealed to the agency’s Appeals Council, which \ndenied review. He then sought judicial review, and the par‐\nties agreed to have a magistrate judge adjudicate this case. \nSee 28 U.S.C. § 636(c). That judge upheld the ALJ’s decision. \n\f8 No. 18‐2228 \n\n II. Analysis \n \n\n A. ALJ’s Evaluation of Winsted’s Limitations in Concen‐\n tration, Persistence, and Pace \n \n\n Winsted argues neither the ALJ’s RFC nor his first hypo‐\nthetical question properly accounted for the finding that he \nhas “moderate” difficulties with concentration, persistence, \nand pace. He submits the ALJ’s proposed limitations—that \nWinsted perform only “simple, routine, repetitive tasks with \nfew workplace changes”—fail to address his concentra‐\ntion‐functioning deficits because “both the hypothetical \nposed to the VE and the ALJ’s RFC assessment must incorpo‐\nrate all of the claimant’s limitations supported by the medical \nrecord.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). \n \n\n Winsted’s argument here is correct. Again and again, we \nhave said that when an ALJ finds there are documented \nlimitations of concentration, persistence, and pace, the hypo‐\nthetical question presented to the VE must account for these \nlimitations. Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. \n2018); Varga, 794 F.3d at 814‐15; OʹConnor‐Spinner v. Astrue, \n627 F.3d 614, 620 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d \n679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 \n(7th Cir. 2003); see also Young v. Barnhart, 362 F.3d 995, 1003 \n(7th Cir. 2004). We have also made clear that in most cases \n“employing terms like ‘simple, repetitive tasks on their own \nwill not necessarily exclude from the VE’s consideration those \npositions that present significant problems of concentration, \npersistence and pace,” and thus, alone, are insufficient to pre‐\nsent the claimant’s limitations in this area. OʹConnor‐Spinner, \n627 F.3d at 620; see Moreno, 882 F.3d at 730. Here, at Step 3 the \nALJ found Winsted’s moderate difficulties with \n\fNo. 18‐2228 9\n\nconcentration, persistence, and pace could cause problems \nwith concentration and following written instructions, as well \nas stress with changes in his routine. And Winsted’s psychia‐\ntrist and therapist both remarked that stress caused Winsted \nto “become overwhelmed” and his depression impaired his \noverall functioning. \n \n\n But the first hypothetical the ALJ posed to the VE did not \ndirect the expert to consider problems with concentration, \npersistence, and pace, which is the hypothetical the ALJ relied \non for the RFC. Though particular words need not be \nincanted, we cannot look at the absence of the phrase “moder‐\nate difficulties with concentration, persistence, and pace” and \nfeel confident this limitation was properly incorporated in the \nRFC and in the hypothetical question. See OʹConnor‐Spinner, \n627 F.3d at 619. The ALJ may have thought, as the agency \nproposes, he was addressing Winsted’s concentration diffi‐\nculties by including limitations that would minimize social \ninteraction. But that restriction could just have likely been \nmeant to account for Winsted’s moderate difficulty with \nsocial functioning—the ALJ acknowledged Winsted experi‐\nences anxiety, panic attacks, and irritability when he is around \npeople. Nothing in the hypothetical question and the RFC, \nhowever, accounted for the ALJ’s discussion of how \nWinsted’s low GAF scores reflect serious mental‐health \nsymptoms or his mention that Winsted often “appeared tense, \nanxious, and/or restless” without interacting with other people. \nAdditionally, where a claimant’s limitations are stress‐\nrelated, as Winsted’s appear to be, the hypothetical question \nshould account for the level of stress a claimant can handle. \nSee Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007); \nJohansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002). \n\f10 No. 18‐2228 \n\nBut there was no restriction related to stress in the RFC or \nhypothetical question. \n \n\n Notably, it appears the ALJ disregarded testimony from \nthe VE about a person with limitations in concentration, per‐\nsistence, and pace. The ALJ asked two additional hypothetical \nquestions of the VE about an individual who would either be \noff task 20% of the workday or would have two unscheduled \nabsences per month—presumably assuming someone with \n“moderate difficulties with concentration, persistence, and \npace.” The VE responded that neither individual could \nsustain employment. But these responses are not reflected in \nthe ALJ’s decision, which means it cannot stand. \n \n\n B. ALJ’s Evaluation of the Medical Opinion Evidence \n \n\n Winsted also challenges the evidentiary weight the ALJ \ngave to four medical opinions, two from treating medical \nprofessionals (Dr. Gopala and Ms. Nevill) and two from state \nagency doctors (examining psychologist Dr. Marlow and \nconsultative examiner Dr. Siderys). \n \n\n Before reaching the merits of this argument, we must \naddress the agency’s contention that Winsted waived it. The \nagency is not correct on this; Winsted never “knowingly and \nintelligently relinquished” his claim, Wood v. Milyard, 566 U.S. \n463, 470 n.4 (2012). That he developed the argument poorly \nmeans at most he forfeited it. Brown v. Colvin, 845 F.3d 247, \n254 (7th Cir. 2016). \n \n\n Forfeited or not, this argument fails. In the decision, the \nALJ adequately articulated why he gave each opinion the \nweight he did, entitling his decision, in this respect, to our \ndeference. See Elder v. Astrue, 529 F.3d 408, 413, 416 (7th Cir. \n\fNo. 18‐2228 11\n\n2008). Starting with Dr. Gopala, the ALJ appropriately ques‐\ntioned the doctor’s conclusion—that Winsted had a painful \nrange of motion that made him incapable of engaging in \n“low‐stress” work—in light of other record evidence. This \nincluded Dr. Gopala’s own notes, which showed Winsted \nregularly had a full range of motion, no gross sensory or \nmotor deficits, fine motor skills within normal limits, and \nlungs that “have often been clear.” And though treating phy‐\nsician’s opinions, like Dr. Gopala’s, are usually entitled to \ncontrolling weight, see 20 C.F.R. § 404.1527(c)(2); SSR 96‐2p,2 \nan ALJ may discredit the opinion if it is inconsistent with the \nrecord. See Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016); \nCampbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); 20 C.F.R. \n§ 404.1527(c)(2). \n \n\n Next, Winsted argues the ALJ erred in giving little eviden‐\ntiary weight to Ms. Nevill’s mental RFC assessment. But the \nALJ wrote he discounted her report because she was a \nnon‐medical professional, and thus not an “acceptable medi‐\ncal source” See 20 CFR § 404.1513(a), § 416.913(a). Also, her \nfindings were “based solely on [Winsted’s] subjective \ncomplaints”—an appropriate reason for an ALJ to discount \nan opinion, see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. \n2008). Additionally, he found Ms. Nevill’s report, like Dr. Go‐\npala’s, was inconsistent with Winsted’s medical‐health record \nas a whole. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012) \n(citing 20 C.F.R. § 404.1527(c)(2)‐(3)). \n \n\n\n\n \n2 The treating‐physician rule, which was eliminated for claims filed after \n\nMarch 27, 2017, see 20 C.F.R. § 404.1520c (2017), still applies to Winsted’s \nearlier filed claim, see Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018); \n20 C.F.R. § 404.1527. \n\f12 No. 18‐2228 \n\n Finally, Winsted claims the ALJ gave short shrift to the \ntwo state examiners’ 2013 opinions, asserting the ALJ erred in \ndiscussing the state psychologist’s evaluation “in one \nsentence” and the state physician’s opinion in a footnote. But \nas the agency points out, the ALJ discussed these opinions \nthroughout the decision. The ALJ cited the state psycholo‐\ngist’s findings when discussing Winsted’s mental‐health \ndiagnosis, and referred repeatedly to the state physician’s \nopinion throughout his discussion of Winsted’s gait, grip \nstrength, and scattered wheezing. The court applies a \ncommon‐sense reading to the entirety of an ALJ’s decision. \nRice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004); Shramek \nv. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). Here, the ALJ ade‐\nquately articulated his reasons for discounting these two \nopinions—both reports were based on only one evaluation \nand largely reflected Winsted’s subjective reporting. See Elder, \n529 F.3d at 416; Rice, 384 F.3d at 371 (ALJs should rely on \nmedical opinions “based on objective observations,” not \n“subjective complaints.”); 20 C.F.R. § 404.1527(c)(i) (ALJs \nshould consider “frequency of examination” in weight it \nassigns opinion). \n \n\n III. Conclusion \n \n\n Because the ALJ’s hypothetical question to the vocational \nexaminer and the residual function capacity did not capture \none of Winsted’s most significant problems—his concentra‐\ntion‐functioning deficits—we conclude further proceedings \nare necessary on that issue only. Therefore, we REVERSE the \ndistrict court judgment and REMAND this case to the Social \nSecurity Administration.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366407/", "author_raw": "BRENNAN, Circuit Judge"}]}	MANION	BRENNAN	SCUDDER	1	{"MANION": ", Circuit", "BRENNAN": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589154/	Published	1	0	0	2,019	2	[ { "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...
4,589,155		Linda Reed v. Columbia St. Mary's Hospital	2019-02-08	17-1469	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 17‐1469 \nLINDA REED, \n Plaintiff‐Appellant, \n v. \n\nCOLUMBIA ST. MARY’S HOSPITAL, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Eastern District of Wisconsin. \n No. 14‐CV‐330 — J.P. Stadtmueller, Judge. \n ____________________ \n\n ARGUED SEPTEMBER 12, 2018 — DECIDED FEBRUARY 8, 2019 \n ____________________ \n\n Before EASTERBROOK, ROVNER, and HAMILTON, Circuit \nJudges. \n HAMILTON, Circuit Judge. Plaintiﬀ‐appellant Linda Reed al‐\nleges that she suﬀered discrimination on the basis of her dis‐\nabilities while she was a patient at defendant‐appellee Colum‐\nbia St. Mary’s Hospital in March 2012. Among other things, \nshe contends that the hospital failed to accommodate her dis‐\nabilities by deliberately withholding from her a device she \nused to speak and discriminated against her by putting her in \n\f2 No. 17‐1469 \n\na “seclusion” room to punish her. She brought claims under \nTitle III of the Americans with Disabilities Act (“ADA”), 42 \nU.S.C. § 12181, which governs public accommodations of‐\nfered by private entities, including hospitals, as well as Sec‐\ntion 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Wis‐\nconsin Mental Health Act, Wis. Stat. § 51.61. \n The district court granted the hospital’s motion for sum‐\nmary judgment, dismissing the federal claims with prejudice \nand declining to exercise supplemental jurisdiction over the \nremaining state‐law claims. Reed v. Columbia St. Mary’s Hospi‐\ntal, 236 F. Supp. 3d 1091 (E.D. Wis. 2017). The court held that \nthe hospital did not need to comply with Title III of the ADA \nbecause it fell within the Act’s exemption for entities con‐\ntrolled by religious organizations. Id. at 1103–04, citing 42 \nU.S.C. § 12187. The court also dismissed Reed’s Rehabilitation \nAct claims, finding that the hospital’s alleged mistreatment of \nReed was not premised solely on Reed’s disability. Id. at 1105–\n08. \n We reverse. The hospital raised its religious exemption af‐\nfirmative defense to the ADA claims for the first time after \ndiscovery, in its motion for summary judgment. We explain \nbelow why we conclude it was an abuse of discretion to ex‐\ncuse the hospital’s failure to raise this aﬃrmative defense ear‐\nlier. We also reverse the dismissal of Reed’s Rehabilitation Act \nclaims on the merits because they depend on disputed facts. \nI. Factual & Procedural Background \n A. Reed’s Stay in the Hospital \n Our statement of facts reflects our standard of review for \na grant of summary judgment. We cannot vouch for the ob‐\njective truth of every detail. We review the facts and draw all \n\fNo. 17‐1469 3\n\ninferences from conflicting evidence in the light reasonably \nmost favorable to Reed as the non‐moving party. Greengrass \nv. International Monetary Systems Ltd., 776 F.3d 481, 485 (7th \nCir. 2015). \n Reed suﬀers from several disabilities, including tardive \ndyskinesia (“TD”), bipolar disorder, and post‐traumatic stress \ndisorder. TD is a neurological disorder that causes involun‐\ntary facial and limb movements and makes speaking diﬃcult. \nReed has been prescribed a portable communication device \ncalled a Dynavox that she can use to generate speech. \n Reed entered the hospital’s emergency department on \nMarch 8, 2012. She reported suicidal thoughts. She was admit‐\nted to the inpatient behavioral health unit and left on March \n12. Reed alleges that during her four‐day stay at the hospital \nshe was discriminated against in multiple ways. She claims \nthat she was denied the use of her Dynavox; that hospital staﬀ \nattempted to give her medication she was allergic to; that she \nwas denied timely access to her medical records; that she was \ndenied the use of a telephone to call her case manager (about \nwhom the record reveals little); that she was denied access to \na chaplain; and that she was physically escorted oﬀ the prem‐\nises by two security guards. Notably, the hospital’s corporate \nrepresentative and nursing supervisor, William Fry, testified \nin his deposition that the Dynavox was locked up outside \nReed’s room at night and that she had access to it during the \nday only “as long as her behavior was appropriate.” \n The most severe of Reed’s allegations is that on March 11, \nhospital staﬀ refused to give her the Dynavox and took her to \na seclusion room, where she was dropped on a mattress on \nthe floor and later attempted suicide. Reed and the hospital \ngive diﬀering accounts of what exactly took place during this \n\f4 No. 17‐1469 \n\nincident. Reed claims that she asked for her Dynavox, that \nhospital staﬀ refused to give it to her, that her TD‐related \nmovements caused her to spill coﬀee on herself and to fall to \nthe ground, and that patient‐care assistant Andrew Miller \ngrabbed her and put her in the seclusion room for about two \nhours. Miller testified, on the other hand, that Reed was on \nthe ground in a hallway crying and he told her she needed to \nget out of the hallway. When he was walking her back to her \nroom, he claims, she began to scream and he and nursing su‐\npervisor Fry decided to take her to the seclusion room. On re‐\nview of a grant of summary judgment for the defendant, of \ncourse, we must accept the plaintiﬀ’s version of events. Reed \nwas discharged the day after this incident. According to Reed, \nher Dynavox and other possessions were thrown into a cab, \nand she was pushed into it by a security guard and sent oﬀ. \n B. The District Court Proceedings \n Reed filed her first complaint pro se in February 2014. The \ndistrict court dismissed that case without prejudice. The next \nmonth, Reed filed this new lawsuit, which the court construed \nas raising claims under the ADA and the Rehabilitation Act. \nThe district court dismissed again, holding that the dismissal \nof the prior suit had preclusive eﬀect and alternatively that \nReed failed to state a claim. Reed appealed pro se. We vacated \nand remanded because the first case had been dismissed with‐\nout prejudice and thus did not preclude the second. Reed v. \nColumbia St. Mary’s Hospital, 782 F.3d 331, 335–36 (7th Cir. \n2015). We also held that Reed stated viable claims under the \nADA and the Rehabilitation Act. Id. at 337. \n On remand, the district court recruited counsel for Reed. \nHer amended complaint asserted claims under the ADA for \nintentional discrimination, denial of reasonable modification, \n\fNo. 17‐1469 5\n\nand retaliation and intimidation; claims under the Rehabilita‐\ntion Act for intentional discrimination and denial of reasona‐\nble accommodation; and patients’‐rights claims under Wis‐\nconsin state law. The hospital filed answers to both the origi‐\nnal complaint and the amended complaint. Each answer as‐\nserted several aﬃrmative defenses. Neither answer men‐\ntioned a religious exemption from the ADA. Discovery was \nconducted from September 2015 to August 2016. In October \n2016, the hospital moved for summary judgment, which the \ndistrict court granted. \nII. Analysis \n This appeal presents one procedural issue and a cluster of \nsubstantive issues. The procedural issue is whether the dis‐\ntrict court abused its discretion in allowing the hospital to \nraise for the first time on summary judgment the aﬃrmative \ndefense of the ADA’s Title III religious exemption. The sub‐\nstantive issues concern the merits of the Rehabilitation Act \nclaims. \n A. The ADA Claims \n 1. The Religious Exemption Defense Under ADA Title III \n Title III of the ADA prohibits disability discrimination by \n“public accommodations,” including hospitals. See 42 U.S.C. \n§ 12181(7). Title III provides: “No individual shall be discrim‐\ninated against on the basis of disability in the full and equal \nenjoyment of the goods, services, facilities, privileges, ad‐\nvantages, or accommodations of any place of public accom‐\nmodation.” 42 U.S.C. § 12182(a). It is unlawful to “fail[] to take \nsuch steps as may be necessary to ensure that no individual \nwith a disability is excluded, denied services, segregated or \notherwise treated diﬀerently than other individuals because \n\f6 No. 17‐1469 \n\nof the absence of auxiliary aids and services,” unless the de‐\nfendant can show that such accommodation “would funda‐\nmentally alter the nature of the good, service, facility, privi‐\nlege, advantage, or accommodation being oﬀered or would \nresult in an undue burden.” § 12182(b)(2)(A)(iii). A physical \nor mental impairment that “substantially limits one or more \nmajor life activities,” including “speaking,” qualifies as a dis‐\nability under both the ADA and the Rehabilitation Act (dis‐\ncussed below). See 42 U.S.C. § 12102(1)(A), (2)(A); 29 U.S.C. \n§ 705(20)(B); 34 C.F.R. § 104.3(j)(2)(ii); 45 C.F.R. § 84.3(j)(2)(ii). \n Title III of the ADA applies generally to hospitals, but Title \nIII exempts from its requirements “religious organizations” \nand “entities controlled by religious organizations, including \nplaces of worship.” 42 U.S.C. § 12187. This exemption is an \naﬃrmative defense. A defendant invoking it must plead it in \nthe answer. See Fed. R. Civ. P. 8(c); Castro v. Chicago Housing \nAuthority, 360 F.3d 721, 735 (7th Cir. 2004). Rule 8(c) applies to \n“any avoidance or aﬃrmative defense,” and lists a number of \nparticular defenses that must be pleaded. The religious ex‐\nemption in Title III of the ADA is an aﬃrmative defense be‐\ncause it assumes the plaintiﬀ can prove everything she must \nto establish her claim but may still act to defeat her claim.1 \n It makes sense for the defendant claiming the Title III reli‐\ngious exemption to bear the burden of pleading and proving \nits religious control. We have said that a defense not listed in \nRule 8(c) is an aﬃrmative defense that must be pleaded if the \n \n 1 “An affirmative defense is one that admits the allegations in the com‐\n\nplaint, but avoids liability, in whole or in part, by new allegations of ex‐\ncuse, justification or other negating matters.” Divine v. Volunteers of Amer‐\nica of Illinois, 319 F. Supp. 3d 994, 1003 (N.D. Ill. 2018), quoting Riemer v. \nChase Bank USA, N.A., 274 F.R.D. 637, 639 (N.D. Ill. 2011). \n\fNo. 17‐1469 7\n\ndefendant bears the burden of proof on the issue under state \nlaw or if the defense does not controvert the plaintiﬀ’s proof. \nWinforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, 872 (7th \nCir. 2012). The religious exemption defense does not contro‐\nvert the plaintiﬀ’s proof. It also draws on facts ordinarily \nwithin the knowledge and control of the defendant. See Gomez \nv. Toledo, 446 U.S. 635, 640–41 (1980) (qualified immunity is \naﬃrmative defense under 42 U.S.C. § 1983; relevant facts are \npeculiarly within knowledge and control of defendant); \nWright & Miller, Federal Practice & Procedure § 1271. An \nADA plaintiﬀ should not need to spend the money to antici‐\npate this defense without fair and timely notice that the de‐\nfendant intends to rely upon it. \n 2. Consequences of Failure to Plead a Defense \n A defendant’s failure to plead an aﬃrmative defense may \nresult in a waiver of the defense if the defendant has relin‐\nquished it knowingly and intelligently, or forfeiture if the de‐\nfendant merely failed to preserve the defense by pleading it. \nSee Wood v. Milyard, 566 U.S. 463, 470 & n.4 (2012). Some of \nour opinions use the terms waiver and forfeiture interchange‐\nably, but Wood shows that we need to pay attention to the dif‐\nference. Whether courts apply waiver or forfeiture in re‐\nsponse to a failure to plead, the purpose of the pleading re‐\nquirement for an aﬃrmative defense “is to avoid surprise and \nundue prejudice to the plaintiﬀ by providing her notice and \nthe opportunity to demonstrate why the defense should not \nprevail.” Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. \n1997). \n We have explained, however, that “the rule that forfeits an \naﬃrmative defense not pleaded in the answer (or by an earlier \nmotion) is, we want to make clear, not to be applied rigidly.” \n\f8 No. 17‐1469 \n\nGarofalo v. Village of Hazel Crest, 754 F.3d 428, 436 (7th Cir. \n2014), citing Matthews v. Wisconsin Energy Corp., Inc., 642 F.3d \n565, 570 (7th Cir. 2011). We will generally find that the failure \nto plead an aﬃrmative defense in the answer works a forfei‐\nture “only if the plaintiﬀ is harmed by the defendant’s delay \nin asserting it.” Id. There are limits, though, and in exercising \ntheir discretion in such matters, district courts must be alert \nto the real and practical harms that can result from failures to \nplead. We have explained that \n the district court has the discretion to allow an \n answer to be amended to assert an aﬃrmative \n defense not raised at the outset. The pertinence \n of a particular defense may only become appar‐\n ent after discovery, for example, in which case it \n would be reasonable for the court to permit the \n belated assertion of that defense. Nonetheless, \n the defendant remains obligated to act in timely \n fashion. Once the availability of an aﬃrmative \n defense is reasonably apparent, the defendant \n must alert the parties and the court to his intent \n to pursue that defense. A defendant should not \n be permitted to “lie behind a log” and ambush \n a plaintiﬀ with an unexpected defense. The ap‐\n propriate thing for the defendant to do, of \n course, is to promptly seek the court’s leave to \n amend his answer. His failure to do [so] risks a \n finding that he has waived the defense. \nVenters, 123 F.3d at 967–68 (internal citations and quotation \nmarks omitted). \n Pleadings shape the litigation, including the scope and \ncost of discovery. Based on the claims and defenses raised in \n\fNo. 17‐1469 9\n\nthe pleadings, the parties can discover information that is rel‐\nevant, not privileged, and proportional to the needs of the \ncase. See Fed. R. Civ. P. 26. Many eﬃciencies are lost when \nclaims or defenses are left out of pleadings and a party then \nattempts to assert them at later stages. At the same time, it is \nnot unusual for parties to discover new theories for claims or \ndefenses in the course of discovery. Timely motions to amend \npleadings for such newly discovered theories are appropriate \nunder Federal Rule of Civil Procedure 15(a). \n We see these problems more often when plaintiﬀs try to \nraise new theories or claims for the first time in opposing sum‐\nmary judgment. The concerns about unfair surprise and prej‐\nudice with unpleaded aﬃrmative defenses are similar: \n When a new argument is made in summary \n judgment briefing, the correct first step is to con‐\n sider whether it changes the complaint’s factual \n theory, or just the legal theories [the] plaintiﬀ \n has pursued so far. In the former situation, the \n plaintiﬀ may be attempting in eﬀect to amend \n its complaint, and the district court has discre‐\n tion to deny the de facto amendment and to re‐\n fuse to consider the new factual claims. In the \n latter, the court should consider the conse‐\n quences of allowing the plaintiﬀ’s new theory. \n If it would, for example, cause unreasonable de‐\n lay, or make it more costly or diﬃcult to defend \n the suit, the district court can and should hold \n the plaintiﬀ to his original theory. \nBRC Rubber & Plastics, Inc. v. Cont’l Carbon Co., 900 F.3d 529, \n540 (7th Cir. 2018) (citations and internal quotation marks \n\f10 No. 17‐1469 \n\nomitted), quoting Chessie Logistics Co. v. Krinos Holdings, Inc., \n867 F.3d 852, 860 (7th Cir. 2017). \n We routinely enforce this stricture against plaintiﬀs who \nwait until summary‐judgment briefing to raise a new claim, \ndespite the absence of an express pleading requirement, since \ncomplaints need not identify legal theories. See, e.g., Anderson \nv. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (pro se plaintiﬀ); \nWhitaker v. Milwaukee County, 772 F.3d 802, 808 (7th Cir. 2014); \nTrade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 412 (7th \nCir. 2009); Conner v. Illinois Dep’t of Natural Resources, 413 F.3d \n675, 679–80 (7th Cir. 2005); Griﬃn v. Potter, 356 F.3d 824, 830 \n(7th Cir. 2004); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. \n2002); Whitaker v. T.J. Snow Co., 151 F.3d 661, 663–64 (7th Cir. \n1998); Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir. 1997); \nShanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996); \nKostovetsky v. Ambit Energy Holdings, LLC, 242 F. Supp. 3d 708, \n718–19 (N.D. Ill. 2017) (reviewing Seventh Circuit case law). \nIn much the same way, late assertions of aﬃrmative de‐\nfenses—like the religious exemption to Title III of the ADA—\nmake litigation more costly and diﬃcult and can make it un‐\nfairly diﬃcult for a plaintiﬀ to pursue her claims. \n 3. The District Court’s Ruling \n The district court held that the hospital did not waive or \nforfeit its religious exemption aﬃrmative defense. The court \nacknowledged that the hospital raised the defense for the first \ntime in its motion for summary judgment but explained that \nsince this defense is not expressly listed in Federal Rule of \nCivil Procedure 8(c), “it is not clear that failure to assert it in \nthe answer waives it.” 236 F. Supp. 3d at 1101. That rationale \nwill not hold water here. Precedent oﬀers suﬃciently clear \nguidance on when defenses not enumerated in Rule 8(c) must \n\fNo. 17‐1469 11\n\nbe pleaded. See, e.g., Gomez v. Toledo, 446 U.S. 635, 640–41 \n(1980); Winforge, Inc. v. Coachmen Industries, Inc., 691 F.3d 856, \n872 (7th Cir. 2012); Sundstrand Corp. v. Standard Kollsman In‐\ndustries, Inc., 488 F.2d 807, 813 (7th Cir. 1973); Brunswick Leas‐\ning Corp. v. Wisconsin Cent., Ltd., 136 F.3d 521, 530 (7th Cir. \n1998). The statutory exemption here is based on facts in a de‐\nfendant’s control and clearly falls within the category of af‐\nfirmative defenses. \n The district court also held that Reed was not prejudiced \nby the hospital’s delay in asserting this defense. For support, \nthe court relied on an exchange during the deposition of nurs‐\ning supervisor William Fry in February 2016, six months be‐\nfore the close of discovery, to find that Reed knew “for a sub‐\nstantial period that the religious exemption defense was a \npossibility.” Reed, 236 F. Supp. 3d at 1101. We respectfully dis‐\nagree. Here is the entire discussion from Fry’s deposition: \n Q And so who – what is your understanding of \n the ownership of Columbia St. Mary’s Hospital \n Milwaukee? \n MR. FOLEY: Object to form and foundation. \n THE WITNESS: I don’t really know the answer \n to that. I don’t really understand – I don’t know \n the answer to that. \n BY MS. BARNES: Who owns the organization? \n MR. FOLEY: Object to form and foundation. \n THE WITNESS: I’ll try to answer that. Ascen‐\n sion Healthcare is our parent sponsor of this \n ministry. \n\f12 No. 17‐1469 \n\n BY MS. BARNES: What does that mean, spon‐\n sor? \n MR. FOLEY: Object to form. \n THE WITNESS: Ascension Healthcare has mul‐\n tiple hospitals in multiple states across the \n country. That is, again, our – as far as I under‐\n stand it, our parent ownership structure. \n BY MS. BARNES: Okay. And is Ascension a re‐\n ligious organization? \n A Yes. \n Q What type of religious organization? \n A It’s a mission of the Roman Catholic Church. \n Q A mission? \n A Um‐hum. \n Q So is it – is it – \n A A ministry, I should have said. I ministry of \n the Roman Catholic Church. \n Q So is it – does it follow the principles of the \n Catholic church, when you say “ministry”? \n MR. FOLEY: I’ll object to form and foundation. \n I think this is far afield of – \n THE WITNESS: Yeah, this is beyond my \n knowledge and expertise. \n MR. FOLEY: – his knowledge. But if you can an‐\n swer, go ahead. \n\fNo. 17‐1469 13\n\n THE WITNESS: As far as I know, yes. I guess I \n don’t really understand the question. \n BY MS. BARNES: What does it mean to be a \n ministry, I guess? I’m trying to understand it as \n well. \n A Well, we’re a not for profit in the ministry of \n providing healthcare. \nFry Dep. at 13–15. \n This brief exchange was with a witness who obviously did \nnot understand the issue or identify the exemption, let alone \ntry to assert the exemption. It is not comparable to a lawyer’s \nstatement that the party intends to assert a defense. The ex‐\nchange did not put Reed on fair notice that the hospital would \nbe asserting the religious exemption and that she needed to \nspend the time and money to conduct full‐bore discovery on \nwhether the hospital could satisfy the ADA’s religious ex‐\nemption. \n The district court also thought that Reed knew when she \nfiled suit that the hospital was at least nominally associated \nwith the Catholic faith. Nominal association told plaintiﬀ and \ntells us nothing about the availability of the religious exemp‐\ntion. The statutory test is “control.” 42 U.S.C. § 12187. Count‐\nless entities have names that are associated with religions but \nare not subject to religious control. \n Finally, the district court noted that Reed’s response to the \nhospital’s motion for summary judgment showed that she \nhad studied the hospital’s corporate structure and governing \ndocuments (or at least those submitted by the hospital). We \n\f14 No. 17‐1469 \n\nhave a limited record before us on this issue.2 The structure \nappears to be as follows: the hospital’s sole corporate member \nis Columbia St. Mary’s Inc. In turn, Columbia St. Mary’s Inc. \nis “sponsored by” its two corporate members: Ascension \nHealth (a Catholic national health system) and Columbia \nHealth System, Inc. (a non‐sectarian community health sys‐\ntem). Ascension Health is a subsidiary of Ascension Health \nAlliance, which is a subsidiary of Ascension Health Minis‐\ntries. The Congregation of Consecrated Life and Societies of \nApostolic Life of the Vatican conferred public juridic person‐\nality on Ascension Health Ministries in June 2011. Ascension \nHealth Ministries’ governing documents state that it shall be \ngoverned in accordance with canon law. Thus, the hospital is \nsubject to two lines of control: (1) a Catholic one (Ascension \nHealth Ministries —> Ascension Health Alliance —> Ascen‐\nsion Health —> Columbia St. Mary’s Inc. —> the hospital); \nand (2) a non‐sectarian one (Columbia Health System —> Co‐\nlumbia St. Mary’s Inc. —> the hospital). \n The hospital’s bylaws reflect these two lines of control: \nthey say that the hospital “shall be and remain a Catholic fa‐\ncility or institution” but also that the hospital will “respect the \nnonsectarian traditions and values of Columbia Health Sys‐\ntem.” Similarly reflecting these two lines of control but revers‐\ning the emphasis, the bylaws of Columbia St. Mary’s Inc. (the \nhospital’s sole corporate member) say that it “shall not be a \nCatholic facility or institution” but that it will not perform \n\n \n 2 The record is limited since this defense was sprung on Reed in the \n\nmotion for summary judgment. Most of the relevant evidence comes from \nthe documents the hospital chose to submit. Even those documents show \na complicated corporate legal structure and an ambiguous relationship \nwith the hospital’s Catholic affiliates. \n\fNo. 17‐1469 15\n\nmedical procedures inconsistent with Catholic ethical direc‐\ntives. Columbia St. Mary’s Inc.’s bylaws reserve certain pow‐\ners to both Ascension Health and Columbia Health System.3 \nColumbia St. Mary’s Inc.’s oﬃcers and board members “serve \nex oﬃcio” as the hospital’s oﬃcers and board members. Im‐\nportant for the issue of control, the board members are recom‐\nmended by Columbia St. Mary’s Inc.’s existing board for ap‐\npointment by Ascension Health and are intended to “be \nbroadly representative of the communities served.” Relying \non this corporate structure as disclosed by the hospital in its \nsummary judgment materials, the district court determined \nthat the hospital was suﬃciently controlled by the Catholic \nChurch as to fall within Title III’s religious exemption and to \nmake it immune to Reed’s ADA claims. \n 4. Abuse of Discretion \n We express no opinion on whether, after full discovery \nand fair litigation of the issue on a more complete record, the \nhospital might fit within the exemption for entities controlled \nby religious organizations. Instead, we find that the district \ncourt abused its discretion by considering this aﬃrmative de‐\nfense at all. \n Several factors point in this direction. First, the defendant \nhospital has oﬀered no excuse or explanation for failing to \nplead the defense in it answers or for raising the defense so \nlate. Without a credible excuse for the delay, the hospital’s late \ninvocation of the defense looks like a straight ambush of the \nplaintiﬀ when it was too late for her to put together a \n \n 3 We are told that these dual lines of control are also detailed in the \n\nterms of an Affiliation Agreement, but that document has not been pro‐\nduced to Reed or included in the record. \n\f16 No. 17‐1469 \n\ncomprehensive rebuttal. Second, the religious‐exemption de‐\nfense should not ordinarily depend on discovery from the \nplaintiﬀ, as will often be the case with other aﬃrmative de‐\nfenses such as statutes of limitations, estoppels, waivers, and \nothers. Instead, the religious‐exemption defense will ordinar‐\nily depend on facts within the knowledge and control of the \ndefendant itself. Third, the defendant did not deploy this de‐\nfense until after discovery had closed, meaning both parties \nhad already invested a good deal of time and money in the \ncase on the legitimate expectation that they knew what the is‐\nsues were. Allowing a last‐minute defense that introduces \nsuch new factual and legal issues after discovery has closed \nraises the costs of litigation and allows the party that was at \nleast negligent in failing to plead its defense to take unfair ad‐\nvantage of its opposing party. Fourth, the district court’s ra‐\ntionale for allowing the defense to be raised so late simply \ndoes not withstand scrutiny. In this case, a few facts relevant \nto this potential aﬃrmative defense came up briefly in one \ndeposition. As we explained above, that cannot be reasonably \ntreated as fair notice that the hospital would actually assert \nthe defense and that the plaintiﬀ would need to spend the \ntime and money needed to meet that defense. The plaintiﬀ \nwas entitled to rely on Rule 8(c) and the hospital’s silence in \nits pleadings. \n The situation here is similar to that in Venters v. City of Del‐\nphi, where we concluded that the defendants waived their \nstatute of limitations aﬃrmative defense. 123 F.3d 956, 967–69 \n(7th Cir. 1997). There, the defendants failed to include the de‐\nfense in their answers to the original and amended com‐\nplaints. We could “discern no justification for the delay” when \nthey asserted the defense for the first time in their reply mem‐\norandum in support of their motion for summary judgment. \n\fNo. 17‐1469 17\n\nId. at 968. While a diﬀerence here is that Reed was at least \ngiven notice of the defense in the motion for summary judg‐\nment itself and could attempt to respond, she was still at a \nserious disadvantage. That notice came after the parties had \ncompleted discovery. As in Venters, we “cannot overlook the \nfailure to comply with Rule 8(c) in this context. Intentionally \nor not, [plaintiﬀ] was bushwacked.” Id. at 969. Put simply, “it \nwas not [plaintiﬀ’s] obligation to raise the defense, and if Rule \n8(c) is not to become a nullity, we must not countenance at‐\ntempts to invoke such defenses at the eleventh hour, without \nexcuse and without adequate notice to the plaintiﬀ.” Id.4 \n Finally, the prejudice to Reed from the delayed assertion \nof the defense is especially acute here because the relevant law \nand facts simply are not clear. The ADA does not define what \nit means to be considered a “religious organization” or to be \n“controlled by a religious organization.” See 42 U.S.C. § \n12187. To our knowledge, no federal appellate court has yet \nconstrued this religious exemption. Several district courts \nhave—including the veteran judge who decided this case. \nSee Rose v. Cahee, 727 F. Supp. 2d 728, 747 (E.D. Wis. 2010).5 \n\n \n 4 In contrast, we held that a district court did not abuse its discretion \n\nin Robinson v. Sappington when it allowed the defendants to amend their \npleadings at summary judgment to add affirmative defenses. 351 F.3d 317, \n332–33 (7th Cir. 2003). There, the record showed that the plaintiff had suf‐\nficient notice that the defendants might pursue the defenses because de‐\nfense counsel had explored them in detail during discovery. Id. Further, \nthe plaintiff did not suggest she was prejudiced in any way by the late \namendment. Id. \n 5 In Rose, the court applied the religious exemption where a Roman \n\nCatholic institute sponsored a healthcare corporation and occupied a pri‐\nmary role in the corporation’s corporate governance structure, the insti‐\ntute members made up the entirety of one class of corporate membership, \n\f18 No. 17‐1469 \n\nThese district court decisions show that the issue can be com‐\nplex, both factually and legally. These decisions have cited \nand relied on the following Department of Justice interpreta‐\ntion of the religious exemption: \n The ADA’s exemption of religious organiza‐\n tions and religious entities controlled by reli‐\n gious organizations is very broad, encompass‐\n ing a wide variety of situations. Religious or‐\n ganizations and entities controlled by religious \n organizations have no obligations under the \n ADA. Even when a religious organization car‐\n ries out activities that would otherwise make it \n a public accommodation, the religious organi‐\n zation is exempt from ADA coverage. Thus, if a \n church itself operates a day care center, a \n\n \nand the institute’s class members had the sole authority to amend or re‐\npeal the corporation’s articles of incorporation and bylaws. 727 F. Supp. \n2d at 747. As for the other district court cases applying the exemption, \nReed correctly points out that in none was the defense raised late, and in \nall there was greater evidence of religious control. See Cole v. Saint Francis \nMedical Ctr., No. 1:15‐CV‐98(ACL), 2016 WL 7474988, at 4‐6 (E.D. Mo. \nDec. 29, 2016) (exemption was “properly raised by Defendant as an affirm‐\native defense” and hospital was “under the jurisdiction of the Bishop of \nthe Roman Catholic Dioceses[.]”); Marshall v. Sisters of the Holy Family of \nNazareth, 399 F. Supp. 2d 597, 606 (E.D. Pa. 2005) (school “solely operated \nand controlled by” order of nuns); White v. Denver Seminary, 157 F. Supp. \n2d 1171, 1173–74 (D. Colo. 2001) (seminary was founded by Baptist asso‐\nciation and employees were required to be active Christians). By contrast, \nin Sloan v. Community Christian Day School, LLC, a Christian school was \nfound to not be exempt since the school was not owned, affiliated with, or \nfinancially supported by any recognized religious group and was instead \nowned by two individuals who were not ministers. No. 3–15–0551, 2015 \nWL 10437824, at 3, (M.D. Tenn. Dec. 11, 2015). \n\fNo. 17‐1469 19\n\n nursing home, a private school, or a diocesan \n school system, the operations of the center, \n home, school, or schools would not be subject to \n the requirements of the ADA or this part. The \n religious entity would not lose its exemption \n merely because the services provided were \n open to the general public. The test is whether \n the church or other religious organization oper‐\n ates the public accommodation, not which indi‐\n viduals receive the public accommodationʹs ser‐\n vices. \n Religious entities that are controlled by reli‐\n gious organizations are also exempt from the \n ADA’s requirements. Many religious organiza‐\n tions in the United States use lay boards and \n other secular or corporate mechanisms to oper‐\n ate schools and an array of social services. The \n use of a lay board or other mechanism does not \n itself remove the ADA’s religious exemption. \n Thus, a parochial school, having religious doc‐\n trine in its curriculum and sponsored by a reli‐\n gious order, could be exempt either as a reli‐\n gious organization or as an entity controlled by \n a religious organization, even if it has a lay \n board. The test remains a factual one – whether the \n church or other religious organization controls the \n operations of the school or of the service or whether \n the school or service is itself a religious organization. \n28 C.F.R. ch. 1., pt. 36, App’x C (emphasis added). \n For this appeal, the critical points are that the law govern‐\ning the hospital’s aﬃrmative defense is still highly contestable \n\f20 No. 17‐1469 \n\nand its application may well depend on a host of facts that \nwould need to be explored in some depth. Before summary \njudgment briefing, plaintiﬀ Reed had no notice that she \nneeded to prepare to meet the defense. \n We have considered the possibility of a response less dras‐\ntic than treating the hospital’s religious‐exemption defense as \nforfeited. One possibility would be to allow the parties to pur‐\nsue further discovery on that issue and to have the hospital \npay for plaintiﬀ’s reasonable costs and attorney fees for that \nprocess. In this case, however, the hospital has oﬀered no \ncredible excuse for its delay, and the normal rule is forfeiture \nof unpleaded defenses. The remedy of reopening discovery \nwould also impose additional delay on Reed. We see no miti‐\ngating factors here that would favor anything other than en‐\nforcement of Rule 8(c) as written and treating the defense as \nforfeited. We therefore reverse summary judgment for the \nhospital on the ADA claims. \n B. Rehabilitation Act Claims \n 1. Legal Standard \n We now turn to the merits of Reed’s Rehabilitation Act \nclaims. Section 504 of the Rehabilitation Act provides: “No \notherwise qualified individual with a disability … shall, \nsolely by reason of her or his disability, be excluded from the \nparticipation in, be denied the benefits of, or be subjected to \ndiscrimination under any program or activity receiving Fed‐\neral financial assistance[.]” 29 U.S.C. § 794(a). Four elements \nmust be satisfied to establish a violation of Section 504: (1) the \nplaintiﬀ must be a handicapped individual as defined by the \nAct; (2) the plaintiﬀ must be “otherwise qualified” for partic‐\nipation in the program; (3) the program must receive federal \n\fNo. 17‐1469 21\n\nfinancial assistance; and (4) the plaintiﬀ must have been “de‐\nnied the benefits of the program solely because of his handi‐\ncap.” See Mallet v. Wisconsin Div. of Vocational Rehabilitation, \n130 F.3d 1245, 1257 (7th Cir. 1997). The hospital contests only \nthis fourth element of sole cause. The ADA and the Rehabili‐\ntation Act are otherwise very similar, but the Rehabilitation \nAct prohibits discrimination only if it is “solely by reason of” \na person’s disability. The ADA permits mixed‐motive claims. \nSee Whitaker v. Wisconsin Dep’t of Health Servs., 849 F.3d 681, \n684 (7th Cir. 2017). \n A plaintiﬀ suing under the Rehabilitation Act can assert \nthat she was intentionally discriminated against or that the \ndefendant failed to aﬀord her a reasonable accommodation \nfor her disability. The Rehabilitation Act does not contain an \nexplicit accommodation requirement, but the Supreme Court \nhas located a duty to accommodate in the statute generally. \nWe have written that in Alexander v. Choate, 469 U.S. 287 \n(1985), \n the Court explained that “‘a refusal to modify \n an existing program might become unreasona‐\n ble and discriminatory.’” Id. at 300 (quoting \n Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, \n 413 (1979)). The Rehabilitation Act’s promise of \n “meaningful access” to state benefits, according \n to the Court, means that “reasonable accommo‐\n dations in the grantee’s program or benefit may \n have to be made.” Id. at 301. \nWisconsin Community Services, Inc. v. City of Milwaukee, 465 \nF.3d 737, 747 (7th Cir. 2006). We explained further: \n\f22 No. 17‐1469 \n\n Following Choate, several courts of appeals have \n adopted the view that the Rehabilitation Act re‐\n quires public entities to modify federally as‐\n sisted programs if such a modification is neces‐\n sary to ensure that the disabled have equal ac‐\n cess to the benefits of that program. See, e.g., \n Henrietta D. v. Bloomberg, 331 F.3d 261, 274–75 \n (2d Cir. 2003). These circuits, including ours, \n also follow the corollary principle implicit in the \n Choate decision that the Rehabilitation Act helps \n disabled individuals obtain access to benefits \n only when they would have diﬃculty obtaining \n those benefits “by reason of” their disabilities, \n and not because of some quality that they share \n generally with the public. \nId. at 748. \n 2. Analysis of the Rehabilitation Act Claims \n We review de novo the district court’s grant of summary \njudgment on the merits. Whitaker, 849 F.3d at 684. Summary \njudgment is proper when the moving party shows that there \nis no genuine dispute as to any material fact and that it is en‐\ntitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). \n We reverse the dismissal of Reed’s intentional discrimina‐\ntion claim, which is based only on the seclusion‐room inci‐\ndent. The district court determined that the undisputed facts \nshow that the “seclusion incident” was motivated at least in \npart by factors other than Reed’s disability. The court stated \nthat Reed “admits that she spilled her coﬀee and thereafter \nfell to the floor screaming. She further concedes that Miller \n\fNo. 17‐1469 23\n\ntold her that she could not remain on the floor in the middle \nof the hallway. (Docket # 55 ¶ 43).” Reed, 236 F. Supp. at 1106. \n The district court either misconstrued or exaggerated \nReed’s concessions. Reed has not conceded any of the reasons \nMiller cited for taking her to the seclusion room. The district \ncourt did not include a record citation for its assertion that \nReed admitted she fell to the floor “screaming.” We have not \nseen such an admission in the record. Reed admits that she \nspilled coﬀee and was on the floor of the hallway. She specif‐\nically denies she was screaming. See Dkt. 55, ¶¶ 38–45, citing \nReed Aﬃdavit, Ex. A, Dkt. 55‐26. According to the district \ncourt, this disturbance at least partially motivated the hospital \nstaﬀ to put her in seclusion. \n The undisputed facts show that Reed spilled coﬀee on her‐\nself and was on the floor of the hallway. We agree with the \ndistrict court that Miller was responding to this situation (and \nnot solely to Reed’s disabilities) when he picked her up oﬀ the \nfloor. So far, so good. But Miller himself testified that, at that \npoint, he started to take Reed back to her own room (not the \nseclusion room). It was only during the walk to her room that, \nbecause of her screaming, the decision was made to take her \nto the seclusion room. Thus, a jury could find that nothing \nReed has conceded (spilling coﬀee and lying on the floor) led \nMiller to take her to the seclusion room. Spilling the coﬀee \nand lying on the floor prompted Miller only to take Reed back \nto her own room. It was the action that Reed specifically de‐\nnies (screaming during the walk) that Miller says led him and \nFry to take Reed to the seclusion room. Reed has not conceded \nthat she did anything disruptive during the walk to her room, \nwhen hospital staﬀ decided to take her to the seclusion room. \nThe material facts that led to her being placed in seclusion are \n\f24 No. 17‐1469 \n\ndisputed. Crediting Reed’s version of the event, a reasonable \njury could find that the hospital intentionally discriminated \nagainst Reed solely on the basis of her disability.6 \n We also reverse the dismissal of Reed’s reasonable accom‐\nmodation claim. This claim is based on all of the allegations \nReed asserts in her complaint (seclusion‐room incident; with‐\nholding Dynavox; security escort oﬀ the premises; and denial \nof requests to use telephone, to see a chaplain, and to see med‐\nical records). While medical professionals certainly are enti‐\ntled to discretion in managing their patients, the hospital has \nnot argued that it withheld the Dynavox in the exercise of pro‐\nfessional judgment to treat Reed’s mental illness. Withhold‐\ning the Dynavox in particular may support a viable failure‐to‐\n\n \n 6 The parties have not addressed another issue that may arise on re‐\n\nmand. The Rehabilitation Act and the Americans with Disabilities Act do \nnot create a remedy for medical malpractice. See Grzan v. Charter Hosp., \n104 F.3d 116, 122–23 (7th Cir. 1997), abrogated on other grounds as stated \nin Amundson v. Wisc. Dep’t of Health Svcs., 721 F.3d 871, 874 (7th Cir. 2013); \nBryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (prisoner’s claim); ac‐\ncord, e.g., McGugan v. Aldana‐Bernier, 752 F.3d 224, 231–32 (2d Cir. 2014); \nBurger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005); Schiavo ex rel. Schindler \nv. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005); Fitzgerald v. Corrections Corp. \nof America, 403 F.3d 1134, 1144 (10th Cir. 2005). As the Second Circuit ex‐\nplained in McGugan, the term “discrimination” can have a benign (and \nperfectly lawful) sense, in which a health care provider makes a discrimi‐\nnating professional judgment about the type of treatment to provide to a \npatient, but can also have a pejorative sense that describes actions taken \nbased on irrelevant criteria under the influence of irrational bias. See 752 \nF.3d at 231–32, comparing United States v. University Hosp., 729 F.2d 144, \n156 (2d Cir. 1984), and Green v. City of New York, 465 F.3d 65, 78 (2d Cir. \n2006). In this appeal, the hospital has not argued that it withheld Reed’s \nDynavox from her as a benign form of discrimination, i.e., as an exercise \nof medical judgment for her appropriate treatment. \n\fNo. 17‐1469 25\n\naccommodate claim under the Rehabilitation Act, subject to \nthe considerations discussed above in note 6. \n The district court’s grant of summary judgment in favor of \nthe hospital is REVERSED and the case is REMANDED for \nproceedings consistent with this opinion. On remand, Circuit \nRule 36 shall apply.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366408/", "author_raw": "David Frank Hamilton"}]}	EASTERBROOK	ROVNER	HAMILTON	1	{"EASTERBROOK": ", Circuit", "ROVNER": ", Circuit", "HAMILTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589155/	Published	1	0	0	2,019	2	[ { "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...
4,589,156		Joseph Miller v. Michael Downey	2019-02-08	17-1507	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 17-1507\nJOSEPH MILLER,\n Plaintiff-Appellant,\n v.\n\nMICHAEL DOWNEY, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 2:14-cv-2211 — Colin S. Bruce, Judge.\n ____________________\n\n ARGUED DECEMBER 5, 2018 — DECIDED FEBRUARY 8, 2019\n ____________________\n\n Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Between 2012 and 2013, the Jerome\nCombs Detention Center in Kankakee, Illinois, prohibited\ninmates from receiving any newspapers. While awaiting trial\non bank robbery charges, Joseph Miller’s family bought him\na $279 subscription to the Chicago Daily Law Bulletin to help\nhim with his case. Deeming the Law Bulletin a newspaper, jail\noﬃcials precluded Miller from receiving it. Miller responded\nwith a lawsuit challenging the jail’s prohibition and\n\f2 No. 17-1507\n\nconfiscation of the publication and seeking to recover the\nsubscription fee. The district court construed the lawsuit as\nrequiring it to answer, not the narrow question of whether\nMiller had a right to receive a legal publication like the Law\nBulletin, but instead the broader question of whether the jail’s\nban on all newspapers oﬀended the First Amendment. In the\nend, the district court upheld the newspaper ban and\nawarded summary judgment to the defendant jail oﬃcials.\nBecause the district court erred in reaching and resolving such\na broad constitutional question—and the record was not fully\ndeveloped as it pertains to the jail’s restriction on legal\npublications—we vacate the district court’s judgment and\nremand for further proceedings.\n I\n A\n Pursuant to an agreement between the United States\nMarshals Service and the Kankakee County Sheriﬀ’s Oﬃce,\nJoseph Miller was detained at the Jerome Combs Detention\nCenter or JCDC from February 2012 to August 2014 while\nawaiting trial and sentencing on federal charges. Because the\njail did not provide inmates access to federal case law, Miller,\na federal prisoner, asked his family to buy him a subscription\nto a legal publication covering federal criminal law. He\nwanted to better understand his case and assist with his\ndefense, so his family ordered a one-year subscription to the\nChicago Daily Law Bulletin and arranged for delivery to him at\nthe facility.\n Miller never received his subscription. He instead learned\nthat the publication was deemed contraband because, accord-\ning to Assistant Chief of Corrections Chad Kolitwenzew,\n\fNo. 17-1507 3\n\n“[t]he Inmate Handbook states [the jail does] not allow news-\npapers.” Issues of the Law Bulletin, therefore, were intercepted\nevery day for ten months and disposed of by jail staﬀ without\nany notice to Miller.\n The JCDC’s policy on inmate mail was not a model of clar-\nity during the relevant period. The jail did not maintain a\nwritten policy listing what items inmates were prohibited\nfrom receiving. Rather, and as best we can tell, the jail consid-\nered newspapers contraband because the Inmate Handbook\ndid not expressly say inmates could possess them. Jail oﬃcials\nviewed the Law Bulletin as a newspaper because (and appar-\nently only because) it was printed on newsprint.\n Adding to the confusion, however, is that during this same\nperiod the jail permitted inmates to receive personal\nsubscriptions to Prison Legal News. This was so even though\nPrison Legal News, just like the Law Bulletin, is printed on\nnewsprint. So, too, was Prison Legal News not listed as a\npermitted item in the JCDC Inmate Handbook.\n B\n In 2014, after learning that copies of the Law Bulletin had\nbeen delivered to the JCDC and filing multiple grievances\nwith the jail, Miller filed a pro se complaint alleging that the\njail’s disposal of the publication, especially with no notice to\nhim, violated the First Amendment and the Due Process\nClause of the Fourteenth Amendment.\n Upon screening Miller’s complaint pursuant to 28 U.S.C.\n§ 1915A, the district court determined that Miller stated a\ncolorable First Amendment claim against three jail oﬃcials\nand the Kankakee County Sheriﬀ. Following discovery the\ndefendants moved for summary judgment. Although Miller’s\n\f4 No. 17-1507\n\nsuit focused narrowly on the JCDC’s prohibition of the Law\nBulletin—which he repeatedly stressed and explained was a\nlegal publication and not a daily newspaper akin to the\nChicago Tribune—the defendants’ motion instead asked the\ndistrict court to treat Miller’s claims as broadly challenging\nthe JCDC’s newspaper ban. They argued that safety and\nsecurity risks posed by excess paper in the jail warranted a\ntotal ban on newspapers, including the Law Bulletin.\n The district court accepted the defendants’ framing of the\nissue and granted their motion. Applying the four-factor test\nannounced in Turner v. Safley, 482 U.S. 78 (1987), the court con-\ncluded that the newspaper ban was permissible given the\njail’s security, safety, and staﬃng concerns. The summary\njudgment record, as the district court saw it, showed that in-\nmates had used newspapers to flood cells and conceal contra-\nband—circumstances justifying a categorical ban. The court\nalso found that the defendants provided evidence that allow-\ning inmates personal newspaper subscriptions “would un-\nnecessarily strain staﬀ resources in monitoring the amount of\npaper within the facility and sorting the incoming mail.” The\npolicy was not an “exaggerated response to legitimate peno-\nlogical concerns,” the court continued, because the jail af-\nforded inmates alternative ways to stay current on the news\n(for example, by watching television) and to work on their le-\ngal cases by reading Prison Legal News and using the jail’s law\nlibrary.\n On appeal, and now represented by counsel, Miller re-\nnews his contention that the confiscation of the Law Bulletin\nviolated his rights under the First Amendment. He also ar-\ngues the district court committed error by altogether failing to\n\fNo. 17-1507 5\n\naddress, and perhaps implicitly rejecting, his due process\nclaim.\n II\n A\n The district court painted with much too broad a brush\nand resolved a case never brought by Joseph Miller. Miller is\na gifted writer and his pro se complaint, prepared in pencil on\nnotebook paper, was remarkable for its clarity and precision.\nHe alleged that the defendant jail oﬃcials violated his consti-\ntutional rights by confiscating not a newspaper of general cir-\nculation, but rather a legal publication, the Law Bulletin. He\nexplained that he needed the publication because the JCDC\nhad neither a law library nor any research materials concern-\ning federal case law.\n Miller took the same care in opposing the defendants’ mo-\ntion for summary judgment, emphasizing that permitting him\n(and other federal inmates housed in the Kankakee facility) to\nreceive the Law Bulletin (or another legal publication) would\nnot flood the facility with paper, overwhelm mailroom staﬀ,\nor create excessive security risks. In plain and simple terms,\nMiller implored the district court to treat his claims for what\nthey were—a lawsuit challenging the JCDC’s prohibition and\nconfiscation of a legal publication—and not for what they\nwere not—a request to receive a newspaper.\n Though Miller may not have realized it, his submissions\nto the district court aligned perfectly with the precept that\nfederal courts, as courts of limited jurisdiction, should strive\nto decide constitutional cases narrowly and refrain from an-\nswering questions broader than necessary to resolve the case\nor controversy before them. The symmetry between Miller’s\n\f6 No. 17-1507\n\nposition and the principle of narrow constitutional decision-\nmaking jumps oﬀ the pages of his submissions to the district\ncourt. And it is this exact principle that charts a straightfor-\nward course for resolving Miller’s claims.\n The resolution of Miller’s claims on summary judgment\ndid not require the district court to answer whether a jail’s\nblanket ban on newspapers oﬀends the First Amendment.\nMiller’s counsel rightly observes that the trendline on that\nquestion favors Miller. But the defendants are equally right to\nobserve that the question entails complexity because some of\nthe pertinent precedent, including our prior decision in\nKincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982), predates the\nSupreme Court’s decision in Turner. In Turner the Court\nmodified preexisting law by announcing a new four-factor\ntest for assessing prison regulations that impinge on inmates’\nconstitutional rights. See 482 U.S. at 89–91. There is no dispute\nthat the Turner test applies where, as here, a policy implicates\na prisoner’s First Amendment rights, including the right to\nread while detained. See King v. Fed. Bureau of Prisons, 415 F.3d\n634, 638 (7th Cir. 2005) (“Freedom of speech is not merely\nfreedom to speak; it is also freedom to read.”). And so too are\nthe defendants right to observe that a proper analysis of\nMiller’s claim would have to consider whether qualified\nimmunity shielded them from liability if the JCDC’s blanket\nnewspaper ban transgressed the First Amendment.\n Another factor counseling in favor of taking Miller’s claim\nas he pleaded it is that the Kankakee facility overhauled its\npublication policy in June 2015. The JCDC now supplies the\nfacility with multiple daily copies of USA Today and permits\ninmates to receive subscriptions to up to four magazines per\nmonth. This change suggests that broadly ruling on the\n\fNo. 17-1507 7\n\nconstitutionality of the JCDC’s prior policy was unnecessary.\nAnd this is particularly so given that just days after Miller\nfiled his complaint—seeking not only money damages but\nalso declaratory and injunctive relief—the district court\nlearned he was transferred to another facility, rendering his\nrequest for injunctive relief moot. Put diﬀerently, when faced\nwith a First Amendment challenge to an outdated policy\nbrought by an inmate no longer housed at the facility in ques-\ntion, the district court should have resolved the case on nar-\nrower grounds, focusing precisely on the case and contro-\nversy brought by Miller. See generally ISI Int’l v. Borden Ladner\nGervais LLP, 256 F.3d 548, 552 (7th Cir. 2001) (emphasizing\nthat “federal courts are supposed to do what they can to avoid\nmaking constitutional decisions, and strive doubly to avoid\nmaking unnecessary constitutional decisions”).\n The proper path was to answer the narrow and specific\nclaim advanced by Miller—whether the jail’s confiscation of\nhis subscription to the Law Bulletin violated the First Amend-\nment. See Hedgwood v. City of Eau Claire, 676 F.3d 600, 603 (7th\nCir. 2012) (explaining that principles of “judicial restraint”\ncounsel in favor of resolving “as-applied challenges before fa-\ncial ones in an eﬀort to decide constitutional attacks on the\nnarrowest possible grounds and to avoid reaching unneces-\nsary constitutional issues”).\n B\n Similar considerations caution against us reaching the\nmerits of Miller’s First Amendment claim in the first instance.\nThe better approach is to allow the district court and parties\nthe initial opportunity to address the issues presented anew\nand through the narrower frame of how the Turner factors\n\f8 No. 17-1507\n\napply to the JCDC’s confiscation of Miller’s subscription to a\nlegal publication, the Law Bulletin.\n Suﬃce it for us to oﬀer but a few observations relevant to\na narrowed consideration of the Turner factors. The district\ncourt’s initial assessment of Miller’s claim rooted itself in facts\nunsupported by the summary judgment record. For example,\nthe court assessed the second Turner factor (whether alterna-\ntive means of exercising the asserted right—here the right to\nreceive and read legal publications—remain available to the\ninmate) on the view that the JCDC had a law library with re-\nsources on federal case law available to federal inmates like\nMiller. The record shows otherwise. The JCDC had no law li-\nbrary, and while inmates had access to an electronic database\nwith Illinois legal resources, Miller contends that there was a\ndearth of material on federal law in the jail—a point that went\nuncontested by the defendants.\n On this same factor, it appears that the JCDC’s policy\n(throughout Miller’s detention) allowed inmates to receive\nsubscriptions to Prison Legal News. The district court viewed\nthis access as important without recognizing that the record\nleft unclear whether, contrary to the jail’s policy, inmates were\nin fact being allowed to receive the publication. Regardless, it\nis not enough to say, as the district court suggested, that one\nlegal publication is just like the next and thus Prison Legal\nNews suﬃced to serve a federal inmate’s every legal need.\nWhat is more, the district court failed to recognize that Prison\nLegal News—just like the Law Bulletin—is published on news-\nprint, a fact casting at least some doubt on the JCDCʹs conten-\ntion that banning all newsprint publications was essential to\nprison safety, a consideration relevant to the first Turner fac-\ntor.\n\fNo. 17-1507 9\n\n On remand, the right analysis asks whether permitting in-\nmates to receive subscriptions to legal publications (subject to\nreasonable limitations) jeopardized institutional objectives to\nsuch an extent as to justify the JCDC’s confiscation of the Law\nBulletin. On this front we make three final observations. First,\nthe district court did not consider whether the JCDC’s change\nof policy in 2015—to allow inmates to receive up to four mag-\nazine subscriptions—warranted discounting the rationale\nsupporting the JCDC’s decision to ban the Law Bulletin (and,\nif so, to what degree) due to concerns associated with excess\npaper. See Turner, 482 U.S. at 89 (“[T]here must be a ‘valid,\nrational connection’ between the prison regulation and the le-\ngitimate governmental interest put forward to justify it.”)\n(quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).\n Second, the record on summary judgment contained very\nfew examples of any publications being used to create safety\nrisks within the facility. And none of the examples the defend-\nants did provide relate to newsprint publications. Though\nmindful that courts must aﬀord substantial deference to\nprison administrators on matters of institutional security, see\nOverton v. Bazzetta, 539 U.S. 126, 132 (2003), that latitude is not\nboundless: defendants still must present evidence “demon-\nstrating a specific security concern that bears a nexus to the\nprohibited conduct.” Riker v. Lemmon, 798 F.3d 546, 557 (7th\nCir. 2015).\n Third, we note based on the public record that the JCDC’s\nprohibition of the Law Bulletin seems in substantial tension, if\nnot direct conflict, with the County Jail Standards promul-\ngated by the State of Illinois. See Ill. Admin. Code tit. 20,\n§ 701.180 (providing that inmates in county facilities “may re-\nceive … periodicals subject to inspection and approval by jail\n\f10 No. 17-1507\n\npersonnel”). The record is silent as to whether the JCDC is a\nfacility subject to the County Jail Standards, and, if so, what\nspecific security concerns prevented the facility from adher-\ning to the regulation and allowing Miller to receive his sub-\nscription to the Law Bulletin. That the Jail Standards seem to\npermit inmates to receive all periodicals, while still ensuring\nprison safety, suggests that Kankakee’s prohibition of an even\nnarrower class of publications (specifically, legal publica-\ntions) was an exaggerated response to its proﬀered security\nconcerns, a consideration relevant to the entire Turner analy-\nsis. See Beard v. Banks, 548 U.S. 521, 528 (2006). This too war-\nrants consideration on remand.\n III\n We owe a final word to Miller’s procedural due process\nclaim. Miller alleged that jail oﬃcials confiscated and de-\nstroyed his copies of the Law Bulletin without any notice or\nopportunity for him to appeal this action. In his amended\ncomplaint, he expressly cast this allegation in terms of a vio-\nlation of the Fourteenth Amendment’s Due Process Clause.\nThe district court, however, did not address this claim, per-\nhaps on the view that it was entirely duplicative of Miller’s\nFirst Amendment claim. But that is not so. Indeed, at a\nbroader level, the imperative of fair process may take on\nadded significance in the domain of free speech. See, e.g.,\nHenry P. Monaghan, First Amendment “Due Process,” 83 Harv.\nL. Rev. 518 (1970).\n Due process requires that the decision to censor inmate\nmail must be accompanied by “minimum procedural safe-\nguards.” Procunier v. Martinez, 416 U.S. 396, 417 (1974), over-\nruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401\n(1989); see also Perry v. Secʹy, Fla. Depʹt of Corr., 664 F.3d 1359,\n\fNo. 17-1507 11\n\n1368 (11th Cir. 2011) (applying this standard to a due process\nclaim). This standard has generally required oﬃcials to pro-\nvide inmates with notice and an opportunity to object to a\nconfiscation of their mail. See Martinez, 416 U.S. at 418. Miller\ndeserves the opportunity on remand to have this claim con-\nsidered under these standards.\n For these reasons, we VACATE the judgment of the district\ncourt and REMAND for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366409/", "author_raw": "SCUDDER, Circuit Judge"}]}	FLAUM	ROVNER	SCUDDER	1	{"FLAUM": ", Circuit", "ROVNER": ", Circuit", "SCUDDER": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589156/	Published	1	0	0	2,019	2	[ { "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...
8,443,876	Ronnie L. WINSTED, Jr. v. Nancy A. BERRYHILL, Acting Commissioner of Social Security	Winsted v. Berryhill	2019-02-08	No. 18-2228	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Brennan, Manion, Scudder", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415305/", "author_raw": ""}]}	BRENNAN	MANION	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443876/	Published	0	1	0	2,019	2	[ { "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...
8,443,877	Linda REED v. COLUMBIA ST. MARY'S HOSPITAL	Reed v. Columbia St. Mary's Hosp.	2019-02-08	No. 17-1469	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Easterbrook, Hamilton, Rovner", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415306/", "author_raw": ""}]}	EASTERBROOK	HAMILTON	ROVNER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443877/	Published	0	1	0	2,019	2	[ { "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...
8,443,996	Ronnie L. WINSTED, Jr. v. Nancy A. BERRYHILL, Acting Commissioner of Social Security	Winsted v. Berryhill	2019-02-08	No. 18-2228	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Brennan, Manion, Scudder", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415430/", "author_raw": ""}]}	BRENNAN	MANION	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443996/	Published	0	1	0	2,019	2	[ { "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...
4,589,749	Danny J. RAY, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.	Danny Ray v. Nancy Berryhill	2019-02-12	18-2229	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2229\nDANNY J. RAY,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division\n No. 1:17-cv-01322 — Matthew P. Brookman, Magistrate Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Danny Ray applied for Supplemental Secu-\nrity Income and Disability Insurance Benefits based on a host\nof physical disorders and mental conditions. An administra-\ntive law judge found that Ray was severely impaired by most\nof his physical conditions, but she denied benefits after find-\ning that he could perform his past relevant work as a school\n\f2 No. 18-2229\n\nbus monitor. Ray challenges that finding, arguing that the ALJ\nerroneously discredited him, failed to treat his prior job as\n“composite,” and improperly assessed his functional abilities\ncompared to the job requirements for a bus monitor in the\ngeneral economy. The district court affirmed the ALJ’s deci-\nsion. We agree with Ray and vacate the judgment.\n I. BACKGROUND\n Ray lives with diabetes, hypertension, obesity, kidney dis-\nease, degenerative disc disease, anxiety, and depression.\nWhen his conditions worsened, he began working gradually\neasier jobs, from janitor to forklift operator to bus monitor for\nchildren with special needs, until eventually he gave up his\nemployment entirely. As a bus monitor, he would lift disa-\nbled children into their seats on the bus, strap down wheel-\nchairs, and monitor the children’s behavior. He ultimately\nquit because it was too painful for his hands, feet, and hips.\n Ray receives medical care for his physical impairments but\nhas been noncompliant with some treatments, mostly in rela-\ntion to his diabetes. He struggles to remember to test his\nblood-glucose levels, eat healthfully, and take insulin. Doc-\ntors who treat Ray’s back condition also have noted that he\ntakes more pain medication than the prescribed amount.\n In November 2013, Ray applied for social security bene-\nfits. During the review process, two consulting state-agency\npsychologists and an examining clinical psychologist,\nDr. Zera, evaluated his functioning. The consulting psycholo-\ngists both concluded that Ray is moderately limited in his\nability to maintain attention and concentration for extended\nperiods but is not significantly limited in any other aspect of\nconcentration, persistence, or pace. Dr. Zera determined that\n\fNo. 18-2229 3\n\nRay has an anxiety disorder and learning disorder, noting his\n“difficulty reading and poor math skills.” Ray also met with\nDr. Fish, an agency physician, who determined that Ray’s ma-\njor functional impairment is exertional tolerance. Dr. Fish\nnoted a positive result from a supine straight-leg test, which\nreflects lumbar nerve root compression, though the less-sen-\nsitive seated test was negative.1\n The agency denied Ray’s applications initially and upon\nreconsideration, and his case proceeded to a hearing with an\nALJ. At the hearing, Ray testified—and his mother and girl-\nfriend corroborated with written statements—that his daily\nactivities include taking his medication, making himself three\nsimple meals, watching television, using the dishwasher, and\nshowering (while using a shower seat). Outside of these tasks,\nhe sits and watches television. Ray occasionally does laundry\nif reminded, and he had the laundry machines moved from\nthe basement to the first floor of his house because the stairs\nwere difficult for him. Once per week, he goes grocery shop-\nping with the assistance of an electric cart. When he did not\nhave family to drive him, the hospital provided him a bus\npass because he is physically incapable of walking home.\n In addition to his physical impairments, Ray has limited\nintellect. He testified that he completed eight grades of special\neducation, but he struggles to read and write. Although he\nwill occasionally purchase a newspaper, it takes time for him\nto make sense of what he sees. Because of his limitations, his\n\n\n 1 See Alon Rabin, et al., The Sensitivity of the Seated Straight-Leg Raise\nTest Compared with the Supine Straight-Leg Raise Test in Patients Presenting\nwith Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression,\n88 PHYSICAL MED. & REHAB. 840, 842 (2007).\n\f4 No. 18-2229\n\nmother or girlfriend must write his checks and complete his\npaperwork.\n In her decision, the ALJ analyzed Ray’s application based\non the five-step process set forth in 20 C.F.R. § 404.1520 and\nfound him not disabled. She determined that he is not en-\ngaged in substantial gainful employment (step one) and that\nhe has severe impairments of diabetes mellitus, obesity, de-\ngenerative disc disease, osteoarthritis of the hip, coronary ar-\ntery disease, kidney disease, hypertension, and a history of\natrial fibrillation (step two). But his impairments, she con-\ncluded, do not meet a listing (step three).\n The ALJ determined that Ray has the residual functional\ncapacity (“RFC”) to perform light work (lifting ten to twenty\npounds) and to stand or walk for six hours. She also found\nthat he is able to “understand, remember, and carry out semi-\nskilled tasks” and “attend to tasks for a sufficient period in\norder to complete tasks.” Regarding Ray’s limitations, the\nALJ found him only “partially credible,” largely based on the\nnotion that, if his symptoms were as severe as alleged, his\ndaily activities would be more restricted and he would be\nmore compliant with his prescribed treatments.\n The ALJ presented Ray’s RFC to the vocational expert,\nwho concluded that Ray could work as a school bus moni-\ntor—not as he had performed the job, but as it is performed\nin the national economy. At the hearing, Ray questioned the\nvocational expert about the required level of language devel-\nopment for that position. The vocational expert confirmed\nthat a requirement of the job, as it is generally performed, is\nthe ability to “write compound and complex sentences, using\ncursive style, proper end punctuation, and employing adjec-\ntives and adverbs.”\n\fNo. 18-2229 5\n\n At the hearing and in a supplemental brief, Ray argued\nthat his previous position as a bus monitor for disabled\nschoolchildren was a composite job—that is, one that com-\nbines “significant elements of two or more occupations and,\nas such, ha[s] no counterpart in the [Dictionary of Occupa-\ntional Titles],” Social Security Ruling 82-61. His job, Ray ar-\ngued, involved substantial activities from both the school bus\nmonitor and child care attendant positions as they are de-\nscribed in the DOT. Ray questioned the vocational expert on\nthis subject, but the testimony is transcribed as “inaudible”\nduring the key responses, and Ray and the agency represent\nthose portions differently.\n In her written decision, however, the ALJ dismissed Ray’s\nargument about composite jobs as “unpersuasive and unsup-\nported” and concluded that Ray could be a bus monitor as\nthat job is generally performed. She did not discuss the undis-\nputed language-development requirements for that position.\nUltimately, based on the vocational expert’s testimony that\nRay could perform his past relevant work, the ALJ concluded\nthat he is not disabled.\n II. ANALYSIS\n We uphold an ALJ’s decision only if substantial evidence\nfrom the record supports her determination. Lanigan v. Ber-\nryhill, 865 F.3d 558, 563 (7th Cir. 2017).\n Ray raises four challenges in this appeal: (1) the ALJ erred\nin evaluating his daily activities and medical reports, making\nher credibility determination patently wrong; (2) the ALJ\nerred in concluding that he could perform his past relevant\nwork because his bus-monitor job was a composite job, which\nprecludes a finding at step four; (3) the ALJ erred in finding\n\f6 No. 18-2229\n\nthat he could do the bus-monitor job as generally performed\nbecause he does not meet the necessary General Educational\nDevelopment Level; and (4) the ALJ erred in assessing his\nmental impairments by finding them not severe and by not\nincluding any limitations on concentration, persistence, and\npace in his RFC.\n With respect to the adverse credibility determination, this\nis the rare case in which the claimant can overcome the “con-\nsiderable deference” we afford such findings unless they are\n“patently wrong,” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.\n2009). Specifically, the ALJ erroneously evaluated Ray’s\nsymptoms and daily activities, misinterpreted medical evi-\ndence, and failed to ask why he skipped some appointments.\n In assessing Ray’s back and hip pain, the ALJ acknowl-\nedged that Ray had a herniating disc, degenerative disc and\njoint disease of the lower lumber spine, a herniated nucleus\npulpous, and chronic pain syndrome. But to support her de-\ntermination that these impairments “are not as limiting as he\nalleged,” she cited irrelevant records from treatment he re-\nceived for a staph infection and she noted that his extremities\nwere not fractured, tender, or swollen. The connection be-\ntween those characteristics and Ray’s alleged pain and re-\nstricted mobility is nowhere explained. She also mischaracter-\nized Dr. Fish’s report, writing that the straight-leg raise test\nwas negative when the opposite was true.\n The ALJ also improperly emphasized Ray’s lack of follow-\nup on a recommended spine evaluation and his difficulty\nwith medication compliance. Within five years, Ray missed\ntwo follow-up appointments, one for his heart and one for his\nspine. When the ALJ asked him about the missed cardiology\nappointment, he explained that he was uninsured at the time\n\fNo. 18-2229 7\n\nand could not afford it. Although the record showed that Ray\nhad repeatedly lost his health insurance, the ALJ did not ask\nhim about his missed spine appointment and instead as-\nsumed that he did not attend because his symptoms were not\nserious. That was reversible error; an ALJ must not draw in-\nferences about a claimant’s lack of treatment without explor-\ning the reasons for the inaction. Beardsley v. Colvin, 758 F.3d\n834, 840 (7th Cir. 2014). Moreover, the ALJ bolstered her pre-\nsumption with evidence of Ray’s difficulty with medication\ncompliance, even though, with respect to his pain (as opposed\nto his diabetes), those medical records point to Ray’s credibil-\nity. Ray’s “noncompliance” with his musculoskeletal treat-\nment stemmed from taking pain medication too frequently,\nwhich does not support the ALJ’s inference that he was exag-\ngerating his pain.\n The ALJ also overemphasized Ray’s daily living activities.\nThe only evidence of those activities comes from Ray’s testi-\nmony (which apparently the ALJ credited in this aspect) and\nhis family’s, and it shows that the sum of Ray’s daily routine\ninvolves showering while seated, fixing simple meals, and us-\ning the dishwasher. In between these activities, he sits and\nwatches television. He could not walk even two hours home\nfrom the hospital, a stark contrast to the ALJ’s finding that he\ncan stand or walk six hours every day. Ray’s minimal daily\nactivities do not support the ALJ’s finding that he exaggerated\nhis symptoms, nor do they support the ultimate RFC.\nSee Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Although\nthe ALJ credited him with caring for his son, his son is an\nadult, and no evidence reflects the type of “care” that Ray\nsupposedly provided. Further, the struggle of living with his\nson at one point sent Ray into a suicidal decompensation.\n\f8 No. 18-2229\n\n Ray is also correct that the ALJ made two technical errors\nat step four that led to the unsupportable conclusion that he\ncould perform his past relevant work as a bus monitor as that\nposition exists in the national economy. First, the ALJ con-\ncluded that Ray’s former position was not a “composite” job\nand, therefore, that it could be assessed with reference to the\nDictionary of Occupational Titles. A claimant is not disabled\nif he can do his past relevant work either in the manner he\nperformed it before the impairment or in the manner it is gen-\nerally performed in the national economy. See Getch v. Astrue,\n539 F.3d 473, 482 (7th Cir. 2008). But if the prior position was\na composite job, then the ALJ may not reference it when de-\ntermining whether a claimant can perform his past job as it is\ngenerally performed. See Programs Operation Manual System\nDI 25005.020; see also Wash. State Dep’t of Soc. & Health Servs.\nv. Keffeler, 537 U.S. 371, 385 (2003) (POMS serve as guidance\nand “warrant respect”); Cannon v. Apfel, 213 F.3d 970, 975\n(7th Cir. 2000) (same).\n Ray argues that his prior job was a composite job that com-\nbined elements of the school bus monitor and school child-\ncare attendant positions. He cites the vocational expert’s tes-\ntimony to support his position, asserting that the expert testi-\nfied that his bus monitor position was a composite job. The\nagency, for its part, asserts that the expert testified to the op-\nposite. Because key parts of the vocational expert’s testimony\nare marked as “[inaudible],” his opinion is not clear. But a re-\nview of the duties of a school child-care attendant bolsters\nRay’s point:\n Attends to personal needs of handicapped children\n while in school to receive specialized academic and\n physical training: Wheels handicapped children to\n classes, lunchrooms, treatment rooms, and other\n\fNo. 18-2229 9\n\n areas of building. Secures children in equipment, such\n as chairs, slings, or stretchers, and places or hoists\n children into baths or pools. Monitors children using\n life support equipment to detect indications of mal-\n functioning of equipment and calls for medical as-\n sistance when needed. Helps children to walk, board\n buses, put on prosthetic appliances, eat, dress, bathe,\n and perform other physical activities as their needs\n require.\nU.S. Dep’t of Lab., 1 Dictionary of Occupational Titles 258\n(4th ed. 1991) (emphasis added). On the other hand, the du-\nties of a school bus monitor are:\n Monitors conduct of students on school bus to main-\n tain discipline and safety: Directs loading of stu-\n dents on bus to prevent congestion and unsafe con-\n ditions. Rides school bus to prevent altercations be-\n tween students and damage to bus. Participates in\n school bus safety drills. May disembark from school\n bus at railroad crossings and clear bus across tracks.\nId. at 269.\n Here, the ALJ concluded that Ray’s previous bus-monitor\njob was not a composite job because his work matched the\nDOT description “in all but the exertional requirements.” But\nRay’s testimony (the only evidence of his job duties) demon-\nstrates that as a bus monitor he performed significant ele-\nments of the childcare-attendant job, like assisting the stu-\ndents in boarding buses and securing them in their equipment\nand chairs. The DOT description of the bus-monitor job does\nnot include these duties, and the vocational expert’s testi-\nmony is ambiguous. Thus, substantial evidence does not sup-\nport the ALJ’s conclusion that Ray’s previous job was not a\ncomposite job.\n\f10 No. 18-2229\n\n Relatedly, Ray argues that the ALJ erred further by con-\ncluding that he could work as a bus monitor as the job is gen-\nerally performed despite his lacking the necessary General\nEducational Development Level for that job. The bus-monitor\nposition requires at least a Language Development Level 2,\nwhich expects that employees will be able to, among other\nthings, “[w]rite compound and complex sentences, using cur-\nsive style, proper end punctuation, and employing adjectives\nand adverbs”; “[r]ead adventure stories and comic books,\nlooking up unfamiliar words in dictionary for meaning,\nspelling, and pronunciation”; and “[r]ead instructions for as-\nsembling model cars and airplanes.” U.S. Dep’t of Lab., 2 Dic-\ntionary of Occupational Titles 1011 (4th ed. 1991). No evi-\ndence supports the ALJ’s implied finding that Ray has these\nskills.\n To the contrary, Ray testified that he does not fill out his\nown checks or paperwork because he misspells words and\nthat he can barely read a newspaper article, a limitation con-\nfirmed in Dr. Zera’s evaluation. When a vocational expert’s\ntestimony that a claimant can perform a job conflicts with the\nclaimant’s ability to meet the job’s listed requirements in the\nDOT, then the ALJ must resolve that conflict before relying on\nthe testimony to support her disability findings. See Social Se-\ncurity Ruling 00-4p; Brown v. Colvin, 845 F.3d 247, 255 (7th Cir.\n2016); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The\nALJ’s failure to do that here, along with the other errors at\nstep four, warrants remand. See Myles v. Astrue, 582 F.3d 672,\n678 (7th Cir. 2009) (cumulative effect of multiple errors war-\nranted remand).\n Finally, Ray argues that the ALJ erred in evaluating his\nmental limitations, first by finding them not severe at step two\n\fNo. 18-2229 11\n\nand later by not including any limitations on concentration,\npersistence, and pace in the RFC. To some extent, Ray is mis-\ntaken. Step two is merely a threshold inquiry; so long as one\nof a claimant’s limitations is found to be severe, error at that\nstep is harmless. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.\n2012). Either way, the ALJ must later consider the limitations\nimposed by all impairments, severe and non-severe. 20 C.F.R.\n§ 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).\nNevertheless, the ALJ based the RFC on her flawed credibility\nfinding, which led her to discredit the opinions of the two\nagency experts who concluded that Ray had a severe mental\nimpairment. Therefore, the ALJ will have to revisit her assess-\nment of Ray’s mental impairments in any case.\n Accordingly, we VACATE the judgment and REMAND to\nthe district court with instructions to remand the case to the\nagency for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367002/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589749/	Published	1	0	0	2,019	2	[ { "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...
4,589,800		Danny Ray v. Nancy Berryhill	2019-02-12	18-2229	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2229\nDANNY J. RAY,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division\n No. 1:17-cv-01322 — Matthew P. Brookman, Magistrate Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Danny Ray applied for Supplemental Secu-\nrity Income and Disability Insurance Benefits based on a host\nof physical disorders and mental conditions. An administra-\ntive law judge found that Ray was severely impaired by most\nof his physical conditions, but she denied benefits after find-\ning that he could perform his past relevant work as a school\n\f2 No. 18-2229\n\nbus monitor. Ray challenges that finding, arguing that the ALJ\nerroneously discredited him, failed to treat his prior job as\n“composite,” and improperly assessed his functional abilities\ncompared to the job requirements for a bus monitor in the\ngeneral economy. The district court affirmed the ALJ’s deci-\nsion. We agree with Ray and vacate the judgment.\n I. BACKGROUND\n Ray lives with diabetes, hypertension, obesity, kidney dis-\nease, degenerative disc disease, anxiety, and depression.\nWhen his conditions worsened, he began working gradually\neasier jobs, from janitor to forklift operator to bus monitor for\nchildren with special needs, until eventually he gave up his\nemployment entirely. As a bus monitor, he would lift disa-\nbled children into their seats on the bus, strap down wheel-\nchairs, and monitor the children’s behavior. He ultimately\nquit because it was too painful for his hands, feet, and hips.\n Ray receives medical care for his physical impairments but\nhas been noncompliant with some treatments, mostly in rela-\ntion to his diabetes. He struggles to remember to test his\nblood-glucose levels, eat healthfully, and take insulin. Doc-\ntors who treat Ray’s back condition also have noted that he\ntakes more pain medication than the prescribed amount.\n In November 2013, Ray applied for social security bene-\nfits. During the review process, two consulting state-agency\npsychologists and an examining clinical psychologist,\nDr. Zera, evaluated his functioning. The consulting psycholo-\ngists both concluded that Ray is moderately limited in his\nability to maintain attention and concentration for extended\nperiods but is not significantly limited in any other aspect of\nconcentration, persistence, or pace. Dr. Zera determined that\n\fNo. 18-2229 3\n\nRay has an anxiety disorder and learning disorder, noting his\n“difficulty reading and poor math skills.” Ray also met with\nDr. Fish, an agency physician, who determined that Ray’s ma-\njor functional impairment is exertional tolerance. Dr. Fish\nnoted a positive result from a supine straight-leg test, which\nreflects lumbar nerve root compression, though the less-sen-\nsitive seated test was negative.1\n The agency denied Ray’s applications initially and upon\nreconsideration, and his case proceeded to a hearing with an\nALJ. At the hearing, Ray testified—and his mother and girl-\nfriend corroborated with written statements—that his daily\nactivities include taking his medication, making himself three\nsimple meals, watching television, using the dishwasher, and\nshowering (while using a shower seat). Outside of these tasks,\nhe sits and watches television. Ray occasionally does laundry\nif reminded, and he had the laundry machines moved from\nthe basement to the first floor of his house because the stairs\nwere difficult for him. Once per week, he goes grocery shop-\nping with the assistance of an electric cart. When he did not\nhave family to drive him, the hospital provided him a bus\npass because he is physically incapable of walking home.\n In addition to his physical impairments, Ray has limited\nintellect. He testified that he completed eight grades of special\neducation, but he struggles to read and write. Although he\nwill occasionally purchase a newspaper, it takes time for him\nto make sense of what he sees. Because of his limitations, his\n\n\n 1 See Alon Rabin, et al., The Sensitivity of the Seated Straight-Leg Raise\nTest Compared with the Supine Straight-Leg Raise Test in Patients Presenting\nwith Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression,\n88 PHYSICAL MED. & REHAB. 840, 842 (2007).\n\f4 No. 18-2229\n\nmother or girlfriend must write his checks and complete his\npaperwork.\n In her decision, the ALJ analyzed Ray’s application based\non the five-step process set forth in 20 C.F.R. § 404.1520 and\nfound him not disabled. She determined that he is not en-\ngaged in substantial gainful employment (step one) and that\nhe has severe impairments of diabetes mellitus, obesity, de-\ngenerative disc disease, osteoarthritis of the hip, coronary ar-\ntery disease, kidney disease, hypertension, and a history of\natrial fibrillation (step two). But his impairments, she con-\ncluded, do not meet a listing (step three).\n The ALJ determined that Ray has the residual functional\ncapacity (“RFC”) to perform light work (lifting ten to twenty\npounds) and to stand or walk for six hours. She also found\nthat he is able to “understand, remember, and carry out semi-\nskilled tasks” and “attend to tasks for a sufficient period in\norder to complete tasks.” Regarding Ray’s limitations, the\nALJ found him only “partially credible,” largely based on the\nnotion that, if his symptoms were as severe as alleged, his\ndaily activities would be more restricted and he would be\nmore compliant with his prescribed treatments.\n The ALJ presented Ray’s RFC to the vocational expert,\nwho concluded that Ray could work as a school bus moni-\ntor—not as he had performed the job, but as it is performed\nin the national economy. At the hearing, Ray questioned the\nvocational expert about the required level of language devel-\nopment for that position. The vocational expert confirmed\nthat a requirement of the job, as it is generally performed, is\nthe ability to “write compound and complex sentences, using\ncursive style, proper end punctuation, and employing adjec-\ntives and adverbs.”\n\fNo. 18-2229 5\n\n At the hearing and in a supplemental brief, Ray argued\nthat his previous position as a bus monitor for disabled\nschoolchildren was a composite job—that is, one that com-\nbines “significant elements of two or more occupations and,\nas such, ha[s] no counterpart in the [Dictionary of Occupa-\ntional Titles],” Social Security Ruling 82-61. His job, Ray ar-\ngued, involved substantial activities from both the school bus\nmonitor and child care attendant positions as they are de-\nscribed in the DOT. Ray questioned the vocational expert on\nthis subject, but the testimony is transcribed as “inaudible”\nduring the key responses, and Ray and the agency represent\nthose portions differently.\n In her written decision, however, the ALJ dismissed Ray’s\nargument about composite jobs as “unpersuasive and unsup-\nported” and concluded that Ray could be a bus monitor as\nthat job is generally performed. She did not discuss the undis-\nputed language-development requirements for that position.\nUltimately, based on the vocational expert’s testimony that\nRay could perform his past relevant work, the ALJ concluded\nthat he is not disabled.\n II. ANALYSIS\n We uphold an ALJ’s decision only if substantial evidence\nfrom the record supports her determination. Lanigan v. Ber-\nryhill, 865 F.3d 558, 563 (7th Cir. 2017).\n Ray raises four challenges in this appeal: (1) the ALJ erred\nin evaluating his daily activities and medical reports, making\nher credibility determination patently wrong; (2) the ALJ\nerred in concluding that he could perform his past relevant\nwork because his bus-monitor job was a composite job, which\nprecludes a finding at step four; (3) the ALJ erred in finding\n\f6 No. 18-2229\n\nthat he could do the bus-monitor job as generally performed\nbecause he does not meet the necessary General Educational\nDevelopment Level; and (4) the ALJ erred in assessing his\nmental impairments by finding them not severe and by not\nincluding any limitations on concentration, persistence, and\npace in his RFC.\n With respect to the adverse credibility determination, this\nis the rare case in which the claimant can overcome the “con-\nsiderable deference” we afford such findings unless they are\n“patently wrong,” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.\n2009). Specifically, the ALJ erroneously evaluated Ray’s\nsymptoms and daily activities, misinterpreted medical evi-\ndence, and failed to ask why he skipped some appointments.\n In assessing Ray’s back and hip pain, the ALJ acknowl-\nedged that Ray had a herniating disc, degenerative disc and\njoint disease of the lower lumber spine, a herniated nucleus\npulpous, and chronic pain syndrome. But to support her de-\ntermination that these impairments “are not as limiting as he\nalleged,” she cited irrelevant records from treatment he re-\nceived for a staph infection and she noted that his extremities\nwere not fractured, tender, or swollen. The connection be-\ntween those characteristics and Ray’s alleged pain and re-\nstricted mobility is nowhere explained. She also mischaracter-\nized Dr. Fish’s report, writing that the straight-leg raise test\nwas negative when the opposite was true.\n The ALJ also improperly emphasized Ray’s lack of follow-\nup on a recommended spine evaluation and his difficulty\nwith medication compliance. Within five years, Ray missed\ntwo follow-up appointments, one for his heart and one for his\nspine. When the ALJ asked him about the missed cardiology\nappointment, he explained that he was uninsured at the time\n\fNo. 18-2229 7\n\nand could not afford it. Although the record showed that Ray\nhad repeatedly lost his health insurance, the ALJ did not ask\nhim about his missed spine appointment and instead as-\nsumed that he did not attend because his symptoms were not\nserious. That was reversible error; an ALJ must not draw in-\nferences about a claimant’s lack of treatment without explor-\ning the reasons for the inaction. Beardsley v. Colvin, 758 F.3d\n834, 840 (7th Cir. 2014). Moreover, the ALJ bolstered her pre-\nsumption with evidence of Ray’s difficulty with medication\ncompliance, even though, with respect to his pain (as opposed\nto his diabetes), those medical records point to Ray’s credibil-\nity. Ray’s “noncompliance” with his musculoskeletal treat-\nment stemmed from taking pain medication too frequently,\nwhich does not support the ALJ’s inference that he was exag-\ngerating his pain.\n The ALJ also overemphasized Ray’s daily living activities.\nThe only evidence of those activities comes from Ray’s testi-\nmony (which apparently the ALJ credited in this aspect) and\nhis family’s, and it shows that the sum of Ray’s daily routine\ninvolves showering while seated, fixing simple meals, and us-\ning the dishwasher. In between these activities, he sits and\nwatches television. He could not walk even two hours home\nfrom the hospital, a stark contrast to the ALJ’s finding that he\ncan stand or walk six hours every day. Ray’s minimal daily\nactivities do not support the ALJ’s finding that he exaggerated\nhis symptoms, nor do they support the ultimate RFC.\nSee Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Although\nthe ALJ credited him with caring for his son, his son is an\nadult, and no evidence reflects the type of “care” that Ray\nsupposedly provided. Further, the struggle of living with his\nson at one point sent Ray into a suicidal decompensation.\n\f8 No. 18-2229\n\n Ray is also correct that the ALJ made two technical errors\nat step four that led to the unsupportable conclusion that he\ncould perform his past relevant work as a bus monitor as that\nposition exists in the national economy. First, the ALJ con-\ncluded that Ray’s former position was not a “composite” job\nand, therefore, that it could be assessed with reference to the\nDictionary of Occupational Titles. A claimant is not disabled\nif he can do his past relevant work either in the manner he\nperformed it before the impairment or in the manner it is gen-\nerally performed in the national economy. See Getch v. Astrue,\n539 F.3d 473, 482 (7th Cir. 2008). But if the prior position was\na composite job, then the ALJ may not reference it when de-\ntermining whether a claimant can perform his past job as it is\ngenerally performed. See Programs Operation Manual System\nDI 25005.020; see also Wash. State Dep’t of Soc. & Health Servs.\nv. Keffeler, 537 U.S. 371, 385 (2003) (POMS serve as guidance\nand “warrant respect”); Cannon v. Apfel, 213 F.3d 970, 975\n(7th Cir. 2000) (same).\n Ray argues that his prior job was a composite job that com-\nbined elements of the school bus monitor and school child-\ncare attendant positions. He cites the vocational expert’s tes-\ntimony to support his position, asserting that the expert testi-\nfied that his bus monitor position was a composite job. The\nagency, for its part, asserts that the expert testified to the op-\nposite. Because key parts of the vocational expert’s testimony\nare marked as “[inaudible],” his opinion is not clear. But a re-\nview of the duties of a school child-care attendant bolsters\nRay’s point:\n Attends to personal needs of handicapped children\n while in school to receive specialized academic and\n physical training: Wheels handicapped children to\n classes, lunchrooms, treatment rooms, and other\n\fNo. 18-2229 9\n\n areas of building. Secures children in equipment, such\n as chairs, slings, or stretchers, and places or hoists\n children into baths or pools. Monitors children using\n life support equipment to detect indications of mal-\n functioning of equipment and calls for medical as-\n sistance when needed. Helps children to walk, board\n buses, put on prosthetic appliances, eat, dress, bathe,\n and perform other physical activities as their needs\n require.\nU.S. Dep’t of Lab., 1 Dictionary of Occupational Titles 258\n(4th ed. 1991) (emphasis added). On the other hand, the du-\nties of a school bus monitor are:\n Monitors conduct of students on school bus to main-\n tain discipline and safety: Directs loading of stu-\n dents on bus to prevent congestion and unsafe con-\n ditions. Rides school bus to prevent altercations be-\n tween students and damage to bus. Participates in\n school bus safety drills. May disembark from school\n bus at railroad crossings and clear bus across tracks.\nId. at 269.\n Here, the ALJ concluded that Ray’s previous bus-monitor\njob was not a composite job because his work matched the\nDOT description “in all but the exertional requirements.” But\nRay’s testimony (the only evidence of his job duties) demon-\nstrates that as a bus monitor he performed significant ele-\nments of the childcare-attendant job, like assisting the stu-\ndents in boarding buses and securing them in their equipment\nand chairs. The DOT description of the bus-monitor job does\nnot include these duties, and the vocational expert’s testi-\nmony is ambiguous. Thus, substantial evidence does not sup-\nport the ALJ’s conclusion that Ray’s previous job was not a\ncomposite job.\n\f10 No. 18-2229\n\n Relatedly, Ray argues that the ALJ erred further by con-\ncluding that he could work as a bus monitor as the job is gen-\nerally performed despite his lacking the necessary General\nEducational Development Level for that job. The bus-monitor\nposition requires at least a Language Development Level 2,\nwhich expects that employees will be able to, among other\nthings, “[w]rite compound and complex sentences, using cur-\nsive style, proper end punctuation, and employing adjectives\nand adverbs”; “[r]ead adventure stories and comic books,\nlooking up unfamiliar words in dictionary for meaning,\nspelling, and pronunciation”; and “[r]ead instructions for as-\nsembling model cars and airplanes.” U.S. Dep’t of Lab., 2 Dic-\ntionary of Occupational Titles 1011 (4th ed. 1991). No evi-\ndence supports the ALJ’s implied finding that Ray has these\nskills.\n To the contrary, Ray testified that he does not fill out his\nown checks or paperwork because he misspells words and\nthat he can barely read a newspaper article, a limitation con-\nfirmed in Dr. Zera’s evaluation. When a vocational expert’s\ntestimony that a claimant can perform a job conflicts with the\nclaimant’s ability to meet the job’s listed requirements in the\nDOT, then the ALJ must resolve that conflict before relying on\nthe testimony to support her disability findings. See Social Se-\ncurity Ruling 00-4p; Brown v. Colvin, 845 F.3d 247, 255 (7th Cir.\n2016); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The\nALJ’s failure to do that here, along with the other errors at\nstep four, warrants remand. See Myles v. Astrue, 582 F.3d 672,\n678 (7th Cir. 2009) (cumulative effect of multiple errors war-\nranted remand).\n Finally, Ray argues that the ALJ erred in evaluating his\nmental limitations, first by finding them not severe at step two\n\fNo. 18-2229 11\n\nand later by not including any limitations on concentration,\npersistence, and pace in the RFC. To some extent, Ray is mis-\ntaken. Step two is merely a threshold inquiry; so long as one\nof a claimant’s limitations is found to be severe, error at that\nstep is harmless. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.\n2012). Either way, the ALJ must later consider the limitations\nimposed by all impairments, severe and non-severe. 20 C.F.R.\n§ 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).\nNevertheless, the ALJ based the RFC on her flawed credibility\nfinding, which led her to discredit the opinions of the two\nagency experts who concluded that Ray had a severe mental\nimpairment. Therefore, the ALJ will have to revisit her assess-\nment of Ray’s mental impairments in any case.\n Accordingly, we VACATE the judgment and REMAND to\nthe district court with instructions to remand the case to the\nagency for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367053/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589800/	Published	1	0	0	2,019	2	[ { "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...
4,589,922		Danny Ray v. Nancy Berryhill	2019-02-12	18-2229	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2229\nDANNY J. RAY,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division\n No. 1:17-cv-01322 — Matthew P. Brookman, Magistrate Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Danny Ray applied for Supplemental Secu-\nrity Income and Disability Insurance Benefits based on a host\nof physical disorders and mental conditions. An administra-\ntive law judge found that Ray was severely impaired by most\nof his physical conditions, but she denied benefits after find-\ning that he could perform his past relevant work as a school\n\f2 No. 18-2229\n\nbus monitor. Ray challenges that finding, arguing that the ALJ\nerroneously discredited him, failed to treat his prior job as\n“composite,” and improperly assessed his functional abilities\ncompared to the job requirements for a bus monitor in the\ngeneral economy. The district court affirmed the ALJ’s deci-\nsion. We agree with Ray and vacate the judgment.\n I. BACKGROUND\n Ray lives with diabetes, hypertension, obesity, kidney dis-\nease, degenerative disc disease, anxiety, and depression.\nWhen his conditions worsened, he began working gradually\neasier jobs, from janitor to forklift operator to bus monitor for\nchildren with special needs, until eventually he gave up his\nemployment entirely. As a bus monitor, he would lift disa-\nbled children into their seats on the bus, strap down wheel-\nchairs, and monitor the children’s behavior. He ultimately\nquit because it was too painful for his hands, feet, and hips.\n Ray receives medical care for his physical impairments but\nhas been noncompliant with some treatments, mostly in rela-\ntion to his diabetes. He struggles to remember to test his\nblood-glucose levels, eat healthfully, and take insulin. Doc-\ntors who treat Ray’s back condition also have noted that he\ntakes more pain medication than the prescribed amount.\n In November 2013, Ray applied for social security bene-\nfits. During the review process, two consulting state-agency\npsychologists and an examining clinical psychologist,\nDr. Zera, evaluated his functioning. The consulting psycholo-\ngists both concluded that Ray is moderately limited in his\nability to maintain attention and concentration for extended\nperiods but is not significantly limited in any other aspect of\nconcentration, persistence, or pace. Dr. Zera determined that\n\fNo. 18-2229 3\n\nRay has an anxiety disorder and learning disorder, noting his\n“difficulty reading and poor math skills.” Ray also met with\nDr. Fish, an agency physician, who determined that Ray’s ma-\njor functional impairment is exertional tolerance. Dr. Fish\nnoted a positive result from a supine straight-leg test, which\nreflects lumbar nerve root compression, though the less-sen-\nsitive seated test was negative.1\n The agency denied Ray’s applications initially and upon\nreconsideration, and his case proceeded to a hearing with an\nALJ. At the hearing, Ray testified—and his mother and girl-\nfriend corroborated with written statements—that his daily\nactivities include taking his medication, making himself three\nsimple meals, watching television, using the dishwasher, and\nshowering (while using a shower seat). Outside of these tasks,\nhe sits and watches television. Ray occasionally does laundry\nif reminded, and he had the laundry machines moved from\nthe basement to the first floor of his house because the stairs\nwere difficult for him. Once per week, he goes grocery shop-\nping with the assistance of an electric cart. When he did not\nhave family to drive him, the hospital provided him a bus\npass because he is physically incapable of walking home.\n In addition to his physical impairments, Ray has limited\nintellect. He testified that he completed eight grades of special\neducation, but he struggles to read and write. Although he\nwill occasionally purchase a newspaper, it takes time for him\nto make sense of what he sees. Because of his limitations, his\n\n\n 1 See Alon Rabin, et al., The Sensitivity of the Seated Straight-Leg Raise\nTest Compared with the Supine Straight-Leg Raise Test in Patients Presenting\nwith Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression,\n88 PHYSICAL MED. & REHAB. 840, 842 (2007).\n\f4 No. 18-2229\n\nmother or girlfriend must write his checks and complete his\npaperwork.\n In her decision, the ALJ analyzed Ray’s application based\non the five-step process set forth in 20 C.F.R. § 404.1520 and\nfound him not disabled. She determined that he is not en-\ngaged in substantial gainful employment (step one) and that\nhe has severe impairments of diabetes mellitus, obesity, de-\ngenerative disc disease, osteoarthritis of the hip, coronary ar-\ntery disease, kidney disease, hypertension, and a history of\natrial fibrillation (step two). But his impairments, she con-\ncluded, do not meet a listing (step three).\n The ALJ determined that Ray has the residual functional\ncapacity (“RFC”) to perform light work (lifting ten to twenty\npounds) and to stand or walk for six hours. She also found\nthat he is able to “understand, remember, and carry out semi-\nskilled tasks” and “attend to tasks for a sufficient period in\norder to complete tasks.” Regarding Ray’s limitations, the\nALJ found him only “partially credible,” largely based on the\nnotion that, if his symptoms were as severe as alleged, his\ndaily activities would be more restricted and he would be\nmore compliant with his prescribed treatments.\n The ALJ presented Ray’s RFC to the vocational expert,\nwho concluded that Ray could work as a school bus moni-\ntor—not as he had performed the job, but as it is performed\nin the national economy. At the hearing, Ray questioned the\nvocational expert about the required level of language devel-\nopment for that position. The vocational expert confirmed\nthat a requirement of the job, as it is generally performed, is\nthe ability to “write compound and complex sentences, using\ncursive style, proper end punctuation, and employing adjec-\ntives and adverbs.”\n\fNo. 18-2229 5\n\n At the hearing and in a supplemental brief, Ray argued\nthat his previous position as a bus monitor for disabled\nschoolchildren was a composite job—that is, one that com-\nbines “significant elements of two or more occupations and,\nas such, ha[s] no counterpart in the [Dictionary of Occupa-\ntional Titles],” Social Security Ruling 82-61. His job, Ray ar-\ngued, involved substantial activities from both the school bus\nmonitor and child care attendant positions as they are de-\nscribed in the DOT. Ray questioned the vocational expert on\nthis subject, but the testimony is transcribed as “inaudible”\nduring the key responses, and Ray and the agency represent\nthose portions differently.\n In her written decision, however, the ALJ dismissed Ray’s\nargument about composite jobs as “unpersuasive and unsup-\nported” and concluded that Ray could be a bus monitor as\nthat job is generally performed. She did not discuss the undis-\nputed language-development requirements for that position.\nUltimately, based on the vocational expert’s testimony that\nRay could perform his past relevant work, the ALJ concluded\nthat he is not disabled.\n II. ANALYSIS\n We uphold an ALJ’s decision only if substantial evidence\nfrom the record supports her determination. Lanigan v. Ber-\nryhill, 865 F.3d 558, 563 (7th Cir. 2017).\n Ray raises four challenges in this appeal: (1) the ALJ erred\nin evaluating his daily activities and medical reports, making\nher credibility determination patently wrong; (2) the ALJ\nerred in concluding that he could perform his past relevant\nwork because his bus-monitor job was a composite job, which\nprecludes a finding at step four; (3) the ALJ erred in finding\n\f6 No. 18-2229\n\nthat he could do the bus-monitor job as generally performed\nbecause he does not meet the necessary General Educational\nDevelopment Level; and (4) the ALJ erred in assessing his\nmental impairments by finding them not severe and by not\nincluding any limitations on concentration, persistence, and\npace in his RFC.\n With respect to the adverse credibility determination, this\nis the rare case in which the claimant can overcome the “con-\nsiderable deference” we afford such findings unless they are\n“patently wrong,” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.\n2009). Specifically, the ALJ erroneously evaluated Ray’s\nsymptoms and daily activities, misinterpreted medical evi-\ndence, and failed to ask why he skipped some appointments.\n In assessing Ray’s back and hip pain, the ALJ acknowl-\nedged that Ray had a herniating disc, degenerative disc and\njoint disease of the lower lumber spine, a herniated nucleus\npulpous, and chronic pain syndrome. But to support her de-\ntermination that these impairments “are not as limiting as he\nalleged,” she cited irrelevant records from treatment he re-\nceived for a staph infection and she noted that his extremities\nwere not fractured, tender, or swollen. The connection be-\ntween those characteristics and Ray’s alleged pain and re-\nstricted mobility is nowhere explained. She also mischaracter-\nized Dr. Fish’s report, writing that the straight-leg raise test\nwas negative when the opposite was true.\n The ALJ also improperly emphasized Ray’s lack of follow-\nup on a recommended spine evaluation and his difficulty\nwith medication compliance. Within five years, Ray missed\ntwo follow-up appointments, one for his heart and one for his\nspine. When the ALJ asked him about the missed cardiology\nappointment, he explained that he was uninsured at the time\n\fNo. 18-2229 7\n\nand could not afford it. Although the record showed that Ray\nhad repeatedly lost his health insurance, the ALJ did not ask\nhim about his missed spine appointment and instead as-\nsumed that he did not attend because his symptoms were not\nserious. That was reversible error; an ALJ must not draw in-\nferences about a claimant’s lack of treatment without explor-\ning the reasons for the inaction. Beardsley v. Colvin, 758 F.3d\n834, 840 (7th Cir. 2014). Moreover, the ALJ bolstered her pre-\nsumption with evidence of Ray’s difficulty with medication\ncompliance, even though, with respect to his pain (as opposed\nto his diabetes), those medical records point to Ray’s credibil-\nity. Ray’s “noncompliance” with his musculoskeletal treat-\nment stemmed from taking pain medication too frequently,\nwhich does not support the ALJ’s inference that he was exag-\ngerating his pain.\n The ALJ also overemphasized Ray’s daily living activities.\nThe only evidence of those activities comes from Ray’s testi-\nmony (which apparently the ALJ credited in this aspect) and\nhis family’s, and it shows that the sum of Ray’s daily routine\ninvolves showering while seated, fixing simple meals, and us-\ning the dishwasher. In between these activities, he sits and\nwatches television. These minimal daily activities do not sup-\nport the ALJ’s finding that Ray exaggerated his symptoms,\nnor do they support the ultimate RFC. See Clifford v. Apfel,\n227 F.3d 863, 872 (7th Cir. 2000). Although the ALJ credited\nhim with caring for his son, his son is an adult, and no evi-\ndence reflects the type of “care” that Ray supposedly pro-\nvided. Further, the struggle of living with his son at one point\nsent Ray into a suicidal decompensation.\n Ray is also correct that the ALJ made two technical errors\nat step four that led to the unsupportable conclusion that he\n\f8 No. 18-2229\n\ncould perform his past relevant work as a bus monitor as that\nposition exists in the national economy. First, the ALJ con-\ncluded that Ray’s former position was not a “composite” job\nand, therefore, that it could be assessed with reference to the\nDictionary of Occupational Titles. A claimant is not disabled\nif he can do his past relevant work either in the manner he\nperformed it before the impairment or in the manner it is gen-\nerally performed in the national economy. See Getch v. Astrue,\n539 F.3d 473, 482 (7th Cir. 2008). But if the prior position was\na composite job, then the ALJ may not reference it when de-\ntermining whether a claimant can perform his past job as it is\ngenerally performed. See Programs Operation Manual System\nDI 25005.020; see also Wash. State Dep’t of Soc. & Health Servs.\nv. Keffeler, 537 U.S. 371, 385 (2003) (POMS serve as guidance\nand “warrant respect”); Cannon v. Apfel, 213 F.3d 970, 975\n(7th Cir. 2000) (same).\n Ray argues that his prior job was a composite job that com-\nbined elements of the school bus monitor and school child-\ncare attendant positions. He cites the vocational expert’s tes-\ntimony to support his position, asserting that the expert testi-\nfied that his bus monitor position was a composite job. The\nagency, for its part, asserts that the expert testified to the op-\nposite. Because key parts of the vocational expert’s testimony\nare marked as “[inaudible],” his opinion is not clear. But a re-\nview of the duties of a school child-care attendant bolsters\nRay’s point:\n Attends to personal needs of handicapped children\n while in school to receive specialized academic and\n physical training: Wheels handicapped children to\n classes, lunchrooms, treatment rooms, and other ar-\n eas of building. Secures children in equipment, such as\n chairs, slings, or stretchers, and places or hoists\n\fNo. 18-2229 9\n\n children into baths or pools. Monitors children using\n life support equipment to detect indications of mal-\n functioning of equipment and calls for medical as-\n sistance when needed. Helps children to walk, board\n buses, put on prosthetic appliances, eat, dress, bathe,\n and perform other physical activities as their needs\n require.\nU.S. Dep’t of Lab., 1 Dictionary of Occupational Titles 258\n(4th ed. 1991) (emphasis added). On the other hand, the du-\nties of a school bus monitor are:\n Monitors conduct of students on school bus to main-\n tain discipline and safety: Directs loading of stu-\n dents on bus to prevent congestion and unsafe con-\n ditions. Rides school bus to prevent altercations be-\n tween students and damage to bus. Participates in\n school bus safety drills. May disembark from school\n bus at railroad crossings and clear bus across tracks.\nId. at 269.\n Here, the ALJ concluded that Ray’s previous bus-monitor\njob was not a composite job because his work matched the\nDOT description “in all but the exertional requirements.” But\nRay’s testimony (the only evidence of his job duties) demon-\nstrates that as a bus monitor he performed significant ele-\nments of the childcare-attendant job, like assisting the stu-\ndents in boarding buses and securing them in their equipment\nand chairs. The DOT description of the bus-monitor job does\nnot include these duties, and the vocational expert’s testi-\nmony is ambiguous. Thus, substantial evidence does not sup-\nport the ALJ’s conclusion that Ray’s previous job was not a\ncomposite job.\n\f10 No. 18-2229\n\n Relatedly, Ray argues that the ALJ erred further by con-\ncluding that he could work as a bus monitor as the job is gen-\nerally performed despite his lacking the necessary General\nEducational Development Level for that job. The bus-monitor\nposition requires at least a Language Development Level 2,\nwhich expects that employees will be able to, among other\nthings, “[w]rite compound and complex sentences, using cur-\nsive style, proper end punctuation, and employing adjectives\nand adverbs”; “[r]ead adventure stories and comic books,\nlooking up unfamiliar words in dictionary for meaning,\nspelling, and pronunciation”; and “[r]ead instructions for as-\nsembling model cars and airplanes.” U.S. Dep’t of Lab., 2 Dic-\ntionary of Occupational Titles 1011 (4th ed. 1991). No evi-\ndence supports the ALJ’s implied finding that Ray has these\nskills.\n To the contrary, Ray testified that he does not fill out his\nown checks or paperwork because he misspells words and\nthat he can barely read a newspaper article, a limitation con-\nfirmed in Dr. Zera’s evaluation. When a vocational expert’s\ntestimony that a claimant can perform a job conflicts with the\nclaimant’s ability to meet the job’s listed requirements in the\nDOT, then the ALJ must resolve that conflict before relying on\nthe testimony to support her disability findings. See Social Se-\ncurity Ruling 00-4p; Brown v. Colvin, 845 F.3d 247, 255 (7th Cir.\n2016); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The\nALJ’s failure to do that here, along with the other errors at\nstep four, warrants remand. See Myles v. Astrue, 582 F.3d 672,\n678 (7th Cir. 2009) (cumulative effect of multiple errors war-\nranted remand).\n Finally, Ray argues that the ALJ erred in evaluating his\nmental limitations, first by finding them not severe at step two\n\fNo. 18-2229 11\n\nand later by not including any limitations on concentration,\npersistence, and pace in the RFC. To some extent, Ray is mis-\ntaken. Step two is merely a threshold inquiry; so long as one\nof a claimant’s limitations is found to be severe, error at that\nstep is harmless. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.\n2012). Either way, the ALJ must later consider the limitations\nimposed by all impairments, severe and non-severe. 20 C.F.R.\n§ 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).\nNevertheless, the ALJ based the RFC on her flawed credibility\nfinding, which led her to discredit the opinions of the two\nagency experts who concluded that Ray had a severe mental\nimpairment. Therefore, the ALJ will have to revisit her assess-\nment of Ray’s mental impairments in any case.\n Accordingly, we VACATE the judgment and REMAND to\nthe district court with instructions to remand the case to the\nagency for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367175/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589922/	Published	1	0	0	2,019	2	[ { "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...
4,589,938	UNITED STATES of America, Plaintiff-Appellee, v. Edward BOLIAUX, Defendant-Appellant.	United States v. Edward Boliaux	2019-02-12	18-1322	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Easterbrook, Eve", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1322\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\nEDWARD BOLIAUX,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 CR 115 — Manish S. Shah, Judge.\n ____________________\n\n ARGUED FEBRUARY 4, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. Between 2002 and 2008 Ed-\nward Boliaux operated EMC Automotive, a used-car dealer-\nship, in Joliet, Illinois. He borrowed money from three lend-\ners, using inventory as security. Most loans were secured by\nthe cars’ certiﬁcates of title, a device called ﬂoorplanning.\nBecause there is supposed to be only one title certiﬁcate per\ncar, the dealer cannot transfer good title to a customer with-\n\f2 No. 18-1322\n\nout paying the lender. Although lenders may allow sales to\nprecede payment, they demand that the money be held in\ntrust until the loan is retired. But beginning in 2007 Boliaux\npersuaded state oﬃcials to issue duplicate certiﬁcates of title\non the pretense that the originals had been lost. He used\nthese to obtain multiple loans against single vehicles, exceed-\ning the cars’ market value and leaving the lenders under-\nsecured. He also began to sell cars without using the pro-\nceeds to repay the loans. After one of the lenders detected\nthis and impounded the collateral, Boliaux persuaded the\ncustodian to release eight cars, which he sold for his own\nbeneﬁt.\n Deceit continued after EMC Automotive collapsed. In\nSeptember 2008 Cindy Boliaux, then Edward’s wife, incor-\nporated Joliet Motors, which Edward operated from the\npremises formerly occupied by EMC. Joliet Motors received\ninstallment payments sent by the customers of EMC yet did\nnot remit them to lenders. Boliaux had trouble borrowing\nagainst the inventory of his new dealership, and in 2008 and\n2009 he turned to check kiting.\n For these and related acts, a jury convicted him of four\ncounts of wire fraud and six of bank fraud. 18 U.S.C. §§ 1343,\n1344. He has been sentenced to 48 months’ imprisonment\nand three years’ supervised release.\n Boliaux contends that the evidence was insuﬃcient—on\nthe wire fraud counts principally because he did not trans-\nmit anything by wire, and on the bank fraud counts princi-\npally because no one from the banks testiﬁed that the banks\nlost money. The district court addressed these and other con-\ntentions when denying Boliaux’s motion under Fed. R. Crim.\nP. 29:\n\fNo. 18-1322 3\n\n Viewed in the light most favorable to the prosecution, see United\n States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999), the evi-\n dence demonstrated that Boliaux obtained ﬁnancing from lend-\n ers through materially false representations, and he perpetuated\n his scheme through the concealment of material facts. Boliaux\n argues that the evidence amounted to, at most, a disjointed se-\n ries of immaterial breaches of contract. Neither the facts nor the\n law support this argument. Obtaining money through a scheme\n intended to cheat others is a crime whether or not it is also slop-\n py business or breach of contract. It suﬃces to note that Boliaux\n lied to obtain duplicate titles for cars that he knew were ﬁnanced\n by one lender, and used the duplicate titles to obtain additional\n ﬁnancing from a second lender—thereby compromising the se-\n curity interests of both lenders. Later, he forged lien releases\n purportedly from GMAC, and with those releases, obtained car\n titles that he used to secure more ﬁnancing—thereby cheating\n those lenders by concealing GMAC’s interests. According to in-\n dustry representatives, clear title to a vehicle that was part of\n ﬂoorplan ﬁnancing was material to lenders, even when liens\n were not individually ﬁled and notwithstanding the breadth of\n the collateral securing ﬁnancing. The evidence of defendant’s\n control over the car dealerships was suﬃcient to prove his inten-\n tional participation in the scheme. His intent to defraud was\n manifest in his false statements and forgeries, and in his con-\n cealment of facts associated with Joliet Motors. The charged wire\n transmissions traveled across state lines—from Joliet Motors in\n Illinois and routed through Pennsylvania or Ohio, and they ad-\n vanced the scheme to defraud the lenders because they were\n payments for a vehicle that had been sold to the detriment of the\n lender’s interests. The evidence of Boliaux’s supervision of Joliet\n Motors, and his involvement in the payment-processing system,\n was suﬃcient to make the wire transmissions a foreseeable con-\n sequence of his scheme.\n Testimony from the victim banks was not necessary to support a\n conviction on the bank fraud counts. The bank records, coupled\n with the explanatory testimony of expert witness Wolverton\n (who testiﬁed under Rule 702 without objection) and the evi-\n dence of Boliaux’s control over the bank accounts, demonstrated\n\f4 No. 18-1322\n\n the risk of loss to the banks and Boliaux’s intent to deceive\n through check kiting.\n The evidence was not just suﬃcient, it was overwhelming, and\n defendant’s motion for a judgment of acquijal under Rule 29 is\n denied.\n\nIt is not necessary to say more about the suﬃciency of the\nevidence. Later we discuss the decision by Boliaux’s lawyer\nto omit from his brief the district court’s analysis of this sub-\nject.\n Boliaux asked the district judge to instruct the jury that it\nhad to agree, unanimously, how he carried out his scheme to\ndefraud. The judge properly declined. Each wire-fraud\ncount of the indictment charged a single scheme to defraud\nimplemented in 17 ways (obtaining duplicate titles by falsely\nasserting that others had been lost, pledging the same car to\nmultiple lenders, selling cars without repaying the loans,\nand so on). The means used to carry out a fraudulent scheme\nare not separate elements requiring unanimity. See, e.g.,\nRichardson v. United States, 526 U.S. 813, 817 (1999). Boliaux\nseeks to avoid this rule by contending that the wire-fraud\ncharges are duplicitous—in other words, that each count re-\nally charges multiple crimes, rather than one crime com-\nmijed through multiple acts. The district court addressed\nthis argument, too, in the order from which we have already\nquoted:\n Boliaux raises an untimely argument concerning duplicity, but\n he never challenged the indictment under Rule 12(b)(3)(B)(i) and\n oﬀers no excuse for this failure. The claim is forfeited, but in any\n event, there was no duplicity, much less prejudicial duplicity.\n Each wire fraud count alleged one execution of a single scheme\n to defraud with a variety of alleged means. No unanimity with\n respect to those means was required. United States v. Daniel, 749\n F.3d 608, 614 (7th Cir. 2014).\n\fNo. 18-1322 5\n\nThus Boliaux lost in the district court on two grounds: forfei-\nture and the merits. His opening brief on appeal ignores the\nforfeiture. If you lose in the district court on multiple\ngrounds, you must contest all on appeal; prevailing on one\nwon’t suﬃce. After the prosecutor relied on the forfeiture\nruling, Boliaux ﬁnally addressed it in his reply brief. That’s\ntoo late—and as it happens too lijle as well.\n Federal Rule of Criminal Procedure 12(b)(3) lists more\nthan a dozen defenses or arguments that must be presented\nbefore trial, so that any error may be corrected (and the\nprosecutor can appeal an adverse decision without encoun-\ntering a problem under the Double Jeopardy Clause). See\nUnited States v. Nixon, 901 F.3d 918, 920–21 (7th Cir. 2018).\nDuplicity is among them. There is an escape hatch: “If a par-\nty does not meet the deadline for making a Rule 12(b)(3) mo-\ntion, the motion is untimely. But a court may consider the\ndefense, objection, or request if the party shows good\ncause.” Fed. R. Crim. P. 12(c)(3). The district judge stated\nthat Boliaux has not oﬀered an excuse for his delay. That\nremains true. The reply brief does not contend that Boliaux\nhad “good cause”—or indeed any cause—for raising a du-\nplicity argument only in mid-trial. The decision may well\nhave been strategic, deferring majers until it was too late for\nthe prosecutor either to amend the indictment or appeal\nfrom an adverse decision. This is exactly the kind of strategy\nthat Rule 12(b)(3) is designed to block.\n Not content with holding back a duplicity argument until\nmid-trial, Boliaux withheld a multiplicity argument until his\nopening appellate brief. Multiplicity means charging a single\ncrime in multiple counts. Boliaux tells us that he commijed\nat most one bank fraud, no majer how many checks he\n\f6 No. 18-1322\n\nwrote against insuﬃcient funds, making the six bank-fraud\ncounts multiplicitous. Yet multiplicity is among the majers\nthat must be raised before trial. Fed. R. Crim. P.\n12(b)(3)(B)(ii). Consideration of the argument now depends\nnot only on a demonstration of plain error (the standard for\nall contentions ﬁrst presented on appeal) but also on a\ndemonstration of good cause. Boliaux does not argue that he\nhad good cause—or any cause at all—for delay in making\nthis argument. We therefore do not consider it.\n One evidentiary contention requires a few words. John\nBrincat appeared for the prosecution as an expert witness on\nthe topic of ﬂoorplanning. He explained to the jury how\nthese loans are made and why lenders’ risk is increased by\nthe existence of multiple title certiﬁcates and multiple loans\nagainst a single vehicle. The district judge found this testi-\nmony proper under Fed. R. Evid. 702. Still, Boliaux contends\nthat the testimony should have been barred because Brincat\nacted as both an expert witness and a fact witness, a dual\nrole that may leave the jury confused about how to treat the\ntestimony. See, e.g., United States v. Je@, 908 F.3d 252, 267–68\n(7th Cir. 2018). The district court disagreed, stating: “The tes-\ntimony elicited by the government from witness Brincat was\nlimited to his role as an industry expert and did not stray\ninto fact-witness territory”. Boliaux contests this by observ-\ning that Brincat testiﬁed about how the whole ﬂoorplan-\nlending industry works, and Boliaux insists that because\nBrincat is employed by Automotive Finance Corp. (AFC),\none of the defrauded lenders, the jury likely would have un-\nderstood him to be a fact witness.\n The district judge did not abuse his discretion by per-\nmijing Brincat to testify. He did not describe any special fea-\n\fNo. 18-1322 7\n\ntures of AFC’s practices or any of the dealings between AFC\nand Boliaux. The jury surely understood Brincat to be testi-\nfying exclusively as an expert. We are surprised that the\nprosecutor would present Brincat as an expert, enabling the\ndefense to paint a vital witness as biased, but puzzling deci-\nsions do not make evidence inadmissible.\n Boliaux presents a few additional arguments, which do\nnot require discussion. They have been considered and are\nrejected.\n We promised earlier to return to how Boliaux has treated\nthe district court’s explanations for its decisions. Circuit Rule\n30(b)(1) requires every appellant to include, in an appendix\nto the brief, “[c]opies of any … opinions, orders, or oral rul-\nings in the case that address the issues sought to be raised.”\nCircuit Rule 30(d) adds: “The appendix to each appellant’s\nbrief shall contain a statement that all of the materials re-\nquired by parts (a) and (b) of this rule are included.”\nBoliaux’s brief, signed by Andrew S. Gable of Chicago, con-\ntains the required certiﬁcation. But it is false. The appendix\nomits the district court’s statement of its reasons for ﬁnding\nthe evidence suﬃcient, ﬁnding the duplicity argument (and\nthe proposed unanimity instruction) forfeited under Rule\n12(b), and permijing Brincat to testify. (The opinion ad-\ndresses other topics as well.) The appendix also omits sub-\nstantial parts of the district judge’s mid-trial discussions of\nthese and other issues. Was Gable hoping that we would not\ndiscover those rulings?\n False representations to the court of appeals have conse-\nquences. In civil litigation a false certiﬁcate of compliance\nwith Circuit Rule 30(a) and (b) leads to summary aﬃrmance\nor dismissal of the appeal. See, e.g., Urso v. United States, 72\n\f8 No. 18-1322\n\nF.3d 59, 61–62 (7th Cir. 1995); Mortell v. Mortell Co., 887 F.2d\n1322, 1327 (7th Cir. 1989); Teitelbaum v. Curtis Publishing Co.,\n314 F.2d 94, 95–96 (7th Cir. 1963); Sparrow v. Yellow Cab Co.,\n273 F.2d 1, 4 (7th Cir. 1959); Chicago & Eastern Illinois Ry. v.\nSouthern Ry., 261 F.2d 394, 400 n.7 (7th Cir. 1958). The client\nthen may be able to recover from counsel for malpractice.\nWe concluded in United States v. Smith, 953 F.2d 1060, 1068\n(7th Cir. 1992), that this would not be appropriate in criminal\ncases, where defendants have diﬃculty monitoring their\nlawyers’ performance—and where dismissal of the appeal or\nsummary aﬃrmance would lead straight to a decision ﬁnd-\ning that counsel had furnished ineﬀective assistance, which\nwould authorize a new appeal. It is best in criminal cases to\ngive the defendant plenary appellate review, as we have\ndone, and penalize the lawyer directly. See In re Galvan, 92\nF.3d 582 (7th Cir. 1996). See also Guentchev v. INS, 77 F.3d\n1036 (7th Cir. 1996) (same approach in immigration law).\n Galvan established $1,000 as the presumptive ﬁne for a\nviolation of Circuit Rule 30 in a criminal case. 92 F.3d at 584–\n85. See also, e.g., United States v. Evans, 270 F.3d 1076, 1085\n(7th Cir. 2001). Adjusting for inﬂation, $1,000 in 1996 is\nequivalent to $1,597 today. This implies that the presumptive\nﬁne should become $1,600.\n Counsel has 14 days to show cause why he should not be\nﬁned $1,600, and reprimanded, for his violation of Circuit\nRule 30(b) and his false statement under Circuit Rule 30(d).\n The judgment is aﬃrmed, and an order to show cause\nwill be issued.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367191/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589938/	Published	1	0	0	2,019	2	[ { "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...
4,589,939		Danny Ray v. Nancy Berryhill	2019-02-12	18-2229	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-2229\nDANNY J. RAY,\n Plaintiff-Appellant,\n v.\n\nNANCY A. BERRYHILL,\nActing Commissioner of Social Security,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division\n No. 1:17-cv-01322 — Matthew P. Brookman, Magistrate Judge.\n ____________________\n\n ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit\nJudges.\n PER CURIAM. Danny Ray applied for Supplemental Secu-\nrity Income and Disability Insurance Benefits based on a host\nof physical disorders and mental conditions. An administra-\ntive law judge found that Ray was severely impaired by most\nof his physical conditions, but she denied benefits after find-\ning that he could perform his past relevant work as a school\n\f2 No. 18-2229\n\nbus monitor. Ray challenges that finding, arguing that the ALJ\nerroneously discredited him, failed to treat his prior job as\n“composite,” and improperly assessed his functional abilities\ncompared to the job requirements for a bus monitor in the\ngeneral economy. The district court affirmed the ALJ’s deci-\nsion. We agree with Ray and vacate the judgment.\n I. BACKGROUND\n Ray lives with diabetes, hypertension, obesity, kidney dis-\nease, degenerative disc disease, anxiety, and depression.\nWhen his conditions worsened, he began working gradually\neasier jobs, from janitor to forklift operator to bus monitor for\nchildren with special needs, until eventually he gave up his\nemployment entirely. As a bus monitor, he would lift disa-\nbled children into their seats on the bus, strap down wheel-\nchairs, and monitor the children’s behavior. He ultimately\nquit because it was too painful for his hands, feet, and hips.\n Ray receives medical care for his physical impairments but\nhas been noncompliant with some treatments, mostly in rela-\ntion to his diabetes. He struggles to remember to test his\nblood-glucose levels, eat healthfully, and take insulin. Doc-\ntors who treat Ray’s back condition also have noted that he\ntakes more pain medication than the prescribed amount.\n In November 2013, Ray applied for social security bene-\nfits. During the review process, two consulting state-agency\npsychologists and an examining clinical psychologist,\nDr. Zera, evaluated his functioning. The consulting psycholo-\ngists both concluded that Ray is moderately limited in his\nability to maintain attention and concentration for extended\nperiods but is not significantly limited in any other aspect of\nconcentration, persistence, or pace. Dr. Zera determined that\n\fNo. 18-2229 3\n\nRay has an anxiety disorder and learning disorder, noting his\n“difficulty reading and poor math skills.” Ray also met with\nDr. Fish, an agency physician, who determined that Ray’s ma-\njor functional impairment is exertional tolerance. Dr. Fish\nnoted a positive result from a supine straight-leg test, which\nreflects lumbar nerve root compression, though the less-sen-\nsitive seated test was negative.1\n The agency denied Ray’s applications initially and upon\nreconsideration, and his case proceeded to a hearing with an\nALJ. At the hearing, Ray testified—and his mother and girl-\nfriend corroborated with written statements—that his daily\nactivities include taking his medication, making himself three\nsimple meals, watching television, using the dishwasher, and\nshowering (while using a shower seat). Outside of these tasks,\nhe sits and watches television. Ray occasionally does laundry\nif reminded, and he had the laundry machines moved from\nthe basement to the first floor of his house because the stairs\nwere difficult for him. Once per week, he goes grocery shop-\nping with the assistance of an electric cart. When he did not\nhave family to drive him, the hospital provided him a bus\npass because he is physically incapable of walking home.\n In addition to his physical impairments, Ray has limited\nintellect. He testified that he completed eight grades of special\neducation, but he struggles to read and write. Although he\nwill occasionally purchase a newspaper, it takes time for him\nto make sense of what he sees. Because of his limitations, his\n\n\n 1 See Alon Rabin, et al., The Sensitivity of the Seated Straight-Leg Raise\nTest Compared with the Supine Straight-Leg Raise Test in Patients Presenting\nwith Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression,\n88 PHYSICAL MED. & REHAB. 840, 842 (2007).\n\f4 No. 18-2229\n\nmother or girlfriend must write his checks and complete his\npaperwork.\n In her decision, the ALJ analyzed Ray’s application based\non the five-step process set forth in 20 C.F.R. § 404.1520 and\nfound him not disabled. She determined that he is not en-\ngaged in substantial gainful employment (step one) and that\nhe has severe impairments of diabetes mellitus, obesity, de-\ngenerative disc disease, osteoarthritis of the hip, coronary ar-\ntery disease, kidney disease, hypertension, and a history of\natrial fibrillation (step two). But his impairments, she con-\ncluded, do not meet a listing (step three).\n The ALJ determined that Ray has the residual functional\ncapacity (“RFC”) to perform light work (lifting ten to twenty\npounds) and to stand or walk for six hours. She also found\nthat he is able to “understand, remember, and carry out semi-\nskilled tasks” and “attend to tasks for a sufficient period in\norder to complete tasks.” Regarding Ray’s limitations, the\nALJ found him only “partially credible,” largely based on the\nnotion that, if his symptoms were as severe as alleged, his\ndaily activities would be more restricted and he would be\nmore compliant with his prescribed treatments.\n The ALJ presented Ray’s RFC to the vocational expert,\nwho concluded that Ray could work as a school bus moni-\ntor—not as he had performed the job, but as it is performed\nin the national economy. At the hearing, Ray questioned the\nvocational expert about the required level of language devel-\nopment for that position. The vocational expert confirmed\nthat a requirement of the job, as it is generally performed, is\nthe ability to “write compound and complex sentences, using\ncursive style, proper end punctuation, and employing adjec-\ntives and adverbs.”\n\fNo. 18-2229 5\n\n At the hearing and in a supplemental brief, Ray argued\nthat his previous position as a bus monitor for disabled\nschoolchildren was a composite job—that is, one that com-\nbines “significant elements of two or more occupations and,\nas such, ha[s] no counterpart in the [Dictionary of Occupa-\ntional Titles],” Social Security Ruling 82-61. His job, Ray ar-\ngued, involved substantial activities from both the school bus\nmonitor and child care attendant positions as they are de-\nscribed in the DOT. Ray questioned the vocational expert on\nthis subject, but the testimony is transcribed as “inaudible”\nduring the key responses, and Ray and the agency represent\nthose portions differently.\n In her written decision, however, the ALJ dismissed Ray’s\nargument about composite jobs as “unpersuasive and unsup-\nported” and concluded that Ray could be a bus monitor as\nthat job is generally performed. She did not discuss the undis-\nputed language-development requirements for that position.\nUltimately, based on the vocational expert’s testimony that\nRay could perform his past relevant work, the ALJ concluded\nthat he is not disabled.\n II. ANALYSIS\n We uphold an ALJ’s decision only if substantial evidence\nfrom the record supports her determination. Lanigan v. Ber-\nryhill, 865 F.3d 558, 563 (7th Cir. 2017).\n Ray raises four challenges in this appeal: (1) the ALJ erred\nin evaluating his daily activities and medical reports, making\nher credibility determination patently wrong; (2) the ALJ\nerred in concluding that he could perform his past relevant\nwork because his bus-monitor job was a composite job, which\nprecludes a finding at step four; (3) the ALJ erred in finding\n\f6 No. 18-2229\n\nthat he could do the bus-monitor job as generally performed\nbecause he does not meet the necessary General Educational\nDevelopment Level; and (4) the ALJ erred in assessing his\nmental impairments by finding them not severe and by not\nincluding any limitations on concentration, persistence, and\npace in his RFC.\n With respect to the adverse credibility determination, this\nis the rare case in which the claimant can overcome the “con-\nsiderable deference” we afford such findings unless they are\n“patently wrong,” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.\n2009). Specifically, the ALJ erroneously evaluated Ray’s\nsymptoms and daily activities, misinterpreted medical evi-\ndence, and failed to ask why he skipped some appointments.\n In assessing Ray’s back and hip pain, the ALJ acknowl-\nedged that Ray had a herniating disc, degenerative disc and\njoint disease of the lower lumber spine, a herniated nucleus\npulpous, and chronic pain syndrome. But to support her de-\ntermination that these impairments “are not as limiting as he\nalleged,” she cited irrelevant records from treatment he re-\nceived for a staph infection and she noted that his extremities\nwere not fractured, tender, or swollen. The connection be-\ntween those characteristics and Ray’s alleged pain and re-\nstricted mobility is nowhere explained. She also mischaracter-\nized Dr. Fish’s report, writing that the straight-leg raise test\nwas negative when the opposite was true.\n The ALJ also improperly emphasized Ray’s lack of follow-\nup on a recommended spine evaluation and his difficulty\nwith medication compliance. Within five years, Ray missed\ntwo follow-up appointments, one for his heart and one for his\nspine. When the ALJ asked him about the missed cardiology\nappointment, he explained that he was uninsured at the time\n\fNo. 18-2229 7\n\nand could not afford it. Although the record showed that Ray\nhad repeatedly lost his health insurance, the ALJ did not ask\nhim about his missed spine appointment and instead as-\nsumed that he did not attend because his symptoms were not\nserious. That was reversible error; an ALJ must not draw in-\nferences about a claimant’s lack of treatment without explor-\ning the reasons for the inaction. Beardsley v. Colvin, 758 F.3d\n834, 840 (7th Cir. 2014). Moreover, the ALJ bolstered her pre-\nsumption with evidence of Ray’s difficulty with medication\ncompliance, even though, with respect to his pain (as opposed\nto his diabetes), those medical records point to Ray’s credibil-\nity. Ray’s “noncompliance” with his musculoskeletal treat-\nment stemmed from taking pain medication too frequently,\nwhich does not support the ALJ’s inference that he was exag-\ngerating his pain.\n The ALJ also overemphasized Ray’s daily living activities.\nThe only evidence of those activities comes from Ray’s testi-\nmony (which apparently the ALJ credited in this aspect) and\nhis family’s, and it shows that the sum of Ray’s daily routine\ninvolves showering while seated, fixing simple meals, and us-\ning the dishwasher. In between these activities, he sits and\nwatches television. These minimal daily activities do not sup-\nport the ALJ’s finding that Ray exaggerated his symptoms,\nnor do they support the ultimate RFC. See Clifford v. Apfel,\n227 F.3d 863, 872 (7th Cir. 2000). Although the ALJ credited\nhim with caring for his son, his son is an adult, and no evi-\ndence reflects the type of “care” that Ray supposedly pro-\nvided. Further, the struggle of living with his son at one point\nsent Ray into a suicidal decompensation.\n Ray is also correct that the ALJ made two technical errors\nat step four that led to the unsupportable conclusion that he\n\f8 No. 18-2229\n\ncould perform his past relevant work as a bus monitor as that\nposition exists in the national economy. First, the ALJ con-\ncluded that Ray’s former position was not a “composite” job\nand, therefore, that it could be assessed with reference to the\nDictionary of Occupational Titles. A claimant is not disabled\nif he can do his past relevant work either in the manner he\nperformed it before the impairment or in the manner it is gen-\nerally performed in the national economy. See Getch v. Astrue,\n539 F.3d 473, 482 (7th Cir. 2008). But if the prior position was\na composite job, then the ALJ may not reference it when de-\ntermining whether a claimant can perform his past job as it is\ngenerally performed. See Programs Operation Manual System\nDI 25005.020; see also Wash. State Dep’t of Soc. & Health Servs.\nv. Keffeler, 537 U.S. 371, 385 (2003) (POMS serve as guidance\nand “warrant respect”); Cannon v. Apfel, 213 F.3d 970, 975\n(7th Cir. 2000) (same).\n Ray argues that his prior job was a composite job that com-\nbined elements of the school bus monitor and school child-\ncare attendant positions. He cites the vocational expert’s tes-\ntimony to support his position, asserting that the expert testi-\nfied that his bus monitor position was a composite job. The\nagency, for its part, asserts that the expert testified to the op-\nposite. Because key parts of the vocational expert’s testimony\nare marked as “[inaudible],” his opinion is not clear. But a re-\nview of the duties of a school child-care attendant bolsters\nRay’s point:\n Attends to personal needs of handicapped children\n while in school to receive specialized academic and\n physical training: Wheels handicapped children to\n classes, lunchrooms, treatment rooms, and other ar-\n eas of building. Secures children in equipment, such as\n chairs, slings, or stretchers, and places or hoists\n\fNo. 18-2229 9\n\n children into baths or pools. Monitors children using\n life support equipment to detect indications of mal-\n functioning of equipment and calls for medical as-\n sistance when needed. Helps children to walk, board\n buses, put on prosthetic appliances, eat, dress, bathe,\n and perform other physical activities as their needs\n require.\nU.S. Dep’t of Lab., 1 Dictionary of Occupational Titles 258\n(4th ed. 1991) (emphasis added). On the other hand, the du-\nties of a school bus monitor are:\n Monitors conduct of students on school bus to main-\n tain discipline and safety: Directs loading of stu-\n dents on bus to prevent congestion and unsafe con-\n ditions. Rides school bus to prevent altercations be-\n tween students and damage to bus. Participates in\n school bus safety drills. May disembark from school\n bus at railroad crossings and clear bus across tracks.\nId. at 269.\n Here, the ALJ concluded that Ray’s previous bus-monitor\njob was not a composite job because his work matched the\nDOT description “in all but the exertional requirements.” But\nRay’s testimony (the only evidence of his job duties) demon-\nstrates that as a bus monitor he performed significant ele-\nments of the childcare-attendant job, like assisting the stu-\ndents in boarding buses and securing them in their equipment\nand chairs. The DOT description of the bus-monitor job does\nnot include these duties, and the vocational expert’s testi-\nmony is ambiguous. Thus, substantial evidence does not sup-\nport the ALJ’s conclusion that Ray’s previous job was not a\ncomposite job.\n\f10 No. 18-2229\n\n Relatedly, Ray argues that the ALJ erred further by con-\ncluding that he could work as a bus monitor as the job is gen-\nerally performed despite his lacking the necessary General\nEducational Development Level for that job. The bus-monitor\nposition requires at least a Language Development Level 2,\nwhich expects that employees will be able to, among other\nthings, “[w]rite compound and complex sentences, using cur-\nsive style, proper end punctuation, and employing adjectives\nand adverbs”; “[r]ead adventure stories and comic books,\nlooking up unfamiliar words in dictionary for meaning,\nspelling, and pronunciation”; and “[r]ead instructions for as-\nsembling model cars and airplanes.” U.S. Dep’t of Lab., 2 Dic-\ntionary of Occupational Titles 1011 (4th ed. 1991). No evi-\ndence supports the ALJ’s implied finding that Ray has these\nskills.\n To the contrary, Ray testified that he does not fill out his\nown checks or paperwork because he misspells words and\nthat he can barely read a newspaper article, a limitation con-\nfirmed in Dr. Zera’s evaluation. When a vocational expert’s\ntestimony that a claimant can perform a job conflicts with the\nclaimant’s ability to meet the job’s listed requirements in the\nDOT, then the ALJ must resolve that conflict before relying on\nthe testimony to support her disability findings. See Social Se-\ncurity Ruling 00-4p; Brown v. Colvin, 845 F.3d 247, 255 (7th Cir.\n2016); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The\nALJ’s failure to do that here, along with the other errors at\nstep four, warrants remand. See Myles v. Astrue, 582 F.3d 672,\n678 (7th Cir. 2009) (cumulative effect of multiple errors war-\nranted remand).\n Finally, Ray argues that the ALJ erred in evaluating his\nmental limitations, first by finding them not severe at step two\n\fNo. 18-2229 11\n\nand later by not including any limitations on concentration,\npersistence, and pace in the RFC. To some extent, Ray is mis-\ntaken. Step two is merely a threshold inquiry; so long as one\nof a claimant’s limitations is found to be severe, error at that\nstep is harmless. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.\n2012). Either way, the ALJ must later consider the limitations\nimposed by all impairments, severe and non-severe. 20 C.F.R.\n§ 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).\nNevertheless, the ALJ based the RFC on her flawed credibility\nfinding, which led her to discredit the opinions of the two\nagency experts who concluded that Ray had a severe mental\nimpairment. Therefore, the ALJ will have to revisit her assess-\nment of Ray’s mental impairments in any case.\n Accordingly, we VACATE the judgment and REMAND to\nthe district court with instructions to remand the case to the\nagency for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367192/", "author_raw": "PER CURIAM"}]}	WOOD	KANNE	ST EVE	1	{"WOOD": ", Chief", "KANNE": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589939/	Published	1	0	0	2,019	2	[ { "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...
4,589,994		United States v. Edward Boliaux	2019-02-12	18-1322	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE, Circuit Judges.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 18-1322\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n v.\n\nEDWARD BOLIAUX,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 16 CR 115 — Manish S. Shah, Judge.\n ____________________\n\n ARGUED FEBRUARY 4, 2019 — DECIDED FEBRUARY 12, 2019\n ____________________\n\n Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,\nCircuit Judges.\n EASTERBROOK, Circuit Judge. Between 2002 and 2008 Ed-\nward Boliaux operated EMC Automotive, a used-car dealer-\nship, in Joliet, Illinois. He borrowed money from three lend-\ners, using inventory as security. Most loans were secured by\nthe cars’ certiﬁcates of title, a device called ﬂoorplanning.\nBecause there is supposed to be only one title certiﬁcate per\ncar, the dealer cannot transfer good title to a customer with-\n\f2 No. 18-1322\n\nout paying the lender. Although lenders may allow sales to\nprecede payment, they demand that the money be held in\ntrust until the loan is retired. But beginning in 2007 Boliaux\npersuaded state oﬃcials to issue duplicate certiﬁcates of title\non the pretense that the originals had been lost. He used\nthese to obtain multiple loans against single vehicles, exceed-\ning the cars’ market value and leaving the lenders under-\nsecured. He also began to sell cars without using the pro-\nceeds to repay the loans. After one of the lenders detected\nthis and impounded the collateral, Boliaux persuaded the\ncustodian to release eight cars, which he sold for his own\nbeneﬁt.\n Deceit continued after EMC Automotive collapsed. In\nSeptember 2008 Cindy Boliaux, then Edward’s wife, incor-\nporated Joliet Motors, which Edward operated from the\npremises formerly occupied by EMC. Joliet Motors received\ninstallment payments sent by the customers of EMC yet did\nnot remit them to lenders. Boliaux had trouble borrowing\nagainst the inventory of his new dealership, and in 2008 and\n2009 he turned to check kiting.\n For these and related acts, a jury convicted him of four\ncounts of wire fraud and six of bank fraud. 18 U.S.C. §§ 1343,\n1344. He has been sentenced to 48 months’ imprisonment\nand three years’ supervised release.\n Boliaux contends that the evidence was insuﬃcient—on\nthe wire fraud counts principally because he did not trans-\nmit anything by wire, and on the bank fraud counts princi-\npally because no one from the banks testiﬁed that the banks\nlost money. The district court addressed these and other con-\ntentions when denying Boliaux’s motion under Fed. R. Crim.\nP. 29:\n\fNo. 18-1322 3\n\n Viewed in the light most favorable to the prosecution, see United\n States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999), the evi-\n dence demonstrated that Boliaux obtained ﬁnancing from lend-\n ers through materially false representations, and he perpetuated\n his scheme through the concealment of material facts. Boliaux\n argues that the evidence amounted to, at most, a disjointed se-\n ries of immaterial breaches of contract. Neither the facts nor the\n law support this argument. Obtaining money through a scheme\n intended to cheat others is a crime whether or not it is also slop-\n py business or breach of contract. It suﬃces to note that Boliaux\n lied to obtain duplicate titles for cars that he knew were ﬁnanced\n by one lender, and used the duplicate titles to obtain additional\n ﬁnancing from a second lender—thereby compromising the se-\n curity interests of both lenders. Later, he forged lien releases\n purportedly from GMAC, and with those releases, obtained car\n titles that he used to secure more ﬁnancing—thereby cheating\n those lenders by concealing GMAC’s interests. According to in-\n dustry representatives, clear title to a vehicle that was part of\n ﬂoorplan ﬁnancing was material to lenders, even when liens\n were not individually ﬁled and notwithstanding the breadth of\n the collateral securing ﬁnancing. The evidence of defendant’s\n control over the car dealerships was suﬃcient to prove his inten-\n tional participation in the scheme. His intent to defraud was\n manifest in his false statements and forgeries, and in his con-\n cealment of facts associated with Joliet Motors. The charged wire\n transmissions traveled across state lines—from Joliet Motors in\n Illinois and routed through Pennsylvania or Ohio, and they ad-\n vanced the scheme to defraud the lenders because they were\n payments for a vehicle that had been sold to the detriment of the\n lender’s interests. The evidence of Boliaux’s supervision of Joliet\n Motors, and his involvement in the payment-processing system,\n was suﬃcient to make the wire transmissions a foreseeable con-\n sequence of his scheme.\n Testimony from the victim banks was not necessary to support a\n conviction on the bank fraud counts. The bank records, coupled\n with the explanatory testimony of expert witness Wolverton\n (who testiﬁed under Rule 702 without objection) and the evi-\n dence of Boliaux’s control over the bank accounts, demonstrated\n\f4 No. 18-1322\n\n the risk of loss to the banks and Boliaux’s intent to deceive\n through check kiting.\n The evidence was not just suﬃcient, it was overwhelming, and\n defendant’s motion for a judgment of acquijal under Rule 29 is\n denied.\n\nIt is not necessary to say more about the suﬃciency of the\nevidence. Later we discuss the decision by Boliaux’s lawyer\nto omit from his brief the district court’s analysis of this sub-\nject.\n Boliaux asked the district judge to instruct the jury that it\nhad to agree, unanimously, how he carried out his scheme to\ndefraud. The judge properly declined. Each wire-fraud\ncount of the indictment charged a single scheme to defraud\nimplemented in 17 ways (obtaining duplicate titles by falsely\nasserting that others had been lost, pledging the same car to\nmultiple lenders, selling cars without repaying the loans,\nand so on). The means used to carry out a fraudulent scheme\nare not separate elements requiring unanimity. See, e.g.,\nRichardson v. United States, 526 U.S. 813, 817 (1999). Boliaux\nseeks to avoid this rule by contending that the wire-fraud\ncharges are duplicitous—in other words, that each count re-\nally charges multiple crimes, rather than one crime com-\nmijed through multiple acts. The district court addressed\nthis argument, too, in the order from which we have already\nquoted:\n Boliaux raises an untimely argument concerning duplicity, but\n he never challenged the indictment under Rule 12(b)(3)(B)(i) and\n oﬀers no excuse for this failure. The claim is forfeited, but in any\n event, there was no duplicity, much less prejudicial duplicity.\n Each wire fraud count alleged one execution of a single scheme\n to defraud with a variety of alleged means. No unanimity with\n respect to those means was required. United States v. Daniel, 749\n F.3d 608, 614 (7th Cir. 2014).\n\fNo. 18-1322 5\n\nThus Boliaux lost in the district court on two grounds: forfei-\nture and the merits. His opening brief on appeal ignores the\nforfeiture. If you lose in the district court on multiple\ngrounds, you must contest all on appeal; prevailing on one\nwon’t suﬃce. After the prosecutor relied on the forfeiture\nruling, Boliaux ﬁnally addressed it in his reply brief. That’s\ntoo late—and as it happens too lijle as well.\n Federal Rule of Criminal Procedure 12(b)(3) lists more\nthan a dozen defenses or arguments that must be presented\nbefore trial, so that any error may be corrected (and the\nprosecutor can appeal an adverse decision without encoun-\ntering a problem under the Double Jeopardy Clause). See\nUnited States v. Nixon, 901 F.3d 918, 920–21 (7th Cir. 2018).\nDuplicity is among them. There is an escape hatch: “If a par-\nty does not meet the deadline for making a Rule 12(b)(3) mo-\ntion, the motion is untimely. But a court may consider the\ndefense, objection, or request if the party shows good\ncause.” Fed. R. Crim. P. 12(c)(3). The district judge stated\nthat Boliaux has not oﬀered an excuse for his delay. That\nremains true. The reply brief does not contend that Boliaux\nhad “good cause”—or indeed any cause—for raising a du-\nplicity argument only in mid-trial. The decision may well\nhave been strategic, deferring majers until it was too late for\nthe prosecutor either to amend the indictment or appeal\nfrom an adverse decision. This is exactly the kind of strategy\nthat Rule 12(b)(3) is designed to block.\n Not content with holding back a duplicity argument until\nmid-trial, Boliaux withheld a multiplicity argument until his\nopening appellate brief. Multiplicity means charging a single\ncrime in multiple counts. Boliaux tells us that he commijed\nat most one bank fraud, no majer how many checks he\n\f6 No. 18-1322\n\nwrote against insuﬃcient funds, making the six bank-fraud\ncounts multiplicitous. Yet multiplicity is among the majers\nthat must be raised before trial. Fed. R. Crim. P.\n12(b)(3)(B)(ii). Consideration of the argument now depends\nnot only on a demonstration of plain error (the standard for\nall contentions ﬁrst presented on appeal) but also on a\ndemonstration of good cause. Boliaux does not argue that he\nhad good cause—or any cause at all—for delay in making\nthis argument. We therefore do not consider it.\n One evidentiary contention requires a few words. John\nBrincat appeared for the prosecution as an expert witness on\nthe topic of ﬂoorplanning. He explained to the jury how\nthese loans are made and why lenders’ risk is increased by\nthe existence of multiple title certiﬁcates and multiple loans\nagainst a single vehicle. The district judge found this testi-\nmony proper under Fed. R. Evid. 702. Still, Boliaux contends\nthat the testimony should have been barred because Brincat\nacted as both an expert witness and a fact witness, a dual\nrole that may leave the jury confused about how to treat the\ntestimony. See, e.g., United States v. Je@, 908 F.3d 252, 267–68\n(7th Cir. 2018). The district court disagreed, stating: “The tes-\ntimony elicited by the government from witness Brincat was\nlimited to his role as an industry expert and did not stray\ninto fact-witness territory”. Boliaux contests this by observ-\ning that Brincat testiﬁed about how the whole ﬂoorplan-\nlending industry works, and Boliaux insists that because\nBrincat is employed by Automotive Finance Corp. (AFC),\none of the defrauded lenders, the jury likely would have un-\nderstood him to be a fact witness.\n The district judge did not abuse his discretion by per-\nmijing Brincat to testify. He did not describe any special fea-\n\fNo. 18-1322 7\n\ntures of AFC’s practices or any of the dealings between AFC\nand Boliaux. The jury surely understood Brincat to be testi-\nfying exclusively as an expert. We are surprised that the\nprosecutor would present Brincat as an expert, enabling the\ndefense to paint a vital witness as biased, but puzzling deci-\nsions do not make evidence inadmissible.\n Boliaux presents a few additional arguments, which do\nnot require discussion. They have been considered and are\nrejected.\n We promised earlier to return to how Boliaux has treated\nthe district court’s explanations for its decisions. Circuit Rule\n30(b)(1) requires every appellant to include, in an appendix\nto the brief, “[c]opies of any … opinions, orders, or oral rul-\nings in the case that address the issues sought to be raised.”\nCircuit Rule 30(d) adds: “The appendix to each appellant’s\nbrief shall contain a statement that all of the materials re-\nquired by parts (a) and (b) of this rule are included.”\nBoliaux’s brief, signed by Andrew S. Gable of Chicago, con-\ntains the required certiﬁcation. But it is false. The appendix\nomits the district court’s statement of its reasons for ﬁnding\nthe evidence suﬃcient, ﬁnding the duplicity argument (and\nthe proposed unanimity instruction) forfeited under Rule\n12(b), and permijing Brincat to testify. (The opinion ad-\ndresses other topics as well.) The appendix also omits sub-\nstantial parts of the district judge’s mid-trial discussions of\nthese and other issues. Was Gable hoping that we would not\ndiscover those rulings?\n False representations to the court of appeals have conse-\nquences. In civil litigation a false certiﬁcate of compliance\nwith Circuit Rule 30(a) and (b) leads to summary aﬃrmance\nor dismissal of the appeal. See, e.g., Urso v. United States, 72\n\f8 No. 18-1322\n\nF.3d 59, 61–62 (7th Cir. 1995); Mortell v. Mortell Co., 887 F.2d\n1322, 1327 (7th Cir. 1989); Teitelbaum v. Curtis Publishing Co.,\n314 F.2d 94, 95–96 (7th Cir. 1963); Sparrow v. Yellow Cab Co.,\n273 F.2d 1, 4 (7th Cir. 1959); Chicago & Eastern Illinois Ry. v.\nSouthern Ry., 261 F.2d 394, 400 n.7 (7th Cir. 1958). The client\nthen may be able to recover from counsel for malpractice.\nWe concluded in United States v. Smith, 953 F.2d 1060, 1068\n(7th Cir. 1992), that this would not be appropriate in criminal\ncases, where defendants have diﬃculty monitoring their\nlawyers’ performance—and where dismissal of the appeal or\nsummary aﬃrmance would lead straight to a decision ﬁnd-\ning that counsel had furnished ineﬀective assistance, which\nwould authorize a new appeal. It is best in criminal cases to\ngive the defendant plenary appellate review, as we have\ndone, and penalize the lawyer directly. See In re Galvan, 92\nF.3d 582 (7th Cir. 1996). See also Guentchev v. INS, 77 F.3d\n1036 (7th Cir. 1996) (same approach in immigration law).\n Galvan established $1,000 as the presumptive ﬁne for a\nviolation of Circuit Rule 30 in a criminal case. 92 F.3d at 584–\n85. See also, e.g., United States v. Evans, 270 F.3d 1076, 1085\n(7th Cir. 2001). Adjusting for inﬂation, $1,000 in 1996 is\nequivalent to $1,597 today. This implies that the presumptive\nﬁne should become $1,600.\n Counsel has 14 days to show cause why he should not be\nﬁned $1,600, and reprimanded, for his violation of Circuit\nRule 30(b) and his false statement under Circuit Rule 30(d).\n The judgment is aﬃrmed, and an order to show cause\nwill be issued.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367247/", "author_raw": "Frank Hoover Easterbrook"}]}	WOOD	EASTERBROOK	ST EVE	1	{"WOOD": ", Chief", "EASTERBROOK": ", Circuit", "ST EVE": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589994/	Published	1	0	0	2,019	2	[ { "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...
4,590,160	RED BARN MOTORS, INC., Et Al., Plaintiffs-Appellants, v. NEXTGEAR CAPITAL, INC., Defendant-Appellee.	Red Barn Motors, Inc. v. NextGear Capital, Inc.	2019-02-13	18-1409	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Wood, Rovner, Brennan", "parties": "", "opinions": [{"author": "Ilana Kara Diamond Rovner", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1409\nRED BARN MOTORS, INC., et al.,\n Plaintiffs-Appellants,\n v.\n\nNEXTGEAR CAPITAL, INC.,\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Southern District of Indiana, Indianapolis Division.\n No. 1:14-cv-01589-TWP-DML — Tanya Walton Pratt, Judge.\n ____________________\n\n ARGUED SEPTEMBER 7, 2018 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before WOOD, Chief Judge, and ROVNER and BRENNAN, Cir-\ncuit Judges.\n ROVNER, Circuit Judge. This appeal presents us with only\nthe narrow issue of whether the district court erred in rescind-\ning class certification. The defendant-appellee, NextGear\nCapital, Inc., formerly known as Dealer Services Corporation,\nprovided lines of credit for financing the operations of used\ncar dealerships. The plaintiffs Red Barn Motors, Inc., Plati-\nnum Motors, Inc. and Mattingly Auto Sales, Inc., operated\n\f2 No. 18-1409\n\nused car dealerships, and were solicited by NextGear to enter\ninto a contract called a Demand Promissory Note and Secu-\nrity Agreement (the “Agreement”), whereby NextGear would\nissue a line of credit for them to access in purchasing used ve-\nhicles at automobile auctions. Those agreements provided the\nplaintiffs with a revolving line of credit, called a floorplan\nagreement, to purchase vehicles at the auction which they\nsubsequently would sell at their dealerships.\n In the typical auction and financing transaction, a new car\ndealer provides a trade-in vehicle to an auction company,\nwhich presents the vehicle to used car dealers at an auction.\nIf a used car dealer’s bid is accepted, that dealer takes posses-\nsion of the vehicle. The dealer then either pays the auction\ncompany directly or utilizes an automotive financing com-\npany such as NextGear, which pays the auction company and\nprovides financing by means of the floorplan agreement to\nthe dealer for repayment. The auction company forwards the\ntitle to the entity that paid for the vehicle—either the used car\ndealer or the financing company. According to the plaintiffs,\nNextGear deviated from that sequence. It did not pay the auc-\ntion house at the time that possession was delivered, instead\npaying only after it received the title to the vehicles pur-\nchased. Although it could take as long as eight weeks for\nNextGear to receive that title and pay the money to the auc-\ntion company, NextGear nevertheless charged interest and\ncurtailment fees to the plaintiffs from the date of the initial\npurchase. The plaintiffs brought this action challenging that\nimposition of interest fees during the period prior to the re-\nceipt of title, when NextGear was not yet paying any funds to\nthe auction house. They sought class certification to pursue\nthat challenge on behalf of all other dealers who were subject\n\fNo. 18-1409 3\n\nto the same Agreement with NextGear and were charged\nsuch interest.\n Federal Rule of Civil Procedure 23(a) sets forth explicit re-\nquirements for a case to proceed as a class action:\n (1) the class is so numerous that joinder of all\n members is impracticable (numerosity);\n (2) there are questions of law or fact common\n to the class (commonality);\n (3) the claims or defenses of the representa-\n tive parties are typical of the claims or defenses\n of the class (typicality); and\n (4) the representative parties will fairly and\n adequately protect the interests of the class (ad-\n equacy of representation).\nChicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi-\ncago, 797 F.3d 426, 433 (7th Cir. 2015). In addition, one of the\nfour categories set forth in Federal Rule of Civil Procedure\n23(b) must be met in order for a case to proceed as a class ac-\ntion. The plaintiffs in this case assert that the case falls within\nRule 23(b)(3) which considers whether “questions of law or\nfact common to class members predominate over any ques-\ntions affecting only individual members, and … a class action\nis superior to other available methods for fairly and efficiently\nadjudicating the controversy.”\n The plaintiffs’ amended complaint included numerous\nclaims including breach of contract, constructive fraud, tor-\ntious interference with business relationships, unjust enrich-\nment, RICO violations, and RICO conspiracy. The district\ncourt granted class certification as to the breach of contract\n\f4 No. 18-1409\n\nclaim against NextGear and the substantive RICO claim\nagainst NextGear, Cox Automotive and John Wick pursuant\nto Federal Rule of Civil Procedure 23(a). In an extensive 30-\npage analysis, the court determined that the plaintiffs met all\nof the requirements of the Rule 23(a) factors—ascertainability,\nnumerosity, commonality, typicality, and adequacy of repre-\nsentation—and that the plaintiffs had also demonstrated un-\nder Rule 23(b)(3) that a class action was superior to other\nmethods of adjudication. Accordingly, on June 29, 2017, it\ngranted class status as to those claims.\n Approximately two weeks later, NextGear filed a Motion\nto Reconsider and/or Modify Class Certification Order. It ar-\ngued that the court failed to consider evidence and arguments\nsubmitted after the initial class certification briefing. Specifi-\ncally, NextGear maintained that the plaintiffs had asserted for\nthe first time in summary judgment briefing that the floorplan\nagreements are ambiguous on their face, and that under such\na theory courts must resort to extrinsic evidence on a plaintiff-\nby-plaintiff basis to determine the parties’ intent regarding\nthe contract. NextGear argued to the district court that “when\nambiguity in a contract has ‘open[ed] the door for extrinsic\nevidence,’ then ‘liability to the entire class for breach of con-\ntract cannot be established with common evidence.’” Dist. Ct.\nOrder on Pending Motions (1/12/2018) at 5, citing Avritt v. Re-\nliastar Life Ins. Co., 615 F.3d 1023, 1030 (8th Cir. 2010).\n In response, the plaintiffs argued that NextGear presented\nno new arguments that would warrant reconsideration, and\nthat the argument concerning ambiguous contracts and the\nimpact on class certification had already been presented in the\nDefendants’ Notice of Additional Authority and at oral argu-\nment on class certification. In addition, they argued that\n\fNo. 18-1409 5\n\nNextGear had mischaracterized their ambiguity argument.\nThe plaintiffs asserted that they continued to argue that the\ncontracts were unambiguous, and that only in the alternative\ndid they raise an argument of ambiguity. Moreover, under\nthat alternative theory of ambiguity, they maintain that the\ncourt would not be required to consider extrinsic evidence\nand that only common evidence would be required to resolve\nthe claims.\n Noting that it had the discretion to modify its certification\norder in light of subsequent developments in litigation, the\ncourt held that class certification was not appropriate. In stark\ncontrast to the extensive analysis in its decision granting class\ncertification, the court’s explanation for its decision to rescind\ncertification was terse, consisting, in its entirety, of the follow-\ning:\n The most important and significant develop-\n ment when considering the pending Motion to\n Reconsider is the Plaintiffs’ theory that the\n floorplan agreements forming the basis of their\n claims are ambiguous. The Court understands\n the Plaintiffs’ argument that the contracts are\n ambiguous on their face (patent ambiguity) and\n that such an ambiguity does not require consid-\n eration of extrinsic evidence, and in turn, does\n not require individualized proof. The Court\n agrees with the Plaintiffs that the contracts at is-\n sue are ambiguous; however, the Court agrees\n with the Defendants that ambiguity in the con-\n tracts requires consideration of extrinsic evi-\n dence, necessitates individualized proof, and\n undermines the elements of commonality and\n\f6 No. 18-1409\n\n predominance for class certification. Thus, class\n certification is not appropriate on the Plaintiffs’\n breach of contract claim. The Court directs the\n parties to its Order on Motions for Summary\n Judgment where the Court more fully reviews,\n analyzes, and discusses the parties’ arguments\n regarding ambiguity.\nId. at 8. Based on that reasoning, the court then proceeded to\ndetermine that class certification was unwarranted regarding\nthe substantive RICO claim as well.\n We review a district court’s decision to grant or deny cer-\ntification for abuse of discretion. Chicago Teachers Union, Local\nNo. 1, 797 F.3d at 433. We have recognized, however, that such\nreview, while deferential, “can and must also be exacting.” Id.\nA decision to deny or grant certification can have a consider-\nable impact on the playing field of litigation and requires a\nrigorous analysis. Id.; Bell v. PNC Bank, National Association,\n800 F.3d 360, 373 (7th Cir. 2015)\n The court’s denial of class certification lacks sufficient rea-\nsoning for our court, on review, to ascertain the basis of its\ndecision. Although the decision to grant class certification\nwas a model of clarity and thoroughness, analyzing the fac-\ntors in detail, the decision withdrawing class status provides\nonly the conclusion that an ambiguous contract “requires con-\nsideration of extrinsic evidence, necessitates individualized\nproof, and undermines the elements of commonality and pre-\ndominance for class certification.” Nor does the reference to\nits Order on Motions for Summary Judgment lend any in-\nsight. In that Order, the district court held that the floorplan\ncontracts were ambiguous as to when interest could begin to\naccrue, which required consideration of extrinsic evidence.\n\fNo. 18-1409 7\n\nThe court noted that the parties had designated evidence sug-\ngesting that various party representatives had conversations\nabout NextGear’s interest practices after the contracts were\nexecuted, but that evidence did not establish an undisputed\nfactual basis supporting either sides’ position as to the inter-\npretation of the contract or the parties’ intent. Accordingly,\nthe court deemed the matter inappropriate for summary\njudgment.\n Those holdings are insufficient to sustain the court’s as-\nsumption that commonality and predominance were lacking.\nNeither the categorization of the contract as ambiguous, nor\nthe prospect of extrinsic evidence, necessarily imperils class\nstatus. All parties concede that the floorplan contract in this\ncase is a standard form contract. And neither the plaintiffs nor\nthe defendants argue that the language in the contract has dif-\nferent meaning for different signatories; instead, all argue for\nan interpretation that would apply to all signatories of the\ncontract. In fact, with a form contract such as this one, uniform\napplication and interpretation of the clauses would be ex-\npected absent evidence that the form contracts in fact had a\nmeaning that varied from one signatory to another. Even if\nthe determination that the language is ambiguous as to when\ninterest could accrue opens the door to extrinsic evidence to\nascertain the intended meaning of that provision, the deter-\nmination of its meaning would apply to all signatories and\ntherefore would be capable of class-wide resolution.\n In fact, the court discussed that possibility in its initial de-\ntermination to certify the class. In analyzing the commonality\nfactor, the district court addressed the defendants’ argument\nthat certain questions, such as “whether NextGear made any\n\f8 No. 18-1409\n\nrepresentations to any putative class members about when in-\nterest would begin to accrue … must be proven separately as\nto each dealer, and thus, the answers can only be determined\non an individual, not a classwide, basis.” Dist. Ct. Entry on\nPlaintiffs’ Motion for Class Certification (06/29/2017) at 16.\nThe court rejected that argument. First, the court noted that\ncommonality requires a demonstration that class members\nhave suffered the same injury and held that the standard was\nmet because the plaintiffs had demonstrated that the class\nmembers “suffered the same alleged wrongful, premature\ncollection of interest and fees based on the same form contract\nand similar conduct by NextGear.” Id. at 18; see also Wal-Mart\nStores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). The court fur-\nther explained that “commonality exists where the ‘determi-\nnation of [the question] will resolve an issue that is central to\nthe validity of each one of the claims in one stroke,’ and where\nit will ‘generate common answers apt to drive the resolution\nof the litigation.’” (emphasis in original) Id., citing Wal-Mart,\n564 U.S. at 349–50.\n Therefore, when presented with the same issue in its ini-\ntial class certification decision—the ambiguity as to when in-\nterest would accrue—the court concluded that the ambiguity\ndid not prevent class certification because it was capable of a\ncommon answer. The court has not explained why a different\nconclusion to that question was reached in the Motion for Re-\nconsideration, instead mentioning only the need for extrinsic\nevidence.\n But the mere need for extrinsic evidence does not in itself\nrender a case an improper vehicle for class litigation. We have\nconsidered numerous cases in which the testimony of indi-\n\fNo. 18-1409 9\n\nviduals would be necessary to establish the meaning or exist-\nence of a policy, and the prospect of such individual testi-\nmony did not render class status improper. See, e.g., Bell, 800\nF.3d at 375 (discussing testimony of individuals which suffi-\nciently presented the issue of whether PNC had an unofficial\npolicy or practice that required employees classwide to work\noff-the-clock overtime hours); Phillips v. Sheriff of Cook County,\n828 F.3d 541 (7th Cir. 2016) (upholding decertification where\nevidence from individual detainees did not indicate a sys-\ntemic practice that could tie all of the claims together, but rec-\nognizing that the district court allowed certification of a nar-\nrower class where one common policy of staffing the jail with\nonly one dentist might constitute systemic deliberate indiffer-\nence). The proper focus for commonality is whether determi-\nnation of the question will yield common answers that could\nresolve the litigation. Wal-Mart, 564 U.S. at 349–50. Here, the\nclass was already narrowed to those who signed the specific\nform contract at issue here. With such a form contract, almost\nuniversally signed without negotiation or modification, there\nis no reason to think that the interpretation of the provision\nwill vary from one signatory to another, and therefore the is-\nsue is one that is capable of a common answer and for which\nthat common question predominates over questions affecting\nindividual class members. The district court, to conclude oth-\nerwise, would have to identify why that extrinsic evidence\nwould lead to another conclusion. But here, although the case\nwas nearing the trial date, we have no indication as to what\nevidence the court believed would render class certification\nimproper. See Bell, 800 F.3d at 377, quoting Szabo v. Bridgeport\nMachs, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (“[i]f there are\nmaterial factual disputes that bear on the requirements for\nclass certification, the court must ‘receive evidence if only by\n\f10 No. 18-1409\n\naffidavit and resolve the disputes before deciding whether to\ncertify the class.’”)(emphasis omitted). Absent a more thor-\nough explanation of its reasoning, we cannot uphold the de-\ncision decertifying the class.\n The decision of the district court is VACATED and the\ncase REMANDED for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367413/", "author_raw": "Ilana Kara Diamond Rovner"}]}	WOOD	ROVNER	BRENNAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590160/	Published	1	0	0	2,019	2	[ { "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...
4,590,205	UNITED STATES of America, Plaintiff-Appellee, v. Samuel J. YARBER, Defendant-Appellant.	United States v. Samuel Yarber	2019-02-13	18-1469	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Manion, Brennan, Scudder", "parties": "", "opinions": [{"author": "SCUDDER, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1469\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nSAMUEL J. YARBER,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 2:17-cr-20007 — Colin S. Bruce, Judge.\n ____________________\n\n ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 13, 2019\n ____________________\n\n Before MANION, BRENNAN, and SCUDDER, Circuit Judges.\n SCUDDER, Circuit Judge. Police in Champaign, Illinois\nobtained warrants to search two apartments connected to\nSamuel Yarber. The searches turned up drugs and handguns\nand ultimately led to Yarber’s convictions for federal narcotics\nand ﬁrearms oﬀenses. Along the way, Yarber challenged the\nwarrant to search one of the apartments as unsupported by\nprobable cause. While the warrant aﬃdavit fell short in one\nrespect—it did not establish that Yarber lived at the apartment\n\f2 No. 18-1469\n\nand thus could not support an inference that evidence of his\ndrug-dealing would be kept there—it nonetheless contained\nother facts suﬃcient to establish probable cause. And in any\nevent the police relied in good faith upon the warrant. On this\nrecord, then, we aﬃrm.\n I\n Law enforcement undertook an investigation after\nreceiving information from a conﬁdential source that Yarber\nwas selling drugs in the Champaign-Urbana area. The\nconﬁdential source bought cocaine from Yarber on four\nseparate occasions near the same intersection in Champaign.\nThe police observed Yarber before and after each transaction.\nAnd each time, Yarber drove a white Dodge Charger, which\nwas registered to his girlfriend. Immediately following two of\nthe controlled buys, Yarber drove to his girlfriend’s apartment\nin Champaign. The police surveilled the apartment on three\nadditional occasions, and all three times saw the white Dodge\nCharger parked in front. On one occasion they saw Yarber exit\nthe Dodge Charger and go inside the apartment.\n All of this information was set forth in an aﬃdavit pre-\nsented to a Champaign County Circuit Court judge in support\nof the police’s request for a search warrant. The attesting of-\nﬁcer also stated that, based on his training and experience,\ndrug dealers often use vehicles registered to someone else to\nevade detection by law enforcement. The Champaign County\njudge found that these facts established the requisite probable\ncause to search the Champaign apartment and issued the war-\nrant. By its terms, the warrant authorized the police to search\nfor, among other things, drugs, drug paraphernalia, and sus-\npected proceeds from drug transactions.\n\fNo. 18-1469 3\n\n The primary issue in this appeal turns on what the aﬃda-\nvit did not say. Nowhere did the aﬃdavit state that Yarber\nlived at the Champaign apartment or even that he stayed\nthere overnight. To the contrary, it referred to an altogether\ndiﬀerent apartment—located in Urbana, Illinois—as Yarber’s\n“residence.” Yarber seized on this omission and moved to\nsuppress the evidence discovered during the search of the\nChampaign apartment. He argued that, by establishing no\nnexus between the drug dealing activities and the apartment,\nthe aﬃdavit failed to establish probable cause.\n The district court thought otherwise. The court’s primary\nreason for ﬁnding probable cause was that the police con-\nnected Yarber and the white Dodge Charger to the apartment\nand saw him drive there immediately after two of the four\ncontrolled buys. The district court further observed that the\nChampaign County judge who issued the search warrant\ncould have inferred that Yarber kept evidence of his drug\ndealing in his girlfriend’s apartment to reduce the possibility\nof connecting him to illegal activity. Alternatively, the district\ncourt determined that the exception of United States v. Leon\nwould apply because the police acted in good faith when\nseeking and executing the warrant. See 468 U.S. 897, 920–22\n(1984).\n After the court denied his motion to suppress, Yarber\npleaded guilty to drug possession with the intent to distrib-\nute, 21 U.S.C. § 841(a)(1) & (b)(1)(C), and to possession of a\nﬁrearm by a felon, 18 U.S.C. § 922(g). He proceeded to trial on\nthe remaining charge of possession of a ﬁrearm in furtherance\nof a drug traﬃcking oﬀense, 18 U.S.C. § 924(c), and was con-\nvicted by a jury. The district court imposed a sentence of 420\nmonths’ imprisonment.\n\f4 No. 18-1469\n\n II\n A\n In determining the suﬃciency of a warrant aﬃdavit, we\nfocus on the totality of the information presented to the\nChampaign County judge. See United States v. Peck, 317 F.3d\n754, 756 (7th Cir. 2003). We aﬀord “great deference” to the\nprobable cause ﬁnding made by the judge who evaluated the\nwarrant application in the ﬁrst instance and will uphold that\ndetermination so long as there is a “substantial basis” for con-\ncluding “that a search would uncover evidence of wrongdo-\ning.” Illinois v. Gates, 462 U.S. 213, 236 (1983). So, too, have we\nconsistently held that “probable cause ‘does not require direct\nevidence linking a crime to a particular place.’” United States\nv. Zamudio, 909 F.3d 172, 175 (7th Cir. 2018) (quoting United\nStates v. Anderson, 450 F.3d 294, 303 (7th Cir. 2006)). Rather, a\nwarrant aﬃdavit “need only contain facts that, given the na-\nture of the evidence sought and the crime alleged, allow for a\nreasonable inference that there is a fair probability that evi-\ndence will be found in a particular place.” Id. at 176 (quoting\nUnited States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010)).\n While this case is far from open and shut, we conclude that\nthe aﬃdavit provided a suﬃcient basis for a ﬁnding of\nprobable cause to search the Champaign apartment. Yarber\nused his girlfriend’s white Dodge Charger for each of the four\ncontrolled buys. Surveillance also established that the Dodge\nCharger was parked outside the apartment on three\noccasions, and that Yarber exited the car and entered the\napartment on one of those occasions. Finally—and most\nsigniﬁcantly—Yarber drove directly to the apartment after\ntwo of the four controlled buys. This was suﬃcient to search\nthe apartment for the proceeds of those transactions. The\n\fNo. 18-1469 5\n\nChampaign County judge was entitled to draw the reasonable\ninference that an experienced drug dealer might maintain\ncash proceeds from drug sales within the apartment he visited\nimmediately after the sales—an apartment rented to his\ngirlfriend and tied to the car he used to conduct his drug\nsales—rather than on his person or in a car.\n For its part, the government urges us to rely on a line of\ncases that permit an inference that “evidence of drug dealing\nis likely to be found where the dealer lives.” United States v.\nScott, 731 F.3d 659, 665 (7th Cir. 2013) (citing United States v.\nSingleton, 125 F.3d 1097, 1102 (7th Cir. 1997)). Yarber lived at\nthe Champaign apartment, the government’s argument runs,\nand therefore it was reasonable to infer that evidence of\nYarber’s drug dealing was likely to be found there. This\nargument misﬁres on both the facts and law.\n As Yarber’s counsel rightly (and very ably) emphasizes,\nnothing within the aﬃdavit itself gave any indication that\nYarber lived in the Champaign apartment. Indeed, the\nopposite is true: the aﬃdavit expressly referred to another\nproperty, in Urbana, as “[Yarber’s] residence.” The\ngovernment’s argument—premised on Yarber’s later\nassertion that he lived at the Champaign apartment—\ndisregards the well-established tenet that “[w]here, as here,\nan aﬃdavit is all that was presented to the issuing judge, the\nwarrant's validity rests on the strength of the aﬃdavit.”\nAnderson, 450 F.3d at 302–03 (citing Peck, 317 F.3d at 755). Put\ndiﬀerently, the fact that Yarber may have lived both in an\napartment in Urbana and at other times with his girlfriend in\nher Champaign apartment was not before the Champaign\nCounty judge. On this record, then, the inference that drug\n\f6 No. 18-1469\n\ndealers keep evidence of drug dealing where they live was\nunavailable to the police.\n Instead, our conclusion that probable cause existed relies\non a combination of other facts: the search warrant expressly\nauthorized a search for the proceeds of drug sales, Yarber\nwent directly to his girlfriend’s apartment after two of the\ncontrolled buys, and additional surveillance tied Yarber to his\ngirlfriend’s apartment and car.\n In no way does this mean that any place to which a sus-\npected drug dealer travels after a drug sale is subject to a\nsearch. But there is much more here than an isolated visit to\nsome random apartment after a drug sale. Yarber used his\ngirlfriend’s vehicle to sell drugs on four separate occasions,\nand surveillance placed the vehicle at her apartment multiple\ntimes. When combined with the fact that Yarber went directly\nto the apartment after two of the controlled buys, the facts\nwere suﬃcient to support a ﬁnding of probable cause to\nsearch the apartment for drug proceeds.\n B\n In any event, the suppression of the evidence obtained\nduring the search is not warranted because Leon’s good-faith\nexception applies here. Under this exception, the fruits of a\nsearch based on an invalid warrant may be admitted if the of-\nﬁcers who executed the search relied upon the warrant in\ngood faith. See United States v. Orozco, 576 F.3d 745, 750 (7th\nCir. 2009). And an oﬃcer’s decision to obtain a warrant cre-\nates a presumption that the oﬃcer acted in good faith. See id.\n Yarber attempts to rebut this presumption by contending\nthat the oﬃcers should have known that the aﬃdavit was de-\nﬁcient because it established no connection between the\n\fNo. 18-1469 7\n\nalleged illegal conduct and the location to be searched. We\ndisagree. Although silent with respect to whether Yarber lived\n(at least some of the time) at the Champaign residence—and\nlacking in that particular respect—the aﬃdavit otherwise pre-\nsented suﬃcient facts to tie his drug-dealing activities to the\napartment. The warrant on the whole was not so deﬁcient in\nestablishing probable cause as to preclude reasonable, good-\nfaith reliance on it by the police. See Leon, 468 U.S. at 899.\n III\n We owe a ﬁnal observation in response to Yarber’s argu-\nment that his drug-traﬃcking count and felon-in-possession\ncount should have been grouped for the purposes of compu-\nting his advisory sentencing range under the Sentencing\nGuidelines. See U.S.S.G. § 3D1.2(c). He acknowledges that his\nposition is foreclosed by United States v. Sinclair, which held\nthat a drug-distribution count and a felon-in-possession count\ncannot be grouped when a conviction under 18 U.S.C. § 924(c)\nis also present, but seeks to preserve it for en banc review or\nan appeal to the Supreme Court. See 770 F.3d 1148, 1159 (7th\nCir. 2014). Yarber may consider his argument preserved.\n Accordingly, we AFFIRM.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367458/", "author_raw": "SCUDDER, Circuit Judge"}]}	MANION	BRENNAN	SCUDDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590205/	Published	1	0	0	2,019	2	[ { "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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