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945 F.2d 409 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Claudio Roger MARTINEZ, Flor Mary Restrepo, Olga NaranjoGarcia, Luz Marina Restrepo, Juan Casanova, Carlos AlbertoMontoya, Janeth Naranjo Garcia, Faber Antonio Restrepo, andLuis Fernando Monsalve, Defendants-Appellants. Nos. 89-50529, 89-50535, 89-50536, 89-50537, 89-50538,89-50540, 89-50541, 89-50542 and 89-50543. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 1991.Decided Oct. 1, 1991. Before BOOCHEVER, KOZINSKI and O'SCANNLAIN, Circuit Judges. 1 MEMORANDUM* 2 Claudio Roger Martinez, Flor Mary Restrepo, Olga Naranjo Garcia, Luz Marina Restrepo, Juan Casanova, Carlos Alberto Montoya, Janeth Naranjo Garcia, Faber Antonio Restrepo, and Luis Fernando Monsalve were convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute 430 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Janeth, Olga, Carlos, Faber, Flor and Luz (we refer to all of the appellants by their first names as some of them have the same last name) were convicted of possession with intent to distribute an additional 100 kilograms of cocaine, and Flor was convicted of using a minor to assist in the commission of drug offenses, in violation of 21 U.S.C. § 845(b) (now 21 U.S.C. § 861). They all appeal their convictions raising a myriad of issues.1 We affirm. DISCUSSION 1. Sufficiency of the Evidence 3 In reviewing the sufficiency of the evidence, we must determine whether a reasonable jury, after viewing the facts in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989). In February 1989, an informant's tip led police first to an Encino employment agency, then to an East Palm address in Burbank where the officers initially focused on the suspicious activities of Faber and Carlos. Specifically, they were observed engaging in counter-surveillance driving, securing vehicles later used in car switches, and making "beeper calls." Continued surveillance led police to observe Flor and Luz, then Claudio, and finally Janeth and Olga engaging in similar behavior. 4 On April 10, Faber and Carlos drove separate cars in tandem to several pay phones where they made calls. At their second stop, Flor, Luz, and a minor (the minor who was the object of Flor's conviction) drove up, talked with Faber and Carlos, and drove off in a counter-surveillance manner. Luz used a cellular phone while Flor drove. Flor then dropped Luz off at a house located on Marseille Street, and Flor and the minor continued driving around, stopping twice so the minor could make calls from pay phones. 5 Flor and the minor then drove down an alley where they met Claudio who was driving a car which the police previously had seen Carlos and Faber using. Claudio then drove to the Marseille house, while Flor drove through a grocery store parking lot. 6 Meanwhile, Claudio walked into the Marseille house, passing Luz on her way out. Flor then picked Luz up on a street away from the house. Claudio drove a van out of the garage to the same grocery store parking lot. While Claudio got out of the van and walked about twenty feet from it to give the van keys to Juan, who in turn gave the keys to Luis, a police officer walked by the van and observed multi-colored packages of what he recognized as kilogram quantities of cocaine behind the driver's seat. The officer then gave the arrest signal. Claudio had already begun heading down the street when he was arrested, Juan sat in the pick-up truck he and Luis had driven to the parking lot, (among other things, a cellular phone was recovered from the truck) and Luis was preparing to start the van. 7 Police subsequently found 430 kilograms of cocaine in the van, some in a plastic bag, and the rest in boxes. Police returned to the Marseille house after the arrests, where they observed Janeth and Olga. Janeth was arrested after she drove up to the house, walked in, left and started driving away. Olga was arrested as she was leaving the house. She carried the same bag containing a cellular phone which police had seen Flor carrying earlier. The bag also contained among other things a rent receipt issued to Janeth and Olga for the Marseille house. 8 Later that day, police arrested Flor, Luz and Carlos at an address which was written on an envelope which the police subsequently found in the van. Even later, police found an additional 100 kilograms of cocaine at the Prince Circle address. The next day, police arrested Faber at the East Palm address. 9 a. Conspiracy 10 The elements of conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive act. United States v. Litteral, 910 F.2d 547, 550 (9th Cir.1990). Once the existence of a conspiracy is established, evidence of only a slight connection is necessary to support a conviction of knowing participation in that conspiracy. Id. More than sufficient evidence supports the conspiracy convictions of all of the appellants. 11 The jury could reasonably infer an agreement to possess and distribute cocaine from the attempted exchange of the large quantity of cocaine. The attempted exchange also constituted the requisite overt act. Appellants' sufficiency argument focuses on the third element, the requisite intent. In this case, the requisite mental state is intent or knowledge. 21 U.S.C. § 841(a) (1988). Claudio, Juan and Luis' claim that a reasonable jury could not find that they did not know the van contained cocaine is meritless. The jury could reasonably infer, based on the value and quantity of the cocaine, that the three men knew the van was filled with cocaine and that they intended to distribute it. See United States v. Meyers, 847 F.2d 1408, 1414 (9th Cir.1988); cf. United States v. Sanchez-Lopez, 879 F.2d 541, 555 (9th Cir.1989) (price and quantity of cocaine highly relevant to establish appellants' knowledge of cocaine in car and intent to distribute cocaine). 12 Similarly, the jury could reasonably infer that Faber, Carlos, Flor and Luz were knowing participants in the conspiracy, based on these appellants' activities leading up to the April 10 drug exchange. They essentially claim that there was no link between the counter-surveillance activity and the ultimate possession of drugs in the van. The bulk of their argument is factual, and we must view the evidence in the light most favorable to the government. Although the jury could have drawn favorable inferences from the evidence, the jury chose not to do so. The evidence from which it drew the ultimate inference that Faber, Carlos, Flor and Luz were participating in the drug conspiracy included (1) counter-surveillance driving, (2) car switches, (3) telephone records of calls between the various vehicles, (4) Flor's interaction with Claudio the day of the bust, (5) Luz's entry into the Marseille house the day of the bust, (6) interaction with Janeth and Olga, the listed tenants of the house in which the cocaine was stored, (7) cash purchases of cars, (8) registration of cars to false names and addresses, and (9) paper found in the van with some of their names on it. This evidence was sufficient to persuade a jury beyond a reasonable doubt that Faber, Carlos, Flor and Luz had at least a slight connection to the conspiracy. Cf. United States v. Sai Keung Wong, 886 F.2d 252, 254, 257-58 (9th Cir.1989) (evidence was sufficient to support convictions of conspiracy, possession, and importation of heroin despite little direct communication among some defendants). Likewise, as for Janeth and Olga, among other evidence, they rented the two houses in which cocaine was stored, they were present at one of the houses after Claudio, Juan and Luis were arrested, and they had been seen engaging in the counter-surveillance driving with Claudio. This evidence was sufficient to persuade a jury beyond a reasonable doubt that they had at least a slight connection to the conspiracy. 13 b. Possession 14 Once there is sufficient evidence of knowing participation in a conspiracy, defendants are responsible for the substantive offenses committed by their co-conspirators in	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Suloff, 2019-Ohio-4607.] COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2018 AP 10 0032 TIMOTHY J. SULOFF Defendant-Appellant O P I N IO N CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2016 CR 04 0127 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 6, 2019 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant MICHAEL J. ERNEST GEORGE URBAN Assistant Prosecuting Attorney 116 Cleveland Avenue, NW – Ste. #808 Tuscarawas County Canton, Ohio 44702 125 East High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2018 AP 10 0032 2 Hoffman, J. {¶1} Appellant Timothy Suloff appeals the judgment entered by the Tuscarawas County Common Pleas Court convicting him of four counts of burglary (R.C. 2911.12) and two counts of theft (R.C. 2913.02), and sentencing him to an aggregate term of incarceration of twelve years. Appellee is the state of Ohio. STATEMENT OF THE FACTS AND CASE {¶2} On January 6, 2016, Terry Miller arrived at his home in Stonecreek, Ohio, at about 4:00 p.m., and discovered the kitchen door had been pried open. The door had been installed in the last week or two, and had been cleaned by his wife Elizabeth shortly before the break-in. Terry Miller called the Sheriff’s Office to report the suspected break- in, and called one of his neighbors. The neighbor reported a loud, tan-colored truck in the area around 3:45 p.m. When Elizabeth Miller returned home, she discovered her jewelry box with all of her jewelry was missing, as well as two wooden boxes and a container of coins. She estimated the value of the jewelry at $3,000. {¶3} Deputy Troy Beckley of the Tuscarawas County Sheriff’s Department reported to the scene. He photographed footprints in the snow on the stairs leading to the broken kitchen door, which he photographed. He noticed four fingerprints in the middle of the glass window on the broken door. The prints were lifted and sent to the Ohio Bureau of Criminal Investigation (BCI) for analysis. The fingerprints were determined to be left by Appellant. {¶4} Lt. Jeff Moore of the Tuscarawas County Sheriff’s Department questioned Appellant about the burglary at the Miller home. Appellant denied breaking into the home, and when shown photographs of the home claimed he had never seen the home. Lt. Moore presented Appellant with the fingerprint report, which Appellant studied. After Tuscarawas County, Case No. 2018 AP 10 0032 3 reading the report, Appellant nodded his head up and down. During further conversation about the burglary, Appellant indicated he was remorseful. {¶5} Chris and Cindy Goehring left their home in Dover, Ohio, on April 1, 2016, to go camping. They returned home around 11:15 a.m. on April 2. When they opened their garage door, they realized the door leading from the garage to the kitchen was open. When they entered their home, they found broken glass, and it appeared someone broke the glass on the French doors at the back of the house, reached inside, and unlocked the dead bolt. The couple called 911. {¶6} The Goehrings’ closet doors and dresser drawers were open, and Cindy Goehring’s jewelry box was missing. Along with jewelry items with personal value, a ruby ring which had a diamond missing, a charm bracelet, and two tennis bracelets were in the stolen box. Lt. Moore contacted Cindy Goehring later, and she was able to identify two pieces of jewelry taken with the jewelry box: the ruby ring with a diamond missing, and a chain from which she had previously removed a pendant. {¶7} Between 3:30-4:00 p.m. on April 4, 2016, Neil Parrot returned home to his Strasburg residence after work to find glass on his garage floor. The window at the back door to the garage had been broken, and someone had broken the door leading into the house and left it open. Parrot found glass scattered throughout the kitchen, closet doors left open, and a jewelry armoire belonging to his wife, Elaine, had been ransacked in the bedroom. Jewelry, gift cards, and cash were missing from the armoire, and three iPads, including one belonging to Parrot’s employer Tuslaw Schools, were missing. Some of his pants were also missing, along with a pillowcase from the bed. Tuscarawas County, Case No. 2018 AP 10 0032 4 {¶8} While investigating at the Parrot residence, Deputy Lincoln Troyer noticed two sets of foot impressions in the mulch outside the window. A path of footprints led from the Canton Water Department to the back side of the Parrot residence. While there were several homeless people living in tents by the river near the house, the footprint trail did not lead directly from the tents. {¶9} In the morning of April 11, 2016, Cathy Sprang exited her bathroom at her home outside Strasburg to find a man standing in her living room. She yelled, “Who the hell are you and what are you doing in my home?” Tr. (II) 192. The man ran out the back door. She described the man as about 5’5” tall, skinny, with dark skin. Tr. (II) 193. Because he was wearing a hoodie, she could only see part of his face. She saw the man drive away in a white car. Deputy Rick Morrison responded to Cathy’s 911 call, and lifted footprints from a Fila tennis shoe from Sprang’s kitchen floor. Cathy Sprang was unable to identify Appellant later from a photo lineup or later in court. {¶10} Theresa Stith resides outside of Bolivar. At 9:00 a.m. on April 11, 2016, she was sitting in her living room. She saw a man, who she later identified as Appellant, approach her front door and look in the window with his hands cupped over his eyes. When he saw her, his eyes got big and he smiled and waved at her. Stith opened her front inner door, leaving the storm door closed, and asked Appellant if she could help him. He stated he was looking for McDugal Battery and stopped for directions. She asked why he would come to her home asking for directions, because her home sits on a hill about a quarter of a mile from the road, and is not visible from the road. He replied he was lost, and did not know what to do. Stith told Appellant the only battery place in Bolivar is Harris Tuscarawas County, Case No. 2018 AP 10 0032 5 Battery, and gave him directions. Stith identified Appellant in court as the man she encountered at her home on April 11. {¶11} Stith was unable to obtain Appellant’s license plate number, so she got in her truck to follow him. She did not see him at Harris Battery, but saw the white car Appellant traveled in driving down the road. She was able to get a license plate number, which she gave to police. {¶12} After running the license plate provided by Stith, deputies discovered the car belonged to Appellant. A search warrant was executed for Appellant’s home. Appellant was wearing Fila tennis shoes at the time police went to the home. During the search, police found the iPad belonging to Tuslaw Schools taken from the Parrot home. They also found jewelry in Appellant’s home. {¶13} Lt. Moore interviewed Appellant about the Goehring and Parrot burglaries, and he denied any knowledge or involvement in the burglaries. {¶14} Appellant was indicted by the Tuscarawas County Grand Jury as follows: Count 1 – burglary of the Miller residence Count 2 – theft from the Miller residence Count 3 - burglary Count 4 -	{ "pile_set_name": "FreeLaw" }
131 F.3d 144 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Bakari Lu ADISA, Appellant.UNITED STATES of America, Appellee,v.Izih LENARD, Jr., Appellant. Nos. 97-2580EA, 97-2649EA. United States Court of Appeals, Eighth Circuit. Submitted: Nov. 18, 1997Filed: Nov. 26, 1997 Before FAGG, WOLLMAN, and HANSEN, Circuit Judges. PER CURIAM. 1 Bakari Liu Adisa and Izih Lenard, Jr. appeal their convictions and sentences for bank robbery and related weapons charges. Having reviewed the record and the parties' briefs, we conclude that an extensive discussion is not warranted. First, the district court properly classified Adisa's conviction for a racketeering conspiracy predicated on an underlying series of four armed robberies and a hired shooting as a serious violent felony for sentencing purposes under 18 U.S.C. § 3559(c) (1994). Second, the district court did not abuse its discretion in denying Adisa's request for a court-appointed psychiatric expert. Third, Lenard's assertions that a felony conviction expunged under Arkansas state law could not be used as the predicate for Lenard's conviction as a felon in possession of a weapon, that the government failed to produce sufficient evidence to support the jury's verdicts, and the district court improperly enhanced his sentence for reckless endangerment and for obstruction of justice either are unsupported by the record, otherwise without legal merit, or both. Having rejected Adisa's and Lenard's contentions, we affirm their convictions and sentences. See 8th Cir. R. 47B. 2 A true copy. Attest: 3 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00054-CV ______________________________ Â Â IN THE INTEREST OF C. G. B., a/k/a M. G. K., AND J. R. B., a/k/a R. R. K., CHILDREN Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â On Appeal from the 76th Judicial District Court Titus County, Texas Trial Court No. 30,610 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss O P I N I O N Â Â Â Â Â Â Â Â Â Â Â Â For almost two years Wade and Debbie Kludt served as foster parents for C.G.B. and J.R.B., placed in their home by the Texas Department of Family and Protective Services. But the Kludts' hopes to adopt the children were first delayed, long beyond the required and customary time periods, and then were interrupted when the Department removed the children from the Kludt home. That removal was based on Department administrative findings that Debbie Kludt had inflicted a blunt force trauma on C.G.B. and then neglected the child's medical needsâfindings contained in a Department letter dated May 21, 2003, but contradicted by the Kludts, who maintained C.G.B. was injured in a bicycle accident. The Kludts ultimately asked the trial court to name them, rather than the Department, managing conservators of the two children. Mediation proved futile. Over a year after the children had been removed from the Kludts' home, the trial court was finally able to bring the Kludts' request to a hearing. The court denied the Kludts possession of the children, because by contract the Department could remove the children from the Kludts' home without cause and because the children, by the time of the hearing, had been out of the Kludts home for over a year. The trial court, however, directed at the Department some strongly-worded negative findings, which are not relevant to this appeal; ruled the Department's administrative findings against the Kludts were unfounded; and entered a number of orders, only two of which are challenged in this appeal. Â Â Â Â Â Â Â Â Â Â Â Â The Department appeals, asking only that we strike from the trial court's order of April 8, 2004, the parts of the order exonerating the Kludts "from any wrongdoing toward" C.G.B. and J.R.B. and ordering the Department "to expunge from its records and its computer system the administrative findings contained in the letter dated May 21, 2003 and signed by Angela L. Nowell." The Department asserts that, once the trial court found the Kludts lacked standing, the trial court had no subject-matter jurisdiction to exonerate the Kludts or to order the Department's records expunged. We disagree and conclude the trial court had authority to enter its order because (1) the Kludts had standing, and (2) even if the Kludts lacked standing, the trial court had inherent power to enter the order. The Kludts Had Standing Â Â Â Â Â Â Â Â Â Â Â Â Ordinarily, standing must be established before a court will have the subject-matter jurisdiction essential to its power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553â54 (Tex. 2000). Here, the Kludts had standing under Section 102.003(a)(12) of the Texas Family Code, which provides that a suit seeking modification of the parent-child relationship may be filed by "a person who is a foster parent of a child placed by the Department . . . in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition." Tex. Fam. Code Ann. Â§ 102.003(a)(12) (Vernon Supp. 2004â2005). Â Â Â Â Â Â Â Â Â Â Â Â The children were foster children in the Kludts' home from the time the Department placed them there, July 17, 2001, until the Department removed them April 2, 2003âa period of over twenty-one months. On June 19, 2003, seventy-eight days after the Department removed the children from their home, the Kludts filed their petition to modify. Therefore, pursuant to Section 102.003(a)(12), the Kludts had standing. The trial court erred in concluding they had none. Because the Kludts had standing, the trial court's order can be sustained on that basis. The Court Had Inherent Power To Enter the Order Â Â Â Â Â Â Â Â Â Â Â Â But even if the Kludts had no standing to seek conservatorship of the children, the trial court clearly has a continuing statutory duty to oversee the children's case, including the Department's supervision of them. Â Â Â Â Â Â Â Â Â Â Â Â For example, the supervising court must review the conservatorship appointment of the Department or another agency and the substitute care thereunder. Tex. Fam. Code Ann. Â§Â 263.002 (Vernon 2002). The Department must create a "service plan" for each child in its custody within forty-five days after the court renders a temporary order appointing it temporary managing conservator. Tex. Fam. Code Ann. Â§ 263.101 (Vernon 2002). The plan must be filed with the court. Tex. Fam. Code Ann. Â§ 263.105(a) (Vernon 2002). In the plan, the Department must set out its goals for the child, specifying how it intends to seek a "permanent safe placement" for the child, whether by termination and placement for adoption, by return to their family, or by other means. Tex. Fam. Code Ann. Â§ 263.102 (Vernon 2002). The plan is explicitly subject to review by the court of continuing jurisdiction over the child. Tex. Fam. Code Ann. Â§ 263.105 (Vernon 2002). Â Â Â Â Â Â Â Â Â Â Â Â The Department must prepare a "permanency plan" for each child. Tex. Fam. Code Ann. Â§ 263.3025 (Vernon 2002). The trial court must review the Department's permanency progress reports Â in Â connection Â with Â the Â "permanency Â plan" Â created Â for Â each Â child. Â Tex. Â Fam. Â Code Ann. Â§ 263.303 (Vernon 2002). The trial court's hearings must be held no less frequently than as set out by statute. See Tex. Fam. Code Ann. Â§Â§ 263.304, 263.305 (Vernon 2002). The statutory scheme sets out a number of things that must be done by the trial court, including reviewing the appropriateness of the current placement; determining the plans, services, and orders needed to ensure that a final order is timely rendered; deciding whether the Department has made reasonable efforts to finalize the permanency plan; and projecting a likely date for the child to be placed for adoption. See Tex. Fam. Code Ann. Â§Â 263.306 (Vernon 2002). At permanency hearings	{ "pile_set_name": "FreeLaw" }
209 Cal.App.2d 647 (1962) SHELLEY R. COTHRAN, Individually and as Executor, etc., Plaintiff and Respondent, v. THE TOWN COUNCIL OF LOS GATOS, Defendant and Appellant. Civ. No. 19919. California Court of Appeals. First Dist., Div. One. Nov. 19, 1962. J. Rainey Hancock for Defendant and Appellant. Everett P. Rowe for Plaintiff and Respondent. SULLIVAN, J. This is an appeal by The Town Council of Los Gatos from a judgment granting respondent's petition for a writ of mandate and commanding appellant to terminate certain annexation proceedings initiated pursuant to the Annexation of Uninhabited Territory Act of 1939. (Gov. Code, 35300-35326.) [1] The basis of the above judgment was a finding that on June 6, 1960, the day such proceedings were initiated by appellant (see Gov. Code, 35310) there were 12 registered voters residing within the territory proposed to be annexed. Since under the applicable statute as it then read, "territory shall be deemed uninhabited if less than twelve registered voters reside within it at the time of ... the institution of proceedings on motion of the city legislative body" (Gov. Code, 35303; emphasis added), the court concluded that the territory in question was not uninhabited, that appellant in initiating the proceedings exceeded its jurisdiction and that the writ should issue to terminate them. [fn. 1] At the trial the parties stipulated and the court found that 651 eight specified persons were registered voters residing within the territory on June 6, 1960. In addition, the court found and concluded that Oliver F. Hitchcock and Marie Hitchcock, husband and wife, and Joseph A. Rogers and Linda L. Rogers, husband and wife, were also registered voters residing there on said date, thereby bringing the total number of such persons to 12. It is around the last four persons that the present controversy revolves and it is against the findings and conclusions pertaining to them, that appellant directs its attack. We therefore proceed to determine, separately as to each of the above married couples, whether the court's determination that they were registered voters residing within the territory on the crucial date is sustained by the evidence and the law. Oliver F. and Marie Hitchcock The Hitchcocks owned two contiguous parcels of land. One consisted of approximately 14 acres, abutting the boundary line of the territory proposed for annexation, but lying wholly outside of it. The other consisted of approximately 29 acres, also abutting the above boundary line, but lying wholly inside of it. The 14-acre parcel was in section 23 (T.8 S. R.1 W-M.D.B. & M.) and the 29-acre parcel in section 24. The section line, therefore, and the proposed annexation boundary line which followed it in this area, ran between the two parcels. The two parcels were acquired by the Hitchcocks at different times and by different deeds. They were assessed by the County of Santa Clara according to different code areas and the taxes levied thereon billed to the Hitchcocks by separate tax statements. The Hitchcocks reside at 15060 Kennedy Road. While both parcels abut this road on the north, the Hitchcock home is located on the smaller parcel and about 400 feet from and outside of the proposed boundary line. At the time they built this home, however, in 1955, the Hitchcocks had already acquired the full acreage of both parcels. Mr. Hitchcock testified that aside from the fact that "[t]here's an old broken-down fence between the properties" no longer in repair, there was no other "physical mark" indicating the line between the parcels and no "physical barrier such as a mountain ridge or a stream" dividing them. He further stated that he obtained his water supply from the larger parcel, that both parcels were tied together with power lines and pipe lines, that he lived on the entire 43 acres and that he considered the "whole unit" of both parcels as his 652 residence. Hitchcock, finding that the larger parcel had gone "back to nature pretty much" had started the work of clearing it and had installed an expensive culvert. He estimated expenditures on the 29-acre parcel in the year before the trial to be $1,000. There is evidence that he operated both parcels as a unit, that he considered the larger parcel "more like a front yard" and had in fact purchased it because of the attractiveness of its "wild and uncultivated state." He used the larger parcel "for recreational purposes," to "shoot pistols with the neighbors" and "to exercise my dog." The trial court found, so far as is pertinent here, that all of the property comprising the 43 acres of both parcels "is one unit and constitutes one 'home place' " and that the Hitchcocks "use the property as one entire place and live on it as one entire piece" and concluded that Mr. and Mrs. Hitchcock (along with the 10 other specified persons) were registered voters residing within the territory proposed for annexation. The learned trial judge filed an extensive memorandum opinion which has been included in the present record (Cal. Rules of Court, rule 5 (a)) [fn. ] and which we may consider for the purpose of understanding the foregoing findings and conclusions (Trans-Oceanic Oil Corp. v. City of Santa Barbara (1948) 85 Cal.App.2d 776, 790 [194 P.2d 148]) and the process by which the judgment was reached. (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 750-751 [47 P.2d 273].) Such opinion discloses that the trial court's determination that Mr. and Mrs. Hitchcock were residing within the area was reached by applying to the above facts the legal principles announced by Mr. Justice Wood for this court in People v. City of Richmond (1956) 141 Cal.App.2d 107 [296 P.2d 351]. After quoting from the above case, the trial judge stated: "In this instant case it will be recalled that there is no natural boundary following the annexation line, or vice versa, and the Court cannot help but conclude that the use of the property by the Hitchcocks, together with their own intention as expressed by the testimony of Mr. Hitchcock that they have always considered and used it as one single parcel of land and intend to so use it results in the inescapable conclusion that the whole parcel of property including the twenty-nine acres lying within the area to be annexed and the fourteen acres lying outside of the artificial line created by the Resolution and upon which the home is situated are inhabited 653 as a single unit by the Hitchcocks who are registered voters in the home and therefore are registered voters residing within the territory to be annexed as indicated in Section 35303 of the Government Code." (Original emphasis.) We conclude that the court's findings are supported by substantial evidence, that the rule of People v. City of Richmond was properly applicable and that the court's determination based thereon was correct. In People v. City of Richmond, supra, the boundary line transected a lot 100 feet wide by 500 feet deep so as to include the rear fourth portion thereof within the territory proposed for annexation. The dwelling house was located on the front of the lot and over 300 feet from the above boundary. This court held that the trial court's finding that the premises consisted of a single undivided parcel of land, all of which was used for residential purposes, was supported by substantial evidence and that as a consequence the registered voters resident thereon were to be counted as residing in the territory proposed for annexation. Mr. Justice Wood, speaking for the court, said: "To annex land is one thing; to strip it of its quality of being inhabited is quite another. [2] The state of being inhabited is an attribute, a characteristic, a quality every bit as real as the state of being owned, possessed or farmed. Bisecting a lot by means of an annexation boundary line does not extinguish any of these qualities of the land. Each of the resultant portions continues an integral part of the whole in respect to ownership, possession, occupancy, use and residency. The power to fix the course of the boundary line does not include the power to strip the land of any of these qualities nor the power to interfere with or to cut down any of the rights or privileges of the owner or of the occupier of the land." (141 Cal.App.2d at p. 111.) Observing, anent the trial court's finding, that "[t]his concept of 'inhabited' finds support in the case law which developed prior to the legislative definition of 'uninhabited' " in section 35303 and predecessor statutes, [fn. 2] this court quoted the following language, inter alia, from People v. City of *654 Lemoore (1918) 37 Cal.App. 79, 81 [174 P. 93] as "the judicially developed concept of 'inhabited' ": " 'The fact of occupancy is not limited, manifestly, to the space occupied by the building or buildings, but extends to every portion of the single tract of which that space is an undivided part. It may be difficult to formulate a description that can be applied with accuracy to every situation, [footnote omitted] but to say that any portion of a single and separate tract of land is uninhabited when people actually reside within the boundaries of that tract of land involves a contradiction in terms.' " (141 Cal.	{ "pile_set_name": "FreeLaw" }
770 F.2d 1072 Lameyv.Heckler 84-3706 United States Court of Appeals,Third Circuit. 5/6/85 1 W.D.Pa. AFFIRMED	{ "pile_set_name": "FreeLaw" }
103 F.2d 765 (1939) NEIRBO CO. et al. v. BETHLEHEM SHIPBUILDING CORPORATION, Limited, et al. No. 309. Circuit Court of Appeals, Second Circuit. April 10, 1939. Robert P. Weil, of New York City (Laurence A. Tanzer, of New York City, of counsel), for appellants. William Dwight Whitney, of New York City (Cravath, deGersdorff, Swaine & Wood, and Robert D. Blasier, all of New York City, of counsel), for appellee. Before L. HAND and CLARK, Circuit Judges. CLARK, Circuit Judge. This appeal assigns error in the action of the District Court in granting the motion of Bethlehem Shipbuilding Corporation, 766 Ltd., to quash service of process upon it and in dismissing the action as to it on the ground that it was not a resident of the Southern District of New York within the requirements of the federal venue statute, Jud.Code § 51, 28 U.S.C.A. § 112. Appellants, plaintiffs below, ground their appeal on two claims: first, that appellee, the Bethlehem corporation, is a resident of the District, notwithstanding its incorporation in the State of Delaware, because of the location of its chief business and executive offices within the District and its designation of an agent to accept process there, in compliance with the conditions under which a foreign corporation is legally permitted to do business within the State of New York, and second, that such designation of an agent to accept process in connection with appellee's qualification to do business in New York is a waiver of the venue defense. In the light of the statutory language and of the well settled rule that lack of venue is a personal privilege which a defendant can waive, a reversal of the order of dismissal would become necessary if either the claim of residence in the district or that of waiver could be sustained. But whatever objections of policy may be urged against it, we feel the law to the contrary is too well established to be now overturned. The action was originally brought by the appellants, who are citizens and residents of New Jersey, against United Shipyards, Inc., a New York corporation of which they are stockholders, to restrain the carrying out by the latter of a contract for the sale of drydocks in the waters of New York Harbor and other property to Bethlehem Shipbuilding Corporation, Ltd. The court refused to stay the sale, but added certain other persons as parties on the plaintiffs' motion. Then the plaintiffs filed an amended and supplemental bill alleging the consummation of the sale and praying relief in respect thereof. In this bill they asked that the Bethlehem corporation be added, and they described it as "a corporation organized and existing under the laws of the State of Delaware, and * * a citizen and resident of the State of Delaware." The court ordered that Bethlehem be added as a defendant. Upon being served with process, Bethlehem appeared specially and moved to quash the service and the Marshal's return thereof. The appeal is taken from the order granting Bethlehem's motion and dismissing the action as to it. The material provisions of Jud.Code § 51, 28 U.S.C.A. § 112, applicable to this action are as follows: "* * * no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Since jurisdiction of the present action is founded on the diversity of citizenship of the parties, the latter part of this statute applies. It is settled, however, that except for the limitation of suit to a single district that whereof the defendant is an inhabitant in suits other than those based on diversity of citizenship, the requirements of the two parts of the statute are identical, and precedents as to one part are equally authoritative as to the other. In re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402. The defense of lack of venue was open to this defendant, notwithstanding the presence in the action of other defendants properly sued in the district. Camp v. Gress, 250 U. S. 308, 39 S.Ct. 478, 63 L.Ed. 997; McLean v. State of Mississippi, 5 Cir., 96 F. 2d 741, 119 A.L.R. 670, certiorari denied 59 S.Ct. 84, 83 L.Ed. ___. We shall consider successively the two claims of error urged by appellants. First. Suits by and between corporations as citizens of different states have always presented troublesome problems of jurisdiction to the federal courts. For half a century after the passage of the first judiciary act, a corporation was allowed to sue or be sued in the circuit courts only when all its members were citizens of the state which created it. Bank of United States v. Deveaux, 5 Cranch 61, 3 L.Ed. 38. But in 1844, it was held in Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L.Ed. 353, that for the purposes of determining federal jurisdiction a corporation was to be deemed a person or an inhabitant, and thus a citizen, of the state in which it was incorporated. Although this conclusion has been assailed as unreal, it has been consistently followed ever since, and attempts at legislative *767 change, even when made under distinguished sponsorship, have proven unsuccessful.[1] Hence on all questions of jurisdiction involving diversity of citizenship, this appellee is conclusively determined to be a citizen of the State of Delaware by reason of its incorporation there. It was perhaps not logically necessary that a like conclusion should be reached as to the residence of a corporation under the requirements as to venue; but such a conclusion was a natural one, in the light of the language of the Letson case and the policy involved. And it was the meaning ascribed to the residence requirement in Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853, decided in 1877. Yet the question was not then important, for the venue statute, from the time of the original judiciary act, had provided that a defendant might be sued in a district in which he should be "found" at the time of serving the writ. Act of Sept. 24, 1789, c. 20, § 11, 1 Stat. 79; Act of Mar. 3, 1875, c. 137, 18 Stat. 470. Hence the court held that a corporation doing business within the state was to be found within it for the purposes of venue. Ex parte Schollenberger, supra. This part of the statute was, however, eliminated in 1887. Act of Mar. 3, 1887, c. 373, § 1, 24 Stat. 552, as corrected by the Act of Aug. 13, 1888, c. 866, § 1, 25 Stat. 433. From that time the statute has required residence in (or being an inhabitant of) the district to support the action. Jud.Code § 51, 28 U.S.C.A. § 112, supra. After the change in the statute it has been held uniformly by the Supreme Court and generally by the lower federal courts that residence is limited to the state of incorporation of the corporation and is not satisfied by the doing of business within the state. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942; In re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402; Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300; Seaboard Rice Milling Co. v. Chicago, R. I. & P. Ry. Co., 270 U.S. 363, 46 S.Ct. 247, 70 L.Ed. 633; Yanuszauckas v. Mallory S. S. Co., 2 Cir., 232 F. 132; McLean v. State of Mississippi, 5 Cir., 96 F. 2d 741, 119 A.L.R. 670, certiorari denied, 59 S.Ct. 84, 83 L.Ed. ___; Central West Public Service Co. v. Craig, 8 Cir., 70 F. 2d 427; De Dood v. Pullman Co., 2 Cir., 57 F.2d 171, affirming D.C.E.D.N.Y., 53 F.2d 95. Among the several decisions of district courts to the same effect may be cited that of A. N. Hand, D.J., in Beech-Nut Packing Co. v. P. Lorillard Co., D.C.S.D.N.Y., 287 F. 271, in 1921, relied on by the court below in the present case. The only exception in recent years to this uniform current of decision seems to be Dodge Mfg. Co. v. Patten, 7 Cir., 60 F.2d 676, affirming D.C.Ind., 23 F.2d 852, which was based upon the decision of Mr. Justice Har	{ "pile_set_name": "FreeLaw" }
444 So.2d 121 (1984) June M. ROBERTS v. SONIC DRIVE INN OF MARKSVILLE INC. and North River Insurance Co. No. 83-C-2520. Supreme Court of Louisiana. January 16, 1984. Denied. BLANCHE and LEMMON, JJ., would grant the writ.	{ "pile_set_name": "FreeLaw" }
15-2088 Funes Menjivar v. Sessions BIA A095 041 878 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 16th day of February, two thousand seventeen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 PETER W. HALL, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MANUEL DE JESUS FUNES MENJIVAR, 14 Petitioner, 15 16 v. 15-2088 17 NAC 18 JEFF SESSIONS, UNITED STATES 19 ATTORNEY GENERAL,1 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Maggy T. Duteau, New York, NY. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Greg D. 27 Mack, Senior Litigation Counsel; 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is automatically substituted for former Attorney General Loretta E. Lynch as the Respondent in this case. 1 Christina P. Greer, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9 DISMISSED. 10 Petitioner Manuel De Jesus Funes Menjivar, a native and 11 citizen of El Salvador, seeks review of a May 29, 2015 decision 12 of the BIA denying his motion to reopen. In re Manuel De Jesus 13 Funes Menjivar, No. A095 041 878 (B.I.A. May 29, 2015). We 14 assume the parties’ familiarity with the underlying facts and 15 procedural history in this case. 16 In the main, Funes challenges the IJ’s reasoning for 17 denying cancellation. But he did not petition for review of 18 that decision. See Stone v. INS, 514 U.S. 386, 405 (1995) 19 (requiring separate timely petitions for review of the final 20 removal order and the denial of a motion to reconsider or 21 reopen); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per 22 curiam) (same). Funes’s contentions that the IJ failed to 23 consider the implications of El Salvador’s temporary protective 24 status or his country conditions evidence are therefore not 25 before the Court. 2 1 Funes also challenges the BIA’s denial of his motion to 2 reopen. As a general matter, we review such a decision “for 3 abuse of discretion, mindful that motions to reopen ‘are 4 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) 5 (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). But we 6 lack jurisdiction to review the agency’s denial of cancellation 7 of removal based on an alien’s failure to establish “exceptional 8 and extremely unusual hardship,” 8 U.S.C. 1229b(b)(1)(D), 9 because that is a discretionary determination reserved for the 10 agency, see 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. 11 Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). We nevertheless 12 retain jurisdiction to review constitutional claims and 13 questions of law with respect to cancellation, 8 U.S.C. 14 § 1252(a)(2)(D), which may “‘arise for example in fact-finding 15 which is flawed by an error of law’ or ‘where a discretionary 16 decision is argued to be an abuse of discretion because it was 17 made without rational justification or based on a legally 18 erroneous standard,’” Barco-Sandoval, 516 F.3d at 39 (quoting 19 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d 20 Cir. 2006)). To ascertain whether a petitioner raises 21 constitutional challenges or questions of law over which this 22 Court has jurisdiction, we “study the argument[] asserted 3 1 [and] . . . determine, regardless of the rhetoric employed in 2 the petition, whether it merely quarrels over the correctness 3 of the factual findings or justification for the discretionary 4 choices, in which case the court would lack jurisdiction.” 5 Xiao Ji Chen, 471 F.3d at 329. For example, we have found an 6 error of law in a hardship determination where “facts important 7 to the subtle determination of ‘exceptional and extremely 8 unusual hardship’ have been totally overlooked and others have 9 been seriously mischaracterized.” Mendez v. Holder, 566 F.3d 10 316, 323 (2d Cir. 2009). 11 Here, we lack jurisdiction over the petition: Funes’s 12 assertion that the BIA failed to consider his daughter’s speech 13 condition merely employs the rhetoric of a question of law to 14 challenge the agency’s discretionary hardship determination. 15 See Xiao Ji Chen, 471 F.3d at 329. The BIA reviewed Funes’s 16 evidence and concluded that reopened proceedings would not 17 reach a different outcome. See Matter of Coelho, 20 I. & N. 18 Dec. 464, 473 (B.I.A. 1992); 8 C.F.R. § 1003.2(c). That 19 determination, in any event, was reasonable. Some of the 20 school reports predated the merits hearing and therefore were 21 not new evidence. Those that postdated the hearing did not 22 reflect substantial impairment. The BIA likewise had the 4 1 discretion to find that the reports failed to demonstrate that 2 Funes’s daughter’s educational needs, such as they are, will 3 go unaddressed if she remains in the United States without her 4 father. Diminished educational opportunities rarely 5 constitute exceptional and extremely unusual hardship. See In 6 re Andazola-Rivas, 23 I. & N. Dec. 319, 323 n.1 (B.I.A. 2002) 7 (“[A] finding that diminished educational opportunities result 8 in ‘exceptional and extremely unusual hardship’ would mean that 9 cancellation of removal would be granted in virtually all cases 10 involving [applicants] from developing countries who have young 11 United States citizen or lawful permanent resident children[, 12 which] . . . is not consistent with congressional intent.”). 13 For the foregoing reasons, the petition for review is 14 DISMISSED. As we have completed our	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7985 DOMINICK THOMAS, Plaintiff - Appellant, versus MARK L. HARMON, Officer; ASTRID S. ROBINSON, Officer, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CA-04-1145-1-LMB) Submitted: June 28, 2006 Decided: July 28, 2006 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Dominick Thomas, Appellant Pro Se. Mary Alice Rowan, COUNTY ATTORNEY’S OFFICE, Prince William, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Dominick Thomas appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Thomas v. Harmon, No. CA-04-1145-1-LMB (E.D. Va. Dec. 7, 2005).* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Although the last name of the defendant/appellee is apparently Harman rather than Harmon, we have retained the spelling employed by the district court. - 2 -	{ "pile_set_name": "FreeLaw" }
871 N.E.2d 376 (2007) Daniel E. HOAGLAND, Karen Hoagland, and Hoagland Family Limited Partnership, Appellants-Plaintiffs, v. TOWN OF CLEAR LAKE BOARD OF ZONING APPEALS, Appellee-Defendant. No. 76A03-0609-CV-444. Court of Appeals of Indiana. August 8, 2007. 377 J. Michael Loomis, Fort Wayne, IN, Attorney for Appellants. W. Erik Weber, Neal R. Blythe, Mefford and Weber, Auburn, IN, Attorneys for Appellee. OPINION SHARPNACK, Judge. Daniel and Karen Hoagland and the Hoagland Family Limited Partnership (collectively, the "Hoaglands") appeal the trial court's dismissal of their petition for judicial review regarding a decision by the Town of Clear Lake Board of Zoning Appeals ("BZA") and the trial court's denial of their motion to correct error. The Hoaglands raise four issues, which we consolidate 378 and restate as whether the trial court erred by dismissing the Hoaglands' petition for judicial review of a decision by the BZA based upon the Hoaglands' failure to provide the statutorily required notice. We affirm.[1] In this appeal, the Hoaglands challenge the trial court's dismissal of their petition for judicial review regarding an Improvement Location Permit ("ILP") issued concerning property owned by Jim and Cathlene Nevin. Today, we also issue a decision in Hoagland v. Town of Clear Lake Bd. of Zoning Appeals, ___ N.E.2d ___, No. 76A03-0610-CV-495, 2007 WL 2257214 (Ind.Ct.App.2007). In that appeal, the Hoaglands challenge the trial court's dismissal of their petition for a writ of certiorari. That appeal relates to the BZA's denial of their appeal regarding a second ILP issued to Steven Tagtmeyer to rebuild an existing garage and add a shed to property owned by the Nevins. The relevant facts concerning the first ILP follow. On September 7, 2004, the zoning inspector for the Town of Clear Lake, Indiana, issued an ILP to Jim and Cathlene Nevin for the remodeling of their residence at 1120 Lake Dr. at Clear Lake. On August 26, 2005, the Hoaglands, who are the Nevins' neighbors, appealed the issuance of the ILP to the BZA. A public hearing was held on October 26, 2005, regarding the Hoaglands' appeal. The hearing was continued on December 20, 2005, and the BZA apparently denied the Hoaglands' appeal at that hearing but did not issue written findings. On January 19, 2006, the Hoaglands filed a "Verified Petition for Judicial Review" of the BZA's denial of their appeal, but the Hoaglands did not serve notice upon the Nevins. The BZA responded on February 6, 2006, by filing a motion to dismiss because the Hoaglands cited the wrong statutory authority in their petition and filed a petition for judicial review rather than the required petition for writ of certiorari. At a hearing on the matter, the BZA also argued that the Hoaglands' petition should be dismissed because the Hoaglands did not serve notice of the petition upon the Nevins. On February 8, 2006, the Hoaglands filed a motion to amend their petition for judicial review and filed an "Amended Verified Petition and Request for Writ of Certiorari." Appellants' Appendix at 114, 117. After a hearing on the motion to dismiss, the trial court entered an order dismissing the Hoaglands' petition as follows: 1. On December 20, 2005 the BZA entered its Order approving the grant of [an] Improvement Location Permit requested by Jim and Cathlene Nevins ("Nevins"). Subsequent thereto, Hoagland sought review of the action taken by the BZA by filing on January 19, 2006 a Verified Petition for Judicial Review pursuant to Ind.Code 4-21.5-5-1, et seq. 2. At the time Hoagland [sic] the Verified Petition for Judicial Review the Nevins were not notified of the filing. 3. On February 7, 2006 the BZA filed its Motion to Dismiss for Lack of Jurisdiction. 4. On February 8, 2006 Hoagland filed a Motion to Amend Verified Petition for Judicial Review. 379 5. Therein, Hoagland sought leave of Court to change the format of the Petition originally filed on January 19, 2006 to a Petition for Writ of Certiorari, and be granted leave to provide notice as required by statute to all adverse parties. 6. Hoagland seeks review of an adverse decision made by the BZA. 7. The statutory procedure to seek review of such a decision is set forth at Ind.Code 36-7-4-1005 not Ind.Code 4-21.5-5-1, et seq. 8. In the case of Bagnall v. Town of Beverly Shores, 726 N.E.2d 782 (Ind. 2000), the Indiana Supreme Court at page 785 observed: "Decisions by boards of zoning appeals are subject to court review by certiorari. Ind.Code Sec. 36-7-4-1003(a) (Supp.1995). A person aggrieved by a decision of a board of zoning appeals may present to the circuit or superior court in the county in which the premises are located a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. Id. Sec. 36-7-4-1003(b). The petition must be presented to the court within 30 days of the board's decision. Id. The court does not gain jurisdiction over the petition until the petitioner serves notice upon all adverse parties as required by Ind.Code Sec. 36-7-4-1005(a) which provides in pertinent part: On filing a petition for a writ of certiorari with the clerk of the court, the petitioner shall have a notice served by the sheriff of the county on each adverse party, as shown by the record of the case in the office of the board of zoning appeals. . . . No other summons or notice is necessary when filing a petition. . . . The Code defines an adverse party as `any property owner whose interests are opposed to the petitioner for the writ of certiorari and who appeared at the hearing before the board of zoning appeals either in person or by a written remonstrance or other document that is part of the hearing record.' Ind. Code Sec. 36-7-4-1005(b). We read the language of statutes pursuant to the codified rules of statutory construction, which provide that `[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense.' Ind.Code Sec. 1-1-4-1(1) (1998). As the trial court noted, "[t]he plain and ordinary meaning of the word `on' in the statute's phrase `on filing the petition' is taken to mean `at the time of `filing the petition." . . . To comply with the statute, a petitioner must file, with the clerk, notices to adverse parties contemporaneously to the filing of the writ petition. Because "strict compliance with the requirements of the statute governing appeals from decisions of boards of zoning appeals is necessary for the trial court to obtain jurisdiction over such cases," . . . (Emphasis Added) (Case Citations Omitted) (Citations to Record Omitted) 9. The [Nevins] are adverse parties to this proceeding. 10. The [Nevins] were not timely provided with any form of notice that Hoagland was seeking review of the decision made by the BZA on December 20, 2005. 11. To grant Hoagland the relief he has requested would require the Court to nullify the clear statutory 380 language regarding notice to adverse parties as set forth at Ind.Code 36-7-4-1005. A trial court quite simply does not gain jurisdiction over a Petition Seeking Review of an action taken by the BZA until the petitioner serves notice of the Petition upon all adverse parties as required by Ind. Code 36-7-4-1005. See, Citizens v. Brazil Bd. Of Zoning Appeals, 565 N.E.2d 380 (Ind.App.1991). IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows: 1. Hoagland's Motion to Amend Verified Petition for Judicial Review is denied. 2. BZA's Motion to Dismiss for Lack of Jurisdiction is granted. Appellants' Appendix at 135-138. The Hoaglands then filed a motion to correct error. The Hoaglands contended "that a final reviewable decision ha[d] not yet been made by the BZA sufficient to trigger the running of the thirty (30) day rule within which time an aggrieved person must file his Petition for Writ of Certiorari with the trial court. The reason being the BZA has not performed its statutory duties pursuant to Ind.Code 36-7-4-915 and Ind.Code 36-7-4-919(f)." Id. at 5. Relying upon Biggs v. Board of Zoning Appeals, 448 N.E.2d 693 (Ind.Ct.App. 1983), the trial court entered findings of fact and conclusions thereon in which it found that the "failure of the BZA to make written Findings of Fact does not toll the running of the thirty (30) days within which it is necessary for an aggrieved person to file a Writ of Certiorari in order to properly invoke	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON BURTON WELCH, ) ) Petitioner, ) C. C. A. NO. 02C01-9807-CC-00222 ) vs. ) LAKE COUNTY STATE OF TENNESSEE, ) ) No. 98-7802 FILED ) Respondent. ) October 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk ORDER This matter is before the Court upon motion of the state to affirm the judgment of the trial court by order rather than formal opinion. See Rule 20, Rules of the Court of Criminal Appeals. This case represents an appeal from the trial court’s denial of the petitioner’s petition for writ of habeas corpus. On December 17, 1996, the petitioner pled guilty to four counts of sale of cocaine under 0.5 grams and received a six year sentence. No appeal was taken. In his present petition, the petitioner claims: 1) the chancellor lacked jurisdiction to render judgment in this case; 2) his arrest was the result of an unlawful entrapment; 3) he received ineffective assistance of counsel; and 4) the convicting evidence was insufficient.1 The trial court found that these allegations are not proper subject for habeas corpus relief. Habeas corpus relief is available in Tennessee only when “it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered” that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Pursuant to T.C.A. § 17-2-203 (Repealed 1997), the chancellor had jurisdiction to render the judgments in this case. Though recently repealed, this statute was in effect on the date of judgments in this 1 The petitioner makes the additional argument on appeal that the judgm ents do not specify und er wh ich st atute he wa s co nvicte d. Sin ce th e pet itione r failed to rais e the issue below , this C ourt is preclud ed from conside ring it on app eal. See T.R.A.P. 36(a). Nonetheless, this argument is without merit. The judgments clearly state the crime for which the petitioner was convicted. case. Additionally, the judgments in this case clearly establish that the convicting court had jurisdiction to convict the petitioner of an existing criminal offense, i.e., the sale of cocaine under 0.5 grams. Nor has the petitioner’s sentence expired. Review of the other claims raised by the petitioner would necessarily involve investigation beyond the face of the judgment or record, and they are, therefore, inappropriate for consideration in a habeas corpus proceeding. Accordingly, for the reasons stated above, it is hereby ORDERED that the state’s motion is granted and the judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. _________________________ PAUL G. SUMMERS, JUDGE _________________________ DAVID G. HAYES, JUDGE _________________________ JOE G. RILEY, JUDGE 2	{ "pile_set_name": "FreeLaw" }
729 F.2d 1449 U.S.v.Carducci (Hugo J.) NO. 83-5480 United States Court of Appeals,third Circuit. FEB 09, 1984 1 Appeal From: W.D.Pa., 566 F.Supp. 1116 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
65 Ill.2d 244 (1976) 357 N.E.2d 530 HELEN W. WALLING, Appellant, v. KAREN LINGELBACH et al. (Lottie Strahorn, Appellee.) No. 48188. Supreme Court of Illinois. Opinion filed November 24, 1976. North, North & Ohlson and Charles H. Davis, both of Rockford (Larry E. Ohlson, of counsel), for appellant. Maynard, Brassfield & Cowan, of Rockford (Eugene E. Brassfield, of counsel), for appellee. Judgment affirmed. 245 MR. JUSTICE KLUCZYNSKI delivered the opinion of the court: Helen Walling, plaintiff, was seriously injured when the automobile in which she was riding collided head on with an approaching vehicle driven by Karen Lingelbach. At trial, the jury found both drivers guilty of negligence, and the circuit court of Winnebago County entered a judgment on the verdict against both defendant drivers in favor of plaintiff for $82,500. Lottie Strahorn, the driver of the vehicle in which Walling was a passenger, appealed and the appellate court reversed without remandment, holding that the evidence was insufficient to sustain any verdict for Walling against Strahorn. (33 Ill. App.3d 949.) Defendant Lingelbach, however, did not appeal. We granted Walling leave to appeal in which she contends that there was sufficient evidence to allow this case to go to the jury and to sustain a jury verdict under the rule stated in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 513. She also contends that the appellate court improperly substituted its opinion for that of the jury and trial judge on the credibility of witnesses, the conflicts in the evidence and the weight of evidence, and ignored the jury's findings of proximate cause. The following facts were presented at trial: On November 14, 1973, at 6:20 a.m., Lottie Strahorn was driving her husband and Helen Walling to work. She was traveling northbound on Springfield Avenue, a paved two-lane highway, at approximately 30 to 35 miles per hour. At the same time, Lingelbach was alone in her vehicle, driving southbound on the same road. The day was hazy with intermittent patches of fog ranging from light to very heavy. Strahorn testified that the visibility averaged 25 feet except in areas of heavy fog, where visibility was greatly reduced. Lingelbach observed that the fog got heavier as she traveled further south. Both drivers claimed 246 to have had their headlights on. Lingelbach stated that she was in the right lane and was traveling 50 miles per hour when she entered an intersection 700 feet north of the collision. However, she did not know in which lane the collision occurred. She first saw the other vehicle when it was three or four feet in front of her, and she immediately swerved left just before impact. Strahorn testified that Lingelbach's vehicle was in the southbound lane, but just prior to the collision entered her lane. At this time she exclaimed, "Look at that crazy fool, he must be drunk!" Then she applied her brakes, slowed down, and made a right turn onto the shoulder. Lingelbach's car was 10 feet away when last observed by Strahorn. Her exclamation was somewhat corroborated by Walling's testimony relating that Strahorn stated, "They are going to hit us!" However, Strahorn's husband, also a passenger, had no recollection that his wife made this statement. The two officers that had responded to the call regarding the accident testified that visibility was very poor due to fog and that the pavement was damp. One of the officers, John Markley, observed that Lingelbach's vehicle was facing south on the east shoulder of Springfield Avenue and Strahorn's car was facing north but positioned southeast of the other automobile. No skid marks were found on the road. Markley observed glass and debris from the crushed headlights, and turn signals were scattered in the northbound lane and formed a two-foot circle with a quarter section missing. The center of the circle was one or two feet west of the edge of the pavement, 727 feet south of the intersection, and 58 feet north of the right front tire of defendant's vehicle. The distance between the vehicles after the collision was measured at 264 feet, but Markley, believing the measurement to be a miscalculation, stated that the actual distance was closer to 150 feet. He further observed that no windshields were broken and no glass or debris 247 was found within the proximity of the vehicles or in the southbound lane. The only statement he recalled having been made by parties to the accident was Strahorn saying something to the effect that she looked up and saw the car coming at her. However, she did not remember making any statements to police. Also he noted that neither party knew what happened. A co-worker of both Walling and Strahorn's husband testified that the former, while in the hospital, made the statement that the accident was not Strahorn's fault. This statement was also heard by Strahorn's niece, but Walling denied making this statement. Strahorn's husband stated that he saw the other vehicle "one block away" just prior to the accident, that it had crossed the center lane and was traveling in the middle of the road. He further testified that the fog was light where the collision occurred. In Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 504-05, before formulating its rule governing directed verdicts and judgments, this court observed: " * * the presence of some evidence of a fact which, when viewed alone may seem substantial, does not always, when viewed in the context of all of the evidence, retain such significance. * * * Constitutional guaranties are not impaired by direction of a verdict despite the presence of some slight evidence to the contrary * * ." With the above as its premise the court presented the following rule: "In our judgment verdicts ought to be directed and judgments entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Emphasis added.) 37 Ill.2d 494, 510. Under the Pedrick rule, we view all the evidence in a 248 light most favorable to Walling. We cannot speculate and will not supply facts in void areas to complete the reconstruction of an accident. The controlling issue in this case is in which lane the collision occurred. If both vehicles had remained in their respective lanes, the accident would not have happened. Conversely, the collision would not have occurred but for one vehicle having crossed the center line. Lingelbach admitted that she did not know in which lane she was at the time of impact, whereas both Mr. and Mrs. Strahorn testified that their automobile never crossed into the southbound lane and that the oncoming vehicle crossed the center line when it approached them. This testimony was not refuted or contradicted. There was no evidence presented that Strahorn was in the improper lane, that the impact occurred in the southbound lane, or that both drivers straddled the center line. All the debris discovered was found scattered on the far eastern portion of the northbound lane. Credibility of witnesses has minimum import in this case. The lack of evidence supporting Walling's case exists whether or not the jury believed Mr. and Mrs. Strahorn's testimony. Although Walling argued that it could be inferred that Strahorn was negligent by exercising improper control and lookout and by speeding, none of these alleged acts were the proximate cause of appellant's injury. We feel that the jury abandoned the domain of allowable inferences and entered the area of speculation in determining that Strahorn's negligence was one of the proximate causes of Walling's injury. Therefore, under these circumstances we hold that the appellate court properly applied the rule expressed in Pedrick in concluding that the evidence was insufficient to present a jury question. Accordingly, we affirm the judgment of the appellate court. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
430 P.2d 783 (1967) 78 N.M. App. 286 STATE of New Mexico, Plaintiff-Appellee, v. Henry SILVA, Defendant-Appellant. No. 29. Court of Appeals of New Mexico. June 23, 1967. 784 Reuben E. Nieves, Gore & Nieves, Clovis, for appellant. Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee. OPINION OMAN, Judge. Defendant has appealed from a judgment and sentence of the district court, entered pursuant to jury verdicts finding him to be the same person who had theretofore been convicted of the three felonies as alleged in the information charging him as an habitual offender. Sections 40A-29-5 to -7, N.M.S.A. 1953, provide for sentencing, prosecution, and procedures for prosecution of habitual offenders. Defendant relies upon seven separate points for reversal. The first five of these points concern themselves primarily with attacks upon the information, and the remaining two points relate to claimed errors on the part of the trial court in admitting certain evidence. The points will be considered in the order of their presentation in the brief in chief. In count 1 of the information it was alleged that the defendant had been convicted of "Assault with a deadly weapon Bernalillo County, New Mexico, October 5, 1963." After the jury had been impaneled and sworn, the State requested leave to amend to change the date of October 5, 1963 to April 6, 1964. The trial court observed that "October 5 was, the arrest date of the defendant. The date of April 6 was the date that judgment and sentence was actually entered." It is not apparent upon what the court based his observation, but he granted opportunity to defendant to voice his objections and present argument. Defendant contended that this last-minute change prejudiced his rights. The court specifically announced that he would grant a delay if additional time were needed to prepare a defense by reason of the change, and asked if defendant requested any such delay. Defendant announced that he had no such request to make. The court granted the amendment. We observe that an information under the habitual offender statutes does not purport to charge a criminal offense, 785 but constitutes only a charge of prior convictions by defendant, which, if true, operates to enhance the penalty to be imposed. Lott v. Cox, 75 N.M. 102, 401 P.2d 93 (1965); State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965). The proceedings are, however, penal in nature, and, insofar as applicable, criminal procedures are to be followed. See State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966); Johnson v. Cox, 72 N.M. 55, 380 P.2d 199 (1963); State v. Knight, supra, 5 Wharton, Criminal Law and Procedure (Anderson) § 2221 at 441 (1957). Defendant contends he was prejudiced by the amendment, and relies upon the provisions of § 41-6-37, N.M.S.A. 1953, and upon the decision in State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951). In State v. Ardovino, the defect was the failure of the information to allege a criminal offense under the statutes of the State of New Mexico, and it was more than a mere error in a date. Here the defendant has failed to demonstrate how he was in any way prejudiced by the amendment showing the correct date of his prior conviction in Bernalillo County. Although the trial court made it clear to defendant and his counsel that additional time would be granted to explore the possibilities of a defense, or to prepare for the presentation of any defense defendant might have, defendant advised the court he did not wish to request any delay, or additional time. In State v. Krebs, 336 Mo. 576, 80 S.W.2d 196 (1935), it was appellant's contention that a certain date contained in the information was the date of his discharge from the penitentiary, and not the date of commission of a subsequent offense. Thus, he argued that the information was defective, because it failed to show that this subsequent offense was committed after his discharge from the penitentiary under his prior convictions. The Supreme Court of Missouri gave it as their opinion that the date in question referred to the date of the commission of the subsequent offense, and not to the date of his discharge from the penitentiary, but stated that it made no difference, because that part of the information concerned started out by expressly alleging that "after the said discharge." Section 40A-29-6, N.M.S.A. 1953, provides in part: "If * * * it shall appear that a person convicted of a felony has previously been convicted of a crime amounting to a felony in this state, * * * it shall be the duty of the district attorney * * * to file an information charging the person as a habitual offender." The present case was conducted as a separate proceeding, as authorized by our statutes (Lott v. Cox, supra; State v. Tipton, supra), and it was expressly alleged in the information that "Henry Silva * * * having been convicted of the following felonies." This language was then followed immediately by the above-quoted language relating to the charge in question. The amendment allowed by the trial court in no way changed the substance of the allegations concerning the previous conviction in Bernalillo County of a crime amounting to a felony. No prejudice having been shown as a result of the amendment, we find defendant's position under this point to be without merit. Defendant next contends the information should have been quashed because, after reciting the felonies of which he had allegedly been convicted, it is alleged: "And that Henry Silva is an habitual offender contrary to Section 40A-29-7, and should be sentenced pursuant to 40A-29-7, NMSA, 1953 Compilation, as amended." It is defendant's contention that he should have been charged, and could properly have been charged, only under the provisions of § 40A-29-5, N.M.S.A. 1953, or under §§ 40A-29-5 to -6, N.M.S.A. 1953. As above stated, an information under the habitual offender statutes does not charge a separate offense. Section 40A-29-5, *786 provides for enhanced sentences to be imposed on habitual offenders; § 40A-29-6, imposes the duty on the district attorney to prosecute habitual offenders; and § 40A-29-7, provides for the proceedings to be followed in the prosecution of habitual offenders. There can be no doubt that defendant was clearly informed that he was being proceeded against as an habitual offender. We disagree with defendant that the information failed to meet the requirements of § 41-6-7, N.M.S.A. 1953. This section of our statutes provides: "Charging the offense. (1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one [1] or more of the following ways: "(a) By using the name given to the offense by the common law or by a statute. "(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged. "(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference." Here the defendant was expressly informed that the State was contending he was "an habitual offender," and a reference to § 40A-29-7 shows it to be entitled "Proceedings for prosecution of habitual offenders." The court and the defendant were given notice of precisely what was intended to be charged. Under his point 3 defendant contends: "THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO QUASH THE INFORMATION AS BEING UNCERTAIN, INDEFINITE AND INARTLY DRAWN, AND NOT CHARGING AS CONTEMPLATED BY THE STATUTE." The trial court conceded that the information was inartfully drawn, but observed that he thought the meaning is clear. We agree with the trial court. We do observe that the information is certainly no model of proper pleading, and would suggest that more care be taken in drafting and proof-reading of informations prior to trial, rather than being confronted by constant attacks thereon for inaccuracies which could easily have been discovered by careful reading and a little study. However, we have no trouble in finding the meaning of the information to be plain. Assuming the meaning to be plain, the information or indictment is not rendered insufficient because of improper grammatical construction. See State v. Cabodi, 18 N.M. 513, 138 P. 262 (1914). As provided in § 41-6-7, N.M.S.A. 1953, above-quoted, the purpose of the information is to give the court and the defendant notice of what offense is intended to be charged. Defendant next contends the information was defective and should	{ "pile_set_name": "FreeLaw" }
419 F.Supp. 1123 (1976) Duane BERTRAND, Plaintiff, v. ORKIN EXTERMINATING COMPANY, INC., Defendant. No. 76 C 1337. United States District Court, N. D. Illinois, E. D. August 26, 1976. 1124 John C. Ruppert, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff. Fred R. Kimmel, Arvey, Hodes, Costello & Burman, Chicago, Ill., for defendant. MEMORANDUM OPINION DECKER, District Judge. Duane Bertrand, the plaintiff in this action, has brought suit against Orkin Exterminating Company, Inc., alleging that he was demoted and constructively discharged by the defendant because of his age in violation of the Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. The defendant has moved to dismiss the complaint or in the alternative to strike portions thereof and for a more definite statement. I. Motion to Dismiss The motion to dismiss charges that the plaintiff has failed to allege satisfaction of a purported jurisdictional prerequisite set forth in § 14(b) of the Act, 29 U.S.C. § 633(b).[1] This provision, which is headed "Limitation of Federal action upon commencement 1125 of State proceedings", applies when two conditions are satisfied. (1) The state must have a law prohibiting age-based discrimination. (2) There must be a state authority authorized to grant or seek relief from age-discrimination. The defendant asserts that Illinois law satisfies these two conditions and that as a result this court cannot obtain jurisdiction in an age-discrimination case until sixty days after the commencement of proceedings under the state law. The construction of § 633(b) has been the subject of considerable dispute. While various courts have attempted to harmonize their opinions, it is nonetheless evident that there is a substantial split of authority on this matter. At one extreme may be found a case such as Vaughn v. Chrysler Corporation, 382 F.Supp. 143 (E.D.Mich.1974), which analogizes § 633(b) to the jurisdictional deference provisions of Title VII, 42 U.S.C. § 2000e-5(c), thereby constituting a bar to plaintiff's cause of action. Somewhat less harsh is the conclusion of the majority in Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974), that while § 633(b) is a jurisdictional requirement, it nonetheless will not compel dismissal of an action where a plaintiff can present an equitable claim justifying the hearing of his cause. Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975), also utilized the analogy of Title VII law to find jurisdictional import in § 633(b), but it strictly construed the words of that section to require a specific legislative mandate to the state authority concerning age-discrimination. At the other extreme is the more recent opinion in Vazquez v. Eastern Airlines, Inc., 405 F.Supp. 1353 (D.P.R.1975), which concluded that § 633(b) did not establish resort to state law as a jurisdictional prerequisite for a federal age discrimination action. This opinion closely relies on the concurring opinion of Judge Garth in Goger, supra. A similar, but not identical, conclusion was reached in Skoglund v. Singer Co., 403 F.Supp. 797 (D.N.H.1975). Vazquez and the Goger concurrence maintain that the language of § 633(b) applies only to those cases where the plaintiff had already sought relief under state law prior to filing the federal action. This viewpoint holds that in such a situation the plaintiff must give the state authority the required sixty days to attempt to resolve the dispute. However, there is no obligation to utilize the state remedy. Skoglund holds that "although Section 633(b) requires timely resort to state remedies before a complaint may be filed in federal court, this requirement is not jurisdictional; therefore, plaintiff's failure to notify the Massachusetts Commission Against Discrimination in a timely fashion does not bar him from this court." 403 F.Supp. at 802-03. This holding differs from Vazquez in that it does not expressly treat § 633(b) as applying solely to actions in which the state remedy had previously been invoked. Instead it construes § 633(b) as an expression of congressional deference to the concept of federalism, but not as a formal jurisdictional precondition. This survey of recent judicial opinion makes it apparent that no commonly accepted construction of § 633(b) has of yet emerged. This court has found no indication that the Seventh Circuit has expressed a view on this controversy. As noted, the courts that view § 633(b) as a jurisdictional requirement are greatly influenced by the similarity of the language of that provision to language found in Title VII at § 2000e-5(c).[2] The latter provision has been generally perceived as a jurisdictional 1126 requirement. Abshire v. Chicago and Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972). Judge Hunter cited in Goger, supra, portions of the legislative history indicating that Title VII served as a model for the drafting of this portion of the Age Discrimination in Employment Act. 492 F.2d at 16 (fn. 13). Although this is a well argued position, the court finds that a persuasive argument has also been made by Judge Pesquera in Vazquez, supra, and by Judge Garth in his concurrence to Goger for the proposition that § 633(b) does not mandate resort to state procedures as a jurisdictional prerequisite for an action under the Act. These arguments agree that Title VII was a significant model for the Act, but note that various provisions from Title VII procedure were considered and specifically rejected by Congress in the drafting of the 1967 Age Discrimination Act. Congress evidently was concerned about the impact of bureaucratic delay imposed by the establishment of an additional administrative impediment to adjudication of grievances. The concept of age discrimination itself made it clear that the typical plaintiff under the Act would be elderly, and thus particularly afflicted by the burdens of administrative tardiness. See the statement of Senator Javits in the hearings on the Act quoted in part at 405 F.Supp. 1355. Vazquez correctly notes that the jurisdictional requirements for a suit brought under the 1967 Age Discrimination Act are found in § 7 of that Act, 29 U.S.C. §§ 626(c)-(e). These provisions bear the express label of "jurisdiction" in the United States Code, and are the more likely analogue to § 2000e-5(b)-(d) of Title VII. Both Title VII and the Age Discrimination Act establish as a jurisdictional requirement the filing of notice of a proposed action prior to the commencement of the suit. But while the jurisdictional notice requirement appears in the same section of Title VII with the language dealing with deference to state law remedies, the reference to state law deference in § 633(b) is isolated from the other jurisdictional provisions and is removed to the tail end of the Act. It is found only after the section establishing an annual report from the Secretary of Labor to Congress on age discrimination matters. While the provisions of § 626 are expressly labeled jurisdictional, § 633(b) is part of a section entitled "Federal State relationship", and is captioned "Limitation of Federal Action upon commencement of State proceedings." The language of this section, which admittedly is not artfully worded, does not expressly command the commencement of proceedings under state law. Semantically the sentence "no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law . . ." can be read to accord with an interpretation that after the commencement of proceedings under the state law, no suit may be brought under § 626 for sixty days. Thus a construction that "the limitation upon the right to file suit under the ADEA would be applicable only if proceedings had already been initiated under existing State law", 405 F.Supp. at 1356, makes grammatical sense and is consistent with the concerns expressed by Senator Javits. 1127 Judge Garth and Judge Pesquera both gave substantial deference to the construction of the statute given by Secretary of Labor Wirtz, which was summarized by Judge Garth as an assertion "that the sole Congressional purpose underlying the enactment of 29 U.S.C. § 633(b) was to give the State time to act on a complaint if an aggrieved individual chose to proceed there first." 492 F.2d at 17-18. This interpretation does buttress the non-jurisdictional thesis, and comports with congressional concern to provide concurrent federal and state alternatives for victims of age discrimination. It is noteworthy that § 633(a) of the Age Discrimination Act,[3] a provision with no exact counterpart in Title VII, mandates that an action under the 1967 Act will supersede any state action. Judge Garth's comment upon the interaction of these sections is particularly cogent: "I do not believe that it was the intent of Congress to require, prior to the institution of a Federal action, the commencement of a State proceeding which, under § 633(b), need not be concluded and which in any event would be superseded by the filing of the Federal action under § 633(a)." 492 F.2d at 18. A construction of § 633(b) as a jurisdictional prerequisite implies a belief that Congress would choose to defer to federalism by burdening victims of age discrimination with an obligation to file what will ordinarily	{ "pile_set_name": "FreeLaw" }
962 F.2d 543 60 USLW 2798, 27 Collier Bankr.Cas.2d 119 In the Matter of PENGO INDUSTRIES, INC., Pengo Finance,N.V., Debtors.TEXAS COMMERCE BANK, N.A., Indenture Trustee, Appellee,v.Dr. Seymour LICHT, and Official Committee of UnsecuredCreditors of Pengo Industries, Appellants. No. 91-1769. United States Court of Appeals,Fifth Circuit. June 12, 1992.Rehearing Denied July 10, 1992. Richard H. Kuh, Edgar H. Booth and Donald L. Kuba, Warshaw, Burstein, Cohen, Schlesinger & Kuh, New York City, for Official Committee. Edward L. Rothberg, Weycer, Kaplan, Pulaski & Zuber, Houston, Tex., for Texas Commerce Bank. Appeals from the United States District Court for the Northern District of Texas. Before GOLDBERG, DUHE, and BARKSDALE, Circuit Judges. GOLDBERG, Circuit Judge: 1 A company finds itself unable to meet its debt obligations. Its bondholders fear bankruptcy, with its inherent delays, costs, and complications. But perhaps the company can work out its financial problems before capitulating to the bankruptcy courts. The company proposes an exchange: Bondholders can tender an old bond and receive a new bond of equal face value, but on terms more favorable to the company. The incentive for the bondholder is two-fold: an increased likelihood that the company can meet its obligations on the new bonds and the avoidance of bankruptcy proceedings. Although many bondholders do exchange their old bonds, the company nevertheless lands in bankruptcy court. The issue then becomes the amount of the new bondholder's claim against the debtor: Is it the full face value of the new bond or is it some lesser, discounted amount reflecting the fair market value of the old bond at the time of the exchange? 2 This particular query has fascinated not only creditors of companies engaging in consensual workouts, but also bankruptcy commentators and practitioners: Whether a face value exchange of debt instruments in a consensual out-of-court workout creates original issue discount that constitutes unallowable "unmatured interest" under section 502(b)(2) of the Bankruptcy Code. We affirm the district court and hold that such an exchange does not generate "unmatured interest." I. BACKGROUND 3 The Pengo companies manufacture equipment for the petroleum industry, explosives, rubber products and earth-boring augers and teeth. In late 1988 and early 1989, involuntary petitions for relief under Chapter 11 of the Bankruptcy Code were filed against Pengo Industries, Inc. and its subsidiary, Pengo Finance, N.V. (collectively, "Pengo"). The Official Unsecured Creditors Committee and Dr. Seymour Licht, an individual creditor, objected to two proofs of claim filed by Texas Commerce Bank National Association ("TCBNA") on behalf of the holders of two securities, the Class A and Class B debentures. TCBNA served as indenture trustee for holders of Class A and Class B debentures. 4 Back in 1980, Pengo Finance issued $22,500,000 of 8 1/2% convertible debentures due in 1995. The public purchased these Old Debentures for the full face amount of $1,000 each. Neither Pengo Finance, nor Pengo, the guarantor, could make interest payments to the Old Debenture holders in 1983. Pengo merely accrued the interest expense on its books. Several years later, in 1985, a standstill agreement between Pengo and its senior secured lenders required an exchange offer as part of an out-of-court workout designed to enable Pengo to restructure its indebtedness. In the First Exchange Offer, Pengo Finance offered to exchange one 0% $500 face amount Class A debenture and one 0% $500 face amount Class B debenture for each 8 1/2% $1,000 face amount Old Debenture. Each participating Old Debenture holder received two New Debentures with a total face value of $1,000 for each of their Old Debentures with a face value of $1,000. The Old Debentures were subordinated to payment in full of the New Debentures. And, while the Old Debentures mature in 1995, the New Debentures matured in 1991. The Old Debentures could be redeemed for Pengo's common stock at a much less favorable rate than that for the New Debentures. About $13,205,000 of the Old Debentures--58.7% of the issue--were exchanged for the same face amount of New Debentures. Although holders of the New Debentures waived the payment of past due interest on the Old Debentures, Pengo remained in default on the Old Debentures outstanding after the exchange because it continued to fail to make interest payments. 5 The reorganization plan placed all unsecured creditors into a single class, which included holders of both Old and New Debentures. Those creditors will share in a limited distribution. Since the total claims of the unsecured creditors exceed the amount of the limited distribution, the amount of the New Debenture holders' claims directly alters the funds available to all other unsecured creditors. 6 The two proofs of claim filed by TCBNA on behalf of the holders of Class A and Class B debentures in the Pengo bankruptcy represented the full face amount of the outstanding New Debentures. TCBNA did not deduct any amount for unamortized original issue discount. The Committee and Dr. Licht, who holds Old Debentures, objected to the amounts of the claims, arguing that the exchange created unamortized original issue discount and, thus, a portion of the claims constituted "unmatured interest" not allowable under 11 U.S.C. § 502(b)(2).1 7 After a hearing and upon stipulated facts, the bankruptcy court sustained the objections and reduced the New Debenture holders' two proofs of claim to eliminate what the court considered to be unamortized original issue discount--unmatured interest under section 502(b)(2). The district court reversed the bankruptcy court and held that the proofs of claim did not include a claim for original issue discount. Texas Commerce Bank Nat'l Ass'n v. Licht (In re Pengo Indus., Inc.), 129 B.R. 104 (N.D.Tex.1991).2 The Committee and Dr. Licht appeal from the judgment of the district court reversing the judgment of the bankruptcy court. We review the bankruptcy court's conclusion of law de novo. Stoker v. Smith (In re Moody), No. 91-2156, Slip op. 4091, 4092 (5th Cir. Apr. 29, 1992) (citing Jordan v. Southeast Nat'l Bank (In re Jordan), 927 F.2d 221, 224 (5th Cir.1991)). II. DISCUSSION 8 A. "Unmatured Interest" and Original Issue Discount. 9 Section 502(b) of the Bankruptcy Code requires the bankruptcy court to determine the amount of a claim objected to by a party in interest under section 502(a). Congress has provided specific standards to guide the bankruptcy court in making this determination. 11 U.S.C. § 502(b)(1)-(8) (1979 & Supp.1991). One established statutory rule is that the bankruptcy court must disallow any claim "for unmatured interest." 11 U.S.C. § 502(b)(2) (Supp.1991). This rule flows from the legal principle that "interest stops accruing at the date of the filing of the petition." S.Rep. No. 989, 95th Cong., 2d Sess. 63, reprinted in 1978 U.S.C.C.A.N. 5787, 5849. 10 In this case, the bankruptcy rule meets an economic acronym: OID. OID--original issue discount--presents a definitional concept generally unfamiliar to those not bonded to the world of economics. As ably explained by the Second Circuit, "[o]riginal issue discount results when a [debt instrument] is issued for less than its face value. The discount, which compensates for a stated interest rate that the market deems too low, equals the difference between a [debt instrument]'s face amount (stated principal amount) and the proceeds, prior to issuance expenses, received by the issuer." LTV Corp. v. Valley Fidelity Bank & Trust Co. (In re Chateaugay Corp.), 961 F.2d 378, 380 (2nd Cir.1992); see Marc S. Kirschner, Dan A. Kusnetz, Laurence Y. Solarsh & Craig S. Gatarz, Prepackaged Bankruptcy Plans: The Deleveraging Tool of the '90's in the Wake of OID and Tax Concerns, 21 Seton Hall L.Rev. 643, 648-50 (1991) [hereinafter Deleveraging Tool ]; see also Nicholas P. Saggese, Gregg A. Noel & Michael E. Mohr, A Practitioner's Guide to Exchange Offers and Consent	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Seventh District of Texas at Amarillo No. 07-18-00278-CR LEVI STUART NICHOLS AKA LEVI STUART NICHOLAS, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 108th District Court Potter County, Texas Trial Court No. 74,586-E, Honorable Douglas R. Woodburn, Presiding February 26, 2020 ORDER Before QUINN, C.J., and PIRTLE and DOSS, JJ. Pending before the Court is appellant’s motion for rehearing. We clarify one matter addressed in the motion and otherwise deny it. The matter concerns the first footnote in our opinion. Through it, we observed that 1) the circumstances could raise suspicions about whether the sole purpose of the inventory was to search for drugs, and 2) appellant did not so argue below or on appeal as grounds for suppressing the contraband eventually found. Appellant replied to those observations by arguing that: In addition, the substance of footnote 1 of this Court’s opinion seems to imply that trial counsel below should have requested the trial court to issue fact findings on whether the totality of the circumstances evinced an intent on the part of the police to conduct a pretextual inventory search. However, pretextual seizures are permitted under the current state of the law. Therefore, to request such a finding in the instant case would have accomplished little. We make no comment on whether “pretextual seizures are permitted under the current state of the law.” Rather, our intent was to indicate that appellant did not question whether the inventory was undertaken in good faith or merely as a subterfuge to justify a general search for contraband. As said in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.” Id. at 374 (emphasis added). Similarly, our United States Supreme Court in Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990), explained that inventory searches were permissible due to “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Id. at 4 (emphasis added). Because appellant did not contend that, under the circumstances at bar, the inventory procedures were not administered in “good faith” or were invoked merely as “a ruse for a general rummaging . . . to discover incriminating evidence,” that topic fell outside the scope of our review. See Washington v. State, 152 S.W.3d 209, 213 (Tex. App.—Amarillo 2004, no pet.) (holding that the issue of whether the trial court erred in refusing to suppress evidence was waived because the grounds asserted on appeal did not comport with those proffered to the trial court). With that, we deny the motion for rehearing. Per Curiam Do not publish. 2	{ "pile_set_name": "FreeLaw" }
759 P.2d 186 (1988) 107 N.M. 399 RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A., Petitioner, v. REVENUE DIVISION OF THE DEPARTMENT OF TAXATION AND REVENUE OF the STATE of NEW MEXICO, Respondent. No. 17617. Supreme Court of New Mexico. August 10, 1988. Rodey, Dickason, Sloan, Akin & Robb, P.A., Richard C. Minzner, Paul D. Barber, James O. Browning, Albuquerque, for petitioner. Hal Stratton, Atty. Gen., Frank D. Katz, Daniel Yohalem, Sp. Asst. Attys. Gen., Santa Fe, for respondent. OPINION STOWERS, Justice. We granted certiorari in this case to determine whether the New Mexico gross receipts tax applies to legal services performed by a non-Indian law firm off a reservation on behalf of Indian Tribes for claims against the United States pursuant to the Indian Claims Commission Act of 1946, (the Act) 25 U.S.C. Sections 70 to -70v-3 (1976), as amended Pub.L. No. 95-69 § 29(a), 91 Stat. 273 (July 20, 1977). The district court held that federal law preempted the state tax imposed by the respondent Revenue Division of the Department of Taxation and Revenue (Revenue Division) and granted summary judgment to petitioner Rodey, Dickason, Sloan, Akin & Robb, P.A. (Rodey). The court of appeals reversed, holding that the Act did not preempt the imposition of the tax and the tax did not constitute an impermissible infringement on tribal self-government or 187 Indian sovereignty, and remanded back to the district court to determine what portion of the legal services performed by Rodey took place outside New Mexico. We granted certiorari and affirm the court of appeals' decision but on different grounds. We affirm only the result reached by the court of appeals insofar as it held that the Revenue Division properly imposed a gross receipts tax on the legal services performed by Rodey. We do not agree with the court of appeals' reasoning that the New Mexico gross receipts tax imposed on legal services performed by a non-Indian law firm off the reservation requires a federal preemption by implication analysis. The federal preemption by implication doctrine created by the United States Supreme Court to protect Indian interests on the reservation does not apply to activities of non-Indians occurring off Indian reservations. See Ramah Navajo School Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982) (Ramah). The material facts, set forth in the court of appeals' opinion, are as follows. Rodey represented the Navajo Tribe in claims before the Federal Indian Claims Commission and the United States Court of Claims under the Act. The claims initially were filed in 1950 and 1951 and Rodey was retained in 1973 to prosecute those claims. In 1982 the parties reached a settlement resulting in two judgments in favor of the Tribe for $36,800,000. The statutory maximum, or ten percent of the judgments, was allocated as attorney fees in accordance with the Act. Rodey received a portion of this allocation amounting to $2,286,000. It paid the New Mexico gross receipts tax on that amount totalling approximately $93,000, and then filed for a refund. No portion of the tax was paid by the Tribe. Rodey performed at least fifty percent of its legal services in connection with these claims outside of the tribal reservation but within the State of New Mexico, and in addition, Rodey claims it performed some work on the reservation, some in Arizona, Utah and in Washington D.C. The Revenue Division denied the refund and Rodey filed suit in the district court. The Revenue Division argues that based on the preemption cases, Ramah, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982), White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (White Mountain), Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (Mescalero), and Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965) (Warren Trading Post), the tax imposed on Rodey for legal work performed off the reservation is not preempted by federal law. And, the preemption by implication doctrine, which balances federal, state and tribal interests, is inapplicable to activities taking place off the reservation. Rodey, on the other hand, claims that the preemption by implication analysis applies whenever the taxed activity deals with reservation Indians in a federally-regulated area, irrespective of whether the activity takes place on or off the reservation. "Absent federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Mescalero, 411 U.S. at 148-49, 93 S.Ct. at 1270. Exemptions from state taxes are not granted by implication, Oklahoma Tax Commission v. United States, 319 U.S. 598, 606, 63 S.Ct. 1284, 1287-88, 87 L.Ed. 1612 (1943); United States Trust Co. v. Helvering, 307 U.S. 57, 60, 59 S.Ct. 692, 693-94, 83 L.Ed. 1104 (1939). Trotter v. Tennessee, 290 U.S. 354, 356, 54 S.Ct. 138, 139, 78 L.Ed. 358 (1933), only an actual conflict with explicit provisions of a federal statute will preempt a state tax. In the instant case no federal statute exists that expressly forbids state taxation of the attorney fees received by counsel pursuant to the Act. Because there is no explicit preemption, Rodey bases its claim for a tax exemption on the preemption by implication doctrine, which evolved as an exception to the requirement of explicit tax exemption. In White Mountain the Supreme Court stated 188 the basis of the preemption by implication doctrine with respect to Indian tribes. The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of preemption that have emerged in other areas of the law * * *. We have thus rejected the proposition that in order to find a particular state law to have been pre-empted by operation of federal law, an express congressional statement to that effect is required. White Mountain, 448 U.S. at 143-44, 100 S.Ct. at 2583 (citations omitted). This analysis includes two independent but related barriers to the assertion of state taxing authority over Indian tribes, their reservations and their activities. First, the exercise of such authority may be pre-empted by federal law. Second, it may unlawfully infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 [79 S.Ct. 269, 270-71, 3 L.Ed.2d 251] (1959). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important "backdrop," McClanahan v. Arizona State Tax Comm'n, [411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973)], against which vague or ambiguous federal enactments must always be measured. Id. at 142-43, 100 S.Ct. at 2583 The Supreme Court repeatedly has stated however that exemptions from state tax by implication are permitted only where the taxed activity of the non-Indian occurred on the reservation. Ramah, 458 U.S. at 838, 102 S.Ct. at 3398-99, (imposition of New Mexico's gross receipts tax on receipts earned by a non-Indian contractor from the construction of a school for Indian children on the reservation was preempted by federal laws). A distinction has been made between the activities of non-Indians as opposed to Indian activities on reservations. Indian activities on reservations cannot be taxed by the state absent congressional consent. Mescalero, 411 U.S. at 148, 93 S.Ct. at 1270. Where the non-Indian activities occur on the reservation, a tax exemption by implication requires the balancing of federal interests determined from the relevant federal laws, with tribal interests as revealed by "traditional notions of tribal sovereignty," and with state interests to raise revenues from those to whom it provides governmental services. Id.; see also Annotation, Indians State or Local Taxation, 73 L.Ed.2d 1506, 1509-14 (1984). Relying on White Mountain, Warren Trading Post, Ramah and Mescalero, the court of appeals reasoned	{ "pile_set_name": "FreeLaw" }
Severability of Legislative Veto Provision A legislative veto provision in the S elective Service Act, w hich w ould authorize either H ouse o f C ongress to disapprove contracts in excess o f $25,000,000, is unconstitutional under Im m igration a n d N aturalization Service v. Chadha, but is severable from the rest o f the statute. T his unconstitutional provision m ust be severed from the statute in its entirety, including its language callin g fo r notification to C ongress o f proposed contracts. February 28, 1991 M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l F ed era l Em ergency M anagem ent A gency This responds to your request for the opinion of this Office concerning the severability of an unconstitutional legislative veto provision in section 18(a) of the Selective Service Act of 1948, 50 U.S.C. app. § 468(a). The statute authorizes the President to secure expedited delivery of materials procured for the military forces of the United States. It also contains a provision added in 1973 that would enable one House of Congress to disap prove contracts of more than twenty-five million dollars. We conclude that the unconstitutional legislative veto is severable from the statute’s grant of authority to the President to obtain expedited delivery of military contracts. We further conclude that the better view, under the unsettled authority, is that the portion of the statute added by the 1973 amendment constitutes the provision that must be severed from the statute. I. Section 18(a) of the Selective Service Act of 1948 provides: Whenever the President after consultation with and receiv ing advice from the National Security Resources Board determines that it is in the interest of the national security for the Government to obtain prompt delivery of any articles or materials the procurement of which has been authorized by the Congress exclusively for the use of the armed forces of 49 the United States, or for the use o f the Atomic Energy Com mission, he is authorized, through the head o f any Government agency, to place with any person operating a plant, mine, or other facility capable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropriate, except that no order which re quires payments thereunder in excess of $25,000,000 shall be placed with any person unless the Committees on Armed Ser vices of the Senate and the House of Representatives have been notified in writing of such proposed order and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Commit tees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such order. 50 U.S.C. app. § 468(a). Section 18(b) of the Act directs contractors to give precedence to orders placed pursuant to the statute. 50 U.S.C. app. § 468(a). The statute did not contain a legislative veto as originally enacted. Congress added the clause in section 18(a) that begins “except that no order” in 1973. See Department of Defense Appropriation Authorization Act, 1974, Pub. L. No. 93-155, § 807(d)(1), 87 Stat. 605, 616 (1973). II. The provision authorizing one House of Congress to disapprove an order of more than twenty-five million dollars is unconstitutional. Immigration and N aturalization Service v. Chadha, 462 U.S. 919 (1983). Chadha states that congressional “action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,” id. at 952, must comply with the constitutional requirements of passage by both Houses of Congress and presentment to the President for approval or veto. U.S. Const, art. I, §§ 1, 7. The resolution of disapproval authorized by the 1973 addition to section 18(a) authorizes one House of Congress to limit the President’s legal powers. The congressional disap proval mechanism, therefore, may not constitutionally be employed. III. A. The next question is whether the legislative veto may be severed from the remaining provisions of the statute that grant the President authority to order articles and materials on an expedited basis. The Supreme Court has de cided the severability of a legislative veto provision on two occasions. See 50 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987); Chadha, 462 U.S. at 931-35. Both cases employ the standard test for severability questions: “Unless it is evident that the Legislature would not have enacted those pro visions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, 480 U.S. at 684; Chadha, 462 U.S. at 931-32.1 Writing with specific reference to legislative vetoes, the Court in Alaska Airlines emphasized that “ [t]he more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress.” 480 U.S. at 685. Additionally, unconstitutional provisions are presumed to be severable from the remainder of a statute. See Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion). Finally, unconsti tutional provisions are further presumed to be severable if they are contained in a statute that includes a severability clause. See, e.g., Alaska Airlines, 480 U.S. at 686; Chadha, 462 U.S. at 932. The absence of such a clause, however, does not give rise to a presumption against severability. See Alaska Airlines, 480 U.S. at 686.2 The grant of authority to the President in section 18(a) would remain fully operative as a law if the congressional disapproval language is excised. The language authorizing the President to order materials needed for na tional security was part of the statute as originally enacted in 1948. It was fully operational in its original form. The congressional disapproval mecha nism was added by Congress in 1973 to provide congressional review o f a Presidential decision to place orders over $25,000,000. As the Court ex plained in Alaska Airlines, provisions of this sort are by their “very nature . . . separate from the operation of the substantive provisions of a statute,” and do not affect the capacity of the balance of the legislation to function indepen dently. 480 U.S. at 684-85. Next, the law that results when the legislative veto provision is severed is not one that Congress would not have enacted. See Alaska Airlines, 480 U.S. at 685 (severance improper where it would produce a statute that Con gress would not have accepted). O f course, “the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government,” Alaska Airlines 480 U.S. at 685, but that is not enough to preclude severance. Rather, the appropriate inquiry is whether the delegation to the President of the power to enter into these military contracts is “so controversial or so broad that Congress would have been unwilling to make the delegation without a strong oversight mechanism.” Id. There is no reason to believe that Congress would have refused to grant this power. Congress made such a grant in 1948, and added the legislative veto provision only in 1973. In this case, then, the proper question is whether in 1973 Congress would have repealed the 1948 law if it had known that the 1 This is the C ourt’s longstanding test for severability. See Champlin Refining Co. v. Corporation Comm 'n, 286 U.S 2 1 0 ,2 3 4 (1932). 2 Neither the 1948 act nor the 1973 amendments include a severability clause. 51 legislative veto provision was impermissible. We are aware of no indication that Congress would have taken such a step, and the legislative history of the 1973 amendment strongly suggests that it would have done no such thing. Congress added the legislative veto to the statute in 1973 as one of a group o f amendments to four statutes giving the President emergency pow ers in an attempt to “reassert congressional control over backdoor financing of defense contractors.” 119 Cong. Rec. 30,873 (1973) (statement of Sen. Proxmire). The initial Senate version of the 1973 amendment would have provided that no order over twenty-million dollars could be placed “except with the prior approval of the Congress.” Id.	{ "pile_set_name": "FreeLaw" }
458 U.S. 832 (1982) RAMAH NAVAJO SCHOOL BOARD, INC., ET AL. v. BUREAU OF REVENUE OF NEW MEXICO No. 80-2162. Supreme Court of the United States. Argued April 28, 1982. Decided July 2, 1982. APPEAL FROM THE COURT OF APPEALS OF NEW MEXICO 833 Michael P. Gross argued the cause for appellants. With him on the briefs were Carl Bryant Rogers and Neal A. Jackson. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, Elinor Hadley Stillman, Edward J. Shawaker, and Maria A. Iizuka. Jan Unna, Special Assistant Attorney General of New Mexico, argued the cause for appellee. With him on the brief were Jeff Bingaman, Attorney General, and Gerald B. Richardson, Assistant Attorney General.[] 834 JUSTICE MARSHALL delivered the opinion of the Court. In this case, we address the question whether federal law pre-empts a state tax imposed on the gross receipts that a non-Indian construction company receives from a tribal school board for the construction of a school for Indian children on the reservation. The New Mexico Court of Appeals held that the gross receipts tax imposed by the State of New Mexico was permissible. Because the decision below is inconsistent with White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980) (White Mountain), we reverse. I Approximately 2,000 members of the Ramah Navajo Chapter of the Navajo Indian Tribe live on tribal trust and allotment lands located in west central New Mexico. Ramah Navajo children attended a small public high school near the reservation until the State closed this facility in 1968. Because there were no other public high schools reasonably close to the reservation, the Ramah Navajo children were forced either to abandon their high school education or to attend federal Indian boarding schools far from the reservation. In 1970, the Ramah Navajo Chapter exercised its authority under Navajo Tribal Code, Title 10, § 51 (1969), and established its own school board in order to remedy this situation. Appellant Ramah Navajo School Board, Inc. (the Board), was organized as a nonprofit corporation to be operated exclusively by members of the Ramah Navajo Chapter. The Board is a Navajo "tribal organization" within the meaning of 25 U. S. C. § 450b(c), 88 Stat. 2204. With funds provided by the federal Bureau of Indian Affairs (BIA) and the Navajo Indian Tribe, the Board operated a school in the abandoned public school facility, thus creating the first independent Indian school in modern times.[1] 835 In 1972, the Board successfully solicited from Congress funds for the design of new school facilities. Pub. L. 92-369, 86 Stat. 510. The Board then contracted with the BIA for the design of the new school and hired an architect. In 1974, the Board contracted with the BIA for the actual construction of the new school to be built on reservation land. Funding for the construction of this facility was provided by a series of congressional appropriations specifically earmarked for this purpose.[2] The contract specified that the Board was the design and building contractor for the project, but that the Board could subcontract the actual construction work to third parties. The contract further provided that any subcontracting agreement would have to include certain clauses governing pricing, wages, bonding, and the like, and that it must be approved by the BIA. The Board then solicited bids from area building contractors for the construction of the school, and received bids from two non-Indian firms. Each firm included the state gross receipts tax as a cost of construction in their bids, although the tax was not itemized separately. Appellant Lembke Construction Co. (Lembke) was the low bidder and was awarded the contract. The contract between the Board and Lembke provides that Lembke is to pay all "taxes required by law." Lembke began construction of the school facilities in 1974 and continued this work for over five years. During that time, Lembke paid the gross receipts tax and, pursuant to standard industry practice, was reimbursed by the Board for the full amount paid. Before the second contract between Lembke and the Board was executed in 1977, a clause was inserted into the contract recognizing that the Board could 836 litigate the validity of this tax and was entitled to any refund. Both Lembke and the Board protested the imposition of the gross receipts tax. In 1978, after exhausting administrative remedies, they filed this refund action against appellee New Mexico Bureau of Revenue in the New Mexico District Court. At the time of trial, the parties stipulated that the Board had reimbursed Lembke for tax payments of $232,264.38 and that the Board would receive any refund that might be awarded. The trial court entered judgment for the State Bureau of Revenue. After noting that the "legal incidence" of the tax fell on the non-Indian construction firm, the court rejected appellants' arguments that the tax was pre-empted by comprehensive federal regulation and that it imposed an impermissible burden on tribal sovereignty. The Court of Appeals for the State of New Mexico affirmed. 95 N. M. 708, 625 P. 2d 1225 (1980). Although acknowledging that the economic burden of the tax fell on the Board, the Court of Appeals concluded that the tax was not preempted by federal law and that it did not unlawfully burden tribal sovereignty. The Board filed a petition for rehearing in light of this Court's intervening decisions in White Mountain, supra, and Central Machinery Co. v. Arizona State Tax Comm'n, 448 U. S. 160 (1980). The Court of Appeals denied the petition, stating only that this case did not involve either "a comprehensive or pervasive scheme of federal regulation" or "federal regulation similar to the Indian trader statutes." App. to Juris. Statement 36. After initially granting discretionary review, the New Mexico Supreme Court quashed the writ as improvidently granted. 96 N. M. 17, 627 P. 2d 412 (1981). We noted probable jurisdiction. 454 U. S. 1079 (1981). II In recent years, this Court has often confronted the difficult problem of reconciling "the plenary power of the States over residents within their borders with the semi-autonomous 837 status of Indians living on tribal reservations." McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 165 (1973). Although there is no definitive formula for resolving the question whether a State may exercise its authority over tribal members or reservation activities, we have recently identified the relevant federal, tribal, and state interests to be considered in determining whether a particular exercise of state authority violates federal law. See White Mountain, 448 U. S., at 141-145. A In White Mountain, we recognized that the federal and tribal interests arise from the broad power of Congress to regulate tribal affairs under the Indian Commerce Clause, Art. I, § 8, cl. 3, and from the semi-autonomous status of Indian tribes. 448 U. S., at 142. These interests tend to erect two "independent but related" barriers to the exercise of state authority over commercial activity on an Indian reservation: state authority may be pre-empted by federal law, or it may interfere with the tribe's ability to exercise its sovereign functions. Ibid. (citing, inter alia, Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685 (1965); McClanahan v. Arizona State Tax Comm'n, supra; and Williams v. Lee, 358 U. S. 217 (1959)). As we explained in White Mountain: "The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important `backdrop,'... against which vague or ambiguous federal enactments must always be measured." 448 U. S., at *838 143 (quoting McClanahan v. Arizona State Tax Comm'n, supra, at 172). The State's interest in exercising its regulatory authority over the activity in question must be examined and given appropriate weight. Pre-emption analysis in this area is not controlled by "mechanical or absolute conceptions of state or tribal sovereignty"; it requires a particularized examination of the relevant state, federal, and tribal interests. 448 U. S., at 145. The question whether federal law, which reflects the related federal and tribal interests, pre-empts the State's exercise of its regulatory authority is not controlled by standards of pre-emption developed in other areas. Id., at 143-144. Instead, the traditional notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts promoting tribal independence and economic development, inform the pre-emption analysis that governs this inquiry. See id., at 143, and n. 10. Relevant federal statutes and treaties must be examined in light of "the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence." Id., at 144-145. As a result, ambiguities in federal law should be construed generously, and federal pre-emption is not limited to those situations where Congress has explicitly announced an intention to pre	{ "pile_set_name": "FreeLaw" }
104 F.3d 361 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jimmy Lee HARVEST, Plaintiff-Appellee,v.John RANDOLPH, Defendant-Appellant, andState of Tennessee, Department of Transportation, Defendant. No. 95-6319. United States Court of Appeals, Sixth Circuit. Dec. 18, 1996. On Appeal from the United States District Court, for the Eastern District of Tennessee, No. 94-00497; Thomas W. Phillips, United States Magistrate Judge. E.D.Tenn. REVERSED. Before: LIVELY and NELSON, Circuit Judges, and HACKETT, District Judge. PER CURIAM. 1 The defendant John Randolph appeals from the district court's denial of his motion for summary judgment on the ground of qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511 (1985). I. 2 Represented by an attorney, Jimmy Lee Harvest, who is an African-American, sued the Tennessee Department of Transportation (TDOT), his former employer, and John Randolph, his immediate supervisor at TDOT, in a Tennessee state court, alleging that the defendants discriminated against him on the basis of his race. The complaint charged both defendants with violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and a Tennessee civil rights statute, and of conspiracy to force his resignation in violation of 42 U.S.C. §§ 1983 and 1985. Though not clearly stated, the claim under § 1983 appears to have charged violation of the Equal Protection Clause of the Fourteenth Amendment. The prayer for relief demanded damages against both defendants in the amount of $250,000 and reinstatement to his former position, with full back pay and benefits. As an action under federal civil rights laws, the case was removed to district court. See 28 U.S.C. § 1443. 3 The defendants filed a motion to dismiss and for summary judgment. With consent of the parties, the case was transferred to a magistrate judge for final disposition. After some discovery, the magistrate judge issued an order granting in part and denying in part the defendants' motion. The court concluded that the plaintiff had failed to make out a prima facie case for recovery under Title VII and had failed to establish a conspiracy in violation of 42 U.S.C. § 1985. The court held that TDOT was immune from suit for damages under the Eleventh Amendment, but that Randolph had been sued in his individual capacity and was not entitled to qualified immunity. 4 In accordance with these rulings, the district court dismissed all claims against TDOT and the claims against Randolph predicated on a Title VII violation and a conspiracy. It also dismissed the state law claim without prejudice. Randolph appeals from the refusal of the court to dismiss the claims against him brought under 42 U.S.C. § 1983. The plaintiff conceded in a memorandum filed in the district court that he had not satisfied the requirements of a Title VII claim or established the existence of a conspiracy. He also conceded that TDOT was immune from suit under the Eleventh Amendment. The only claim remaining is the § 1983 claim against Randolph. 5 The parties waived oral argument, and the appeal was submitted on the district court record and Randolph's brief. The appellee, Harvest, did not file a brief. Although Randolph has challenged several of the district court's rulings, only one need be addressed here: the district court's denial of Eleventh Amendment immunity based on its belief that Randolph was sued in his personal, rather than official, capacity. We have interlocutory appellate jurisdiction over a denial of Eleventh Amendment immunity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Williams v. Kentucky, 24 F.3d 1526, 1543 (6th Cir.), cert. denied, 115 S.Ct. 358 (1994). II. A. 6 As he did before the district court, Randolph argues on appeal that he was sued only in his official capacity and therefore shares the absolute Eleventh Amendment immunity of TDOT. We agree. 7 The complaint in this case did not specify the capacity in which Harvest sued Randolph. Under the settled law of this Circuit, where a complaint seeking monetary damages against a state official under 42 U.S.C. § 1983 does not clearly state that the official is sued in his individual or personal capacity, the court must treat the lawsuit as one against the defendant in his official capacity. Wells v. Brown, 891 F.2d 591, 592 (6th Cir.1989). See also Wittington v. Milby, 928 F.2d 188, 193 (6th Cir.), cert. denied, 502 U.S. 883 (1991); Hardin v. Straub, 954 F.2d 1193, 1199 (6th Cir.1992); Thiokol Corp. v. Department of Treasury, 987 F.2d 376, 383 (6th Cir.1993), all to the same effect. The court recognized this rule in Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir.), cert. denied, 115 S.Ct. 2269 (1995), but found that the plaintiff had taken steps shortly after filing the complaint to make it clear that the defendant was sued in his individual capacity. Thus the individual defendant in that case had sufficient notice that the plaintiff was seeking damages from him individually, not as a state official. B. 8 The magistrate judge recognized the Wells rule, but stated, "Giving plaintiff the benefit of the doubt, the court accepts plaintiff's argument that he is suing defendant Randolph in his individual capacity." We can find no basis for this ruling. Then Chief Judge Merritt's language cannot be misunderstood and is not subject to interpretation. He wrote in Wells that plaintiffs seeking damages under § 1983 must "set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply in their capacity as state officials." Wells, 891 F.2d at 592. 9 This case differs from the situation in Pelfrey where a panel of this court found Wells distinguishable. Here the defendants TDOT and Randolph filed their joint motion to dismiss and for summary judgment on May 26, 1995. The magistrate judge filed his dispositive order on September 5, 1995. Although the Tennessee Attorney General filed an answer and the motion to dismiss and for summary judgment on behalf of both defendants, the plaintiff did not amend his complaint to state clearly that he was suing Randolph in his individual capacity though he had more than three months in which to do so. Nor did he take any other steps to notify Randolph that he was being sued individually for damages. In Pelfrey, on the other hand, the court found that the plaintiff gave sufficient notice to defendants who were state officials that they were being sued individually for damages. The notice stemmed from the fact that shortly after filing the complaint Pelfrey filed a motion to prohibit the Ohio Attorney General from representing the individual defendants because they were being sued in their individual capacities. Pelfrey, 43 F.3d at 1038. Thus, the present case is not analogous to the situation in the only published decision where this court has not applied the Wells rule strictly. III. 10 Since the Supreme Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58 (1989), it is settled law that state officials sued for damages under § 1983 in their official capacities are absolutely immune under the Eleventh Amendment. This is so because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Id. at 71 (citations omitted). Concluding as we do that Harvest sued Randolph in his official capacity only, Randolph is entitled to absolute immunity. We need not discuss qualified immunity, as that defense applies only to state actors sued in their individual capacities. 11 The judgment of the district court is REVERSED and the case is REMANDED to the district court with directions to remand the 42 U.S.C. § 1983 claim against Randolph to the state court from which it was removed. See Henry v. Metropolitan Sewer District, 922 F.2d 332, 338 (6th Cir.1990). The Honorable Barbara Hackett, United States District Judge for the Eastern District of Michigan, sitting by designation	{ "pile_set_name": "FreeLaw" }
538 F.2d 332 Soft-Touch Saunasv.Anderson No. 75-1675 United States Court of Appeals, Eighth Circuit 4/1/76 1 D.Minn. AFFIRMED	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION AUG 02 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LOUIS EUGENE CUNNINGHAM, No. 08-35913 Plaintiff - Appellant, D.C. No. 1:05-cv-00515-FVS v. MEMORANDUM * SGT. FLETCHER, Sgt. Mail Room Operations; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Idaho Fred L. Van Sickle, District Judge, Presiding Submitted July 19, 2010 ** Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges. Louis Eugene Cunningham, an Idaho state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to effect service of process. We have jurisdiction under 28 U.S.C. § 1291. We * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). review for an abuse of discretion. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). We reverse and remand. Cunningham substantially complied with Rule 4 of the Federal Rules of Civil Procedure by serving the summons and the original complaint on a Deputy Attorney General, and attempting to serve the operative complaint on Michael J. Elia, who was appointed Special Deputy Attorney General for the purpose of representing defendants in this case. See Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (so long as there is substantial compliance with Rule 4 and the defendant receives sufficient notice of the complaint, Rule 4 is to be liberally construed to uphold service); Idaho Admin. Code r.06.01.01.106 (2010) (requiring service of summons, complaints, and subpoenas against or upon the Idaho Department of Corrections and its employees to be made upon the deputy attorneys general assigned to the Department in the manner and form required by state and federal rules of procedure). Accordingly, we reverse the judgment and remand for further proceedings. REVERSED and REMANDED. 2 08-35913	{ "pile_set_name": "FreeLaw" }
220 F.Supp.2d 1330 (2002) John KLEJA, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security,[1] Defendant. No. 6:01-CV-160-ORL-JGG. United States District Court, M.D. Florida, Orlando Division. February 14, 2002. 1331 1332 Mary Ann Sloan, Chief Counsel, Dennis R. Williams, Deputy Chief Counsel, Paul Jones, Assistant Regional Counsel, Office of the General Counsel, Region IV, Social Security Administration, Atlanta, GA. Susan Roark Waldron, Assistant United States Attorney, Tampa. ORDER GLAZEBROOK, United States Magistrate Judge. Plaintiff appeals to the district court from a final decision of the Commissioner of Social Security [the "Commissioner"] finding that the Commissioner had properly applied a workers' compensation offset to his back benefits and that his disability insurance benefits would be subject to off-set with the month of attainment of age 62. I. PROCEDURAL HISTORY On August 2, 1993, Plaintiff protectively filed his claim for disability benefits, claiming disability as of November 9, 1992. R. 12. The claim was denied initially and on reconsideration, but by an "on the record" Administrative Law Judge (ALJ) decision of February 27, 1995, Plaintiff was found disabled beginning November 9, 1992. R. 12. Subsequent to the favorable ALJ decision, 1333 Plaintiff received an award letter dated April 11, 1995, stating that a weekly rate of $425.00 was used to compute the workers' compensation offset and that the offset would apply beginning May 1993. Plaintiff filed a request for reconsideration, and after the reconsideration denial, a request for an on-the-record review by an ALJ, challenging these determinations. R.13. On January 22, 1997, the Honorable Apolo Garcia issued a decision finding that the application of workers' compensation offset was correct, that the Commissioner was not bound by a subsequent addendum to the lump sum settlement dated April 14, 1994, and that Plaintiff's monthly disability benefits would be subject to offset effective with the month Plaintiff attained age 62. R. 107-14. Plaintiff requested review of this hearing decision. R. 116-124. In a decision dated June 18, 1999, the Appeals Council vacated the 1997 hearing decision "because neither the workers' compensation settlement document nor the first addendum are in the record," and remanded the case to the ALJ for further proceedings. R. 125-127. In a decision dated September 18, 1999, the ALJ determined that Plaintiff's benefits were subject to offset using the periodic weekly rate received from May 1993 to July 1993. R.12-20. He further determined that the Commissioner, in computing the offset applicable from August 1993 through February 1995, properly relied on the weekly rate of $418.27 specified in the original addendum to Plaintiff's July 20, 1993, lump sum settlement agreement. The ALJ also found that the Commissioner was not bound by the later, April 14, 1994, addendum, and that Plaintiff's disability insurance benefits would be subject to offset with the month he attained age 62. R. 12-20. This became the final decision of the Commissioner when the Appeals Council determined on December 29, 2000, that there was no basis for granting Plaintiff's request for review. R. 4-5. On February 6, 2001, Plaintiff timely appealed the Appeals Council's decision to deny review to the United States District Court. Docket No. 1. On September 21, 2001, Plaintiff filed a memorandum of law in support of his appeal of the denial of review. Docket No. 11. On November 20, 2001, the Commissioner filed a memorandum in support of her decision regarding the workers' compensation offset. Docket No. 12. This Court heard oral argument on January 30, 2002. Docket No. 17. The appeal is ripe for determination. II. THE PARTIES' POSITIONS Plaintiff assigns two errors to the Commissioner. Plaintiff claims that the Commissioner erred in failing to use the rate specified in the 1994 addendum to the lump sum settlement in computing Plaintiff's workers' compensation offset. Second, Plaintiff claims that the Commissioner erred by concluding that his disability insurance benefits would be subject to off-set with the month of attainment of age 62. The Commissioner argues that substantial evidence supports her calculation of the workers' compensation offset. III. THE STANDARD OF REVIEW A. Affirmance The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant 1334 evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n. 3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). B. Reversal and Remand Congress has empowered the district court to reverse the decision of the Commissioner without remanding the cause. 42 U.S.C. § 405(g)(Sentence Four). The district court will reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). This Court may reverse the decision of the Commissioner and enter an order awarding disability benefits where the Commissioner has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.1993); accord, Bowen v. Heckler, 748 F.2d 629, 631, 63637 (11th Cir.1984). The district court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both. Jackson v. Chater, 99 F.3d 1086, 108992, 1095, 1098 (11th Cir.1996). To remand under sentence four, the district court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Jackson, 99 F.3d at 109091 (remand appropriate where ALJ failed to develop a full and fair record of claimant's residual functional capacity); accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to find claimant disabled). Where the district court cannot discern the basis for the Commissioner's decision, a sentence-four remand may be appropriate to allow her to explain the basis for her decision. Falcon v. Heckler, 732 F.2d 827, 829-30 (11th Cir.1984) (remand was appropriate to allow ALJ to explain his basis for determining that claimant's depression did not significantly affect her ability to work) (treating psychologist *1335 acknowledged that claimant had improved in response to treatment and could work in a supportive, non-competitive, tailor-made work environment). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir.1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals Council); Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984) (ALJ should consider on remand the need for orthopedic evaluation). After a sentence-four remand, the district court enters a final and appealable judgment immediately, and then	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1951 In Re: ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION (MDL No. 2327) -------------------------------------- SHARON WEER; THOMAS WEER, Plaintiffs – Appellants, v. ETHICON, INCORPORATED; ETHICON, L.L.C.; JOHNSON & JOHNSON, Defendants - Appellees. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:13-cv-03792; 2:12-md-02327) Submitted: March 30, 2016 Decided: April 6, 2016 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Douglas R. Plymale, DUGAN LAW FIRM, PLC, New Orleans, Louisiana, for Appellants. David B. Thomas, Daniel R. Higginbotham, THOMAS COMBS & SPANN PLLC, Charleston, West Virginia; Christy Jones, John C. Henegan, Sr., Susanna Moore Moldoveanu, BUTLER SNOW LLP, Ridgeland, Mississippi, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Sharon Weer and Thomas Weer appeal the district court’s order dismissing this action without prejudice because the Weers failed to timely effect service of process. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Weer v. Ethicon, Inc., Nos. 2:13-cv-03792; 2:12-md-02327 (S.D. W. Va. July 23, 2015). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3	{ "pile_set_name": "FreeLaw" }
C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	{ "pile_set_name": "FreeLaw" }
T.C. Summary Opinion 2003-52 UNITED STATES TAX COURT DAK, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 4335-01S. Filed May 15, 2003. Kenneth R. Chiate (an officer), for petitioner. Angelique Neal, for respondent. DINAN, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in - 2 - effect for the fiscal year in issue. All Rule references are to the Tax Court Rules of Practice and Procedure. Respondent determined a deficiency in petitioner’s Federal income tax of $30,447 for the taxable year ended May 31, 1995, and an addition to tax pursuant to section 6662(a) in the amount of $6,089.40. The issues for decision are: (1) Whether petitioner failed to report income in the amount of $120,371 for the year ended May 31, 1995; and (2) whether petitioner is liable for an accuracy- related penalty pursuant to the provisions of section 6662(a) in the amount of $6,089.40. Some of the facts have been stipulated and are so found. The stipulations of fact and the attached exhibits are incorporated herein by this reference. Petitioner’s principal place of business was in California on the date the petition was filed in this case. Background DAK, Inc. (hereinafter petitioner) operates a restaurant in Malibu, California, known as Moonshadows Restaurant (Moonshadows). The restaurant is located on the Pacific Coast Highway in Malibu and overlooks the Pacific Ocean. The Moonshadows premises is owned by Dr. Robert Shlens (Dr. Shlens). On October 1, 1991, Mr. Marvin Kelson (Mr. Kelson) was the principal of petitioner and entered into a lease with Dr. Shlens - 3 - to operate Moonshadows for a period of 15 years. The lease provided that petitioner would pay a minimum rent of $120,000 per year. The lease also required the payment of a percentage rent of 7-1/2 percent of annual gross sales if that amount exceeded the minimum rent of $120,000 per year. The lease also provided that Dr. Shlens had the right to conduct an audit of Moonshadows’s operations to verify the amount of its gross sales for any given period. In 1992, Kenneth R. Chiate (Mr. Chiate) purchased Moonshadows from Mr. Kelson. Mr. Chiate is an attorney. He is now the president and sole shareholder of Moonshadows and purchased the business for reasons other than running the restaurant. He has had nothing to do with the operation of the restaurant since he purchased it. After Mr. Chiate purchased the restaurant from Mr. Kelson in 1992, Mr. Kelson became Moonshadows’s accountant and bookkeeper from 1992 through 1995. In early 1995, Dr. Shlens hired a certified public accountant, Ms. Cecy Groom (Ms. Groom) to audit petitioner’s financial records. She was to verify the gross sales reported to Dr. Shlens by petitioner in order to confirm that the amount of rent being paid to Dr. Shlens by petitioner was correct. Ms. Groom’s audit was initially directed to the period June 1994 through May 31, 1995 (the applicable period), but was extended to - 4 - include the years 1992 through 1996. Upon completing her audit, Ms. Groom submitted a comprehensive report to Dr. Shlens. Moonshadows has a dining room and a bar area. During the applicable period, Moonshadows utilized two cash registers that recorded dining room sales (register 1) and bar sales (register 2). To conduct her audit, Ms. Groom used the cash register tapes from registers 1 and 2 to determine petitioner’s gross sales for the applicable period. She compared daily sales reported on sales journals, sales tax returns, financial statements, and petitioner’s monthly reports that were given to Dr. Shlens. Ms. Groom also compared the cash register tapes with the daily dinner and bar sales tickets. She determined that Moonshadows had sales in the dining area of $1,298,418 from June 1, 1994, through April 30, 1995, and sales in the bar area of $380,520, for the same period. Ms. Groom’s audit did not include the month of May 1995, because petitioner’s records for that month were not available for analysis. Ms. Groom also determined that for the period June 1, 1994, through April 30, 1995, the register tapes reported “other voids” and “voids and overrings” of $23,085 and $237,342, respectively. In 1997, respondent commenced his audit of petitioner’s tax year ended May 31, 1995. At that time, representatives of petitioner informed respondent that petitioner’s sales records - 5 - for the fiscal year ended May 31, 1995, had been destroyed or misplaced. Having become aware of Ms. Groom’s audit, respondent examined her audit report for the applicable period and adopted it in principal to determine petitioner’s gross sales for the period June 1, 1994, through April 30, 1995. Respondent also relied upon petitioner’s “Statement of Revenues, Expenses and Retained Earnings” for the month ended May 31, 1995. After reviewing Ms. Groom’s audit report and petitioner’s “Statement of Revenues, Expenses and Retained Earnings” for the month ended May 31, 1995, respondent determined that petitioner had gross sales of $1,808,423 for the fiscal year ended May 31, 1995. From that amount, respondent allowed the following deductions: Sales tax $108,318 Other voids 23,085 Voids and overrings 237,342 $368,745 Respondent deducted from the amount of gross sales ($1,808,423) the foregoing amount of $368,745 and calculated an amount of net gross sales of $1,439,678 for the applicable period. The record shows that petitioner does not challenge the amounts determined as deductions for sales tax, other voids, and voids and overrings. On its Federal income tax return for the fiscal year ended May 31, 1995, petitioner reported income of $1,319,308. In his notice of deficiency dated January 3, 2001, respondent determined - 6 - that petitioner failed to report income for its fiscal year ended May 31, 1995, in the amount of $120,371. Discussion We are asked to decide (1) whether petitioner may deduct from its gross sales for the taxable year ended May 31,1995, “double-ups” in the amount of $120,371 and (2) whether petitioner is liable for an accuracy-related penalty pursuant to the provisions of section 6662(a) in the amount of $6,089.40. Deductions are a matter of legislative grace, and a taxpayer bears the burden of proving that it is entitled to any deduction claimed.1 Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Deputy v. du Pont, 308 U.S. 488 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Section 6001 requires all taxpayers to maintain sufficient records to determine their tax liabilities. When a taxpayer fails to maintain adequate books and records, respondent is entitled to reconstruct the taxpayer’s income by any reasonable method. Holland v. United States, 348 U.S. 121 (1954); Ferenc v. Commissioner, T.C. Memo. 1991-617, affd. without published opinion 9 F.3d 120 (11th Cir. 1993); sec. 1.6001-1(a), Income Tax Regs. 1 Because the examination of petitioner began prior to July 22, 1998, sec. 7491	{ "pile_set_name": "FreeLaw" }
807 F.2d 1560 55 USLW 2407, 8 Employee Benefits Ca 1033 Vann K. HOWARD and Kathryn D. Howard, Plaintiffs-Appellants,v.PARISIAN, INC., etc.; Parisian Employees Health Care Plan;Hahn Shoe Company, et al.; Protective LifeInsurance Company, Defendants-Appellees. No. 86-7401. United States Court of Appeals,Eleventh Circuit. Jan. 20, 1987. Stephen D. Heninger, Hare, Wynn, Newell & Newton, Birmingham, Ala., for plaintiffs-appellants. Lee H. Zell, Berkowitz, Lefkovits, Isom & Kushner, Birmingham, Ala., for defendants-appellees. Appeal from the United States District Court for the Northern District of Alabama. Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and ESCHBACH*, Senior Circuit Judge. JOHNSON, Circuit Judge: 1 This case involves an appeal from two orders dismissing a count alleging certain state law claims and striking a jury demand for the other count. We affirm the dismissal of the count alleging the state law claims and dismiss the appeal concerning the jury demand for lack of jurisdiction. BACKGROUND 2 On February 28, 1986, Vann K. Howard and his wife ("Howard") filed a complaint in Alabama state court against Parisian, Inc., Parisian Employees' Health Care Plan ("Plan"), and Hahn Shoe Company. Howard, an employee of Parisian and a beneficiary of the Plan, was severely injured in an automobile accident. A few days later Parisian terminated Howard's employment, causing Howard's coverage under the Plan to cease six months later. Parisian refused to pay any of Howard's medical expenses after his coverage ceased. In his suit, Howard sought the recovery of additional health care benefits under the Plan (Count I). Howard also sought compensation for the bad faith refusal to pay such benefits and the outrageous and intentional infliction of emotional distress (Count II). He demanded a jury trial for both counts. 3 Because the Plan is regulated under the Employee Retirement Income Security Act of 1974 ("ERISA"), the defendants removed the case to the United States District Court for the Northern District of Alabama. Parisian and the Plan then filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss Count II and a motion to strike the jury demand as to Count I. Before ruling on these motions, the district court granted Howard leave to file an amended complaint. In his amended complaint, Howard joined Protective Life Insurance Company ("Protective"), the claims administrator of the Plan, as a defendant and added a conspiracy count as to all of the defendants. 4 After Howard filed his amended complaint, the court granted both motions in the same order. Concluding that the Plan was an "employee welfare benefit plan" within the meaning of ERISA, the court dismissed Count II because it asserted state law claims preempted by Section 514(a) of ERISA, 29 U.S.C.A. Sec. 1144(a). The court also struck the jury demand for Count I. The court entered final judgment on this order under Fed.R.Civ.P. 54(b). The court denied Howard's motion to reconsider the striking of the jury demand. 5 Parisian, the Plan, and Protective then moved to dismiss the amended complaint. The court dismissed without prejudice all claims against them added by the amended complaint. However, the court required Protective to answer the allegations of Count I of the original complaint charging it with a violation of ERISA. The court also certified this order as a final judgment under Rule 54(b). Howard now appeals both orders. DISCUSSION A. PREEMPTION OF STATE LAW CLAIMS 6 There is no doubt that the Plan is governed by ERISA. ERISA applies to all employee benefit plans established by any employer engaged in interstate commerce or in any industry affecting interstate commerce. 29 U.S.C.A. Sec. 1003(a)(1). An employee benefit plan can be either an employee welfare benefit plan or an employee pension benefit plan. 29 U.S.C.A. Sec. 1002(3). An employee welfare benefit plan is: 7 any plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, [or] death.... 8 29 U.S.C.A. Sec. 1002(1). 9 Established by Parisian in order to provide health care benefits to participating employees, the Plan is a self-funded employee welfare benefit plan. Parisian is engaged in interstate commerce. Therefore, the Plan constitutes an employee benefit plan established by an employer engaged in interstate commerce and is governed by ERISA. 10 With exceptions that are irrelevant here,1 ERISA "supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." 29 U.S.C.A. Sec. 1144(a). Because Congress intended the regulation of employee benefit plans to be exclusively a federal concern, Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981), the Supreme Court has broadly interpreted the "relate to" language of Section 1144(a) as encompassing any state law that has a "connection with or reference to" employee benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Thus ERISA preempts all state laws insofar as they apply to employee benefit plans even if those laws do not expressly concern employee benefit plans and amount only to indirect regulation of such plans. Id. at 98, 103 S.Ct. at 2900; Alessi, 451 U.S. at 523-25, 101 S.Ct. at 1906-07. Furthermore, ERISA preempts all such laws regardless of whether they conflict with any specific provision of ERISA. Otherwise, the regulation of employee benefit plans would not be exclusively a federal concern. Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985); Shaw, 463 U.S. at 98-99, 103 S.Ct. at 1900-01. 11 Admittedly some state laws affect employee benefit plans too tenuously to be characterized fairly as relating to employee benefit plans. See, e.g., Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1465-70 (5th Cir.1986) (corporate officer's fiduciary duties to shareholders not preempted simply because employee benefit plan is shareholder); Lane v. Goren, 743 F.2d 1337, 1339-41 (9th Cir.1984) (state anti-discrimination laws apply to employees of benefit plan); Bowen v. Bowen, 715 F.2d 559, 560-61 (11th Cir.1983) (per curiam) (garnishment of spouse's benefit plan income in order to enforce alimony payment not preempted). Nor are state laws preempted merely because they have an economic impact on employee benefit plans. See, e.g., Rebaldo v. Cuomo, 749 F.2d 133, 137-40 (2d Cir.1984), cert. denied, 472 U.S. 1008, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985) (state statute establishing hospital rates chargeable to employee benefits plans not preempted). 12 However, if a state law claim arises out of the administration of benefits under a plan, the claim is preempted. Scott v. Gulf Oil Corp., 754 F.2d 1499, 1505 (9th Cir.1985). Thus this Circuit and other circuits have uniformly held that state law challenges to the denial of benefits under an employee benefit plan are preempted. See, e.g., Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 326-28 (2d Cir.1985), aff'd, --- U.S. ----, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986) (state law claim seeking to obtain severance pay provided by employee benefit plan preempted); Powell v. Chesapeake & Potomac Telephone Co., 780 F.2d 419, 421-22 (4th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2892, 91 L.Ed.2d 558 (1986) (state law claims for intentional infliction of emotional distress, breach of covenant of good faith and fair dealing, breach of contract, and unfair trade practices arising out of denial of disability benefits preempted); Dependahl v. Falstaff	{ "pile_set_name": "FreeLaw" }
FILED UNITED S'I`ATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 s G\|I'L U.S. D\|strlct & Banlcrnp\|ny Courts for the Dlstnct of Gollroil¢ Surf Moore, ) ) Plaintiff, ) ) v. ) civil A¢rion N@. /{/- -' 70 7 ) U.S. Justice Dep’t., ) ) Defendant. ) ) MEMORANDUM OPINION This matter is before the Court on its initial review of plaintiff`s pro se Complaint and application to proceed fn forma pauperis. The Court will grant the in forma pauperis application and dismiss the case because the complaint fails to meet the minimal pleading requirements of Rule S(a) of the Federal Rules of Civil Procedure. Pro se litigants must comply with the Federal Rules of Civil Procedure. jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Rule S(a) ofthe Federal Rules of Civil Procedure requires complaints to contain "(l) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. S(a); see Ashcrofr v. Iqbal, 556 U.S. 662, 678-79 (2009)', Cira[sky v. CIA, 355 F.Bd 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair notice of the claim being asserted so that they can prepare a responsive answer and an adequate defense and determine whether the doctrine of res judicata applies. Brown v. Caftfctno, 75 F.R.D. 497,493(1).:).€. 1977). The plaintiff, a resident of Jacl<son, Mississippi. purports to sue the United States Department of Justice. See Compl. Caption. Plaintiff alleges that defendant has violated the first, second and fourteenth amendments to the Constitution and federal law. He seeks $100 million in damages The complaint consists of recitations of constitutional amendments, federal statutes, and excerpts from case law; it contains no supporting facts to provide adequate notice of a claim and, thus, will be dismissed A separate Order accompanies this Memorandum Opinion. Z//% /MW /['~ United S‘fates D'istrict judge Date: May , 2014	{ "pile_set_name": "FreeLaw" }
People v Williams (2020 NY Slip Op 00755) People v Williams 2020 NY Slip Op 00755 Decided on January 31, 2020 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 31, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ. 1131 KA 17-01993 [1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, vJASHUA WILLIAMS, DEFENDANT-APPELLANT. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered October 13, 2016. The judgment convicted defendant upon a nonjury verdict of murder in the second degree, criminal possession of a weapon in the second degree (two counts) and endangering the welfare of a child. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of murder in the second degree (Penal Law § 125.25 [1]), endangering the welfare of a child (§ 260.10 [1]), and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). We reject defendant's contention that the evidence is legally insufficient to establish his liability as an accessory with respect to those charges. "Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime[s], intentionally aid another in the conduct constituting the offense[s]" (People v Pizarro, 151 AD3d 1678, 1681 [4th Dept 2017], lv denied 29 NY3d 1132 [2017] [internal quotation marks omitted]; see § 20.00). Here, viewing the evidence in the light most favorable to the People (see People v Fox, 124 AD3d 1252, 1253 [4th Dept 2015]), the factfinder could have reasonably concluded that defendant and the man alleged by defendant to have shot the victim shared "a common purpose and a collective objective" (see People v Cabey, 85 NY2d 417, 422 [1995]), and that defendant "shared in the intention of" the shooter (People v Morris, 229 AD2d 451, 451 [2d Dept 1996], lv denied 88 NY2d 990 [1996]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although an acquittal would not have been unreasonable, upon "weigh[ing] conflicting testimony, review[ing] any rational inferences that may be drawn from the evidence and evaluat[ing] the strength of such conclusions" (People v Courteau, 154 AD3d 1317, 1318 [4th Dept 2017], lv denied 30 NY3d 1104 [2018]), we conclude that County Court did not fail to give the evidence the weight it should be accorded (see People v O'Neill, 169 AD3d 1515, 1515 [4th Dept 2019]; see generally Bleakley, 69 NY2d at 495). Contrary to defendant's contention, the trial testimony tending to establish his guilt was not incredible as a matter of law (see generally People v Washington, 160 AD3d 1451, 1452 [4th Dept 2018]; People v Moore [appeal No. 2], 78 AD3d 1658, 1659-1660 [4th Dept 2010]), and any inconsistencies in that testimony merely presented issues of credibility for the factfinder to resolve (see generally People v Withrow, 170 AD3d 1578, 1579 [4th Dept 2019], lv denied 34 NY3d 940 [2019], reconsideration denied 34 NY3d 1020 [2019]; People v Graves, 163 AD3d 16, 23 [4th Dept 2018]). We also reject defendant's contention that he received ineffective assistance of counsel [2]due to counsel's failure to adduce evidence at trial that one of the People's witnesses had received a specific promise of consideration in exchange for that witness' truthful testimony. At trial, however, that witness testified that he hoped his cooperation would be considered at his upcoming sentencing on an unrelated charge, and that no specific promise had been made to him. The record on appeal contains no evidence of any agreement beyond the general hope for leniency described by the witness at trial, and thus defendant has failed to "demonstrate the absence of strategic or other legitimate explanations for" defense counsel's failure to adduce additional proof of a specific agreement (People v Kurkowski, 117 AD3d 1442, 1443 [4th Dept 2014] [internal quotation marks omitted]). Finally, the sentence is not unduly harsh or severe. Entered: January 31, 2020 Mark W. Bennett Clerk of the Court	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 16, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-20300 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERTO GARZA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-M-165-2 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Roberto Garza appeals from an order of the district court denying his motion to revoke the magistrate judge’s pretrial detention order. The district court’s decision, which effectively adopted the reasoning of the magistrate judge, rests upon its conclusion that Garza has not rebutted the presumption that no condition or combination of conditions will reasonably assure the * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. safety of the community.1 The district court’s conclusions are supported by the record.2 AFFIRMED. 1 18 U.S.C. § 3142(e) & (f). 2 See United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992) (“[T]he risk of continued narcotics trafficking on bail does constitute a risk to the community.”). 2	{ "pile_set_name": "FreeLaw" }
117 Ga. App. 385 (1968) 160 S.E.2d 668 JACKSON v. KIGHT et al. 43411. Court of Appeals of Georgia. Argued February 7, 1968. Decided March 12, 1968. 388 Richardson, Doremus & Karsman, Ogden Doremus, for appellant. Lewis & Javetz, Emanuel Lewis, Pierce, Ranitz, Lee, Berry & Mahoney, Thomas J. Mahoney, Jr., for appellees. PANNELL, Judge. Waldo Kight brought an action against Hugh Jackson and J. M. Aycock seeking to recover damages for injuries sustained by him when he ran into a large road grader on an expressway, alleging that the defendants were the owners and operators of the road grader negligently left without lights at night on the expressway. Answers were filed by both 386 defendants, and the defendant Jackson amended his answer, setting out, among other things, that the plaintiff had executed a covenant not to sue, copy of which was attached to the amendment to the answer, claiming that the covenant not to sue precluded the asserting of any claim by the plaintiff against the defendant Jackson because of the provisions of the Act approved April 17, 1963 (Ga. L. 1963, p. 643; Code Ann. § 56-408.1). Subsequently, the defendant Jackson made a motion for summary judgment on several grounds, one of which was the above ground set forth in the answer, which motion for summary judgment stated "that on October 20, 1967, the plaintiff herein entered an agreement with J. M. Aycock and with his liability insurance carrier" as shown by exhibits attached, and that J. M. Aycock was dismissed as a party defendant, and contended that because of the terms of the covenant not to sue no claim could be asserted by the plaintiff against the movant. The motion for summary judgment was sworn to by the defendant Jackson, the oath stating "that the facts set forth in the foregoing motion for summary judgment and the exhibits attached thereto are true to the best of his knowledge and belief." The trial judge denied the motion and Jackson appealed. Held: 1. Irrespective of whether or not the affidavit of the defendant (the sworn-to motion for summary judgment) could be considered as against the contention made in this court that it did not affirmatively appear therefrom that the affiant was testifying as to facts within his own knowledge (see Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); Planters Rural Tel. Co-op. v. Chance, 108 Ga. App. 146, 148 (132 SE2d 90)), and irrespective of whether or not the exhibit attached, a photostat of a covenant not to sue purportedly signed by the plaintiff, was "sworn and certified" as required by Section 5 of the Summary Judgment Act ((Ga. L. 1959, pp. 234, 235; Code Ann. § 110-1205); see also Section 56 (e) of the Georgia Civil Practice Act (Ga. L. 1966, pp. 609, 661; Code Ann. § 81A-156 (e)), and regardless of the effect of the fact that no objection was made to the exhibits or to the lack of proper proof as to the execution thereof by the plaintiff, and regardless of the effect of the fact that there was no affidavit on the part of the plaintiff denying the execution of such covenant not to sue, it appears in the brief of the appellant (the defendant *387 Jackson) that one of the issues is whether or not the covenant not to sue released the defendant Jackson, and the brief of the appellee (plaintiff in the court below) agrees that is an issue in this court, and the appellant's brief recited as a fact the execution of the covenant not to sue by the plaintiff, and that this was the agreement so entitled and set forth as an exhibit to the summary judgment, and this fact was not controverted, but, on the contrary, the brief of the appellee admitted the fact. Accordingly, this court will, under all these circumstances, accept the statement of fact as to the execution of the agreement as being prima facie true and will determine the outcome of this case in the light of that fact. See Rule 17 (b) (1) of this court effective August 1, 1965, 111 Ga. App. 890. 2. The covenant not to sue the defendant Aycock and his insurance carrier and signed by the plaintiff referred expressly to the present suit and recited that the insurance carrier was paying the consideration of a covenant not to sue without prior notice to or consent of its insured, Aycock. The second paragraph of Section 1 of the Act of 1963 expressly provides: "If such third persons [the plaintiff here] execute a release, covenant not to sue, or other instrument in settlement of their claims after such notice of the lack of consent of the insured, the same shall be deemed and construed as a bar to the further assertion by such third persons of such claims against all persons whomsoever, and such third persons shall not plead such release, covenant not to sue or settlement in bar of any action or claim asserted by such insured." (Emphasis supplied.) This language is unambiguous and is not amenable to a construction contrary to its plain and express terms. While one of the purposes of this Act was to ameliorate the effect of the decision of the Supreme Court in Aetna Cas. &c. Co. v. Brooks, 218 Ga. 593 (129 SE2d 798), this was accomplished by the last phrase (which is not italicized) in the above quoted portion of the Act. The language italicized deals with an entirely different subject and is plain in its terms. It follows that the execution of the covenant not to sue by the plaintiff with knowledge that the insured, Aycock, had not consented thereto, barred the plaintiff's claims, arising out of the collision in question, "against all persons whomsoever," which includes the defendant Jackson. The trial court erred in overruling this defendant's motion for summary judgment. Judgment reversed. Jordan, P. J., and Deen, J., concur.	{ "pile_set_name": "FreeLaw" }
Motion Granted; Dismissed and Memorandum Opinion filed May 22, 2014. In The Fourteenth Court of Appeals NO. 14-13-00901-CV BARBARA ULMER, Appellant V. DEREK ANTHONY JENKINS, SR., Appellee On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2012-44247 MEMORANDUM OPINION This is an appeal from a final decree of divorce signed July 26, 2013. On May 16, 2014, appellant filed a motion to dismiss the appeal. See Tex. R. App. P. 42.1. The motion is granted. Accordingly, the appeal is ordered dismissed. PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Brown.	{ "pile_set_name": "FreeLaw" }
305 F.3d 456 Lloyd D. ALKIRE, Plaintiff-Appellant,v.Judge Jane IRVING, et al., Defendants-Appellees. No. 00-4567. United States Court of Appeals, Sixth Circuit. Argued: March 6, 2002. Decided and Filed: September 18, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Gary M. Smith (argued and briefed), Equal Justice Foundation, Columbus, OH, Edward A. Icove (briefed), Smith & Condeni, Cleveland, OH, for Appellant. 1 Timothy T. Reid (argued and briefed), Reid, Berry, Marshall & Wargo, Cleveland, OH, for Appellees. 2 Before MOORE and COLE, Circuit Judges; TARNOW, District Judge.* OPINION 3 TARNOW, District Judge. I. INTRODUCTION 4 Plaintiff Lloyd D. Alkire was arrested for drunk driving and held almost seventy-two hours without a probable cause hearing. He was subsequently incarcerated for failure to appear for show cause hearings and failure to pay fines and court costs. Alkire sued defendants Holmes County, Judge Jane Irving, Holmes County Court, and Sheriff Timothy Zimmerly under 42 U.S.C. § 1983, arguing that his constitutional rights were violated by his warrantless detention and civil debt-related incarceration. After a partial settlement disposed of several issues in the case, the district court denied Alkire's summary judgment motion and granted defendant's summary judgment motion on the remaining constitutional issues raised. The district court also denied Alkire's class certification motion. This appeal followed. 5 Alkire raises five issues in his appeal. The first four ask whether the district court properly denied Alkire's summary judgment motion and granted defendant's summary judgment motion as to the liability of Holmes County and Sheriff Zimmerly for violating Alkire's: (1) Fourth Amendment right not to be held on a warrantless arrest without arraignment for forty-eight hours; (2) Thirteenth Amendment right not to be imprisoned for a civil debt; (3) Fourteenth Amendment right to due process and equal protection for failing to allow credit toward fines and costs for time served; and (4) Fourteenth Amendment right not to lose his liberty due to indigency. The fifth issue on appeal is whether the district court properly denied Alkire's motion for class certification. For the reasons stated below, we REVERSE the district court on the first issue and REMAND to the district court for further proceedings. We AFFIRM the district court on the second, third, fourth, and fifth issues. II. FACTUAL HISTORY 6 On Saturday, August 19, 1995 at 9:40 a.m., plaintiff Lloyd Alkire was arrested for driving while intoxicated ("DWI"). Alkire was taken to the Holmes County Jail where he remained all weekend. There was a warrant for Alkire from another jurisdiction. The parties dispute whether Alkire was held on the DWI arrest or the warrant. Alkire was arraigned in Holmes County Court before Judge Jane Irving on Tuesday morning, August 22, 1995—almost seventy-two hours after his arrest. No probable cause hearing was held prior to the August 22nd hearing. 7 At a subsequent hearing on September 1, 1995, Alkire pleaded no contest to the DWI charges. He was sentenced to fifteen days in jail and fined $575 and court costs of $45, for a total of $620. Alkire signed a payment contract agreeing to pay $50 monthly installments starting September 11, 1995. No inquiry was made into Alkire's ability to pay, but it appears from the record that he signed the contract voluntarily. 8 Alkire did not make any payments toward the money owed. Due to Alkire's failure to pay, on November 15, 1995, Judge Irving signed a show cause letter ordering him to appear at a hearing on December 13, 1995 at 11:00 a.m. The letter advised that failure to appear or to pay the amount owed ($635.00)1 in full would result in the issuance of a bench warrant for Alkire's arrest. Alkire responded with a letter dated November 22, 1995, which informed Judge Irving that he was disabled and explained his financial difficulties.2 9 Alkire did not appear for the December 13, 1995 hearing. Judge Irving issued a bench warrant for his arrest. Alkire sent a second letter, dated December 15, 1995, explaining his failure to appear at the hearing. The letter stated that he was in the hospital on the hearing date, further explained his financial difficulties, and outlined his inability to find employment. 10 On May 20, 1996, Alkire was arrested on the outstanding bench warrant. At a hearing on May 21, 1996, Judge Irving found Alkire in contempt and sentenced him to thirty days in jail for "failing to pay any fine or costs." The Judge further stated that Alkire could work off the fine and costs. There was no inquiry at the hearing into Alkire's ability to pay. 11 Alkire served the thirty day sentence from May 21, 1996, to June 20, 1996. During that time, he worked at a recycling center, receiving the current minimum wage rate of $4.25 per hour, which was credited toward his fine. As a result, according to Alkire, he was able to work off his entire fine. In fact, he says that he worked 4.75 more hours than his fine, but he received no compensation for that extra work. The county's policy does not allow defendants to work off their court costs, so Alkire calculates that after the thirty days in jail, he still owed court costs in the amount of $173.30. However, Holmes County Court records indicate he owed $295.22. 12 Five days after his release, on June 25, 1996, another show cause letter was sent to Alkire for failure to pay the $295.22 amount. The letter set a hearing date of July 24, 1996, and stated that he was required to either pay in full before the date or appear. Alkire again failed to appear. Judge Irving found him in contempt for "failure to obey a previous order" and issued another bench warrant. Alkire was arrested on July 29, 1996, and released on his own recognizance on July 31, 1996. The bond notice set a hearing date of August 28, 1996, to answer the charges of "contempt of court-non-payment of costs." The bond also noted that Alkire must pay the court costs in the amount of $156.603 by the next court date. 13 Alkire sent a letter dated August 27, 1996, which explained that he lost his job as a result of his last stay in jail. He also stated he had just started a new job on August 27th. He said that, since he cannot pay the fines without a job, it would make no sense to arrest him and cause him to lose the new job. Alkire proposed a payment schedule based on his anticipated earnings from the new job. 14 Alkire again failed to appear at the August 28, 1996, hearing. Judge Irving again held Alkire in contempt and issued a third bench warrant for "failure to obey a previous order of this court." He was arrested on October 22, 1996, on the third warrant. At a hearing on the same day, he was found guilty of contempt and ordered to serve thirty days in the Holmes County Jail. There was no inquiry at the hearing regarding his ability to pay. Also, no credit was given toward the money owed during this period of incarceration. 15 On October 24, 1996, while Alkire was still serving the thirty day sentence, a third show cause letter was issued demanding payment of $173.30 or an appearance on November 20, 1996. The hearing was continued to December 18, 1996. After the present action was filed, the final show cause hearing date was postponed indefinitely. III. PROCEDURAL HISTORY 16 Plaintiff Alkire filed a complaint and a motion for class certification on December 16, 1996, in the U.S. District Court for the Northern District of Ohio, alleging violations of his constitutional rights for the extended warrantless detention and debt-related imprisonment. Alkire filed an amended complaint on January 7, 1997. Alkire filed summary judgment motions against all the defendants on December 1, 1998. Defendants Holmes County, Holmes County Court, and Sheriff Zimmerly filed summary judgment motions on December 1, 1998. Judge Irving filed her summary judgment motion on December 3, 1998. 17 The parties agreed to a stipulation of settlement, but it did not resolve all the issues between the parties; it only purported to settle the declaratory and injunctive portions of the suit. Thus, in a June 30, 2000, order accepting the stipulation of settlement, the district court dismissed all the pending motions without prejudice to their being resubmitted to reflect the settlement between the parties. The class certification and summary judgment motions were resubmitted, but the parties merely re-filed their initial motions, so they do not reflect the settlement as ordered by the district court.4 18 The district court denied the motion for class certification on September 26, 2000. On November 9, 2000, the court denied Alkire's summary judgment motions and granted defendants' summary judgment motions. Alkire timely appealed the district court's judgment on December 4, 2000. IV. STANDARD OF RE	{ "pile_set_name": "FreeLaw" }
Case: 16-11174 Document: 00513946985 Page: 1 Date Filed: 04/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fif h Circuit No. 16-11174 FILED April 10, 2017 Lyle W. Cayce LONNY ACKER, Clerk Plaintiff - Appellant v. GENERAL MOTORS, L.L.C., Defendant - Appellee Appeal from the United States District Court for the Northern District of Texas Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges. EDITH H. JONES, Circuit Judge: Appellant Lonny Acker is a General Motors, L.L.C. (“GM”) employee who was approved for intermittent Family and Medical Leave Act (“FMLA”) leave but on several occasions was absent from work and did not follow company protocol for requesting FMLA leave. He suffered several weeks of disciplinary unpaid layoff. He sued GM for FMLA interference and retaliation and for disability discrimination under the Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA”). The district court entered summary judgment for GM. We AFFIRM, principally because the FMLA and accompanying regulations require employees to follow their Case: 16-11174 Document: 00513946985 Page: 2 Date Filed: 04/10/2017 No. 16-11174 employer’s “usual and customary” procedures for requesting FMLA leave absent “unusual circumstances,” 29 C.F.R. § 825.303(c). BACKGROUND Acker began working for GM in the fall of 2000 at its automobile plant in Kokomo, Indiana. In summer 2014, he voluntarily transferred to the GM assembly plant in Arlington, Texas. He is an electrician who typically works third shift. Acker suffers from acute iron-deficiency anemia that sometimes causes him to experience blackouts, grayouts, heart palpitations, and fatigue. As a consequence, Acker was certified for intermittent medical leave under the FMLA by his physician. GM has a detailed attendance policy. The product of collective bargaining between GM and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, this attendance policy is codified in what is known as “Document No. 8—Memorandum of Understanding—Special Procedure for Attendance” (“Doc. 8”). As a current electrician covered by the collective bargaining agreement, Acker is subject to Doc. 8. For an unplanned absence, the collective bargaining agreement simply requires employees to notify GM at least thirty minutes before the shift starts. Failure to call by the deadline is considered an “instance” under Doc. 8, unless the employee can explain the untimeliness satisfactorily to management. When absences are unexcused, GM allocates up to eight hours per instance of that employee’s “Vacation Restricted” hours to each hour that the employee was absent. Under this arrangement, employees are permitted up to five “instances” of unexcused absence before they become subject to discipline under the policy. Acker testified that he understood this use of “Vacation Restricted” time as a “free pass.” After the “free” absences are used up, Doc. 8 imposes “Attendance Improvement Steps” for additional unexcused absences 2 Case: 16-11174 Document: 00513946985 Page: 3 Date Filed: 04/10/2017 No. 16-11174 through a six-step program that moves from two written warnings to unpaid disciplinary layoff to termination. GM also has a policy for requesting FMLA leave. Union benefit representatives at each GM facility assist employees with FMLA leave requests. Employees must make an initial request for FMLA leave with GM’s Benefits & Services center, administered by third-party vendor Sedgwick Claims Management Services, Inc. (“Sedgwick”). Once an employee has requested intermittent FMLA leave, Sedgwick sends the employee a letter reiterating GM’s policies for requesting and taking leave. This policy is described in an employee letter as follows: If you have requested intermittent leave, you are required to report any time taken under the Family and Medical Leave Act (FMLA), at least 30 minutes PRIOR to the start of your normal scheduled work shift, by calling the GM Absence Call In Line [redacted] and selecting the “FMLA” option when prompted (option #8). You are also required to call the GM Benefits & Services Center at [redacted] by the end of your normally scheduled work shift to report your FMLA absence. When calling, select the prompt for “FMLA”. Acker testified that he was familiar with this procedure and received a packet including this letter. By September 2014, Acker testified, he had used all of his “free pass” days. In mid-November 2014, Acker contacted Sedgwick to request FMLA leave. Acker received instruction from Sedgwick to obtain a medical certification by November 28, and he complied. On December 9, Sedgwick notified him that he was approved for intermittent FMLA leave from November 11, 2014 to May 11, 2015. Nevertheless, he began receiving discipline for several unapproved absences according to GM’s procedures. The record is undisputed concerning the disciplinary procedure GM followed and the facts underlying the discipline. Acker was absent from work on September 29 and received his first written disciplinary warning under Doc. 3 Case: 16-11174 Document: 00513946985 Page: 4 Date Filed: 04/10/2017 No. 16-11174 8 on October 7. Acker testified that he did not request FMLA leave for the September 29 absence. Acker was absent a month later, on October 30, and was disciplined with a second written warning a day later. Acker testified that he did not request FMLA leave for this absence, either. Acker was absent again November 12, 13, and 14, which were counted as two “instances” of unexcused absence under GM’s policy. Combined with the first two unexcused absences, Acker became subject to two weeks’ unpaid suspension as a disciplinary layoff. Acker contacted Sedgwick to request FMLA leave for the November 12 and 13 absences, and his request was approved by Sedgwick. When GM was made aware of this approval, GM rescinded its disciplinary action for November 12 and 13. However, Acker testified that, for the November 14 absence, he failed to call in 30 minutes before his shift began and missed the FMLA absence call-in time by over an hour. For this November 14 default, GM treated the first week of the earlier disciplinary layoff, which Acker had already undergone, as discipline pursuant to Doc. 8. Acker was also absent on November 22 and 23. Phone records produced by Acker confirm that none of his three calls to the GM shift absence line were timely. Acker was issued another disciplinary layoff with two weeks of unpaid suspension for these unexcused absences, in line with the Doc. 8 policy of progressive discipline. Acker was absent again on December 6, 7, and 8. His absence for December 7 was approved because Acker timely called both the GM absence line and the GM Benefits & Services line. While Acker did contact the GM absence line for December 6 and December 8, he failed to contact the Benefits & Services line in time on both occasions. Thus on January 14, 2015, Acker was denied FMLA coverage for both days and issued a disciplinary layoff under GM policy, this time a 30 day unpaid suspension. Although the Doc. 8 policy 4 Case: 16-11174 Document: 00513946985 Page: 5 Date Filed: 04/10/2017 No. 16-11174 required Acker’s termination for these additional unexcused absences, GM retained him with an opportunity to correct his attendance issues. The last disciplinary action GM had to take with respect to Acker’s attendance was on January 14. Since February 2015, Acker testified, he has taken more than 30 days of intermittent FMLA leave and managed to timely call the GM Absence and Benefits & Services lines according to the collective bargaining agreement. Nevertheless, Acker filed suit against GM in September 2015 for damages concerning the unpaid suspensions. After discovery, GM moved for and was granted summary judgment by the district court. Acker timely appealed. STANDARD OF REVIEW “Summary judgment is required ‘if the mov	{ "pile_set_name": "FreeLaw" }
215 Cal.App.2d 826 (1963) ROBERT T. GRIFFITH, Plaintiff and Appellant, v. PETER B. ZAVLARIS, Defendant and Respondent. Civ. No. 20675. California Court of Appeals. First Dist., Div. One. May 8, 1963. Hollander, Lipian & Horwitz and Jack H. Lipian for Plaintiff and Appellant. Hadsell, Murman & Bishop and G. William Filley for Defendant and Respondent. BRAY, P. J. Plaintiff appeals from judgment of dismissal. Question Presented In an action for alleged legal malpractice, when does the statute of limitations commence to run? 827 Record December 30, 1960, plaintiff filed a complaint against defendant attorney for malpractice. The complaint alleged that on or about February 8, 1956, plaintiff employed defendant to advise him with regard to "the purchase of a one-third share interest" in a certain corporation; that pursuant to such employment defendant advised that the promissory note, copy of which is set forth in the complaint, could "be executed by the plaintiff for the establishment of his one-third interest" in the said corporation. The note is dated March 29, 1956, is for $7,000, payable to plaintiff one year after date and executed by Robert Rohrig. The note gives an alternative to payment of money "or to be payable by the transfer of seventy (70) shares of stock of the Quality Beverage Company of Santa Clara, Inc., when said stock issued to Robert Rohrig." The complaint further states that defendant "could, by exercise of due diligence and skill, have advised the plaintiff the California Corporate Securities Act, Corporation Code 25000 et seq. does not permit any Company to obtain money for the issuance of securities prior to the obtaining of a permit to issue from the Division of Corporations and that any and all violations of the said Corporation Act are made criminal offenses by the said Corporate Securities Act, Corporation Code 26102, 26103"; that defendant negligently and carelessly advised plaintiff that the note could properly be executed, that the corporation could receive funds pursuant to his prepayment of $7,000 to the said corporation and that the execution of the note and the payment by plaintiff of $7,000 to the corporation was not in violation of the act and that plaintiff could receive stock pursuant to his prepayment of $7,000 to the Quality Beverage Corporation of Santa Clara, Inc.; that on May 6, 1958, plaintiff brought suit on the promissory note for $7,000 in the Santa Clara County Superior Court; that on December 31, 1959, that court ordered that neither plaintiff nor the defendant Robert Rohrig have judgment against the other because said promissory note was against the policy of law; that both parties were at fault and were in pari delicto with one another. That court ordered "No recovery." Plaintiff then alleged that thereby he lost the means of recovering said $7,000 and was required to pay court costs and attorneys' fees. Plaintiff seeks judgment for the $7,000 and all attorneys' fees and costs in that action. Defendant demurred generally and on the ground that the 828 action was barred by section 339, subdivision 1, Code of Civil Procedure. The court sustained the demurrer granting plaintiff 15 days to amend. [fn. 1] Plaintiff failing to amend, defendant moved for a dismissal. The court granted the motion and judgment of dismissal was entered thereon. Commencement of Statute of Limitations [1a] The applicable statute is section 339, subdivision 1, Code of Civil Procedure, which reads, in pertinent part, that the time for commencing action is "Within two years: (1) An action upon a contract, obligation or liability not founded upon an instrument of writing. ..." But the question is: within two years of what? Heretofore, the only cases determining the time of commencement of the two years have held that in actions for legal malpractice the statute commences to run from the date the negligent act occurs. Among these are Hays v. Ewing (1886) 70 Cal. 127 [11 P. 602], failure of the attorney to plead absence of the defendants from the state to toll the statute of limitations set up as a defense to an action on a promissory note; Jensen v. Sprigg (1927) 84 Cal.App. 519 [258 P. 683], neglect of duty of the attorney in the management of a law suit; De Garmo v. Luther T. Mayo, Inc. (1935) 4 Cal.App.2d 604 [41 P.2d 366], negligence of attorney in obtaining a judgment in less amount than that to which the plaintiff claimed to be entitled. There the court said, "The negligence if any occurred prior to entry of the judgment. ..." (P. 606.) In Wheaton v. Nolan (1934) 3 Cal.App.2d 401 [39 P.2d 457], an action for failure of attorneys "to diligently and promptly commence suit and attachment proceedings," the court did not state when the statute started to run, but based its decision upon its finding that "the allegations made to overcome the running of the statute of limitations were insufficient under the decisions of this state to accomplish that purpose. Means and sources of knowledge of the alleged breach and injury were at all times available to plaintiffs and ordinary 829 diligence on their part in consulting such means and sources would have furnished them with all the information sufficient to discover the breach and commence suit within the two-year period" (P. 403.) The action against the attorneys was filed more than four years after the plaintiffs claimed to have been damaged by the negligence of the attorneys. There is nothing in this case which gives comfort to plaintiff's contention that the true rule is that the statute does not start to run from the date of the negligent act but from the date of discovery thereof. In Lally v. Kuster (1918) 177 Cal. 783 [171 P. 961], an action against an attorney for negligence in allowing an action for the foreclosure of a note and mortgage to be dismissed for delay in prosecuting it, the attorney contended that the plaintiffs' right of action against him accrued at the time he first disobeyed the orders of his client to proceed diligently. This was approximately three years before the action was dismissed. The plaintiff claimed that the right of action against the attorney did not accrue until the dismissal of the other action. The court said that the question is not "free from difficulty, and yet where the disobedience complained of consists in delay only, the cause of action cannot be said to arise until such delay has resulted in some injury, as it did when the court dismissed the case because of the delay." (P. 791; italics added.) At first blush, Lally would appear to be opposed to the rule of the other cases, namely, that the statute runs from the time of the negligent act. On the contrary, it supports the rule. There the negligent act out of which a cause of action arose, was allowing the action to be dismissed for lack of prosecution. The attorney's delay in prosecuting the action did not become a negligent act for which redress might be sought, until the time when the action became dismissible because of that delay. Jensen v. Sprigg, supra, 84 Cal.App. 519, states that the appellant urged that the cause of action against the attorney did not accrue until the delay resulted in damages or injury to the plaintiff, citing Lally, supra. The court then stated that it agreed with the plaintiff's contention and pointed out that the plaintiff's loss of remedy in the action being prosecuted by the attorney did not occur until the action was delayed to the point where the defendant therein was adjudged a bankrupt. It was at that point that the attorney's act of 830 negligence occurred, and the statute of limitations in any action against the attorney started to run. [2] In the case at bench, the act of negligence alleged occurred when the attorney misadvised plaintiff, even though plaintiff did not discover the negligence nor the fact that he had been damaged thereby until later. [1b] Plaintiff cites no authorities supporting his contention that the statute does not commence to run in a legal malpractice case until the discovery of the loss. He states in his brief: "Appellant is well aware that the cases of De Garmo v. Luther T. Mayo, Inc. (1935) 4 Cal.App.2d 604 [41 P.2d 366], and Hays v. Ewing (1886) 70 Cal. 127 [11 P. 602], appear to establish the principle that the statute begins to run at the time of the occurrence of the negligence, and not at the time of the discovery of the negligence." However, he contends that the proviso in section 339, subdivision 1, applies. That proviso, however, does not apply because by its very terms it is limited to actions founded upon contracts of title insurance and allied contracts or obligations, for the proviso states, "provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder." Obviously liability for legal malpractice is not included in this proviso. Moreover, the fact that the proviso is limited to certain contracts and obligations indicates that the Legislature intended not to place such a limitation upon contracts, obligations or liabilities not founded upon instruments in writing. Plaintiff urges that the rule of medical malpractice cases be applied to legal malpractice cases, citing Huysman v. Kirsch (1936) 6 Cal.2d 302 [57 P.2d 9	{ "pile_set_name": "FreeLaw" }
592 F.2d 832 2 ITRD 1078, 50 A.L.R.Fed. 372 INGRAM CONTRACTORS, INC., Plaintiff-Appellant,v.UNITED STATES of America, Michael Blumenthal, Secretary ofthe Treasury, the Department of the Treasury,Robert E. Chason, Commissioner ofCustoms and U. S. CustomsService, Defendants-Appellees. No. 78-2542 Summary Calendar.United States Court of Appeals,Fifth Circuit. April 4, 1979. Monroe & Lemann, Robert J. Fritz, Benjamin R. Slater, Jr., Richmond Eustis, New Orleans, La., for plaintiff-appellant. John P. Volz, U.S. Atty., Michaelle F. Pitard, Asst. U.S. Atty., New Orleans, La., for defendants-appellees. Appeal from the United States District Court for the Eastern District of Louisiana. Before GOLDBERG, RONEY and TJOFLAT, Circuit Judges. PER CURIAM: 1 Ingram Contractors, Inc. (Ingram), brought suit in the district court to avoid payment of over $200,000 in customs duties. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331(a)1 and 1355 (1976).2 The defendants moved for dismissal for want of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), on the ground that Congress has given controversies such as this one exclusively to the United States Customs Court to resolve. The district court granted the motion and entered final judgment dismissing the action. We affirm. 2 On March 5, 1970, Derrick Barge No. 3, owned by Ingram and documented under the laws of the United States, arrived at Orange, Texas. The barge had been outside the United States and had undergone certain repairs in a foreign country. On March 6, 1970, Vessel Repair Entry No. 10006, covering these foreign repairs, was made with the Bureau of Customs (now the United States Customs Service, hereinafter referred to as Customs). Ingram subsequently urged Customs to exempt the barge from duty, claiming, alternatively, that the vessel was not subject to duty and that the repairs had been brought about by stress of weather. Customs granted Ingram several extensions of time, through September 30, 1972, to file an application for relief from the duties. On September 28, 1972, Ingram wrote Customs reiterating its position that the barge was not subject to duty. On February 2, 1977, Customs denied Ingram's application for relief and advised Ingram that the duties would be finally computed. On March 4, 1977, Ingram replied that the Government's claim for duties had become time-barred. 3 On April 4, 1978, Customs demanded payment of the duties; on May 3, it refused to grant Ingram any further extension and advised Ingram that the matter would be forwarded to the United States Attorney's Office for collection. Five days later Ingram instituted this suit to enjoin the Government's collection effort. Ingram also filed a petition with Customs requesting that the Secretary of the Treasury review the imposition of the duties. That petition is still pending. 4 Ingram contends that its claim "arises under" the laws of the United States; therefore, the district court's subject matter jurisdiction was properly invoked under 28 U.S.C. § 1331(a) (1976). Congress has provided, however, that the Customs Court shall have exclusive jurisdiction of all civil actions challenging an administrative decision of Customs. 28 U.S.C. § 1582(a) (1976).3 As this court has noted, the purpose of section 1582 is to provide " 'a complete system of corrective justice with respect to matters arising under the customs laws.' " Argosy Ltd. v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968). Thus, the exclusive jurisdictional grant of section 1582 overrides the general grant of jurisdiction conferred on district courts by sections 1331 and 1355 and any other statute. This court did note in Argosy that "in exceptional or extraordinary circumstances a district court may properly enjoin acts by (the Customs Service), when such acts threaten irreparable injury." We explained there, however, that "the term 'exceptional or extraordinary circumstances' implies the unavailability of an adequate remedy at law." Id. at 21. The remedy provided by Congress in the customs regulatory scheme is generally deemed adequate, even though it may impose some hardship on the claimant, See Horton v. Humphrey, 146 F.Supp. 819, 821 (D.D.C.), Aff'd, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). 5 Ingram contends that it has no adequate remedy at law because it has not met the procedural jurisdictional prerequisites of the Customs Court, See19 C.F.R. § 4.14 (1978). It is debatable whether Ingram has filed a proper protest with Customs and, if it has, whether the protest has been disposed of administratively in such a manner that Ingram is now entitled to institute proceedings in the Customs Court.4 Ingram suggests that any inability on its part to satisfy the prerequisites to Customs Court jurisdiction has been caused by Customs's failure to abide by its own regulations. This failure, Ingram says, may have prevented it from filing a valid protest and operated as a denial of due process. 6 These arguments, as well as the other objections Ingram has interposed to avoid payment of the duties in question, should be addressed to the Customs Court, not to the district court and this court of appeals. See J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63, 68 (2d Cir.), Cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). The Customs Court has full power to rule on the constitutional and procedural questions Ingram has raised. Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, 671-72, Cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956); See, e. g., Cottman Co. v. Dailey, 94 F.2d 85, 89 (4th Cir. 1938). 7 In sum, Ingram still has an adequate remedy in Customs Court; or it had an adequate remedy that it failed to pursue. Moreover, once Ingram's pending petition with Customs has received final disposition, that decision can be appealed to the Customs Court. See Suwannee Steamship Co. v. United States, 354 F.Supp. 1361, 1369 (Cust.Ct.1973). Ingram has failed to demonstrate that it has no adequate remedy at law or that Customs has deprived him of the remedies provided him by law. It has not presented the "exceptional circumstances" that must exist before a district court may exercise jurisdiction over a matter committed to the Customs Court for resolution. 8 Because we are convinced that the district court lacked subject matter jurisdiction, it is unnecessary for us to discuss the last argument pressed by Ingram in this appeal the propriety of the district court's stay of discovery pending its disposition of the jurisdictional issue. Therefore, the judgment of the district court is AFFIRMED. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I 1 28 U.S.C. § 1331(a) (1976) provides: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. 2 28 U.S.C. § 1355 (1976) provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress. 3 28 U.S.C. § 1582(a) (1976) provides: The Customs Court shall have exclusive jurisdiction of civil actions instituted by any person whose protest pursuant to the Tariff Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery under any provisions of the customs laws; (5) the liquidation or reliquidation of an entry, or a modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under	{ "pile_set_name": "FreeLaw" }
576 F.3d 810 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Gary McMULLIN, Defendant-Appellant. No. 08-3477. United States Court of Appeals, Eighth Circuit. Submitted: April 15, 2009. Filed: August 17, 2009. 811 John M. Albright, argued, Poplar Bluff, MO, for Appellant. Paul W. Hahn, AUSA, argued, Keith D. Sorrell, AUSA, on the brief, Cape Girardeau, MO, for Appellee. Before MURPHY, BRIGHT, and BYE, Circuit Judges. 812 BRIGHT, Circuit Judge. Defendant-appellant Gary McMullin appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), challenging the district court's denial of his motion to suppress firearms evidence discovered during a United States Marshal's second entry into McMullin's house. McMullin asserts that the marshal lacked legal authority to re-enter his house, while the government contends that McMullin never withdrew the consent he granted for the initial entry. Having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court and remand for further proceedings. I. Factual Background United States Marshals Sean Newlin and Dave Davis had received an assignment to locate Daryl Crowder, for whom the state of Illinois had issued several arrest warrants in 2006. During the assignment, Marshal Newlin learned that Crowder had placed telephone calls from a residence in Missouri. After checking the address, Marshal Newlin discovered that another sex offender and felon, McMullin, resided there. On October 10, 2007, Marshals Newlin and Davis drove to McMullin's residence in an attempt to locate Crowder. The marshals did not have a search warrant for the house. They arrived early in the morning in an unmarked vehicle but wore jackets marked "U.S. Marshal." As the marshals drove up the driveway to the residence, Marshal Newlin observed a person looking out of the front window of the house. After stopping the vehicle, Marshal Davis walked around to the back of McMullin's house, while Marshal Newlin headed toward the front of the house. Around this time, Marshal Newlin heard a person yell from within the house, "The U.S. Marshals are here." Marshal Newlin climbed the steps to the front door, which McMullin opened. Marshal Newlin recognized him from a photo on the sex offender registry website. Marshal Newlin and McMullin exchanged greetings. Marshal Newlin asked if anybody else was in the house. McMullin replied, "You know, I'm just having coffee with my uncle." Marshal Newlin asked, "May I come in and talk with you?" McMullin replied, "Yeah, sure, come on in. We're just having coffee." McMullin stepped back inside the house and started walking through the house. Marshal Newlin followed him down a hallway to a kitchen table. As they were walking down the hall, Marshal Newlin again asked if anyone else was in the house. McMullin replied, "No. I'm just having coffee with my uncle." Marshal Newlin asked for the uncle's name and McMullin responded, "Carroll." When they arrived at the kitchen, Marshal Newlin saw an older man sitting at the table. McMullin said, "This is my uncle. We're just sitting here having coffee." Marshal Newlin again asked if anyone else was present in the house. McMullin replied, "No. It's just my uncle and I." However, Marshal Newlin noticed three cups of coffee on the table and asked about the third cup. McMullin reiterated that only he and his uncle were in the house. This conversation lasted between two to three minutes. At this point, Marshal Newlin heard Marshal Davis yell from outside the house, "Get down. Get down on the ground." Marshal Newlin attempted to leave the house through a back door, but could not find his way through the house. McMullin showed Marshal Newlin the way to the back door. Marshal Newlin emerged from the house into the backyard and saw Marshal 813 Davis and Daryl Crowder in an area near the back door. Crowder was prone on the ground, with his hands on top of his head. Marshal Newlin asked Crowder for his identity; Crowder replied with his correct name. McMullin also emerged from the back door of the house. Marshal Newlin asked McMullin about Crowder's identity. McMullin first said he did not know, and then said his name was Thomas Junior. Marshal Newlin told McMullin to turn around because he was being detained. McMullin complied and Marshal Newlin handcuffed him. Marshal Newlin again asked about the man's identity. McMullin said that "he told me his name was Thomas Junior." Marshal Newlin then warned McMullin about obstruction of justice. Although it was an early morning in October, McMullin wore only gym shorts and sandals. Marshal Newlin then said, "Well, let's go back into the house and talk." Marshal Newlin had to physically bring the handcuffed McMullin into the house before following him into the breakfast area. By this time, Evelyn Moore, McMullin's aunt, also sat at the kitchen table.[1] Marshal Newlin asked McMullin if he felt comfortable talking in front of his aunt and uncle. McMullin replied, "Yeah, that's fine, I'll talk. You know I don't have a problem talking in front of them." Marshal Newlin told McMullin that he knew the identity of the man in the backyard. McMullin dropped his shoulders and said, "Yeah, that's Daryl Crowder." When he returned to the kitchen, Marshal Newlin noticed some ammunition in an ashtray sitting on a desk. He then told McMullin that he had seen the bullets and asked whether there were guns in the house. McMullin said, "Yes, there are," motioning his head toward a wall by the kitchen. Marshal Newlin looked in that direction and observed seven long guns lined up along the wall. Additionally, Moore told Marshal Newlin about the location of a handgun in a desk drawer. The marshals seized these firearms, which Marshal Newlin had not noticed during his first visit to the house. Marshal Newlin had not drawn his service weapon during these events, nor did he give Miranda warnings to McMullin. II. Procedural History Following an investigation, a grand jury indicted McMullin for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After his initial appearance, McMullin moved to suppress the firearms evidence seized from his house, asserting that the search violated his reasonable expectation of privacy in his house as guaranteed by the Fourth Amendment to the United States Constitution. In the motion to suppress, McMullin argued that Marshal Newlin had no legal authority to be in his house. In his reply to the government, McMullin further stated that Marshal Newlin's re-entry fell outside the scope of consent. Meanwhile, the government argued that McMullin gave Marshal Newlin consent to enter the house and never revoked it. At the suppression hearing, the government presented its evidence, and McMullin testified on his own behalf. He testified, contrary to his grand jury testimony, that he never gave consent for the marshal to enter his house. Instead, McMullin stated that just after Marshal Newlin arrived at his front door, McMullin heard shouts coming from the 814 rear of the house. After hearing this shouting, Marshal Newlin allegedly drew his service pistol and ran into the house, looking for the back door. In his Report and Recommendation, the magistrate judge recommended denying McMullin's motion to suppress and found McMullin's version of the facts to lack credibility. McMullin filed an objection to the report. In June 2008, the district court issued its order, adopting the magistrate's recommendation and denying McMullin's motion to suppress. McMullin filed a motion to reconsider, asking the district court to accept Marshal Newlin's report on the firearms seizure as additional evidence, and then raised a new ground for suppression: that the consent did not continue for Marshal Newlin to re-enter the house. In July 2008, the district court denied McMullin's motion to reconsider. On July 24, 2008, McMullin pleaded guilty to being a felon in possession of a firearm as charged in the indictment. However, McMullin reserved his right to appeal the district court's ruling on his motion to suppress. The district court sentenced McMullin to fifty-six months' imprisonment, three years' supervised release, and a $100 special assessment. McMullin timely appealed, arguing, among other things, that Marshal Newlin had no legal authority to re-enter McMullin's house. III. Discussion The dispositive issue presented on appeal is whether the second warrantless entry into McMullin's house by Marshal Newlin violated the Fourth Amendment. We turn to that issue. This Court reviews factual findings underlying the district court's denial of a motion to suppress for clear error and the question of whether the Fourth Amendment has been violated de novo. See United States v. Hughes, 517 F	{ "pile_set_name": "FreeLaw" }
58 B.R. 38 (1986) In the Matter of GLAUBINGER MACHINERY CO., INC., Debtor. Bankruptcy No. 84-02971. United States Bankruptcy Court, D. New Jersey. January 23, 1986. Ravin, Greenberg & Zackin, P.A. by Gary N. Marks, Roseland, N.J., for debtor. Tai Cho, New York City, for Daewoo Intern. OPINION DeVITO, Bankruptcy Judge. The above captioned debtor moves to reclassify a secured claim filed by Daewoo International (America) Corporation ("Daewoo") to the status of a general unsecured claim. For the reasons set forth below, this Court grants the within motion. The facts of the case are relatively straightforward. Daewoo possessed a perfected security interest in certain milling machines held by the debtor on consignment. One machine, identified as Number 39 180014, was sold to the Southern California Edison Company in or about January of 1983. The debtor was obligated to remit net proceeds of $29,000 to Daewoo. Upon receipt by the debtor of the total payment ($29,000) from Southern California Edison, the debtor actually transmitted $7,500 of the proceeds to Daewoo. The remaining $21,500 due to Daewoo was deposited in the debtor's general operating account. The debtor filed its petition for reorganization under the Bankruptcy Code on June 1, 1984. Daewoo filed a proof of claim in the sum of $21,500, said sum being the balance of the final payment due on the purchase of the machine noted above, and presently held by the debtor. It is important to note here that the above recitation of facts is based upon the statements contained in the brief filed by debtor's counsel in support of debtor's motion, at 1-2. In re Glaubinger Machinery Co., Inc., (Bankr.D.N.J. Oct. 2, 1985). Daewoo admits that the debtor's version of the facts is correct, subject only to two exceptions. Daewoo takes exception to the statements that the debtor deposited the funds in question in its general operating account and debtor's stated allegation that Daewoo does not have a secured interest in the proceeds. Affidavit in Opposition by K.J. Chea at 1-2, In re Glaubinger Machinery Co., Inc., (Bankr.D.N.J. Nov. 27, 1985). However, the affidavit fails to explain why Daewoo takes the exceptions as noted above, nor does it offer its own version of the disputed statements. The debtor relies upon the Uniform Commercial Code, as adopted in this jurisdiction; specifically, that Daewoo lost its secured claim when the monies resulting from the sale of the milling machine were commingled with other funds of the debtor, the effect of which reduced Daewoo's claim to that of a general unsecured claim; thus the instant motion to reclassify the claim filed. Daewoo essentially argues that the debtor's motion is misdirected and that the Uniform Commercial Code is still supportive of Daewoo's secured position. The instant matter concerns the administration of the debtor's estate and is unquestionably a core proceeding. 28 U.S.C. § 157[b][2][A]. This Court is thus empowered to hear and determine the issues at hand. 28 U.S.C. § 157[b][1]. The issue here is one requiring an interpretation of state law. Following the longstanding doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this Court shall apply the law controlling in the forum state of New Jersey. The specific state statutory provision in question is § 9-306[4] of the Uniform Commercial Code, codified in chapter 12A of the New Jersey Statutes Annotated, which provides: In the event of insolvency proceedings instituted by or against a Debtor, a secured party with a perfected security interest in proceeds has a perfected security interest only in the following proceeds: . . . . . [b] In identifiable cash proceeds in the form of money which is neither commingled with other money nor deposited in a deposit account prior to the insolvency proceedings; [c] In identifiable cash proceeds in the form of checks and the like which are not deposited in a deposit account prior to the insolvency proceedings; and [d] In all cash and deposit accounts of the Debtor in which proceeds have been commingled with other funds, but the perfected security interest under this paragraph [d] is: [i] Subject to any right of set-off; and [ii] Limited to an amount not greater than the amount of any cash proceeds received by the Debtor within ten days before the institution of the insolvency . . . N.J.Stat.Ann. 12A:9-306[4] (West Pocket Part 1985) (subsection [a] omitted as it addresses only non -cash proceeds and is, therefore, irrelevant herein). The impact of this statute is clear. Even for a holder of a perfected security interest in proceeds, the intervention of a bankruptcy filing acts 40 to limit the secured interest only to proceeds which meet the conditions as enumerated above. Id. If it can be demonstrated that the proceeds in question do not meet the conditions set forth above, the secured status of the creditor is lost and, ergo, the claim is a general unsecured one. Assuming arguendo that Daewoo held a perfected security interest in the proceeds, the instant matter meets the requirements of subparagraph [4] and is within the ambit of § 9-306[4]. Proceeding with a step-by-step analysis, both subsections [b] and [c] are of no help to Daewoo, since the proceeds received by the debtor were deposited in a deposit account prior to the bankruptcy. The Court takes note of the general rule that "proceeds will have been rendered unidentifiable by having been commingled with other funds in a single bank account." Morrison Steel Co. v. Gurtman, 113 N.J.Super. 474, 481, 274 A.2d 306 (App.Div.1974). Returning to the facts presented here, the Court is reminded of the debtor's assertion that it did indeed commingle these proceeds with other funds in its general operating account. While it is true Daewoo took exception to that statement, the Court does not find the opposition to be credible. Daewoo's exception is bereft of any explanation of why Daewoo objects to the allegation. Moreover, Daewoo failed to offer any evidence sufficient to demonstrate what the debtor did with the proceeds, if it indeed did not deposit them in its general fund as claimed. The Court shall accept the debtor's factual allegations on that point as true, and thus, by necessity, determines that Daewoo has no secured interest in proceeds that have been deposited and commingled with other monies, pursuant to the rule of § 9-306[4][b] and [c]. Turning to the final subsection, subsection [d], the Court finds that this portion of the statute does not terminate the secured interest where proceeds have been commingled. However, it is strictly limited to instances where the cash proceeds were received by the debtor within the ten days preceding the bankruptcy. § 9-306[4][d][ii]. It is undisputed that the proceeds were received by the debtor on July 12, 1983, almost a year before the petition in bankruptcy was filed. This being the case, Daewoo loses its secured claim to the proceeds under this subsection as well. In conclusion, based upon the credible evidence proffered and the law of the Uniform Commercial Code as adopted in New Jersey, Daewoo does not hold a secured claim in the cash proceeds ($21,500) held by the debtor. The claim is properly classified as a general unsecured claim. The Court grants the debtor's motion to reclassify it as such. Submit an order in accordance with the above.	{ "pile_set_name": "FreeLaw" }
788 F.Supp. 539 (1992) Homer BRANCH, et al., Plaintiffs, v. MOBIL OIL CORPORATION, Citation Oil and Gas Corporation, Texaco, Inc., and Atlantic Richfield Company, Defendants. No. CIV-90-723-R. United States District Court, W.D. Oklahoma. March 13, 1992. Gina L. Hendryx, John W. Norman, Norman & Edem, Robert N. Barnes, Patranell Britten, Roy Short, Jacqueline M. Short, Stack & Barnes, Oklahoma City, Okl., Phillip R. Scott, Waurika, Okl., for plaintiffs. Gary W. Davis, Paul D. Trimble, L. Mark Walker, Crowe & Dunlevy, George E. Sneed, Verland E. Behrens, R. Steven Haught, Daugherty, Bradford, Fowler & Moss, Oklahoma City, Okl., J. Randall Miller, Moyers, Martin, Santee, Imel & Tetrick, Tulsa, Okl., Randle Jones, Denver, Colo., for defendants. ORDER DAVID L. RUSSELL, District Judge. Before the Court is yet another motion by Defendant Atlantic Richfield Company ("ARCO"), this time a motion to dismiss *540 Plaintiffs' Third Amended Complaint for failure to join what Defendant contends are non-diverse indispensable parties to Plaintiffs' claim for unjust enrichment. Defendant ARCO's argument proceeds as follows. A claim for unjust enrichment is a quasi-contract claim which is based in contract. Defendant ARCO and other owners in the Healdton One Unit are either partners or joint venturers, according to Plaintiffs. Plaintiffs' claim against ARCO for unjust enrichment is based upon an implied contract with the partnership or joint venture. Rule 19, F.R.Civ.P., requires that all partners or joint venturers must be joined where the relief sought is based on contract, citing Federal Resources Corp. v. Shoni Uranium Corp., 408 F.2d 875, 878-79 (10th Cir.1969) and Purcel v. Wells, 236 F.2d 469, 472 (10th Cir.1956). The Court agrees with Plaintiffs that the alleged conduct of Defendants which Plaintiffs claim unjustly enriched Defendants is delictual rather than contractual in nature. The conduct is expressly alleged to be negligence and negligence per se. See Third Amended Complaint at ¶¶ 25-28. As a remedy for such alleged conduct, Plaintiffs seek disgorgement of gains flowing from Defendants' alleged wrongdoing, in the form of the money saved by Defendants by not complying with state law and Oklahoma Corporation Commission rules and regulations. Disgorgement is a restitutionary remedy or remedy for restitution. See Warren v. Century Bankcorporation, Inc., 741 P.2d 846, 852 (Okla.1987). See also Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365, 377 (1987). The underlying basis for disgorgement and other restitutionary remedies or tools like quasi-contracts is the prevention of unjust enrichment.[1]See Warren v. Century Bankcorporation, Inc., 741 P.2d at 852 & nn. 19 & 21. "[R]estitution may be sought in contract actions, tort actions, statutory actions and others...." D. Dobbs, Law of Remedies § 4.1 at 223 (1973). See also 1 Palmer, The Law of Restitution § 1.1, p. 2 (1978). Plaintiffs' claim for unjust enrichment against ARCO for conduct occurring after formation of the Healdton One Unit is either limited to that amount by which Defendant ARCO as a unit owner has been unjustly enriched, i.e., to that amount of expenses attributable to ARCO's unit interest which were saved, in which event ARCO's and other unit interest owners' potential liability must be considered several, not joint, or is for the amount by which the unit has been unjustly enriched, in which case because the conduct which is the basis of the claim is tortious in nature, the unit owners' potential liability as principals of the operator is joint and several. Cf. Phoenix Airline Services, Inc. v. Metro Airlines, Inc., 194 Ga.App. 120, 390 S.E.2d 219, 225-26 (1989) (dicta) (the theoretical basis for imposition of joint and several liability on joint tortfeasors "would appear to be of doubtful applicability where the sole purpose of the award is to prevent unjust enrichment rather than to compensate the claimant for actual loss"), rev'd on other grounds, 260 Ga. 584, 397 S.E.2d 699 (1990). See generally 3 Am.Jur.2d Agency § 280; 59A Am.Jur.2d Partnership § 712. In neither situation are all of the unit owners necessary or indispensable parties under Rule 19, F.R.Civ.P. See generally 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1623 (1966) at pp. 342-345. Defendant Atlantic Richfield Company's motion to dismiss Plaintiffs' Complaint for failure to join indispensable parties under Rule 19 is DENIED. IT IS SO ORDERED. NOTES [1] Plaintiffs' Third Amended Complaint does not use the term quasi-contract.	{ "pile_set_name": "FreeLaw" }
43 F.3d 675 Brown (Theodis, Sr.)v.Pagedale MO Police NO. 94-1959 United States Court of Appeals,Eighth Circuit. June 28, 1994 Appeal From: E.D.Mo., No. 4:92MC289 JCH 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
537 U.S. 1090 FISHERv.BUTLER ET AL. No. 02-6840. Supreme Court of United States. December 16, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 153.	{ "pile_set_name": "FreeLaw" }
265 B.R. 681 (2001) In re Marjorie Margolies MEZVINSKY, Debtor. David G. Sonders, Plaintiff, v. Marjorie Margolies Mezvinsky, Defendant. First Union National Bank, Plaintiff, v. Marjorie Margolies Mezvinsky, Defendant. Bankruptcy No. 00-11767DWS. Adversary Nos. 00-0462, 00-0463. United States Bankruptcy Court, E.D. Pennsylvania. August 1, 2001. 682 683 684 685 Zachary L. Grayson, Esquire, Jennifer L. Myers, Esquire, Philadelphia, PA, for Defendant/Debtor. Steven J. Adams, Esquire, Reading, PA, for Plaintiff First Union National Bank. Leonard P. Goldberger, Esquire, White & Williams, LLP, Philadelphia, PA, for Plaintiff David G. Sonders. Marvin Krasny, Esquire, Philadelphia, PA, Chapter 7 Trustee. Dave P. Adams, Esquire, Philadelphia, PA, United States Trustee. OPINION DIANE WEISS SIGMUND, Bankruptcy Judge. Before the Court are the Motions of (1) David G. Sonders ("Sonders") for Partial Summary Judgment ("Sonders Motion") and (2) First Union National Bank ("First Union") for Summary Judgment (the "First Union Motion") on their respective Complaints objecting to discharge of the Debtor pursuant to 11 U.S.C. § 727(a)(5).[1] In support of his Motion, Sonders presents his affidavit to support documents obtained from the official records filed with the United States Bankruptcy Court and the Office of Public Records of the United States Senate.[2] In response to the Sonders Motion, Debtor presented her affidavit[3] and certain 686 documents.[4] First Union's record consisted of its Complaint and the Debtor's Answer, the transcripts of Debtor's testimony at (i) her first meeting of creditors conducted on April 24, 2000 ("341 Transcript"); (ii) her Rule 2004 examination conducted on March 22, 2000 and June 6, 2000 ("Rule 2004 Testimony") and (iii) her deposition testimony given on February 6, 2001 and April 10, 2001 and exhibits MMM-1 through MMM-28 attached thereto ("Debtor's Dep."). First Union also incorporated by reference portions of the Sonders Motion. Memorandum in Support of First Union Motion ("First Union Mem.") at 15. Debtor provided no additional evidence in opposition to the First Union Motion but rather also incorporates portions of her response to the Sonders Motion, including her Affidavit therein.[5] For the reasons that follow below, the Court finds that Sonders and First Union (collectively the "Movants") have met their burden for entry of judgment. I will therefore sustain their objection to, and deny entry of, the Debtor's Chapter 7 discharge pursuant to § 727(a)(5). BACKGROUND The Debtor is a former member of the United States House of Representatives (One Hundred Third Congress January 3, 1993-January 3, 1995). A graduate of the University of Pennsylvania and former CBS New Foundation fellow (Columbia University), she worked as a television journalist for twenty-five years, has written three books, and has offered testimony before United States House of Representative and Senate Subcommittees on family issues. After her Congressional term concluded, she was named the head of the American delegation to the United Nation Fourth World Congress on Women in Beijing and later became the President of the Women's Campaign Fund. Debtor's Dep. at 73-75 and Exhibit MMM-5. She filed this voluntary petition for bankruptcy (the "Petition") on February 10, 2000 (the "Petition Date").[6] Sonders and First Union are creditors of the Debtor and filed their adversary proceedings on April 4 and June 23, 2001, respectively, alleging that the Debtor has failed to explain satisfactorily the disposition of significant assets in violation of § 727(a)(5) of the Bankruptcy Code. The following facts are undisputed: I. In May 1996,[7] the Debtor and her husband purchased a homeowners's insurance 687 policy from Nationwide Insurance Company ("Nationwide") obtaining coverage for personal property in which they claimed an interest valued at $810,535. First Union Complaint and Answer ("FU Compl. and Ans.") ¶ 14; Rule 2004 Exam at 287. In January 1995, Debtor's husband represented to the Pennsylvania Housing Finance Agency that he and the Debtor owned furniture and other personal property having a value of $725,000. FU Compl. and Ans. ¶ 11. At the first meeting of creditors held on April 24, 2000, Debtor did not recall any significant dispositions of personal property by herself or her husband since 1989. Id. ¶ 15. Yet in her Amended Schedule B, the Debtor claims her one-half interest in the personal property in which she and her husband claim an interest as of the Petition Date plus her interest in wearing apparel and clothing to be valued at approximately $19,217.[8] Ex. MMM-3 to Debtor's Dep.; FU Compl. and Ans. ¶ 9. II. The Debtor sold 15,595 shares of Charming Shoppes stock in February 1999 and another 1847 shares in January 2000, for which she received a total of $63,771 (the "Charming Shoppes Proceeds"). Amended Statement of Financial Affairs ¶ 10. III. On January 7, 2000, the Debtor sold ten shares of General Electric stock and seventy-one shares of PNC Bank Stock for $1,382.61 and $2,772.98, respectively (collectively the "Misc. Stock Proceeds"). Ex. MMM-24 to First Union Mot. The Misc. Stock Proceeds are not listed in the Debtor's Amended Bankruptcy Schedules nor is the sale of or disposition of the Misc. Stock Proceeds disclosed in her Amended Statement of Financial Affairs. IV. Between 1997 and 1999, the Debtor and her husband borrowed money from various friends and acquaintances in various amounts, totaling $1,477,500 (the "Personal Loan Assets").[9] The Debtor concedes that these loans were made to her and her husband jointly.[10] The Personal Loan Assets are not listed in the Debtor's Amended Bankruptcy Schedules nor are any transfers of the Personal Loan Assets *688 disclosed in her Amended Statement of Financial Affairs. V. On August 15, 1999 and February 25, 2000, the Debtor signed and filed personal financial statements, prepared by her husband, with the United States Senate in connection with her candidacy for the Senate (the "Senate Financial Disclosure"). The Senate Financial Disclosure indicates an ownership interest in various securities and note receivables valued at a minimum of $1.3 million. Rule 2004 Exam at 175; Ex. E to Sonders Motion.[11] VI. On or about September 24, and October 24, 1999, the Debtor wrote two checks in the amounts of $7,500 and $5,000, respectively, from a Prime Bank account in the name of the Debtor and her husband, to her housekeeper Roberta McClean ("the McClean Payments"). Ex. "J" to Sonders Mot. The McClean Payments are not disclosed in the Debtor's Amended Statement of Financial Affairs. VII. In January 2000, the Debtor sold several personal items to Nancy Chasen (the "Chasen Transaction") for $5,000 (the "Chasen Proceeds"). Amended Statement of Financial Affairs. ¶ 10. The Chasen Proceeds are not listed in the Debtor's Amended Schedules, but her discovery responses indicate that Ms. Chasen paid the proceeds directly to Northfield Mount Herman School, the school attended by the Debtor's son, Andrew. Debtor's Obj. and Resp. to Sonders' First Set of Interrogs. ¶ 27, Ex. "G" to Sonders Mot. DISCUSSION Summary judgment is warranted only where "the pleadings, depositions, answers to interrogatories and admissions on file, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).[12] Thus, when deciding a summary judgment motion, the court's task is not to resolve questions of fact, but to determine whether there is in fact any genuine issue of fact to be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In doing so, the court should view all facts in the light most favorable to the opposing party, Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982), including any factual inferences, and refrain from resolving a genuine issue of credibility, Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 268 (3d Cir.2001) (citation omitted); Boyle v. Allegheny County, Pa., 139 F.3d 386, 393 (3d Cir.1998). It is the moving party's burden to demonstrate the absence of genuine issues of material fact. Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir.1978). Once the moving party has shouldered this burden, however, "the adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this	{ "pile_set_name": "FreeLaw" }
183 F.3d 110 (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee,v.RAYMOND RICHARD STEPHENSON, aka Andrew McCurvin, aka Anthony McCurvin, Defendant-Appellant. Docket No. 98-1490August Term, 1998 UNITED STATES COURT OF APPEALSSECOND CIRCUIT Argued March 1, 1999Decided June 30, 1999 Appeal from a conviction and sentence in the United States District Court for the District of Connecticut (Alfred V. Covello, Judge). We reverse one of two money laundering convictions for legally insufficient evidence of intent to conceal. Otherwise, we affirm. [Copyrighted Material Omitted] ALEX V. HERNANDEZ, Assistant United States Attorney for the District of Connecticut (Stephen C. Robinson, United States Attorney, of counsel), Bridgeport, Connecticut, for Appellee. CONRAD O. SEIFERT, Seifert & Hogan, Old Lyme, Connecticut, for Defendant-Appellant. Before: WINTER, Chief Judge, JACOBS, Circuit Judge, and SAND, District Judge.* WINTER, Chief Judge: 1 Andrew McCurvin, also known as Raymond Richard Stephenson, appeals from his conviction after a jury trial and from a sentence of 336 months' imprisonment imposed by Judge Covello. At issue are convictions for conspiracy to possess with intent to distribute cocaine and cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1) and 846; of possession with intent to distribute cocaine and crack, in violation of 21 U.S.C. § 841(a)(1); of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(5); of money laundering in connection with the purchase of an Acura Legend, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and of money laundering in connection with McCurvin's wife's placement of drug proceeds in a safe deposit box, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).1 2 We hold that the government failed to prove money laundering in connection with McCurvin's purchase of a 1992 Acura Legend and therefore vacate the guilty verdict on Count 28. We remand for whatever proceedings are appropriate. Finding no merit in McCurvin's other arguments, we otherwise affirm. BACKGROUND 3 We view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80 (1942). In July 1992, FBI Special Agent William S. Reiner, Jr. began a narcotics investigation of McCurvin, a convicted felon and Jamaican national illegally in the United States. Court-authorized wiretaps of his portable cellular and residential telephones played a major role in the investigation and trial. 4 As a result of information provided by a confidential informant, Reiner arranged a meeting between McCurvin and another FBI undercover agent, Juan Jackson, who held himself out as the informant's friend. On February 25, 1993, McCurvin made his first of a total of ten crack sales to Jackson. These sales are not seriously disputed and involved over 1300 grams of crack. On April 29, 1993, Jackson and appellant traveled together to a car dealership called Tri Auto, located in Milford, Connecticut, to negotiate the purchase of an automobile. Jackson was wearing recording and transmitting devices at the time. Appellant told Jackson he could pay cash for the vehicle "without any particular Id. or driver's license." When McCurvin and Jackson arrived at Tri Auto, a car salesman by the name of Greg Mallard explained to Jackson that the dealership was "a big laundromat." 5 On May 7, 1993, Jackson and McCurvin again traveled together to Tri Auto. Jackson was again wearing recording devices. They first discussed the need to conceal drug proceeds. McCurvin explained that he stored his proceeds in a safe deposit box for that purpose. They also talked about the need to avoid triggering the $10,000 cash reporting requirement when purchasing an automobile: 6 JJ: Yeah, cuz there, there's a law they got to do something about a certain amount of money. 7 AM: Yeah, 10,000. 8 JJ: Yeah. 9 AM: But you ain't going to give it at one time. That's when you give it to the person one time. 10 JJ: Right. 11 AM: If you come in today and give me 5 and come tomorrow and give me 5. There's nothing. You know what I mean. But when you just come in one time and hand $10,000. 12 JJ: But that's the way Greg and them do it. They're cool. 13 On May 12, 1993, while conducting surveillance of McCurvin, Special Agent Joseph McTague of the Internal Revenue Service followed McCurvin's wife, Antoinette, to the Bank of Boston in Waterbury, Connecticut. He watched as she descended stairs to the area of the bank that contains safe deposit boxes. Later that day, Antoinette was recorded having the following conversation with a Claudia Pringle: 14 CP: Hello. 15 ANT: This one call has him getting back at me. We had a big fight this morning, you know. Right. 16 CP: That's why you never called back. 17 ANT: Yeah, we had a big fight. I done broke three nails, whatever. He told me to go get his money out of the safe deposit box, so I did. . . . 18 CP: Where you been this morning? 19 ANT: I went to the bank. . . . 20 On May 18, 1993, McCurvin was intercepted discussing the possible purchase of an Acura Legend with someone by the name of Dave: 21 A: Um. Dave, listen now what I'm sayin, now all these cars lists now for 15-5. 22 D: That's what they're callin for. 23 A: Yeah. 24 D: That's a lot of money. 25 A: Lotta money, no, the Legend is a 92 Legend, and light flood. 26 D: Yup. 27 . . . 28 A: They want 17-5 for it. 29 D: Yeah, but you can go down there with 15 and you gotta car. You know what I mean? 30 A: Go down there with 15? 31 D: Yeah. 32 A: But that's what I'm saying. I mean, you know, you can't give them over 10,000, they gotta report it. 33 D: Oh, really. 34 A: You never know that. 35 D. No. 36 A: Yeah, I went to go fuckin look at this 300E. 37 D: Yeah. 38 A: They say once I give them over 10,000, they gotta report it. 39 D: No shit? 40 A: Um hum. So that's what I'm trying to figure. Now how would I do that? You know what I'm saying? That shit is crazy. 41 D: How would you do that? I would buy the car. 42 A: Huh? 43 D: Put the . . . go down there as Gravel's Automotive and buy the car. And then this way, it never hits you then, ah, then we fuckin sell it to you for fucking under ten whatever. 44 That same day, McCurvin was again intercepted discussing the possible purchase of an Acura Legend with a person named Chris: 45 A: Chris? 46 C: Yeah. 47 A: Yeah, um, I'm trying to figure if you still get a 92 Legend . . . . 48 . . . 49 C: Yeah, I have it. 50 A: You got that 92 Legend, light flood? 51 C: No, that has been sold. 52 A: That been sold? 53 C: I have a 91, 91, um, Acura Legend, flood doesn't drive. 54 A: How much you want for that? 55 C: 16-5. 56 A: 16-5? 57 C: Yeah. 58 . . . 59 A: But you basically, listen to what I'm sayin, um, how about like you could use credit card, right? 60 C: No, everything is cash and carry. 61 . . . 62 A: How about the stuff that is like 22,000. I mean if you come up with that 22,000, then you ain't gotta report to the federal government. 63 C: Yeah, that's the law. That or a certified check, whatever easier for you. Cash or certified check. 64 A: Cash or certified check? 65 C: Yeah. 66 A: Damn. All right then, so, um, I think	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 01-50232 _____________________ MARTIN ALVAREZ; PETE ALVAREZ; SERGIO ARMENDARIZ; ANDREW BROOKS; TAYLOR BARKLEY; GARY CADD; HECTOR JESUS CANO; PEDRO A. CHAVEZ; BRUCE A. CRUMP; MARIO D’AGOSTINO; ROBERTO FLORES; RAUL GARCIA-FLORES; DAVID GONZALEZ; GREG HERNANDEZ; MARIO HERNANDEZ; RICHARD HOLGUIN; MARK KLINE; LORENZO MARQUEZ; ANTONIO MURO, JR.; MICHAEL NELIGH; CARLOS A. PIEDRA; ERIC SODEMANN; MICHAEL A. STUBBLEFIELD; DANIEL TARIN; JOSEPH A. TELLEZ; MIGUEL A. TORRES; DAVE VALERO All individually and on behalf of all other employees similarly situated, Plaintiffs - Appellants, versus CITY OF EL PASO, Defendant - Appellee. _________________________________________________________________ Appeal from the United States District Court for the Western District of Texas No. EP-00-CV-103-H February 14, 2002 Before GARWOOD, JOLLY, and DAVIS, Circuit Judges. PER CURIAM:1 Martin Alvarez and twenty-seven other firefighters brought 1 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. suit against the City of El Paso based on the Fair Labor Standards Act (FLSA). They claimed that the City had violated the FLSA, 29 U.S.C. § 207(a)(1), by refusing to pay compensation for their lunch hour. They argued that, because the City placed so many restrictions on the firefighters’ activities during lunch, it was impossible to derive any personal benefits from the lunch hour. Thus, because the lunch hour did not qualify as a bona fide meal period under the FLSA, they were entitled to be compensated for the hour. The district court granted the City’s motion for summary judgment. Alvarez now appeals. We have studied the briefs, heard the argument of the parties, and considered the issues raised in this appeal. It is now clear to us that the finding and conclusions of the district court are not reversible. In deciding whether a lunch hour qualifies as a bona fide meal period, the courts apply a “predominant benefit test.” See Bernard v. IBP, Inc. of Nebraska, 154 F.3d 259, 264 (5th Cir. 1998). “The critical question [under this test] is whether the meal period is used predominantly or primarily for the benefit of the employer or for the benefit of the employee.” Id. at 264-65. In resolving this question, we must decide whether the employee can use the time during lunch for his or her own purposes. Id. at 266. The restrictions placed here on the employees’ dress and use of city-owned automobiles were more in the nature of inconveniences than restrictions on the free use of the time at 2 issue. The district court therefore did not err when it determined, as a matter of law, that the firefighters could use the lunch hour time primarily for their own personal benefit. Accordingly, the judgment of the district court is AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
Case: 17-31006 Document: 00514796956 Page: 1 Date Filed: 01/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-31006 United States Court of Appeals Fifth Circuit FILED January 16, 2019 UNITED STATES OF AMERICA, Lyle W. Cayce Plaintiff-Appellee, Clerk v. ERNESTO MORENO, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:15-CR-76-7 Before JONES, HAYNES, and OLDHAM, Circuit Judges. PER CURIAM:* On the eve of trial, Ernesto Moreno pleaded guilty to knowingly conspiring to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. This drug-trafficking crime triggers a mandatory minimum sentence of 120 months and a maximum of life. See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sentenced Moreno to 372 * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 17-31006 Document: 00514796956 Page: 2 Date Filed: 01/16/2019 No. 17-31006 months. Moreno argues the district court misapplied the Guidelines. We affirm. I. A grand jury indicted Moreno for knowingly conspiring to distribute (and possess with intent to distribute) 500 or more grams of methamphetamine. The district court set the case for trial. On the scheduled first day of trial, however, Moreno pleaded guilty. He did so without a plea agreement. Moreno signed a nine-page factual basis to support his plea. In it, Moreno admitted participating in a drug-trafficking conspiracy from 2011 to 2015. He further admitted he was a “leader” of the conspiracy. He admitted conspiring with family members and others to distribute drugs from California to Louisiana, Texas, and Tennessee. At times, Moreno shipped the drugs himself. Other times, he directed one of his co-conspirators to ship the drugs. The factual basis did not, however, identify the quantity of drugs Moreno trafficked. The final presentence report (“PSR”) did. The PSR described a series of narcotics seizures and undercover purchases on various dates and in various places. It specified the types and weights of the various drugs attributable to Moreno. The PSR concluded the “conspiracy involved the trafficking of at least 17.95941 kilograms of methamphetamine, 3.34 kilograms of cocaine hydrochloride, 17.38 grams of marijuana, and 5.10 grams of alprazolam.” Based on those drug quantities, the PSR assigned a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). The PSR applied a four-level enhancement for Moreno’s leadership role and recommended a two-level reduction for acceptance of responsibility. That yielded a total recommended offense level of 38. 2 Case: 17-31006 Document: 00514796956 Page: 3 Date Filed: 01/16/2019 No. 17-31006 At the sentencing hearing, the district court started with the PSR. It accepted the PSR’s estimate of the drug quantities attributable to Moreno. Moreno did not object. Then the district court considered whether Moreno was a “leader” of his family’s drug-trafficking organization. Moreno admitted as much in the factual basis for his plea. But the initial PSR had failed to recommend a four- level leadership enhancement under U.S.S.G. § 3B1.1(a). The Government objected. The probation officer reconsidered and revised the final PSR to recommend the four-level leadership enhancement. That obviously mooted the Government’s objection to the initial PSR. But it also confused the record of who objected to what: [THE COURT:] [T]he probation officer’s response [to the Government’s objection] indicates that the role assessment in the offense level computation sections for the final PSR have been amended to reflect a four-level enhancement pursuant to guidelines, Section 3B1.1(a). Thus, [the Government’s] objection would also be moot. Is that correct? [AUSA]: Correct. THE COURT: And, likewise, any objection from the defendant. [MORENO’S ATTORNEY]: Yes. It is unclear whether Moreno’s attorney was saying “Yes, I agree any objection is moot,” or “Yes, I object.” In all events, Moreno’s attorney said nothing else. And the district court acted as if no objection was made. It imposed the four- level leadership enhancement. The district court next considered whether Moreno was entitled to a reduction for acceptance of responsibility. The Guideline on acceptance of responsibility has two subsections. See U.S.S.G. § 3E1.1(a)–(b). The PSR recommended a two-level reduction under subsection (a) because the probation officer believed Moreno “clearly demonstrate[d] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Subsection (b) allows the Government to 3 Case: 17-31006 Document: 00514796956 Page: 4 Date Filed: 01/16/2019 No. 17-31006 request an additional one-level reduction where the defendant “timely” accepts responsibility, “thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” U.S.S.G. § 3E1.1(b). The Government did not request the subsection (b) reduction because it “had fully prepared for . . . trial and expended countless hours and significant government resources,” including flying two state witnesses to the trial location, prior to Moreno’s “change of heart.” The district court accepted the Government’s explanation under subsection (b). The district court also concluded the same rationale precluded a two-level reduction under subsection (a). Moreno did not object. Accordingly, he received no reduction under either subsection of § 3E1.1. Finally, the district court received evidence on whether Moreno possessed a firearm during his drug deals. A witness testified that he saw Moreno pull out a firearm and place it on a table while delivering drugs. The Government also presented evidence that Moreno posted pictures of drugs and firearms on a social media page. After considering this evidence, the district court concluded by a preponderance of the evidence that Moreno possessed a firearm during drug-trafficking activity. It therefore applied a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1). That brought Moreno’s offense level to 42. That’s 36 (base offense) plus 4 (leadership role) plus 2 (firearm). Moreno’s criminal history placed him in category III. That yielded a guideline range of 360 months to life. The district court sentenced Moreno to 372 months in prison. Moreno timely appealed. II. Moreno raises four claims on appeal. He argues the district court erroneously found (A) the quantity of Moreno’s drugs, (B) Moreno was a “leader” of the drug-trafficking organization, (C) Moreno possessed a firearm, 4 Case: 17-31006 Document: 00514796956 Page: 5 Date Filed: 01/16/2019 No. 17-31006 and (D) Moreno did not timely accept responsibility. Some of these claims are preserved. Others are not. All are meritless. A. We start with drug quantity. The PSR attributed to Moreno 14.68 kilograms of methamphetamine recovered from a stash house in El Centro, California. Moreno argues those drugs should be excluded from his sentence. Doing so would reduce his base offense level from 36 to 32. Moreno affirmatively waived his right to appeal this issue. When a defendant “intentionally relinquishe[s] or abandon[s] a known right, the issue is waived.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017). And when a defendant	{ "pile_set_name": "FreeLaw" }
129 P.3d 497 (2006) 212 Ariz. 208 ARIZONA COMMERCIAL DIVING SERVICES, INC., an Arizona corporation, Plaintiff/Appellant, v. APPLIED DIVING SERVICES, INC., an Arizona corporation; Israel G. Torres, Registrar of Contractors; Arizona Registrar of Contractors, Defendants/Appellees. No. 1 CA-CV 05-0082. Court of Appeals of Arizona, Division 1, Department E. March 2, 2006. 498 Freeman & St. Clair PLLC, by Norman R. Freeman, II, Tucson, Attorneys for Plaintiff/Appellant Arizona Commercial Diving Services, Inc. Carmichael & Powell PC, by David J. Sandoval, Attorneys for Defendant/Appellee Applied Diving Services, Inc. 499 OPINION OROZCO, Judge. ¶ 1 Arizona Commercial Diving Services (ACDS) appeals the judgment in favor of Applied Diving Services, Inc. (ADS) and the Arizona Registrar of Contractors ("the ROC") on ACDS's appeal and ADS's and the ROC's cross-appeals from the decision of the Administrative Law Judge (ALJ). The trial court upheld the ALJ's decision that ACDS did not meet the standards to satisfy the "substantial compliance" exception to the licensing requirement. It reversed the ALJ's decision that the requirements contract at issue was exempt from the licensing requirements because it might be worth less than $750 per year. It further directed the ROC to rescind ACDS's license, and not reissue the license for one year. For the following reasons, we affirm the trial court's decision. FACTS AND PROCEDURAL HISTORY ¶ 2 Kurt Hankes, a former employee of ADS, started a new business, ACDS, in March 2003. Before transacting business, ACDS contacted the ROC regarding licensing requirements. On May 15, 2003, ACDS applied for a license by submitting its financial statement and evidence of license bond and insurance. On June 5, 2003, the ROC issued ACDS's class K-05 license. ¶ 3 Meanwhile, on May 23, 2003, ACDS submitted a bid in response to the City of Phoenix's ("the City's") Invitation for Bids (IFB). The City's IFB requested sealed bids for a three-year diving services requirements contract to provide inspection and preventive maintenance services at several of the City's wastewater treatment plants and water reservoirs. The City estimated that the average annual expenditure under the contract would be $125,000. ACDS's bid was the low bid, and on June 20, 2003, the City notified ACDS that its bid had been recommended for approval. ¶ 4 On June 10, 2003, ADS filed a Complaint with the ROC, alleging that ACDS had violated Arizona Revised Statutes (A.R.S.) section 32-1151 (2002). That section provides in relevant part: It is unlawful for any person . . . [or] corporation. . . to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person . . . [or] corporation. . . unless the person . . . [or] corporation. . . is exempt. A.R.S. § 32-1151. ACDS admitted that it did not hold a contractor's license when it submitted its bid to the City, but argued that it had substantially complied with the ROC's licensing provisions, and therefore had not violated the statute. See City of Phoenix v.Super. Ct., 184 Ariz. 435, 909 P.2d 502 (App.1995). ¶ 5 The ROC conducted an administrative hearing. The ALJ concluded that ACDS had violated A.R.S. § 32-1151, and recommended that ACDS's contractor's license be suspended for a period of three months. The ROC adopted the ALJ's decision, and ACDS filed a complaint for judicial review of the decision in the superior court. ACDS also requested a stay of the ROC's order suspending its license for three months, which the trial court granted. ADS counterclaimed asserting that A.R.S. § 32-1123 mandates a one-year suspension of ACDS's license and requested that the trial court require such a suspension. ¶ 6 The superior court affirmed the ALJ's decision that ACDS had violated A.R.S. § 32-1151, and concluded that under A.R.S. § 32-1123.A, ACDS should not have been issued a contractor's license for a period of one year from the date of the bid. Because that time had already passed and ACDS's license had remained effective, the trial court ordered that the ROC rescind ACDS's license effective January 26, 2005, and directed the ROC not to reissue the license for a period of one year from that date. ACDS timely appealed the judgment. This court granted ACDS's request for a stay pending the outcome of the appeal. *500 DISCUSSION ¶ 7 On review of an administrative agency's decision pursuant to the Administrative Review Act, the superior court determines whether the administrative action was supported by substantial evidence or was contrary to the law, arbitrary and capricious, or an abuse of discretion. Siegel v. Ariz. St. Liq. Bd., 167 Ariz. 400, 401, 807 P.2d 1136, 1137 (App.1991). The trial court does not reweigh the evidence. Plowman v. Ariz. St. Liq. Bd., 152 Ariz. 331, 335, 732 P.2d 222, 226 (App.1986). On appeal, "we review the superior court's judgment to determine whether the record contains evidence to support the judgment." Smith v. Ariz. Long Term Care Sys., 207 Ariz. 217, 221, ¶ 19, 84 P.3d 482, 486 (App.2004)(citing Ethridge v. Ariz. St. Bd. of Nursing, 165 Ariz. 97, 100, 796 P.2d 899, 902 (App.1989)). We review de novo the superior court's decision "whether the administrative action was illegal, arbitrary, capricious or involved an abuse of discretion." Id. (citation omitted). We are free to reach our own legal conclusions if resolution of the case requires the interpretation of any law. Id. A. Substantial Compliance ¶ 8 ACDS first contends that the superior court erred in affirming the ALJ's decision that ACDS did not substantially comply with the statutory requirement that it be licensed before submitting a bid for contracting work to the City of Phoenix. This court, in City of Phoenix, 184 Ariz. at 438, 909 P.2d at 505, concluded that the doctrine of substantial compliance may apply to the statute at issue in this case, A.R.S. § 32-1151. Specifically, if the statute's purpose "to protect the public from unscrupulous, unqualified and financially irresponsible contractors" is satisfied, then substantial compliance suffices. Id. ¶ 9 Several factors must be considered in determining whether a contractor has substantially complied with the statutory requirements. The factors are: (1) whether the ROC's failure contributed to the contractor's noncompliance; (2) whether the contractor was financially responsible while its license was suspended or not yet issued; (3) whether the contractor knowingly ignored the registration requirements; (4) whether the contractor immediately remedied the statutory violation; and (5) whether the failure to comply with the statute prejudiced the party the statute seeks to protect. Id. (citing Aesthetic Prop. Maint., Inc. v. Capitol Indem., 183 Ariz. 74, 77, 900 P.2d 1210, 1213 (1995)). Aesthetic Property Maintenance further provides that knowingly ignoring the registration requirements is fatal to a claim of substantial compliance. 183 Ariz. at 78, 900 P.2d at 1214 ("Did the contractor knowingly ignore the registration requirements? If so, this is fatal to a claim of substantial compliance."); see also Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, 116, ¶ 10, 41 P.3d 651, 654 (App.2002) (citing Aesthetic Prop. Maint., 183 Ariz. at 78, 900 P.2d at 1214). ¶ 10 In City of Phoenix, the contractor possessed a Class A license, but had failed to obtain a Class B license because it had not been thought necessary. After the contractor had submitted a bid on a project for the City of Phoenix, the ROC issued a contrary opinion. 184 Ariz. at 438, 909 P.2d at 505. This court held that the contractor had "substantially complied" with the statute because the error was caused in part by the ROC, the contractor obtained a Class B license as soon as it discovered that it needed to do so, and the City was not prejudiced by the temporary failure to comply. Id. ¶ 11 Similarly, in Aesthetic Property Maintenance, our Supreme Court held that a contractor had substantially complied with the statute even though its license had been suspended by operation of law for failure to pay a renewal fee. The contractor's failure to timely pay the fee was caused, in part, by the ROC's failure to send the renewal notice to the correct address, even though the contractor had provided the ROC with its new address. Moreover, the contractor had paid the late fee and had the license reinstated as soon as it learned of	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1977 SANDRA WILLIAMS, Plaintiff - Appellant, v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:11-cv-01231-PJM) Submitted: January 23, 2014 Decided: February 19, 2014 Before SHEDD, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Sandra Williams, Appellant Pro Se. Robert Judah Baror, Linda Hitt Thatcher, THATCHER LAW FIRM, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sandra Williams appeals the district court’s order granting summary judgment to the Defendant in Williams’ employment discrimination action. We have reviewed the record and find no reversible error. ∗ Accordingly, we affirm the final judgment for the reasons stated by the district court at the hearing held on July 2, 2013. Williams v. Bd. of Educ. of Prince George’s Cnty., No. 8:11-cv-01231-PJM (D. Md. July 3, 2013). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED ∗ In addition to challenging the district court’s rejection of her claims on the merits, Williams also asserts that the district court’s order should be vacated because her counsel was ineffective. However, a litigant in a civil action has no constitutional or statutory right to effective assistance of counsel. Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986); see Pitts v. Shinseki, 700 F.3d 1279, 1284-86 (Fed. Cir. 2012) (collecting cases recognizing rule), cert. denied, 133 S. Ct. 2856 (2013). 2	{ "pile_set_name": "FreeLaw" }
771 N.W.2d 762 (2009) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy O'Neil HOPKINS, a/k/a Eric Mosley, Defendant-Appellant. Docket No. 138655. COA No. 283610. Supreme Court of Michigan. September 11, 2009. Order On order of the Court, the application for leave to appeal the February 26, 2009 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1375 B & J ENTERPRISES, LTD, trading as Washington Talent Agency, Plaintiff – Appellant, v. KEN GIORDANO; ALBRECHT ENTERTAINMENT SERVICES, INCORPORATED, Defendants – Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Marvin J. Garbis, Senior District Judge. (8:06-cv-01235-MJG) Argued: March 24, 2009 Decided: May 18, 2009 Before MICHAEL, MOTZ, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Louis Fireison, LOUIS FIREISON & ASSOCIATES, PA, Bethesda, Maryland, for Appellant. William D. Day, GILL, SIPPEL & GALLAGHER, Rockville, Maryland, for Appellees. ON BRIEF: Vincent T. Lyon, Patricia H. Ley, LOUIS FIREISON & ASSOCIATES, PA, Bethesda, Maryland, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Plaintiff B & J Enterprises, Ltd, appeals from a summary judgment award in favor of defendants Ken Giordano and Albrecht Entertainment Services, Incorporated, with respect to B & J’s trademark infringement and cybersquatting claims. In its appeal, B & J contends that the district court erred in two respects: (1) by striking various letters and affidavits submitted by B & J on the summary judgment issue; and (2) by awarding summary judgment to the defendants and denying B & J’s cross-motion for such relief. As explained below, we agree with the district court and affirm. I. B & J operates a business that provides entertainment talent for events in the greater Washington, D.C. area (the relevant geographic area), using the name “Washington Talent Agency.” Although B & J had used this name since 1967, it did not seek registration of the “Washington Talent Agency” mark until July 2006, after the initiation of this lawsuit. 1 In 1 In July 2006, B & J filed an application to register “Washington Talent Agency” with the Patent and Trademark Office (the “PTO”). The PTO subsequently published the mark for opposition, and the defendants opposed B & J’s application, which remained pending during the district court proceedings. In this opinion, we use the terms “mark,” “service mark,” and “trademark” somewhat interchangeably, referring to a mark that (Continued) 2 January 2005, Albrecht, doing business as “USA Talent Agency,” and Giordano, Albrecht’s owner and chief executive officer, registered four separate domain names: “WashingtonTalentAgency.com,” “MarylandTalentAgency.com,” “VirginiaTalentAgency.com,” and “ColoradoTalentAgency.com.” 2 Each of these domain names is associated with a specific internet website, and each of the websites is a portal for Albrecht’s parent website, “USATalentAgency.com.” 3 Sometime after June 2005, B & J contacted the defendants, explained that B & J had been using the name “Washington Talent Agency” for almost forty years, informed the defendants that they were infringing on such use, and requested that such infringement activities cease. B & J also unsuccessfully sought to buy the is federally registered or otherwise protected under federal law. 2 A domain name is “any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.” 15 U.S.C. § 1127. 3 When a consumer accesses the website of “WashingtonTalentAgency.com,” limited information regarding the services offered by Albrecht in the greater Washington, D.C. area is made available. The website instructs such a consumer to “Click Here to Enter!” and provides a hyperlink to Albrecht’s “USATalentAgency.com” website, which contains more extensive information concerning Albrecht’s services. 3 domain name “WashingtonTalentAgency.com” from the defendants. When B & J’s proposals were rejected, this lawsuit followed. On May 15, 2006, B & J filed its complaint for injunctive and other relief in the District of Maryland, alleging two claims against the defendants: trademark infringement, under § 43 of the Lanham Act, 15 U.S.C. § 1125(a) (the “trademark claim”); and cybersquatting, pursuant to the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (the “cybersquatting claim”). Pertinent to both claims, B & J alleges that it has a valid and protectable trademark in the name “Washington Talent Agency,” and that the defendants’ use of the domain name “WashingtonTalentAgency.com” is likely to cause confusion among consumers. On the cybersquatting claim, B & J also alleges that the defendants acted in bad faith in securing the “WashingtonTalentAgency.com” domain name. On June 6, 2007, following more than six months of discovery proceedings, the parties filed cross-motions for summary judgment. In their submission, the defendants maintained that they were entitled to summary judgment, under Rule 56 of the Federal Rules of Civil Procedure, on both the trademark claim and the cybersquatting claim. They asserted that “Washington Talent Agency” was not entitled to trademark protection, because it was either a generic term or a descriptive term that had not acquired secondary meaning. On 4 the cybersquatting claim, the defendants asserted that B & J had failed to show either secondary meaning or bad faith. B & J, on the other hand, sought summary judgment on its own behalf, maintaining that there was no genuine issue of material fact and that it was entitled to prevail on its claims as a matter of law. On August 22, 2007, the district court heard argument on the cross-motions for summary judgment. At the hearing’s conclusion, as reflected in its Order, the court stated that it would award summary judgment to the defendants and deny B & J’s cross-request for such relief. See B & J Enters., Ltd v. Giordano, No. 8:06-cv-01235 (D. Md. Aug. 22, 2007) (the “Summary Judgment Order”). 4 The court deferred entering a final judgment, however, authorizing B & J to seek reconsideration of the Summary Judgment Order. Such reconsideration was subject to multiple conditions: that B & J request reconsideration by October 22, 2007; that B & J pay part of the defendants’ legal fees; and that B & J “submit evidence adequate to establish the existence of a genuine issue of material fact preventing summary judgment for Defendants.” Id. at 1. 4 The Summary Judgment Order is found at J.A. 242-43	{ "pile_set_name": "FreeLaw" }
537 U.S. 1099 PONDEROSA DAIRY ET AL.v.LYONS, SECRETARY, CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, ET AL. No. 01-1018. Supreme Court of United States. January 10, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 259 F.3d 1148.	{ "pile_set_name": "FreeLaw" }
598 F.3d 40 (2010) UNITED STATES of America, Appellee, v. Troy CULBERTSON, Defendant-Appellant.[] Docket No. 09-0485-cr. United States Court of Appeals, Second Circuit. Submitted: October 7, 2009. Decided: March 10, 2010. 41 Troy Culbertson, Brooklyn, NY, pro se. Stephen J. Meyer, Assistant United States Attorney (Benton J. Campbell, United States Attorney), United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for Appellee. Before: MINER, CABRANES, Circuit Judges, and RAKOFF,[*] District Judge. MINER, Circuit Judge: Defendant-appellant Troy Culbertson ("Culbertson" or "defendant-appellant"), charged in a superseding indictment with various narcotics offenses, moves this Court pro se for leave to proceed in forma pauperis and for appointment of counsel to pursue his interlocutory appeal from an order of the United States District Court for the Eastern District of New York (Johnson, J.). By that order, the district court denied Culbertson's motions: for dismissal of the indictment for violation of the right to a speedy trial under the Speedy Trial Act of 1974, as amended, 18 U.S.C. § 3161 et seq. ("Speedy Trial Act"); for appointment of new counsel; and for a psychiatric evaluation. The appealability of an order denying defendant's motion seeking appointment of new counsel and of an order denying a psychiatric examination are questions of first impression in our Court. For the reasons given below, we dismiss the appeal nostra sponte for lack of appellate jurisdiction and deny the motions addressed to this Court as moot. BACKGROUND Culbertson was arrested by agents of the United States Bureau of Immigration and Customs Enforcement ("ICE") on January 10, 2008, at approximately 1:30 p.m. in the lobby of Terminal 4 of the JFK Airport in New York City. The occasion of his arrest was his meeting with Patricia Lancaster ("Lancaster"), who was then known to be carrying controlled substances consisting of heroin and cocaine in her various items of luggage. In a complaint filed later that day by ICE Special Agent John Lattuca, Lancaster and Culbertson were charged with conspiracy to import into the United States 100 grams or more of a substance containing heroin and five kilograms or more of a substance containing cocaine, all in violation of 21 U.S.C. § 952(a). According to the complaint, 42 Culbertson was advised of his Miranda rights following his arrest and thereafter "stated, in sum and substance, that he was aware that LANCASTER had traveled from Trinidad to the United States transporting narcotics, and that he had introduced LANCASTER to the two individuals with whom LANCASTER agreed to transport narcotics into the United States." The complaint included the following statement by Agent Lattuca: "Because the purpose of this Complaint is to state only probable cause to arrest, I have not described all the relevant facts and circumstances of which I am aware." On the day of his arrest, an order of detention was issued for Culbertson by Magistrate Judge Marilyn D. Go, and, on January 18, 2008, Culbertson appeared before Magistrate Judge Ramon E. Reyes, Jr. for further proceedings. At that time, Judge Reyes relieved Federal Defender Mildred Whalen as counsel for Culbertson and appointed CJA panel member John F. Kaley to represent Culbertson. At a status conference hearing held before then-Magistrate Judge Kiyo A. Matsumoto on February 6, 2008, Mr. Kaley was relieved as counsel at Culbertson's request, and CJA panel member Julie Clark was appointed to represent Culbertson. The occasion for the substitution was Mr. Kaley's statement to the court that Culbertson had "a different plan and strategy [from that proposed by Kaley] and said he would like a new lawyer." On the same day, with new counsel Ms. Clark present, Culbertson applied to exclude the period from February 6, 2008, until March 7, 2008, from the Speedy Trial Act computation to allow for the conduct of plea negotiations. Judge Matsumoto granted the application, ordered the exclusion and directed that an indictment be filed at the end of the excluded period. A superseding indictment was filed as directed on March 7, 2008, and named Culbertson and four others as defendants. Culbertson was charged in four of the seven counts of the indictment. In Count One, he was charged, along with David Simpson, Sheldon Holder and Patricia Lancaster, with conspiracy to import heroin and cocaine, in violation of 21 U.S.C. § 952(a). In Count Two, he was charged, along with Holder and Lancaster, with conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. Together with Holder and Lancaster, Culbertson was charged in Count Five with importation of heroin and cocaine, in violation of 21 U.S.C. § 952(a), and in Count Seven, which also named Holder as a defendant, with attempt to possess heroin and cocaine, in violation of 21 U.S.C. § 846. On March 20, 2008, Culbertson was arraigned on the superseding indictment before Magistrate Judge Reyes, and a plea of not guilty was entered on his behalf. At that time, a status conference was set for March 29, 2008, before United States District Judge Sterling Johnson, Jr. On March 28, the district court set a date for the making of motions by defendants and for responses by the government, excluded the period of March 28, 2008, through May 15, 2008, for speedy trial computation purposes, and continued the case for a further status conference to May 15, 2008, as to various defendants including Culbertson. By letter dated March 31, 2008, Attorney Clark notified Culbertson that she would not file a motion he had prepared "because it is frivolous" and that she would be seeking removal as his counsel for "abusive behavior during several of our attorney-client meetings." Culbertson filed a motion pro se to dismiss the indictment on April 3, 2008. The gravamen of his motion was that the government *43 failed to properly and timely indict him. His claim was that he was not named in the original indictment and that his superseding indictment was therefore not appropriate. However, as the government noted, and as the district court explained in its Memorandum and Order filed on May 23, 2008, the superseding indictment was the initial indictment as to him, because it was the first and only indictment in which he was named. As far as timeliness, Culbertson was in fact indicted within the thirty-day period after arrest as required by the Speedy Trial Act. See 18 U.S.C. § 3161(b). He was arrested on January 10, 2008, and on February 6, 2008, the magistrate judge ordered the exclusion of time until March 7, 2008, the date the indictment was in fact filed. Accordingly, for Speedy Trial Act purposes, only twenty-eight days passed between arrest and indictment. In view of the foregoing, the court also rejected Culbertson's claim that the absence of an original indictment caused him to have insufficient notice of the crimes charged. At a conference hearing held before Judge Johnson on April 4, 2008, the court granted the application of Attorney Clark to be relieved as counsel, appointed CJA panel member Allen Lashley as counsel for Culbertson, directed Attorney Clark to remain as counsel until new counsel was in place, and adjourned the proceedings until April 10, 2008. On that date, Culbertson appeared before Judge Johnson with attorneys Lashley and Clark. Clark reported that all materials had been turned over to Lashley, and the court finally relieved her as counsel. The court recognized that new counsel needed adequate time to review the case and scheduled a status conference for all defendants for May 15, 2008. The court's minutes for May 15, 2008, take note of the denial of Culbertson's pro se motion and include the following: 2nd call for Defendant Troy Culbertson.... Defense counsel [Lashley] indicates defendant has fired counsel because... he will not file a motion to dismiss indictment.... Court will not relieve counsel. Defendant will proceed pro se if he so wishes. Counsel will remain as standby to assist and advise.... Govt's request for competency evaluation of defendant is DENIED. A further status conference was scheduled for June 27, 2008. By motions filed on June 12, 2008, Culbertson sought "dismissal of indictment,... appointment of counsel [and] determination of medical competency to stand trial." With respect to his motion to dismiss the indictment, Culbertson once again advanced the argument that he was not indicted within thirty days of his arrest, contending, inter alia, that he was "tricked into waiving constitutional rights." In support of his Speedy Trial Act violation argument, Culbertson cited to Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), and United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir.2000). In seeking appointment of new counsel, Culbertson alleged that he "does not want to proceed pro se and never did." As to his previous counsel, Culbertson asserted that "Mrs. Walen (sic) had to resign for a conflict	{ "pile_set_name": "FreeLaw" }
79 F.3d 1148 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jeffrey KNISLEY, Plaintiff-Appellant,v.DAVE DONALDSON & ASSOCIATES, INC., Defendant-Appellee. No. 94-1794. United States Court of Appeals, Sixth Circuit. March 14, 1996. Before: SILER and DAUGHTREY, Circuit Judges, and ROSEN, District Judge.* PER CURIAM. 1 In this diversity action, plaintiff Jeffrey Knisley appeals the district court's order granting summary judgment to the defendant, Donaldson & Associates, his former employer. In his complaint, Knisley alleged that his termination from his position at Donaldson & Associates constituted a breach of contract, and he also sought damages on the basis of promissory estoppel and unjust enrichment. We find no error in the district court's judgment, and we therefore affirm. 2 The opinion filed by the district judge in this case sets out the facts in detail, and they need not be reiterated at any length here. Knisley had been an in-house salesperson with the Crosman Corporation for some six years when that company decided to use outside manufacturers' representatives rather than inside sales personnel. Crosman gave Knisley the option of representing its line as an independent manufacturer's representative in a four-state geographical area or taking the line to an acceptable established firm. As a result, Knisley went to work for Donaldson & Associates, where he was to receive an annual salary of $60,000 plus an unspecified annual bonus, which was the same economic package as the other partners in the Donaldson firm had, other than Mr. Donaldson himself. In return, Knisley brought the Crosman account to the Donaldson firm, for which he received a $2,000 "signing bonus." Crosman Corporation and Donaldson & Associates agreed that Crosman could unilaterally terminate the arrangement on 30 days notice. 3 Thirteen months after Knisley went to work for Donaldson & Associates, he was terminated due to inadequate performance and "personality conflicts." During his tenure with the Donaldson firm, Knisley had sold some $4 million worth of Crosman products, yielding commissions of approximately $200,000. The record reflects, however, that Donaldson's overhead expenses ran approximately 50 percent of its gross receipts. Despite his request to the contrary, Crosman Corporation maintained its account with Donaldson & Associates after Knisley's departure. 4 Knisley subsequently filed suit against Donaldson & Associates, alleging multiple grounds for recovery of damages under Michigan law, including breach of contract, promissory estoppel, and unjust enrichment. He alleged that he was orally promised that "in exchange for Plaintiff's causing Crosman to appoint Donaldson & Associates as its representative in the four state area, Plaintiff would be permanently employed and would receive a one-sixth interest in Donaldson Associates." Instead, Knisley alleged, the defendant, Donaldson & Associates, had received the benefit of the bargain and he, Knisley, had not. 5 Donaldson & Associates denied that it had promised Knisley a one-sixth interest in the company, pointing out that under Michigan law, employment is presumptively "at will" and noting that there was nothing in writing to indicate the existence of an employment contract with Knisley. The defendant further contended that Knisley's attempts to secure partnership status had been rebuffed and pointed out that the existing "partners" at Donaldson & Associates were themselves "employees at will," who could be discharged "for any reason" upon 30 days notice and a unanimous vote of the remaining partners. Lastly, the defendant argued that delivery of the Crosman account was not a benefit conferred by Knisley because Crosman retained the right to approve Knisley's initial recommendation and to sever the relationship with Donaldson & Associates unilaterally. 6 In a full and well-reasoned opinion, the district court determined that the legal presumption that the plaintiff remained terminable at will had not been rebutted by enough evidence to create a genuine issue of fact on the breach of contract count. The district court further found that there was no evidence that Donaldson & Associates had ever promised not to fire Knisley and that there was likewise insufficient evidence that the defendant breached a promise to the plaintiff. Finally, the district court found that the plaintiff had failed to prove that the defendant was being unjustly enriched by its retention of the Crosman line, given the relative value of that portion of its sales business and the amount of compensation received by Knisley for his efforts in conjunction with the Crosman account. We find the reasoning of the district court in reaching these conclusions to be wholly supported by Michigan law and adopt the district court's analysis in reaching our determination that summary judgment in the defendant's favor was justified by the record in this case. 7 The judgment of the district court is AFFIRMED. * The Hon. Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-2456 RODNEY VICTOR HARRIS, Plaintiff - Appellant, versus BRETT RADER, Property Manager, Giles County Housing and Development Corporation, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-03-571-7) Submitted: March 11, 2004 Decided: March 17, 2004 Before WIDENER, WILKINSON, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Rodney Victor Harris, Appellant Pro Se. Clark Hatcher Worthy, Kenneth J. Riles, JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rodney Victor Harris appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2000) complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B) (2000). We have reviewed the record and find that this appeal is frivolous. Accordingly, we deny Harris’s motion to submit circuit court transcripts and all motions set forth therein, and we dismiss the appeal on the reasoning of the district court. See Harris v. Rader, No. CA-03- 571-7 (W.D. Va. Nov. 6, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 -	{ "pile_set_name": "FreeLaw" }
649 So.2d 1078 (1995) STATE of Louisiana v. Edward D. SMITH. No. 94-KA-1502. Court of Appeal of Louisiana, Fourth Circuit. January 19, 1995. 1080 Harry F. Connick, Dist. Atty. and Val M. Solino, Asst. Dist. Atty., New Orleans, for appellee. Laurie A. White and Angela A. Gerrets, Law Office of Laurie A. White, New Orleans, for appellant. Before LOBRANO, JONES and LANDRIEU, JJ. LANDRIEU, Judge. Edward D. Smith was charged by bill of information on March 30, 1990, with one count of being a convicted felon in possession of a firearm and one count of possession with the intent to distribute crack cocaine. He pleaded not guilty to both counts, and the charges were later severed.[1] On May 9, 1990, defendant was tried by a twelve-member jury on the second count and was found guilty as charged. He was sentenced on July 18, 1990, to serve twenty (20) years at hard labor, and the multiple bill was quashed. FACTS At approximately 9:00 p.m. on February 3, 1990, Officers George Chenevert and Edmond Worthy were on patrol in the vicinity of South Claiborne Avenue and Toledano Street when they heard a woman scream.[2] Immediately thereafter, they observed a 1081 man running with what appeared to be a purse. The officers pursued the man into the Magnolia Housing Project, but they lost sight of him. The officers split up to continue the search, and some four minutes later, Chenevert saw the defendant standing on a balcony. Officer Chenevert testified that the defendant, dressed in a dark long sleeve shirt and blue jeans, fit the description of the person he was pursuing. He approached the defendant to investigate. When Chenevert frisked the defendant, he found a gun in his waistband. He placed the defendant under arrest for carrying a concealed weapon and advised him of his rights. A search incident to the arrest found a plastic bag containing twenty pieces of crack cocaine in defendant's right front pants pocket. When the defendant was informed that he was being arrested for purse snatching, he stated, "I don't do robberies. I sell crack." DISCUSSION ERRORS PATENT Our review of the record reveals no errors patent. ASSIGNMENT OF ERROR NO. 5 In this assignment of error, the defendant contends that the evidence presented was insufficient to support a finding of guilty of possession with the intent to distribute cocaine. Specifically he argues that there was no evidence that he had the requisite intent to distribute cocaine. When both the sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. Because the defendant may be entitled to an acquittal or a reduction of the conviction to a judgment of guilty of a lesser and included offense if the evidence is found insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Hearold, 603 So.2d 731, 734 (La.1992). The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789; State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (1988). When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La.Rev.Stat.Ann. § 15:438 (West 1992); State v. Camp, 446 So.2d 1207 (La. 1984). This is not a stricter standard of review, but it is an evidentiary guide for the jury when it considers circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985). When circumstantial evidence is sufficient to convict beyond a reasonable doubt and a rational trier of fact reasonably rejects the defendant's hypothesis of innocence, that hypothesis fails; and, unless another hypothesis creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984). To support a conviction for possession of a controlled dangerous substance with intent to distribute, the State must prove that the defendant knowingly and intentionally possessed the contraband and that he did so with the intent to distribute it. La. Rev.Stat.Ann. § 40:967 (West 1992). Specific intent to distribute may be established by proving circumstances surrounding the defendant's possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4th Cir.1989). Factual circumstances from which such intent can be inferred include: previous distribution by the defendant; the presence of paraphernalia for distribution; possession of an amount sufficient to create a presumption of intent to distribute; and, packaging in a form usually associated with distribution rather than personal use. State v. Hechavarria, 575 So.2d 444, 448 (La.App. 4th Cir.1991). *1082 In the instant case, twenty pieces of crack were found on the defendant's person. Additionally, the defendant admitted that he sold drugs. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the defendant had the requisite intent to distribute the cocaine found on his possession. Accordingly, this assignment of error is without merit. ASSIGNMENT OF ERROR NO. 1 In his first assignment of error, the defendant contends that the trial court erred in finding that the police officers had probable cause to stop and search him. He points to Chenevert's testimony that he could not remember whether defendant was out of breath or sweating or whether defendant was wet from the rain that had been falling. A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. La.Code Crim.Proc.Ann. art. 215.1 (West 1991); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be free from governmental interference. State v. Albert, 553 So.2d 967 (La.App. 4th Cir.1989); State v. Smith, 489 So.2d 966 (La.App. 4th Cir. 1986). The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. State v. Moreno, 619 So.2d 62, 65 (La.1993). Under Article 215.1(B), when a law enforcement officer lawfully stops a person for questioning, he may frisk the person's outer clothing for a dangerous weapon; and if the officer reasonably suspects that the person has a dangerous weapon, he may search the person. The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger. State v. Lightfoot, 580 So.2d 702 (La.App. 4th Cir.1991). In the instant case, Officer Chenevert had a reasonable suspicion that defendant had been engaged in criminal conduct, namely a purse snatching. He resembled the man Chenevert had seen running with what appeared to be a purse, and Chenevert found defendant in the same area where he had lost sight of him less than five minutes earlier. Therefore, Officer Chenevert was justified in stopping defendant. Accordingly, this assignment of error is without merit. ASSIGNMENTS OF ERROR NO. 2 & 3 In his second assignment of error, defendant contends that the trial court erred in admitting other crimes evidence, namely the gun seized from him. By his third assignment of error, he complains about the State's questioning Officer Chenevert about other crimes evidence, namely the purse snatching. Defendant argues that the gun was irrelevant evidence because its probative value was outweighed by the unfair prejudice and confusion it created. He further argues that the reference to the purse snatching was inadmissible "other crimes" evidence, which should have resulted in a mistrial under La. Code Crim.Proc.Ann. art. 770 (West 1981), as well as being irrelevant evidence	{ "pile_set_name": "FreeLaw" }
734 P.2d 811 (1987) 105 N.M. 571 Johnny Wayne JOY, Petitioner-Appellant, v. Annette Christine JOY, Respondent-Appellee. No. 8658. Court of Appeals of New Mexico. February 26, 1987. 812 Richard L. Kraft, Sanders, Bruin, Coll & Worley, P.A., Roswell, for petitioner-appellant. Kevin J. Hanratty, Klipstine & Hanratty, Artesia, for respondent-appellee. OPINION DONNELLY, Chief Judge. Husband appeals from an order entered pursuant to NMSA 1978, Civ.P.Rule 60(b) (Repl.Pamp. 1980) (recompiled as SCRA 1986, Rule 1-060(B)), vacating a decree of divorce approximately six months after it was entered and dismissing the action without prejudice. The central issue raised on appeal is whether the evidence adduced at the motion to vacate the decree, indicating that the parties continued to live together and share the same residence for approximately one week after the filing of a petition for dissolution of marriage, deprived the court of jurisdiction to enter a decree dissolving the marriage of the parties. Reversed and remanded. Husband filed a petition for dissolution of marriage on November 14, 1984, in the Chaves County District Court. The verified petition alleged, among other things, that "a state of incompatibility has arisen between [the parties] making it impossible for them to live together as husband and wife." Wife did not file an answer to the petition for divorce nor did she deny husband's allegations of incompatibility. Thereafter, wife, who was unrepresented by counsel, signed a stipulated marital settlement agreement providing for division of community property, debts, and custody of the two minor children of the parties. Wife agreed in the marital settlement that a final decree of divorce could be entered "on the grounds of incompatibility." Wife also filed a waiver of notice of hearing as to any further proceedings in the cause. The trial court approved the marital settlement agreement and entered a final decree dissolving the marriage on November 29, 1984, based upon the incompatibility of the parties. On December 26, 1984, wife, through newly employed counsel, filed a motion under Civ.P.Rule 60(b), seeking to modify the decree and to set aside the property settlement agreement based upon the existence of alleged mutual mistake, unawareness of the parties of the nature and extent of community assets and other equitable grounds. At the hearing on the above motion, wife's counsel also argued that the trial court lacked jurisdiction because the parties continued living together after the filing of the petition for dissolution of marriage. Wife testified at the hearing on the motion that she had continued to live with husband, sharing the same residence and bed, for approximately one week after the petition for divorce had been filed. Wife further testified that she had no knowledge 813 that the petition for divorce had been filed until husband came home and informed her that he had been to his lawyer's office and had filed the petition. Husband was questioned as to whether he had continued to reside with wife at the time the petition for divorce was filed and he invoked his fifth amendment privilege. Thereafter, on May 24, 1985, the trial court entered an order vacating the prior judgment and dismissing the cause based upon the following finding: 1. The original petition in this cause was filed on November 14, 1984. At that time the parties were not separated; they continued to live together in cohabitation as husband and wife for at least one week following filing of the petition. 2. By reason of the foregoing, the Court lacked jurisdiction of the cause and the judgment should be set aside. On June 4, 1985, husband filed a motion to set aside the order vacating the judgment and dismissing the case. The trial court denied the motion on June 12, 1985. PROPRIETY OF DISMISSAL Husband argues that the trial court erroneously concluded that continued residence by the parties in the same home deprived the court of jurisdiction to grant dissolution of the marriage. Husband contends he satisfied all jurisdictional requisites under NMSA 1978, Sections 40-4-4 and -5 (Repl. 1986), regarding domicile and residence for granting the divorce and that no other statute or requirement deprived the trial court of jurisdiction. Husband also asserts that he presented sufficient evidence to establish that a state of incompatibility existed and continues to exist between the parties. He also argues that the fact that the parties temporarily continued to reside together after the filing of the petition for divorce only went to the weight of the evidence concerning the issue of incompatibility and not to the jurisdiction of the court. See Buckner v. Buckner, 95 N.M. 337, 622 P.2d 242 (1981); NMSA 1978, § 40-4-2 (Repl. 1986). Husband also contends that once a finding is made that the parties are incompatible, a divorce must be entered. See Buckner; Garner v. Garner, 85 N.M. 324, 512 P.2d 84 (1973). The legislature's adoption of incompatibility as a ground for dissolution of marriage carried with it the correlative effect of abolishing the traditional or common-law defenses to divorce. See Garner. The essential prerequisites to establish a party's right to a dissolution of marriage on the ground of incompatibility are proof of domicile, residence and the existence of facts showing that the parties are irreconcilably incompatible. §§ 40-4-2, -5. See also State ex rel. DuBois v. Ryan, 85 N.M. 575, 514 P.2d 851 (1973); Garner; Poteet v. Poteet, 45 N.M. 214, 114 P.2d 91 (1941). Cf. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967). New Mexico recognizes four separate grounds for divorce, including incompatibility. NMSA 1978, § 40-4-1(A) (Repl. 1986). Where petitioner seeks a dissolution of marriage on a ground other than incompatibility, cohabitation or continued residence together by the parties, following the filing of a petition for divorce, gives rise to the affirmative defense of condonation. Condonation is forgiveness, either express or implied, of antecedent matrimonial misconduct. Richardson v. Richardson, 124 Colo. 240, 236 P.2d 121 (1951) (en banc). Whether or not condonation exists, requires a factual determination based upon the evidence before the court. Zildjian v. Zildjian, 8 Mass. App. 1, 391 N.E.2d 697 (1979). Condonation, however, is a "fault defense" which no longer exists under our no-fault statute. Peltola v. Peltola, 79 Mich. App. 709, 263 N.W.2d 25 (1977). See also In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975) (en banc); Ryan v. Ryan, 277 So.2d 266 (Fla. 1973). Cf. Chester v. Chester, 76 Cal. App.2d 265, 172 P.2d 924 (1946). Husband denies that the parties' sharing of the home and sleeping in the same bed for a week amounted to cohabitation as man and wife and challenges the sufficiency of the evidence to support this finding of the trial court. Husband further argues that the fact that the parties may have continued to temporarily reside together, *814 absent a showing of reconciliation, does not constitute justification to deny dissolution of the marriage where the basis for the divorce is premised upon the incompatibility of the parties and both parties agree to the fact of incompatibility. See Smith v. Smith, 322 So.2d 580 (Fla.App. 1975) (court required clear showing of intent to reconcile to justify denying dissolution under Florida's no-fault dissolution of marriage laws). We agree with that portion of husband's argument that evidence of cohabitation or continued residence together by the parties after filing a petition for divorce based on incompatibility does not automatically deprive the court of jurisdiction or mandate dismissal of the divorce proceedings as a matter of law. Cf. McGaughy v. McGaughy, 410 Ill. 596, 102 N.E.2d 806 (1951); Claude v. Claude, 180 Or. 62, 174 P.2d 179 (1946). Continued cohabitation following commencement of a divorce action may, however, indicate that the marriage is not, after all, irretrievably broken. As a general rule, it is not the policy of the law to separate parties who have not separated themselves. See Berman v. Berman, 277 A.D. 560, 101 N.Y.S.2d 206 (1950). The actions of the parties may serve to indicate that the marriage is still viable, and a party alleging incompatibility as a basis for dissolution of marriage must present evidence to establish the fact of incompatibility. In the present case, however, wife did not file an answer to husband's complaint nor contest husband's allegation that the parties were in fact incompatible. Wife expressly agreed in the marital settlement agreement "that a final decree may be entered granting the dissolution of marriage ... on the grounds of incompatibility." Additionally, wife's written motion under Rule 60(b) for modification of the decree and property settlement did not seek nullification of the decree of divorce. Generally, where a party does not controvert a fact in a responsive pleading,	{ "pile_set_name": "FreeLaw" }
464 A.2d 750 (1983) NORTHERN RENT-A-CAR, INC. v. William CONWAY, Commissioner. No. 82-160. Supreme Court of Vermont. June 15, 1983. 751 Paradis & Coombs, Essex Junction, for plaintiff-appellant. John J. Easton, Jr., Atty. Gen., and Thomas R. Viall, Asst. Atty. Gen., Montpelier, for defendant-appellee. Before BILLINGS, C.J., and HILL, UNDERWOOD and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned. GIBSON, Justice. Northern Rent-A-Car, Inc. [Northern] owns and operates a car rental business at the Burlington International Airport. Pursuant to V.R.C.P. 75, it appeals from an adverse determination by the Washington Superior Court, which upheld the Commissioner of Motor Vehicle's assessment of a purchase and use tax under 32 V.S.A. §§ 8901-8915. The tax was allegedly due as a result of a February 1980 transfer to Northern of rental vehicles from a sister corporation in exchange for 100% of Northern's stock. At the time of the transfer, both Northern and its sister corporation were wholly owned by a third party. In its brief, Northern correctly states the narrow issue now before this Court: "In order for [Northern] to prevail in the instant case, the word `individual' as stated in 32 V.S.A. § 8911(10) must be interpreted as including corporations." For reasons detailed herein, we agree with both Commissioner Conway and the trial court that an individual is not a corporation, and therefore, we affirm. None of the relevant facts are in issue; the parties to this appeal have stipulated to the corporate history of Northern. Further, the parties agree that, but for the possible exemption embodied in 32 V.S.A. § 8911(10), Northern would be liable for the purchase and use tax. Section 8911(10), as then in force, read: The tax imposed by this chapter shall not apply to: (10) motor vehicles registered in Vermont by the transferor and transferred between that individual and a business entity controlled by him, if the transfer is exempt under section 351 of the United States Internal Revenue Code in effect July 1, 1966; The trial court found, and we agree, that qualification for this purchase and use tax exemption requires the satisfaction of four elements: (1) the motor vehicles must be registered to the transferor prior to the transfer; (2) the transferor must be an individual; (3) the transferor must control the transferee business entity; and (4) the transfer must be exempt under I.R.C. § 351 (as codified at 26 U.S.C. § 351). Directing our attention to element two, Northern argues that although "individual" is undefined in our statutes, the "obvious purpose of this exemption is to relieve taxpayers who have already paid a purchase and use tax, from paying a subsequent tax upon a tax free reorganization of the taxpayer's business." In analyzing this issue of statutory construction, we must keep in mind that the primary objective is to give effect to the intention of the legislature. Wetterau, Inc. v. Department of Taxes, 141 Vt. 324, 327, 449 A.2d 896, 897 (1982). Further, the plain and ordinary meaning of statutory language is presumed to be intended. Id. The legislature's choice in providing a tax exemption to individuals affords us with little leeway for statutory construction. The term "individual" has a "well understood and common meaning. Words in a statute without definition are to be given their plain and commonly accepted use." Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 223, 227 A.2d 294, 295 (1967). 752 Black's Law Dictionary provides this Court with just such a common definition. As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons. Black's Law Dictionary (5th ed. 1979). Northern's suggestion that the legislature intended an unusual definition for "individual," yet neglected to provide any hint of its plan, is unpersuasive. We note that the word "person," as it applies to purchase and use taxes, is defined in 32 V.S.A. § 8902(7) as follows: "any individual, firm, partnership. . . or corporation." Clearly, the legislature intended to differentiate between individuals and corporations. Further proof that the legislature was well aware of the definition and the restrictive class of taxpayer thereby entitled to purchase and use tax relief is found in the 1982 amendment to 32 V.S.A. § 8911(10). As now amended, the exemption applies to transfers between a qualified "individual or partnership and a business entity controlled by the transferor . . . ." The legislature could easily have added an exemption for corporations by the same amendment, if it had so intended. Given the recent adjustment to the subsection in issue and the plain meaning of the terms employed, we will not judicially expand § 8911(10) to include corporations like Northern. In view of the necessity that all four statutory criteria must be met to qualify for the purchase and use tax exemptions, and our holding that Northern is not an "individual" within the ambit of 32 V.S.A. § 8911(10), we need not reach the other claims of error raised by appellant. However, we do note, finally, that the claimed equal protection violation is without merit. Where, as here, no fundamental rights or suspect classes are involved, the legislature is constitutionally permitted to grant tax exemptions to specific groups so long as it has a "rational basis" for its acts, and is not being wholly arbitrary or capricious. See Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 42, 422 A.2d 255, 258 (1980). Northern has not carried its "very weighty burden" of voiding a taxing measure on equal protection grounds. Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 245, 403 A.2d 689, 693 (1979). Affirmed.	{ "pile_set_name": "FreeLaw" }
951 F.2d 461 UNITED STATES of America, Plaintiff-Appellee,v.Johnny ENG, Claimant-Appellant,Certain Real Property and Premises, Known as 218 PantherStreet Newfoundland, Pennsylvania, 69 Gauldy Avenue, StatenIsland, New York, and 21 Norman Drive, Staten Island, NewYork, Certain Honda All-Terrain Vehicles, YamahaSnowmobiles, a Certain Yong Chang, G185 Piano, Serial Number004201, Defendants. No. 1432, Docket 91-6013. United States Court of Appeals,Second Circuit. Argued May 13, 1991.Decided May 17, 1991.Opinion: Dec. 3, 1991. Kenneth Joseph Kukec, Miami, Fla. (Albert J. Krieger, Susan W. Van Dusen, Albert J. Krieger, P.A., of counsel), for claimant-appellant. Arthur P. Hui, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., of counsel), for plaintiff-appellee. Before CARDAMONE, WALKER and FRIEDMAN,* Circuit Judges. CARDAMONE, Circuit Judge: 1 This appeal arises as a result of the efforts of a defendant, detained in a foreign jurisdiction, to avoid criminal prosecution in the United States, while attempting at the same time to assert his claim to real property in this country, allegedly purchased with the proceeds of his criminal activities. It has been a truism for nearly half a millennium that "one cannot eat his cake and have it too." Defendant of course may elect to oppose extradition, but that choice has negative consequences that he may not evade. For the reasons discussed below, we affirm the August 21, 1990 decision of the United States District Court for the Eastern District of New York (Raggi, J.) 745 F.Supp. 118, holding that appellant Johnny Eng is disentitled from contesting a civil forfeiture proceeding instituted by the government against real property Eng claims ownership of so long as he continues to fight extradition that would return him to the United States to face criminal charges pending against him. BACKGROUND 2 In August, 1989 a grand jury in the Eastern District of New York returned an indictment against Eng on charges that he operated a continuing criminal enterprise in violation of 21 U.S.C. § 848(b), and on 17 additional charges under the narcotics laws, all involving the alleged sale of heroin. The continuing criminal enterprise offense carries a mandatory term of life imprisonment without parole. Eng had been detained in Hong Kong on suspicion of violating a local ordinance, and the authorities in that British Crown Colony on August 17, 1989 arranged for his release to Interpol agents pursuant to a detainer issued under Article VIII of the Extradition Treaty between the United States and the United Kingdom. The detainer was the result of a provisional arrest warrant requested by the United States under the Treaty. Since his arrest Eng has resisted extradition to the United States where the government seeks to prosecute him on the continuing criminal enterprise and narcotics charges. 3 In December, 1989, several months after Eng's arrest, the government filed under 21 U.S.C. § 881(a)(6) (1988) a civil in rem forfeiture action in the Eastern District of New York against certain real property located in New York and Pennsylvania. An amended verified complaint filed on February 15, 1990 charged that the properties were purchased with the proceeds of the narcotics offenses for which Eng had been indicted. Arrest warrants against the properties in rem issued, listing Eng, his wife, his sister-in-law, and his uncle as potential claimants. The arrest warrants, an amended verified complaint, and a set of interrogatories were served on the properties on March 1, 1990, and copies also were served on Eng's relatives between March 7 and March 10, 1990. In addition, the government by publication on March 12-14, 1990 in the New York Post gave notice of its pending civil action. 4 On March 15, 1990 Eng's wife and uncle filed verified notices of claims to certain of the properties. Also on March 15, Eng filed a motion for an order to show cause why the subject properties should not be released summarily from arrest or, in the alternative, for a dismissal of the government's claims to the properties outside New York, or for an indefinite stay of the civil proceedings pending the conclusion of any criminal proceedings against him. Eng's motion stated that he was a potential claimant to the properties but did not identify what, if any, interest he had. He asserted in addition that the government had failed to provide him with proper notice of the action. 5 The government served notice on Eng personally in his Hong Kong prison cell on March 23, 1990. On May 1, 1990 it moved for an entry of a decree of forfeiture against the properties based on the failure of any potential claimant to file a verified answer to the complaint within the applicable 20-day period. See Mercado v. United States Customs Service, 873 F.2d 641, 644-45 (2d Cir.1989) (describing the forfeiture process). On May 25, 1990 the district court heard oral argument on the government's motion for a default judgment, on Eng's motion, and on the motions of claimants Lori Eng and Chik Kun Wong, Eng's wife and uncle, respectively, for leave to file responses to the government's amended verified complaint and interrogatories. Several days later the motions of Eng's wife and uncle to file untimely verified answers was granted, and a default judgment on those properties for which no verified claim had been filed. At the hearing the court heard argument on whether Eng himself was entitled to contest the forfeiture procedures, given his continued resistance to extradition. 6 On August 21, 1990, after further proceedings, Judge Raggi granted a default judgment against Eng, denied his application for an order to show cause or to dismiss the action, and held that Eng lacked both statutory standing and was disentitled to be heard because of his resistance to extradition. The district court opinion is reported at 745 F.Supp. 118 (E.D.N.Y.1990). A default judgment in favor of the United States was entered on August 30, 1990. It is that judgment which Eng now appeals. DISCUSSION 7 On appeal Eng raises two issues. He contends that the district court erred in finding that (1) he was a fugitive and therefore not entitled to be heard in this civil forfeiture proceeding, and (2) he lacked statutory standing to challenge the forfeiture because he failed to file his claim timely under Admiralty Rule C(6). As a preliminary matter, he asserts that the district judge confused the concept of standing--without which he is barred from maintaining his civil action--with the concept of disentitlement, which is not jurisdictional. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970). We do not view the district court's action as confusing these two concepts. Rather, it dealt with them disjunctively, stating that Eng's failure to file a claim and answer timely deprive him of standing to contest the forfeiture proceeding, and that his active opposition to extradition disentitles him, in any event, from being heard in the civil proceedings even to request a stay. See 745 F.Supp. at 122. I Disentitlement 8 The principal question before us is whether the doctrine of disentitlement--that holds a person who is a fugitive from justice may not use the resources of the civil legal system while disregarding its lawful orders in a related criminal action--should bar appellant from participating in the civil forfeiture proceedings. Appellant asserts that he is not a fugitive from justice and that, even if he is, the doctrine should not apply in his case. A. Fugitive Status 9 Eng declares in his brief that he is a fugitive, if at all, only "by the barest of legal fictions." To the contrary, that Eng is a fugitive rests on sound, legal footing, not on fictions. In United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), the defendant, an American, was convicted and sentenced for narcotics trafficking in the Southern District of New York, but fled to France prior to his surrender date. While abroad he was arrested and held to answer charges under French law, pursuant to a provisional arrest warrant issued at the request of the United States. Catino resisted United States efforts to extradite him. During the pendency of the extradition proceedings, he was convicted on the French charges and sentenced to five years in prison. The French government then opposed the United States' extradition request on the ground that Catino had already been convicted in France for the same criminal conduct alleged against him by the United States. Extradition was subsequently denied. After serving his sentence in France, Catino was expelled from that country and returned to the United States where he was promptly arrested. Id. 735 F.2d at 719-21. 10 Catino	{ "pile_set_name": "FreeLaw" }
142 F.3d 439 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Mervyn BUTLER, Petitioner-Appellant,v.United States of America, Respondent-Appellee. No. 95-3340. United States Court of Appeals,Seventh Circuit. .Submitted Mar. 12, 1998*.Decided Apr. 1, 1998. Appeal from the United States District Court for the Central District of Illinois. No. 95-3340 Richard Mills, Judge. Before Hon. FRANK H. EASTERBROOK, Hon. ILANA DIAMOND ROVNER, Hon. DIANE P. WOOD, Circuit Judges. ORDER 1 Mervyn Butler appeals the denial of his motion to vacate, 28 U.S.C. § 2255, claiming that the holding in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), invalidates his conviction for using and carrying a firearm during a drug trafficking offense. 18 U .S.C. § 924(c). We affirm. 2 Initially, we must address a challenge to our jurisdiction. The government contends that because the Central District of Illinois docketed this collateral attack as a continuation of the criminal case, instead of as a separate civil action, a separate document of judgment was not entered as required by Federal Rule of Civil Procedure 58. Thus, the government asserts, under Armstrong v. Ahitow, 36 F.3d 574 (7th Cir.1994), we lack jurisdiction over this appeal. The government misunderstands the import of the separate document rule of Rule 58, which is to protect the appellant's opportunity to appeal by providing certainty as to the deadline for filing a notice of appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); Armstrong, 36 F.3d at 575. 3 A Rule 58 entry, however, is not essential to an appeal. Mallis, 435 U.S. at 387; Otis v. City of Chicago, 29 F.3d 1159, 1165 (7th Cir.1994). If the district court clearly intended the order from which an appeal is taken to be a final decision, and if the appellee would not be misled or prejudiced as a result, the appellant may waive entry of a separate judgment. Mallis, 435 U.S. at 387; Armstrong, 36 F.3d at 575. The government does not argue that it has been misled or that it would suffer prejudice; nor does it argue that the district court did not intend the order from which Butler appeals to be final. If we dismissed this appeal, the district court would simply enter a separate judgment. In other words, "[w]heels would spin for no practical purpose." Mallis, 435 U.S. at 385. We conclude, therefore, that we have jurisdiction over this appeal. 4 The facts relevant to the substantive issue on appeal are as follows. Butler and two co-conspirators were arrested during a sting operation. The three conspirators planned to purchase cocaine from a supplier named Scott who was a government agent. The three men drove to a pre-arranged meeting and paid Scott with cash supplied by Butler and guns supplied by one of the co-conspirators. Immediately thereafter the three men were arrested. Throughout the transaction Butler remained sitting in the back seat of the car. A search of the car revealed a .22 caliber semi-automatic pistol on the floor of the back seat. Butler was charged with conspiracy to distribute cocaine, 21 U.S.C. § 846, attempt to possess and distribute cocaine, 21 U.S.C. § 841(a), and using or carrying the .22 caliber pistol during a drug trafficking offense ("weapon count"), 18 U.S.C. § 924(c). Butler was tried by a jury, which convicted Butler on all three counts. We affirmed the conviction and sentence. United States v. Butler, No. 93-1095 (7th Cir. Nov.29, 1993) (unpublished order). 5 Butler then filed the motion at issue in this appeal. He brought a Bailey challenge to the jury instruction on the weapon count. The district court denied Butler's motion on the ground that the jury necessarily believed that Butler personally carried the gun when it found him guilty on the weapon count. Butler appeals, arguing that the jury could have convicted him of mere possession simply because the gun was in the car.1 He also argues that he could not be convicted under the "carrying" prong of § 924(c) because he was not the person driving the car and the evidence was insufficient to prove he ever carried the gun on his person.2 6 An erroneous instruction under Bailey does not necessarily entitle a petitioner to a new trial. Wilson v. United States, 125 F.3d 1087, 1090 (7th Cir.1997); United States v. Cooke, 110 F.3d 1288, 1293-94 (7th Cir.1997). In fact, if "all the evidence presented [at trial] qualifies as either active-employment 'use' or 'carry,' [this] court will affirm a conviction despite the bad instruction." Cooke, 110 F.3d at 1294 (quoting United States v. Cotton, 101 F.3d 52, 56 (7th Cir.1996). If, however, some of the evidence qualifies as "use" or as "carry," but other evidence "points to mere possession or some type of now-defunct, inactive 'use,' the court will reverse and remand for a new trial." Id. Essentially, this court looks to whether a properly instructed jury could have convicted the defendant under § 924(c). Id. 7 "[P]ossession of [a] firearm coupled with the affirmative act of transporting it" constitutes carrying under § 924(c). Cooke, 110 F.3d at 1297; see Wilson v. United States, 125 F.3d 1087, 1090 (7th Cir.1997); United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.1996). Whether Butler personally possessed and transported (and therefore "carried") the gun is irrelevant because he was convicted of conspiracy. "[T]he rule of co-conspirator liability announced in Pinkerton [v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ] applies to § 924(c) convictions." Woodruff, 131 F.3d at 1243; cf. Cooke, 110 F.3d at 1297 n. 9 (noting that because the defendant was not charged with conspiracy, it was unnecessary to consider whether he would have been properly convicted for his cohort's activities). Thus, even if the gun was carried by one of his co-conspirators, Butler is responsible as long as the gun was carried in furtherance of the conspiracy and it was reasonably foreseeable to Butler that the gun would be carried. Woodruff, 131 F.3d at 1243. That the gun was carried in furtherance of the conspiracy is necessarily established because the jury found that the gun was carried "during and in relation to" the drug transaction. See Broadway v. United States, 104 F.3d 901, 903-04 (7th Cir.1997). Likewise, the evidence showed that it was reasonably foreseeable to Butler that one of his co-conspirators would carry a gun to the drug transaction; after all the conspiracy involved trading guns for drugs. Moreover, "the inherently violent nature of the drug trade makes the presence of firearms ... reasonably foreseeable." United States v. Edwards, 36 F.3d 639, 644 (7th Cir.1994); see also United States v. Sandoval-Curiel, 50 F.3d 1389, 1393 (7th Cir.1995) ("[T]he presence of firearms in transactions involving a sizeable amount of money and drugs is reasonably foreseeable."). Finally, that Butler was not driving the car is irrelevant: either he or one of his co-conspirators carried the gun during the drug transaction. Under Woodruff, that is enough. 8 Butler also argues that, based on the wording of the indictment, the government was required to prove that he both used and carried the .22 caliber pistol. We rejected an identical claim in Stanback, 113 F.3d at 656 n. 3. The remainder of Butler's assertions go to the credibility of various witnesses. We do not review credibility determinations. United States v. Earnest, 129 F.3d 906, 913 (7th Cir.1997). 9 Butler's final argument is that the district court erred in denying his motion for reconsideration. In the motion, Butler argued that the district court should not have decided his case before he filed his traverse, arguably delayed through no fault of his own. The only new argument presented in Butler's traverse is that the mere presence of	{ "pile_set_name": "FreeLaw" }
533 S.W.2d 204 (1976) INSURANCE COMPANY OF NORTH AMERICA et al., Appellants, v. Billy B. NICHOLAS, Administrator, Appellee. No. 75-238. Supreme Court of Arkansas. March 1, 1976. 205 Plegge, Lowe & Whitmore, Little Rock, for Fireman's Fund American Ins. Co. Wright, Lindsey & Jennings, Little Rock, for Ins. Co. of North America. Kay L. Matthews, Little Rock, for appellee. GEORGE ROSE SMITH, Justice. This multi-party lawsuit arose as a result of there having been two concurrent fire insurance policies upon a house in Little Rock that was partially damaged by fire on December 2, 1972. The record owner, Hallie B. Nicholas, died some months later. The appellee, as the administrator of Mrs. Nicholas's estate, brought this suit against the two insurance companies (joining as defendants the other beneficiaries of the policies). The chancellor's decree held each insurer liable in the amount sued for, with penalty and attorney's fee. For reversal each insurer contends that it is not liable to the extent found by the chancellor. The facts are not in dispute. Mrs. Nicholas originally owned the house, subject to a mortgage not in controversy. She sold the property, by an installment contract, to Edward D. Briscoe, Jr. At that time one of the insurers, Fireman's Fund, insured the property for $10,000, naming Mrs. Nicholas and Briscoe as the insureds. That policy contained a "pro rata" other insurance clause (a term explained in Ark. Grain Corp. v. Lloyd's, 240 Ark. 750, 402 S.W.2d 118 [1966]). Briscoe later contracted to sell the property to Cleaster Coates. The other insurer, INA, then insured the property for $11,000, naming Briscoe and Coates as the insureds. That policy contained an "escape" other insurance clause (also explained in Lloyd's). The fire damage amounted to $13,153.47. The two insurers took different courses. INA, without invoking its escape clause, simply paid the full amount of its policy, $11,000, to its insureds, Briscoe and Coates, who presumably divided the money as they saw fit. Briscoe, before this suit was filed, fell behind in his payments to Mrs. Nicholas and reconveyed his interest to her. While the suit was pending Briscoe was adjudicated a bankrupt and was dismissed from the case. The other insurer, Fireman's Fund, invoked the benefit of its pro rata clause by tendering to its insureds, Nicholas and Briscoe, its proportionate part (10/21sts) of the loss. Nicholas rejected the tender and brought this suit, successfully contending in the trial court that Fireman's Fund is liable to him for its full $10,000 and that INA is liable to him for the remaining $3,153.47 of the loss. We first consider INA's appeal. Here the issue is comparatively simple. An insurance policy is ordinarily a personal contract, upon which the insured alone is entitled to recover. Langford v. Searcy College, 73 Ark. 211, 83 S.W. 944 (1904). INA was therefore justified in admitting liability, waiving its escape clause, and paying the full amount of its coverage to its named insureds, Briscoe and Coates. It makes no difference that INA knew of Mrs. Nicholas's interest in the property when it paid the loss. Whatever claim Mrs. Nicholas 206 might have asserted against INA was necessarily derived from Briscoe and was extinguished when INA paid Briscoe in full. Mrs. Nicholas could not claim the benefits of Briscoe's INA policy without also being subject to its burdens. Nicholas also asserts an equitable lien against the proceeds of the INA policy, but that also was a matter between Mrs. Nicholas and Briscoe. It is argued that this lien theory is supported by the presence of a standard mortgage clause in the INA policy. That clause, however, was never activated, because no mortgagee was named in the policy (as the clause required). We conclude that the chancellor erred in holding INA liable to Nicholas. As to Fireman's Fund, the pivotal question is whether the INA policy constituted other insurance within the meaning of Fireman's Fund's pro rata clause. Such double insurance exists when the two policies cover the same interests in the same property, against the same risks, and for the benefit of the same person. Couch on Insurance 2d, § 37:1394 (1962). Here the questions are whether the two policies covered the same interests for the benefit of the same person. Briscoe's insured interest under the two policies was evidently the same. What he purchased from Mrs. Nicholas is what he sold to Coatesnothing more, nothing less. That he was paying Mrs. Nicholas and being paid by Coates did not divide his estate into two ownerships. It must be remembered that the purpose of the pro rata clause is to protect the insurer against the hazards of overinsurance. Such a hazard would have existed if Briscoe had insured the full value of his estate with two different insurers. By the same reasoning the two policies were for the benefit of the same person Briscoe. This particular point seems to have arisen very infrequently, but the cases are uniform in holding that there is double insurance where the same person is an insured in each policy. Horridge v. Dwelling-House Ins. Co., 75 Iowa 375, 39 N.W. 648 (1888); Pitney v. Glen's Falls Ins. Co., 65 N.Y. 6 (1875); Mussey v. Atlas Mut. Ins. Co., 14 N.Y. 79 (1856). Again the hazard of overinsurance would exist if Briscoe could recover in full under each policy. As a matter of fact, owing to INA's waiver of its escape clause, the two insurers will pay $11,000 plus $6,263.56, a total that exceeds the physical damage of $13,153.47. If the Nicholas estate sustains a loss it will be attributable to Mrs. Nicholas's not having taken out a policy by herself, instead of with Briscoe, and to the latter's insolvency after he was paid by INA. Needless to say, principles of law that reach a sound result with respect to solvent litigants cannot be abrogated simply because the fortuitous intervention of insolvency may cause a hardship. Reversed and remanded for the entry of a decree in harmony with this opinion. BYRD, J., dissents. FOGLEMAN, J., not participating. BYRD, Justice (dissenting). I disagree with so much of the majority opinion as holds that the INA policy constituted other insurance to Mrs. Nicholas. The Fireman's Fund policy lists the insured's name and address as follows: "Mrs. Hallie Nicholas, Vendor and Ed Briscoe, Vendee Arkansas Abstract Company 212 Center Street Little Rock, Arkansas" In 44 Am.Jur.2d Insurance § 1808 it is stated: "It is generally held that in order for a proportionate recovery clause to operate in the insurer's favor, there must, under the policies, be both an identity of the insured interest and an identity of risk; and the requirement with respect to an identity of risk is not obviated by the fact that the apportionment clause refers to other insurance `whether concurrent or not.'" *207 In 6 Appleman, Insurance Law And Practice § 3905 (1972), the author states: "The apportionment of loss between concurrent insurers is proper, where the policy so provides. Proration provisions are inserted in insurance policies to relieve the insurer from the burden of litigating with the insured as to the validity of other policies, and to eliminate any inducement to the insured to commit fraud. But every rule of construction in apportioning losses must yield to the right of the insured to be fully indemnified, and it must always be remembered that the contribution clause in an insurance policy should not be so applied as to diminish the protection of the insured." [Emphasis mine] In Couch on Insurance 2d § 37:1394 (1962), the author states: "By definition, other or double insurance exists where two or more policies of insurance are effected upon or cover the same interests in the same property, against the same risks, and in favor of, or for the benefit of, the same person. As all of these conditions must concur, it follows that if different persons have different interests in the same subject of insurance, each may insure his interest without effecting other or double insurance. Likewise a policy of insurance containing a stipulation against `other insurance' is not invalidated by the fact that at the time of its issuance a prior policy covering the same property is in existence, unless the insured has an interest in such prior policy, or will derive a benefit under it, in the event of the destruction of the property." Also, in 5 Appleman, Insurance Law And Practice § 3057 (1970), the author states: "The better rule is to the effect that the interests of vendor and vendee are distinct and different, and that an insurance by such vendee upon his own interest will not nullify insurance previously taken out by the vendor...." Furthermore, the trial court found: (Decree of Oct. 10, 1974) "16. That the plaintiff was never at any time informed by any of the	{ "pile_set_name": "FreeLaw" }
J-S59010-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MARLON BROWN, : : Appellant : No. 2562 EDA 2013 Appeal from the Judgment of Sentence Entered May 31, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0011141-2008. BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.* MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2014 Appellant, Marlon Brown, appeals nunc pro tunc from the judgment of sentence entered following his conviction for a violation of the Uniform Firearms Act, 18 Pa.C.S. § 6105(a)(1), persons prohibited from possessing firearms. We affirm. On June 26, 2008, Appellant was arrested and charged with the aforementioned firearms offense, possession with intent to deliver, and conspiracy. Appellant’s first jury trial commenced on November 16, 2010 and Appellant was found not guilty of possession with intent to deliver and conspiracy. The jury could not agree on the firearms charge, and a motion for a mistrial was granted on that charge. ______________________________ *Retired Senior Judge assigned to the Superior Court. J-S59010-14 Appellant’s second trial on the firearms violation was held on March 20–21, 2012. The trial court summarized the facts adduced at that trial as follows: Detective Andrew Callaghan of the Philadelphia Narcotics Unit testified that in 2008 he was on loan to the FBI Violent Crime and Gang Task Force. Notes of Testimony from March 20, 2012 (Hereinafter, N.T. 3/20/12), p. 64–65. Detective Callaghan received information that marijuana was being sold by a male known as Peanut at 1902 South 23rd Street in Philadelphia. Id., at p. 67. Detective Callaghan testified that he worked with Officer Reginald Graham of the Philadelphia police, who sent a confidential informant to that location on June 23, 2008. Id., at p. 67-68. The confidential informant purchased two packets of marijuana from Eloise Brown. Id. On June 24, 2008, Detective Callaghan conducted a surveillance of the property and observed Eloise Brown sitting on a plastic lawn chair in front of the house. Id., at p[.] 72-73. Ms. Brown engaged in two transactions wherein she was observed accepting a small item from an individual, entering the house briefly, and emerging from the house to hand a small item to them. Id., at 73–74. Detective Callaghan then prepared a search and seizure warrant for the property at 1902 South 23rd Street. Id., at p. 78. On June 26, 2008, Detective Callaghan and several backup officers arrived at the property to conduct the search pursuant to the warrant. Id., at p. 88. As the officers approached the screen door of the property, Detective Callaghan observed Ms. Eloise Brown, inside of the door, look up and yell “Police, clean up.” Id. Detective Callaghan and other officers moved to the second floor of the home and encountered Appellant and another male, identified as Matthew Love, emerging from the second floor rear bedroom. Id., at p. 89-90. Appellant stated that he lived at the location, and Mr. Love stated that he did not. Id., at p. 91. Detective Callaghan brought Appellant to the dining room table to elicit his biographical information. Id., at p. 92. Appellant reiterated that he lived at 1902 South 23rd Street while giving Detective Callaghan biographical information. Id., at p. 97. -2- J-S59010-14 Officer Marilyn Brown asked Detective Callaghan to join her in the kitchen, which she was searching while Detective Callaghan questioned Appellant. Id., at p. 100. Officer Brown drew Detective Callaghan’s attention to a blue soft cooler in a kitchen cabinet. Id. Inside the cooler was a Smith & Wesson Model 629 .44 caliber revolver loaded with six live rounds. Id., at p. 100–101, 108. Detective Callaghan told Officer Brown not to touch the revolver and that it should be guarded for fingerprints. Id., at p. 101. Detective Callaghan testified that when Officer Brown called him over to the kitchen, Appellant “kind of slouched clown in his chair, like this, and his shoulders went down.” Id., at p. 103. Based on his observations, Detective Callaghan decided to read [A]ppellant his Miranda warnings at that time. Id., at p. 103-104. Appellant agreed to answer Detective Callaghan’s questions. Id., at p. 105. Appellant said that he knew about the firearm and that he was “holding it for a guy named Rob,” but that he did not know Rob’s last name. Id., at p. 105-106. Detective Callaghan told Appellant that he would be submitting the firearm for fingerprints and asked Appellant if he had touched it. Id. Appellant responded that he had touched the firearm. Id. The firearm was placed on a property receipt and submitted to the Firearm Identification Unit of the Philadelphia Police. Id., at p. 111–113. Detective Callaghan searched the second floor rear bedroom where Appellant was first encountered. Id., at p. 116– 117. Detective Callaghan observed male clothing in the room and recovered one packet of marijuana, numerous unused packets, bags with marijuana residue, and $268 in United States Currency. Id. Officer Joanne Gain of the Philadelphia Police Crime Scene Unit testified that she swabbed the .44 caliber revolver and the live and spent rounds for DNA. Id., at p. 193-194. Counsel stipulated that an oral swab was taken from [Appellant] and submitted to the Philadelphia Police criminalistics lab for comparison with the firearm. Id., at p. 207–208. Counsel also stipulated that the .44 caliber revolver was examined by the Firearms Identification Unit, was found to be operable, and had a barrel length of six inches. Id. -3- J-S59010-14 Forensic Investigator Benjamin Levin testified that he was a DNA Analyst employed by the Philadelphia Police Department, and was admitted as an expert in DNA analysis. Id., at p. 210– 213. Mr. Levin testified that he performed the DNA analysis from the samples taken from Marlon Brown and the revolver. Id., at p. 219. Mr. Levin’s scientific conclusion based on the analysis was that Marlon Brown was included as a contributor to the DNA sample detected on a swab from the firearm, and that the probability of randomly selecting an unrelated individual who could be included as a contributor to the DNA was approximately 1 in 50,610 in the African American population, 1 in 545,900 in the Caucasian population, and 1 in 281,500 in the Hispanic population. Id., at p. 227. Trial Court Opinion, 11/4/13, at 2–5. The jury found Appellant guilty of violating the Uniform Firearms Act, and on May 31, 2012, he was sentenced to a five–to–ten year term of incarceration. Appellant filed a motion for extraordinary relief on June 6, 2012. The trial court never ruled on the motion nor does the record indicate that it was denied by operation of law. On April 9, 2013, Appellant filed a notice of appeal. The post–trial unit of the First Judicial District informed Appellant’s counsel that the notice was untimely and suggested filing a petition under the Post Conviction Relief Act requesting that Appellant’s appellate rights be reinstated. On August 30, 2013, the court granted Appellant’s motion to reinstate his appellate rights. The instant appeal was filed on September 4, 2013. Appellant raises the following issues for review: -4- J-S59010-14 A. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUPPORT	{ "pile_set_name": "FreeLaw" }
513 N.E.2d 1214 (1987) In the matter of William C. Erbecker. Nos. 380S82, 585S197. Supreme Court of Indiana. October 5, 1987. Duge Butler, Owen Mullin, Indianapolis, for respondent. William G. Hussman, Clifford R. Courtney, Staff Attys., Indianapolis, for the Indiana Supreme Court Disciplinary Com'n. PER CURIAM. On October 30, 1981, this Court found the Respondent to be a disabled lawyer and imposed certain restrictions on his practice of law. These conditions were slightly modified on April 8, 1982, but otherwise remain in full force and effect. By reason of alleged violations of the restrictions imposed on the Respondent, the Disciplinary Commission, under Cause Number 380 S 82, now petitions this Court for further consideration of whether Respondent remains a disabled lawyer. Contemporaneous with the filing of their petition, the Disciplinary Commission further requested that the Respondent be suspended during the deliberation of this cause. Additionally, under Cause Number 585 S 197, the Disciplinary Commission has filed a Verified Complaint for Disciplinary Action, pursuant to Admission and Discipline Rule 23, Section 12, (accompanied by a petition for suspension pending prosecution) charging the Respondent with two counts of misconduct, namely, neglect of a legal matter and damaging his client, in violation of Disciplinary Rules 6-101(A)(3) and 7-101(A)(3) of the Code of Professional Responsibility. After a consolidated hearing, the Hearing Officer appointed to hear both proceedings has submitted his Findings and Recommendations. On the issue of temporary suspension pending final prosecution, the Hearing Officer determined that the evidence does not warrant immediate suspension. Thus, the case is now before this Court for a final determination on the question of disability and the petition for disciplinary action. Neither party has challenged the Hearing Officer's report. Upon review of the matters before this Court, we now find, in regard to the issue of disability, that by an Order of October 30, 1981, and a subsequent amendment of April 8, 1982, the Respondent was allowed to continue practicing law, but only upon the following conditions: a) That the Respondent's conduct as an attorney be monitored and supervised by the Indianapolis Bar Association Committee for Impaired Lawyers under a program approved by this Court on August 19, 1980, and b) That the Respondent continue to be treated as an out-patient hospital patient and that the attending physician of the Respondent make periodic reports of the Respondent's physical and mental condition to the Disciplinary Commission, and c) That the Respondent be regularly enrolled in the rehabilitation program of Alcoholics Anonymous, and d) That the Chairman of the Indianapolis Bar Association Committee for Impaired Lawyers make quarterly written reports of the Committee's supervision of Respondent's practice of law to the Disciplinary Commission and to this Court, and e) That the Respondent's practice be limited to the geographic region of Indianapolis, Indiana, with the exception of 1215 cases which are venued out to other counties in this State. Accepting the Hearing Officer's report, this Court now further finds that the Respondent did not continue to be treated as an out-patient hospital patient for alcoholism or mental illness following the order of October 30, 1981, and provided no reports to the Commission in that regard. Furthermore, Respondent has never provided to the Disciplinary Commission the required reports by his attending physician. Between September 14, 1984 and October 24, 1984, the Respondent suffered a "nervous breakdown". He did not cause any report of his condition and treatment to be reported to the Commission until July, 1986. The Respondent's Discharge Report from the hospital in October, 1984 required him to be seen regularly by Dr. Masbaum. Respondent has not done so. No Final Report has been received by the Commission from Dr. Masbaum. Respondent was not continually enrolled in the rehabilitation program of Alcoholics Anonymous, although he has, since April, 1986, become active in AA. No quarterly reports of the supervision of Respondent's practice have been received since March of 1983. In light of the foregoing findings, we conclude that the Respondent has failed to comply with this Court's Order of October 30, 1981 and April 8, 1982. Under Count I of the Verified Complaint for Disciplinary Action, we find that, on November 29, 1983, the Respondent was retained to perfect an appeal for John Lett. The Respondent filed a Motion to Correct Error which was overruled on January 6, 1984. On February 7, 1984, he filed a Motion for Entire Praecipe, but said motion was denied on February 17, 1984 because it was filed late or 31 days after the ruling on the Motion to Correct Error. Lett's mother, Sylvia Lawson, had sent checks to the Respondent for the purchase of a transcript. However, after the Respondent failed to return her calls or to take other action on behalf of Lett, Lawson stopped payment on the checks and the Respondent was unable to purchase a transcript. The Respondent failed to seek permission from the Court to file a belated appeal and took no other action in the case after February 17, 1984. He did not formally withdraw or seek permission for Lett to proceed in forma pauperis. These findings clearly demonstrate that the Respondent violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(3) of the Code of Professional Responsibility by neglecting a legal matter and prejudicing and damaging his client. As to Count II, we find that the Respondent defended Michael Franklin in a criminal matter for which, on July 1, 1983, Franklin was sentenced to five years. At such time, the Respondent agreed to begin the appeal process and to file a Motion to Correct Error. The Respondent failed to file the Motion to Correct Error within the 60-day period provided by Trial Rule 59 of the Indiana Rules of Court. On November 2, 1983, the Respondent requested permission to file a belated Motion to Correct Error which request was granted on November 4, 1983. Thereafter, he filed a one-page Belated Motion to Correct Error which was denied on January 3, 1984. In light of the foregoing findings, we conclude that the Respondent violated Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility by failing to file a Motion to Correct Error for approximately six (6) months after his client was sentenced to a five (5) year term of imprisonment. The evidence before us clearly establishes that, since our determination of disability and imposition of restrictions, the Respondent has not only failed to comply with the proscribed conditions, but has also engaged in further acts of misconduct. This Court has a responsibility to safeguard the public from unfit lawyers, whatever the cause of unfitness may be. In re Runyon (1986), Ind., 491 N.E.2d 189; In re Hayes, Jr. (1984), Ind., 467 N.E.2d 20; In re Vincent (1978), 268 Ind. 101, 374 N.E.2d 40; In re Connor (1976), 265 Ind. 610, 358 N.E.2d 120. In light of the ineffectiveness of restricting Respondent's practice and his continued misconduct, this Court would be remiss in our duty to the public were we to allow the Respondent to continue practicing law. Under these circumstances, a period 1216 of suspension from the practice of law is warranted. IT IS, THEREFORE, ORDERED that the Respondent, William C. Erbecker, is hereby suspended from the practice of law for a period of not less than one (1) year, beginning November 6, 1987. Costs of this proceeding are assessed against the Respondent. DeBRULER, J., dissents and would impose a suspension for a period of six (6) months.	{ "pile_set_name": "FreeLaw" }
Case: 14-13556 Date Filed: 11/26/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13556 Non-Argument Calendar ________________________ D.C. Docket Nos. 5:14-cv-00343-TJC; 6:13-bk-14410-KSJ In Re: CELIA ELLA CORRAD, Debtor. __________________________________________________________________ BANK OF AMERICA, N.A., Plaintiff-Appellant, versus CELIA ELLA CORRAD, Defendants-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (November 26, 2014) Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges. Case: 14-13556 Date Filed: 11/26/2014 Page: 2 of 4 PER CURIAM: This appeal concerns an order of the bankruptcy court permitting a debtor to “strip off” an “underwater” second mortgage under § 506(d) of the Bankruptcy Code. I. BACKGROUND Appellee Celia E. Corrad is a Chapter 7 debtor. She owns real property in Yalaha, Florida that is encumbered by two mortgages. The balance of the first lien exceeds the fair market value of the property, rendering the second lien, which appellant Bank of America, N.A. holds, completely “underwater.” On November 26, 2013, Corrad moved the bankruptcy court to declare Bank of America’s interest in her property to be unsecured and void under § 506(d) of the Bankruptcy Code. 11 U.S.C. § 506(d). Relying on In re McNeal, 735 F.3d 1263 (11th Cir. 2012), the bankruptcy court granted Corrad’s motion on May 12, 2014. Bank of America appealed that order to the district court, where it moved for a summary affirmance. The district court granted Bank of America’s motion on July 21, 2014, and this appeal followed. II. STANDARD OF REVIEW When the district court affirms an order of the bankruptcy court, we review the bankruptcy court’s decision independently of the district court. In re TOUSA, 2 Case: 14-13556 Date Filed: 11/26/2014 Page: 3 of 4 Inc., 680 F.3d 1298, 1310 (11th Cir. 2012). We review de novo the bankruptcy court’s legal conclusions. Id. III. ANALYSIS Section 506(d) of the Bankruptcy Code provides, in pertinent part, that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.” 11 U.S.C. § 506(d). In Folendore v. United States Small Business Administration, we interpreted the above statutory language to hold that even an allowed claim can be deemed voidable if it is wholly unsecured. 862 F.2d 1537, 1538-40 (11th Cir. 1989). Thus, under Folendore, a debtor can move a bankruptcy court to strip off an underwater lien. Id. Three years after the Folendore decision, the Supreme Court issued its opinion in Dewsnup v. Timm, 502 U.S. 410 (1992), which Bank of America argues “squarely repudiated Folendore’s interpretation of section 506(d).” Bank of America claims that “Folendore [] could not have survived Dewsnup.” Unfortunately for Bank of America, we considered and rejected this same argument in our 2012 McNeal decision. 735 F.3d at 1265-66. There, although we acknowledged Dewsnup’s seeming disavowal of Folendore’s “plain language analysis” of § 506(d), we declined to deviate from that opinion because Dewsnup was “not ‘clearly on point,’” as it “disallowed only a ‘strip down’ of a partially 3 Case: 14-13556 Date Filed: 11/26/2014 Page: 4 of 4 secured mortgage lien and did not address a ‘strip off’ of a wholly unsecured lien.” Id. at 1265. Consequently, McNeal held that Folendore remained the controlling precedent within this Circuit. Id. Under our prior precedent rule, we are bound by this Court’s prior decisions “unless and until [they are] overruled by this court en banc or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Bank of America argues that Folendore was wrongly decided, but concedes that it and McNeal remain binding precedent and control this case. Accordingly, the bankruptcy court did not err by permitting Corrad to strip off Bank of America’s underwater lien, and the decision of the district court is therefore affirmed. AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
737 N.W.2d 740 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kewayne Hersel CARTER, Defendant-Appellant. Docket No. 133614. COA No. 266550. Supreme Court of Michigan. September 10, 2007. On order of the Court, the application for leave to appeal the February 13, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we *741 are not persuaded that the questions presented should be reviewed by this Court.	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRYCE A. CROMARTIE, Plaintiff, v. Civil Action No. 09–1355 (CKK) DISTRICT OF COLUMBIA, et al., Defendants. MEMORANDUM OPINION (August 30, 2011) Plaintiff Bryce Cromartie (“Plaintiff”) filed this action against Defendants Miguel Rodriguezgil and J. Brown, both Metropolitan Police Officers, and the District of Columbia asserting claims for false arrest, assault & battery, intentional infliction of emotional distress, and deprivation of his civil rights in violation of 42 U.S.C. § 1983. Presently pending before the Court is Plaintiff’s [30] Motion to Alter or Amend Judgment. Plaintiff asks the Court to reconsider its August 6, 2010 order granting summary judgment for Defendants. The Court granted Defendants’ motion for summary judgment as conceded because Plaintiff failed to file a timely opposition, and the Court alternatively ruled that Defendants were entitled to judgment as a matter of law based on the factual record produced by Defendants, which went unrebutted by Plaintiff. In his motion to alter or amend the judgment, Plaintiff argues that his failure to file a timely opposition was the result of a technical error and that the record produced by Defendants does not support an award of summary judgment. For the reasons explained below, the Court shall DENY Plaintiff’s motion to alter or amend the Court’s judgment of August 6, 2010. I. BACKGROUND This case was removed to this Court from the Superior Court for the District of Columbia by Defendants on July 22, 2009. After Defendants filed their answer to the complaint, the Court held an Initial Scheduling Conference on September 14, 2009 and issued a Scheduling and Procedures Order setting forth deadlines for the completion of discovery. See Docket No. [9]. Pursuant to that scheduling order, discovery was to be completed by February 26, 2010. The Court also referred the parties to the Court’s ADR program for mediation. On March 12, 2010, the Court held a Status Hearing in which the parties indicated that ADR had been unsuccessful and that discovery had not been completed. See Min. Order (Mar. 12, 2010). The Court issued an order adopting the deadlines proposed by the parties for the completion of discovery and scheduled a Status Hearing for April 16, 2010. See Min. Order (Mar. 18, 2010). The parties were unable to complete discovery without incident. On April 1, 2010, Defendants filed a [14] Motion to Compel further deposition testimony from Plaintiff and a [15] Motion for Protective Order to maintain the confidentiality of certain information responsive to Plaintiff’s requests for production of documents. Pursuant to LCvR 7(m) and Fed. R. Civ. P. 37(a)(1), Defendants’ counsel certified that she attempted in good faith to resolve these issues with Plaintiff’s counsel by notifying him by email but stated that he did not respond to her emails or to her follow-up phone messages. The Court ordered Plaintiff to file a written response to these motions, and Defendants filed oppositions to these motions on April 9, 2010. On April 16, 2010, the Court held a Status Hearing in which the parties discussed their various discovery disputes. See [21] Order (Apr. 16, 2010). The Court granted Defendants’ Motion to Compel further deposition testimony from the Plaintiff on the ground that Plaintiff’s counsel had 2 improperly obstructed Defendants’ counsel’s questioning. During the Status Hearing, the parties suggested that the continued deposition be taken at the courthouse with a judge available to resolve any objections asserted by Plaintiff’s counsel. Accordingly, the Court ordered the parties to confer and agree on a date for the deposition and then contact the Court to make further arrangements. See id. The Court scheduled a further Status Hearing for May 27, 2010. The parties ultimately scheduled the continued deposition of Plaintiff for May 24, 2010, and it was conducted in a spare courtroom in the E. Barrett Prettyman Federal Courthouse. Although the parties initially proceeded without a judge present, the parties were unable to complete the deposition without contacting this Court’s chambers to resolve objections asserted by Plaintiff’s counsel. This Court presided over the remainder of the deposition. On May 27, 2010, the Court held a Status Conference with counsel for both parties present. During the hearing, Defendants indicated that they planned to file a dispositive motion. Accordingly, the Court set forth the following briefing schedule (requested by the parties), which the Court also memorialized in a written order: Defendants shall file their Motion for Summary Judgment on or before July 9, 2010; Plaintiff shall file his Opposition to Defendants’ Motion for Summary Judgment on or before July 23, 2010; and Defendants shall file their Reply in support of their Motion for Summary Judgment on or before August 2, 2010. See [23] Order (May 27, 2010). The Court’s Order also reminded the parties of their duty to comply with Local Rule LCvR 7(h) regarding motions for summary judgment. See id. On July 9, 2010, Defendants filed a [24] Consent Motion for Additional Time to Move for Summary Judgment, citing Defendants’ counsel’s illness. Defendants agreed to complete the motion over the weekend and file on Monday, July 12, 2010. Defendants also stated that they “will work cooperatively with plaintiff 3 if the delay in filing causes him to need additional time to respond to the motion.” The Court granted the motion for extension of time in a minute order, allowing Defendants to file their motion on July 12, 2010. See Min. Order (July 9, 2010). Because Plaintiff did not request an extension of time for his opposition, the Court did not change the other deadlines set by the Court. On July 12, 2010, Defendants filed their [25] Motion for Summary Judgment. In their motion, Defendants argued that (1) Plaintiff’s constitutional claims fail because Defendants Rodriguezgil and Brown had probable cause to arrest Plaintiff, did not use excessive force, and were entitled to qualified immunity; (2) Plaintiff’s common law claim for false arrest fails because defendants Rodriguezgil and Brown had probable cause to arrest Plaintiff and a reasonable officer could believe that their actions were legal; (3) Plaintiff’s common law assault and battery claim fails because Defendants Rodriguezgil and Brown used no more force than necessary to arrest Plaintiff; and (4) Plaintiff’s claim for intentional infliction of emotional distress fails because Plaintiff cannot prove that Defendants intended to cause him severe emotional distress or that Defendants’ conduct was so extreme and outrageous that it caused Plaintiff severe emotional distress. Plaintiff failed to file a timely opposition to Defendants’ motion for summary judgment. According to the schedule ordered by the Court, Plaintiff’s opposition was due on or before July 23, 2010.1 On August 6, 2010—two weeks after Plaintiff’s opposition was due—the Court issued a Memorandum Opinion and Order granting Defendants’ motion for summary judgment 1 Plaintiff mistakenly claims that his opposition was due on or about July 28, 2010 because Defendants filed their motion on July 12, 2010. However, the Court never extended Plaintiff’s original deadline of July 23, 2010 because Plaintiff did not request any extension. 4 as conceded. The Court exercised its discretion to enforce Local Civil Rule 7(b), which provides as follows: Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded. LCvR 7(b). The Court alternatively reviewed the merits of Defendants’ motion for summary judgment based on the factual record provided by Defendants and which Plaintiff had failed to rebut. The Court ruled that there was probable cause for Plaintiff’s arrest based on his admissions that he disobeyed Defendant Rodriguezgil’s instructions to be quiet and continued to argue with him. The Court also ruled that according to Plaintiff’s own description of events, the force used on him did not amount to force that a reasonable officer would find to be excessive in light of the circumstances. Finally, the Court ruled that there was no evidence in the record of outrageous conduct that could support Plaintiff’s claim for intentional infliction of emotional distress. Accordingly, the Court alternatively ruled on the merits that Defendants were entitled to judgment as a matter of law. II. LEGAL STANDARD Plaintiff’s motion to alter or amend the judgment is governed by Federal Rule of Civil Procedure 59(e). Rule 59(e) allows a district court to correct its own mistakes in the period immediately following the entry of a mistaken order. White v. N.H. Dep’t of Emp’t Sec., 455	{ "pile_set_name": "FreeLaw" }
Filed 11/23/15 (unmodified opn. attached) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051368 v. (Super. Ct. No. 14HF1375) JUSTIN ANDREW CUEN, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT The opinion filed October 8, 2015 and certified for publication on October 30, 2015, is modified as follows: On page 5, delete the following paragraph: “And, in any event, Cuen mistakenly assigns the burden of proving the amount of the loss to the People. The trial court was required to determine Cuen’s eligibility for resentencing under section 1170.18, subdivision (a) based on the record of conviction. (Cf. People v. Bradford (2014) 227 Cal.App.4th 1322, 1338.) The record of Cuen’s conviction, including the factual basis for his guilty plea to counts 5 and 7, omitted any reference to value. Cuen simply admitted he ‘unlawfully acquire[d] and retain[ed] possession of [an] access card.’ So Cuen was also ineligible for resentencing on counts 5 and 7, as a matter of fact.” This modification does not change the judgment. The petition for rehearing is denied. THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J. 2 Filed 10/8/15 Certified for Publication 10/30/15 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051368 v. (Super. Ct. No. 14HF1375) JUSTIN ANDREW CUEN, OPINION Defendant and Appellant. Appeal from a postjudment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird, Deputy Attorneys General, for Plaintiff and Respondent. Justin Andrew Cuen appeals from an order denying his petition to recall and resentence as misdemeanors (Pen. Code, § 1170.18, subds. (a), (b); all further statutory references are to the Penal Code) his two felony convictions for theft of access card information (§ 484e, subd. (d) (§ 484e(d)). The trial court ruled a conviction under section 484e(d) is not subject to recall and resentencing, because it is not one of the offenses listed in section 1170.18, subdivision (a). We agree and affirm. FACTS In July 2014, Cuen was charged with six felonies: two counts of possession of a controlled substance (counts 1, 2), one count receiving stolen property (count 3), possession of blank checks (count 4), two counts of theft of access card information (§ 484e(d); counts 5, 7), and forgery (count 6). It was also alleged he had served a prior prison term. A few months later, Cuen pled guilty to counts 1, 3, 5, and 7 and admitted the prior prison term in exchange for dismissal of the remaining counts and a three-year split sentence. Section 1170.18 was adopted as part of the “Safe Neighborhoods and Schools Act” (Proposition 47). After Proposition 47 passed, Cuen filed a petition for recall and resentencing under section 1170.18, subdivision (a). All but one of Cuen’s offenses is among those listed as qualified for relief under 1170.18, subdivision (a). The outcast offense being theft of access card information (§ 484e(d)), counts 5 and 7. Analogizing theft of access card information to uttering fictitious instruments and forged checks, and relying on the $950 line dividing grand and petty theft (§ 490.2), Cuen argued the People had to prove a theft of more than $950. Cuen then pointed out the factual basis for his plea merely stated he “unlawfully possessed . . . access card account information belonging to two different people with intent to use that for unlawful purposes,” with no facts showing the value of the loss exceeded $950. Thus, Cuen claimed the court had to apply section 490.2, and reduce his felony theft of access card information convictions to misdemeanor petty thefts. 2 The People argued the omission of section 484e(d) from the list of theft crimes subject to recall under section 1170.18, subdivision (a) was purposeful. They noted proof the access card information Cuen took had a value over $950 was not an element of the offense. The People pointed out the object of section 484e(d) was the protection of consumers from “the injury, expense, and inconvenience arising from the fraudulent use of their access card account information” (People v. Molina (2004) 120 Cal.App.4th 507, 516 (Molina)), and they urged the court to rely on the plain language of section 1170.18, subidivision (a) and deny Cuen’s petition as to counts 5 and 7. The court observed, “The statutory language in § 490.2(a) is relatively clear. In application, however, the statutory language seemingly reveals a latent ambiguity warranting further analysis.” Then, utilizing rules of statutory construction, the court reasoned Proposition 47 focused on reclassifying theft-related offenses “of property of a certain monetary value.” The court concluded a violation of section 484e(d), which the court described as “grand theft as the taking of certain property regardless of monetary value,” fell outside the letter and the spirit of Proposition 47. In short, the court ruled a violation of section 484e(d) is a species of grand theft, which was “unaffected by Proposition 47.” Ultimately, the court granted Cuen’s petition as to counts 1 and 3, denied it as to counts 5 and 7, and resentenced Cuen to the two-year midterm on count 5, a concurrent two-year term on count 7, and concurrent misdemeanor sentences on counts 1 and 3. Cuen filed a timely appeal. DISCUSSION Section 1170.18, subdivision (a) allows petitioners to, “request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code . . . .” Section 484e(d) is conspicuous by its absence from the list of enumerated crimes. That is why Cuen relies on section 490.2. 3 Section 490.2, also added by Proposition 47, states, “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor. . . .” (Italics added.) Cuen contends section 484e(d) is now subject to the value-specific definition of grand theft contained in section 490.2.1 Based on the broad introductory language of section 490.2,Cuen asserts that unless the People proved he fraudulently acquired access card information worth more than $950, his section 484e(d) convictions must now be reduced to misdemeanor petty thefts. We disagree for several reasons. First, “‘If the language [of a statute] is unambiguous, the plain meaning controls.’” (People v. Leiva (2013) 56 Cal.4th 498, 506.) Section 1170.18, subdivision (a) is unambiguous. It lists several theft-related offenses, but not theft of access card information. Section 490.2 is also unambiguous. It applies to thefts of “money, labor, real or personal property.” And, while the definition of personal property could be stretched to include access card information, we resist. Theft of intangible access card account information presents a qualitatively different personal violation than theft of more tangible items. (See Molina, supra, 120 Cal.App.4th at pp. 518-519.) Second, “[A] specific statutory provision relating to a particular subject controls over a more general provision.” (Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.	{ "pile_set_name": "FreeLaw" }
People v Gutierrez (2019 NY Slip Op 03809) People v Gutierrez 2019 NY Slip Op 03809 Decided on May 15, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 15, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. HECTOR D. LASALLE VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ. 2016-10810 (Ind. No. 2796/14) [*1]The People of the State of New York, respondent, vEdwin Gutierrez, appellant. Laurette D. Mulry, Riverhead, NY (Lisa A. Marcoccia of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Glenn Green and Thomas C. Costello of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (William J. Condon, J.), rendered September 7, 2016, convicting him of murder in the second degree (two counts), robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. On November 28, 2014, in a parking lot in Bay Shore, while attempting to steal a sport utility vehicle, the defendant drove the vehicle into its owner, killing him. A short time earlier in the same parking lot, the defendant had attempted to steal a different vehicle owned by someone else. The defendant testified that he had been drinking and did not remember the incidents or being in the parking lot at the time the incidents occurred. The defendant was convicted of two counts of murder in the second degree, robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and was sentenced to 25 years to life imprisonment on each count of murder in the second degree, 25 years imprisonment plus 5 years of postrelease supervision on the count of robbery in the first degree, and 2 to 4 years imprisonment on the count of attempted grand larceny in the third degree, the sentences to run concurrently. The defendant's contentions regarding the legal sufficiency of the evidence are unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492), and in any event, are without merit (see People v Danielson, 9 NY3d 342, 349). In conducting an independent review of the weight of the evidence with regard to the defendant's convictions (see CPL 470.15[5]; People v Danielson, 9 NY3d at 348-349), we find that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's contention that the County Court failed to properly charge the jury on attempted grand larceny in the third degree is unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 19), and we decline to reach it in the exercise of our interest of justice jurisdiction. We agree with the defendant that the County Court should not have permitted testimony from the victim's wife and from a police detective which had no bearing on the materiality of the issues before the jury and which was calculated to appeal to the passion and sympathy of the jury (see People v Harris, 98 NY2d 452, 490-491; People v Miller, 6 NY2d 152; People v Caruso, 246 NY 437; People v Holiday, 142 AD3d 625, 626). However, the error was harmless beyond a reasonable doubt (see People v Harris, 98 NY2d at 490-491; People v Crimmins, 36 NY2d 230, 237). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
151 B.R. 900 (1993) In re Doris L. MORRIS, Debtor. Barry M. BARASH, Chapter 7 Trustee for Doris L. Morris, Plaintiff, v. Doris L. MORRIS (Deceased), Marilynne L. McCready, Samuel S. McHard, Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., and First of America Trust Company, formerly First National Bank of the Quad Cities, as Trustee of The Morris Irrevocable Living Trust, Defendants. Marilynne L. McCREADY, and First of America Trust Company, formerly First National Bank of the Quad Cities, as Trustee of the Morris Irrevocable Living Trust, Appellants, v. Barry M. BARASH, Chapter 7 Trustee for Doris L. Morris, Appellee. No. 92-4086. United States District Court, C.D. Illinois. February 18, 1993. 901 Samuel S. McHard, Dale G. Haake, Katz, McAndrews, Balch, Lefstein & Fieweger PC, Rock Island, IL, for appellants. Barry M. Barash, Barash Stoerzbach & Henson, Galesburg, IL, for appellee. ORDER McDADE, District Judge. This matter is before the Court on appeal from a ruling by United States Bankruptcy Judge William v. Altenberger. The Court has jurisdiction over this appeal pursuant to Bankruptcy Rule 8001(a). The standard of review of a bankruptcy court ruling is governed by Bankruptcy Court Rule 8013, which states: On [an] appeal the district court or bankruptcy appellate panel may affirm, modify or reverse a bankruptcy court's judgment, order of decree or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness. 11 U.S.C. Rule 8013. The Seventh Circuit in Matter of Boomgarden, 780 F.2d 657 (7th Cir.1985), states: "[W]e must accept the bankruptcy court's findings of fact unless they are clearly erroneous. . . . We can, however, apply de novo review to conclusions of law of any lower court." Id. at 660 (citations omitted). BACKGROUND To properly understand the issues involved in this case, it is necessary to go back to February 26, 1971, when Frances Park McGown executed her last will and testament. Mrs. McGown bequeathed a life estate in her 383 acre farm, located in Mercer County, Illinois, to her only child, Doris Morris, the Debtor. Upon the Debtor's death, the will provided that the estate would go to Mrs. McGown's three grandchildren: 902 Douglas Edmund Morris; Richard Stephen Morris; and Marilynne Louise Morris. These three individuals are also the Debtor's children. The will also contained a "spendthrift" clause, which reads as follows: I direct that neither the income from said life estate nor the principal fund be liable for the debts, present or future, of any beneficiary, his heirs, devisees and legatees, and shall not be subject to the right on the part of any creditor to seize or reach the same under any writ or any proceeding at law or equity. And no beneficiary shall have any power to give, grant, sell, convey, mortgage, pledge or incumber, or anticipate the income, or any installment thereof, or any shares in the principal thereof, except the residuary beneficiaries may dispose of their interests by Will in case of death. (Trustee's Ex. # 1). The first line of the above clause originally referred to a "trust" estate, but the word "trust" was crossed out and the word "life" inserted. The change was initialed by Mrs. McGown. (Id.) In the fall of 1971, Mrs. McGown died and her daughter, the Debtor, received a life estate in the McGown Farm. Despite the limitations placed on the life estate in the will, Debtor and her children executed a mortgage on the farm to secure a $77,000.00 note from The Mutual Benefit Life Insurance Company. This occurred in September of 1972. In re Morris, 144 B.R. 401, 402 (Bankr.C.D.Ill.1992). Several years later, in 1981, debtor's husband Edmund and her son Steve became indebted in the amount of nearly $530,000.00 to two Oklahoma banks, the Bank of Custer and the Bank of Thomas. The indebtedness arose from an ill-fated oil scheme and other bad loans for which Steve Morris, Debtor's son, was held responsible. As a result of the financial difficulty in which Debtor's son and husband found themselves, Debtor, her husband, her two sons, Douglas and Steve, and her daughter, Marilynne L. McCready, an Appellant in this action, signed mortgages in January of 1982 giving the Oklahoma Banks mortgage liens on the farm to secure the aforesaid borrowing. Id. Again, the mortgage was on Debtor's life estate, despite the will provision to the contrary. In this appeal, the Court's primary concern is with the mortgages to the Oklahoma Banks and issues arising therefrom. Within a few months, in September of 1982, the Oklahoma Banks filed a complaint to foreclose the mortgages. The Debtor and her daughter, Marilynne McCready raised a variety of defenses to the action, the most notable being that the spendthrift clause in the will prevented the Debtor from mortgaging the farm. Id. In February of 1983, pursuant to a receivership provision in the mortgages, the Oklahoma Banks had a receiver appointed to: [T]ake possession of the [farm] during the pendency of this litigation with full power and authority to operate, manage and conserve the property, to secure tenants therefor and lease the same, to collect rents, issues of profits thereof . . . to pay taxes which have been levied against the property." (Vol. VIII, Def. Ex. # 6). The receiver followed these directives from 1983 to 1987 (Appellants' brief p. 10), and leased the farm to third parties. Over the course of the years, the receiver received $150,960.00 in rent. In re Morris, 144 B.R. at 402. After paying taxes and other expenses, the receivership account contained $120,147.02. Id. Eventually, the parties settled the matter, with the Oklahoma Banks agreeing to pay the Debtor $80,000.00. (BR. Ex. # 23). The Oklahoma Banks' attorney stated in a letter to Debtor's attorney that the "$80,000.00 would be paid to Doris Morris, [the Debtor]." (Id.) Debtor's attorney responded to the letter by stating that "the $80,000.00 was to be placed in a spendthrift trust for Doris Morris [the Debtor] with the remainder at her death payable to Marilynne McCready. . . ." (BR. Ex. # 22). Subsequently, the state court approved the following settlement agreement: [The Oklahoma Banks] shall pay the sum of $80,000.00 into an irrevocable *903 spendthrift trust of usual form with Doris L. Morris [the Debtor] as the beneficiary. . . . Upon the death of Doris L. Morris, the remaining principal balance and accrued interest shall be paid as a lump sum to Marilynne McCready or per stirpes to her descendants who survive her in the event she predeceases Doris L. Morris. Once the principal falls below $10,000.00, this trust shall terminate and all funds held by the trustee shall be paid to the persons then entitled to the income therefrom. 144 B.R. at 402. The money to fund the trust came from the receivership which, when closed, had a final balance of $121,538.73. (BR. Ex. # 51). An attorney for the Oklahoma Banks then sent two checks to the Oklahoma Banks, one for $80,000.00 and one for $41,538.73. (BR. Ex. # 14). The check for $80,000.00 was specified as the "money that will eventually be distributed to the Doris Morris Trust." (Id.) On June 15, 1988, the attorney for the Oklahoma Banks drew a trust account check payable to the First National Bank of the Quad Cities as Trustee of the Morris Irrevocable Trust. (BR. Ex. # 55). That Bank is now known as the First of America Trust Company, an Appellant in this action. The check was in the amount of $80,622.65, and reflected the interest the money had earned while in a separate account with the Oklahoma Banks. (BR. Ex. # 12). The evidence shows that the money to fund the Morris Irrevocable Trust originated from the receivership account which drew its funds from the rents of the McGown farm. The money was then transferred to the Oklahoma Banks where it was kept in a separate account before being sent to First National Bank of The Quad Cities where it was deposited in the Morris Irrevocable Trust. The trust, now funded, had the following purpose: This Trust is being created in good faith pursuant to Stipulation and Order of court in Mercer County Circuit court Case No. 82 CH 81 and pursuant to the provisions of § 2-1403 of the Illinois Code of Civil Procedure (1987). The $80,000.00 fund which forms the corpus of this Trust has proceeded from the	{ "pile_set_name": "FreeLaw" }
460 Mass. 24 (2011) KRISTEN CONNOLLY v. DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.[1] SJC-10821. Supreme Judicial Court of Massachusetts, Essex. May 2, 2011. June 16, 2011. Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ. Sheila C. Casey (James Breslauer with her) for the plaintiff. John P. McLafferty (Claudia T. Centomini with him) for Verizon New England, Inc. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. IRELAND, C.J. We granted the plaintiff claimant's application for direct appellate review to determine whether the board of review of the division of unemployment assistance (board) erred when it concluded that the claimant should be denied unemployment benefits because she accepted an incentive-based 25 voluntary termination package offered by her employer, the defendant Verizon New England, Inc. (Verizon). G. L. c. 151A, § 25 (e) (1). The claimant appealed to the District Court where a judge affirmed the decision of the board. She timely appealed and argues that the board made a legal error because, under this court's holding in Morillo v. Director of the Div. of Employment Sec., 394 Mass. 765 (1985) (Morillo), Verizon took the "last step" in the termination process that entitled her to unemployment benefits. Because we agree with the board's conclusion that the claimant did not meet her burden of showing that her decision to leave was involuntary where she was not compelled to apply for the termination, did not believe her job was in jeopardy, and left in part for personal reasons, we affirm the District Court judge's decision. General Laws c. 151A, § 25 (e) (1). The general purpose of the unemployment statute is to "afford benefits to [individuals] who are out of work and unable to secure work through no fault of their own." LeBeau v. Commissioner of the Dep't of Employment & Training, 422 Mass. 533, 538 (1996), quoting Cusack v. Director of the Div. of Employment Sec., 376 Mass. 96, 98 (1978). We interpret the unemployment statute liberally to achieve its purpose "to lighten the burden ... on the unemployed worker and his family." Morillo, supra at 766, quoting G. L. c. 151A, § 74. However, under G. L. c. 151A, § 25 (e) (1), an employee who leaves her job voluntarily is disqualified unless she can prove by substantial and credible evidence that she had "good cause for leaving attributable to the employ[er]."[2] See Leone v. Director of the Div. of Employment Sec., 397 Mass. 728, 733 (1986). This court has held that a resignation that might otherwise appear voluntary will be deemed involuntary if the employee reasonably believed that his discharge was imminent. White v. Director of the Div. of Employment Sec., 382 Mass. 596, 598-599 (1981) (White). Facts and background. We set forth the undisputed facts as found by the review examiner and adopted by the board. 26 The claimant was a customer service representative for Verizon at its facility in Lowell and a union member. In 2008, the claimant's department was going to be absorbing more employees from a different customer service group in the Lowell facility; that group had a surplus of employees. Consequently, Verizon offered union employees an opportunity to participate in a voluntary separation agreement that provided them with certain benefits in exchange for their termination.[3] The claimant applied for and accepted the voluntary separation package. At the time, the claimant was not compelled to apply, nor did she believe that her job was in jeopardy, nor was there a surplus of employees in her department. The claimant's decision to accept the package was influenced by her dislike of the job, the length of her commute, and a concern that she would be transferred to the Verizon facility in Andover.[4] There were no layoffs in her department after the claimant left Verizon. The claimant applied for unemployment benefits and her application was approved. Verizon appealed. After a hearing on the merits, the review examiner denied the claimant's application for benefits. The review examiner concluded that the claimant left work without good cause attributable to Verizon because she did not prove that she had a reasonable belief that her job was in jeopardy because of pending layoffs or work performance. The claimant appealed to the board and it ultimately affirmed the decision of the review examiner. Relying on State St. Bank & Trust Co. v. Deputy Director of the Div. of Employment & Training, 66 Mass. App. Ct. 1 (2006) (State St.), the board concluded that, because the claimant did not have a reasonable belief that her job was in jeopardy at the time she accepted Verizon's separation agreement, as a matter of law, she left work without good cause attributable to the employer. She appealed. Discussion. In reviewing a decision of the board concerning an individual's entitlement to benefits, we determine whether it "contains sufficient findings [and] whether those findings are 27 supported by substantial evidence." Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984). Agency determinations of law are subject to de novo review. Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974). The claimant argues that the board erred as a matter of law in relying on State St. to determine whether she voluntarily left her job at Verizon. She asserts that the decision in State St. relied incorrectly on this court's holding in White, supra. She claims that the Morillo case should control because Verizon initiated a workforce reduction and took the final step in the process by terminating her, making her termination involuntary within the meaning of the statute. We disagree. In White, supra at 597, the claimant accepted his employer's early retirement incentive offer of $3,000. There was evidence that White had heard a rumor that there was an impending layoff if the work force was not reduced by early retirement. Id. "He thought he would be the second person laid off, based on seniority, and that close to forty people would have to go." Id. at 598. However, it turned out that White would not have been laid off, had he chosen to stay. Id. at 597. The court directed the case be remanded to the board for further findings as to whether White reasonably believed that a layoff was imminent when he retired and, if so, "a finding was required that the claimant did not leave his employment voluntarily." Id. at 598-599. In Morillo, an employer announced that it was going to lay off twelve people. Morillo volunteered to be among that number because he was "dissatisfied with the safety of the machines" he operated. Morillo, supra at 765-766. He was denied unemployment benefits on the ground that he left work "voluntarily without good cause attributable" to his employer. Id. at 766, quoting G. L. c. 151A, § 25 (e) (1). The court disagreed, stating that "the first and last steps in the termination process in this case were by the employer"; that the purpose of the unemployment statute was to permit employees to offer to be among those laid off; and that the employer would not be penalized because its "account will be charged regardless of the identity of the employees who are laid off." Id. at 766. In State St., the employer announced that there was going to 28 be a workforce reduction of 1,800 employees in two phases. State St., supra at 3. The first phase was a voluntary separation package; the second was involuntary termination. Because the number of employees offering to accept the voluntary separation exceeded 1,800, the second phase was never implemented. Id. at 4. The Appeals Court considered and rejected an argument similar to the one the claimant asserts here: that Morillo stands for the proposition that any employee who leaves voluntarily after an employer announces a workforce reduction plan is entitled to unemployment benefits and, therefore, Morillo effectively overruled White. State St., supra at 8. The Appeals Court stated that the key differences between Morillo and White were that there were no incentives offered to Morillo and there would be no economic impact on the employer "flowing from the precise identity of the twelve employees" who were laid off. State St., supra at 9. The court concluded that the holding in Morillo "is reserved for situations in which an employer announces that layoffs are to occur and accepts volunteers without offering them any incentives.... [It was] highly unlikely that the [Supreme Judicial Court] would have intended in Morillo to overrule what was then its four-year-old decision in White without even mentioning the case." Id. The claimant argues that, in State St., the Appeals Court erred in assuming that early retirement and incentive-based termination packages should be treated the same analytically. She also argues that the key difference between White and Morillo is not that an incentive was offered, but who made the final decision, what she refers to as the "last act." We are not persuaded. The inquiry in White, Morillo, as well as State St., was whether the employees, who apparently had volunteered to leave their employment due, respectively, to an early retirement incentive, an announced layoff, or a voluntary separation package, had "good cause ... attributable to the employ[er]." In White, the case was remanded to determine whether the employee reasonably believed	{ "pile_set_name": "FreeLaw" }
47 Cal.App.4th 899 (1996) THE PEOPLE, Plaintiff and Respondent, v. DIANE LORRAINE DUNN-GONZALEZ, Defendant and Appellant. Docket No. F022116. Court of Appeals of California, Fifth District. June 27, 1996. 902 COUNSEL Cleary & Sevilla and Charles M. Sevilla for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[]] OPINION MARTIN, Acting P.J. On February 15, 1994, the Kern County District Attorney filed an information charging defendant as follows: count I taking money or personal property in excess of $400 (Pen. Code, § 487, subd. (a));[1] count II fraudulent appropriation in excess of $400 (§ 506); and count III fraudulent appropriation of personal property in excess of $400 from an elder adult within her care and custody (§ 368, subd. (c)). The district attorney alleged as to each count the defendant took funds or property aggregating over $50,000 (§ 12022.6, subd. (a)). On May 20, 1994, the court granted defendant's motion to set aside count I (§ 995) and struck the excessive taking allegations on the remaining counts. 903 On May 24, 1994, the court denied defendant's motion to dismiss for delay in charging. The court specifically held: "THE COURT FINDS THE DEFENDANT HAS BEEN PREJUDICED BY THE PASSAGE OF TIME AND THAT ATTORNEY TOM CLARK SUBMITTED PAPERWORK TO THE DISTRICT ATTORNEY'S OFFICE THAT WAS COMPLETE AND LAID OUT ISSUES BUT THE DELAY WAS NOT DUE TO LACK OF INTEREST OR INTENTIONAL. "THE COURT FINDS NO INTENTIONAL DELAY UPON THE OFFICE OF THE DISTRICT ATTORNEY AND THE DELAY WAS JUSTIFIED DUE TO THE LACK OF PERSON[N]EL AND NO NEGLIGENCE UPON THE OFFICE OF THE DISTRICT ATTORNEY." On May 25, 1994, the court renumbered counts II and III as counts I and II and amended count II to include appropriation. The defendant then pleaded not guilty to the latter charge and jury trial commenced. On June 14, 1994, the jury found defendant guilty of both counts. On August 3, 1994, the court denied defendant probation and sentenced her to the three-year middle term on count II and the two-year middle term on count I. The court stayed the latter sentence (§ 654) and ordered her to pay $225 for the cost of preparing the presentence investigation report. The court also ordered that direct restitution to the victim would be determined at a hearing scheduled for September 21. Defendant filed a timely notice of appeal. FACTS Facts From the Hearing on Motion to Dismiss In 1991, the relatives of Mary LaBarre retained Bakersfield attorney Thomas Clark in connection with her pending conservatorship proceeding. The relatives instructed Clark to oppose the nomination of defendant, LaBarre's financial planner, as conservator, but not to oppose the conservatorship. On December 17, 1991, Clark, a former Kern County deputy district attorney, prepared a memorandum summarizing the evidence and analyzing the potential criminal charges that could be brought against defendant. The evidence primarily consisted of defendant's deposition. The memo was lengthy and included case and statutory authority. 904 Two days later, Clark met with Kern County Sheriff's Detective Lawrence Emhoff and Kern County Conservator Investigator Randall Dickow to provide information and discuss the possible criminal investigation of defendant. Clark did not recall if he gave Detective Emhoff a copy of his December 17 memo but believed he did. In any event, he discussed the contents of the memo at length with Emhoff. Investigator Dickow's case notes documenting the meeting stated the trio met: "[R]e criminal charges & KCSO's investigation. Also discussed was the ability to use Prob. Code § 2616 to further question Diane & all members of her family. KCSO to pursue investigation and take to DA when ready." On December 23, 1991, Attorney Clark wrote Emhoff, at the latter's request, and provided copies of declarations of Suzanne Toothman, social services designee, and Diane Lopez, housekeeping supervisor, at LaBarre's care facility, Pacific Regency Care Center of Bakersfield (Pacific Regency). These declarations had previously been filed in the conservatorship action. Shortly before April 30, 1992, Clark met with Assistant District Attorney Stephen Tauzer. On April 30, Clark wrote Tauzer at the latter's request and supplied additional information. At some point, Clark delivered a copy of his December 17 memo and portions of defendant's deposition to Tauzer. The memo referred to follow-up work that needed to be done, particularly the need for statements from various witnesses and bank and medical records. Tauzer testified Clark had left records and/or transcripts with him some months prior to March 26, 1993. However, at that time there had been no police involvement in the investigation and Tauzer maintained the case was not sufficiently prepared to be filed as a criminal matter. Clark agreed the case needed investigation when he referred the matter to the district attorney's office. Tauzer further testified there was some indication the case should go to the sheriff's department for investigation. Tauzer discussed the matter with Investigator Dickow. Dickow agreed to investigate further but he was later terminated from public employment for theft from an elder adult (§ 368, subd. (c)). Tauzer said he intended to do something with Clark's information but the case was one of numerous matters referred directly by victims to the district attorney's office. Tauzer explained the district attorney's office tries to fit such cases into its resources and the sheriff's department's resources when possible. At the time Clark submitted his information, the district attorney's staff was reduced by 15 attorneys, the misdemeanor attorneys were cut from 15 to 3, the office had no more fraud attorneys, and the sheriff's department was experiencing similar personnel cuts. On March 26, 1993, Clark wrote District Attorney Edward Jagels about the documents he had left with Tauzer and complained about the latter's 905 inaction. At that point, the matter was given to Deputy District Attorney Terry Pelton for review. On April 14, 1993, Pelton wrote a memo indicating there was a prosecutable case and the matter should be sent to the Bakersfield Police Department (BPD) or one of the district attorney investigators for investigation. On April 16, 1993, Pelton requested an investigation by one of the district attorney investigators. In late April or early May 1993, Deputy District Attorney Catherine Goetz received the case file a bundle of papers which had not been assigned a case number. Goetz was assigned to a grant program, the prison section, and was not as busy as other deputies in the district attorney's office. At the request of Investigator Cheryl Gottesman, one Dan Sparks of the district attorney's office asked Goetz to look at the case and determine whether criminal charges could be filed. Goetz briefly looked through the papers, talked with Gottesman, and determined further investigation was needed. Goetz concluded the case was not ready for filing because the district attorney's office needed to interview witnesses and secure doctor's reports. In early June 1993, Goetz and Gottesman interviewed Mary LaBarre. Goetz had the case for another three weeks and then became involved in the trial of a high profile case requiring investigation. She asked Gottesman to inform Dan Sparks she did not have time to follow through the intricacies of this matter. She then referred the case back to Gottesman. On July 15, 1993, Gottesman sent Goetz a memorandum indicating she had partially completed her investigation and had received some of the missing records. Goetz was still involved in the unrelated case and advised Gottesman she would be unable to put the case together. Goetz returned the case to Dan Sparks. On August 14, 1993, Pelton generated an office memorandum concerning the case. On September 27, 1993, Clark wrote Gottesman, stating, "I haven't heard from you for some time, can you please advise me as to the status of the investigation." Pelton ultimately filed the case after the investigation was complete. The filing form was dated November 11, 1993. On November 18, 1993, Clark wrote District Attorney Jagels a letter, offered his assistance in the criminal investigation, and expressed his hope that charges would be filed. The district attorney's office issued the complaint on November 22, 1993, and Clark wrote Jagels again the following day. 906 Assistant District Attorney Tauzer testified there was no conscious or deliberate delay in the investigation of this case. Tauzer said any delay was due solely to the lack of resources. Tauzer said he was the only person handling major fraud cases at the time and he had several that were in trial. One of the cases was a $20 million fraud matter and the district attorney's office was conducting the original investigation. The court took judicial notice that Tauzer also tried a complicated case involving a "Ponzi scheme"[2] during this period. Tauzer said the instant case was investigated faster than normal because of "the squeaky wheel syndrome." At the hearing on motion to dismiss, Deputy District Attorney Lynn Strom, the prosecutor in this matter, claimed her case file consisted of two boxes of material and her witness list contained twenty-six	{ "pile_set_name": "FreeLaw" }
154 Wis.2d 821 (1990) 454 N.W.2d 51 STATE of Wisconsin, Plaintiff-Respondent, v. Bill SCHLEUSNER, Defendant-Appellant. No. 89-1444-CR. Court of Appeals of Wisconsin. Submitted on briefs December 14, 1989. Decided February 27, 1990. 823 For defendant-appellant there were briefs by William E. Schmaal, Madison. For plaintiff-respondent there was a brief by Donald J. Hanaway, attorney general and David J. Becker, assistant attorney general of the Wisconsin Department of Justice, Madison. Before Cane, P.J., LaRocque and Myse, JJ. MYSE, J. Bill Schleusner appeals his conviction for nonsupport, contrary to sec. 940.27(2), Stats. (1985-86). He argues that the jury instructions unconstitutionally relieved the state of its burden to prove intent and to prove his inability to pay support. Schleusner also argues that there was insufficient evidence to support the guilty verdict. We conclude that the jury instructions did not relieve the state of its burden of proof and that there was sufficient evidence to support the verdict. We affirm the conviction. After Schleusner's divorce, his former wife retained custody of their three children and he was ordered to pay $145 per month child support. Schleusner made no payments between July 20, 1985, and June 30, 1986. Schleusner's former employer testified that on August 2, 1985, Schleusner voluntarily terminated his job at a dairy farm where he was earning room and board plus $125 per week. The employer testified that a few days after Schleusner learned that the employer was to deduct $145 per month from his wages for payment of his child support obligations, Schleusner chose to quit his job 824 without explanation. The employer testified that she would have continued to employ him. From November 1985 until May 1986, Schleusner received welfare. In May 1986, he started employment at Wayne's Palletts, Inc., at $3.50 per hour for forty hours per week. Schleusner voluntarily terminated his employment with Wayne's on July 26, 1986, after learning that child support payments were to be withheld from his paycheck. The employer testified that Schleusner left voluntarily and without explanation, but she also would have continued to employ Schleusner had he not quit. After a jury trial, Schleusner was found guilty of nonsupport, pursuant to sec. 940.27(2), Stats. (1985-86). I Schleusner first argues that the jury instructions unconstitutionally relieved the state of its burden to prove intent. We conclude that the jury instructions incorporated a permissive inference that was rationally based, and therefore did not relieve the state of its burden to prove intent. [1, 2] In order to obtain a conviction, the state is required to prove beyond a reasonable doubt every element of the charged offense. See Muller v. State, 94 Wis. 2d 450, 473-74, 289 N.W.2d 570, 582 (1980). "Intent" is an element of the offense of felony nonsupport under sec. 940.27, Stats. (1985-86). Section 940.27(2), Stats. (1985-86), provides that "any person who intentionally fails for 120 or more consecutive days to provide . . . child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E Felony."[1] 825 [3] Section 940.27(4), Stats. (1985-86), defines prima facie evidence of intentional failure to provide support as failure to pay any child support payment required under a court order.[2] The jury was instructed as follows: Evidence has been received that the defendant failed to pay support payments required by a court order. If you are satisfied beyond a reasonable doubt that the defendant failed to pay support payments required by a court order, you may find that the failure to provide support was intentional but you are not required to do so. You must not find that the failure to support was intentional unless you are so satisfied beyond a reasonable doubt from all the evidence in the case. (Emphasis added.) Schleusner argues that the incorporation of the presumption created by sec. 940.27(4), Stats. (1985-86), into the jury instructions violated his rights to due process because the jury instruction may have been interpreted as relieving the state of its burden to prove intent beyond a reasonable doubt. We review the validity of a statutory presumption such as the one involved here as applied to the record before this court. We do not review the statutory presumption on its face. See County Court v. Allen, 442 U.S. 140, 161-63 (1979). 826 [4-6] The jury instruction here created a permissive inference. A permissive inference allows, but does not require, the trier of fact to find an element of the crime from proof of another fact. It places no burden on the defendant. State v. Vick, 104 Wis. 2d 678, 693, 312 N.W.2d 489, 496 (1981) (citing Allen, 442 U.S. at 157). A permissive inference is invalid only where there is no rational connection between the proven facts and the inferred facts. Id. at 694-95, 312 N.W.2d at 497. In determining whether there is a rational connection, the test is whether the ultimate fact inferred is more likely than not to flow from the basic fact proved. Allen, 442 U.S. at 165. A jury may find a presumed fact based upon the rational inferences from basic facts that themselves must be proved beyond a reasonable doubt. State v. Dyess, 124 Wis. 2d 525, 548, 370 N.W.2d 222, 234 (1985). [7] The connection between the proven fact and the fact to be inferred was rational. Intent may be inferred from one's conduct. State v. Stewart, 143 Wis. 2d 28, 35, 420 N.W.2d 44, 47 (1988). It is more likely than not that one intends what one does. Also, the instructions did not require the jury to reach any specific result. Instead, the jury was directed to assess the evidence independently and to accept or reject the inference based upon the strength of the evidence presented. See sec. 903.03(3), Stats. (1985-86). [8] We conclude that no reasonable jury could have misinterpreted the instruction. Because the instructions allowed the jury to independently assess the evidence, and because the connection between the basic fact proved and the fact to be inferred was rational, the 827 instructions did not unconstitutionally relieve the state of its burden to prove intent beyond a reasonable doubt. II [9] Next, Schleusner argues that the jury instructions relieved the state of its burden to prove beyond a reasonable doubt that he had the ability to pay after he raised the affirmative defense. We disagree. The jury instruction properly allocated this burden to the state after Schleusner presented evidence that he had received welfare and therefore lacked ability to pay support. In State v. Duprey, 149 Wis.2d 655, 439 N.W.2d 837 (Ct. App. 1989), this court held that no constitutional violation resulted from requiring the defendant to demonstrate the existence of the affirmative defense of ability to pay.[3] Accordingly, the state was not required to disprove the existence of the affirmative defense in order to show a prima facie case. Id. at 659-60, 439 N.W.2d at 839. However, once the defendant demonstrates the existence of an affirmative defense, Wisconsin law, independent of the federal due process requirements, requires the state to bear the burden of disproving the asserted defense beyond a reasonable doubt. Moes v. State, 91 Wis. 2d 756, 765, 284 N.W.2d 66, 70 (1979); sec. 939.70, Stats. 828 The trial court properly instructed the jury with respect to the state's burden of proof: Evidence has been received that the defendant lacked abilities to provide support. Before you may find the defendant guilty, the state must prove by evidence which satisfies you beyond a reasonable doubt that the defendant had the ability to provide support or by working would have had the ability to provide support, but intentionally failed to do so to the extent of his ability. A person may not demonstrate inability to provide child support if the person is employable but without reasonable excuse, either fails to diligently seek employment, terminates employment, or reduces his or her earnings. (Emphasis added.) The instruction correctly allocated the state's burden of proof and stated the circumstances when the affirmative defense is unavailable. See sec. 940.27(6), Stats. (1985-86). We discern no error. III Finally, we address Schleusner's argument that there was insufficient evidence at trial to support his felony nonsupport conviction beyond a reasonable doubt. Schleusner argues that his failure to pay pursuant to the court order was not indicative of his intent. Schleusner further argues that although he quit his farmhand job, the state failed to show the job would have been available for a total of 120 days. He contends that because he qualified for public assistance from November 8, 1985, through March 31, 1986, he demonstrated inability to pay for the entire eleven-month period (July 20, 1985-June 30, 1986) under prosecution.	{ "pile_set_name": "FreeLaw" }
146 Cal.App.3d 1019 (1983) 194 Cal. Rptr. 691 THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MENCHACA, Defendant and Appellant. Docket No. 41643. Court of Appeals of California, Second District, Division One. September 12, 1983. 1020 COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Patra Woolum, Deputy State Public Defender, for Defendant and Appellant. 1021 John K. Van de Kamp, Attorney General, Carol Wendelin Pollack, Susan Lee Frierson and Gelacio L. Bayani, Deputy Attorneys General, for Plaintiff and Respondent. OPINION SPENCER, P.J. INTRODUCTION Defendant Francisco Menchaca appeals from a judgment of conviction entered after a jury trial. Prior to trial, the People's motion to admit in evidence certain out-of-court statements of the victim under the recent complaint doctrine was granted and defendant's motion to suppress his out-of-court admissions was denied. The jury found defendant guilty of burglary (Pen. Code, § 459) and rape (Pen. Code, § 261, subd. (2)), after which defendant was sentenced to state prison for the term prescribed by law. PROCEDURAL BACKGROUND Defendant is a Spanish-speaking Mexican national; he is illiterate and neither speaks nor understands English. At the preliminary hearing on September 9, 1981, interpreter Maria Bowen was sworn for the purpose of interpreting the testimony of the Spanish-speaking complaining witness; no separate interpreter was present at the defense table. On September 23, 1981, interpreter Peter Lopez was sworn, after which defendant waived arraignment and entered a plea of not guilty. A pretrial conference was held on October 26, 1981, at which time interpreter Peter Lopez was sworn and the matter was set for trial. Thereafter, on November 2, November 5 and November 12, the matter was continued; no interpreter was present on these occasions. At 9 a.m. on November 16, 1981, the matter was declared ready for trial. In that no interpreter was present, the matter was held until 11 a.m., at which time it was once again called. Interpreter Maria Bowen was sworn, after which the matter was trailed until 9 a.m. of the following day. On November 17, the trial court assigned the matter for trial and found no court then available; interpreter Maria Bowen, previously sworn, was present. Trial commenced on November 18, 1981, with interpreter Maria Bowen present. On this occasion, the trial court granted defendant's motion to provide a separate interpreter for non-English-speaking witnesses. On November 1022 19, with interpreter Maria Bowen present, the trial court heard defendant's motion to suppress his out-of-court admissions. In the course of the hearing, Maria Bowen was sworn as a witness and testified to the meaning of the Spanish words, "Bueno, si"; thereafter, trial continued. When Spanish-speaking witness, Geronimo De Haro, was sworn, no witness interpreter was available; accordingly, over defendant's objection, Maria Bowen was sworn as a witness interpreter. In an effort to determine whether defendant understood the witness, defense counsel utilized investigator James Henry as an interpreter. Mr. Henry was unsworn. Approximately one-half hour later, well into the direct examination of the witness, the scheduled witness interpreter, Alicia Luper, arrived and was sworn; Maria Bowen resumed interpreting for defendant. Thereafter, at all times in the presentation of the People's case during which a non-English-speaking witness was testifying, a separate witness interpreter was utilized. During the presentation of the defense, defendant waived a separate witness interpreter for the testimony of Anastasia Munoz Rosales, defendant's wife. STATEMENT OF FACTS Inasmuch as defendant does not challenge the sufficiency of the evidence, we briefly summarize the facts as follows: On August 8, 1981, between 8 and 8:30 p.m., Rosa R., who was employed as a general household helper by the De Haro family, asked to use the telephone in Geronimo De Haro's ground floor room. At the time, Geronimo De Haro was playing pool in the adjacent pool room with defendant and Filiberto Nunez (Nunez). After using the telephone, Rosa retired to her nearby room for the night. Later, Rosa was awakened by a man's voice outside her door; she recognized the man as Nunez. He asked to come in, offered her money, and said he would pay for a hotel. When Rosa refused, Nunez began to apologize. Shortly, defendant fetched Nunez and Rosa thereafter heard two automobiles drive away. She fell asleep once again. Some time later, Rosa was awakened by someone pulling off her bed covers. Unable to see in the darkness, she asked who it was, but received no response. The man placed his hand over Rosa's mouth, after which she became frightened. Trying to rise, she struck her head, whereupon the naked man fell on top of her. After several minutes of struggle, during which the man struck her, he removed her underwear and forcibly engaged in sexual intercourse. When the man finished he rose and turned on the light, at which point she recognized him as defendant. 1023 After defendant left her room, Rosa dressed, then spent the remainder of the night awake, frightened and tearful. Her underwear had been torn, her leg was bruised and she had a lump on her head. She was afraid to report the incident to her employers or to the police, due to her status as an illegal alien. However, approximately 10 days later, after confronting defendant once again in the pool room, she told Geronimo De Haro. Approximately two weeks later, Rosa summoned the courage to tell Mrs. De Haro and to speak to the police. The defense was one of consent and nonviolent character. CONTENTIONS I Defendant contends he was denied his constitutional right to an interpreter throughout the proceedings and thereby denied due process of law. II Defendant further contends the trial court erred in finding a knowing and intelligent waiver of his Miranda rights. III Finally, defendant asserts three instances of evidentiary error: A. Rosa's out-of-court statements to Geronimo De Haro were inadmissible as a recent complaint of a sexual offense; B. Rosa's testimony regarding her out-of-court exchange with Nunez was inadmissible hearsay; and C. Rosa's testimony as to why she did not relate the incident to defendant's wife was improper opinion evidence. DISCUSSION (1a) We find merit in defendant's contention he was denied his constitutional right to an interpreter throughout the proceedings and thereby denied due process of law. Article I, section 14 of the California Constitution provides in pertinent part: "A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." The essence of the issue presented is whether the presence of an 1024 interpreter who is facilitating communication between witnesses testifying in defendant's native language, counsel and the trial court fulfills the constitutional mandate; we think not. We take judicial notice that when a witness interpreter is utilized, the interpreter and witness are speaking to each other at relatively close range, after which the interpreter translates for the benefit of counsel and the trial court. Under such circumstances, it cannot be assumed a defendant clearly hears and understands the question and answer exchange in Spanish. Indeed, during those portions of Geronimo De Haro's direct examination at trial which were handicapped by the presence of a witness interpreter only, defense counsel expressed considerable apprehension on this point. Moreover, it is manifest from the record that on occasion, counsel was unable to understand the initial English translation of a witness's answer. Even if we were to assume defendant could hear and understand the answers given in Spanish by the complaining witness at the preliminary hearing and by Geronimo De Haro at trial, because their voices carried or were amplified, it is not thereby established that he spontaneously understood the testimony. As is generally the case, the record is replete with monosyllabic witness answers. Without a clear understanding of the questions, such testimony is essentially meaningless. Defendant's spontaneous understanding of the testimony has vital importance in determining whether he was denied due process of law. As the Arizona Supreme Court noted in State v. Rios (1975) 112 Ariz. 143 [539 P.2d 900, 901]: "`A defendant's inability to spontaneously understand testimony being given would undoubtedly limit his attorney's effectiveness, especially on cross-examination. It would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his freedom in jeopardy. Such a trial comes close to being an invective against an insensible object, possibly infringing upon the accused's basic "right to be present in the courtroom at every stage of his trial."' [citations omitted] State v. Natividad, 111 Ariz. at 194, 526 P.2d at 733." People v. Chavez (1981) 124 Cal. App.3d 215, 226 [177 Cal. Rptr. 306] cites Rios approvingly in holding that a defendant is denied his constitutional right to an interpreter when his attorney is forced to act as one. While the impairment of defense counsel's effectiveness is far more obvious and grave in those circumstances, the consequences to the defendant are the same whenever his ability to spontaneously understand testimony is impaired. Accordingly, we conclude that a third party witness interpreter cannot effectively discharge the translating responsibilities owed to a defendant. 1025 Moreover, a defendant	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004 Charles R. Fulbruge III Clerk No. 04-40471 Conference Calendar DAVID J. DAVIS, Plaintiff-Appellant, versus H.C. BRYANTT; KENNETH LEE, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:03-CV-564-JKG -------------------- Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. PER CURIAM:* David J. Davis, Texas state prisoner # 582332, is appealing the magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983 complaint. Davis argues that the magistrate judge erred in determining that his allegations did not reflect that prison officials acted with deliberate indifference to his safety in making his housing assignment. Davis has not addressed the magistrate judge’s determination that Davis failed to exhaust his administrative remedies prior to filing suit or the dismissal of his complaint on that basis. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-40471 -2- An appellant’s brief must contain an argument on the issues that are raised so that this court may know what action of the district court is being complained of. Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995). Because Davis has briefed no argument with respect to the magistrate judge’s determination that he failed to exhaust administrative remedies prior to filing suit, he has waived any such argument. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9). This court need not address the magistrate judge’s alternative basis for dismissal. Davis’s appeal is without arguable merit and, thus, is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2. The magistrate judge’s dismissal of the present case and this court’s dismissal of the appeal count as two strikes against Davis for purposes of 28 U.S.C. § 1915(g). See 28 U.S.C. § 1915(g); see, e.g., Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Davis is CAUTIONED that if he accumulates three strikes he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED.	{ "pile_set_name": "FreeLaw" }
6 Ariz. App. 459 (1967) 433 P.2d 639 Corylss FLYNN, by her next best friend, Elna Eicke, Appellant, v. William LINDENFIELD and Darlene Lindenfield, husband and wife, Appellees. No. 2 CA-CIV 371. Court of Appeals of Arizona. November 20, 1967. Rehearing Denied December 18, 1967. Review Denied January 30, 1968. 460 Feldman & Wolin, by Marvin Wolin, Tucson, for appellant. Chandler, Tullar, Udall & Richmond, by James L. Richmond, Tucson, for appellees. MOLLOY, Judge. This is an appeal from a summary judgment rendered against the plaintiff in a personal injury action. The plaintiff at the time of her injury was a 15-year old girl employed as a baby-sitter (for her board and room only) at a country home or ranch at which livestock was kept. She was injured in an encounter with a mare. The plaintiff in her complaint predicates liability on five possible theories: (1) strict liability in maintaining a dangerous animal; (2) negligence in maintaining a dangerous animal; (3) not containing an animal in a secure and safe place; (4) not providing the plaintiff with a safe place to work; and (5) not warning the plaintiff of the dangers of the premises where she was employed. A motion for summary judgment should be denied if there is any doubt as to whether there are issues of fact to be litigated under any theory of liability advanced. Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 368 P.2d 317 (1962). The facts as developed by the plaintiff's affidavit and answer to interrogatories indicate that she had been working at this home for approximately a month and a half when she was seriously injured in a livestock corral or enclosure upon the subject property. She had been left in charge of the defendants' three children, a girl of 11, a boy of 5, and a girl of 2 years of age. The corral in question was about a quarter of a mile from the family home, and on this afternoon, the children wanted to go over to see the animals in the enclosure. In the corral was a mare with a colt of about 5 months of age. The plaintiff had never been told by the mother and father (defendants) to stay out of the corral, either with or without the younger children, and the father had indicated that it was permissible to take the children to this corral to see the colt. The structure of the corral was such that a 2-year old child could slip under the lower board of the corral easily, and on this particular afternoon, Lory, the 2-year old baby girl, went into the corral and headed for the mare which was standing near her colt approximately 25 feet from the corral fence. When the child entered the corral, the mare lowered her ears and advanced menacingly toward the child. At this point, the plaintiff went into the corral and hastily pushed the child back under the fence. Seeing the mare, ears lowered, approaching at a lope, the plaintiff attempted to hasten out of the corral and in the process either stumbled over some concrete blocks in the corral, and/or was knocked down and/or kicked by the mare, the incident resulting in a bad break to her right leg. When she fell, the plaintiff lost consciousness. In resisting the motion for summary judgment, the plaintiff submitted an affidavit of two persons experienced in animal husbandry. One of these affidavits stated: " * * that female horses show a great deal of protective instinct for their young; that a mare which is normally 461 gentle can become a dangerous animal if she thinks her offspring or colt are in danger; that it is quite likely that a mare would attack or tend to protect her offspring from an intruder if she felt her colt were in danger. "3. That in his opinion any person who had been around horses or who owned a ranch or a place where horses were raised, would know or should know that a mare with a colt can be a dangerous animal and is likely to inflict bodily harm upon any persons who attempted to touch or pet her colt." It is the law in Arizona that any person who keeps or harbors a domestic animal with knowledge of its vicious tendencies or propensities is liable in damages to another for any injury caused by it unless it is shown that the injured person, with knowledge of its viciousness, did something to such animal which caused it to injure him. Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 143, 267 P.2d 1076, 1078 (1954). See also Arizona Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588 (1938). The determinative factor here is knowledge of vicious propensities, and this question must be viewed in the light most favorable to the plaintiff. Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Here, there was evidence that approximately three weeks before the plaintiff's injury, while the mare was being loaded on a horse trailer, the animal jumped out and "took a couple of swings" at one of the persons handling her, " * * reared up and came down on him," and in going over the side of the trailer "cut her chest all up." There is nothing in the record indicating that the defendants did not know of any dangerous propensities in this mare other than the testimony of the plaintiff herself, who said that on previous occasions she and the children had been into the corral to visit the animals and had petted the colt without any adverse reaction from its mother. We see no basis of recovery here under a strict liability theory because of the natural tendency of a mare to protect her colt. This is a normal hazard connected with the raising of a commonly kept domestic animal, and gives rise to no special liability, though the duty to exercise reasonable care to protect others from the normal characteristics of such an animal obtains. Restatement of Torts § 509, Comment e, at 20. However, all possibility of the defendants being liable is not eliminated by this record. It has been held that even one "previous incident" is sufficient to take a case to the jury under the doctrine of harboring an animal with "vicious propensities." Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 145, 267 P.2d 1076, 1080 (1954). Whether the one incident of misconduct on the part of the mare which was witnessed by the plaintiff is sufficiently "vicious" to meet this test, we do not pass upon, because of the procedural posture of the case. The duty to come forward with evidence to oppose a motion for summary judgment does not arise until the moving party has affirmatively shown the facts to be such that as a matter of law the moving party is entitled to judgment. See Lujan v. MacMurtrie, 94 Ariz. 273, 277, 383 P.2d 187, 190 (1963). Such an affirmative showing was never made in support of this motion for summary judgment. For all this record discloses, this mare may have had the well-established and well-known habit of attacking a human being once every six weeks. The theory of liability as to harboring a vicious animal not having been eliminated by the establishment of undisputed facts, the granting of the motion for summary judgment was erroneous. At least one other possible theory of recovery is not eliminated by this record. While this particular mare might not have been an abnormally vicious animal, the natural tendency of a mare to protect her young should have been known to the defendants better than to their 15-year-old baby-sitter, and reasonable men might come to the conclusion that the defendants were *462 negligent in not warning their young baby-sitter not to bring these children near the corral when the plaintiff was alone with them. An employer owes an employee the duty to provide a reasonably safe place to work and to warn the employee of dangers inherent in the place of employment. Cf. Wylie v. Moore, 52 Ariz. 537, 84 P.2d 450 (1938); Inspiration Consol. Copper Co. v. Lindley, 20 Ariz. 95, 177 P. 24 (1918). The age and experience of the employee should be taken into consideration by the employer in determining what warnings or safeguards are necessary. Lorden v. Stapp, 21 Ariz. 646, 192 P. 246 (1920). Whether this particular plaintiff assumed the natural risks attendant with this mare and colt and whether she was contributorily negligent are questions which cannot be disposed of on motion for summary judgment. Ariz.Const., art. 18, § 5, A.R.S. Judgment reversed. HATHAWAY, C.J., and KRUCKER, J., concur.	{ "pile_set_name": "FreeLaw" }
174 P.3d 459 (2008) IN RE B.C. No. 98503. Court of Appeals of Kansas. January 18, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
735 N.W.2d 192 (2007) 2007 WI App 162 STATE v. OWENS. No. 2005AP1600-CR. Court of Appeals of Wisconsin. May 8, 2007. Unpublished opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan December 7, 2010 Marilyn Kelly, Chief Justice 138805 Michael F. Cavanagh Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman LORI CALDERON, as Guardian of ARTHUR Diane M. Hathaway KRUMM, a Legally Incapacitated Person, Alton Thomas Davis, Plaintiff/Counter-Defendant- Justices Appellee, and FUNCTIONAL RECOVERY, INC., Intervening Plaintiff/Appellee, v SC: 138805 COA: 283313 Wayne CC: 06-602100-NF AUTO-OWNERS INSURANCE COMPANY, Defendant/Counter-Plaintiff- Appellant. _________________________________________/ On November 5, 2010, the Court heard oral argument on the application for leave to appeal the March 24, 2009 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. KELLY, C.J. (concurring). I concur in the Court’s order denying Auto-Owners Insurance Company’s application for leave to appeal. I write separately to respond to the dissent. It suggests that the issue of domicile should be decided as a matter of law because the facts “are not in dispute.” However, material facts are in dispute. Arthur Krumm, age 29, was severely injured when a car in which he was a passenger was involved in a single-car accident in North Carolina on May 16, 2003. Krumm had no automobile insurance, and the driver of the car was not insured under a Michigan no-fault policy. As a result of the accident, Krumm sustained traumatic brain injuries, and plaintiff, Krumm’s sister, was appointed as his legal guardian. Krumm’s condition apparently prevented him from giving a deposition or otherwise explaining where he was domiciled at the time of the accident. 2 Auto-Owners initially paid no-fault benefits arising from Krumm’s injuries based on the theory that he was domiciled in Fife Lake, Michigan, with his grandmother, who had a no-fault policy with defendant.1 However, it discontinued the benefits and asserted that Krumm was not entitled to them because he was not domiciled with his grandmother. Plaintiff sued Auto-Owners seeking personal protection insurance benefits and underinsured motorist benefits under Krumm’s grandmother’s policy. The trial court granted Auto-Owners’ motion for summary disposition, and the Court of Appeals reversed. In concluding that the Court of Appeals erred in reversing the trial court’s grant of summary disposition, the dissent focuses mainly on Krumm’s domiciliary intent. However, additional factors must be weighed when determining a person’s domicile for purposes of MCL 500.3114(1) including: (1) the formality or informality of the relationship between the claimant and members of the insured’s household; (2) whether the claimant lives in the same house, within the same curtilage, or on the same premises as the insured; (3) the existence or lack of another lodging for the claimant; (4) the claimant’s mailing address; (5) whether the claimant maintains possessions at the insured’s home; (6) whether the insured’s address appears on the claimant’s driver’s license; (7) whether the claimant has a bedroom in the insured’s home; and (8) whether the claimant is dependent on the insured for financial support. Workman v Detroit Auto Inter-Insurance Exchange, 404 Mich 477, 496-97 (1979); Dairyland Ins Co v Auto- Owners Ins Co, 123 Mich App 675 (1983). The facts pertinent to these factors add additional support to plaintiff’s assertion that Krumm was domiciled with his grandmother in Michigan at the time of the accident. Plaintiff submitted evidence that (1) Krumm’s grandmother’s relationship to Krumm was actually that of a mother rather than grandmother. Krumm’s grandmother adopted him when he was a young boy and raised him; (2) Krumm visited Arkansas only periodically and always returned to his grandmother’s house in Michigan; (3) Krumm was estranged from his wife. He did not have a residence in Arkansas, but moved from place to place, living a transient lifestyle; (4) Krumm received mail at his grandmother’s address in Michigan; (5) Krumm kept possessions at his grandmother’s house; (6) Krumm did not have a driver’s license in any state, but he had a Michigan ID card and a voter’s registration card both listing his grandmother’s address in Michigan; and (7) Krumm had his own bedroom in his grandmother’s house. By focusing on the first factor, Krumm’s domiciliary intent, the dissent fails to consider the evidence that plaintiff presented in opposition to the motion for summary disposition. This ignores the standard of review a court must use when a defendant seeks 1 MCL 500.3114(1) provides that a person with injuries arising from a motor vehicle accident may claim Michigan no-fault benefits under the policy of a spouse or relative domiciled in the same household. 3 summary disposition under MCR 2.116(C)(10). The court must review the evidence submitted by the parties in the light most favorable to the party opposing the motion. West v General Motors Corp, 469 Mich 177, 183 (2003). In this case, plaintiff presented material facts that created a genuine issue when opposing the summary disposition motion. The facts must be viewed in the light most favorable to plaintiff. Moreover, the dissent also errs in its summary of the evidence involving plaintiff’s intent. Because the accident incapacitated Krumm, he was unable to testify about where he was domiciled. Friends and family members gave deposition testimony regarding his domiciliary intent. It was conflicting. Some witnesses testified that plaintiff intended to remain in Arkansas, at least temporarily, and some testified that he intended to return to his grandmother’s. As the Court of Appeals noted: “There was no evidence presented that Krumm planned to remain in Arkansas permanently, but there was evidence presented from multiple sources that Krumm intended to move back to Michigan and verbally declared that intent.” Calderon v Auto-Owners Ins Co, unpublished opinion per curiam of the Court of Appeals, issued March 24, 2009 (Docket No. 283313). The totality of evidence, viewed in the light most favorable to plaintiff, may not prove that Krumm resided with his grandmother. However, it provides a basis for a reasonable jury to conclude that he was domiciled with her at the time of the accident. Given the conflicting evidence regarding domiciliary intent and considering the other Workman-Dairyland factors, a genuine issue of material fact exists about Krumm’s domicile. It should be submitted to a jury. I agree with the Court of Appeals that summary disposition should not have been granted. MARKMAN, J. (dissenting). I respectfully dissent from the order denying defendant’s application. Under no circumstances, in my judgment, could it be fairly said that, at the time of the accident in this case, Arthur Krumm was “domiciled in the same household” as his grandmother in Michigan for purposes of personal protection insurance under our no-fault act. Accordingly, I would reverse the judgment of the Court of Appeals and remand to the trial court for reinstatement of its order granting summary disposition in favor of defendant. Under Michigan’s no-fault act, personal protection insurance benefits are available to “the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household . . . .” MCL 500.3114(1). “Domicile [is] that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.” Henry v Henry, 362 Mich 85, 101-102 (1960) (citation omitted). “Generally, the determination of domicile is a question of fact. However, 4 where . . . the underlying facts are not in dispute, domicile is a question of law for the court.” Fowler v Auto Club Ins Assn, 254 Mich App 362, 364 (2002). The facts here are not in dispute. Krumm, who was born and raised in Michigan by his grandmother, abandoned his ties to Michigan and	{ "pile_set_name": "FreeLaw" }
151 B.R. 542 (1993) In re Gregory D. ENGEL, Debtor. Bankruptcy No. 92-03837-13. United States Bankruptcy Court, D. Idaho. February 22, 1993. Kenneth L. Anderson, Lewiston, ID, for debtor. Derrick A. Ater, State of Idaho, Bureau of Child Support Enforcement, Dept. of Health and Welfare, Lewiston, ID. SUMMARY ORDER ALFRED C. HAGAN, Chief Judge. The State of Idaho, Department of Health and Welfare, Bureau of Child Support Enforcement, has moved for relief from the section 362 automatic stay in order to proceed with child support collection procedures against the debtor separate from the debtor's chapter 13 case. The debtor's chapter 13 plan was confirmed on February 1, 1993 without objection from any creditor or interested party. The debtor's plan provides for payment of the child support obligation as follows. 2) Classification of unsecured claims. The following unsecured claims will receive the indicated dollar amounts on their allowed value provided they file a timely allowed proof of claim: Idaho Department of Health and Welfare, Bureau of Child Support Enforcement: (for claims in Idaho and Washington): $9720 in equal monthly installments, to be credited first to current child support payments due in both states and secondarily to arrears. Relief from the section 362 automatic stay for child support purposes is governed by section 362(b)(2). That statute provides: (b) The filing of a petition, under . . . this title, . . . does not operate as a stay (2) under subsection (a) of this section, of the collection of alimony, maintenance, or support from property that is not property of the estate; Upon confirmation of a chapter 13 plan all of the property of the estate becomes *543 vested in the debtor.[1] The child support payments as provided in the debtor's plan are thus not property of the estate and section 362(b)(2) is applicable. Further, §§ 523(a)(5) and 1328(a)(2) except child support obligations from discharge. The terms of a confirmed plan, however, bind the debtor and each creditor.[2] In re Pacana, 125 B.R. 19 (9th Cir. B.A.P.1991) is also applicable. In that case, the Ninth Circuit Bankruptcy Appellate Panel held a debtor's child support obligations were insulated from mandatory inclusion in a chapter 13 plan. In that case, Judge Volinn concluded: Thus, Congress by virtue of § 362(b)(2) specifically excepted child support obligations from the effect of the bankruptcy stay while the case is pending, and through §§ 1328(a)(2) and 523(a)(5), it specifically excepted child support obligations from the effect of confirmation in the Chapter 13 bankruptcy case. These provisions, read together, are consistent and manifest a legislative intent that child support obligations be excepted from the broad reach of §§ 1322 and 1327, and therefore from the effects of a Chapter 13 plan, as well as the post-confirmation automatic stay. And, at page 24: We recognize that various cases cited above are reacting constructively to the economic problem of a debtor who, unable to meet support or alimony obligations, turns to Chapter 13. However, the Code's treatment of child support obligations manifests Congressional intent that while a Chapter 13 plan may alter or delay the enforcement of ordinary unsecured creditors' claims, child support claimants need not wait in line with such creditors, but rather may proceed against the debtor without the hindrance of either automatic stay or discharge. Thus, the State of Idaho, Department of Health and Welfare, Bureau of Child Support Enforcement, the movant, may proceed under the exception of § 362(b)(2) and stay relief is appropriate. Accordingly, it is ORDERED: The motion for stay relief is granted. NOTES [1] 11 U.S.C. § 1327(b). [2] 11 U.S.C. § 1327(a).	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas January 11, 2019 No. 04-18-00874-CV CONTINENTAL MOTORS, INC., Appellant v. ENGINE COMPONENTS INTERNATIONAL, INC., Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-11291 Honorable Karen H. Pozza, Judge Presiding ORDER On January 9, 2019, Appellant filed an unopposed motion for this court to supplement the clerk’s record with a replacement copy of a deposition—and the replacement copy is attached to the motion. Appellant notes that the highlighting on the copy of the deposition in the clerk’s record obliterates rather than highlights the text. To supplement the appellate record with an uncorrupted copy of the deposition, Appellant “may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the [replacement] item.” See TEX. R. APP. P. 34.5(c)(1). _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of January, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-7082 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ROSA SORTO, Defendant - Appellant. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-96-251, CA-99-849-AM) Submitted: November 4, 1999 Decided: November 10, 1999 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Rosa Sorto, Appellant Pro Se. Rebeca Hidalgo Bellows, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rosa Sorto seeks to appeal the district court’s order denying her motion filed under 28 U.S.C.A. § 2255 (West Supp. 1999). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of ap- pealability and dismiss the appeal on the reasoning of the district court. See United States v. Sorto, Nos. CR-96-251; CA-99-849-AM (E.D. Va. June 18, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 46748 BRANDON REYES KELLY, ) ) Boise, June 2019 Term Petitioner-Respondent, ) ) Filed: September 10, 2019 v. ) ) Karel A. Lehrman, Clerk BRANDI LEIGH KELLY, ) ) Respondent-Appellant. ) ) Appeal from the Magistrate Court of the Seventh Judicial District of the State of Idaho, Bonneville County. L. Mark Riddoch, Magistrate Judge. The magistrate court’s award of sole legal custody and primary physical custody to Brandon is vacated. On remand the magistrate court is instructed to disregard Dr. McNaught’s testimony, report, and recommendations when determining issues of custody and visitation. No attorney fees or costs are awarded. David A. Johnson, P.A., Idaho Falls, attorney for Appellant. David A. Johnson argued. Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, attorneys for Respondent on appeal. Aaron J. Woolf argued. BEVAN, Justice I. NATURE OF THE CASE This is a custody dispute. Brandi and Brandon Kelly were married and had a son. After about two years of marriage Brandon filed for divorce. Once the divorce was final the magistrate court awarded sole legal custody and primary physical custody of the boy to Brandon. Brandi filed a permissive appeal, arguing the magistrate court erred by relying on an inadmissible parenting time evaluation and following the recommendations of a biased evaluator. We vacate the child custody judgment, but we affirm certain evidentiary rulings for guidance upon remand. 1 II. FACTUAL AND PROCEDURAL BACKGROUND Brandi and Brandon started dating in March 2014. Brandon owned a home in Idaho Falls, Idaho, and in August 2014, Brandi moved in with Brandon. Brandi and Brandon married on April 20, 2015. Shortly after the parties married, in June 2015, they had a son (“Child”). Brandon is a neurosurgeon practicing in Idaho Falls. He is a 50% owner in Idaho Neurosurgery and Spine, PLLC. Brandon’s LLC has a professional services agreement with Eastern Idaho Regional Medical Center where he provides on-call services. Brandi worked as a loan officer for D.L. Evans Bank before Child’s birth, but then stayed home to care for Child, and her son from a prior relationship. Brandon filed for divorce on May 30, 2017. On the same day, Brandon filed a notice of strict compliance with the Idaho Rules of Evidence. At first, Brandon requested that the parties share legal custody of Child, with Brandi having primary physical custody and Brandon having visitation as agreed upon by the parties. The parties agreed that Brandi would remain in Brandon’s Idaho Falls home with primary physical custody of Child and that Brandon would move in with his parents who lived in the same neighborhood. In November 2017, Brandon retained Dr. Jane McNaught, a nationally renowned psychologist from Minnesota, to review certain documents and information to determine whether Brandi was engaging in conduct that constituted parental alienation. In the letter formalizing the retention of Dr. McNaught and enclosing the fee agreement and retainer fee, Brandon’s lawyer wrote: “he [Brandon] is fearful that his wife has been alienating his son from him . . . . I have enclosed a DVD which contains several pieces of documentation and information which we would like you to consider, and to determine whether or not you believe that parental alienation is taking place.” About a month later, Dr. McNaught responded to Brandon’s lawyer, explaining that she had reviewed the records the attorney had given her, but was not able to form any opinions based on those records. Dr. McNaught recommended that the trial court should consider ordering a parenting time evaluation to evaluate the best interests of the child. Three days later, Brandon filed a motion for the court to appoint a parenting time evaluator under Idaho Rule of Family Law Procedure (“IRFLP”) 719. Brandon requested that the court appoint Dr. Jane McNaught as the parenting time evaluator, or in the alternative, as his own expert under Idaho Rule of Evidence 706. Brandi objected to Brandon’s request for a 2 parenting time evaluator citing, among other things, that Brandi’s medical or mental state was not relevant and that Dr. McNaught would not likely be a neutral party. The magistrate court entered an order declining to appoint Dr. McNaught as the court’s expert; however, the court allowed Brandon to hire Dr. McNaught as his expert to conduct a parenting time evaluation consistent with IRFLP 719. The court ordered both parties to comply with any and all reasonable requests made by Dr. McNaught and any expert hired by Brandi. Brandi objected again, arguing that Brandon had failed to disclose that Dr. McNaught had been consulting and advising him in this matter. Brandi alleged that Brandon at first tried to cover up the retention of Dr. McNaught by blacking out her name on a check written in November 2017, prior to the magistrate court’s appointment. Brandi maintained that Brandon was trying to circumvent the court’s order denying Dr. McNaught as the court’s evaluator under IRFLP 719 by having Dr. McNaught as his own expert. On February 12, 2018, Brandi filed a disclosure naming Robert Engle, Ph.D., as an expert to evaluate child custody issues per the magistrate court’s order. On February 20, 2018, Brandi moved the court to appoint Dr. Engle as a parenting time evaluator under IRFLP 719. Brandon objected. The magistrate court entered an order declining to appoint Dr. Engle as the court’s expert; however, the court allowed Brandi to hire Dr. Engle to conduct a parenting time evaluation as her own expert and ordered both parties to comply with all reasonable requests made by Dr. Engle. On March 23, 2018, Brandon filed a second amended petition for divorce. The second amended petition still requested that the parties share legal custody, but now Brandon asked to be awarded primary physical custody of Child, with Brandi being awarded visitation as agreed on by the parties. Sometime before trial, Brandi moved in limine requesting that the court exclude Dr. McNaught as a witness and prohibit her from providing any testimony in the case, directly or indirectly, including through any report. 1 This motion also requested that another expert Brandon had disclosed, Dr. Woodruff, only be allowed to provide general testimony as to the areas disclosed previously. 1 Brandi’s motion in limine is cut off on page 3 in the record. As a result, it is unclear what date the motion was filed and what the extent of Brandi’s argument was. 3 On April 24, 2018, the court entered an order bifurcating the case. All the issues—except for custody, visitation, and child support—went to trial on April 24, 2018 through April 27, 2018. On May 1, 2018, the magistrate court entered a judgment and decree of divorce. At a hearing on August 28, 2018, the magistrate court denied Brandi’s motion in limine to strike Dr. McNaught’s report. The court clarified that it was treating Dr. McNaught as Brandon’s expert who was not under the direction of the court, recognizing that under IRFLP 719 a parenting time evaluator may be involved in a case either by order or by stipulation. The court explained its earlier order: Now here what I did is I authorized each side to have an expert, and I ordered that each side cooperate with that [expert] . . . each side would have knowledge of what the other side was submitting to that person. So I distinguish that in my mind. The custody and visitation trial took place from September 11, 2018 through September 14, 2018. Dr. McNaught testified at trial about the parenting time evaluation she had conducted. Dr. McNaught was largely concerned with her belief that Brandi suffered from untreated mental health issues. As such, Dr. McNaught recommended that Brandi be evaluated by a board- certified psychiatrist and comply with any suggested medications as long as her psychiatrist advised she do so. Dr. McNaught proposed that until Brandi complied with these recommendations that she not transport or make decisions regarding Child’s medical care and educational programming. Brandi’s expert, Dr. Engle, also testified at trial, but Dr. Engle explained that he refused to do a parenting time evaluation because he was not appointed by the court; as such, Dr. Engle reasoned he lacked the authority to have both parents and the child involved in the evaluation. Instead, Dr. Engle conducted a psychological evaluation of Brandi. On November 19, 2018, the magistrate court entered its findings of fact and conclusions of law. The court recognized that Brand	{ "pile_set_name": "FreeLaw" }
135 Wis.2d 444 (1986) 400 N.W.2d 499 Richard C. RUGG, Plaintiff-Appellant,[] v. LABOR & INDUSTRY REVIEW COMMISSION and Department of Employe Trust Funds, Defendants-Respondents, CITY OF KENOSHA, Defendant. No. 86-0677. Court of Appeals of Wisconsin. Submitted on briefs November 11, 1986. Decided December 10, 1986. 445 For the plaintiff-appellant, the cause was submitted on the briefs of Bruce F. Ehlke of Lawton & Cates, of Madison. For the defendants-respondents, the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Warren M. Schmidt, assistant attorney general. Before Brown, P.J., Nettesheim and Moser, JJ. 446 BROWN, P.J. Former Kenosha firefighter Richard C. Rugg appeals from a circuit court judgment which confirmed the Labor and Industry Review Commission's holding that Rugg is not eligible for special disability benefits pursuant to sec. 40.65, Stats. Because we agree that Rugg is not a "participating employe" under the relevant statutes, we affirm the judgment. The following facts are undisputed. Rugg was a firefighter for the City of Kenosha from May 15, 1947 until February 1983. A medical examination performed prior to Rugg's becoming a firefighter revealed no evidence of heart impairment or disease. On February 21, 1983, Rugg suffered a massive anterior wall myocardial infarction, ventricular fibrillation and cardiac arrest. A subsequent catheterization revealed a large scar on the anterior wall of his heart, a moderate degree of aneurysm formation, and occlusive coronary artery disease. In October 1983, Dr. John Walker determined that Rugg was totally disabled for the purposes of being a firefighter and, at the end of December, Rugg retired because of his disabling heart condition. Pursuant to sec. 891.45, Stats., a presumption exists that Rugg's heart condition was caused by his employment as a firefighter. In November 1983, Rugg applied for the duty disability benefit provided for by sec. 40.65, Stats. The Department of Employe Trust Funds opposed his application on the basis that the legislature had specifically excluded from the sec. 40.65 benefit program firefighters, including Rugg, who were participants in the old sec. 62.13(10), Stats. (1975), pension program. The DILHR examiner and the Labor and Industry Review Commission (LIRC) agreed and dismissed Rugg's application. 447 The issue is entirely one of statutory interpretation. The interpretation of statutes is a question of law and we are not bound by the decision of the circuit court or LIRC. Wisconsin's Environmental Decade, Inc. v. DILHR, 104 Wis. 2d 640, 644, 312 N.W.2d 749, 751 (1981). However, the construction and interpretation of a statute by an administrative agency which must apply the statute is entitled to great weight. Id. If the commission's legal conclusion is reasonable, the reviewing court, will sustain it even though an alternative view may be equally reasonable. Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 322, 328 N.W.2d 886, 888 (Ct. App. 1982). Section 40.65, Stats., provides for a duty disability benefit for a "protective occupation participant" who is injured while performing his or her duties, or who contracts a disease due to his or her occupation, if the disability is likely to be permanent and causes the employee to retire. Sec. 40.65(4). The question thus becomes whether Rugg is a "protective occupation participant." That term is defined in pertinent part in sec. 40.02(48), Stats., as "any participant whose principal duties are determined by the participating employer . . . to involve . . . active fire suppression or prevention . . . " (emphasis added). Subsection (a) of sec. 40.02(48) further provides that " [p]rotective occupation participant' is deemed to include any participant whose name is certified to the fund. . . and who is a . . . fire fighter . . ." (emphasis added). "Participant" means "any person included within the provisions of the Wisconsin retirement system by virtue of being or having been a participating employe whose account has not been closed . . . . " Sec. 40.02(45), 448 Stats. "Participating employe" is then defined, in pertinent part, as "an employe who . . . has met the requirements of s. 40.22." Sec. 40.02(46). Section 40.22, Stats., states: Participating employes. (1) Each employe currently in the service of a state agency ... or of a participating employer other than the state shall be included within the provisions of the Wisconsin retirement system as a participating employe of that state agency or employer, except as provided in sub. 4 . . . . . . . . (4) Persons shall not be included within or receive benefits from the Wisconsin retirement system for any service for which a person: (a) Is subject to s. 40.19(4) provided that contributions and benefits shall be paid as provided by s. 40.19(4). [Emphasis added.] It is this statutory language which LIRC contends excludes Rugg from eligibility as a "participating employe" and thus as a "protective occupation participant" for the purposes of the sec. 40.65, Stats., duty disability benefit. Section 40.19(4), Stats., referred to in sec. 40.22, Stats., relates to the transfer of authority over certain pension funds and benefits from village or city officials to the Department of Employe Trust Funds. Included among these pension funds and benefits is that provided for under sec. 62.13(10), Stats. (1975), the Firemen's Pension Fund, membership in which was closed in 1948. See sec. 62.13(10)(f), Stats. (1975). Subsection (g) of sec. 40.19(4) states: After January 1, 1982, each member of a pension fund created under s.... 62.13 . . . (10), 1975 Stats., 449 who was an actively employed member of that fund on March 30, 1978, shall continue to have benefits and obligations determined in accordance with the applicable provisions of s.... 62.13 . . . (10), 1975 stats., but paid by the Wisconsin retirement system.... Rugg was a member of the City of Kenosha's Firemen's Pension Fund, pursuant to sec. 62.13(10), Stats. (1975). LIRC contends, and the circuit court agreed, that the statute sections described above, when read together, unambiguously provide that participants in the old Firemen's Pension Fund shall not be included in, or receive benefits (including the duty disability benefit) from, the Wisconsin Retirement System, but shall continue to have benefits determined pursuant to sec. 62.13(10), Stats. (1975), although such benefits will be paid by the Wisconsin Retirement System. Rugg claims that a "common sense" reading of the relevant statutes in light of the legislative history demonstrates that the legislature did not intend to exclude municipal firefighters such as himself from duty disability benefits under sec. 40.65, Stats. He contends that, rather, the legislature intended merely that such employees may not receive a service pension under the Wisconsin Retirement System if they are or were eligible for such a pension under sec. 62.13(10), Stats. (1975). On any question of statutory construction, the initial inquiry is to the plain meaning of the statute. State Historical Society v. Village of Maple Bluff, 112 Wis. 2d 246, 252, 332 N.W.2d 792, 795 (1983). If the statute is unambiguous, resort to judicial rules of interpretation and construction or to extrinsic aids is not permitted 450 and the words of the statute must be given their obvious and ordinary meaning. Id. at 252-53, 332 N.W.2d at 795; State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555, 557 (1984); Hucko v. Jos. Schlitz Brewing Co., 100 Wis. 2d 372, 376, 302 N.W.2d 68, 71 (Ct. App. 1981). The meaning of a statute must first be sought in its language, and if the language is plain the sole function of the courts is to enforce the statute according to its terms. In re M.J., 122 Wis. 2d 525, 531, 362 N.W.2d 190, 194 (Ct. App. 1984). A statute is ambiguous if it is capable of being interpreted by reasonably well-informed people in two or more different ways. State v. Hopson, 122 Wis. 2d 395, 399, 362 N.W.2d 166, 168 (Ct. App. 1984). Rugg claims that it is reasonable to read sec. 40.22, Stats., to mean that an employee who participated under a sec. 62.13(10), Stats. (1975), pension program is limited to receiving his service pension under that program and is prohibited from receiving a second pension benefit from the Wisconsin Retirement System. Thus, he argues, as long as he has not claimed or received a service pension benefit under the Wisconsin Retirement System, he has met the requirements of sec. 40.22. We cannot adopt this strained interpretation of the statute	{ "pile_set_name": "FreeLaw" }
276 Cal.App.2d 19 (1969) MERVIN E. JAMES et al., Plaintiffs and Respondents, v. P.C.S. GINNING CO., INC., Defendant and Appellant. Civ. No. 1099. California Court of Appeals. Fifth Dist. Sept. 3, 1969. Siemon & Patterson and R. D. Patterson, Jr., for Defendant and Appellant. Granger & Moe and Lewis A. Moe for Plaintiffs and Respondents. STONE, P. J. Defendant appeals from a judgment quieting title in plaintiffs to real property upon which their home was located. The quiet title action was instituted to enforce a homestead filed prior to a personal judgment defendant obtained against plaintiffs and enforced by an execution sale of the real property. The transaction began in 1965, when plaintiffs obtained financing from defendant gin to carry on their farming operations. They executed a promissory note and a crop mortgage 21 to secure the financing. As additional collateral, they executed security agreements which were, in effect, personal property mortgages covering farming equipment; listed along with the equipment was an item "Equity in House $8,000." In 1966, plaintiffs again financed with the gin and executed similar documents, reflecting the equity in the house at $10,000. Both financing statements were recorded. Thereafter, on September 20, 1966, plaintiffs filed a declaration of homestead covering their residence at 720 Washington Street, Delano. Plaintiffs failed to meet their payments. In February 1967, the gin filed an action against them, alleging the execution of the promissory notes secured by the two agreements, and the default in payments. The gin sought possession of the items of personal property and the equity in the house, but did not allege that the language "Equity in House" created an equitable lien nor seek to have the description made certain. A default judgment was entered March 21, 1967, in favor of the gin, for the sum of $131,167.28, attorneys fees of $15,000, and $38.50 costs. The judgment decreed that the gin have immediate possession of the farming equipment and "Equity in House $10,000.00." Since the "equity" was real property, the order as to it was a legal nullity. To enforce the order, the gin obtained a writ of possession for the specifically described personal property and, to reach the "equity" in the house, obtained a writ of execution on the money judgment and levied against plaintiffs' equity in the real property. At an execution sale held November 30, 1967, defendant gin purchased what purported to be plaintiffs' equity in the real property. In the meantime, on June 14, 1967, plaintiffs filed voluntary bankruptcy proceedings, claiming their residence to be exempt by virtue of the homestead. The referee approved the claim, set aside the real property as exempt, and discharged plaintiffs in bankruptcy. On September 26, 1967, plaintiffs filed this action to quiet title against defendant's judgment and execution sale, by reason of the homestead which predated the judgment. The matter was submitted to the trial court, sitting without a jury, upon stipulated facts. The court upheld the validity of the homestead. [1] Preliminarily, it is arguable that the description, "Equity in House $10,000.00," does not describe specific property and is therefore too vague to create a valid mortgage of real property. This point would be of great significance 22 were an innocent purchaser for value involved, but no third parties are concerned; the controversy is between the debtors and the mortgagee. There was no misunderstanding; both the gin and plaintiffs intended the equity in the home to be security for the loan. Under the rationale of Coast Bank v. Minderhout, 61 Cal.2d 311, 314 [38 Cal.Rptr. 505, 392 P.2d 265], a valid equitable lien was created between the parties even though the description of the property was vague and indefinite. [2] Since there was a valid, equitable lien, the question narrows to whether the gin, by electing to file a personal action and reduce the indebtedness to a personal judgment, made an election of remedies that, by operation of law, waived its equitable lien priority over plaintiffs' subsequent declaration of homestead. Code of Civil Procedure section 726 provides that "There can be but one form of action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real property, which action must be in accordance with the provisions of this chapter. ..." Since there can be but one form of action, under section 726, the courts have established that where a creditor elects to obtain a personal money judgment rather than enforce his mortgage, the effect of the election is to waive the right to foreclose on his security. (Roseleaf Corp. v. Chierighino, 59 Cal.2d 35, 38 [27 Cal.Rptr. 873, 378 P.2d 97]; Salter v. Ulrich, 22 Cal.2d 263, 268 [138 P.2d 7, 146 A.L.R. 1344]; 1 Witkin, Summary Cal. Law (1960) Security Transactions in Real Property, p. 745; Mortgages and Trust Deeds: Enforcement of a Secured Debt in California, 31 Cal.L.Rev. p. 429.) [3] Defendant argues that even though it lost the right to foreclose on the property by not proceeding to foreclose according to section 726 of the Code of Civil Procedure, its judgment and execution take precedence over the homestead by reason of section 1241 of the Civil Code, which provides: "The homestead is subject to execution or forced sale in satisfaction of judgments obtained; ... 4. On debts secured by encumbrances on the premises, executed and recorded before the declaration of homestead was filed for record." The equitable lien was executed and recorded before the declaration of homestead was filed for record, so the question that emerges is whether the gin, by failing to enforce its equitable lien pursuant to section 726, forfeited the lien priority over the homestead that is provided by Civil Code section 1241. The landmark case, Salter v. Ulrich, supra, 22 23 Cal.2d 263, holds that a creditor who chooses to disregard his security and sue on the indebtedness must rely on the title obtained through an execution sale. But this leaves unsettled the effect of the election of remedies upon the prior lien which appears of record and clouds title to the property. In short, does the title of the gin, obtained by purchase at execution sale, relate back to the date the lien was recorded, by reason of section 1241 of the Civil Code? The language of Salter has been interpreted to mean that when the creditor elects to recover a personal judgment "he loses all right to his security, thereby relegating himself to the position of an ordinary judgment creditor." (31 Cal.L.Rev. pp. 429, 433.) We believe this is a correct analysis and, by electing to rely upon a personal judgment, the gin lost all right to a lien priority, including that enjoyed under section 1241 of the Civil Code. We do not rest this conclusion solely upon an interpretation of section 726 of the Code of Civil Procedure. Section 580a must also be taken into account. The holder of a deed of trust, mortgage, or similar security, who elects to foreclose must follow the procedure delineated in sections 726 and 580a of the Code of Civil Procedure, whereby a court must determine that the judgment is for no more than the amount by which the entire amount of the indebtedness due at the time of sale exceeds the fair market value of the real property or interest at the time of sale. Manifestly the purpose of sections 726 and 580a is to prevent a mortgagee from bidding-in property for a nominal sum and obtaining a large deficiency judgment effectuating a forfeiture. If a mortgage lien priority remains viable despite the mortgagee's election to obtain a personal judgment, the creditor has all the advantages of a foreclosure plus a deficiency judgment by simply ignoring statutory foreclosure requirements. We conclude that defendant, by suing on the note to obtain a personal judgment in disregard of its security, made an election of remedies which, under the impact of sections 726 and 580a, constituted a waiver of its lien priority established by the recordation of the security agreements. It follows that the trial court correctly quieted title in plaintiffs by reason of the homestead which preceded the judgment and execution sale upon which the gin's title rested. [4] By way of affirmative defense, the gin contends plaintiffs are barred from asserting the superiority of their 24 declaration of homestead over the recorded equitable lien because they failed to file a counterclaim in the original action on the indebtedness. (Code Civ. Proc., 439.) However, plaintiffs were not required to appear in the original action unless they wished to force defendant to foreclose the lien pursuant to sections 726 and 580a of the Code of Civil Procedure. (Roseleaf Corp. v. Chierighino, supra, 59 Cal.2d at p. 40; Salter v. Ulrich, supra, 22 Cal.2d 263.) Where the mortgagors were content to have the mortgagee waive its right to foreclose against the security and proceed to obtain a personal judgment, a counterclaim alleging the homestead would have been premature. This, because a declaration of homestead relates to an interest in real property and until the indebtedness was reduced to judgment the lawsuit did not encumber plaintiffs' title; there was no basis for asserting the homestead by way of counterclaim. [5] Defendant also argues that its affirmative defense of equitable estoppel should have been sustained by the trial court. The substance of its argument is that plaintiffs knowingly gave the gin an equitable lien upon their property to	{ "pile_set_name": "FreeLaw" }
717 F.2d 57 114 L.R.R.M. (BNA) 2377, 115 L.R.R.M. (BNA) 2337,98 Lab.Cas. P 10,439 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ARA SERVICES, INC., Respondent. No. 81-1701. United States Court of Appeals,Third Circuit. Argued Dec. 15, 1981.Reargued En Banc Nov. 8, 1982.Decided Sept. 9, 1983.As Amended Dec. 27, 1983. Lawrence J. Song, Atty., N.L.R.B., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson (argued), Atty., Washington, D.C., for petitioner. Jackson, Lewis, Schnitzler & Krupman, Norman R. Buchsbaum, Joe C. Ashworth, Baltimore, Md., and Roger S. Kaplan (argued), New York City, for respondent. Argued Dec. 15, 1981. Before ADAMS, GIBBONS and GARTH, Circuit Judges. Reargued En Banc Nov. 8, 1982. Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges. OPINION ANNOUNCING THE JUDGMENT OF THE COURT GIBBONS, Circuit Judge: 1 This case is before us on the application of the National Labor Relations Board (the Board) to enforce its order finding that ARA Services, Inc. (ARA) violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) (1976), by refusing to recognize and bargain with Local 1111, United Food and Commercial Workers International Union, AFL-CIO (the Union). That Union has been certified as the bargaining representative for ARA employees in a representation proceeding conducted pursuant to section 9 of the Act. 29 U.S.C. Sec. 159 (1976). The employer concedes the refusal to bargain, but urges that the Board erred in overruling its objections to the conduct of a Board supervised election. The case requires our consideration of the scope of this court's review of the Board's review of a regional director's report on objections to the conduct of elections, in particular a regional director's decision to issue such a report on the basis of an administrative investigation rather than a hearing. We conclude that the Board did not abuse its discretion when it overruled objections to the conduct of the election without requiring that the regional director conduct a hearing, and we enforce the Board's order directing the employer to bargain collectively. I. Proceedings Before the NLRB 2 ARA is engaged in the industrial catering business at a number of locations, including the cafeteria and dining room of Bell Laboratories in Murray Hill, New Jersey. On October 24, 1979 the Union, claiming majority support among ARA employees at that facility, sought recognition as their collective bargaining representative. ARA declined recognition, and on November 9 the Union filed a representation petition with the Board. The company stipulated to a consent election on January 11, 1980, and the stipulation defined the appropriate bargaining unit of 69 members. Of these, 58 cast ballots, with 30 voting for union representation. The regional director for Region 22 thereupon furnished to the parties a tally of the ballots. Within the 5 days permitted by 29 C.F.R. Sec. 102.69(a), counsel for ARA filed with him the following unverified objections to the conduct of the election: Objection No. 1 3 The Union, by its officers, agents, supporters and adherents threatened employees with physical harm, social ostracism, and other reprisals if they voted against union representation. The Union, acting through its officers, agents and adherents, chilled the atmosphere and interfered with the free exchange of ideas by advising employees that it was aware of which employees were talking to management representatives, thereby creating an atmosphere of coercion and tension which interfered with the conduct of the election. Objection No. 2 4 Board Agent Bennett Muraskin failed to exercise his authority and to affirmatively act so as to make it clear to the employees that the election was being conducted by the Board and that the Board was in actual charge of the voting arrangements but allowed the Union's designated observer to appear to be running the election process, thereby interfering with the election, creating the impression that the Government was not in control and substantially affecting the outcome of the election. 5 These unverified objections resulted in an investigation by the regional director. See 29 C.F.R. Sec. 102.69(c)(1). 6 During the course of the regional director's investigation ARA furnished unverified handwritten statements by three bargaining unit employees, Kevin Woodruff, Frank Smith and June Colavito. The statement of Woodruff was tendered in support of Objection No. 1, while that of Colavito was tendered in support of Objection No. 2. Smith's contains an additional charge. 7 Woodruff's statement, in relevant part, reads 8 Paul Reisner and Enzo Fusco, two pro-union spokesmen on two different occasions, before the voting took place, told me that I should go along with the Union. Enzo said he'd "beat me up" if I did not join the Union. Paul Reisner told me he'd "get back at me" if I didn't join the Union. 9 * * * 10 The Union man a big tall guy, who was here for the vote said there would be an all-out strike--no food, no jobs, that the trucks would be prevented from delivering food and no one would be able to come to work. Fusco was present when the Union official made this comment. Fusco said to me that I better vote yes. Fusco and some of the others told me that if I didn't vote for the Union, nobody would be my friend or talk to me. 11 Woodruff's statement does not say whether or not he voted in the election. During the course of his investigation the regional director interviewed Woodruff, Fusco and Reisner. With respect to the charge that Woodruff was threatened with the loss of friends, his Report on Objections notes that Woodruff "admitted, however, that the second threat of losing friends was not taken seriously, due to the bantering nature of the statement, and further claimed to be unsure if Fusco himself was serious when making the statements imputed to him." When interviewed Woodruff apparently reiterated the charge that Fusco threatened to beat him up. He also enlarged upon the charge that Reisner, an assistant chef, threatened to get back at him, stating that this threat was made after Reisner had learned Woodruff had disclosed a union campaign letter to a supervisor. 12 During the course of the investigation both Fusco and Reisner were interviewed, and both denied making the alleged threats. The regional director did not, however, resolve this credibility issue. Instead, his report observes:The investigation revealed that neither Fusco nor Reissner [sic] were identified as prominent Union partisans in the pre-election period, neither distributed or collected authorization cards or acted as election observers. Further, Reissner [sic] resigned prior to the date of the election and Fusco's employment terminated shortly thereafter. Employees other than both Fusco and Reissner [sic], have been identified as having established initial contact with Petitioner [Union], distributing, collecting and returning authorization cards on behalf of Petitioner [Union] and serving as active members of an organizing committee. Such overt activity on behalf of Petitioner [Union] by such other employees is generally not sufficient to establish agency thereby holding Petitioner [Union] responsible for the alleged wrongdoings of employees without more.2 In this regard, Fusco and Reissner [sic] were not the prime Union adherents, and there is no evidence that the Petitioner [Union] was aware of any alleged misconduct attributed to them nor condoned or ratified any of their alleged actions. Further there is no evidence that any representative of Petitioner [Union] engaged in any other misconduct. 13 2. International Ladies' Garment Workers' Union, AFL-CIO, 214 NLRB 706 (1974). 14 Woodruff's statement is the only evidence submitted by ARA in support of Objection No. 1. Except for the interlineation describing Reisner and Fusco as "two pro-union spokesmen" it contains no information about the connection of either to the Union or the organizing effort. Thus the facts respecting their status developed during the regional director's investigation is uncontradicted by any evidence submitted by ARA. 15 Colavito's statement is quoted in the margin.1 It refers to no specific misconduct by either the Board agent supervising the election or the Union observer. In a conclusory manner it asserts that from her viewpoint as a company observer the Union observer acted so officiously as to give the impression the election was under Union control, and the Board agents failed to negate that	{ "pile_set_name": "FreeLaw" }
861 N.E.2d 1246 (2007) Larry KEESLING, Vivian Keesling, Heritage Land Company a/k/a Heritage Land Co., Appellants-Defendants, v. T.E.K. PARTNERS, LLC, Appellee-Plaintiff. No. 18A02-0605-CV-411. Court of Appeals of Indiana. February 28, 2007. 1248 Charles R. Clark, M. Edward Krause III, Beasley & Gilkison LLP, Muncie, IN, James E. Carlberg, George T. Patton, Jr., Bryan H. Babb, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellants. Donald K. McClellan, McClellan & McClellan, Muncie, IN, Paul L. Jefferson, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellee. OPINION NAJAM, Judge. STATEMENT OF THE CASE Larry Keesling and Vivian Keesling ("the Keeslings") and Heritage Land Company ("Heritage Land") appeal from the trial court's judgment following a bench trial in favor of T.E.K. Partners, L.L.C. ("T.E.K.") on T.E.K.'s complaint on a 1999 installment promissory note (the "original note") and to foreclose mortgages against the Keeslings, Heritage Land, Heritage/M.G., L.L.C. ("Heritage/M.G."), K. 1249 Scott Green, Thomas McMullen, and M.G. Financial Services of Indiana, Inc. ("M.G. Financial"). The Keeslings and Heritage Land present two issues for our review, which we consolidate and restate as whether they are liable to T.E.K., the assignee of the original note, for sums advanced under a 2002 installment promissory note (the "second note") executed without their knowledge or consent. We hold that the second note was a material alteration of the original obligation such that the Keeslings and Heritage Land, as accommodation parties, are both discharged from further personal liability on the original note and are not liable for the additional sums advanced under the second note, which they did not sign. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY In January 1998, Heritage Land and M.G. Financial formed Heritage/M.G. for the purpose of developing a residential neighborhood known as Ironwood Estates in Delaware County. On May 25, 1999, Heritage/M.G. executed the original note to Peoples Bank and Trust Company, custodian for the James Henke, I.R.A. ("Henke I.R.A."), in the amount of $300,000 to partially finance the development. The final installment under the note was due June 1, 2001. The signatories to the original note were Green, both personally and on behalf of Heritage/M.G. and M.G. Financial; McMullen, both personally and on behalf of Heritage/M.G. and M.G. Financial; Larry Keesling, both personally and on behalf of Heritage Land; and Vivian Keesling. The original note was secured in part by a mortgage from Heritage Land to the Henke I.R.A. on a thirty-six acre tract.[1] Heritage/M.G. did not complete the payments under the original note by the June 2001 deadline. On January 3, 2002, the balance due on the note was $48,228.69. On February 1, 2002, without the Keeslings' knowledge or consent, R.M.G. Investment Group, L.L.C. ("R.M.G."), whose principals include Green and McMullen, purchased the original note from the Henke I.R.A. for $48,228.69, and the Henke I.R.A. assigned the original note and mortgage on the thirty-six acres to R.M.G. Then, on May 24, 2002, R.M.G. assigned the original note and mortgage on the thirty-six acres back to the Henke I.R.A. In addition, without the knowledge or consent of the Keeslings or Heritage Land, Heritage/M.G. executed the second note to the Henke I.R.A. in the amount of $102,000. The second note provides in relevant part: This Installment Note is subject to a Mortgage, Instrument Number XXXX-XXXXX-X-X recorded in Delaware County on 5/26/99 in the amount of $300,000.00. * * * This note and all extensions or renewals hereof are secured by a mortgage interest in real estate in Delaware County, State of Indiana, per "Exhibit A and Exhibit B" dated May 26th, 1999, and executed in favor of the payee(s) hereof by Heritage/M.G., L.L.C. Appellants' App. at 54. Green and McMullen personally guaranteed the second 1250 note. No payments were ever made on the second note.[2] Accordingly, on September 2, 2004, 1st National Bank and Trust Company, as Custodian for the Henke I.R.A., filed an amended complaint[3] for foreclosure of mortgages and judgment against the Keeslings, Heritage/M.G., Green, and McMullen. On October 25, 2004, the Henke I.R.A. assigned the mortgage and both the original note and the second note to T.E.K., and T.E.K. released Green and McMullen from any liability. On November 19, 2004, the trial court entered an order substituting T.E.K. for 1st National Bank as plaintiff. Following a bench trial, the trial court entered judgment for T.E.K. and against each of the defendants. The trial court concluded in relevant part that: 5. T.E.K. is entitled to judgment against Heritage Land Company's 36-acres of real estate and Heritage/M.G. LLC 10-acres of real estate, in rem, and against the Defendants, Heritage/M.G. LLC, Thomas McMullen, Larry Keesling and Vivian Keesling, jointly and severally, in personam, in the sum of $365,905.07 plus $10,000 in attorney fees, for a total judgment of $375,905.07. 6. T.E.K. is also entitled to a judgment against Heritage/M.G. LLC in the sum of $324,728.74. 7. T.E.K. is entitled to an Order foreclosing the May 26, 1999 mortgages upon both the 10 and 36 acres of real estate and foreclosing and barring all Defendant's equities of redemption and interest in the real estate. Appellants' App. at 27. The Keeslings and Heritage Land bring this appeal. DISCUSSION AND DECISION The Keeslings and Heritage Land appeal from a judgment in which the trial court made special findings pursuant to Indiana Trial Rule 52(A). That rule provides in pertinent part that "on appeal of claims tried by the court without a jury . . . the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). When a trial court has entered specific findings and conclusions along with its judgment under Trial Rule 52, we apply a two-tiered standard of review. MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29, 34 (Ind.Ct.App.2005). First, we consider whether the evidence supports the findings, construing the findings liberally in support of the judgment. Id. Findings are clearly erroneous only when a review of the record leaves us firmly convinced that a mistake has been made. Id. Next, we determine whether the findings support the judgment. Id. A judgment is clearly erroneous when the findings of fact and conclusions thereon do not support it, and we will disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but only consider the evidence favorable to the trial court's judgment. Id. In sum, the Keeslings and Heritage Land contend that because they were accommodation parties on the original note, and the second note constitutes a material alteration of the original note, they are discharged from further personal liability under the original note, and they have no liability under the second note. 1251 In S-Mart, Inc. v. Sweetwater Coffee Co., Ltd., 744 N.E.2d 580 (Ind.Ct.App.2001), we explained the law regarding guaranty contracts: A guaranty is defined as "a promise to answer for the debt, default, or miscarriage of another person." 38 Am.Jur.2d Guaranty § 1 (1999). It "is an agreement collateral to the debt itself" and represents a "conditional promise" whereby the guarantor promises to pay only if the principal debtor fails to pay. Id. Under Indiana law, three parties are required to execute a guaranty agreement: the obligor or principal debtor, the obligee or creditor, and the guarantor or surety. . . . * * * The rules governing the interpretation and construction of contracts generally apply to the interpretation and construction	{ "pile_set_name": "FreeLaw" }
539 A.2d 73 (1988) PUTNAM FURNITURE LEASING CO., INC. v. Walter BORDEN et al. No. 86-461-Appeal. Supreme Court of Rhode Island. October 15, 1987. On Denial of Reargument March 18, 1988. Douglas H. Smith, Providence, William A. Hardman, III, Law Offices of Richard Gelineau, North Kingstown, for plaintiff. Arthur M. Read, II, Providence, for defendants. ORDER On October 1, 1987 the plaintiff, through its attorney, appeared before this Court in response to an order to show cause why its appeal from a Superior Court order remanding the case to the District Court for entry of final judgment should not be summarily dismissed. After consideration of the memoranda and arguments of counsel, the Court is of the belief that no cause has been shown. Accordingly, the plaintiff's appeal is denied and dismissed and the case is remanded to the District Court for entry of final judgment. OPINION ON PETITION FOR REARGUMENT PER CURIAM. Earlier in this dispute an order was entered denying and dismissing plaintiff's appeal from a Superior Court order remanding this case to the District Court for entry of final judgment for the defendants. Subsequently the plaintiff filed a petition to reargue. Since the issue in this dispute appears to be novel, this opinion will articulate our rationale for our earlier order. The record indicates that in May 1982 judgment for plaintiff in the amount of $3,854 was entered in the District Court, Sixth Division. The defendants filed a timely appeal to the Superior Court claiming a jury trial. In due course the case was assigned to the Superior Court's jury trial calendar. Later defendants filed a stipulation withdrawing their appeal. When the case came on before the Superior Court justice in charge of the calendar, plaintiff argued that defendants had no right to withdraw *74 their appeal and that the case should be assigned for trial. The plaintiff's contention was rejected by a Superior Court justice and an order was entered remanding the case to the District Court for entry of judgment. The plaintiff contends that defendants, by taking an appeal to the Superior Court, automatically voided the District Court judgment. The filing of this appeal, according to plaintiff, is considered the equivalent of filing an original complaint in Superior Court, and plaintiff points out that Rule 41(a) of the Superior Court Rules of Civil Procedure states that a plaintiff may not voluntarily dismiss a case on his or her own after the defendant has served an answer to the complaint. General Laws 1956 (1985 Reenactment) § 9-12-10 provides in pertinent portion that in all civil cases in the District Court any party may cause such case to be removed for trial on all questions of law and fact to the Superior Court by filing a written appeal from the judgment of the District Court within two days of the entry of judgment. The defendants maintain that even though this section gives an appellant the right to a trial de novo in Superior Court, it does not deprive the appellant of the right to withdraw the appeal. Although defendants correctly point out that no case law on this subject exists, that there is none, in our opinion, is due to the ingenuity of plaintiff's argument. We believe that if one has a right to take an appeal, it is to be assumed, in the absence of any statutory prohibition to the contrary, that the appellant has a right to withdraw the appeal. The plaintiff's argument that a District Court appeal is identical to the filing of an original complaint in Superior Court is not persuasive. The Superior Court Rules of Civil Procedure recognize a difference between these two actions. Rule 81(b) specifically states that repleading is not required of either party in a District Court appeal. Since the invocation of Rule 41(a) which relates to voluntary dismissals of civil actions is dependent on how far a case has progressed through the pleading stages, this provision has no relevancy to the voluntary dismissal of a District Court appeal. Accordingly, whenever a party appeals from a District Court judgment to the Superior Court, the party taking that appeal may withdraw the appeal at any time prior to trial, and upon withdrawal, the District Court judgment is reinstated. Petition for reargument is denied.	{ "pile_set_name": "FreeLaw" }
775 F.2d 1166 Richard Ott & Sonsv.Clisa Corp. 85-1292 United States Court of Appeals,Fifth Circuit. 10/17/85 1 N.D.Tex. AFFIRMED 2 --------------- Fed.R.App.P. 34(a); 5th Cir.R. 34.2.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2233 HOANG TAING, Plaintiff - Appellant, v. PENNY PRITZKER, Honorable; Secretary of Commerce; KATHRYN H. ANDERSON, Honorable; Office of Civil Rights, CENHQ 3H068; WILLIAM W. HATCHER, Honorable; U.S. Census Bureau/RCC; DANA JAMES BOENTE, Honorable; US Acting Attorney; LORETTA E. LYNCH, Honorable; Attorney General, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:13-cv-01281-TSE-TCB) Submitted: June 25, 2015 Decided: June 29, 2015 Before GREGORY, FLOYD, and THACKER, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Hoang Taing, Appellant Pro Se. Antonia Marie Konkoly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hoang Taing appeals the district court’s orders granting summary judgment to Appellees and denying her Fed. R. Civ. P. 60(b) motion for reconsideration in this employment discrimination action. We affirm in part and dismiss in part. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than 60 days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). The district court’s order granting summary judgment to Appellees was entered on the docket on July 7, 2014. The notice of appeal was filed on November 10, 2014. Because Hoang Taing failed to file a timely notice of appeal from the order granting summary judgment or to obtain an extension or reopening of the appeal period, we dismiss this portion of the appeal for lack of jurisdiction. Turning to the order denying reconsideration, we have reviewed the record and find no reversible error. Accordingly, we affirm the denial of Rule 60(b) relief for the reasons stated by the district court. Hoang Taing v. Pritzker, No. 1:13-cv-01231- TSE-TCB (E.D. Va. filed Nov. 5, 2014; entered Nov. 6, 2014). We dispense with oral argument because the facts and legal contentions 2 are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 3	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAR 03 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS ALEC KIDWELL, No. 12-17615 Plaintiff - Appellant, D.C. No. 2:10-cv-02207-ROS v. MEMORANDUM* GEO GROUP INCORPORATED; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding Submitted February 18, 2014** Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges. Arizona state prisoner Thomas Alec Kidwell appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations arising out of prison strip searches. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Cir. 2010). We affirm. The district court properly granted summary judgment because Kidwell failed to raise a genuine dispute of material fact as to whether the four strip searches conducted as part of quarterly strip searches of all prisoners were unreasonable under the circumstances, and whether such searches were not reasonably related to a legitimate, penological interest. See id. at 1227-28 (setting forth the standards for evaluating prison searches and prison policies that allegedly infringe on prisoners’ constitutional rights, and explaining that controlling contraband within a prison is a legitimate, penological interest); see also Bull v. City & County of San Francisco, 595 F.3d 964, 982 (9th Cir. 2010) (en banc) (upholding a policy requiring strip searches of all arrestees classified for custodial housing in the general population, “notwithstanding the lack of individualized reasonable suspicion as to the individuals searched”). Kidwell’s contentions regarding the declarations of defendant John Gay are unpersuasive. Kidwell’s request for oral argument, filed on February 19, 2013, is denied. AFFIRMED. 2 12-17615	{ "pile_set_name": "FreeLaw" }
1 F.3d 1238 U.S.v.Scaggs NO. 92-8472 United States Court of Appeals,Fifth Circuit. May 10, 1993 1 Appeal From: W.D.Tex. 2 DISMISSED.	{ "pile_set_name": "FreeLaw" }
251 Ind. 580 (1969) 244 N.E.2d 221 PATTERSON v. STATE OF INDIANA. No. 1267S148. Supreme Court of Indiana. Filed January 30, 1969. Rehearing denied March 19, 1969. 581 Robert G. Mann, Bolden and Mann, of Indianapolis, for appellant. John J. Dillon, Attorney General, Richard V. Bennett, Deputy Attorney General, for appellee. ARTERBURN, J. This action was commenced by affidavit on two counts, charging the defendant with the criminal offense of procuring a female for a house of prostitution pursuant to Burns' Ind. Stat. Anno. § 10-4211. The defendant was found guilty under Count One and sentenced accordingly. The appellant, in our opinion, has failed in many respects to comply with our rules with reference to the presentation of his brief. Rule 2-17(g) requires that a summary of the argument precede the major argument. Rule 2-17(h) requires that the items in the motion for a new trial relied upon as a basis for error shall be stated. The motion for a new trial is not set out at any place in the entire brief, and the specific item in the motion for a new trial is not set forth at the beginning of each point presented in the argument section of the brief. As a matter of interest, we find the motion for a new trial in the transcript comprises 19 pages. We have said many times we are not required to search the record to find the alleged errors. In our opinion, this appeal should be dismissed for failure to comply with the very simple rules of this Court. 582 Nevertheless, in the sense of trying to do justice, we have examined the poorly-prepared brief and have arrived at the following conclusions: It is argued that the prosecuting attorney made improper remarks in his closing argument when he said that the appellant might have to serve two to ten years or might have to serve less than two years. The statute, Burns' § 10-4211, provides for an indeterminate sentence of two to ten years and a fine of not less than three hundred dollars and not to exceed one thousand dollars upon conviction. There is no showing of prejudice in this case by such a remark. Furthermore, no objections were made on the grounds now urged by the appellant at the time of the remarks. The alleged error was not saved for review. We do not believe the case cited by appellant, Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 577, is controlling in this situation. In that case the prosecution was arguing a lesser included offense did not have a sufficiently adequate or stiff penalty. In the case before us there was no lesser included offense involved. What the prosecution said is a matter of common kowledge, and we do not think it was prejudicial or inflammatory. No showing of that character is made. It is next argued that the court erred in overruling the motion "objecting to jurisdiction." The motion asked that the case be remanded to the Criminal Court of Marion County for the reason that the Judge of the Hamilton Circuit Court, Edward F. New, Jr., and the chief trial deputy in Marion County, Leroy K. New, were brothers. However, the motion recites that the cause was assigned by the Circuit Court of Hamilton County to the Superior Court of Hamilton County before trial and was tried before Judge V. Sue Shields, as presiding judge of the Superior Court of Hamilton County. Burns' § 4-402 provides that the Circuit Judge may transfer cases to the Superior Court. We find no error in the respect urged. 583 It is also argued under Point 3 that the court erred in overruling a motion to have a psychiatric examination of Judy Kay Vickery, a prosecuting witness. However, the briefs do not set forth at any point that any objection was made to the witness testifying on the ground that she was mentally incompetent as a witness when she took the stand. Therefore we find no point raised for our consideration with reference to the testimony of Judy Kay Vickery. Finally, it is argued that the evidence is insufficient to support the verdict of the jury. The evidence, as set forth in the brief, appears to us to amply support the charge of procuring a female for a house of prostitution. The evidence shows that the defendant met Judy Kay Vickery, a fifteen year old girl, at an apartment located at 2823 Sutherland Avenue. Shortly thereafter, the defendant and Miss Vickery left the apartment to get a soft drink. While they were having this soft drink, the defendant told Miss Vickery, about Miss Ault, saying that she lived at his home and worked out of it as a prostitute. The defendant asked Miss Vickery if she would like to meet Miss Ault. The defendant and Miss Vickery then went to the defendant's home at 2838 Paris Avenue, where Miss Vickery was introduced to Miss Ault. Within a short time, the two women left the home and rode around in a car until they met some men. The men were brought back to the defendant's home where Miss Ault had sexual relations with the men while Miss Vickery watched. The men then paid Miss Ault. There was no evidence introduced to show that prior to her meeting with the defendant that Miss Vickery had been connected with prostitution in any way. The next afternoon the defendant took Miss Vickery to a beauty parlor and to a store where he purchased for her a dress, shoes and underclothes for a total cost of about fifty dollars. That night Miss Vickery went with Miss Ault "to 584 work on Meridian Street." Miss Vickery that night performed acts of prostitution for money in the defendant's home. There is other evidence that corroborates and supports fully what has been stated. We find no error of the trial court presented to us in the briefs on this appeal. The judgment of the trial court is affirmed. DeBruler, C.J., and Hunter, J., concur. Jackson and Givan, JJ., concur in result. NOTE. Reported in 244 N.E.2d 221.	{ "pile_set_name": "FreeLaw" }
Matter of Kimora D. (Joseph C.--Ojetta T.D.) (2019 NY Slip Op 07851) Matter of Kimora D. (Joseph C.--Ojetta T.D.) 2019 NY Slip Op 07851 Decided on October 31, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on October 31, 2019 Friedman, J.P., Kapnick, Kern, Singh, JJ. 10245A 10245 [1] In re Kimora D., A Child Under the Age of Eighteen Years, etc., Joseph C., Respondent-Appellant, Ojetta T.D., Respondent, Administration for Children's Services, Petitioner-Respondent. The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R. Denman of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child. Order of disposition, Family Court, New York County (Ta-Tanisha D. James, J.), entered on or about January 3, 2018, insofar as it brings up for review an amended fact-finding order, same court and Judge, entered on or about May 29, 2018, which found, after a hearing, that respondent neglected the subject child, unanimously affirmed, without costs. Appeal from amended fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Petitioner proved by a preponderance of the evidence that respondent, the child's mother's boyfriend, neglected the child (Matter of Tammie Z., 66 NY2d 1 [1985]; Family Court Act § 1012[f][1]) by exposing her to domestic violence (see Matter of Bobbi B. [Bobby B.], 165 AD3d 587 [1st Dept 2018]; Matter of Moises G. [Luis G.], 135 AD3d 527 [1st Dept 2016]; Matter of Allyera E. [Alando E.], 132 AD3d 472, 473 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). The record belies respondent's contention that he was not the aggressor during the July 14, 2016 altercation with the child's mother and that he acted reasonably to protect the then-five-year-old child. The credible testimony shows that both he and the mother were aggressors. The police officer called to the scene of the incident concluded as much and arrested them both, and, according to the child, whose description of the incident was sufficiently corroborated to be considered by the court (see Matter of Nicole V., 71 NY2d 112 [1987]), both adults were fully engaged in the fighting. Respondent himself testified that when the mother pushed him he pushed her back, and he continued to engage with her even after the child repeatedly asked him and the mother to stop fighting. Respondent's claim that he tried to protect the child is not supported by the record. Respondent fought with the mother after the child repeatedly asked them to stop. He may have been involved in telling the child to stay in the bathroom while he and the mother fought, but this was in any event a dubious protective measure, given the extremely small size of the apartment, as described by the police officer, and the child's almost certain ability to hear the screaming and [2]struggling over a knife even from behind the bathroom door. Moreover, by entering the bathroom with his fingers lacerated and bloodied by the mother's use of a kitchen knife on him during the altercation, respondent exposed the child to the full extent of the violence between the adults, which she told petitioner's child protective specialist (CPS) scared her. The record belies respondent's argument that the child was not impaired or in imminent danger of becoming impaired after witnessing the altercation (Family Court Act § 1012[f]). He cites her use of the word "sad," but ignores the fact that the child said she was "scared," and, given her close physical proximity to the altercation, which involved screaming, pushing, biting, and lacerations by knife, the circumstances leave no doubt that the child's emotional and mental health were impaired, or at serious risk of impairment, as a result of what she saw and heard (see e.g. Matter of O'Ryan Elizah H. [Kairo E.], 171 AD3d 429 [1st Dept 2019]; Matter of Heily A. [Flor F.-Gustavo A.], 165 AD3d 457 [1st Dept 2018]; Matter of Isabella S. [Robert T.], 154 AD3d 606 [1st Dept 2017]). Respondent argues that the court's aid is not required and therefore the petition should be dismissed pursuant to Family Court Act § 1051(c), because he has no further plans to be in contact with the child. Assuming that respondent raised this argument before Family Court, we reject it. Respondent offers no evidence to support his claim that he has no plans to be in contact with the child ever again, and the record strongly suggests otherwise. Respondent referred to the child as his "baby." He told the CPS and the police officer that he loved the child as though she were his flesh and blood and that he had been with her since day one. The CPS reported that the child perceived respondent as her father, and the mother similarly referred to him as such. Petitioner proved by a preponderance of the evidence that respondent also neglected the child by misusing alcohol and marijuana (Family Court Act §§ 1012[f][i][B]; 1046[a][iii]). Contrary to respondent's contention that there is no evidence of the frequency or effects of his alcohol use, the child's unrebutted statements to the CPS encompass both points. She told the CPS that respondent drank every day, that his doing so made him sway from side to side and made him "crazy" and "different." Respondent failed to offer evidence to the contrary or a reason to doubt the reliability of the child's statements. Nor did he say that he was in a rehabilitation program so as to render the statutory presumption of neglect based on misuse of alcohol inapplicable (see Family Court Act § 1046[a][iii]). Respondent argues that there is no evidence of the specific effects of his alcohol use on his parenting or treatment of the child. However, given respondent's regular alcohol use, the statute does not require such evidence (see Matter of Nasiim W. [Keala M.], 88 AD3d 452 [1st Dept 2011]). The evidence of respondent's marijuana use includes his own testimony that a normal day for him includes marijuana, and he freely admitted to the CPS that he used marijuana, an unrebutted admission corroborated by the mother's testimony. Respondent failed to rebut petitioner's prima facie case of neglect on this basis by showing that he is in drug rehabilitation (Matter of Shaun H. [Monique B.], 161 AD3d 559 [1st Dept 2018]; Matter of Nyheem E. [Jamila G.], 134 AD3d 517, 519 [1st Dept 2015]). We have considered respondent's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: OCTOBER 31, 2019 CLERK	{ "pile_set_name": "FreeLaw" }
In the Missouri Court of Appeals Western District  STATE OF MISSOURI,   WD79124 Appellant,  OPINION DRAFT: v.   NOVEMBER 22, 2016 AARON M. FISHER,   Respondent.    Appeal from the Circuit Court of Miller County, Missouri The Honorable Patricia Joyce, Judge Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ. The State of Missouri appeals the trial court’s decision to sustain Fisher’s motion to dismiss the charges for a violation of his fundamental right to a speedy trial. In the State’s sole point on appeal, it contends that the trial court erred in ordering dismissal of the charges because there was no speedy trial violation as a matter of law under a proper Barker v. Wingo application. The State argues that a significant portion of the delay is attributable to defendant Fisher, that any delays attributable to the State do not weigh heavily against it and that Fisher suffered no actual prejudice from the delay. We affirm. Factual Background Aaron Fisher was charged with two counts of statutory sodomy in the first degree1 in Miller County Circuit Court on October 28, 2009. An arrest warrant was issued and Fisher was taken into custody that same day. The State filed an amended complaint on November 4, 2009, adding one count each of assault in the first degree pursuant to Section 565.050, RSMo. Cum. Supp. and abuse of a child as provided by Section 568.060, RSMo.Cum. Supp. The preliminary hearing was scheduled for March 8, 2010. Upon the State’s motion, the case was continued from March 8 to April 12, 2010. The case was continued again on the State’s motion to May 17, 2010. Defendant Fisher was eventually arraigned on June 9, 2010 and a trial date was set for January 10, 2011. On December 27, 2010 the State filed a motion for leave to endorse additional witnesses. This continuance was granted by the court, without a hearing, on January 10, 2011. The case was reset for trial on September 12, 2011. In response, Fisher filed both a handwritten request for discovery and for a speedy trial on February 22, 2011. The court made a finding of fact that Fisher complied with all statutory requirements in the filing of his motion for speedy trial. Abiding by Fisher’s request, the court reset jury trial for May 23, 2011. On May 23, 2011, Fisher requested his sole continuance and the jury trial date was again reset for September 12, 2011. However, this date was later stricken without any record or documentation addressing the defendant’s right to a speedy trial. The September 12, 2011, date was stricken and a plea hearing was set for September 7, 2011. The record provided shows no date or explanation as to why the September 12, 2011, date was stricken. The court entered an 1 Pursuant to Section RSMo. 566.062. Cum. Supp. 2015 2 order on October 6, 2011, again without a hearing or explanation cancelling the plea hearing, and ordered the case continued to January 9, 2012. This January 9, 2012, trial date was also stricken without any record or documentation addressing the defendant’s right to a speedy trial. Again, the record gives no indication as to why this date was cancelled. The court further failed to make a record concerning which party requested the continuance. The case was reset to September 10, 2012. This trial date was again stricken without any record or documentation addressing who requested the continuance or Fisher’s right to a speedy trial. No activity took place in this case between September 2012 and March 26, 2013, when a jury trial was again scheduled for February 24, 2014. The State filed its second request for leave to endorse additional witnesses on February 24 and the court set a new trial date for September 8, 2014. Before the trial could take place, the court scheduled a plea hearing for July 28, 2014. One week before the scheduled plea hearing, counsel for Fisher filed a motion to withdraw on July 21, 2014. New counsel for Fisher entered his appearance that same day. Upon finding a factual basis, the court accepted Fisher’s plea of guilty to two counts of statutory sodomy on July 28, 2014 and sentencing was scheduled for November 6, 2014. On November 7, 2014, the guilty plea was vacated by the court based on Fisher’s statements to the Sentencing Assessment Report writer regarding the commission of the crimes where Fisher told the writer “I know I did it, but I honestly don’t remember.” On December 3, 2014, the presiding judge recused himself and a special judge was appointed by the Missouri Supreme Court on January 13, 2015. Following the reassignment to the special judge, the State did not request a trial date until September 9, 2015, at which time the case was set for trial on November 23, 2015. Fisher filed a motion to dismiss for violation of his statutory and constitutional right to a speedy trial on September 16, 2015. Thereafter, the State 3 filed two additional requests for leave to endorse additional witnesses in the month of October 2015. On October 23, 2015, the court issued an order sustaining Fisher’s motion and ordered him discharged. In its October 23, 2015 order, the court explained that despite five different opportunities to bring him to trial, nearly six years had lapsed between the date of Fisher’s incarceration and the court further found that while the State was responsible for at least four different delays, Fisher could be charged with only one. Standard of Review The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article I of the Missouri Constitution. State v. Washington, 9 S.W. 3d 671 (Mo. App. 1999). The protections of the Sixth Amendment attach when there is a formal indictment or information or when actual restraints are imposed by arrest and holding to answer a criminal charge. State ex rel Garcia v. Goldman, 316 S.W. 3d 907, 909 (Mo. banc 2010). The issue of whether the Defendant’s Sixth Amendment rights have been violated is a question of law, and therefore, appellate courts review de novo. State v. Washington, 9 S.W.3d at 675. While we review de novo whether the defendant’s Sixth Amendment right was violated, we defer to the trial court’s findings of fact. State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015). Legal Discussion It is the responsibility of the State to bring a defendant to trial speedily. State v. Richmond, 611 S.W.2d 351, 355 (Mo. App. 1980). A criminal defendant’s right to a speedy 4 trial guarantees that the “State will move quickly to assure the defendant of the early and proper disposition of crimes with which he or she is charged.” State v. Smith, 849 S.W.2d 209, 213 (Mo. App. 1993). “The federal and Missouri constitutions ‘provide equivalent protection for a defendant’s right to a speedy trial.’” State v. Sisco, 458 S.W.3d at 313. The exclusive remedy for the deprivation of this right is the dismissal of the charges with prejudice. Id. at 312, citing State ex rel. McKee v. Riley, 240 S.W.3d 720, 732 (Mo. banc 2007). To determine whether there has been a violation of the right to a speedy trial, Missouri courts use the four part “test” set forth in the United States Supreme Court case, Barker v. Wingo, 407 U.S. 514 (1972). Id. at 313; State v. Bolin, 643 S.W.2d 806 (Mo. 1983). When facing a motion to dismiss, the four part test requires the court to consider: (i) the length of the delay, (ii) the reason for the delay, (iii) the defendant’s assertion of his right to a speedy trial and (iv) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. Here, we must determine whether the facts on record support the motion court’s finding of a violation of Fisher’s right to a speedy trial and the decision to grant Fisher’s motion to dismiss. (i) Length of Delay Missouri courts recognize that a delay of greater than eight months is “presumptively	{ "pile_set_name": "FreeLaw" }
463 S.E.2d 321 (1995) David J. HICKUM, Appellant, v. Judy B. HICKUM, Respondent. No. 2408. Court of Appeals of South Carolina. Submitted October 3, 1995. Decided October 30, 1995. 322 Hal J. Warlick, of Warlick Law Office, Easley, for appellant. Kenneth C. Porter, of Porter & Rosenfeld, Greenville, for respondent. HEARN, Judge: In this domestic action, husband appeals the date of valuation of the marital estate, the equitable apportionment of the parties' marital debt, the valuation of the wife's cosmetic business, alimony, and the inclusion of the parties' retirement plans in the marital estate. We affirm.[1] The parties married on July 20, 1963, and have one emancipated child. They separated in March of 1992 after wife discovered husband's adulterous relationship with a woman named Beth.[2] Wife filed an action for divorce on the ground of adultery on October 19, 1992. A pendente lite order was signed on November 23, 1992, in which husband was ordered to pay $400.00 per month towards satisfaction of a home equity loan on the marital residence. Pursuant to the administrative rules of the family court, the October 19 action was dismissed because it was not brought to trial within 270 days from the date of filing. FC ADMIN-5 (S.C.Sup.Ct. filed June 5, 1992). On September 20, 1993, husband filed for divorce on the ground of one year continuous separation. Wife counterclaimed for divorce based on adultery, and sought equitable apportionment of the marital estate, alimony and attorney's fees. The trial judge granted wife a divorce on the ground of adultery. The trial judge also ordered a fifty-fifty division of the marital property, which she identified and valued as of September 20, 1993, and awarded wife permanent, periodic alimony of $475.00 per month and attorney's fees. Husband appeals. I. Husband contends the trial judge erred when she included the parties' retirement plans in the marital estate. We disagree. In applying S.C.Code Ann. § 20-7-473 (Supp.1994) this court held: "Since retirement plans were not excluded by the act, retirement plans are therefore includable as marital property subject to division." Ferguson 323 v. Ferguson, 300 S.C. 1, 386 S.E.2d 267 (Ct.App.1989). Accordingly the trial judge properly considered the parties' respective retirement plans as marital property subject to equitable apportionment. II. Husband contends the family court judge erred in ruling that the filing date of the second action, September 20, 1993, was the operative date for identifying and valuing the marital estate. He argues that the marital litigation between these parties began on October 19, 1992, the date the wife commenced the prior action, and that the marital estate should be valued as of the date of separation.[3] In a related argument husband asserts that any property acquired by either party subsequent to the entry of the pendente lite order in the prior action should have been excluded from the marital estate pursuant to § 20-7-473(2). Therefore, the husband contends, the family court judge overvalued several marital assets, including husband's retirement account which increased from $116,944.73 to $129,047.99 from December 31, 1992, until September 20, 1993.[4] Appellant's argument that the trial judge erred in using the second filing date for valuation purposes has been rejected previously by this court. In Shannon v. Shannon, 301 S.C. 107, 112, 390 S.E.2d 380 (Ct. App.1990), this court interpreted § 20-7-473 and held the kind of litigation required "to trigger the statute must be the same litigation which brings about the equitable division." In refusing to link valuation to the filing date of a prior action between the parties, the court noted: "It is not enough that the parties in the past engaged in some litigation if that litigation did not serve as the vehicle for equitable division." Id. The reasoning of Shannon, which furthers this State's public policy of preserving marriages, is applicable here. The operative litigation which "triggered" S.C.Code Ann. § 20-7-473 and brought about the equitable division was obviously the litigation which began on September 20, 1993, not the prior stricken litigation. Therefore, the family court judge correctly ruled that the marital assets should be valued as of September 20, 1993. Husband also contends certain property should have been excluded from the marital estate because it increased in value or was "acquired" after the entry of the pendente lite order in the prior litigation. We disagree. Section 20-7-473 defines marital property as all real and personal property acquired by the parties during the marriage and owned as of the date of filing or commencement of marital litigation. Subsection (2) of the statute creates an exception for property acquired after the entry of a pendente lite order and designates such assets as nonmarital property. While husband's argument that the pendente lite order in the prior, nontriggering action should operate to exclude certain property from the marital estate is an ingenious one, we reject it. Section 20-7-473 is the vehicle which creates "marital property" to be equitably divided by the family court. While a litigant's ownership right in marital property is acquired during the marriage, "`[m]arital property' as such does not exist until the date when marital litigation is filed or commenced." Prosser v. Pee Dee State Bank, 295 S.C. 212, 214, 367 S.E.2d 698 (1988). Accord, Hopkins v. Hopkins, 295 S.C. 239, 367 S.E.2d 714 (Ct.App.1988). Thus, the "marital property" at issue here did not exist until September 20, 1993, at the time of the filing of this action. It would be incongruous to hold, as husband suggests, that a temporary order in a prior action should limit the definition of what constitutes marital property in this case, when the marital property itself did not even "exist" under the law until September 20, 1993. To accept husband's argument would be to permit "the tail to wag *324 the dog," and would result in inconsistency and confusion. It would also punish the wife who failed to pursue her divorce action and be contrary to this State's public policy.[5] Consistent with the prior case law interpreting the statute, we hold that the action which brings about the equitable division is not only the triggering action for purposes of the identification and valuation of marital assets pursuant § 20-7-473, but also the triggering action for any pendente lite order which operates to exclude assets from the definition of marital property under subsection (2). We note this construction of § 20-7-473 is also consistent with prior case law which holds that both parties are entitled to share in any appreciation in marital assets which occurs after the parties separate and before the parties divorce. Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (1987).[6] III. Husband also asserts the trial judge erred when she ordered him to pay the "Visa/shop debt" as part of the equitable apportionment of the parties' debts. S.C.Code Ann. § 20-7-472 (Supp.1994) provides in pertinent part: In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors: (13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage; (15) such other relevant factors as the trial court shall expressly enumerate in its order. Section 20-7-472 creates a presumption that a debt of either spouse incurred prior to marital litigation is a marital debt, and must be factored into the totality of equitable apportionment. The presumption is rebuttable. Hardy v. Hardy, 311 S.C. 433, 429 S.E.2d 811 (Ct.App.1993). "Marital debt" has been defined as debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable. Id. at 437, 429 S.E.2d at 813. Moreover, the estate which is to be equitably divided by the family court judge is the net estate, i.e., provision for the payment of marital debts must be apportioned as well as the property itself. Therefore, basically the same rules of fairness and equity which apply to the equitable division of marital property also apply to the division of marital debts. Id. The burden of proving a spouse's debt as nonmarital rests upon the party who makes such an assertion. If the trial judge finds that a spouse's debt was not made for marital purposes, it need not be factored into the court's equitable apportionment of the marital estate, and the trial judge may require payment by the spouse who created the debt for nonmarital purposes. However, the words "in such proportion as it finds appropriate," as used in § 20-7-472, accord much discretion to the trial judge in providing for the payment of marital debts as a consideration in the equitable division of the marital estate. Id. On review	{ "pile_set_name": "FreeLaw" }
879 F.2d 945 28 Fed. R. Evid. Serv. 705 UNITED STATES of America, Appellee,v.Winston MACHOR, Defendant, Appellant.UNITED STATES of America, Appellee,v.Armand Allen STEVENSON, Defendant, Appellant.UNITED STATES of America, Appellee,v.Valeriano BRITO-MEJIA, Defendant, Appellant.UNITED STATES of America, Appellee,v.Gumersindo Eduardo CARRASCO, Defendant, Appellant. Nos. 87-1603 to 87-1606. United States Court of Appeals,First Circuit. Heard Dec. 8, 1988.Decided June 29, 1989.Rehearing and Rehearing En Banc in No. 87-1606 Denied Aug. 1, 1989. Francis K. Morris, by Appointment of the Court, with whom Morris & Collins, Framingham, Mass., was on brief, for defendant, appellant Gumersindo Eduardo Carrasco. Benjamin S. Waxman with whom Frederick S. Robbins and Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., were on brief, for defendant, appellant Armand Allen Stevenson. Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for defendant, appellant Valeriano Brito-Mejia. Marshall T. Cary, Bangor, Me., by Appointment of the Court, for defendant, appellant Winston Machor. Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee. Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges. TORRUELLA, Circuit Judge. 1 After a joint jury trial, the four appellants, Valeriano Brito-Mejia ("Brito"), Gumersindo Carrasco ("Carrasco"), Winston Machor ("Machor") and Armand Allen Stevenson ("Allen") were convicted under 21 U.S.C. Sec. 841(a)(1) for aiding and abetting each other in the possession with intent to distribute cocaine. Each appellant alleges the commission of several errors by the district court. We find that no reversible error was committed and affirm the four convictions. 2 The facts which the jury could have found are as follows. At the time of the relevant facts, Mario Castillo ("Castillo") was employed as a cabin steward on board the vessel VICTORIA and worked as an informant for the United States Customs Service. Carrasco, who also worked on the VICTORIA, had known Castillo for approximately eight months to a year. On November 16, 1986, Carrasco told Castillo that he was looking for someone to buy a kilogram of cocaine that Carrasco had "in the company of Mr. Brito" and "two Costa Ricans" who were to arrive in San Juan in the vessel SONG OF AMERICA. (Machor and Allen are in fact Costa Rican nationals and did arrive afterwards on the ship SONG OF AMERICA). Castillo informed Customs about Carrasco's offer. Castillo was directed to arrange a meeting between Carrasco and agent Rivera, who would pose as a prospective buyer. This meeting took place several days later at the Don Ricardo Restaurant in Old San Juan. Agent Rivera and Carrasco agreed to the sale of one kilogram of cocaine for $30,000. Carrasco told the agent that the cocaine would arrive "in the company of two Costa Ricans" who were arriving in the ship SONG OF AMERICA and that, as soon as the cocaine arrived, he would contact Rivera through informant Castillo. Carrasco also mentioned that Brito was "the one in charge." 3 The next day Carrasco phoned Castillo to inform him that the cocaine had arrived. Carrasco, accompanied by Allen, picked up Castillo. Castillo then asked Carrasco to stop the car so that he could phone the buyer and tell him that the cocaine had arrived. Castillo called Customs and arranged for a second meeting later that day at the Don Ricardo Restaurant. Castillo went back into the car where Allen showed him a blue and white bag containing cocaine. Then they picked up Brito and Machor and proceeded on to the Don Ricardo Restaurant. 4 Carrasco dropped off Castillo, Allen, Machor and Brito at the restaurant and went to park the car. While Allen, Machor and Brito remained inside the restaurant, informant Castillo and agent Rivera met outside. Castillo brought out Brito and introduced him to the prospective buyer, agent Rivera. Brito said that the "Costa Ricans" had the kilogram of cocaine inside the restaurant. Rivera asked how much cocaine they could supply in the future and Brito replied they could get two kilograms each time the ship arrived in San Juan. Afterwards Brito went inside the restaurant and came out with Machor. Machor agreed to show Rivera the cocaine. Machor again went inside the restaurant and later came out with Allen. Allen placed himself next to a parked car and started to look in both directions. Machor was carrying a white plastic bag with blue designs. Machor and Rivera walked towards a store near the restaurant where Machor opened the bag and showed Rivera the cocaine. After Rivera saw the "merchandise" he approached Allen, shook his hand, and told him "this is fine." Allen replied: "everything is fine, fine, fine." Thereafter Rivera gave a pre-arranged signal to surveillance agents who proceeded to arrest Machor, Allen and Brito. The cocaine was found on a chair in the restaurant, where it apparently had been returned before the arrests. Carrasco was arrested later in his car at Pier Six, some distance from the restaurant. 5 After the trial, the four codefendants were found guilty on Count One of the indictment: aiding and abetting in the possession of cocaine with intent to distribute it. We will now address the arguments advanced by appellants. I. Sufficiency of the Evidence 6 Defendants contend that the evidence presented at trial against them was insufficient to sustain their conviction. In considering the sufficiency of the evidence in criminal cases, the proper standard of review is whether, viewing the evidence in the light most favorable to the government and without assessing the credibility of the witnesses, a rational fact finder could have adjudged the defendant guilty beyond a reasonable doubt. See United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989) and cases therein cited. The elements of the crime charged do not have to be proven with direct evidence; the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt. United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982). 7 An essential element that the government was required to prove in this case was that the defendants "aided and abetted" in the possession with intent to distribute the controlled substance. Thus, the government had to show that each defendant "associated himself with the venture, that he participated in it as something he wished to bring about, that he sought by his action to make it succeed." Id., (quoting United States v. Martinez, 479 F.2d 824, 829 (1st Cir.1973)). 8 In evaluating the evidence presented against defendants in the light most favorable to the government we are compelled to conclude that it was more than sufficient. From the very first meeting between the informant and Carrasco, the latter identified Brito and "two Costa Ricans" as the persons interested in selling cocaine. At the first meeting with agent Rivera, Carrasco again mentioned two Costa Ricans who were to arrive in the ship SONG OF AMERICA as the persons who were bringing the cocaine. As it turned out, Machor and Allen are Costa Rican nationals and did arrive in the ship SONG OF AMERICA. Carrasco also mentioned that Brito was "the one in charge." On the day of the arrests, Carrasco picked up the other codefendants, including Brito and Machor for the purpose of attending the pre-arranged meeting with the purported buyer of the cocaine, agent Rivera. At that time, Allen had possession of the cocaine. At the restaurant Brito specifically stated the Costa Ricans had the cocaine inside the restaurant. He even arranged for future cocaine sales. Later on Brito came out of the restaurant with Machor who showed agent Rivera the cocaine. These facts obviously amounted to more than "a mere presence at the scene and knowledge that a crime is being committed," United States v. Tarr, 589 F.2d 55, 59 (1st Cir.1978), as defendants contend. On the contrary, the facts show that defendants shared the criminal intent necessary to be convicted for aiding and abetting. 9 Defendants also challenge the sufficiency of the evidence on the grounds that the cocaine was found on a chair inside the restaurant. We reject this argument. The fact that the cocaine was not found in the possession of one of the codefendants is not dispositive.	{ "pile_set_name": "FreeLaw" }
571 F.2d 617 187 U.S.App.D.C. 183 John H. VanderMOLEN, Appellant,v.John C. STETSON, Secretary of the Air Force. No. 76-1449. United States Court of Appeals,District of Columbia Circuit. Argued March 30, 1977.Decided Nov. 16, 1977.Statement on Sua Sponte Request for Rehearing En Banc Dec. 23, 1977. Mary E. Baluss, Washington, D.C., with whom William H. Briggs, Jr., Michael J. Malley and David Addlestone, Washington, D.C., were on the brief, for appellant. Richard A. Graham, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and George A. Stohner, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee. Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges. Opinion for the Court filed by BAZELON, Chief Judge. Dissenting opinion filed by ROBB, Circuit Judge. BAZELON, Chief Judge: 1 On February 19, 1971, appellant, John H. VanderMolen, was honorably discharged from the United States Air Force under Air Force Regulation (AFR) 36-3.1 Claiming that his discharge was illegal, VanderMolen brought suit in United States District Court asking that he be reinstated on active duty in the Air Force, that he receive $9999.99 in damages,2 and that the Air Force be required to remove from his records any notation that would bar him from reenlisting in the Air Force, and in particular remove any reference to AFR 36-3.3 VanderMolen also alleged that the Air Force had illegally cancelled his scheduled promotion to captain, and he asked that his reinstatement be with the rank of captain and that his back pay be calculated at that rank. The district court granted appellee's motion for summary judgment and dismissed VanderMolen's complaint. We reverse. I. BACKGROUND 2 VanderMolen was commissioned as a Reserve Officer, Second Lieutenant, in the United States Air Force in April of 1967. His first assignment was an Intelligence Officer for the 327th Air Division at Taipei, Taiwan. His duties included collection, collation, and analysis of highly sensitive, top secret data dealing with the People's Republic of China. His Officer Efficiency Reports (OER's) at this time portray "a very fine, exceptionally mature, professionally competent young officer."4 His superior, Lt. Col. Brown, praised his "keen analytical capability, high degree of intelligence, (and) unswerving dependability and dedication to duty . . . ."5 3 In March, 1970, VanderMolen, now a First Lieutenant, was assigned to attend a Missile Launch Officer's Course at Chanute Air Force Base, Illinois. During the first few days of introductory classroom instruction, VanderMolen and his fellow students were advised by an instructor, Lt. James Tindell, that anyone having personal qualms about the overall nuclear weapons mission of the Air Force or about his ability to handle a missile launch assignment, should speak up immediately so that neither the Air Force nor the student would needlessly invest in the training.6 At this time VanderMolen also learned, for the first time, of the substantial possibility that United States nuclear deterrent strategy may be in part premised upon the "extensive destruction of large population centers" and that Launch Control Officers would not be informed of the targets of the missiles that they launched.7 4 This information disturbed VanderMolen, and he decided to accept Lieutenant Tindell's invitation to speak with him. Tindell's written counseling record states that "Lt. Vandermolen expressed . . . his belief that nuclear war or a nuclear force is not right. His religious beliefs and convictions will not allow him to be a part of a nuclear weapon system."8 Lt. Tindell referred VanderMolen through the chain of command for counseling.9 He was ultimately counseled by Col. John A. Walker, Jr., Chief of the Department of Missile Training. "By this time," VanderMolen states in his affidavit to the district court, 5 my feelings had crystallized as a result of my research, counseling, and soul searching. . . . I told Col. Walker that I supported various concepts of nuclear strategy, except as they called for the use of nuclear weapons to kill as many people or to render uninhabitable as large an area as possible. I said that if I could be assured that the United States did not employ such a nuclear strategy most, if not all, of my qualms about serving as a Launch Control Officer would be eliminated. I also assured Col. Walker during this counseling session that regardless of what Col. Walker recommended or the ultimate outcome of my predicament, I would perform all my duties as an Air Force Officer to the very best of my ability.10 6 Col. Walker's Counseling Report of April 3, 1970, however, attributes to VanderMolen a slightly broader ground of opposition: 7 Lt. Vandermolen appears to be genuine in his belief that he does not believe he would be able to perform the Missile Launch Officer's tasks if required to launch missiles. He bases his belief on moral convictions against his taking a direct part in use of nuclear weapons; however, he did point out that he appreciates the status of our missiles as a deterrent force. Lt. Vandermolen indicated that he was not a volunteer for Missile Launch Officer duty and until attendance in Course 30BR1821G, Missile Launch Officer, WS-133A, did not realize what the Launch Officer duty entailed. Based on his ability, he should be able to perform in other career fields not related to the Human Reliability Program.11 8 On April 6, 1970, a Faculty Board was convened pursuant to the provisions of AFR 53-15 (including ATC Supp. 1, 15 January 1970)12 to consider VanderMolen's removal from the training course. The Board recommended VanderMolen's removal from the course under Air Force Manual (AFM) 35-99 (2 July 1965). AFM 35-99, the Human Reliability Program, establishes "the requirements and responsibilities for screening, selecting, and continuously evaluating all personnel who control, handle, (or) have access to . . . nuclear weapons . . . ."13 VanderMolen was the only witness in the Faculty Board proceeding. The Faculty Board recorded a summary of its proceedings that stated: 9 Lt. Vandermolen firmly expressed a "religious, moral" objection to the use of nuclear weapons, CB (chemical/biological) agents, or destruction of population centers. He felt he could successfully complete course 30BR1821G but could not perform any duty in the release of nuclear weapons or CB agents or be directly involved in causing the destruction of population centers. He felt he could perform effectively in his previous career field, intelligence. He felt no responsibility for any combat (possible or actual) usage of intelligence information processed by him.14 10 VanderMolen's later affidavit to the district court, however, states that, "I testified before the Board restating my personal, philosophical, moral, and religious difficulties with the use of nuclear weapons on civilians, exactly as I had stated these difficulties to Col. Walker."15 11 VanderMolen's description of the proceedings of the Faculty Board are undisputed: 12 A secretary was present at the Faculty Board to take notes; however, no verbatim transcript was compiled. During these proceedings I was never advised of the procedural protections of AFR 11-1, nor was I informed of any rights I might have had to such protection. Accordingly, I did not call witnesses on my behalf and did not contest the admissibility of evidence presented by the government. I was not represented by counsel during this hearing. Indeed, throughout the counseling sessions at the school, no one ever suggested that I should see a lawyer or hinted that I might need one. I did think briefly of consulting a lawyer on my own, but the aura of general informality and goodwill present throughout the entire counseling process at the school caused me to dismiss the idea. Furthermore, I felt no need to seek an attorney since Col. Walker had advised me that my removal from the school would not jeopardize my Air Force career, except that in the future I would be restricted from handling nuclear weapons.16 The Board decided that VanderMolen 13 should be disenrolled from training due to his expressed deficiency under AFM 35-99. He should not be considered for reinstatement in any career area governed by AFM 35-99. In the interest of economy, he should not be considered for further technical training but should be returned to his previous career field of intelligence.17 14 VanderMolen was accordingly assigned to the 66th Missile Squadron (SAC), 44th Strategic Missile Wing, South Dakota, where he was temporarily assigned as Squadron Executive Officer for the 28th Field Maintenance Squadron. He continued to perform so as to receive extremely favorable evaluation from his superior officer.18 15 Nevertheless, VanderMolen's Air Force career began to slide precipitously. Although VanderMolen had been scheduled for promotion to captain on April	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00223-CR ______________________________ ESSIE HOPKINS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court No. F-0362924-RN Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Essie Hopkins has appealed from his conviction following the final adjudication of his guilt. The trial court sentenced him to five years' imprisonment. Appointed counsel filed a brief in support of his motion to withdraw based on Anders. The brief contains a review of the record, along with his professional evaluation that there were no errors sufficient to support reversal, and he informed Hopkins of his right to examine the record and to file a pro se brief. No such brief has been filed. We have reviewed the brief and counsel's summary of the record, as well as the record itself. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988). We agree with counsel's assessment that there is no error presented that would support reversal. We affirm the judgment. Jack Carter Justice Date Submitted: June 10, 2004 Date Decided: June 15, 2004 Do Not Publish	{ "pile_set_name": "FreeLaw" }
64 Cal.App.4th 176 (1998) THE PEOPLE, Plaintiff and Respondent, v. KEVIN THIERRY, Defendant and Appellant. Docket No. B109477. Court of Appeals of California, Second District, Division Seven. May 26, 1998. 178 COUNSEL Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent. OPINION JOHNSON, J. Upon denial of his motion to suppress, appellant pleaded nolo contendere to one count of robbery in violation of Penal Code section 211 and on a special allegation pursuant to Penal Code section 12022.5, subdivision (a). The sole issue on appeal is whether the trial court erred in denying appellant's motion to suppress any photographs taken of appellant and any identifications made with those photographs following a purported illegal arrest. We conclude the taking of appellant's photograph was reasonable involving no exploitation of the alleged illegal arrest. We therefore affirm the judgment. FACTS AND PROCEEDINGS BELOW On November 29, 1995, Officer Jennifer Hickman of the Los Angeles Police Department was patrolling the area of Cadillac and Chariton in the City of Los Angeles. Detective Stanley Evans had informed Officer Hickman that appellant was wanted for robbery and he frequented the area of Garth and Cadillac. Officer Hickman observed appellant on the west side of Garth Street, just north of Cadillac, and took him into custody. Detective Evans was assigned to the investigation of multiple robberies in a five-block radius, including the robbery of Rashawn Tony (Mr. Tony). As part of the investigation of the robberies, Detective Evens spoke with Mr. Tony. Mr. Tony told Detective Evans that Dominique Gist (Gist) was the 179 person who robbed him. Gist was arrested and later interviewed by Detective Evans. Gist gave Detective Evans appellant's nickname and address and told Detective Evans appellant robbed Mr. Tony and also was involved in robberies at the gas station at La Cienega and Cadillac.[1] Detective Evans ran the description of the suspect to the robberies through the computer. This very general description was consistent with appellant's general description. The officers arrested appellant for the robbery of Mr. Tony based on the information Gist gave to Detective Evans. The day after appellant's arrest Detective Evans took appellant's picture. Detective Evans used this photo in a photographic lineup shown to Mr. Tony. Mr. Tony stated he knew appellant and appellant was not the person who robbed him. Detective Evans then showed the same photographic lineup to victims of other robberies. Charles Negethe and Manuel Ceja identified appellant as the perpetrator in their robberies. Appellant was charged with six counts of robbery and two counts of attempted robbery, none of them involving the Tony robbery for which he was initially arrested. After the trial court denied appellant's Penal Code section 1538.5 motion to suppress any photographs taken of appellant after his arrest and any identifications made with those photographs, appellant pled nolo contendre to a violation of Penal Code section 211 and on a special allegation pursuant to Penal Code section 12022.5, subdivision (a). The trial court sentenced appellant to the low term of 2 years for the Penal Code section 211 violation and the high term of 10 years on the special allegation for a total sentence of 12 years. DISCUSSION (1a) Appellant contends the trial court erred in denying his motion to suppress any photographs taken of him after his arrest in the Tony case and also any identifications made with those photographs. He contends Gist's statements and Detective Evans's corroboration were insufficient to establish probable cause to arrest him for the Tony robbery. We find it unnecessary to address appellant's probable cause argument, which indeed presents a close question. Even if that initial arrest violated appellant's Fourth Amendment rights, we conclude the identification evidence remains admissible against appellant in prosecutions for other crimes, such as the one to which he pled nolo contendere in this proceeding. 180 I. The "Fruit of the Poisonous Tree" Doctrine Does Not Require Suppression of Photo Identifications Based on Photographs Which Happen to Have Been Taken While a Defendant Was in Custody Under an Illegal Arrest. Appellant argues the identification evidence linking him to these other robberies must be excluded because they were the "fruit of the poisonous tree." According to this theory, the officers took photographs of him as a result of the arrest for the Tony robbery and then used those photographs to obtain identifications linking him to the other robberies. The Mr. Tony arrest was the "poisonous tree" and the photographs the first fruits and the victim's photo identifications the second crop of fruit from that infected tree. (2) In determining whether evidence is the "fruit of the poisonous tree" and therefore inadmissible the correct inquiry is "`"whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."'" (Krauss v. Superior Court (1971) 5 Cal.3d 418, 422 [96 Cal. Rptr. 455, 487 P.2d 1023]; Wong Sun v. United States (1963) 371 U.S. 471, 488 [83 S.Ct. 407, 417-418, 9 L.Ed.2d 441], quoting Maguire, Evidence of Guilt (1959) p. 221.) There are three recognized avenues for admitting the "fruit of a poisonous tree" despite its illegal origins: (1) The same evidence was discovered through an independent source not tainted by the poisonous tree. (2) The evidence was not found through a second untainted source but it should not be suppressed despite law enforcement's illegal acts because the same evidence would have been inevitably discovered through legal means. (The inevitable discovery rule is "a variation upon the `"independent source"' theory, `but it differs in that the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted source but instead whether evidence found because of a Fourth Amendment violation would inevitably have been discovered lawfully.' [Citations.]" (People v. Saam (1980) 106 Cal. App.3d 789, 797 [165 Cal. Rptr. 256]).) (3) The connection between the illegal source and the evidence is so attenuated it would serve no legitimate purpose to suppress the evidence. (See 5 LaFave, Search and Seizure (1996) § 11.4, pp. 234-253.) (1b) In People v. McInnis (1972) 6 Cal.3d 821 [100 Cal. Rptr. 618, 494 P.2d 690], the California Supreme Court applied the "fruit of the poisonous tree" doctrine to the admissibility of photographs taken while a defendant is under an illegal arrest. In McInnis, a store clerk and a pedestrian witnessed the defendant committing a liquor store robbery. Police officers later arrested and photographed defendant for an unrelated crime. The officers 181 showed this photograph to the witnesses from the liquor store robbery. From the photograph, they identified the defendant as the perpetrator of the robbery. The trial court refused to suppress the photograph despite the possible illegality of the arrest which resulted in the taking of that photograph. In affirming the judgment the Supreme Court majority reasoned the taking of a booking photograph was "standard police procedure [citation], bearing no relationship to the purpose or validity of the arrest or detention.... [T]he photos are kept in permanent files regardless of the eventual disposition of the case; indeed, thousands of persons ultimately found to be entirely innocent undoubtedly have their photographs ... on record with law enforcement agencies." (6 Cal.3d at pp. 825-826.) The McInnis majority opinion analogizes to the high court's earlier opinion in Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170 [89 Cal. Rptr. 731, 474 P.2d 683], where the court found the connection between an illegal arrest and the present crime was "pure happenstance." In Lockridge, the Pesce robbery remained unsolved until officers served an unlawful search warrant during the course of investigating crimes totally unrelated to the robbery. During that search, they discovered the Pesces' gun in the defendants' possession. In a later trial of the Pesce robbery case, the trial court suppressed the gun but allowed the Pesces to testify. This was not a case fitting easily the "independent source" or "inevitable discovery" rationales. Without the lead supplied by the gun found during the illegal search it seems improbable the police investigation would have connected the defendants with the Pesce robbery. So in that sense the prosecution of defendants for that crime and some of the evidence introduced against them was the "fruit of the poisonous tree." "Nevertheless," the Supreme Court held, "... we do not believe that the police connection of petitioners to the Pesce robbery through the illegal discovery of the gun is sufficient to characterize the Pesces' testimony as `come at by exploitation of that illegality.'" (Lockridge v. Superior Court, supra, 3 Cal.3d at p. 170, citing Wong Sun v. United States, supra, 371 U.S. 471, 488 [83 S.Ct. 407, 417-418].) The court reasoned "... it was pure happenstance that during the investigation of other crimes, the police came across the gun taken in the Pesce robbery." (	{ "pile_set_name": "FreeLaw" }
17 F.3d 222 Daniel McILWEE, Plaintiff-Appellant,v.ADM INDUSTRIES, INC., a foreign corporation, WilliamAnderson, individually and as an officer of Solar Hardware,and Wayne Anderson and Clifton Tucker, individually and asofficers of ADM Industries, Inc., Defendants-Appellees. No. 93-1674. United States Court of Appeals,Seventh Circuit. Argued Dec. 1, 1993.Decided Feb. 24, 1994. 1 Gregory P. Sujack (argued) and David F. Buysse, Garofalo, Hanson, Schreiber & Vandlik, Chicago, IL, for plaintiff-appellant. 2 Fern Bomchill and Ira J. Belcove (argued), Mayer, Brown & Platt, Chicago, IL, for defendants-appellees. 3 Before POSNER, Chief Circuit Judge, CUMMINGS, Circuit Judge, and CRABB, Chief District Judge.* 4 CRABB, Chief District Judge. 5 Daniel McIlwee sold his 60,780 shares in ADM Industries, Inc., for $4.00 a share and learned much later that William Anderson, Wayne Anderson, and Clifton Tucker had received a higher price of $8.00 a share. McIlwee brought this suit against ADM, Solar Hardware, and the individual defendants, contending that he would not have sold his shares for $4.00 had he known of the higher price paid for the other shares.1 He sued in federal district court in Illinois, although none of the defendants was a resident of Illinois or found therein, contending that the court had personal jurisdiction over the defendants because the individual defendants had committed tortious acts in Illinois by failing to disclose the price differential to McIlwee in telephone conversations they had with him when he was in Illinois. The district court dismissed the complaint against the individual defendants for lack of personal jurisdiction and McIlwee appealed. The district court also dismissed the complaint against ADM Industries and Solar Hardware because these defendants were never served properly, but McIlwee does not appeal that dismissal. We affirm the district court's dismissal of the individual defendants. 6 The district court found the facts relevant to the issue of personal jurisdiction from the complaint, McIlwee's affidavit, and uncontroverted averments in defendants' affidavits. See Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984). The parties do not contest the findings. In summary, they are as follows. In 1982, Enamel Products and Plating Company purchased ADM Industries' stock and other assets. Wayne Anderson and Clifton Tucker were officers and directors of ADM Industries, Inc., an Indiana corporation with its principal place of business in Indiana, and William Anderson was an officer of Solar Hardware, a Mississippi corporation wholly owned by ADM. Wayne Anderson and Tucker are Mississippi residents and William Anderson resides in Florida. (The district court did not find expressly that the individual defendants did not have other residences in Illinois but their affidavits establish that they did not.) McIlwee, a citizen of Illinois, owned 60,780 shares of ADM. He received a proxy statement and a notice of a shareholder meeting at which the sale of ADM to Enamel Products was to be addressed. At the meeting, the shareholders voted to approve the sale and to sell their shares for $4.00 a share. McIlwee voted in favor of the sale and sold his stock at the offered price. 7 In 1989, McIlwee learned that the individual defendants had received the equivalent of $8.00 a share from Enamel Products because they were paid additional sums known as "earn share." The amount of the earn share payments was based on the number of shares owned by each defendant. McIlwee alleged that had this fact been disclosed to him, he would not have sold his stock for $4.00 a share. He claimed damages in the amount of $243,120.00 plus interest. 8 During the pendency of the 1982 sale, McIlwee had conducted business with ADM subsidiaries. McIlwee discussed business matters and the stock sale with the individual defendants over the telephone during calls placed by McIlwee and by defendants. At no time did defendants divulge that they would be receiving more for their shares than McIlwee had been offered. OPINION 9 We review de novo the district court's legal conclusion that personal jurisdiction does not lie over the individual defendants in Illinois. Reed v. International Union of Auto., Aerospace, & Agric. Implement Workers, Local Union No. 663, 945 F.2d 198, 201 (7th Cir.1991). A federal district court sitting in diversity in Illinois has jurisdiction over a non-resident, non-consenting defendant if an Illinois state court would have jurisdiction over that party. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir.1990). The burden of demonstrating the existence of jurisdiction rests on the plaintiff. Nelson, 717 F.2d at 1123. 10 The threshold step in the inquiry is to determine whether plaintiff has alleged that defendants committed one of the acts enumerated in the state's long-arm statute. FMC Corp., 892 F.2d at 1310. Both on appeal and below, McIlwee has based his contention that Illinois courts have jurisdiction over the defendants on the "tortious act" provision of the Illinois long-arm statute, 735 ILCS 5/2-209(a)(2) (formerly Ill.Rev.Stat. ch. 110, Sec. 2-209(a)(2)). This provision states in relevant part: 11 (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, ... to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts: 12 .... 13 (2) The commission of a tortious act within this State. 14 Illinois courts have held that to establish that a defendant committed a tortious act in Illinois, 15 the plaintiff must allege that the defendant performed an act or omission which caused an injury in Illinois, and that the act or omission was tortious in nature. Alternatively, the requirements of the tortious act provision ... may be met if plaintiff demonstrates an economic injury in Illinois coupled with activity indicating an intent to affect Illinois interests. 16 Arthur Young & Co. v. Bremer, 197 Ill.App.3d 30, 36, 143 Ill.Dec. 736, 741, 554 N.E.2d 671, 676 (1st Dist.1990) (citations omitted). It is well established that fraudulent "mailings or telephone calls into Illinois by a non-resident, when coupled with an intent to affect Illinois interests, are a sufficient basis for jurisdiction" under the tortious acts provision of the long-arm statute. FMC Corp., 892 F.2d at 1313; see also Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 282 (7th Cir.1990); Club Assistance Program, Inc. v. Zukerman, 594 F.Supp. 341, 346-47 (N.D.Ill.1984). 17 The question in this case is whether it is sufficient for jurisdictional purposes merely to allege that during telephone conversations directed at Illinois, defendants failed to disclose information they had a duty to disclose. We conclude that more is required: plaintiff must allege facts showing an intent to affect Illinois interests. 18 McIlwee alleges that the Andersons and Tucker had a fiduciary duty to disclose the earn share payments, that they failed to do so during telephone conversations they had with McIlwee, and that their failure caused McIlwee a financial loss. McIlwee maintains that this is enough to establish that the allegedly fraudulent concealment was a tort committed in Illinois within the meaning of the tortious act provision because it demonstrates that during communications directed at Illinois defendants were afforded an opportunity to disclose information they had an obligation to disclose. McIlwee's "opportunity to disclose" theory of jurisdiction proves too much. Defendants had the opportunity to disclose at all times, not just during telephone conversations with McIlwee. If defendants were withholding information while they were on the phone with McIlwee, they were always withholding information. Nothing stopped them at any time from using any method of communication to divulge the earn share program to ADM shareholders. 19 If McIlwee is correct that the existence of an opportunity to disclose is dispositive, personal jurisdiction would lie in Illinois regardless whether defendants had any connection with the state as long as defendants breached a duty to disclose and an Illinois resident suffered a financial injury. That McIlwee cannot be correct is clear from the Illinois Supreme Court's explicit rejection of the contention that the tortious act provision of the long-arm statute applies to non-resident defendants whose only contact with Illinois is allegedly causing economic	{ "pile_set_name": "FreeLaw" }

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