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237 F.2d 493
UNITED STATES of America, Plaintiff-Appellee,v.Lyman B. JONES, Blanchel A. Murrelle, David J. Maxin, Miltong. Severinghaus, Earl C. Raphael, William F.Robichaud and Eugene R. Flitcraft,Defendants-Appellants.
Nos. 11650-11652, 11658.
United States Court of Appeals Seventh Circuit.
Oct. 23, 1956.Rehearing Denied Nov. 15, 1956.
Robert C. Eardley and Daniel F. Ward, Chicago, Ill., for Milton G. Severinghaus.
John McMahon Murphy and Ralph J. Gutgsell, Chicago, Ill., for Lyman B. Jones, Blanchel A. Murrelle and David J. Maxin.
Eugene T. Devitt, Chicago, Ill., for Earl C. Raphael, William F. Robichaud and Eugene R. Flitcraft.
Robert Tieken, U.S. Atty., Edward J. Calihan, Jr., Asst. U.S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U.S. Atty., Chicago, Ill., of counsel, for appellee.
Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
1
Defendants have appealed from a judgment of the district court entered upon a jury verdict finding them guilty on eleven counts of an indictment charging defendants (and other persons1 and certain corporations)2 with a scheme or artifice of using the mail to defraud, 18 U.S.C.A. § 1341, and one count thereof charging a conspiracy to violate § 1341, 18 U.S.C.A. § 371.
2
Defendants, now appealing, pleaded not guilty. At the close of the government's case and again at the close of all the evidence, each of these defendants made a motion for a judgment of acquittal, which motions were denied. Their motions for a new trial were also denied. They were sentenced to the custody of the Attorney General for specified periods of time.
3
In brief, the conspiracy count charges that the defendants (including those who are now appellants), continuously from on or about September 1, 1951 to the date of the indictment (April 27, 1954) conspired to violate § 1341, 18 U.S.C.A., and that it was the intention of the conspiracy and of the said defendants to use the United States mails in furtherance of a scheme and artifice to defraud. The count sets forth twenty-three overt acts occurring in the period commencing on or about November 17, 1951 and ending June 27, 1953.
4
As to the conspiracy count, it is the government's theory that appellants entered the conspiracy after it had been formed and before its final completion to assist in carrying out the conspiracy, and thereby were a part of such conspiracy even though they were not members thereof at the time of its inception. The court instructed the jury that that is the law. Said defendants do not in this court disagree with that statement of law.
5
Among the salient facts as established by the evidence, viewed in its aspects most favorable to the government, United States v. Marachowsky, 7 Cir., 201 F.2d 5, at page 18, are those which we now set forth.
6
Late in the year 1951, several of the defendants (not any of the persons here involved) conceived the idea that a device could be manufactured, which would, when installed upon a television set, automatically activate said television set for the first four minutes of every half hour. The plan was based on the assumption that someone who watched the program for four minutes might be induced to place a coin into a coin slot installed on said television set, and thus see the balance of the program. This device will hereinafter be referred to as the 'Previewer'.
7
The defendants thereupon conferred with the Zenith Electric Company, a manufacturer of a clock-operated switch, of such type as is normally used in turning hall lights on and off in apartment buildings.
8
Immediately upon the formulation of this idea, Thompson, one of the originators of the scheme, began to set up a sales operation and the three corporate defendants were organized.
9
Preview was the parent corporation, and was principally concerned with the sales and installations of the television sets with Previewer attached thereto. The second corporation was AITM, which purported to be a national organization of the leading television manufacturers of the United States. AITM was almost completely fraudulent for the following reasons: First, it had no nationally known television manufacturers belonging thereto. In fact, throughout the duration of its entire existence, the only television manufacturer which later became a member was the Transvision Television Company, which contracted to manufacture the television sets which were ultimately sold and installed by Preview. These sets were manufactured with a coin device attachment, and were wired to accept the installation of Previewers. All AITM correspondence was carried on in the office of Preview. Its Washington office was, for the first seven or eight months of its existence, a letter drop set up through the employment of a secretarial service to mail out literature prepared in Chicago, so that the envelopes bore a Washington postmark. All incoming mail to AITM in Washington was forwarded to Chicago for reply. AITM, according to its correspondence, posed as a watchdog of the entire television industry, which had caused the organization and licensing of Preview to conduct the electronic Previewer program.
10
The United States Sign Corporation was the third organization. It was designed to sell to motel owners and operators, for the sum of approximately $395, an electric sign which actually cost about $97.50, and which sign advertised the presence of the Preview television system in the motel.
11
The salesmen first contacted the motel operators and owners, who had previously been advised that their motels had been selected to have the Previewer installed free of charge to them, and secured a lease from such motel owners and operators, permitting the installation of the Previewers; and at the same time they sold the motel owners and operators the electric sign. These leases were turned over to the defendant Hantover. The cost of securing such leases was borne through the profit made on the sale of the signs. These leases which Hantover acquired without any apparent consideration were subsequently carried on the Preview books and in its financial statement as capitalization of $125,000. This financial statement included a fictitious $50,000 bank deposit. The only capital ever invested in Preview was $1,000.
12
Not included in the indictment is an organization known as Credit Clearing House which purported to be a responsible financial institution which checked the status of the prospective investor. Before any inquiry could be made by him as to the financial condition of Preview, he received a letter on AITM stationery referring to credit institutions said to have investigated Preview and to have found it to be in good financial conditions.
13
With these basic organizations set up, the investors were sold television sets with varying statements as to the status of the Previewer, which was never fully developed. On October 1, 1952 there was only one Previewer set working, and that one was in the exhibition room in the Chicago office.
14
While the investors paid $250 for a Previewer, the cost of this device was $25 for a master station and $10 for each substation; in other words, an investor who bought eight sets would pay $2,000 for the Previewer. The cost of the device was $25, plus $10 for each set, or $105.
15
The television sets were sold for approximately $550. These sets were purchased from Transvision at a cost of $149 initially, and later $190, per set.
16
As soon as the program got under way, defendant McReady posed for a picture which purportedly demonstrated the 'New Electronic Device' (the Previewer). He was described in the print accompanying the picture as the inventor of the device, 'his million dollar development'. He was selected because he was the most photogenic. The photograph was taken in the workshop of a television repair store in Chicago. The device upon which one of his hands rested was an admiral television set with the bottom of the chassis facing the camera, showing wires, resistors and other component parts. McReady was, in fact, an office employee, known as 'tear sheet McReady', so-called because of the printing and use of the picture and accompanying printed matter which was sent out in the mail and was designed to appear as a sheet torn from some mechanical-scientific type of magazine.
17
Numerous witnesses testified as to the inferior quality of the television sets sold by Preview, and nearly all witnesses testified that they had not received their Previewers.
18
The defendants contend that the evidence of their participation in the above-described venture did not constitute proof that they knowingly participated therein with knowledge of such unlawful agreement. Severinghaus contends that there is no direct evidence that he knowingly adopted any scheme to defraud.
19
Some of the defendants testified in their own behalf and some did not.
20
The defendants do not deny the existence of a scheme to defraud. They say, however, that they were not members in, nor a part of, this tremendous swindle, which involved sales of $ | {
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-65,220-02
EX PARTE BILLY MAX COLLINS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F7907-B IN THE 8th DISTRICT COURT
FROM FRANKLIN COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty (1) to driving while
intoxicated and was sentenced to eight years' imprisonment. He did not appeal his conviction.
Applicant contends that his plea was involuntary because he was giving an improper
admonishment as to the range of punishment. Applicant alleges he was admonished for a second
degree felony range of punishment when he was indicted for a third degree felony without any
alleged enhancements. Applicant also contends that his counsel was ineffective for failing to
investigate the facts of the case, failing to inform Applicant of the proper range of punishment, and
failing to inform Applicant of his rights of appeal.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these
circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court
may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the
trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact and conclusions of law in regard to Applicant's
claim that his plea was involuntary and his attorney was ineffective. The trial court shall make
findings as to what admonishments were given to Applicant, including which range of punishment,
and why those admonishments were given. The trial court shall make findings of fact as to whether
the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient
performance prejudiced Applicant. The trial court shall make findings as to whether or not counsel
informed Applicant of his appellate rights. The trial court shall also make any other findings of fact
and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim
for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or
deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall
be returned to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court.
Filed: February 28, 2007
Do not publish
1. The judgment sent to this Court by Applicant indicates that he pleaded not guilty, but
from the rest of the paperwork, it appears that Applicant pleaded guilty.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00148-CV
TXU Generation Company, L.P.; TXU Portfolio Management Company, L.P.; Oncor
Electric Delivery Company; Coalition of Wholesale Electric Market Participants;
Occidental Chemical Corporation; Occidental Permian, Ltd.; Occidental
Power Marketing, L.P.; Occidental Power Services, Inc.; Oxy
Vinyls, L.P.; Ingleside Cogeneration, L.P.; and
Coral Power, L.L.C., Appellants
v.
Public Utility Commission of Texas, Appellee
DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS
D I S S E N T I N G O P I N I O N
Because I believe that the Public Utility Commission's rule, 29 Tex. Reg. 1899
(2004) (to be codified at 16 Tex. Admin. Code § 25.503 (Pub. Util. Comm'n)) (Wholesale Market
Oversight Rule (WMO Rule)), exceeds the Commission's statutory authority, I respectfully dissent.
The defects in rule 25.503 begin with the absence of an intent
requirement--participants in the deregulated wholesale electricity market are at peril of presumed
liability based solely on the effects of their competitive conduct, even if inadvertent. 16 Tex. Admin.
Code § 25.503(g). The core concepts found in rule 25.503 are derived from section 39.157 of
PURA. See 29 Tex. Reg. 1905. Section 39.157 requires the Commission to "monitor market
power" and maintain oversight over "market power abuses," defined as "practices by persons
possessing market power that are unreasonably discriminatory or tend to unreasonably restrict,
impair, or reduce the level of competition, including practices that tie unregulated products or
services to regulated products or services or unreasonably discriminate in the provision of regulated
services," and "include predatory pricing, withholding of production, precluding entry, and
collusion." Tex. Util. Code Ann. § 39.157(a) (West Supp. 2004-05). These are familiar antitrust
concepts. See, e.g., Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, 124 S. Ct.
872, 878-79 (2004); see also Tex. Util. Code Ann. § 39.157(a) (clarifying that subsection did not
affect enforcement of state or federal antitrust laws). The code construction act thus compels us to
look to antitrust law when construing section 39.157. Tex. Govt. Code Ann. § 311.011(b) (West
2005) ("[w]ords and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly."). (1)
As the majority concedes, section 39.157 implies an intent requirement for proving
"market power abuse" under that provision because it employs antitrust concepts that carry with
them the implication of an intent element. Slip op. at 14 ("If the authority for this rule was derived
only from section 39.157(a) governing 'market power abuse,' we would agree that an element of
intent is implied."). In adopting a rule that implements the requirements of section 39.157 yet omits
the intent requirement implicit in its terms, the Commission exceeds its statutory authority. See State
v. Public Util. Comm'n, 131 S.W.3d 314, 321 (Tex. App.--Austin 2004, pet. denied) (court to
consider whether rule: (1) contravenes specific statutory language; (2) runs counter to general
objectives of statute; or (3) imposes additional burdens, conditions, or restrictions in excess of or
inconsistent with relevant statutory provisions).
By departing from the requirements of section 39.157, rule 25.503 distorts the
legislature's careful balancing of the dual policy goals reflected in the statute, encouraging the
innovation and risk-taking of competition while protecting the integrity of market mechanisms. See
Law Offices of Curtis V. Trinko, 124 S. Ct. at 878-79. Indeed, both chapter 39 of PURA as a whole
and the Texas Free Enterprise and Antitrust Act seek to balance such interests. Compare Tex. Util.
Code Ann. § 39.001(a) (West Supp. 2004-05), with Tex. Bus. & Com. Code Ann. § 15.04 (West
2002); see also Tex. Gov't Code Ann. § 311.023(4) (West 2005) (courts may consider "common law
or former statutory provisions, including laws on the same or similar subjects"). The term "market
power abuse" in section 39.157, like similar standards employed in the antitrust context, carries with
it an unmistakable legislative intent to proscribe a type of conduct only where intent can be proven.
See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 (1975); see also United States v. Grinnell Corp.,
384 U.S. 563, 570-71 (1966). Absent an intent requirement, "market power abuse" is rather unclear. (2)
The market participants go as far as to urge that the term is unconstitutionally vague, and they are
not far off the mark, though we need not reach that issue. The majority, in fact, concedes that "[t]he
lack of a well defined concept of market power does produce some uncertainty in the enforcement
of the rule," slip. op. at 32, but dismisses its significance.
In the antitrust context, the Texas Supreme Court has cautioned that "a vague
standard [of predatory pricing] has a chilling effect on business. Business must be able to determine
prospectively what price it may legally charge." Caller-Times Pub. Co. v. Triad Comm., Inc., 826
S.W.2d 576, 581 (Tex. 1992). Accordingly, the court rejected a subjective intent standard because
"a seller cannot predict where it may legally set a price" and "this standard creates a lack of
predictability in the law which punishes those who would engage in vigorous competition." Id. Rule
25.503's "market power abuse" standard suffers similar defects: a market participant cannot predict
what competitive conduct on its part could give rise to effects that the Commission deems "abuse"
or "withholding." In addition, the enumerated list of prohibited activities is not even exclusive. See
16 Tex. Admin. Code § 25.503(g) (term "prohibited activity" includes, but is not limited to,
enumerated "acts and practices"). Without the balancing factor of an intent requirement, these
features of rule 25.503 chill competition in a manner inconsistent with the legislature's intent. (3)
Further compounding the problem is the burden of proof: market participants are
presumed to have violated rule 25.503 if the effect of their competitive activities, even inadvertently,
is whatever may constitute "market power abuse." See id. Subsection (h) excludes from "prohibited
activity" conduct by market participants that "served a legitimate business purpose consistent with
prices set by competitive market forces; and that it did not know, and could not reasonably
anticipate, that its actions would inflate prices, adversely affect . . . reliability [or] proper
accounting." However, this affirmative "defense" applies only "if the market entity establishes" it.
Id. § 25.503(h). The significance of the placement of the burden of proof cannot be underestimated,
especially in an administrative proceeding subject only to substantial-evidence review. See
Richardson v. City of Pasadena, 513 S.W.2d 1, 3 (Tex. 1974). (4)
The legislature's philosophical foundation underlying chapter 39 was that "the
production and sale of electricity is not a monopoly warranting regulation of rates, operations, and
services and that the public interest in competitive electric markets requires that, except for
transmission and distribution services and for the recovery of stranded costs, electric services and
their prices should be determined by customer choices and the normal forces of competition." Tex.
Util. Code Ann § 39.001(a). To this end, the legislature mandated that regulatory authorities "shall
authorize or order competitive rather than regulatory methods to achieve the goals of the chapter to
the greatest extent feasible and shall adopt rules and orders that are practical and limited so as to
impose the least impact on competition." Id. § 39.001(d). In my view, the Commission, in rule
25.503, has strayed from these principles, as well as from the language and intent of section 39.157
in particular. See Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 6 | {
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417 U.S. 270 (1974)
VERMONT
v.
NEW YORK ET AL.
No. 50, Orig.
Supreme Court of United States.
Decided June 3, 1974.
ON BILL OF COMPLAINT.
PER CURIAM.
On April 24, 1972, after oral argument, we granted Vermont's motion to file a bill complaint against New York and the International Paper Co. which alleged that as a result of discharge of wastes, largely from International's mills, that company and New York are responsible for a sludge bed in Lake Champlain and Ticonderoga Creek that has polluted the water, impeded navigation, and constituted a public nuisance. 406 U. S. 186. Issue was joined and the Honorable R. Ammi Cutter was appointed Special Master. 408 U. S. 917. Later the United States sought leave to intervene, stating it had numerous interests in these waters under federal statutes. We referred the motion to the Special Master, 409 U. S. 1103, who granted intervention. During the year 1973, 75 days of testimony were received, Vermont presenting *271 substantially all of its direct case. New York has put in about half of its direct case. Neither International nor the United States up to now has offered any evidence.
The Report of the Special Master dated April 24, 1974, states that he suggested that the parties might adjust their differences less expensively than by litigation. He reports that the United States succeeded in bringing about serious negotiations which resulted in a settlement that the Special Master commends to the Court for approval. The proposed settlement is represented by a Proposed Consent Decree and a stipulation that the Decree may be entered by the Court without further argument or hearing.
The settlement "contemplates that no findings shall be made" and it provides that "it shall not constitute an adjudication on any issue of fact or law, or evidence, or any admission by any party with respect to any such issue." The Special Master reports, "In my opinion, no settlement would be possible if this report were to contain any findings." He adds that in his opinion "it reaches a reasonable result, consistent with the public interest, and acceptable on the basis of the evidence thus far presented."
By Art. I of the Decree a special South Lake Master[1] is to be appointed with all the usual powers of Special Masters named by us. He is to resolve matters of controversy between the parties after they have exhausted all administrative and other remedies (except judicial review). When he has decided the matter, he will file his recommendation with the Clerk of the Court. Unless any party "aggrieved" files exceptions with the Court within 30 days, it becomes a decision of the Court "unless *272 disapproved by the court." Proposed Decree, Schedule 1, § 1.6. But nothing in Schedule 1 limits any regulatory or law enforcement authority "with lawful jurisdiction independently to carry out or enforce applicable law and regulations."
After nine years from our approval of the Decree, the South Lake Master on application for modification of it may submit his recommendations to the Court without prior exhaustion of administrative remedies before the federal and New York authorities or after such exhaustion, as he chooses.
The South Lake Master may order International to permit inspection of Old Mill[2] or New Mill[3] on showing of good cause. Schedule 1, § 1.7.
Schedule 2 of the Proposed Decree provides for grading and covering the bark pile near Old Mill and for lowering the water level in an adjacent pond to reduce the drainage of the bark pile into Ticonderoga or tributaries.
Schedule 3 prescribes methods of control of malodorous air emissions from New Mill; and Schedule 1, § 1.5 (b), provides that notwithstanding the provisions of Schedule 3, if, after November 1, 1975, objectionable odors attributable to New Mill are detected in Vermont "during a significant period of time," the South Lake Master may recommend "other or further action or relief."
Within 30 days after approval of the Proposed Decree, International shall submit an emergency report "for a conceptual plan" to modify the air emission controls specified in Schedule 3 and, if approved by New York, the new equipment and materials for the facilities shall be completed and in operation no later than November 1, 1975. Schedule 3, § 3.2 (c) (7).
*273 Schedule 3, § 3.3, states the volume of Total Reduced Sulfur (TRS) from International's "recovery boiler" once the Proposed Decree is approved. Section 3.4 (a) states the standard for emissions of TRS from the lime kiln and § 3.4 (b), the amount of sodium hydroxide in the scrubbing solution in the lime kiln scrubber.
Schedule 4 covers the water discharge from New Mill. It specifies in § 4.1 (a) that the amount of BOD[5][4] in the waste water will not exceed 4400 pounds per day as a monthly average. Section 4.1 (b) specifies the maximum total phosphorus in the process waste-water effluent. Section 4.2 provides that the effluent will be considered toxic, if over a 96-hour period, 20% of the test fish (yellow perch) fail to survive in a solution composed of 65% process waste-water effluent and 35% Lake Champlain water.
Sections 4.3 and 4.4 provide clinical and other water tests for International to make at stated intervals.
Appendix A "delivered pursuant to the command of the Supreme Court of the United States" is a release of International by Vermont of all damages past, present, and future caused (1) by the accumulation of sediment in Ticonderoga Creek and the Ticonderoga Bay area of the lake; (2) by the discharge of waters from Old Mill prior to the date of entry of the decree; (3) by air emissions from Old Mill prior to such date; and (4) by air emissions from New Mill prior to that date.
Appendix B states the position of the United States that it is not in the public interest to remove the sludge deposits and that dredging them is not justified.
Appendix C is a release of International by the United States from all liability for the accumulation of sediment *274 in Ticonderoga Creek and the Ticonderoga Bay area because of past waste discharges, save for costs arising out of remedial action taken as a consequence of "the needs of anchorage or navigation."
The Special Master has done a very difficult task well and with distinction; we are indeed grateful for the professional services he has rendered. But we have concluded not to approve the Proposed Decree or appoint a South Lake Master.
I
In Wisconsin v. Illinois, 281 U. S. 696, the Court on the report of a Special Master enjoined the Sanitary District of Chicago from withdrawing through the Chicago drainage canal more than a stated number of cubic feet of water per second. That was on April 21, 1930. On May 22, 1933, on application of the States for a "commissioner or special officer" to execute the decree, the Court ordered Illinois to take certain steps respecting the diversion, but it denied the request to appoint the commissioner. 289 U. S. 710, 711.
Wyoming v. Colorado, 259 U. S. 419, 260 U. S. 1, involved an allocation of the waters of the Laramie River. The parties were once more before the Court in 1936, 298 U. S. 573. This time the Court entered an injunction against continuing diversions contrary to the prior decrees, id., at 582-583. The Court refused to order measuring devices at places of diversion or to appoint a water master to keep the records, the Court saying, "While the problem of measuring and recording the diversions is a difficult one, we entertain the hope that the two States will by cooperative efforts accomplish a satisfactory solution of it." Id., at 586. In time the two States, policing themselves, resolved the controversy, 309 U. S. 572.
We noted in Nebraska v. Wyoming, 325 U. S. 589, 616, *275 that continuing Court supervision over decrees of equitable apportionment of waters was undesirable.
New Jersey v. New York, 283 U. S. 805, is not an exception. It involved a dispute between New Jersey, New York, New York City, and Pennsylvania over the waters of the Delaware River. The decree was an equitable apportionment of the water coupled with protective provisions, first, for a sewage disposal plant at Port Jervis, New York, that met prescribed cleansing standards; second, the banning of the discharge of untreated industrial wastes into the Delaware and Neversink Rivers; and third, the treatment of industrial wastes practically to free them "from suspended matter and [to render them] nonputrescent." Ibid. That decree, entered May 25, 1931, was modified June 7, 1954, 347 U. S. 995, when a Special Master's Report was approved. The prior equitable apportionment was altered, and new and somewhat different formulae to measure and control the diversions were provided. A River Master was to be selected by the Chief Hydraulic engineer of the U. S. Geological Survey to administer the decree. Id., at 1002. He was authorized to measure the actual diversions, ibid., compile data, collect and correlate stream-flow gauging, make periodic reports, and make designated changes in the volume of daily releases, id., at 1003.
But it is rare case where we have appointed a Water Master. The one appointed in New Jersey v. New York was given only ministerial acts to perform, such as reading gauges and measuring the flow. In that case (1) the | {
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923 So.2d 507 (2006)
GURIDI v. STATE.
No. 3D05-2906.
District Court of Appeal of Florida, Third District.
January 25, 2006.
Decision without published opinion. Affirmed.
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104 F.3d 867
154 L.R.R.M. (BNA) 2212, 133 Lab.Cas. P 11,757
EVERGREEN HEALTHCARE, INC., d/b/a Willow Ridge LivingCenter, Petitioner/Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 95-6039, 95-6193.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 3, 1996.Decided Jan. 17, 1997.
David W. Miller (argued and briefed), Todd M. Nierman, Baker & Daniels, Indianapolis, IN, for petitioner/cross-respondent.
Aileen A. Armstrong, Deputy Associate General Counsel, Charles P. Donnelly, Jr. (briefed), William M. Bernstein, Steven F. Rappaport (argued), N.L.R.B., Appellate Court Branch, Washington, DC, for respondent cross-petitioner.
Before: KENNEDY, JONES, and DAUGHTREY, Circuit Judges.
KENNEDY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. JONES, J. (pp. 879-880), delivered a separate opinion concurring in part and dissenting in part.
KENNEDY, Circuit Judge.
1
Petitioner, Evergreen Healthcare, Inc., seeks review of a National Labor Relations Board supplemental decision and order finding Evergreen Healthcare committed unfair labor practices in violation of Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). The National Labor Relations Board cross-petitions for enforcement of its order. For the reasons set forth below, we GRANT the petition for review and DENY the Board's cross-application for enforcement.
I.
2
Evergreen Healthcare, Inc. operates Willow Ridge Living Center, a long-term care nursing facility in Fort Wayne, Indiana. Willow Ridge employs a non-supervisory staff totaling fifty-five employees. The non-supervisory staff consists of nurse aides, dietary aides, housekeeping aides, and activity aides; the non-supervisory staff are supervised by seventeen licensed and/or registered nurses.1
3
In the Spring of 1990, Lois Dibble, a supervisor employed at Willow Ridge, contacted the President of District 1199 of the Indiana/Iowa Union of Hospital & Health Care Employees, SEIU, AFL-CIO ("Union") and commenced an organizational effort among Willow Ridge employees in support of Union 1199. Dibble met with Alice Bush, the President of the Union, in April, 1990 to discuss the structure of Willow Ridge and the process of unionizing. The same month, Dibble and Aaron Shultz, also a supervisor, met with Bush and discussed Willow Ridge employees' wages, benefits, and job security.
4
Shortly after these two meetings with Bush, Dibble and Shultz were terminated. Dibble was terminated on April 25, 1990; Shultz was discharged on May 31, 1990.2 On June 11, 1990, the Union filed an unfair labor practice charge with the National Labor Relations Board charging that the discharges of Dibble and Shultz were unlawful.3
5
In early June, 1990, Bush assembled an organizing committee consisting of supervisory and non-supervisory employees to assist in the election of the Union by the forty-eight member bargaining unit. The supervisory members of the committee were Connie Ayres, Nancy Jehl, Brenda Hemrick, and Dawn Barton. Approximately seventeen non-supervisory employees were members of the committee. Each member of the committee was given a list of employees to whom they were to give information about the campaign.
6
Beginning in June, 1990, the Union held regular campaign meetings to garner support among the Willow Ridge employees; nine of the ten to eleven meetings were held at supervisors' homes. Eight of these meetings were held at the home of Shultz and Ayres despite Schultz's discharge in May, 1990. One meeting was held at Hemrick's home. During these organizational meetings, Bush instructed the committee on methods of getting employees interested in the Union 1199; she suggested the committee encourage employees to attend meetings, make telephone calls and visits to employees' homes, and engage in discussions during work breaks. These organizational meetings took place through election day on July 26, 1990.
7
Also in early June, 1990, the committee engaged in an effort to accumulate authorization cards for the Union. Several non-supervisory aides signed cards at the home of Ayres and Shultz while Ayres and Jehl were present. To garner authorization cards from employees who did not sign cards at Ayres' home, Shultz made housecalls to employees along with a Union official and other employees. Dibble, as well, made housecalls to aides. During one housecall to Nurse Aide Bertha Morgan by Dibble and Shultz, Morgan refused to sign an authorization card. Jehl telephoned Morgan asking "in a very rude voice ... are you going to sign that card or are you not." Morgan answered that she "did not know," to which Jehl responded, "[Jehl and other supervisors] [will] be over [your] house later on that evening." When Jehl and Hemrick arrived at Morgan's house that evening, Morgan signed the card. During this card "blitz," Ayres and Hemrick, in particular, were widely recognized by the employees as leading supporters of Union 1199.
8
On June 5, 1990, Bush, Shultz, Ayres, Hemrick, Jehl, Barton, and approximately twenty to twenty-five employees attended a meeting at Willow Ridge. At that meeting Hemrick announced to Willow Ridge Administrator Rick Oros that Union 1199 sought to be the collective bargaining agent for supervisory and non-supervisory staff at Willow Ridge.
9
From early June until the election, on July 26, 1990, the committee engaged in several other activities to garner support for the Union. For example, Bush furnished campaign buttons to Ayres, Jehl, Hemrick, and Barton to distribute to employees. Ayres, Jehl, Hemrick, and Barton wore their own campaign buttons to work on several occasions and Ayres distributed buttons to approximately seven non-supervisory employees. When Ayres offered buttons to employees, the employees understood that Ayres intended that they be worn. Nurse Aide Jacqueline Drake testified that she did not want to wear a campaign button but she accepted one to "get them off my back." Ayres handed a button to Nurse Aide Steve White and "told him to wear it and help boost the union." Jehl asked one nurse aide why she was not wearing a campaign button.
10
During the campaigning, several of the supervisors told non-supervisory staff that supporting the Union would result in various benefits to the nurse aides. For example, Ayres told employees that a vote for 1199 would result in "better wages, benefits, and more people to staff the facility," and "the way to get increased wages and improved benefits with more insurance benefits" was to vote for 1199. Ayres also announced that supporting 1199 "would [result in] better staffing" for employees. Supervisor Jehl told several employees that if they voted for the Union they would get better wages, better benefits, better working conditions and more staffing. Jehl solicited an authorization card from one non-supervisory employee while informing her that the Union could get the employees better wages and benefits.
11
Additionally, several supervisory nurses, including Ayres, Jehl, Hemrick, and Barton, distributed Union literature to non-supervisory employees at Willow Ridge. On one occasion, Ayres distributed literature to as many as twelve non-supervisory employees outside the entrance to the facility. While the literature was handed out, Union President Bush stood across the street and photographed the distribution. Ayres and Hemrick distributed literature on several other occasions inside Willow Ridge.
12
During the course of the campaign, the organizing committee sought the attendance of non-supervisory employees at campaign meetings. These meetings were attended by Ayres, Jehl, Dibble Shultz, Hemrick, and Barton. Hemrick, Ayres, and Jehl personally extended invitations to several nursing aides. On at least two occasions, members of the organizing committee offered nurse aides transportation to meetings if they wanted to attend. Approximately ten meetings were held prior to the election. The majority of these meetings were held at the home of Ayres and Shultz. During the meetings, Jehl and Ayres were particularly vocal in their support of Union 1199.
13
On the day of the election, the organizing committee made an effort to learn which employees had voted and how they voted. For instance, Jehl asked one dietary aide if he had voted yet. Similarly, Ayres asked a nurse aide if she had voted for the Union. When she asked, Ayres noted, "we [would] have a lot of benefits if [you] would vote for the union." The nurse aide, in response, testified that she "didn't want to get mixed up in [things] like this because the only reason I went | {
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112 Cal.App.3d 418 (1980)
169 Cal. Rptr. 333
THE PEOPLE, Plaintiff and Respondent,
v.
LAWRENCE SINGLETON, Defendant and Appellant.
Docket No. 11318.
Court of Appeals of California, Fourth District, Division One.
November 20, 1980.
*420 COUNSEL
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Handy Horiye, Deputy State Public Defender, and Christopher Blake, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Harley D. Mayfield and Jay M. Bloom, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LORD, J.[*]
In October 1978, the Stanislaus County Grand Jury returned an indictment charging Singleton with these offenses: Count I, forcible rape (Pen. Code,[1] § 261, subd. 2); count II, forcible oral copulation (§ 288a, subd. (c)); count III, kidnaping (§ 207); count IV, sodomy (§ 286, subd. (c)), count V, forcible oral copulation (§ 288a, subd. (c)); count VI, mayhem (§ 203); and count VII, attempted murder *421 (§§ 664, 187). The indictment also alleged that Singleton used a deadly weapon in committing the offenses charged in counts III, VI, and VII, and inflicted great bodily injury in committing the offenses charged in counts III and VII.
A plea of not guilty was entered to all counts. Because of the publicity attendant the case, a change of venue was granted to San Diego County. The trial resulted in a conviction in March 1979 on all counts. The jury found Singleton did not use a deadly weapon or inflict great bodily injury in the kidnaping but did use a deadly weapon in the commission of mayhem and attempted murder and also inflicted great bodily injury in the attempted murder. The attempted murder was found to be of the first degree.
In April 1979, Singleton's motion for referral as a mentally disordered sex offender under Welfare and Institutions Code section 6300 et seq. was denied. Thereupon he was sentenced to a total of fourteen and one-third years in prison as follows: Count VII, attempted murder, ten years, including six years for the offense, one year for the use of a weapon and three years for the infliction of great bodily injury; count I, rape, one and one-third years, consecutively; counts II and V, oral copulation, consecutive terms of one year each; count IV, sodomy, a consecutive term of one year. Sentences imposed on count VI, mayhem, and count III, kidnaping, were stayed pending completion of the sentences on the other counts. Singleton was credited with 225 days calculated upon 193 actual days' credit.
At trial the evidence disclosed that in September 1978, 15-year-old Mary V. was hitchhiking along a freeway in the San Francisco Bay Area, intending to go to Los Angeles by way of Interstate 5. Singleton, driving a van, picked her up. After a stop at Singleton's house in San Pablo, they went on toward Interstate 5. Mary fell asleep and on awakening discovered Singleton had passed by Interstate 5 and was going toward Nevada where, Mary learned, he also had a residence. Mary objected. They returned to the junction and proceeded south on Interstate 5. Singleton stopped along the highway and both got out to relieve themselves. As Mary was bending over to tie her shoe, Singleton struck her with his fist about the head and back several times. He threw her into the van, tied her hands behind her back and tore at her clothes. Singleton forced his penis into her mouth and then into her vagina.
Thereafter Singleton drove the van into a canyon and parked. He again forced his penis into Mary's mouth and into her vagina. Then he *422 committed an act of sodomy. Afterwards Mary kept asking Singleton if he would set her free. Singleton made her drink some liquor. She passed out and awoke to find herself being dragged about 50 yards from the van. Singleton cut the ropes from her hands. He took a hatchet, chopped off Mary's left hand, then her right. He threw her over the side of the road, climbed down, shoved her into a drainage culvert and told her she was free.
Mary made her way out of the culvert after Singleton left and after hours of wandering was discovered and given medical aid. She was hospitalized one month.
Singleton was identified through a description given by Mary. His residence in San Pablo was searched. Mary's cigarettes were found there and also remnants of burnt clothing that appeared to be hers. Meanwhile, Singleton cleaned up the van with the help of a neighbor at his Nevada residence. He removed the carpet and washed it and the inside of the van. A few days thereafter he tried to kill himself by an overdose of sleeping pills. Singleton was eventually taken into custody by the Nevada police.
Singleton's testimony was not offered at the trial but his statements to police officers were received. These statements were consistent with Mary's as to early events but went on to describe picking up two male hitchhikers, Larry and Pedro. Singleton said they stopped at a bar, bought some dope, smoked the dope and drank, stopped in a canyon and then paid for sex with Mary. Singleton said he thereafter passed out and awoke to find Larry driving the van toward San Francisco. Mary's clothes were in the van but she was gone. Larry told Singleton Mary had her hands in the till and was sent to Los Angeles. Singleton left the two hitchhikers in San Francisco.
Singleton makes four contentions on appeal. One is that the prosecutor made improper comments in argument about Singleton's failure to testify. The prosecutor, in closing argument, said: "That's why I gave these two challenges. I said if there is a way out for you, Mr. Singleton, then by Heavens you come out and say it. Your attorneys have the challenge of explaining the two hitchhikers you have spoken of during Mr. Singleton's statement to the police. They did not mention it. They had the challenge to talk about Mr. Singleton's state of mind, which as Mr. Singleton stated on his interview with the police that he was drunk and had passed out while two hitchhikers did it. And so we were to join *423 issue on that. And that, ladies and gentlemen, has not been touched on. Instead, who has been placed on trial? Mary V."
Singleton relies on Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], holding that comments on a defendant's failure to testify are error. Griffin does not, however, prohibit every comment on the failure to present a defense. (1) A prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) So, too, may a prosecutor point out in final argument that defense counsel have been silent in their argument on crucial factors in the evidence, and thus have, presumably, no explanation to offer for these factors.
Singleton's statements to the police give rise to two possible defenses: That others committed the offenses charged and Singleton's capacity was diminished by intoxication. Reading the prosecutor's arguments as a whole, it is clear his challenges were directed to counsel to demonstrate why Singleton's statements should be deemed credible. In the prosecutor's language quoted above there is one phrase that could, with some strain, be interpreted as a suggestion Singleton should have presented his testimony. Assuming, however, that it was so interpreted by the jury, the evidence of guilt was overwhelming. The remark could not have had significant impact on the jurors. We find the prosecutor's comments were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Vargas, supra.)
(2) Singleton next contends the trial court abused its discretion in denying the motion to certify him for a determination whether he was a mentally disordered sex offender, pursuant to Welfare and Institutions Code section 6300 et seq. In support of the motion to certify Singleton submitted a psychiatrist's report which stated "... it is possible the defendant will meet the psychiatric criteria generally accepted in San Diego for classification as a mentally disordered sex offender." (Italics added.) But the court also had before it the report of another psychiatrist to the effect defendant "appeared well oriented in all spheres and showed no signs of any delusions, hallucinations, disturbances in memory ... or thought processes." Furthermore, Singleton, age 51 at the time of the denial of the motion, had no prior history of sex crimes and according to the probation report considered by the trial court, had *424 a fairly normal sex life with episodes of violence apparently triggered by excessive use of alcohol.
Singleton cites People v. Barnett (1946) 27 Cal.2d 649 [166 P.2d 4], where an abuse of discretion was found in denying a motion to certify. In Barnett, however, the defendant was convicted of numerous sex offenses with multiple victims and three physicians reported their opinions to the trial court that the defendant was a sexual psychopath. Barnett is not comparable | {
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248 F.Supp.2d 945 (2002)
Carolyn CONDIT, Plaintiff,
v.
NATIONAL ENQUIRER, INC., Defendant.
No. CIV F 02-5198 OWW LJO.
United States District Court, E.D. California.
July 10, 2002.
*947 Brian Anthony Rishwain, Johnson and Rishwain LLP, Los Angeles, CA, Rodney Smolla, University of Richmond, T C Williams School of Law, Richmond, VA, for Carolyn Condit, plaintiff.
Bruce Alan Owdom, Dietrich Glasrud Mallek and Aune, Fresno, CA, Adam Lindquist Scoville, Pro Hac Vice, Thomas B Kelley, Pro Hac Vice, Steven D Zansberg, Pro Hac Vice, Faegre & Benson, Denver, CO, Michael B Kahane, Pro Hac Vice, American Media Inc, Law Department, Boca Raton, FL, for National Enquirer Inc, American Media, Inc., defendants.
MEMORANDUM DECISION AND ODER RE: DEFENDANT'S MOTION TO DISMISS OR STRIKE, OR, ALTERNATIVELY, SUMMARY JUDGMENT AND ATTORNEY'S FEES
WANGER, District Judge.
I. INTRODUCTION
Carolyn Condit ("Plaintiff) sues National Enquirer, Inc. ("Defendant"), and unnamed *948 Does for libel based on statements published in two issues of Defendant's weekly publication, The National Enquirer, dated August 7 and September 4, 2001. See Doc.l, Complaint, filed February 21, 2002. Diversity jurisdiction is invoked under 28 U.S.C. § 1332, based on the parties' citizenship in different states and the amount in controversy in excess of the $75,000 jurisdictional minimum. Defendant moves to dismiss or strike Plaintiffs Complaint under Fed.R. Civ.P. 12(b)(6), or alternatively, for summary judgment and attorney's fees under California Code of Civil Procedure section 425.16 prohibiting Strategic Lawsuits Against Public Participation. See Doc.19, filed April 1, 2002. Plaintiff opposes Defendant's motion. See Doc.28, filed June 17, 2002. Oral argument was heard July 1, 2002.
II. BACKGROUND
Plaintiff is a California citizen and the wife of former United States Congressman Gary A. Condit. See Complaint at ¶ 3. Plaintiffs Complaint alleges she is not a public figure, has never given, or granted a request for her to give, an interview to a journalist, and has not voluntarily injected herself into a matter of public concern in an attempt to influence the outcome of a controversy. See id. Defendant's articles, exhibits 1 and 2 to the Complaint, confirm that Plaintiff is a "private" person who has not participated in her husband's public life. Defendant is a corporation with its principal place of business in Boca Raton, Florida. See Complaint at ¶ 4. Defendant disseminates a weekly publication, The National Enquirer (the "Enquirer "). See id.
Some time before July 26, 2001, the Enquirer reported on its website, , that "just days before" the disappearance of Mr. Condit's intern, Chandra Levy, Plaintiff phoned Mr. Condit's Washington, D.C., apartment from the Condits' home in Ceres, California, and verbally attacked Ms. Levy during a five-minute telephone conversation. See Complaint at ¶ 6. On July 26, 2001, the Washington Metro Police Department responded to the Enquirer's report and debunked the reported phone call with the following statement from Chief Terrance W. Gainer: "I don't think there's any truth to that whatsoever." See id. at ¶ 7. The following day, July 27, 2001, Washington Metro Police spokesperson Joe Gentile also dismissed the Enquirer`s report, stating: "I am saying there is no foundation to that report." See id.
Several newspapers, including the USA Today, New York Post, and Washington Times, reported the information that was posted on the Enquirer's website, including that Plaintiff verbally attacked Ms. Levy over the telephone just days before her disappearance. See id. at ¶ 8. Plaintiff alleges that notwithstanding the statements by Washington Metro Police Department personnel, the Enquirer on August 7, 2001, published an article describing the purported angry phone call between Plaintiff and Ms. Levy. See id. at 119.
Plaintiffs Complaint contains three claims for libel. See Complaint. The first claim alleges Defendant published the following "First Offending Statements" in the August 7, 2001, edition of the Enquirer: 1) the large, bold-faced, all-caps headline on the cover: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; 2) the sub-headlines on the cover: "The furious phone call," and "What wife is hiding"; 3) the story headline in all-caps on page 32: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; and 4) the first paragraph of the article on page 32: "Gary Condit's bitter wife flew into a rage and attacked Chandra Levy in a furious confrontation just days before the intern's disappearance, The ENQUIRER has learned exclusively." *949 See Complaint at ¶¶ 13-15, Exh. A.
Plaintiff alleges the First Offending Statements are libelous on their face, per se, because they imply Plaintiff committed crimes of assault and battery. See Complaint at ¶ 16. Plaintiff alleges the First Offending Statements are reasonably susceptible of a defamatory meaning because they falsely insinuate or state: a) the police believe, and the true fact is, that Plaintiff physically attacked and/or was physically involved in the disappearance of Ms. Levy; b) Plaintiff is hiding information about Ms. Levy's disappearance; and c) Plaintiff had a telephone call with Ms. Levy "just days before" Ms. Levy's disappearance. See Complaint at ¶¶ 17-18. Plaintiff alleges she has never seen Ms. Levy in person or spoken to her on the telephone, and telephone records show no phone call made "days before" Ms. Levy's disappearance from Plaintiffs home in Ceres, California, to Mr. Condit's apartment in Washington, D.C. See Complaint at ¶ 18.
Plaintiff alleges Defendant was aware the cover and story headlines were misleading but made no attempt to clarify their meaning prior to publication. See Complaint at ¶ 19. Since Defendant's inhouse counsel and vice president, Michael Kahane, has performed pre-publication review for another tabloid, the Globe, since 1995, Plaintiff asserts Defendant was subjectively aware the headlines in the First Offending Statements conveyed a defamatory or potentially defamatory meaning in light of Kaelin v. Globe Comms. Corp., 162 F.3d 1036 (9th Cir.1998), which held the following headline reasonably susceptible of a defamatory meaning: "COPS THINK KATO DID IT!" See Complaint at ¶ 19. The Complaint charges Defendant recklessly disregarded its awareness of the defamatory meaning of the First Offending Statements by failing to explore whether a defamatory meaning was communicated. See id. Plaintiff claims Defendant deliberately intended to convey the impression that Plaintiff physically attacked Ms. Levy or that her disappearance was a result of Plaintiffs jealous rage when Defendant had no reason to believe that impression was true. See id.
Plaintiffs second claim alleges Defendant published the "Second Offending Statements" in the August 7, 2001, edition of the Enquirer in the story beginning on page 32: 1) "In a major breakthrough, investigators have uncovered what they say is the `blowup phone call' between Chandra and Carolyn Conditduring which the 24-year-old intern told an enraged Carolyn that Gary was dumping her to start a new life and family with Chandra"; 2) "The Justice Department source confirmed: `Investigators are now sure that Mrs. Condit talked with Chandra Levy in the days before her disappearance'"; and
3) In a bombshell disclosure, a source told the Enquirer: "Investigators got phone records that show a phone call from Condit's home in California to his apartment in Washington that was over five minutes long.
...
From their extensive work including interviews with Condit, his wife, and Chandra's family members and friends, investigators now say that Chandra and Carolyn had a heated conversation. When the phone rang, Chandra was in the apartment and saw from the caller ID that it was from Condit's home in California. And she boldly answered it.
Chandra and the wife had a heated phone screamfest...."
Complaint at ¶¶ 25-26.
Plaintiffs third claim alleges Defendant published the "Third Offending Statement" in the September 4, 2001, edition of the Enquirer: "Just days before the intern's *950 disappearance Carolyn flew into a rage at Chandra during a phone call." Complaint at 11 34. Plaintiff asserts Defendant recycled the information about the phone call from the August 7, 2001, issue of the Enquirer without further corroboration by additional sources. See id. at ¶ 36. Defendant or its purported source or sources fabricated the "furious phone call" and that any source on the matter was not credible because the story is unsupported by phone records and no such call occurred. See id.
The Complaint charges that Defendant published the First, Second, and Third Offending Statements (collectively, the "Offending Statements") with negligence and constitutional and actual malice with knowledge that they were false or with a reckless disregard for their truth or falsity. | {
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3288
Z ACHARY M EDLOCK,
Plaintiff-Appellant,
v.
T RUSTEES OF INDIANA U NIVERSITY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 11 C 977—Tanya Walton Pratt, Judge.
A RGUED F EBRUARY 21, 2012—D ECIDED JUNE 29, 2012
Before E ASTERBROOK, Chief Judge, B AUER , Circuit Judge,
and SHADID, District Judge.
B AUER, Circuit Judge. This case stems from the search
of a student’s dorm room at Indiana University in
The Honorable James E. Shadid, District Judge of the
United States District Court for the Central District of Illinois,
sitting by designation.
2 No. 11-3288
Bloomington, Indiana. The plaintiff-appellant, Zachary
Medlock, sought a preliminary injunction in district
court to prevent enforcement of his one-year suspen-
sion from the University. Specifically, he asserts that
the search of his room by state school officials (and later
the campus police) violated the Fourth Amendment,
and he claims that the University’s suspension pro-
ceedings abridged his right to procedural due process
under the Fourteenth Amendment. The district court
disagreed and denied his request for a preliminary in-
junction. Medlock now appeals, and we dismiss the
request for a preliminary injunction as moot.
I. BACKGROUND
The facts relevant to our decision are few, so we will
be brief. Medlock was a student at Indiana University,
Bloomington, during the spring of 2011. He lived in
a single room in a dormitory known as the Willkie Resi-
dence Center. On March 9, 2011, as part of a routine
“health and safety inspection,” two University resident
assistants searched Medlock’s dormitory room for safety
hazards. Medlock was not present at the time of the
search. When the resident assistants entered the room,
they discovered marijuana in plain sight, and they
notified the University police.
A University police officer later entered Medlock’s
room and seized the drugs. The possession of illegal
drugs in a dormitory violates the University’s housing
policies; when officials reported the drug seizure to
the Dean of Students, the Dean summarily suspended
No. 11-3288 3
Medlock for one year, effective March 11, 2011. Medlock
first went through the University’s appeal process. He
petitioned both a University panel and the University’s
provost to request a reversal of the suspension deci-
sion, but he was unsuccessful. Medlock then filed the
request for a preliminary injunction in federal court
that is at issue in this appeal.
II. DISCUSSION
In denying Medlock’s request for a preliminary in-
junction to prevent enforcement of his suspension, the
district court considered each of his constitutional argu-
ments in turn. It held that his Fourth Amendment
claims did not have a reasonable likelihood of success
such that they would justify a preliminary injunction;
it also examined his procedural due process claims
and came to the same conclusion. But we need not
consider these issues; we lack subject-matter jurisdic-
tion in this appeal and therefore must dismiss it.
Article III of the Constitution limits federal courts’
scope of judicial review to live cases and controversies.
See, e.g., A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004)
(citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). And in
keeping with that limitation, this Court “must, on its own,
dismiss a case as moot when it cannot give the peti-
tioner any effective relief.” Id. So although the parties
did not raise the issue, we must as an initial matter
decide whether this request for injunctive relief is moot.
If it is—if we can no longer grant any effectual re-
lief—then it is well-established that we lack subject-
4 No. 11-3288
matter jurisdiction and must dismiss. See, e.g., Pakovich
v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011).
The only issue before us on this appeal is the denial of
a preliminary injunction which sought to prevent the
enforcement of an academic suspension. That suspen-
sion was to last for one academic year, and it went into
effect on March 11, 2011. At oral argument in this
matter on February 21, 2012, we confirmed that even
were we to take immediate action to enjoin Medlock’s
suspension, he would not have been able to re-enroll
and begin classes midway through the spring 2012 se-
mester. The term of the suspension has now expired.
Thus, even if we were to decide that Medlock’s consti-
tutional rights had been violated, a preliminary injunc-
tion would do him no good. There is simply nothing
left to enjoin. And there are no other issues before us on
this appeal—e.g., no request for damages or declaratory
relief. Because we are unable to grant any effectual
relief, the request for a preliminary injunction is dis-
missed as moot.
III. CONCLUSION
For the aforementioned reasons, we dismiss the appeal.
6-29-12
| {
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204 Wis.2d 354 (1996)
555 N.W.2d 381
Robert N. ROSS, a minor by his Guardian Ad Litem, Keith Rodli and Robert J. Ross, Plaintiffs-Appellants,
v.
Tommy MARTINI a minor, Defendant,
FARMERS HOME GROUP INSURANCE COMPANY, Defendant-Respondent.[]
No. 96-0138.
Court of Appeals of Wisconsin.
Submitted on briefs August 20, 1996.
Decided September 4, 1996.
*356 For the plaintiffs-appellants the cause was submitted on the briefs of Catherine R. Quiggle of Rodli, Beskar, Boles & Krueger, S.C. of River Falls.
For the defendant-respondent the cause was submitted on the brief of Patrick E. Mahoney of Mahoney, Dougherty and Mahoney, P.A. of Minneapolis, Minnesota.
Before Cane, P.J., LaRocque and Myse, JJ.
MYSE, J.
This is an appeal form a summary judgment in favor of Farmers Home Group Insurance Company holding that as a matter of law Tommy Martini was not a resident of his father's household and, subsequently, is not covered by his father's homeowner's insurance policy. Because we hold that his father's on-going legal custody and intent to regain physical placement are sufficient to make Tommy Martini a resident of his father's household, we reverse and remand the judgment.
The facts in this case are undisputed. Tommy Martini's father, Thomas Martini, Sr., and mother, Sandra Hansen, were divorced in 1979. Originally, Hansen was awarded legal custody of Tommy. Within a year, however, Tommy went to live with his father in Minnesota and the court, with Hansen's agreement, transferred legal custody of Tommy to his father. *357 Tommy lived with his father until August 1992 when, after being disciplined, Tommy fled to his mother's house in Wisconsin. Martini sought to return Tommy to Minnesota. Alleging that he was a victim of abuse. Tommy sought and obtained a Wisconsin injunction prohibiting his father from having contact with him for one year. Tommy claims he intends to live with his mother permanently. Martini, however, claims he intends to regain physical placement at the end of the injunction. While living with his mother, Tommy Martini accidentally shot another, minor, Robert Ross. This incident forms the basis of Ross' negligence action against Tommy and his father's insurer. The father's insurance policy provides coverage to the insured and members of his household. The trial court granted summary judgment based on the conclusion that Tommy was not a member of his father's household.
[1]
Ross contends on appeal that the trial court erred in determining as a matter of law that Tommy Martini was not a resident of his father's household at the time of the shooting. We agree. Because the facts are undisputed and the issue involves the construction of an insurance policy, we review this claim as a question of law under a de novo standard of review. Fidelity & Deposit Co. v. Verzal, 121 Wis. 2d 517, 529, 361 N.W.2d 290, 295 (Ct. App. 1984).
[2, 3]
The pertinent language from Martini's insurance policy defines "insured" as "residents of your household who are: a. your relatives; or b. other persons under the age of 21 and in the care of any person named above." The parties agree that Minnesota law governs the interpretation of this policy. Wisconsin and Minnesota are generally in agreement regarding the test to be *358 used in determining residency. Fireman's Ins. Co. v. Viktora, 318 N.W.2d 704 (Minn. 1982); A.G. v. Travelers Ins. Co., 112 Wis.2d 18, 331 N.W.2d 643 (Ct. App. 1983). The oft quoted test in determining residency depends on whether the person and the named insurer are:
(1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship "... in contracting about such matters as insurance or in their conduct in reliance thereon."
Fireman's, 318 N.W.2d at 706 (citations omitted). The determination of residency is fact specific to each case and requires a thorough examination of all relevant facts. Schoer v. West Bend Mut. Ins. Co., 473 N.W.2d 73, 76 (Ct. App. Minn. 1991).
[4]
In this case, Tommy Martini had lived with his father for over twelve years. After claiming abuse by his father, Tommy obtained an injunction preventing contact by his father for one year. Although Tommy intended to live with his mother thereafter, his father, who continued to have legal custody, intended for Tommy to return to Minnesota to live with him. Ultimately, whether Tommy would return to live with his father in Minnesota is a question for the courts. As long as his father maintained sole legal custody, Tommy could be required to live with his father after the temporary injunction expired. For purposes of determining residency, Tommy's intention, as with *359 other non-minor children, is a factor to consider in determining residency but is not controlling. Pamperin v. Milwaukee Mutual Ins. Co., 55 Wis.2d 27, 34-35, 197 N.W.2d 783, 787-88 (1972). Because Tommy could not choose his residence, his intention as to where the would live is given little weight. Generally, residency and custody are inexorably linked.
Turning to the application of the three-prong analysis, the mere listing of the three factors "does not result in a mandatory threefold test." Londre v. Continental Western Ins. Co., 117 Wis.2d 54, 57-58, 343 N.W.2d 128, 131 (Ct. App. 1983). No single factor controls or determines whether a person is a resident of a household. Id.
[5]
Members of a household are not required to live under the same roof to be considered part of the same household. Doern v. Crawford, 30 Wis.2d 206, 213, 140 N.W.2d 193, 196 (1966); Schoer, 473 N.W.2d at 76. It is also recognized that a person may be a resident of more than one household. Londre, 117 Wis.2d at 58, 343 N.W.2d at 131. Therefore, simply because Tommy did not live under the same roof as his father at the time the claim arose is no bar to his being a resident of his father's household. The trial court placed great emphasis on the one-year injunction in granting summary judgment. The injunction was temporary and ran for only a year. This time period is not sufficient to rule as a matter, of law that Tommy was not a resident of his father's household in light of the rule that residents do not have to live in the same house. See Doern, 30 Wis.2d at 213, 140 N.W.2d at 196; see also Schoer, 473 N.W.2d at 75-76.
The record discloses that Tommy and his father had lived together for over twelve years and that this *360 relationship was important to each of them. It is apparent that this relationship was in a state of transition at the time of the shooting, but Tommy's father intended to maintain a substantial relationship with his son. In fact, Tommy visited with his father even before the one-year injunction had expired and has subsequently spent additional time at his father's residence.
[6]
After considering all the factors in the record, this court concludes that Tommy Martini was, as a matter of law, a resident of both his mother's and father's households. At the time of the incident, Martini still had legal custody of Tommy and was intending that Tommy return to live with him. This court concludes that legal custody, coupled with a parent's intent to continue a long established living situation with the minor, to be sufficient to establish residency in a household in this case, even though the child may be temporarily absent from the household. Because this court concludes that Tommy was a resident in his father's household, the judgment Lient is reversed and remanded.
By the Court.Judgment reversed and cause remanded.
NOTES
[] Petition to review denied.
| {
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Filed 04/11/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
WILLARD BIRTS, JR.
Petitioner,
v.
THE SUPERIOR COURT OF SAN A152923
MATEO COUNTY,
(San Mateo County
Respondent; Super. Ct. No. 17-SF-008610-A)
THE PEOPLE,
Real Party in Interest.
Petitioner Willard Birts, Jr. (petitioner), was charged with several counts of felony
domestic violence, along with special allegations for use of a deadly weapon, serious
felony enhancements, prior strikes and prison priors. Shortly after the trial judge ruled on
several pretrial motions, real party in interest the People of the State of California (the
District Attorney) moved to dismiss the case for insufficient evidence, and the motion
was granted. The following day, the District Attorney refiled the case under a new case
number. The refiled case was assigned to the same trial judge as before, and the District
Attorney immediately moved to disqualify him under Code of Civil Procedure
section 170.6 (section 170.6). The motion was granted by respondent superior court.
Petitioner now seeks writ relief, arguing the District Attorney’s peremptory challenge in
the refiled case was an abuse of the judicial process in violation of his due process rights.
We agree that the peremptory challenge should have been denied, but for a
different reason. Because the record before us discloses a clear effort by the District
1
Attorney to avoid the effect of the trial judge’s orders in the dismissed case, we conclude
the second action was a mere continuation of the first, and thus, the peremptory challenge
was untimely. Accordingly, we shall grant the petition and direct issuance of a
peremptory writ of mandate directing respondent superior court to vacate its order
granting the section 170.6 motion and to issue a new order denying the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was arraigned on a felony information with two counts of inflicting
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a); counts one and three), one
count of aggravated assault (Pen. Code, § 245, subd. (a)(4); count two), one count of
making criminal threats (Pen. Code, § 422, subd. (a); count four), and one count of
stalking (Pen. Code, § 646.9, subd. (a); count five). The information alleged personal use
of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) with respect to count three, two
prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), prior strikes (Pen. Code,
§ 1170.12, subd. (c)(2)), and eight prior prison terms (Pen. Code, § 667.5, subd. (b)).
The case was originally assigned to the Honorable Gerald J. Buchwald for trial.
On July 6–7, 2017, Judge Buchwald heard 10 motions in limine filed by the prosecution.
He granted four of the motions, deferred ruling on five of the motions, and granted in part
and denied in part motion in limine no. 9, by which the District Attorney sought to
exclude two statements made by Officer John Russell to a deputy district attorney in a
prefiling email. Specifically, Judge Buchwald granted the motion to exclude Officer
Russell’s statement questioning whether the elements of Penal Code section 646.9 had
been met. However, the court denied the District Attorney’s motion to exclude that
portion of Officer Russell’s statement that the confidential victim was “ ‘a nice and
genuine person, but I think she is a little unreliable and inconsistent.’ ”
On July 10, 2017, Judge Buchwald ruled on three of the previously deferred
prosecution motions in limine. He denied without prejudice motion in limine no. 4b
(motion to admit petitioner’s statements to Officer Russell) and no. 5 (motion to admit
petitioner’s prior convictions for impeachment), and granted in part, denied in part
2
motion in limine no. 7 (motion to admit the testimony of the prosecution’s expert
witness).
Later that day, the District Attorney moved to dismiss the case. The prosecutor
stated, “The People would move to dismiss for insufficient evidence and with the
intention of refiling, which I understand Officer Russell is able to do today. So the
defendant will be arraigned tomorrow in the in-custody calendar.” When petitioner’s
counsel asked that the specific reasons for dismissal be put on the record, Judge
Buchwald responded, “I’m not sure that they’re required to do that. I think they have the
right—we have not empaneled a jury yet. There was a waiver of just one day, which
would be tomorrow. And I think they have the right to dismiss and refile it tomorrow if
that’s what they want to do, and their reasons are their work product.” Over petitioner’s
objection, Judge Buchwald granted the motion.
Petitioner was arraigned the following day, July 11, 2017, on a new complaint
bearing a different case number. At the arraignment, the prosecutor told the Honorable
Clifford V. Cretan that “[t]he dismissal was based on in limine rulings that were made
excluding certain evidence. There’s no issue with the state of the evidence and refiling.”
On August 2, 2017, the District Attorney filed a felony information alleging virtually the
same felony charges, enhancements, strike offenses and prior offenses, convictions and
prison terms as the previous information.1
On August 17, 2017, petitioner filed a nonstatutory motion to dismiss the
complaint under the doctrine of judicial estoppel. Petitioner argued the District
Attorney’s dismissal and immediate refiling of charges violated petitioner’s due process
rights and constituted manipulation of the system because the District Attorney was
actually motivated by Judge Buchwald’s evidentiary rulings. In opposition, the District
Attorney argued the case was properly dismissed prior to jeopardy attaching and within
1
There were no major substantive changes in the offenses alleged between the
first information filed on January 31, 2017, and the second information filed on August 2,
2017. There were some minor changes in dates for the alleged prior strikes and prior
prison terms.
3
the statute of limitations for felonies, and the refiling was not barred by the two-dismissal
rule of Penal Code section 1387. In reply, petitioner argued that the District Attorney
committed prosecutorial misconduct by misleading the court as to the grounds for
moving to dismiss. The District Attorney filed a response to petitioner’s reply, arguing
the claim of prosecutorial misconduct was unsubstantiated because the District Attorney
was permitted to elect to dismiss and refile a felony case “after receiving unfavorable pre-
trial rulings which the prosecutor believed to be fatal to the case.” On September 22,
2017, the Honorable Donald J. Ayoob denied petitioner’s nonstatutory motion to dismiss.
Three days later, on September 25, 2017, the presiding judge, the Honorable
Susan I. Etezadi, assigned the case from the master calendar back to Judge Buchwald for
jury trial. The District Attorney immediately exercised a section 170.6 peremptory
challenge to Judge Buchwald. Petitioner opposed the challenge, arguing that because the
District Attorney had not previously challenged Judge Buchwald and had dismissed and
refiled the case after his in limine rulings, allowing the peremptory challenge would
“basically come[] down to forum shopping[.]” Judge Etezadi asked the District Attorney
if the refiled case was “the same case that was dismissed after Judge Buchwald made
certain rulings and . . . was dismissed for insufficient evidence and then refiled by the
People . . . ?” The District Attorney responded, “It is the same charges, yes.” Noting that
the parties had not provided the court with any points or authorities “on this very
interesting legal issue,” Judge Etezadi granted the section 170.6 motion. Judge Etezadi
also granted petitioner’s motion to continue trial to seek relief in the form of a writ, and
set a new trial date of December 4, 2017.
On November 20, 2017, petitioner filed a timely petition for writ of mandate
challenging the order granting the District Attorney’s section 170.6 motion. We
temporarily stayed the trial and requested informal briefing from the parties. We also
served notice that, if appropriate, we might issue a peremptory writ in the first instance
pursuant to Code of Civil Procedure section 1088 and Palma v. U.S. Industrial Fasteners,
Inc. (1984) 36 Cal.3d 171, 180 (Palma).
4
DISCUSSION
“Section 170.6 permits a party to disqualify a judge for prejudice based upon a
sworn affidavit without having to establish the fact of prejudice.” (Bravo v. Superior
Court (2007) 149 Cal.App.4th 1489, 14 | {
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719 F.Supp. 1435 (1989)
Joseph HUTCHISON, Individually And As Representative Of A Class Of Citizen Complainants Who Are Similarly Situated, Plaintiff,
v.
James WELLS, et al., Defendants.
No. IP 86-891-C.
United States District Court, S.D. Indiana, Indianapolis Division.
September 14, 1989.
*1436 *1437 Michael K. Sutherlin, Indianapolis, Ind., for plaintiff.
Dale Simmons, City Legal Div., Indianapolis, Ind., for defendants.
ENTRY
BARKER, District Judge.
The present controversy involves a petition for attorney's fees under 42 U.S.C. § 1988, following a judgment for the plaintiff pursuant to a Rule 68 offer of judgment. The defendants object to the petition on a number of grounds. Specifically, they contest:
1) the inclusion of hours spent on a count that was dismissed;
2) the inclusion of hours spent subsequent to the initial offer of judgment;
3) the lack of contemporaneous billing records;
4) the total number of hours billed;
5) the billing rate; and
6) the appended claims of attorneys peripherally related to the case.
These issues will be dealt with seriatim.
Background
On June 11, 1985, the plaintiff, Mr. Hutchison, was arrested for speeding and taken to the Marion County lock-up. While confined there he was allegedly beaten by two deputy sheriffs. Upon release the plaintiff filed a citizen complaint, but the Marion County Sheriff's Department (the "Department") did not pursue it vigorously, ostensibly because Mr. Hutchison refused to take a polygraph test to corroborate his complaint.[1] The plaintiff subsequently filed a civil action in four counts, seeking damages and injunctive and declaratory relief against the Sheriff of Marion County and several of his subordinate officers. Count I alleged that the Department's policy requiring citizen-complainants to submit to a polygraph test impermissibly burdened first amendment rights by deterring people from petitioning for redress. The plaintiff also accused the Department of maintaining an intentionally lax system for reviewing citizen-complaints which insulated offending officers from charges and fostered a pattern of police brutality. The count sought certification of a class of persons who had been asked to submit to polygraph tests to verify their complaints, and injunctive and declaratory relief against the Department's practices and policies. Count II charged that the defendants' use of excessive force violated the plaintiff's fifth and fourteenth amendment rights; Count III sought recovery under a common law assault and battery theory, and Count IV alleged violation of various international treaties governing the rights of detained persons.
On February 18, 1988, the defendants tendered an Offer of Judgment, pursuant to Rule 68, for $7,000 on Counts II, III, and IV. This offer was refused, but an identical offer was made and accepted in December 1988, and judgment was entered upon it on December 29, 1988. As part of the settlement the parties stipulated that Count I was to be dismissed with prejudice. The issue of attorney's fees was expressly reserved for future determination by this court. Plaintiff's attorney has asked for $60,068.75 (including $2,568.75 for an associate's work, and $2,039.20 in costs) based on 287.5 hours billed at a rate of $200.00 per hour. The plaintiff was represented *1438 primarily by Mr. Sutherlin, but was initially represented by Ms. Hiner. The bulk of this opinion concerns Mr. Sutherlin's claims; those of Ms. Hiner are treated at the end.
Discussion
A. Count I
The well-established "American Rule" is that a prevailing party is not ordinarily entitled to recover attorney's fees from the losing party. See Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975)). Congress responded to the Alyeska decision by creating a statutory entitlement to "reasonable" attorney's fees for "prevailing" parties in civil rights litigation. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). As amended, 42 U.S.C. § 1988 provides in relevant part:
In any action or proceeding to enforce a provision of section 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
While the statutory language is discretionary, the Supreme Court has held that fee awards should be denied only where special circumstances render an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (cited in S.Rep. No. 94-1011, p.4 (1976), U.S.Code Cong. & Admin.News 1976, 5908, p. 5912).[2] In the present case the court finds no special circumstances, nor do the defendants advance any, that would render an award of attorney's fees unjust.
The statutory threshold for entitlement to section 1988 fees is that the plaintiff must be a "prevailing party." This requirement is met if he succeeds "on any significant issue in litigation which achieves some of the benefit [he] sought in bringing the suit." Texas State Teachers v. Garland Indep. School District, ___ U.S. ___, ___, 109 S.Ct. 1486, 1491, 103 L.Ed.2d 866 (1989) (citing Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939). It is also clear that a plaintiff need not proceed to a "full litigation of the issues" to be a "prevailing party." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Vindication through a consent decree (Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam)) or a Rule 68 offer of judgment (Delta Air Lines v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287 (1981)) also entitles a successful plaintiff to attorney's fees.
This does not mean, however, that a plaintiff who prevails on one issue even if it is the "central issue" is necessarily entitled to attorney's fees for time spent on other, unsuccessful issues. Where a case presents "distinctly different claims for relief that are based on different facts and legal theories," the losing party cannot be compelled to foot the bill for hours spent on the unsuccessful claim, because that work did not contribute to the benefits achieved by the suit. Hensley v. Eckerhart, 461 U.S. at 435, 103 S.Ct. at 1940 (citing Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444 (C.D.Cal.1974), p. 5049, 1974 WL 180). Typically courts must determine whether a particular claim is sufficiently "related" to the successful claim to be compensable under section 1988. In the present case the plaintiff admits that the claim in Count I was based on a "distinctly different claim and theory" than the other counts. (Plaintiff's Memorandum in Support of Attorney Fees, p. 13) (hereinafter referred to as "Plaintiff's Memorandum"). Thus the issue before this court is whether the plaintiff can be deemed to have "prevailed" on Count I; if not, no fee may be awarded for hours spent on it. Texas State Teachers v. Garland, ___ U.S. at ___, 109 S.Ct. at 1492 (citing Hensley, 461 *1439 U.S. at 435, 103 S.Ct. at 1940); Spanish Action Comm. of Chicago v. City of Chicago, 811 F.2d 1129, 1133 (7th Cir.1987).
The defendants argue that the plaintiff did not prevail on Count I because the count was dismissed with prejudice; consequently they ask that the hours spent on the count be subtracted from the hours claimed in the petition. Conversely, the plaintiff asserts that he did "prevail" on Count I, alleging that his lawsuit catalyzed significant changes in the Department's processing of citizen-complaints. The plaintiff was assisted in pursuing the Count I claims by Mr. Waples of the Indiana Civil Liberties Union and one of his interns. Their claim for fees (Plaintiff's Memorandum, Exhibit E) must stand or fall with the determination of whether the plaintiff prevailed on this count.
Absent formal judicial relief, a plaintiff must satisfy a two-part test established in Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir.1981) to qualify as a prevailing party. First, the lawsuit must be causally linked to the relief obtained. Second, the suit cannot have been frivolous or groundless. See Rohrer v. Slatile Roofing and | {
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55 F.3d 636
U.S.v.Safe and Sure Products, Inc.*
NO. 94-2593
United States Court of Appeals,Eleventh Circuit.
May 12, 1995
1
Appeal From: M.D.Fla., No. 92-00096-MISC-T-21C
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GREGERY KEETEN, Appellant.
No. 1 CA-CR 18-0525
FILED 9-24-2019
Appeal from the Superior Court in Maricopa County
No. CR2016-149044-001
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Casey Ball
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. KEETEN
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.
J O H N S E N, Judge:
¶1 Gregery Keeten appeals his conviction and sentence for
misconduct involving weapons. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mesa police detectives contacted Keeten during an
undercover investigation into prostitution and sex trafficking.1 They found
Keeten in the driver's seat of his parked car, a handgun beside him. Keeten
was on supervised probation for an armed robbery conviction at the time.
¶3 A grand jury indicted Keeten on one count of misconduct
involving weapons, a Class 4 felony. After a five-day trial, the jury found
him guilty as charged, and the superior court sentenced him to a term of 10
years' imprisonment. Keeten timely appealed, and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019),
and -4033(A)(1) (2019).2
DISCUSSION
A. Motion to Suppress.
¶4 Before trial, Keeten moved to suppress evidence of the
firearm, arguing the detectives lacked reasonable suspicion to conduct an
investigatory stop when they detained him in his parked car. Keeten argues
on appeal that the superior court erred by denying his motion.
1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2 Absent material revision after the relevant date, we cite the current
version of rules and statutes.
2
STATE v. KEETEN
Decision of the Court
¶5 The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. Const. amend. IV. Evidence
obtained by a search and seizure that violates the Fourth Amendment is
generally inadmissible in a criminal trial. Mapp v. Ohio, 367 U.S. 643, 654-
55 (1961); State v. Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016). We review the
denial of a motion to suppress for an abuse of discretion. State v. Mitchell,
234 Ariz. 410, 413, ¶ 11 (App. 2014). We review de novo, however, the
superior court's legal determination whether a search "complied with the
dictates of the Fourth Amendment." State v. Valle, 196 Ariz. 324, 326, ¶ 6
(App. 2000). In doing so, we will uphold the superior court's ruling if it is
legally correct for any reason. State v. Huez, 240 Ariz. 406, 412, ¶ 19 (App.
2016).
¶6 A police officer may briefly detain a person for investigative
purposes if the officer has reasonable, articulable suspicion based upon the
totality of the circumstances that the suspect is involved or about to be
involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 30 (1968); State v.
Teagle, 217 Ariz. 17, 22-23, ¶ 20 (App. 2007). "Although 'reasonable
suspicion' must be more than an inchoate 'hunch,' the Fourth Amendment
only requires that police articulate some minimal, objective justification for
an investigatory detention." Teagle, 217 Ariz. at 23, ¶ 25. In applying this
standard, "we accord deference to a trained law enforcement officer's ability
to distinguish between innocent and suspicious actions." Id. at 24, ¶ 26.
¶7 At an evidentiary hearing on the motion to suppress, the State
presented evidence that undercover detectives responded to a sexually
explicit advertisement in the "Female Escorts" section of the website
"backpage.com," which commonly ran advertisements for prostitution.
Through text messages, the detectives negotiated a price for some services
and arranged to meet two females the next afternoon. At the designated
time, detectives observed Keeten drive his car through the parking lot of
the apartment complex at which they had agreed to meet.
¶8 Keeten parked the car, and two females got out and walked
toward the apartment. Detectives intercepted them before they reached the
apartment. Meanwhile, other detectives had obtained information that the
parked car was registered to Keeten and that he was on supervised
probation following an armed robbery conviction. They approached
Keeten's car and found him in the driver's seat next to the handgun.
¶9 In response to the motion to suppress, the State argued that
the officers' prior communications with the contact from the advertisement,
along with their training and experience, caused them to reasonably suspect
3
STATE v. KEETEN
Decision of the Court
that the driver of the car was transporting the two females to the apartment
complex for prostitution. At the hearing, detectives recounted their
exchange of text messages with the contact listed in the "backpage.com"
advertisement. In the texts, the detectives solicited sexual services, once by
using the abbreviation "FS" (by which they meant certain "full service" sex)
and once by expressly using the word "sex." The reply to the solicitation
was "we can discuss in person honey," and negotiation of price immediately
followed. The recipient of the solicitation then offered the detectives a "two
girl special." The detectives asked whether the second "girl" was "young";
the response was "[y]es she's young honey." At one point, the recipient of
the solicitation asked, "[A]re you affiliated with law enforcement?" The
detectives further testified that in prostitution activity, a "pimp" commonly
will drive the prostitute to an appointment and wait until the conclusion of
the appointment to drive her away.
¶10 The superior court denied the motion to suppress, finding
that the State met its burden by a preponderance of the evidence to establish
that the stop, the search and the seizure were lawful. We agree. Based upon
the training and experience of the detectives, the nature of their undercover
operation, the sexually explicit substance of the advertisement, its
placement in "backpage.com," and the illicit content of the text messages,
the detectives had reasonable suspicion that the person or persons who
responded to their texts were engaging or about to engage in prostitution.
When Keeten arrived with two females at the appointed place and time, the
officers thus had reasonable, articulable suspicion that he was transporting
the females for prostitution in violation of A.R.S. § 13-3210 (2019) or was
acting as their "pimp" in violation of A.R.S. § 13-3203 (2019).
¶11 Given the totality of the circumstances, the superior court did
not err by denying Keeten's motion to suppress.
B. Purported Disclosure and Brady Violations.
¶12 Keeten next argues the State violated its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona Rule
of Criminal Procedure 15 by failing to disclose copies of the "backpage.com"
advertisement and the text messages before the first evidentiary hearing.
Keeten contends the superior court erred by denying his multiple motions
for sanctions based on the alleged violations.
¶13 Rule 15.7 governs a superior court's duty and power to
sanction a party for a discovery violation. The court maintains broad
discretion to determine the nature of a sanction. See State v. Moody, 208 Ariz.
4
STATE v. KEETEN
Decision of the Court
424, 454, ¶ 114 (2004); State v. DeCamp, 197 Ariz. 36, 40, ¶ 22 (App. 1999).
We review the imposition of a discovery sanction for an abuse of discretion.
Moody, 208 Ariz. at 454, ¶ 114. The superior court abuses its discretion in
ruling on a motion for a discovery sanction "only | {
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Filed 5/15/15 P. v. Rogel CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049102
v. (Super. Ct. No. 11NF3214)
IVAN ROGEL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., Parag Agrawal and Ryan Harrison Peeck, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Ivan Rogel of attempted murder (count 1), aggravated
assault with a knife (counts 2, 3), misdemeanor assault on a peace officer (count 4), and
misdemeanor simple assault (count 6). The jury also found true sentence enhancement
allegations that counts 1 through 3 were committed at the direction of, in association
with, or for the benefit of a criminal street gang (Underhill), and that Rogel personally
inflicted great bodily injury on the victims. The court sentenced Rogel to a total prison
term of 22 years, including 10 years for the gang enhancement on count 1.
Rogel challenges the sufficiency of the evidence to support the gang
enhancement findings, and we agree. No substantial evidence proves Rogel committed
attempted murder and aggravated assault to benefit or promote Underhill, or that he acted
with the specific intent to benefit Underhill. Consequently, we reverse the gang
enhancement attached to counts 1 through 3 for insufficiency of the evidence.
Rogel also claims the court misdirected the jury on the primary activities
element of the gang enhancement jury instruction and failed to instruct on voluntary
intoxication as it relates to the specific intent element of the gang enhancement. But, in
light of our conclusion insufficient evidence supports the gang enhancement findings,
there will be no retrial and we need not reach these issues.
Rogel’s remaining claims are: the court denied him a fair trial by admitting
evidence of his prior gang-related contacts with law enforcement and by improperly
denying his mistrial motion based on jury misconduct; the prosecutor committed
misconduct by not controlling the gang expert’s testimony and by displaying an irrelevant
picture of gang members during closing argument; and cumulative error as the result of
multiple acts of prosecutorial misconduct. We find these claims meritless.
For these reasons, which we will explain more fully below, we affirm the
convictions and the great bodily injury enhancement findings, but reverse the gang
enhancement findings. As modified, the judgment is affirmed and the matter is remanded
for resentencing.
2
FACTS
On October 29, 2011, Nicholas Soto, his pregnant wife, Rebecca Vega,
Rebecca’s father, Frank Vega, and her mother, Nicole Martinez, attended a Halloween
party at a house on North Carol Street in Anahiem.1 This is an area in Anaheim not
known to be in any criminal street gang’s claimed territory. The party was large and
loud, and Soto’s family spent most of their time standing together near a small backyard
patio that people were using as a dance floor. Frank, who was wearing a full-body gorilla
costume with headdress, said the party had music, a disc jockey, and beer.
About an hour after Soto and his family arrived, a group of young men
walked into the backyard. Someone at the party told Soto they thought the young men
were uninvited Underhill gang members.
Sometime later, Rebecca and Soto saw two young men groping Martinez
while she tried to dance. Soto intervened and the two young men engaged him in a
cursing match. One of the young men yelled to Soto, “You don’t know who you’re
messing with.” The verbal exchange turned physical, and a group of partygoers gathered
around the combatants. When the dust settled, Soto discovered he had been stabbed in
the elbow and right rib cage.
Soto pointed to a male Hispanic about 18 years old, five feet, eight inches
tall with medium build, wearing a blue and white checked shirt and a dark hat, and he
told Rebecca that person had stabbed him. Rebecca saw this man run and join a “group
of . . . guys” standing together in a different part of the backyard.
Frank, still in his gorilla costume minus the headdress, did not see the
scuffle on the dance floor, but “a bunch of screaming” drew his attention there. Frank
started to separate the combatants as he searched for Rebecca. When he found her,
1 To avoid confusion, we refer to Frank Vega and Rebecca Vega by their first
names.
3
Rebecca said, “Nick was stabbed.” Frank lifted Soto’s shirt and exclaimed, “What the
hell?” He turned around and saw a bunch of guys. Rebecca pointed at someone in a
checked shirt and black hat and said, “Dad, it’s him.”
Frank tried to grab the man in the checked shirt as the man attempted to
leave the party, which started another fight. Frank eventually fell to the ground where, it
seemed to him, several people repeatedly punched and kicked him. Later, Frank
discovered he had also been stabbed. After the fight, friends took Frank to the hospital
where he spent the next two weeks recovering from seven stab wounds.
Meanwhile, Rebecca took Soto inside to check his wounds before he was
transported to the hospital by ambulance. While Rebecca and Soto were inside they
heard a car crash in front of the house. When they ran outside, Rebecca and Soto saw a
car bumper lying in the street and several police officers around the house.
Unbeknownst to the partygoers, Anaheim Police Officers Matt Ellis and
Brandon Young, Anaheim Police Sergeant Steve Pena, and Anaheim cadet Marcus
Zappia had gone to North Carol Street on reports of a loud party and a fight. Ellis and
Young arrived before the fight, and they called for backup when the fight broke out.
Pena and Zappia responded, but the fight was over by the time they arrived.
The four officers were in different places around the house when they all
heard what sounded like a car crash. Making their way to the street, the officers saw a
silver Honda Civic reversing away from a damaged parked car at about 20 miles per
hour. The Civic collided with another car before it backed to the end of the cul-de-sac.
Pena and Zappia approached the Civic on foot. Just as Zappia shined a
light on the Civic, the car lurched forward and headed out of the cul-de-sac at a high rate
of speed, nearly hitting Pena and Zappia in the process. Pena and Zappia got a good look
at the driver of the Civic. They both identified Rogel as the driver, and they said Rogel
was wearing a checked shirt.
4
Ellis used a patrol car to intercept the Civic. As the Civic approached, it
swerved and crashed into Ellis’s patrol car. Rogel was able to drive away, but the
officers pursued him. Ellis chased Rogel through various neighborhoods at speeds up to
40 miles per hour before the Civic collided with another parked car. Rogel jumped out of
the now disabled Civic and ran through several backyards before officers caught him.
At the time of his arrest, Rogel was wearing a checked shirt and black
pants. He had visible cuts on his hands, and blood on his knuckles and clothing. Rogel
was five feet, nine inches tall and weighed 150 pounds. Ellis and Young noticed that
Rogel smelled of alcohol, and that he had bloodshot eyes and a wobbly gait.
Soto later picked Rogel’s picture in a photographic lineup. Rebecca was
also shown the photographic lineup. She pointed to Rogel’s picture, but said she was not
sure if that person was the stabber, or merely someone she remembered seeing at the
party. Rebecca also told officers she had recognized a friend of hers at the party, Oscar
Ivan Baiza, and she told them Baiza was an Underhill gang member when she knew him
in high school. Rebecca did not see Baiza and defendant together at the party. In fact,
she testified Baiza left the party before the fighting started.
Gang Expert Testimony
Anaheim Police Detective Mike Brown testified as the prosecution’s gang
expert | {
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16-3033-cv
Novick v. AXA Network LLC, AXA Advisors, LLC
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 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 the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
3 27th day of October, two thousand seventeen.
4
5 Present: RALPH K. WINTER,
6 JOHN M. WALKER, JR.,
7 ROSEMARY S. POOLER,
8 Circuit Judges.
9 _____________________________________________________
10
11 STEVEN S. NOVICK,
12
13 Plaintiff-Counter-Defendant-Appellant,
14
15 v. 16-3033-cv;
16 16-3749-cv
17 AXA Network, LLC, AXA Advisors, LLC,
18
19 Defendants-Counter-Claimants-Appellees.
20 _____________________________________________________
21
22 Appearing for Appellant: Lynne M. Fischman Uniman, Andrews Kurth Kenyon, LLP, New
23 York, N.Y. (Michael S. Finkelstein, Finkelstein & Feil, LLP,
24 Bohemia, N.Y., on the brief)
25
26 Appearing for Appellee: Frank C. Morris, Jr. (Ronald Green, Aime Dempsey, David Clark,
27 on the brief), Epstein Becker & Green, PC, New York, N.Y.
28
29 Appeal from the United States District Court for the Southern District of New York (Hellerstein,
30 J.).
31
1
1 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of said District Court on the merits in favor of AXA be and
3 hereby is AFFIRMED, and that the order with respect to AXA’s attorney fees be and hereby is
4 REMANDED for further consideration.
5
6 Plaintiff-Counter-Defendant-Appellant Steven Novick appeals from several rulings by
7 the United States District Court for the Southern District of New York (Hellerstein, J.) issued
8 over the course of lengthy litigation, specifically: a February 1, 2011 order dismissing tort-based
9 claims; a September 15, 2016 order granting attorney fees to defendants; and rulings made prior
10 to and during a trial held between June 27, 2016 and July 14, 2016 that disallowed expert
11 testimony, excluded parol evidence, and denied an adverse inference that had been previously
12 approved by the district court. We assume the parties’ familiarity with the underlying facts,
13 procedural history, and specification of issues for review.
14
15 In November 2002, Novick, a stockbroker and insurance salesman with a sizeable book
16 of clients, entered into several agreements with AXA Advisors, a broker/dealer, and AXA
17 Network, an insurance company (collectively, “AXA”), pursuant to which Novick became
18 affiliated with those companies as an independent contractor. AXA also agreed to loan Novick a
19 total of $1.5 million to assist in his employment transition. In connection with these loans,
20 Novick executed promissory notes in favor of AXA, one in January 2003 for $500,000 (the
21 “January Note”) and the other in August 2003 for $1 million (the “August Note”). The parties
22 also signed a “clarifying document,” which provided that Novick’s customer lists acquired prior
23 to his affiliation with AXA that did not pertain to his business with AXA would remain his
24 property.
25
26 Novick’s affiliation with AXA was terminated in October 2006. Novick asserts that
27 AXA retaliated against him for whistle-blowing on a fellow AXA affiliate, while AXA claims
28 that Novick violated its business practices. Novick brought suit alleging a variety of contract and
29 tort-based claims; AXA counter-sued for the balance of the notes.
30
31 On appeal, Novick first challenges the district court’s 2011 order dismissing his tort-
32 based claims as duplicative of his contract claims. We review a district court's grant of a motion
33 to dismiss de novo, “construing the complaint liberally, accepting all factual allegations in the
34 complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v.
35 Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Under New York law, when a valid
36 agreement governs the subject matter of a dispute between parties, claims arising from that
37 dispute are contractual; attempts to repackage them as sounding in fraud, conversion, and other
38 torts are generally precluded, unless based on a duty independent of the contract. See N.Y. Univ.
39 v. Continental Ins. Co., 87 N.Y.2d 308 (Ct. App. 1995); Diesel Props S.r.l. v. Greystone Bus.
40 Credit II LLC, 631 F.3d 42, 54 (2d Cir. 2011); Mid–Hudson Catskill Rural Migrant Ministry,
41 Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005). As a result, “causes of action ... based
42 on the same facts as the cause of action to recover damages for breach of contract” generally
43 should be dismissed as duplicative of the contract claim. Edem v. Grandbelle Int’l, Inc., 988
44 N.Y.S.2d 244, 245 (2d Dep’t 2014).
45
2
1 Here, the district court did not err in dismissing Novick’s tort-based claims as duplicative
2 of his breach of contract claim. Beyond the bare argument that his tort claims “implicate
3 different legal duties,” Novick did not allege any actionable legal duty owed to him by AXA,
4 outside the contract, that would support a tort-based claim. Indeed, Novick himself has
5 repeatedly acknowledged that the tort-based claims are based on contractual obligation.
6
7 Novick also challenges the district court’s refusal to give a previously approved adverse
8 inference, arguing that the district court violated the law-of-the-case doctrine. We review a
9 district court’s adherence to its prior rulings under the law-of-the case doctrine for abuse of
10 discretion. See Devilla v. Schriver, 245 F.3d 192, 198 (2d Cir. 2001). “[W]hen a court has ruled
11 on an issue, that decision should generally be adhered to by that court in subsequent stages in the
12 same case.” United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991) (citing Arizona v.
13 California, 460 U.S. 605, 618 (1983)). However, we have noted that “[t]he doctrine of the law of
14 the case is not an inviolate rule,” United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982);
15 rather, the doctrine “is discretionary and does not limit a court’s power to reconsider its own
16 decisions prior to final judgment,” Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir.
17 2001) (citation omitted). The decision whether or not to apply law-of-the-case is, in turn,
18 informed principally by the concern that disregard of an earlier ruling not be allowed to prejudice
19 the party seeking the benefit of the doctrine. Birney, 686 F.2d at 107. “In this context, prejudice
20 refers to a lack of sufficiency of notice or a lack of sufficient opportunity to prepare armed with
21 the knowledge that the prior ruling is not deemed controlling.” Uccio | {
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199 F.Supp.2d 704 (2001)
UNITED STATES of America, Plaintiff,
v.
Arvin RIDLEY, Defendant.
No. CR-3-01-047(02).
United States District Court, S.D. Ohio, Western Division.
December 28, 2001.
*705 *706 Dick Chema, Dayton, OH, for plaintiff.
Kenneth L. Lawson, Cincinnati, OH, Derek Farmer, Columbus, OH, for defendants.
DECISION AND ENTRY OVERRULING DEFENDANT'S REQUEST FOR DISCLOSURE OF FAVORABLE EVIDENCE (DOC. # 24); DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR BILL OF PARTICULARS (DOC. # 25); DECISION AND ENTRY SUSTAINING DEFENDANT'S REQUEST FOR DISCOVERY (DOC. # 26); DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS (DOC. # 29); CONFERENCE CALL SET
RICE, Chief Judge.
In Count 1 of the Indictment (Doc. # 10), the Defendant Arvin Ridley ("Defendant") is charged with conspiring to possess with intent to distribute and to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. In Count 2, he is charged with possessing with intent to distribute approximately 48 kilograms of cocaine, in violation of 21 U.S.C. § 841. This case is now before the Court on the following motions filed by the Defendant, to wit: Request for Disclosure of Favorable Evidence (Doc. # 24); Motion for Bill of Particulars (Doc. # 25); Request for Discovery (Doc. # 26); and Motion to Suppress Statements (Doc. # 29). Herein, the Court rules upon those motions in the above order.
I. Defendant's Request for Disclosure of Favorable Evidence (Doc. # 24)
With this motion, which is based upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Defendant requests that the Court order the Government to disclose all evidence it knows or becomes known to it, which is favorable to the Defendant and material to either his guilt or penalty.
*707 Under Brady, the Government is obligated to disclose evidence to a criminal defendant which is both favorable to the defendant and material either to guilt or to punishment. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). That obligation extends to impeachment evidence, as well as to exculpatory evidence. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). See also, United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir.1994) ("Clearly, Brady recognizes no distinction between evidence which serves to impeach a Government witness' credibility and evidence which is directly exculpatory of the defendant."). Brady did not, however, create a constitutional right to discovery in a criminal prosecution. See e.g., Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one...."); United States v. Bencs, 28 F.3d 555, 560 (6th Cir.1994) (same), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995). Indeed, the Sixth Circuit has held that the Government is typically the sole judge of whether evidence in its possession is subject to disclosure under Brady. United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir.1992), cert. denied, 506 U.S. 1083, 113 S.Ct. 1056, 122 L.Ed.2d 362 (1993); Presser, 844 F.2d at 1281. Given that Brady does not provide a right of discovery, this Court overrules Defendant's Request for Favorable Evidence (Doc. # 24). This ruling should not, however, be construed as relieving the Government of its obligations under Brady.
II. Motion for Bill of Particulars (Doc. # 25)
With this motion, the Defendant requests a bill of particulars, requiring the Government to disclose the following information, to wit: 1) the names of all individuals who, according to the Government, participated in the charged offenses, including their addresses and telephone numbers; 2) the exact place or location where the charged offenses are alleged to have occurred; 3) the precise time of day or night when the charged offenses are believed to have occurred; 4) the precise manner in which the Defendant is alleged to have committed the charged offenses; 5) the identity of any witnesses who are alleged to have been present when the charged offenses occurred; and 6) the actions of the Defendant that are alleged to have constituted the charged offenses.
Under Rule 7 of the Federal Rules of Criminal Procedure, which governs the prosecution by an indictment or information in criminal cases, a court may direct the filing of a bill of particulars. See Rule 7(f). "The test in this Circuit for determining whether a bill of particulars should issue is whether the indictment is sufficiently specific to inform defendants of the charges against them, to protect them from double jeopardy, and to enable them to prepare for trial." United States v. Hayes, 1989 WL 105938, at *3, 884 F.2d 1393 (6th Cir.1989) (citing United States v. Azad, 809 F.2d 291, 296 (6th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987)). Accord United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir.1993) ("A bill of particulars is meant to be used as a tool to minimize surprise and assist [a] defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes"); United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976) ("The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction *708 in bar of another prosecution for the same offense, when the indictment itself is too vague and indefinite for such purposes"). However, a bill of particulars is not intended to allow the defense "to obtain detailed disclosure of all evidence held by the government before trial." Salisbury, 983 F.2d at 1375. See also, United States v. Cooper, 1990 WL 67885, 902 F.2d 1570 (6th Cir.1990) ("A bill of particulars is not a discovery device and should not be used `to obtain detailed disclosure of the government's evidence prior to trial.' United States v. Kilrain, 566 F.2d 979, 985 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 80, 58 L.Ed.2d 109 (1978)."). "This is particularly true in a conspiracy case in which the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy." Hayes, 1989 WL 105938, at *3, 884 F.2d 1393; accord United States v. Martin, 1987 WL 38036, at *3, 822 F.2d 1089 (6th Cir.1987) (need for a bill of particulars is particularly obviated "in a conspiracy case where the Government is not required to disclose all overt acts alleged to have occurred in furtherance of the conspiracy").
The Court overrules the Defendant's Motion for Bill of Particulars (Doc. # 25). It is apparent from the briefing of his Motion to Suppress Statements (Doc. # 29) that the Defendant is aware of the facts and circumstances leading to this prosecution. Therefore, a bill of particulars is not necessary in order to avoid surprise at trial or to permit the Defendant to prepare for trial. In addition, the Indictment is sufficiently detailed to prevent the Defendant from being prosecuted a second time for the offenses with which he is charged in this prosecution. Finally, examining the type of the information the Defendant is seeking with this motion demonstrates that he is using his request for a bill of particulars in order to obtain a detailed description of the Government's proof against him. A bill of particulars is not to be used as such a discovery tool. See Hayes, supra (affirming the decision of the District Court to deny defendant's request for a bill of particulars, because he was using it as a general discovery request).
Accordingly, the Court overrules the Defendant's Motion for a Bill of Particulars (Doc. # 25).
III. Request for Discovery (Doc. # 26)
With this motion, the Defendant requests that the Government be ordered to disclose all information he is entitled to receive under Rule 16 of the Federal Rules of Criminal Procedure. The Government has not responded to this | {
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573 F.2d 1306
U. S.v.Benge
No. 78-6057
United States Court of Appeals, Fourth Circuit
4/18/78
1
E.D.Va.
AFFIRMED
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72 So.3d 728 (2009)
RAY KELLER
v.
NATIONAL COLL. ATHLETIC ASS'N.
No. 1081104.
Supreme Court of Alabama.
December 11, 2009.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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Filed 9/23/13 P. v. Watts CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent, C071486
v. (Super. Ct. No. 62002697)
JAMES ROBERT WATTS,
Defendant and Appellant.
A jury convicted defendant James Robert Watts in 1999 of four counts of forcible
rape (Pen. Code, § 261, subd. (a)(2)),1 penetration by a foreign object (§ 289, subd. (a)),
assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)),
attempting to dissuade a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery
(§ 242). (People v. Watts (Dec. 15, 2000, C034074) [nonpub. opn.] at p. 1.) The jury
also sustained great bodily injury, deadly weapon and one strike allegations against
1 Undesignated statutory references are to the Penal Code.
1
defendant (§§ 12022.8, 12022.7, subd. (a), 12022.3, subd. (a), 12022, subd. (b)(1), former
667.61, subds. (a), (b), and (e)). The trial court sentenced defendant to 117 years to life
in prison.
In an unpublished opinion, this court struck a one year weapons enhancement and
affirmed the judgment as modified. (People v. Watts, supra, C034074 [nonpub. opn.] at
p. 11.)
The California Department of Corrections and Rehabilitation (CDCR)
subsequently sent a letter to the trial court in May 2012 identifying an error in
defendant’s sentence. The letter said the trial court imposed a consecutive one-year term
(one-third the three year middle term) on count four [attempting to dissuade a witness by
force] (§ 136.1, subd. (c)(1)), but section 1170.15 provides that if a consecutive term is
imposed for a violation of section 136.1, the trial court must impose a full middle term.
At a June 20, 2012 resentencing hearing, the trial court modified the sentence to
impose a three-year consecutive term for the section 136.1 conviction on count four. The
trial court prepared an amended abstract of judgment reflecting the modified judgment.
Defendant appeals, arguing he must be resentenced again because (1) the trial
court did not understand that it had discretion to impose a concurrent term on count four,
(2) defense counsel was ineffective in failing to argue for a lower sentence at
resentencing, and (3) the amended abstract of judgment must be corrected to reflect
defendant’s time in custody before resentencing.
We conclude (1) given the context of the trial court’s statements at resentencing,
the trial court understood and properly exercised its discretion; (2) defendant’s claim of
ineffective assistance fails because he has not established prejudice; and (3) we will
remand the matter and direct the trial court to calculate and award any presentence credit
to which defendant is entitled.
In all other respects we will affirm the judgment.
2
BACKGROUND
When defendant initially appeared for the resentencing hearing, the trial court
informed defendant that CDCR identified a sentencing error. The trial court then said:
“[T]hey pointed out correctly that you were convicted of dissuading . . . a witness by
force, and that requires under the Code a full consecutive middle term, not on a one-third
middle consecutive term. It makes a difference of two years, but I’m required to impose
that additional time, at least as [CDCR] has interpreted that, and that’s how I have
interpreted it. [¶] You are here without an attorney. If you want to have consultation
with an attorney, I’m very happy to give you that opportunity. In my opinion, it’s a legal
issue that is, -- I don’t have discretion. I have to impose the additional two-year period,
but there may be a different view on this.”
Defendant said he wanted counsel, and the trial court appointed counsel for the
resentencing hearing. The matter was continued until 1:30 p.m. that day so defendant
could speak with his attorney.
When the hearing reconvened at 1:30 p.m., the trial court said to defense counsel:
“[Y]ou understand the circumstances, based upon the letter from [CDCR], dated
May 14th of this year, regarding essentially the unauthorized sentence imposed by this
Court, erroneously imposing a one-third midterm sentence on the Penal Code
Section 136.1(c)(1) violation, rather than the full term midterm. And because it’s an
unauthorized sentence, the Court is obligated to correct that error whenever it is brought
to its attention. [¶] And so it would be my intent, subject to any further comment that
you might have, to in fact correct that error, to impose a three-year midterm on Count 4,
rather than a one-year reduced term.”
Defense counsel did not object to the three-year term in count four. Defense
counsel, the prosecutor and the trial court spent the remainder of the hearing discussing
this court’s prior opinion and its effect on the sentence.
3
DISCUSSION
I
Defendant contends the matter must be remanded for resentencing again because
the trial court did not understand that it had discretion to impose a concurrent term on
count four.
Section 1170.15 states: “Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive offense of one-third of
the middle term of imprisonment, if a person is convicted of a felony, and of an
additional felony that is a violation of Section 136.1 or 137 and that was committed
against the victim of, or a witness or potential witness with respect to, or a person who
was about to give material information pertaining to, the first felony, or of a felony
violation of Section 653f that was committed to dissuade a witness or potential witness to
the first felony, the subordinate term for each consecutive offense that is a felony
described in this section shall consist of the full middle term of imprisonment for the
felony for which a consecutive term of imprisonment is imposed, and shall include the
full term prescribed for any enhancements imposed for being armed with or using a
dangerous or deadly weapon or a firearm, or for inflicting great bodily injury.”
Defendant correctly points out that a trial court retains the discretion to impose a
concurrent term for a violation of section 136.1. Defendant claims the trial court’s
comments during the resentencing hearing indicate that it did not understand this
discretion. We disagree.
The trial court understood and exercised its discretion in imposing the consecutive
sentence on count four. The trial court’s comments at resentencing were merely to
explain to defendant and his counsel that when a consecutive sentence is imposed on a
conviction for a violation of section 136.1, section 1170.15 requires the trial court to
impose the full middle term. The trial court was explaining why it needed to change the
unauthorized portion of the sentence.
4
Given the context of the trial court’s statements, we conclude the trial court
understood and properly exercised its discretion at resentencing.
II
Defendant next contends his appointed counsel was ineffective in failing to argue
for a lower sentence at resentencing.
But defendant has not established prejudice, an essential element of an ineffective
assistance claim. (In re Avena (1996) 12 Cal.4th 694, 721.) Defendant has not shown,
and nothing in the record indicates, that there was a reasonable probability that defendant
would have obtained a more favorable result had defense counsel argued for a lower
sentence.
III
Defendant further contends the abstract of judgment must be corrected to reflect
defendant’s time in custody before resentencing. The People acknowledge that the trial
court should be directed to prepare an amended abstract of judgment reflecting
presentence credits.
“[W]hen a prison term already in progress is modified as the result of an appellate
sentence remand, the sentencing court must recalculate and credit against the modified
sentence all actual time the defendant has already served, whether in jail or prison, and
whether before or since he was originally committed and delivered to prison custody.”
(People v. Buckhalter (2001) 26 Cal.4th 20, 29, original italics.)
We will remand the matter and direct the trial court to calculate and award any
presentence credit to which defendant is entitled and to prepare a second amended
abstract of judgment reflecting defendant’s presentence credit.
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 19, 2012 Session
EDWARD HANSON
v.
J.C. HOBBS COMPANY, INC.
Appeal from the Chancery Court of Henry County
No. 08CI20751 Ron E. Harmon, Chancellor
No. W2011-02523-COA-R3-CV - Filed November 21, 2012
This case arises out of the sale of a tractor. The plaintiff purchaser bought a tractor online
from the defendant company, which specializes in the sale of tractors. The company
advertised the tractor as having many fewer hours of use than it actually had. After taking
possession of the tractor and learning the tractor’s true condition, the purchaser filed this
lawsuit against the company, alleging breach of contract, fraudulent misrepresentation,
rescission, and violation of the Tennessee Consumer Protection Act. After a bench trial, the
trial court held in favor of the purchaser, and awarded compensatory damages and attorney
fees. The company now appeals, arguing inter alia that the evidence does not support an
award of compensatory damages under the Tennessee Consumer Protection Act. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Jason G. Howell, Murray, Kentucky, for Plaintiff/Appellee Edward Hanson
George Robert Whitfield, III, and W. Brown Hawley, II, Paris, Tennessee, for
Defendant/Appellant J.C. Hobbs Company, Inc.
OPINION
F ACTS AND P ROCEEDINGS B ELOW
Plaintiff/Appellee Edward Hanson (“Hanson”) lives in Clifton, Illinois and has worked there
as a farmer his entire adult life. Hanson works on his family farm with his brother and his
son.
After determining that he needed to purchase a tractor, Hanson and his son spent about three
weeks researching used tractors online. In February 2007, Hanson and his son found a 1995
John Deere 8400 tractor for sale, advertised on eBay by Defendant/Appellant J.C. Hobbs
Company, Inc. (“Hobbs Co.”). The eBay ad was entitled: “JOHN DEERE 8400
MFWD/LOW HOURS/NR!!!!!” (emphasis in original). The description in the ad
emphasized that the tractor had “low hours” of usage:
HERE’S THE LAST ONE WE HAVE,, ,,, AS WITH ALL OF THEM WE’LL START THE
BID OUT LOW TO GIVE YOU ALL A SHOT,,,
WE HAVE A NICE 8400 JOHN DEERE, 4X4, POWER SHIFT, LOW
HOURS!!!,,,SHOWING ON THE METER,, . . . WE’VE BEEN ASKING $70,000 FOR
IT ,,,, MINUS THE NEW RUBBER IT NEEDS... OR IT WILL SELL TO THE HIGHEST
BIDDER ON EBAY!!!!!
THIS TRACTOR HAS 20-30% RUBBER LEFT ON IT.. IT’S HAD SOME ROAD
TRAVEL TIME ON IT,,, THE INTERIOR LOOKS REAL GOOD , IT HAS ONE SMALL
TEAR IN THE LEFT CORNER POST, AND ONE TINNSY TEAR IN THE LEFT SIDE
PIECE OF UPHOLSTERY, IT HAS A 16 SPEED POWER SHIFT TRANS, AND 4
REVERSES, IT SHIFTS FLAWLESSLY,, THE SEAT LOOKS GREAT!!, HEAD LINER
LOOKS GREAT, IT’S GOT AN AM/FM RADIO,, IT WORKS!!!,,,,,, IT HAS REAR
REMOTES,,,, IT’S SHOWING NO OIL LEAK AT THE PRESENT TIME,, . . .
IT HAS 20.8 REAR RUBBER,, FIRESTONE RADIALS, AND IT WILL SOON NEED TO
BE REPLACED,, THIS IS THE ONLY DOWN SIDE TO THIS ONE,, POOR RUBBER,,,
THE REST IS FINE.
NICE LOOKING 225 HP,, LOW HOUR 4X4, 8400 JOHN DEERE TRACTOR,,,,
WE OFFER SHIPPING US WIDE,, THIS ONE WILL COST $2.50 A LOADED MILE......
SOLD AS IS WHERE IS NO WARRANITE [sic] IMPLIED OR EXPRESSED, IN THE
STATE OF TENNESSEE,,, . . . .
(emphasis in original). The phrase “LOW HOURS” appeared in the advertisement three
separate times. For two of those, it was bolded and in larger font than the rest of the
advertisement. The advertisement stated the number of hours on the tractor as 2506 and
-2-
included several photographs, including one showing the tractor’s hour meter displaying the
number “2506.” The eBay description stated that the tractor needed new tires. It did not
include a serial number.
Hanson placed an online bid on the tractor. He then called Mr. J.C. Hobbs of Hobbs Co. to
ask some questions, including an inquiry as to the missing serial number. In response to
Hanson’s telephone question, Mr. Hobbs supplied a serial number. Using the serial number
he had been provided, Hanson researched the tractor further before continuing to bid on it.
From his research, Hanson estimated that new tires for the tractor would cost about $8000.
Eventually, Hanson purchased this tractor for $55,600.
Prior to shipping the tractor, and prior to Hanson’s payment for it, Hobbs Co. faxed Hanson
a sales contract. The contract contained this disclaimer: “Buyer hereby certifies the Seller
does not represent the tractor or equipment hours as accurate.” The contract also included
a clause stating that if Hanson filed a legal action against Hobbs Co., Hanson would “be
responsible for payment of Seller[’]s attorney fees, court costs and litigation expenses.”
Hanson signed this contract and faxed it back to Hobbs Co. After receiving Hanson’s
certified check, Hobbs Co. delivered the tractor to Hanson’s farm in Illinois.
Before the delivery truck even left his farm, Hanson could see some problems with the
tractor. He made several unsuccessful attempts to call Mr. Hobbs; after a while, the delivery
truck left. Hanson attempted to make several repairs to the tractor, and in the course of doing
so, learned that Mr. Hobbs had given him an incorrect serial number. Hanson also learned,
to his dismay, that the tractor actually had 10,000 more hours than was shown on the hour
meter featured in the eBay advertisement.
Finally, in April 2008, Hanson filed the instant lawsuit against Hobbs Co. in the Chancery
Court of Henry County, Tennessee. The claims in the complaint were based on the fact that
the tractor had 10,000 more hours than was shown on the hour meter in the eBay
advertisement, as well as the missing/incorrect serial number. The complaint alleged that
Hobbs Co. breached its contract with Hanson; violated the Tennessee Consumer Protection
Act (“TCPA”); and fraudulently misrepresented the use and condition of the tractor. The
complaint sought compensatory damages, treble damages under the TCPA, and attorney fees.
In the alternative, the complaint sought rescission of the contract. Hobbs Co. filed an
answer, denying liability and seeking its attorney fees and expenses.
A bench trial was held in August 2011. The trial court heard testimony from Hanson, and
Hobbs, as well as each party’s expert witness.
-3-
Hanson testified at the outset. He said that he had considerable experience with tractors, and
over the course of his farming career had owned approximately ten of them. To maintain his
farm, Hanson said that he will typically put approximately 300-400 hours on a tractor per
year. Before buying the tractor at issue in this lawsuit, Hanson said, he had never bought a
tractor at an online auction. When Hanson saw the Hobbs Co. eBay ad, he was particularly
drawn to the fact that the advertised tractor was the John Deere 8400 model and that it had
a low number of hours on it. Asked whether he attributed any significance to the fact that
the ad said that the tractor had low hours “showing on the meter,” Hanson said he did not.
Hanson said that he would not have been interested in purchasing a tractor with 12,500 hours
on it, and if he had purchased such a tractor, he would have paid no more than $25,000 for
it. Based on his research, and taking into consideration that the tractor would need new tires,
Hanson believed that $64,000 was a fair price for this tractor as advertised in the eBay ad.
After Hanson made his first online bid, he became concerned that the eBay ad listed no serial
number | {
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11th Court of Appeals
Eastland, Texas
Opinion
Justin Karl Roderick
Appellant
Vs. No.
11-02-00141-CR -- Appeal from Collin County
State of Texas
Appellee
The jury
convicted Justin Karl Roderick of felony driving while intoxicated and assessed
his punishment at confinement for seven years.
Appellant has filed in this court a motion to dismiss his appeal. In the motion, appellant requests that he be
allowed to Awithdraw [his] notice of appeal and dismiss
this appeal.@ The
motion is signed by both appellant and his counsel. Pursuant to TEX.R.APP.P. 42.2, we grant appellant=s motion.
Accordingly,
the appeal is dismissed.
PER
CURIAM
August 29, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
| {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5481
JEFFREY BLAKE JOHNSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5482
ROBERT LEE BRUCE, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Glen M. Williams, Senior District Judge.
(CR-94-61)
Argued: December 6, 1996
Decided: February 12, 1997
Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
DAVIS, United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Frederick Theodore Heblich, Jr., PARKER, MCELWAIN
& JACOBS, P.C., Charlottesville, Virginia, for Appellant Johnson;
Richard Andrew Davis, Charlottesville, Virginia, for Appellant
Bruce. Donald Ray Wolthuis, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Robert Lee Bruce, Jr. and Jeffrey Blake Johnson were
indicted for their participation in a drug conspiracy that operated in
the Harrisonburg, Virginia area. The indictment alleged that Bruce
was the principal and Johnson was a lieutenant in the conspiracy.
Bruce was charged with one count of drug conspiracy, nine drug dis-
tribution counts, the use of a firearm in connection with a drug
offense under 18 U.S.C. § 924(c)(1), being a felon in possession of
a firearm under 18 U.S.C. § 922(g)(1), and attempting to escape from
custody. Johnson was charged with one count of drug conspiracy and
three drug distribution counts.
The drug charges were supported by the testimony of more than
half a dozen witnesses who were involved with the defendants in
crack cocaine distribution and by surveillance evidence of controlled
buys of crack cocaine through the use of a confidential informant. The
firearms counts against Bruce arose from a reverse sting operation in
which Bruce attempted to use cash and cocaine to purchase an auto-
matic M-16 rifle in a hotel room.
Bruce and Johnson were tried before a jury and convicted on all
counts. Bruce was sentenced to life in prison, plus a consecutive term
2
of 30 years for the section 924(c) conviction. Johnson was sentenced
to 360 months in prison.
Appellants challenge these convictions on numerous grounds.
I.
Appellants first argue that the government failed to make adequate
disclosure of exculpatory evidence as required by Brady v. Maryland,
373 U.S. 83 (1963). A week before the trial, the government learned
that its confidential informant for the controlled crack cocaine pur-
chases, Dewayne Lingenfelter, had on two occasions falsely impli-
cated Bruce as being involved in drug transactions and had used crack
cocaine during the time frame of the investigation. J.A. at 293-95.
The government disclosed this information to defense counsel, noti-
fied the jury of it during the government's opening statement, and
even warned the jury to "think of [Lingenfelter] as the man that if you
asked if it was sunny outside, that you best go look out the window
yourself . . . there best be some corroboration for what he tells you."
J.A. at 91.
Following completion of the trial, defense counsel obtained infor-
mation that Lingenfelter had pleaded guilty to a charge of making a
false report to police in violation of Virginia Code§ 18.2-461 for
false denial of his involvement in an unwitnessed single car accident.
J.A. at 60-61. The government was unaware of this conviction
because the records of it were in the General District Court for the
City of Staunton, whereas the conspiracy activity at issue in the case
sub judice took place in Harrisonburg. After the trial but prior to sen-
tencing, Johnson and Bruce moved to dismiss the indictments, or in
the alternative for a new trial, because of the new information regard-
ing Lingenfelter. The district court rejected the motion, stating that
the Government furnished every bit of information it had.
And this was something that, for whatever failure, did not
get to the NCIC to be picked up. And whatever it was, it
was available equally to both sides . . . . With all of the mas-
sive testimony impeaching this man . . . [disclosure of the
prior offense] would have been of such minor significance
3
that I don't think it would have changed the result of this
case.
Supp. J.A. at 27-28. The information, which was unknown to the gov-
ernment and was kept in records located in another jurisdiction, was
not within the obligation of the government to discover. United States
v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) ("A prosecutor has
no duty to undertake a fishing expedition in other jurisdictions in an
effort to find potentially impeaching evidence every time a criminal
defendant makes a Brady request for information regarding a govern-
ment witness."). Furthermore, given the government's extensive dis-
closure to the defense and to the jury regarding Lingenfelter's
credibility, the information regarding the unwitnessed single car acci-
dent does not even arguably create a "reasonable probability" that the
result of the proceeding would have been different with disclosure,
nor does it "undermine[ ] confidence in the outcome of the trial."
United States v. Bagley, 473 U.S. 667, 678, 682 (1985).
II.
Appellants next argue that the district court's calculation of drug
weights was clearly erroneous. We disagree. The district court's find-
ings that Bruce was responsible for 6.63 kilograms of cocaine and that
Johnson was responsible for more than one kilogram of cocaine are
more than adequately supported by evidence in the presentence report
adopted by the district court. The calculation for Johnson was sup-
ported by the statements of codefendants Benny Paul and Helen Har-
rison, who testified to having seen Johnson possess and sell cocaine.
Paul estimated the amount at one kilogram. J.A. at 759. Harrison
stated that she saw Johnson and another individual with large plastic
bags of crack cocaine covering a six-foot long table and "stated she
could not even see the tabletop and that the crack cocaine bags were
piled up on one another." J.A. at 761. Regarding Bruce, the presen-
tence report states that "[u]nrefuted evidence" shows that the group
headed by Bruce distributed "no less than 6.63 kilograms of cocaine
base," J.A. at 824, and Bruce offers no evidence to the contrary.
Under such circumstances, the district court's reliance on the presen-
tencing report was not clearly erroneous.
4
III.
Appellants next argue that the district court erred in approving a
three-point upward adjustment for Johnson's role in the offense and
a four-point upward adjustment for Bruce's role. Again we review for
clear error and find no error.
Johnson objects to the three-point enhancement for his role as a
"manager or supervisor" of the criminal activity under U.S.S.G.
§ 3B1.1(b). The presentence report states that"[e]vidence indicates
Johnson acted as a supervisor for Bruce, overseeing the distribution
of cocaine base." J.A. at 804. Bruce's supervisory role is supported
by Harrison's testimony that she, Annette McCarthy, and Mervin
"Sonny" Jones sold cocaine for Johnson at his direction. J.A. at 760-
61, 803.
Johnson argues for the first time on appeal that he should have
received at most a two point enhancement because the presentence
report cites U.S.S.G. § 3B1.1(c), which provides for a two point
enhancement, rather than subsection (b), which provides for a three
point enhancement. However, the citation of subsection (c) in the pre-
sentence report is evidently nothing more than a clerical error, and the
sentencing hearing makes clear that Johnson, the prosecution, and the
court were aware that the presentence report called for a three point
enhancement. J.A. at 772, 776. In fact, Johnson's written objection to
the presentence report refers to the "three-point upward | {
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781 F.Supp. 1307 (1991)
In re AIR CRASH DISASTER AT SIOUX CITY, IOWA, ON JULY 19, 1989.
No. MDL-817, Nos. 90 C 4973, 90 C 4986 and 91 C 1219.
United States District Court, N.D. Illinois, E.D.
December 26, 1991.
*1308 Philip H. Corboy, Francis Patrick Murphy, Corboy & Demetrio, P.C., Chicago, Ill., David E. Rapoport, Becker, Baizer & Rapoport, Highland Park, Ill., Arthur Alan Wolk, Wolk, Genter & Harrington, Philadelphia, Pa., Kevin M. Forde, Kevin M. Forde, Ltd., Chicago, Ill., for plaintiffs.
John W. Adler, Fred C. Begy III, Richard A. Walker, Adler, Kaplan & Begy, Chicago, Ill., for defendant United Airlines.
Steven L. Hogan, Bryan, Cave, McPheeters & McRoberts, Los Angeles, Cal., Norman J. Barry, Daniel Cummings, Alan S. Madans, Rothschild, Barry & Myers, Chicago, Ill., for defendant McDonnell Douglas.
Charles W. Douglas, Sara J. Gourley, Sidley & Austin, Chicago, Ill., for defendant General Elec.
Michael J. Merlo, Craig A. Chapello, Pretzel & Stouffer, Chicago, Ill., for Titanium Metals.
Michael H. West, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for ALCOA.
John Hoff, Lapin, Hoff, Slaw & Laffey, Chicago, Ill., for Reactive Metals.
MEMORANDUM OPINION AND ORDER
CONLON, District Judge.
In this consolidated multidistrict litigation arising from an air crash at Sioux City, Iowa, plaintiffs Jan Brown, Donna McGrady and Susan White move for partial summary judgment on their strict products liability claims against defendants McDonnell Douglas Corporation and General Electric Company.
BACKGROUND
On July 19, 1989, United Airlines Flight 232 from Denver to Chicago crashed during an attempted emergency landing at Sioux City, Iowa. Of the 296 people on board, 112 were killed as a result of the crash. Plaintiffs were flight attendants on the ill-fated Flight 232.
*1309 The crew of Flight 232 was forced to attempt an emergency landing at Sioux City shortly after an uncontained explosion in the aircraft's rear engine. The explosion resulted from the fragmentation and separation of the engine's number one fan disk. Plaintiffs' facts ¶¶ 20-21. The fragments of the fan disk exited the engine housing at a high velocity and severed two of the aircraft's three hydraulic lines, resulting in a total loss of hydraulic fluid in all three of the aircraft's independent hydraulic systems. Plaintiffs' facts ¶¶ 12, 21, 23. The total loss of hydraulic fluid rendered the aircraft's hydraulic-powered flight controls inoperable. Plaintiffs' facts ¶¶ 21-23. The crew attempted to maneuver the aircraft down for an emergency landing by using differential engine power from the two remaining engines. However, the total disabling of the aircraft's conventional flight controls frustrated the crew's attempt to land the plane safely.
The doomed aircraft, owned and operated by United Airlines, was a DC-10 manufactured by McDonnell Douglas in California. Plaintiffs' facts ¶ 13; McDonnell Douglas' facts ¶ 5. General Electric designed and manufactured the CF6-6 engines used to power the aircraft, including the rear engine that failed in the Sioux City accident. Plaintiffs' facts ¶ 14. The number one fan disk that fragmented and caused the uncontained engine failure was also designed and manufactured by General Electric. Plaintiffs' facts ¶ 15. The subject fan disk contained an undetected metallurgical flaw called a hard alpha inclusion when General Electric sold the CF6-6 engine to McDonnell Douglas on January 22, 1972. Plaintiffs' facts ¶¶ 15-16. The fragmentation of the General Electric fan disk occurred as a result of a fatigue crack that developed in the area of the hard alpha inclusion subsequent to the manufacture and sale of the engine. Plaintiffs' facts ¶ 24. The fatigue crack in the fan disk went undetected during regular maintenance shop inspections by United Airlines, including the final inspection of the fan disk conducted in October 1988. General Electric's facts ¶ 15 and additional facts ¶¶ 8-9.
DISCUSSION
Plaintiffs move for summary judgment on their strict products liability claims against General Electric and McDonnell Douglas. Summary judgment must be granted when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989).
Consideration of plaintiffs' motions may proceed only on the basis of evidence that is admissible at trial. Colan v. Cutler-Hammer, Inc., 812 F.2d at 365 n. 14 (7th Cir.); Turner v. Chicago Housing Authority, 760 F.Supp. 1299, 1302 (N.D.Ill. 1991). Plaintiffs' motions and accompanying 12(m) statement liberally refer to the National Transportation Safety Board's Accident Report ("the NTSB report") addressing the Sioux City accident. Plaintiffs may not use any portion of the NTSB report for any purpose at trial. See Memorandum Opinion and Order of December 20, 1991. Accordingly, the court shall not consider the NTSB report in deciding plaintiffs' present motions.
I. General Electric
Plaintiffs move for summary judgment on their strict liability claim against General Electric. As an initial matter, the parties appear to agree that the substantive law of Ohio should govern the issue of General Electric's liability. However, the question of which state's substantive law governs claims of liability against General Electric has not yet been addressed in *1310 these proceedings. Accordingly, the court will address the issue now.
Plaintiffs each filed suit in an Illinois forum, thus Illinois choice of law rules apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Illinois applies the "most significant relationship" test to determine the applicable substantive law in tort actions. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). Four contacts are particularly important in determining which state has the most significant relationship to the occurrence and the parties: (1) the place of injury, (2) the place of the conduct causing the injuries, (3) the domicile and place of business of the parties, and (4) the place where the parties' relationship is centered. Id., 46 Ill.2d at 47-48, 262 N.E.2d at 596.
Iowa is the place of injury, the first contact under Illinois tort choice of law analysis. However, Iowa's interests have not been accorded great weight in earlier choice of law determinations during these proceedings, principally because the eventual crash in Iowa was an entirely fortuitous, unforeseen emergency landing in Sioux City. In re Air Crash Disaster at Sioux City, 734 F.Supp. 1425, 1435 (N.D.Ill.1990). The second contact, the place where the injury-causing conduct occurred, points to Ohio. Ohio has a substantial and ongoing interest in the present action because the allegedly defective fan disk was manufactured and installed in a General Electric engine at a General Electric plant in Ohio. Ohio's status as the place where the injury-causing conduct occurred makes it the only state with a clear substantial ongoing relationship to the present action against General Electric because examination of the remaining two contacts lead to inconclusive results.
General Electric is a New York corporation with its principal place of business in New York. The parties agree that plaintiff Brown is a citizen of Illinois and that the McGrady plaintiffs were citizens of Michigan at the time they filed their action. The parties dispute the domicile of plaintiff White. White contends that she was a citizen of Illinois at the time of filing, while General Electric contends White was an Ohio citizen. This issue need not be resolved, as the resolution would contribute little to the choice of law analysis because the domicile contact does not lead to a clear answer. Finally, the parties' relationship is not centered in any particular state, thus this contact is equally inconclusive. Accordingly, Ohio law shall govern the liability claims against General Electric in these actions.
Plaintiffs' strict liability claims arise under Ohio Rev.Code § 2307.73, governing product liability claims against manufacturers. That statute states:
(A) A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by | {
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442 Mich. 127 (1993)
499 N.W.2d 341
PEOPLE
v.
McCLINE
Docket No. 94614.
Supreme Court of Michigan.
Decided April 16, 1993.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Edward L. Graham, Assistant *128 Prosecuting Attorney, and Robert J. Berlin, Chief Appellate Attorney, for the people.
PER CURIAM:
Early in the defendant's jury trial, before any testimony was taken, a new judge was substituted. The Court of Appeals found the substitution to be reversible error. Because the defendant was not prejudiced by this substitution, his conviction should not have been reversed. We vacate the judgment of the Court of Appeals and remand this case to the Court of Appeals for further consideration of the defendant's remaining issues.
I
A jury convicted the defendant of delivering more than 650 grams of cocaine.[1] He is serving a life term of imprisonment.
This case was originally assigned to Macomb Circuit Judge Frederick D. Balkwill, who presided during the proceedings that took place before trial. Judge Balkwill also conducted the jury selection, which took three days.
After the jury had been selected and instructed regarding its duties, Judge Balkwill announced to the jury that the remainder of the case would be heard by retired Macomb Circuit Judge Frank E. Jeannette. The jurors were asked to go upstairs to the courtroom occupied by Judge Jeannette.
When the jury had left Judge Balkwill's courtroom, the attorney for a codefendant expressed surprise and asked Judge Balkwill to explain the change. Judge Balkwill responded:
The chief judge has indicated that Judge Jeannette has been brought back to handle cases that *129 are over 180 days to permit the regular courts to clear up the dockets, and the chief judge has determined that this case being over 180 days is one of the cases that Judge Jeannette could hear. He's determined, based on the case log, that one judge can pick a jury and another judge can hear the trial.
The defendant's attorney then complained of the lack of notice. The objections were joined by counsel for a second codefendant, who asked why the defense attorneys were "the last to know." The defense objections were renewed the following day.
Judge Jeannette then presided over the defendant's trial, received the jury's verdict, and imposed the life sentence.[2]
The Court of Appeals reversed the defendant's conviction, finding the transfer to have been improper. People v McCline, 197 Mich App 711; 496 NW2d 296 (1992). Judge JANSEN dissented.
The prosecutor has applied to this Court for leave to appeal.
II
In reversing the defendant's conviction, the Court of Appeals relied primarily upon Freeman v United States, 227 F 732, 741-760 (CA 2, 1915), where the Second Circuit characterized "[t]he continuous presence of the same judge" as essential:
It is the opinion of this court that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or both, to consent to a *130 substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial. [Freeman, 227 F 759-760.]
In the present case, the Court of Appeals acknowledged that "[m]ost cases have refused to apply Freeman to those instances where the substitution has occurred before any evidence was introduced." The panel also noted that, "[m]ost of the more recent cases involving this area of the law seem to agree with the conclusion that substitution of trial judges at the conclusion of voir dire, but before opening arguments or the admission of evidence, requires that the defendant show prejudice to constitute error requiring reversal." 197 Mich App 714-715.
Despite the preponderance of contrary authority, the majority reversed because of the possibility of "subtle or intangible prejudice...." Id. at 715. The majority held that reversal is required if a substitution was made after the beginning of voir dire, except as provided in MCR 2.630.[3] Because there was no indication that Judge Balkwill had become disabled, the majority concluded that the defendant was "deprived of his constitutional right to a jury trial...." Id. at 716.
*131 In dissent, Judge JANSEN explained the general rule and its recognized exceptions:
The general rule is that it is error requiring reversal to substitute a judge to preside over the remainder of a trial in which evidence was adduced while the original judge was presiding. State v McClain, 194 La 605, 613-614; 194 So 563 (1940); Commonwealth v Thompson, 328 Pa 27, 29; 195 A 115 (1937); State v Johnson, 55 Wash 2d 594, 596; 349 P2d 227 (1960).
The theory behind the general rule is that the second or substituted judge, not being familiar with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as contemplated under the law. McClain, supra at 614. The only judge competent to instruct the jury is the one who heard the testimony, observed the demeanor of the witnesses and had an opportunity to form an opinion with respect to their credibility, and knows something about the "atmosphere" of the case. Thompson, supra at 29. Another judge, without knowledge of such matters taking place during the trial and with no possibility of learning from the record all the attendant circumstances of the trial, is not qualified to properly charge the jury. Id.
At other stages of trial, a different rule exists. Id. at 30. In Thompson, an exception to the general rule was recognized for the substitution of a judge occurring during the selection of the jury. Id.; McClain, supra at 614. The examination of jurors during voir dire does not elicit any information that can be used in the trial of the case; rather, such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be properly performed by any judge. Thompson, supra at 31; McClain, supra at 614; Johnson, supra at 596. [Id. at 719-720.]
*132 In light of the harmless error rule,[4] Judge JANSEN concluded that "in circumstances such as those in the present case, a defendant must establish prejudice by the substitution of one judge for another when the substitution occurs before the opening statements of counsel and the introduction of evidence." Id. at 722. Because Judge Jeannette heard "[t]he entire case, from the opening statements to the rendition of the verdict," Judge JANSEN could see no prejudice to the defendant.[5]Id. at 721.
III
As the Court of Appeals majority acknowledged, the great weight of authority favors the rule that substitution of a judge before opening argument or the admission of evidence is not an automatic ground for reversal.[6] While "it is not the best practice to have a substitute judge preside over part of an ongoing trial,"[7] "the rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto."[8]
We thus agree with the analysis provided by the Washington Supreme Court in State v Johnson, supra at 596:
*133 The second assignment of error presents a new question in this jurisdiction. The general rule, as stated by the appellant in his brief, is that a judge may not be substituted to preside over the remainder of a trial after evidence has been adduced before the original judge. The leading case is Commonwealth v Thompson, 328 Pa 27; 195 A 115; 114 ALR 432.
As a rule, a judge cannot finish the performance of a duty already entered upon by his predecessor where that duty involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the predecessor. Durden v People, 192 Ill 493; 61 NE 317 [1901]; Commonwealth v Thompson, supra; 30 Am Jur 25, § 39.
It immediately is apparent that the substitution of a judge after the jury has been sworn but before any evidence has been taken, does not involve this objection. As was said in Commonwealth v Thompson, supra, the examination of jurors under voir dire does not elicit any information that can be used in the trial of the case. Such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be performed properly by any judge, but after a jury is selected and sworn, a different situation arises.[[9]]
In the present case, the Court of Appeals relied on Freeman, but that 1915 decision is readily distinguishable. Well along in a four-month trial, *134 after the prosecution had introduced the testimony of 106 witnesses and had rested its case, a new judge was substituted. It was in that procedural context that the Second Circuit said that the "continuous presence of the same judge" is essential.
It is far preferable that a single judge preside over all aspects of a trial. For the reasons stated above, though, we agree that a substitution following voir dire, and before opening statements or the introduction of proof, is not a ground for automatic reversal.[10] Because the substitution in this case took place before opening argument or the introduction of any testimony, and because the defendant has demonstrated no prejudice, we set aside the judgment of the Court of Appeals.
IV
In deciding the defendant's appeal, the Court of Appeals found that the trial court had made an erroneous evidentiary ruling. However, the | {
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929 A.2d 240 (2007)
COM.
v.
IN INTEREST OF T.F.[11]
No. 3252 EDA 2005.
Superior Court of Pennsylvania.
May 2, 2007.
Vacated, Reinstated and Remanded.
NOTES
[11] Petition for reargument denied June 6, 2007.
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United States Court of Appeals,
Eleventh Circuit
No. 96-8338.
Michael WALKER, Plaintiff-Appellee,
v.
Robert SCHWALBE, individually, and in his official capacity;
Darrell Dean, individually and in his former official capacity;
Roy Parrish, individually and in his official capacity; David
Evans, in his official capacity only, Defendants-Appellants.
May 15, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:92-CV-010-HLM), Harold L. Murphy,
Judge.
Before BIRCH, Circuit Judge, and RONEY and FARRIS*, Senior Circuit
Judges.
FARRIS, Senior Circuit Judge:
Defendants interlocutorily appeal the district court's holding
that they are not entitled to qualified immunity. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth,
472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (denial of
qualified immunity is immediately appealable under the collateral
order doctrine). We affirm.
BACKGROUND
Vista Community Programs provides social services for Walker,
Chattooga, Catoosa, and Dade counties in northern Georgia. Vista
is funded by the Walker County Board of Health through a contract
with the Georgia Department of Human Resources. Michael Walker was
hired by Vista in 1982. In 1986 he was promoted to supervise all
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
Vista services for the developmentally disabled. He was
responsible for all budgetary issues pertaining to mental
retardation programs. Throughout his career he received excellent
performance reviews.
Darrell Dean was in charge of overseeing Vista as the
Department of Human Resources District Health Director. In 1988 he
hired Robert Wesley as Vista's Area Director and Tom Nickell as
Vista's business manager. Wesley was Walker's superior at Vista.
During Wesley and Nickell's tenure, Vista budget information
supplied to employees became less accurate. Walker complained to
Wesley and Nickell that some budget practices violated Department
regulations and prevented Walker from effectively managing the
budgets for which he was responsible. After Walker and others
voiced these concerns, Wesley and Nickell began to withhold budget
information from Vista employees.
Walker also expressed concern to Wesley that (1) the garage
Vista used to service its vehicles (chosen by Wesley without
receiving bids) charged exorbitant prices and was not properly
fixing the vehicles, (2) Wesley had directed all employees to have
their Vista vehicles cleaned at a business run by Vista employees
and their relatives, and (3) employee committees, which met during
work hours, conducted fund-raising in the community to raise money
allegedly for Vista but instead used the money for weekend social
activities.
In July 1991 Georgia's governor directed all state agencies to
submit budget reduction proposals. Walker learned that Wesley and
Nickell had proposed closing Vista's Chattooga County Service
Center. Walker urged them to reconsider because he believed the
proposed closure was inconsistent with the Department of Human
Resources' budget proposal request. The defendants claim that
Walker also learned that there was a proposal to cut his position.
When Walker's efforts with Wesley and Nickell failed he sought
assistance from state legislators. In August 1991 high-level Vista
employees Ernest Taylor, Nora Swafford, and Walker met with several
state representatives and senators. They discussed Walker's
budgetary concerns and a three-page list of "possible
improprieties" at Vista. When Walker had knowledge of a particular
impropriety he shared that information. He was primarily concerned
with budget expenditures, the car wash service, and the car repair
service. Walker stated in his deposition that he never feared that
Wesley's budget proposal would cost him his job because he believed
he was protected by the state merit system policies. The
defendants claim that Taylor had prepared the list of improprieties
and was the person primarily concerned about the improprieties,
that Walker did not know about the list and was only involved to
protect his job, and that the legislators already knew of these
problems.
As a result of the meeting with state legislators, the
Department of Human Resources began an investigation of impropriety
at Vista. David Nave conducted the investigation, assisted by
Robert Schwalbe. In October, Dean (the Department of Human
Resources employee who oversaw Vista) informed Vista staff that
Wesley and Nickell were being dismissed, that Dean would be
assuming the responsibilities of Area Director, and that Schwalbe
would be assuming Nickell's former position. Dean delegated
responsibility to Schwalbe for most daily administrative activities
at Vista.
In November 1991 Nave completed the investigative report. It
concluded that Vista had been mismanaged, that there had been
misconduct and violations of Georgia law, and that Vista
administration had shown little regard for Department policy. The
report included investigations of several alleged instances of
nepotism and concluded that at least one was a clear violation.
The investigation and report generated a great deal of media
attention in northwest Georgia. Dean ultimately resigned his
position at the Department of Human Resources due to the
investigation and media attention.
Some Walker County Board of Health members were upset that the
legislators, not the Board, had been contacted about the
improprieties. The Board was also embarrassed about the negative
publicity. It considered refusing to renew the county's status as
lead funding county for Vista. Members of the Board were aware
that Walker was among those who had complained to the legislators.
In 1990 and 1991 Walker's wife, Crystal Walker, served as a
Vista teacher consultant. Her immediate supervisor was Amanda
Boyd, Director of the Walker County Service Center. Walker was
Boyd's superior in the Vista mental retardation program. Prior to
hiring Mrs. Walker, Walker and Boyd reviewed all available written
policies regarding employment of relatives to ensure that it was
permitted. Walker suggested that Boyd contact the personnel office
regarding the issue. The Georgia Department of Human Resources
Administrative Policy and Procedures Manual stated that employment
of relatives, which includes spouses, is not precluded, but that
relatives shall not be employed in situations in which a direct
superior-subordinate relationship would exist.
Walker and Boyd concluded that Mrs. Walker could be hired, and
agreed that Boyd would be wholly responsible for all supervision,
terms, and conditions of her employment. Walker, Wesley, and Dean
each signed Mrs. Walker's contract.
Defendants have produced documents, which they allege were the
applicable policies, that prohibit the employment of any relatives
in an employee's entire chain of command.
After the release of the investigative report, Schwalbe met
with Walker and stated that a member of the Walker County Board of
Health had asked Schwalbe to review the Vista contracts with Mrs.
Walker. The next day Schwalbe gave Walker a notice of proposed
demotion and disciplinary salary reduction. The notice charged
that Walker had violated Vista conflict of interest policies by
hiring his wife. It also stated that Walker was "negligent and
inefficient" for directing a subordinate to obtain approval from
Walker's superior for the contract with his wife.
Walker pursued a written appeal to Dean on December 16, 1991.
Dean upheld the proposed demotion and salary reduction, which
amounted to almost $3,200 a year. Schwalbe and Dean each knew that
Walker had been one of the employees who had spoken with the
legislators. On December 19 Dean informed Walker he would be
transferred to another Vista center forty miles from his home.
Walker later applied for a promotion to his previous position but
was denied without an interview. He subsequently abandoned his
career at Vista. Defendants presented evidence that other Vista
employees were disciplined for violating | {
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724 N.W.2d 202 (2006)
CALBERT
v.
BRIGGS (ABRAHAMSON, C.J., DISSENTS, ROGGENSACK, J., DID NOT PARTICIPATE)
No. 2004AP1294
Supreme Court of Wisconsin
September 11, 2006.
Petition for Review Denied.
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111 F.Supp.2d 865 (2000)
Elena LOPEZ
v.
WAL-MART STORES, INC. et al.
No. CIV.A.G-00-393.
United States District Court, S.D. Texas, Galveston Division.
August 23, 2000.
Jim S Adler, Houston, TX, John M O'Quinn, O'Quinn Kerensky et al, Houston, TX, Russell Thomas Lloyd, O'Quinn & Laminack, Houston, TX, for Elena Lopez, plaintiffs.
Terri Truitt Griffiths, Mayer Brown & Platt, Diana L Davis, Mayer Brown & Platt, Houston, TX, for Wal-Mart Stores, Inc., a Delaware Corporation, Sams Club, an operating segment of Wal-Mart Stores, Inc., Sam's East Inc, Joe Cabrerra, Andy Flores, defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
KENT, District Judge.
Plaintiff Elena Lopez, a former employee of Defendant Wal-Mart Stores, Inc., originally filed suit in the 23rd Judicial District Court of Brazoria County, Texas, seeking, among other things, unspecified statutory penalties for the alleged failure to comply with applicable wage laws and *866 damages for allegedly unpaid wages. Asserting the existence of federal question jurisdiction, Defendants timely removed to this Court on July 10, 2000.
Now before the Court is Plaintiff's Motion To Remand, filed July 27, 2000. For reasons set forth in more detail below, Plaintiff's Motion is GRANTED.
Removal of FLSA Actions
"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of the which the district courts have original jurisdiction, may be removed by the defendant or defendants..." 28 U.S.C. § 1441(a)(emphasis added). The propriety of removal is governed by the "well-pleaded complaint rule," which looks to the plaintiff's complaint to determine whether the pleading raises issues of federal law sufficient to support federal question jurisdiction. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999). However, it is well settled that a court is not bound by the labels Plaintiff uses to describe his cause of action. Instead, under the "artful pleading doctrine", the court is bound to look beyond the labels and examine the substance of the complaint to determine if it states a claim which arises under federal law. See In Re Carter, 618 F.2d 1093, 1101 (5th Cir.1980) ("[T]he accepted rule in this circuit is that upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law."); Amoco Chem. Co. v. Tex Tin Corp., 902 F.Supp. 730 (S.D.Tex.1995).
Defendants contend that Plaintiffs have inadvertently pleaded a claim under federal law. For example, Defendants argue that Plaintiffs prayer for "statutory penalties" invokes relief which is only available under federal law, specifically the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (the "FLSA"). Plaintiff responds by arguing that the relief prayed for is available under Texas state law, and thus the face of the Complaint does not reveal the existence of federal question jurisdiction.
For purposes of ruling on Plaintiff's Motion To Remand, the Court will assume that Defendants are correct: Plaintiff has prayed for relief which is only available under the FLSA. Unfortunately for Defendants, this assumption does not automatically make Plaintiff's claims removable, because the removal statute provides that certain actions are removable "[e]xcept as otherwise expressly provided by Act of Congress..." 28 U.S.C. § 1441(a)(emphasis added).
The relevant portion of the FLSA provides that an action for an FLSA violation "may be maintained ...in any Federal or State court of competent jurisdiction..." 29 U.S.C. § 216(b)(emphasis added). "The word `maintain' arguably carries the connotation that an action may not only be commenced but also carried on to conclusion." Haun v. Retail Credit Co., 420 F.Supp. 859, 862 (W.D.Pa.1976). But if the word "maintain" is understood as giving the Plaintiff a right to both institute a suit in state court, and also carry that suit to its conclusion, then § 216(b) of the FLSA constitutes the sort of express bar to removal contemplated by 28 U.S.C. § 1441(a).
For more than fifty years, the federal courts have been divided on the question of whether the presence of the word "maintain" in the FLSA precludes the removal of such suits. Cases rejecting removal include: Johnson v. Butler Bros., 162 F.2d 87 (8th Cir.1947); Esquivel v. St. Andrews Constr., 999 F.Supp. 863 (N.D.Tex.1998); Pauly v. Eagle Point Software Co., Inc., 958 F.Supp. 437 (N.D.Iowa 1997); Bintrim v. Bruce-Merilees Elec. Co., 520 F.Supp. 1026 (W.D.Pa. 1981); Haun, 420 F.Supp. at 859; Carter v. Hill and Hill Truck Line, Inc., 259 F.Supp. 429 (S.D.Tex.1966) and Wilkins v. *867 Renault Southwest, Inc., 227 F.Supp. 647 (N.D.Tex.1964).
Other decisions permit removal of an FLSA claim. See Cosme Nieves v. Deshler, 786 F.2d 445 (1st Cir.1986); Winebarger v. Logan Aluminum, Inc., 839 F.Supp. 17 (W.D.Ky.1993), and Ramos v. H.E. Butt Grocery Co., 632 F.Supp. 342 (S.D.Tex. 1986).
The Fifth Circuit, while recognizing this split of authority, has expressly declined to rule on the question of whether the word "maintain" precludes removal of an FLSA action. See Baldwin v. Sears, Roebuck, 667 F.2d 458, 461 (5th Cir.1982) ("The question of removability of FLSA actions is not before us, and we do not attempt to address that issue."). Because there is no binding Supreme Court or Fifth Circuit on this point, the Court is free to decide the issue.
It appears to the Court that the better reasoned line of authority is that which reads the word "maintain" as precluding removal. The word "maintain" plainly implies that a plaintiff is given a right to not only institute a suit in state court, but to keep it there until a final judgment is rendered, despite defendant's desire to remove it to a federal court. "Maintain...is usually applied to actions already brought, but not yet reduced to judgment. In this connection it means to continue or preserve in or with; to carry on." BLACK'S LAW DICTIONARY 953 (6th ed.1990); see also Esquivel, 999 F.Supp. at 864. If Congress merely meant that a plaintiff may institute a suit in state court, there is far more apt language available to express that intention. See, e.g., 15 U.S.C. §§ 1681-1681t (providing that an action under the Fair Credit Reporting Act "may be brought" in a district court or other court of competent jurisdiction.); Esquivel, 999 F.Supp. at 865.
The Court concludes that even if Defendants are correct that the face of Plaintiff's Complaint reveals the existence of federal question jurisdiction, Plaintiff's disguised FLSA claims are not removable. Consequently, Plaintiff's Motion To Remand is GRANTED, and this action is hereby REMANDED to the 23rd Judicial District Court of Brazoria County, Texas. All Orders and Injunctions relating to discovery and preservation of evidence REMAIN IN FORCE, and the Court retains PLENARY JURISDICTION to enforce these Orders, until such time as they are altered by a competent court of record upon remand. The parties are ORDERED to file no further motions on these issues in this Court, including motions to reconsider or the like. Any and all further relief shall be sought from the appropriate Texas state court. The parties are also ORDERED to bear their own taxable costs and expenses incurred herein to date.
IT IS SO ORDERED.
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977 P.2d 890 (1999)
132 Idaho 628
STATE of Idaho, Plaintiff-Respondent,
v.
Terry L. THOMPSON, Defendant-Appellant.
No. 23801.
Supreme Court of Idaho, Boise, October 1998 Term.
April 6, 1999.
*891 Wiebe & Fouser, P.A., Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
SCHROEDER, Justice.
Terry L. Thompson appeals from the judgments of conviction for sexual battery of a minor and assault and appeals from the sentence for sexual battery of a minor entered against him in the district court.
I.
BACKGROUND AND PRIOR PROCEEDINGS
Thompson was charged under section 18-1508A of the Idaho Code (I.C.), sexual battery of a minor child sixteen or seventeen years of age, because he had allegedly touched a 16-year-old girl's breasts with his hand and mouth and was at least five years older than the girl. The indictment also charged him with aggravated assault under I.C. §§ 18-901(b) and 18-905(a) because he had allegedly threatened the girl with a knife. The district court ordered a psychological evaluation of Thompson pursuant to stipulation of the parties to determine whether Thompson was competent to stand trial. Based on the psychological report, the district court found that Thompson was competent to stand trial.
Thompson's attorney called him to testify at the trial. Prior to Thompson taking the stand, the trial court granted the State's motion to allow cross-examination regarding a prior felony conviction, limiting the examination to the fact of the conviction. The court prohibited reference to the nature of the prior convictioni.e., lewd and lascivious conduct.
Later in the trial, Thompson moved for admission of his written psychological evaluation. The State stipulated to the admission. Thereafter, during cross-examination of Thompson's ex-wife, the State requested a ruling on whether it would be allowed to cross-examine her regarding the reasons for her divorce from Thompson, assuming the reason to be Thompson's prior felony conviction *892 for lewd conduct he engaged in with their daughter. The court initially refused, ruling that the prior conduct was too remote. The State responded that the prior bad act evidence was already in evidence in the psychological report. Thompson moved to strike that portion of the report which referred to his history of sexual abuse, the prior conviction and sentence. The trial court denied the motion. Thompson then moved to withdraw the report from evidence. The court also denied this motion, and the State was allowed to inquire why Thompson and his ex-wife had divorced. She testified that he was having an affair with a 21-year-old woman.
Near the conclusion of the case, the trial judge asked the parties if they had objections to the proposed jury instructions. Thompson inquired about instructions on lesser included offenses. After the instructions on that subject were called to his attention, Thompson replied that the instructions were "satisfactory."
The jury returned verdicts of guilty to the charge of sexual battery of a minor and assault. The trial court sentenced Thompson to a unified 35 years with 15 years fixed for the sexual battery of a minor.
Thompson appeals the convictions and the sentence for sexual battery. He contends that the trial court erred in the following respects: (1) by ruling that if he testified in his own defense, the State could elicit on cross-examination the fact that he had a prior felony conviction, (2) by refusing to strike prejudicial and inadmissible evidence from the psychological report and by refusing to withdraw the report, (3) by allowing his ex-wife to testify as to the reasons she divorced him, and (4) by failing to instruct the jury on the lesser included offense of sexual abuse of a minor. Thompson argues that the cumulative effect of the above errors deprived him of a fair trial.
II.
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF THOMPSON'S PRIOR CONVICTION ON THE ISSUE OF CREDIBILITY.
Thompson argues that his prior felony conviction for lewd and lascivious conduct under I.C. § 18-1508A should not have been introduced to impeach his credibility at trial.
Rule 609, of the Idaho Rules of Evidence (I.R.E.), provides, in pertinent part:
(a) General rule. For the purposes of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness.
I.R.E. 609(a). Under this rule the trial court must apply a two-prong test to determine whether evidence of the prior conviction should be admitted: (1) the court must determine whether the fact or nature of the conviction is relevant to the witness' credibility; and (2) if so, the court must determine whether the probative value of the evidence outweighs its prejudicial impact. State v. Bush, 131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997).
In reviewing the trial court's decision as to the first prong concerning relevance, the standard of review is de novo. Id. (citing State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993)). In reviewing the trial court's decision as to the second prong concerning whether the probative value of the evidence outweighs its prejudicial impact, the standard of review is abuse of discretion. Id. at 31, 951 P.2d at 1258.
When reviewing an exercise of discretion on appeal, this Court conducts the following inquiry: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer bounds of such discretion and consistently with legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason.
Id. (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)).
*893 A. First ProngRelevance
In State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981), the Court recognized that "`different felonies have different degrees of probative value on the issue of credibility,'" id. at 580, 634 P.2d at 442 (quoting People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, 775 (1977)), and identified three categories of felonies to determine whether a prior conviction could be used for impeachment. Category one involves crimes such as perjury which are "intimately connected" with the issue of credibility. Id. Category two involves crimes such as robbery or burglary which are "somewhat less relevant" to the issue of credibility. Id. Finally, category three involves "`[a]cts of violence ... [which] generally have little or no direct bearing on honesty and veracity.'" Id. at 581, 634 P.2d at 443 (quoting Rollo, 141 Cal.Rptr. 177, 569 P.2d at 775). With regard to category two crimes, the Ybarra court noted:
"On the other hand robbery, larceny, and burglary, while not showing a propensity to falsify, do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunction against stealing another's property or taking it away from him by physical threat or force, it is hard to see why he would hesitate to obtain an advantage for himself or friend in a trial by giving false testimony. Furthermore, such criminal acts, although evidenced by a single conviction, may represent such a marked break from sanctioned conduct that it affords a reasonable basis of future prediction upon credibility ...."
Id. (quoting Ladd, Credibility TestCurrent Trends, 89 U. PA. L. REV. 166, 180 (1940)).
In Bush this Court held that evidence of a prior Wyoming conviction for immoral acts with a child could be introduced for impeachment purposes under I.R.E. 609. 131 Idaho at 31, 951 P.2d at 1258. The Court stated that "[t]he determination whether evidence of a particular felony conviction is relevant to credibility depends on the particular facts and circumstances of each case and must therefore be decided on a case-by-case basis." Id. One of the important facts to consider, the Court noted, was the definition of the particular crime. Id. In concluding that Bush's Wyoming conviction was relevant to the issue of credibility, the Court stated:
A sex crime against a minor does not specifically relate to honesty or veracity as does the crime of perjury, and therefore, does not fall within the first category described in Ybarra. Further, the sex crime involved here is not defined in Wyoming law as a violent felony, and therefore does not fall within the third category described in Ybarra. Thus, we conclude that under the specific facts of this case | {
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618 F.2d 111
McClainv.Pyne
79-1786
UNITED STATES COURT OF APPEALS Seventh Circuit
2/1/80
1
N.D.Ind.
DISMISSED
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101 Ariz. 561 (1967)
422 P.2d 125
STATE of Arizona, Appellee,
v.
Robert O'Dell FOWLER, Appellant.
No. 1602.
Supreme Court of Arizona. In Banc.
January 4, 1967.
Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.
H.B. Daniels, Phoenix, for appellant.
BERNSTEIN, Chief Justice.
Defendant appeals from a conviction in the Superior Court of Maricopa County of first degree murder within the meaning of A.R.S. § 13-452. He has been sentenced to life imprisonment.
For a number of years the defendant, although unmarried, had been living with one Miss Birdie McCoy Miller. On July 15, 1964 the defendant while sitting in Eastlake Park in the City of Phoenix, observed one Willie Lee Smith, with whom he had had previous "run-ins", heading toward a home where Birdie Miller was visiting. With suspicions aroused, the defendant left the park, obtained a revolver, and went to the home. Upon entering the bedroom of the residence the defendant encountered Smith engaged in an act of sexual intercourse with Birdie Miller. Testimony as to what occurred next is conflicting. It is the defendant's claim that he was attacked by Smith and that following a scuffle defendant drew his revolver and shot him. The dying man then fled from the home only to be tackled at the front of the house by a neighbor. It was at this point, at the front yard gate, that police were later to find a *562 knife, an item which has special significance on this appeal.
The defendant at trial contended that the killing was justified on the grounds of self-defense. He based this contention on the reputation the victim allegedly had for carrying a knife (claiming that he was generally regarded as a "knifer"), testifying at trial that it was a resultant fear of bodily injury that caused him to shoot the decedent. No evidence that decedent was carrying a knife at the time of the shooting was presented at trial, a fact which the prosecution brought to the attention of the jury. It was not until after the trial and the conviction that defendant's counsel learned that the police had discovered a knife at the home and that it had remained in their custody in the police property room.
Upon learning of the knife, the defendant filed in the trial court a motion for a new trial on the grounds that, one, new and material evidence had been discovered, and two, that the prosecuting attorney was guilty of misconduct in failure to produce the knife at trial. The trial court took the motions under advisement and subsequently denied a new trial.
Rule 310 of the Arizona Rules of Criminal Procedure, 17 A.R.S. provides that if new and material evidence is discovered, which, if introduced at trial would probably have changed the verdict or the finding of the court, and the defendant could not with reasonable diligence have discovered and produced it upon the trial, the court shall grant a new trial.
In the case of State v. Love, 77 Ariz. 46, 266 P.2d 1079, this court said it is largely in the discretion of the trial court as to whether a new trial on the ground of newly discovered evidence shall be granted and its action in overruling such motion will not be reversed unless an abuse of discretion manifestly appears. We have no quarrel with this appellate principle, and if it were not for the peculiar circumstances indicating a suppression of the fact that a knife had been found near the scene of the crime, we would not quarrel with the over-all discretion exercised by the trial court judge.
Article 2, § 4 of the Constitution of Arizona, A.R.S. and Amendment XIV to the Federal Constitution provide that no person shall be deprived of his life or liberty without due process of law. By decision of the United States Supreme Court, due process is violated if the prosecution suppresses evidence favorable to an accused who has requested it where the evidence is material either to his guilt or to his punishment. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In the Brady case the defendant had participated in a robbery with another, during which a man was killed. Prior to trial, the defendant requested an examination of the extrajudicial statements made by his companion. Several of the statements were shown to him but the one in which the companion admitted to having committed the actual killing was not revealed until after the defendant had been tried and convicted. The United States Supreme Court affirmed the Maryland Court of Appeals holding that suppression of the above evidence denied defendant due process of law.[1]
There has been some debate following the Brady decision, supra, concerning the limits of its holding. See Suppression of Evidence Favorable to an Accused, 34 F.R.D. 87; The Constitutional Disclosure Duty and the Jencks Act, 40 St. John's Law Review 206; 60 Columbia L.Rev. 858 (1960); 74 Yale L.Rev. 136. Some critics seem to feel that the Brady case should be limited to a pronouncement on "discovery" rights or read in close conjunction with the federal Jencks Act which entitles the accused in a federal prosecution to all previous statements made by a government witness relating to the subject matter of the witness' trial testimony, while others feel that it is strictly related to the duty of the prosecution to disclose material evidence.
*563 Cases subsequent to Brady, supra, however recognize a broad duty on the part of the prosecution to disclose evidence favorable to the defendant. In the case of United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2nd Circuit, 1964) the facts differed from Brady in that the defense counsel had made no request for the material, though undisclosed, evidence, but the court held that such request "is not a sine qua non to establish a duty on the prosecution's part." The court held that the prosecution was duty bound to disclose to a robbery defendant the existence of two disinterested eyewitnesses who would have testified that the prisoner had not participated in the robbery, and that failure to do so denied the prisoner a fair trial.
In Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Circuit, 1964) the Fourth Circuit Court of Appeals held that a defendant had likewise been denied due process of law when the prosecution failed to reveal the results of ballistic and fingerprint tests which tended to show that defendant's revolver, which had been introduced for identification purposes only, was not the one used to shoot a policeman, an act with which defendant had been charged.
A number of state courts also have accepted in various forms the proposition that the prosecutor is under a duty to make disclosure of evidence in his possession which relates to the charges being brought against the defendant and that a conviction cannot stand when the prosecutor has either wilfully or negligently withheld material evidence favorable to the defendant. State v. Thompson, Mo., 396 S.W.2d 697; People v. Yamin, 45 Misc.2d 407, 257 N.Y.S.2d 11; Newton v. State, Fla.App., 178 So.2d 341; McMullen v. Maxwell, 3 Ohio St.2d 160, 209 N.E.2d 449.
In the present case we are faced with the question of whether the failure of the state to reveal the relevant physical evidence found at the scene of the crime constituted a denial of due process. That many courts have recently found that the state has an obligation to disclose certain types of evidence certainly seems just when the duties of the prosecution are considered in their proper perspective. Both prosecutors and the police, as public officers acting on behalf of the state, are sworn to uphold the law and are duty bound to protect the rights of the innocent as well as to prosecute the guilty. Their primary duty is not to convict, but to see that justice is done. Canon 5, Canons of Professional Ethics. A prosecutor who fails to reveal evidence that clearly would aid the accused's defense would seem to have lost sight of his proper objective. Should his failure be a deliberate attempt to employ defendant's unknowingness to the prosecution's own advantage, his actions would become particularly reprehensible. Indeed, if the prosecutor in the instant case had learned of the knife in the police's custody, his following argument in summation before the jury would make him deserving of such reprehension:
"You will recall that great effort was made to indicate the bad character of Willie Lee Smith. He is referred to as a knife carrier. Was there any evidence of the knife on Willie?"
As was said in Curran v. State of Delaware, 3 Cir., 259 F.2d 707, 711, "* * * [T]he trial of a capital case, or indeed any other trial, no longer can be considered properly a game of wits and skill." A man faced with the possible prospects of losing his life or being subjected to an extended prison term should not be denied, at the whim of the state, evidence which may be vital to his defense. A defendant's right to a fair trial must not be regarded lightly. In State v. Wallace, 83 Ariz. 220, 319 P.2d 529, we said that when a man is charged with a homicide, the accused has a right to support his defense with all the circumstances of the occurrence. It would be wrong now for this court to permit public officers to stand in the way of the exercise of this right.
The arguments in this case against finding a duty of disclosure are not convincing. The state justifies its action in *564 not revealing the knife by concluding that there was insufficient foundation to make it admissible as evidence. The reasons | {
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979 F.2d 856
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.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST;Trustees of the Electrical Workers Pension Trust,Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, A Nevadacorporation, Grant General Contractors, Inc., a Californiacorporation; Paragon Construction, Inc., A Nevadacorporation; Weyher Bros. Co.; Tibesar Construction Co., aNevada corporation, and Doe Corporations and Doe Individuals1 through 5, Defendamts-Appellees.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST,et al., Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, a Nevadacorporation, et al., Defendants-Appellees.TRUSTEES OF THE ELECTRICAL WORKERS HEALTH AND WELFARE TRUST;Trustees of the Electrical Workers Pension Trust; Trusteesof the National Electrical Industry Fund; Members of theJoint Apprenticeship Training Committee; National EmployeesBenefit Board; Trustees of the Electrical Workers VacationSavings Plan Trust, Plaintiffs-Appellants,v.MARJO CORPORATION, d/b/a Desert Valley Electric, a NevadaCorporation; Grant General Contractors, Inc., a Californiacorporation; Paragon Construction, Inc., a Nevadacorporation; Tibesar Construction Co., a Nevadacorporation, and Doe Corporations and Doe Individuals 1through 5, Defendants-Appellees.
Nos. 91-16150, 91-16581 and 91-16610.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 6, 1992.Decided Nov. 16, 1992.Redesignated an Authored OpinionMarch 16, 1993.
1
THE COURT HAS WITHDRAWN THIS OPINION. SEE 988 F.2d 865.
| {
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0522n.06
No. 08-5715
FILED
Jul 28, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
ANDRE THOMAS SAWYERS, )
)
OPINION
Defendant-Appellant. )
_______________________________________)
Before: MOORE and ROGERS, Circuit Judges; THAPAR,* District Judge.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Andre Sawyers
(“Sawyers”) appeals his below-guidelines sentence of 246 months of imprisonment, resulting from
a conviction for one count of possession with intent to distribute five or more grams of cocaine base
and one count of possessing firearms as a convicted felon. Sawyers was originally sentenced on
April 7, 2003, to 262 months of imprisonment, but we vacated this sentence and remanded to the
district court for resentencing in light of the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005). The district court resentenced Sawyers on May 13, 2008. In the instant appeal,
Sawyers claims that his new sentence is substantively unreasonable. For the reasons discussed
below, we AFFIRM Sawyers’s sentence.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
I. FACTS AND PROCEDURE
The facts of this case are not in dispute. In 2003, Sawyers was convicted of one court of
possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (Count One), and one count of being a felon in possession of firearms in violation of 18
U.S.C §§ 922(g)(1) and 924(a)(2) (Count Three). The district court sentenced Sawyers to 262
months of imprisonment for Count One and 120 months of imprisonment for Count Three, to be
served concurrently. Sawyers appealed his sentence, we affirmed, and the Supreme Court denied
Sawyers’s petition for a writ of certiorari. On May 21, 2005, Sawyers filed a 28 U.S.C. § 2255
motion asking the district court to vacate, set aside, or correct his sentence, which the district court
denied. Sawyers appealed and, while that appeal was pending, we granted an unopposed motion to
remand for resentencing in light of United States v. Booker.
During resentencing, the parties and the court were provided a PSR that noted that Sawyers
was a career offender and that he (1) was enrolled in several education classes; (2) had completed
two six-week drug education classes and was enrolled in two more such classes; (3) had no
disciplinary or incident reports while in prison; and (4) had paid his $200 special assessment. In
response to the PSR, Sawyers filed both a sentencing memorandum and a supplemental sentencing
memorandum. Neither memorandum asserted that the PSR miscalculated the guidelines range, or
that Sawyers was not a career offender. In fact, Sawyers conceded that “[t]he new retroactive ‘crack
cocaine amendment’ to the guidelines effectively has no applicability to Mr. Sawyers’ Guidelines
range as Mr. Sawyers[] is a career offender under the Guidelines.” Record on Appeal (“ROA”) at
27 (Sawyers’s Sent. Mem. at 5). Sawyers did argue that the district court should vary downward
from the guidelines range to time served (approximately 61 months at the time of the resentencing
2
hearing) because Sawyers (1) was convicted of possessing only a small amount of drugs; (2) was an
addict who sold drugs primarily to support his habit; (3) was now 49 years old; (4) had two daughters
and a stepdaughter who support him; (5) had only one prior drug conviction from twelve years before
the instant offense; (6) has significant health problems, including hypertension, non-insulin-
dependent diabetes mellitus, degenerative joint disease, hepatitis C, and obesity; and (7) had paid
his special assignment and was participating in drug abuse and educational programs while
incarcerated. Sawyers further contended that the district court should vary downward because “his
career offender status overstates his true criminal history,” ROA at 27-28 (Sawyers’s Sent. Mem. at
5-6), and that, at the very least, his sentence should be reduced by sixteen months because the Bureau
of Prisons improperly denied Sawyers credit for his pretrial detention.
The district court resentenced Sawyers to 246 months of imprisonment.1 In so doing, the
district court concluded that Sawyers was a career offender and was thus subject to an offense level
of 34, a criminal history category of VI, and a guidelines range of 262 to 327 months of
imprisonment. The district court also listed the 18 U.S.C. § 3553(a) factors, noted that it was aware
of the advisory nature of the guidelines, and explained its rationale for sentencing Sawyers to 246
months:
In terms of the Section 3553(a) factors of what a sentence is sufficient but not
greater than necessary, . . . the defendant emphasizes his current age of 49, his poor
health, relatively small amount of drug quantity, his efforts to better himself in prison
and his good conduct in prison. And asks for essentially a time served sentence of
61 months.
...
1
Sawyers was also sentenced to four years of supervised release, several special conditions,
and assigned a $200 special assessment. Sawyers does not challenge these aspects of his sentence.
3
The view of the Court is that this case is not just about what’s been
characterized as ten grams of cocaine and 25 grams of marijuana and two guns. It
is also about Mr. Sawyers’ criminal history which contrary to the way it has been
characterized on his behalf, the Court views this very serious[ly]. Not just that he
is in Criminal History Category VI because of career offender status, but the nature
of the convictions: 1993, voluntary manslaughter conviction where Mr. Sawyers
killed Nathaniel Newsom, and a 1993 reckless endangerment with a weapon
conviction where he shot a man in the head and the groin area. Those are the types
of crimes that the career offender status is meant to cover and, in the opinion of the
Court, outweigh the mitigating factors in 3553 that I went over earlier about health
and age and conduct in prison, efforts to better himself.
And the Court also finds that a 61 months sentence of time served is not
adequate to reflect the seriousness of the crime, [given] Mr. Sawyers’ criminal
history.
Having said that, I think that it is appropriate to reduce Mr. Sawyers’ sentence
in part from the advisory guideline range. I recognize the advisory guideline range
is not binding. And I am relying on the factor in 3553(a) dealing with the nature and
circumstances of the offense and the history and characteristics of Mr. Sawyers
dealing with the failure of the Bureau of Prisons to give him credit for time served.
...
So the bottom line is the Court has considered the advisory guideline range
which in its current status is 262 months. Mr. Bruno has represented that essentially
Mr. Sawyers has not gotten credit for 16 months custody. That hasn’t been
challenged as inaccurate. Subtract 16 months from the bottom of the guideline range
of 262 months, you get 246 months sentence.
Mr. Sawyers, I believe that’s the sentence that’s sufficient but not greater than
necessary in this case.
Record (“R.”) at 106 (Resent. Hr’g Tr. at 23-26) (emphases added).
The district court then asked the parties if they had any objections, to which Sawyers’s
counsel responded that he thought that “the 246 months sentence is greater than necessary in this
particular case” and that “the Court [did not give] any weight to the mitigating factors related to Mr.
4
Sawyers and his family and his behavior since he’s been incarcerated.” R. at 106 (Resent. Hr’g Tr.
at 29-30). The district court responded that
the view of the Court is that the career offender status doesn’t overstate Mr.
Sawyers’ criminal history but reflects what the career offender statute | {
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Cite as 2014 Ark. 413
SUPREME COURT OF ARKANSAS
No. CR-13-1067
JEREMY CLAY THOMPSON Opinion Delivered OCTOBER 9, 2014
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63CR-12-442A-3]
STATE OF ARKANSAS HONORABLE GRISHAM PHILLIPS,
APPELLEE JUDGE
REVERSED AND DISMISSED.
DONALD L. CORBIN, Associate Justice
Appellant Jeremy Clay Thompson appeals the order of the Saline County Circuit
Court convicting him of the offense of failure to appear, a Class C felony, and sentencing him
to a term of imprisonment of seven years. On appeal, he argues that the circuit court erred
in denying his motion for a directed verdict because there was insufficient evidence to support
his conviction because he had not yet been charged with a crime when he failed to appear.
We accepted certification of this case from the Arkansas Court of Appeals because it involves
an issue of first impression and an issue needing clarification of the law; hence, our jurisdiction
is pursuant to Arkansas Supreme Court Rule 1-2(b)(1) and (5) (2014). We reverse and
dismiss.
Appellant was arrested on August 21, 2012, for the felony offense of theft of property.
He was arrested pursuant to a warrant issued by the Saline County Circuit Court on
Cite as 2014 Ark. 413
August 17, 2012.1 Appellant signed an “Appearance Agreement” on August 22, 2012,
agreeing to appear in the Saline County District Court on September 4, 2012, at 1:00 p.m.
and agreeing to pay an unsecured cash bond of $2,500, which required him to pay $250 that
day. This agreement was signed by Appellant and the Saline County sheriff. Appellant did
not appear in district court that day as required, and the Saline County district judge issued
an arrest warrant for Appellant on the theft charge and a failure-to-appear charge. The State
subsequently filed a felony information on September 26, 2012, alleging that Appellant
committed the offenses of theft of property, a Class D felony, failure to appear, a Class C
felony, and was a habitual offender. After Appellant was arrested again, he appeared before
a district judge and was released by order of the district court pursuant to a “Pre-Trial Release
Order,” entered on November 21, 2012. Pursuant to this order, Appellant was required to
post a $15,000 sheriff’s bond and was to appear in district court on December 11, 2012. This
order also advised Appellant that a violation of the order could “result in sanctions including
arrest, imposition of additional costs and/or revocation of Defendant’s release.”
Appellant again appeared in district court on the required date. Thereafter, on
December 13, 2012, the district court entered an appearance order stating that Appellant had
been informed of the pending charges, had waived a formal reading, had entered a plea of not
1
At the bottom of this arrest warrant there is a “Return of Service” that was to be
completed by the sheriff or deputy sheriff upon Appellant’s arrest and includes a blank to fill
in the amount of bail ordered, as well as a blank for the signature of a judge. This was all left
blank on Appellant’s arrest warrant.
2
Cite as 2014 Ark. 413
guilty, and had been ordered to appear in the Saline County Circuit Court on December 17,
2012.
A jury trial was held on June 5, 2013, at which time the State nol-prossed the theft-
of-property charge. Following the presentation of the State’s evidence, Appellant moved for
a directed verdict. In so doing, Appellant argued that the State failed to meet its burden of
proof because at the time of the alleged failure to appear, Appellant had not been formally
charged with a criminal offense. The circuit court denied the motion. Appellant renewed
his directed-verdict motion at the close of all the evidence, but the circuit court again denied
it. Prior to the court instructing the jury, Appellant proffered a nonmodel jury instruction
setting forth the offense of failure to appear, which included an element that a formal charge
was pending at the time Appellant failed to appear. The circuit court declined to give this
instruction. The jury found Appellant guilty and sentenced him as a habitual offender to a
term of seven years’ imprisonment. This appeal followed.
Appellant’s sole point on appeal is that the circuit court erred in denying his motion
for a directed verdict because he could not be convicted of the offense of felony failure to
appear when he had not yet been charged with any criminal offense. The State counters that
the circuit court properly denied Appellant’s motion because, even assuming that there must
be a felony charge pending at the time Appellant failed to appear, the theft-of-property charge
3
Cite as 2014 Ark. 413
was pending in the sense that there was a pending offense awaiting the filing of formal
charges.2
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of
the evidence. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. In reviewing a challenge
to the sufficiency of the evidence, this court determines whether the verdict is supported by
substantial evidence, direct or circumstantial. See id. Substantial evidence is evidence forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. See
id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the
evidence is viewed in the light most favorable to the State. See Sullivan v. State, 2012 Ark.
74, 386 S.W.3d 507.
The issue in this appeal turns on the language found in the failure-to-appear statute,
codified at Arkansas Code Annotated section 5-54-120. The version of the statute, which is
applicable in this case, provided as follows:
(a) A person commits the offense of failure to appear if he or she fails to appear
without reasonable excuse subsequent to having been:
....
(2) Lawfully set at liberty upon condition that he or she appear at a
specified time, place, and court.
2
We disagree with the State’s assertion that Appellant’s argument is not preserved for
our review because “the jury was not instructed to consider the pendency of the theft charge
as an element of failure to appear.” The issue of which instructions were given is irrelevant
to a review of a directed-verdict motion, because that motion is decided by the circuit court
before the case is submitted to a jury.
4
Cite as 2014 Ark. 413
(b) Failure to appear is a Class C felony if the required appearance was in regard
to a pending charge or disposition of a felony charge either before or after a
determination of guilt of the charge.
Ark. Code Ann. § 5-54-120(a)(2), (b) (Supp. 2011).
Clearly, under section 5-54-120(b), the offense of failure to appear can only be a Class
C felony if the required appearance was “in regard to a pending charge or disposition of a
felony charge either before or after a determination of guilt of the charge.” Appellant asserts
that the word “pending” as used in section 5-54-120(b) necessarily contemplates that a charge
has already been filed against an accused. The State counters that such an interpretation defies
basic rules of statutory construction.
This court reviews issues of statutory interpretation de novo, as it is for this court to
decide the meaning of a statute. See Newman v. State, 2011 Ark. 112, 380 S.W.3d 395. We
construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We
also adhere to the basic rule of statutory construction, which is to give effect to the intent of
the legislature. See id. We construe the statute just as it reads, giving the words their ordinary
and usually accepted meaning in common language, and if the language of the statute is plain
and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to
rules of statutory interpretation. See id.
Under these rules, we must first look to the plain language of the statute and only then,
if the language is ambiguous, do we resort to the rules of statutory interpretation. In Webster’s
New World Dictionary 998 (3d College ed. 1988), the word “pending” in its adjective form is
defined as “not decided, determined, or established.” The definition uses the example “a
5
Cite as 2014 Ark. 413
pending lawsuit” to illustrate the word’s meaning. Similarly, Black | {
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
130
CAF 15-01276
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF MADISON J.S., TYLER D.S.,
BENTLEY P.S., AND BROOKE R.S.
--------------------------------------------- MEMORANDUM AND ORDER
STEUBEN COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-APPELLANT;
VICTORIA M. AND JASON W.,
RESPONDENTS-RESPONDENTS.
CASEY E. ROGERS, BATH, FOR PETITIONER-APPELLANT.
SALLY A. MADIGAN, ATTORNEY FOR THE CHILDREN, BATH.
Appeal from an order of the Family Court, Steuben County (Joseph
W. Latham, J.), entered July 27, 2015 in a proceeding pursuant to
Family Court Act article 10. The order, insofar as appealed from,
dismissed the petition insofar as it alleged that Madison J.S., Tyler
D.S. and Brooke R.S. were derivatively neglected by respondents.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner appeals from an order that, insofar as
appealed from, dismissed its petition to the extent that it alleged
that Madison J.S., Tyler D.S., and Brooke R.S. (the subject children)
were derivatively neglected by respondents. We affirm. Although
Family Court determined that respondents neglected Bentley P.S., a
sibling of the subject children, and Family Court Act § 1046 (a) (i)
permits evidence of that neglect to be considered in determining
whether the subject children were neglected, “the statute does not
mandate a finding of derivative neglect” (Matter of Jocelyne J., 8
AD3d 978, 979), and “such evidence typically may not serve as the sole
basis of a finding of neglect” (Matter of Evelyn B., 30 AD3d 913, 914,
lv denied 7 NY3d 713). Because there is no evidence in the record
that the “neglect was repeated . . . [or] was perpetrated on multiple
victims,” and it is unclear whether the subject children “were nearby
when the [neglect] occurred” (Matter of Cadejah AA., 33 AD3d 1155,
1157), we conclude that the court did not err in refusing to make a
finding of derivative neglect.
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court
| {
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68 F.3d 469
In Matter of Patricio Mujica*
NO. 94-30330
United States Court of Appeals,Fifth Circuit.
Sept 11, 1995
Appeal From: M.D.La., No. CA-93-0261-B
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
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569 So.2d 782 (1990)
Guadalupe GONZALEZ, Appellant,
v.
STATE of Florida, Appellee.
No. 88-2542.
District Court of Appeal of Florida, Fourth District.
October 10, 1990.
Rehearing and Certification Denied December 5, 1990.
*783 Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Alfonso M. Saldana, Asst. Atty. Gen., West Palm Beach, for appellee.
STONE, Judge.
We affirm appellant's conviction and sentence, except as to costs. The appellant was charged with one count of second-degree murder, with a firearm, and three counts of attempted second-degree murder, with a firearm. The shootings occurred in a barroom. The appellant was convicted of the lesser included offenses of third-degree murder, with a firearm, and three counts of aggravated battery, with a firearm. The court enhanced the third-degree murder conviction, a second-degree felony if committed without a firearm, to a first-degree felony.
The appellant first argues that the state systematically excluded a black juror by the exercise of a peremptory challenge. He additionally asserts that the court may not enhance the conviction to a first-degree felony.
The appellant objected to the excusing of one juror. That juror stated that one of her children had some kind of conflict with the law and had gone to trial within the past year. The excused juror was Afro-American, the defendant was of Hispanic descent. The appellant notes that another juror, who stated that she had been raised in Mexico and worked for the Immigration and Naturalization Service, had been excused earlier without objection. However, there is nothing in the record to indicate that she was a member of a particular minority group.
The appellant has failed to meet his burden of demonstrating a substantial likelihood that the challenges were motivated solely by race. The trial court, specifically referring to the statements and responses in voir dire, found that there was no racial motivation for the challenges. Additionally, the court recognized that the appellee could offer a racially neutral explanation, supported by the record, for the challenge. The involvement of a juror's close family member with the law is a valid reason for a peremptory challenge. Cf. Sampson v. State, 542 So.2d 434 (Fla. 4th DCA 1989). See also United States v. Vaccaro, 816 F.2d 443 (9th Cir.1987), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). The state is not required to provide any additional explanation. See Reed v. State, 560 So.2d 203 (Fla. 1990); Smith v. State, 562 So.2d 787 (Fla. 1st DCA 1990); Davis v. State, 560 So.2d 1346 (Fla. 3d DCA 1990); Verdelotti v. State, 560 So.2d 1328 (Fla.2d DCA 1990); Adams v. State, 559 So.2d 1293 (Fla. 3d *784 DCA), dismissed, 564 So.2d 488 (1990); Stephens v. State, 559 So.2d 687 (Fla. 1st DCA 1990); Knight v. State, 559 So.2d 327 (Fla. 1st DCA 1990).
Third-degree murder, a second-degree felony, may be enhanced to a first-degree felony if the defendant uses a firearm. See § 775.087(1)(b), Fla. Stat. Cf. Andrade v. State, 564 So.2d 238 (Fla. 3d DCA 1990); State v. Smith, 470 So.2d 764 (Fla. 5th DCA 1985), approved, 485 So.2d 1284 (1986). However, the appellant argues that his use of the firearm was an essential element of the crime. The court gave the third-degree murder charge, at the defendant's request, to afford him the benefits of a lesser included offense conviction, notwithstanding some question as to whether there was a basis for it in the record. We note that the appellant does not challenge his conviction nor deny that the verdict form included a finding that he committed the offense with a firearm. Appellant simply asserts that his use of the firearm must be considered an essential element.
However, the mere fact that a firearm is used in the commission of a crime does not necessarily make it an essential element of that crime. Cf. Ingraham v. State, 527 So.2d 222 (Fla. 5th DCA), rev. denied, 534 So.2d 400 (1988); Strickland v. State, 415 So.2d 808 (Fla. 1st DCA 1982), aff'd., 437 So.2d 150 (1983); Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981); Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981). We acknowledge conflict with Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989).
Therefore, the judgment and sentence, except as to costs, is affirmed. As to costs, the sentence is reversed and remanded for resentencing. See Mays v. State, 519 So.2d 618 (Fla. 1988); Jenkins v. State, 444 So.2d 947 (Fla. 1984).
POLEN, J., concurs.
ANSTEAD, J., concurs in part and dissents in part with opinion.
ANSTEAD, Judge, concurring in part and dissenting in part.
I concur in the affirmance of appellant's conviction but disagree as to the enhancement issue.
In Lareau v. State, 554 So.2d 638 (Fla. 4th DCA 1989), this court noted that a defendant convicted of aggravated battery by using a weapon, may not be subjected to further enhancement of the penalty because when so charged the use of a weapon is an essential element under the aggravated battery offense set out in section 784.045(1)(b). This is true even though the offense of aggravated battery may be alleged and proven without involvement of a weapon. See also Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989); Costantino v. State, 521 So.2d 338 (Fla. 4th DCA 1988). In other words, we have previously held that even though use of a weapon is not a necessary element in every aggravated battery case, when it is charged that way it is not proper to enhance the conviction. The same situation is involved herein where the appellant was convicted of third degree murder and the predicate felony involved the use of a weapon.
In Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982), the First District determined that since it was necessary to prove aggravated assault involving the use of a firearm in order to establish a felony murder conviction, the elements of the underlying felony were essential to the felony murder conviction. Accordingly, the enhancement statute was inapplicable to such a conviction. The court applied the same logic with respect to a homicide conviction with an underlying charge of shooting into an occupied vehicle in Vause v. State, 424 So.2d 52 (Fla. 1st DCA 1982). Although reversed on other grounds, the supreme court approved the First District's opinion as it related to the instant issue in Vause v. State, 476 So.2d 141 (Fla. 1985).
In Pinkerton v. State, 534 So.2d 425 (Fla. 5th DCA 1988), the Fifth District similarly disapproved enhancement in a third degree murder case where aggravated battery was the underlying felony:
"While it is true that an aggravated battery may be committed without use of a deadly weapon, in this case the jury specifically found that defendant had committed *785 the aggravated battery under subsection (b) of the statute, i.e. while using a deadly weapon."
534 So.2d at 426.
Recently, in Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989), the Second District held that the defendant's conviction for third degree murder could not be enhanced where the jury was instructed that in order to convict, it had to find that the defendant had used a weapon in committing an aggravated battery on the victim. In reaching its conclusion, the court reasoned:
First, under Miller v. State, 460 So.2d 373 (Fla. 1984), appellant's second degree murder charge, for purposes of reclassification, included all lesser offenses. Thus, he was effectively charged with third degree murder. Second, although all third degree murder charges do not necessarily involve the use of a weapon (section 782.04(4), Florida Statutes (1987)), the information here specifically charged appellant with the use of a weapon. Third, the third degree murder jury instruction specifically required that in order to find appellant guilty of third degree murder, the jury would have to find that appellant had used a deadly weapon in the course of a battery. Finally, the jury was asked to and did make a specific finding that appellant used a weapon during the commission of the offense.
541 So.2d at 1228-1229.
In State v. Trejo, 555 So.2d 1321 (Fla. 2d DCA 1990), the court applied the same reasoning in striking an enhancement.
In the instant case, the appellant was charged with second degree homicide "by shooting said Vincente Jimenez with a firearm." The lesser-included third degree murder conviction was specifically based on the underlying charge of unlawful discharge of a destructive device | {
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NO. 07-05-0344-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 12, 2006
______________________________
TRAVIS NEALY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140
TH
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-408,476; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ.
Appellant Travis Nealy appeals his conviction for aggravated assault with a deadly weapon after entering an open plea of guilty. His sole issue involves the sufficiency of the evidence to support the conviction. We overrule the issue and affirm the judgment of the trial court.
Appellant was charged with “intentionally, knowingly, and recklessly caus[ing] bodily injury to Sherry Thomas, by driving and operating [a] motor vehicle and causing said motor vehicle to collide with a motor vehicle operated by the said Sherry Thomas . . . .” Furthermore, he contends that the State failed to prove he drove recklessly since he did not remember driving, he was intoxicated, and his conduct only resulted in Thomas suffering minor injuries. According to the record evidence, the vehicles collided after appellant ran a red light at the same time Thomas attempted to drive through the intersection. This was not his first collision that morning, however. Minutes before striking Thomas, he had not only used his van to push a vehicle stopped at a red light but also side-swiped another car. So too had he struck barrels, cones, and curbs appearing on or adjacent to the roadway during the same excursion. Moreover, appellant did not stop after any of these prior incidents but continued on. Indeed, his progress was halted only after colliding with Thomas because his vehicle was rendered inoperable. He also conceded that although he had no recollection of driving that night, his conduct put others at risk. Because voluntary intoxication is not a defense to the commission of a crime,
Tex. Pen. Code Ann.
§8.04(a) (Vernon 2003);
Reyna v. State,
11 S.W.3d 401, 402 (Tex. App.–Houston [1
st
Dist.] 2000, pet. ref’d, untimely filed),
the foregoing evidence was and is sufficient to allow a rational jury to conclude beyond reasonable doubt that appellant drove or otherwise operated his vehicle recklessly.
(footnote: 1)
See
Tex. Pen. Code Ann.
§ 6.03(c) (Vernon 2003) (stating that a
person acts recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur);
Blott v. State,
588 S.W.2d 588, 592 (Tex. Crim. App. 1979) (holding that the jury could have inferred from the fact that the defendant drove erratically on the wrong side of the road for a number of miles in broad daylight without any recollection that he was aware of the risk and chose to ignore it).
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
FOOTNOTES
1:In so holding, we need not rely on the State’s contention that appellant executed a judicial confession sufficient, in and of itself, to support the conviction. The confession alluded to appeared in a document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” Furthermore, it consisted of the following passage: “I understand the foregoing allegations and I confess that they are true.” Yet, absent from the document is a description or definition of the “foregoing allegations.” Whether they were the allegations in the indictment or some other is unknown. Nor did the trial court clarify the matter before accepting the plea and finding him guilty.
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319 B.R. 795 (2005)
In re M GROUP, INC., Debtor.
Larry Waslow, in his capacity as Unsecured Claims Administrator of M Group, Inc., Plaintiff,
v.
Dover Findings, Inc., Defendant.
Bankruptcy No. 00-1936-JKF. Adversary No. 02-3324-JKF.
United States Bankruptcy Court, D. Delaware.
January 20, 2005.
*796 Bradford J. Sandler, Adelman, Lavine, Gold and Levin, PC, Duane David Werb, Werb & Sullivan, Wilmington, DE, for Larry Waslow, in his capacity as Unsecured Claims Administrator of M Group, Inc.
Joanne Bianco Wills, Stephanie Ann Fox, Steven K. Kortanek, Klehr, Harrison, Harvey, Branzburg & Ellers, Victoria Watson Counihan, Greenberg Traurig, LLP, Wilmington, DE, for The Monet Group, Inc.
Jeffrey Philip Wasserman, Ciconte, Roseman & Wasserman, Wilmington, DE, for Dover Findings.
MEMORANDUM OPINIONS [1]
JUDITH K. FITZGERALD, Bankruptcy Judge.
Before the court are cross motions for summary judgment regarding avoidance and recovery of preferential transfers. In his complaint, the Unsecured Claims Administrator of the Debtor's estate ("UCA") asserts that within ninety days prepetition the Debtor issued checks totalling $24,027.34 to Dover Findings and that these payments constituted preferential transfers that are avoidable under 11 U.S.C. § 547.[2] The UCA asserts in his brief in support of his motion that "[t]he invoices attached as Exhibit 'B' show that the Transfers at issue were made on a debt that was antecedent pursuant to § 547(b)(2) because the Debtors' obligations were incurred before the Debtor made the Transfers". Dkt. No. 11 at 5 (emphasis added). In support of his motion the UCA attached checks dated from February 11, 2000, to April 7, 2000. The bankruptcy was filed on May 11, 2000. The UCA also attached invoices which he says correspond to checks dated 2/11/00
*797
2/18/00
3/03/00
3/10/00
3/17/00
3/31/00
4/7/00
See Exhibit A to Dkt. No. 11. However, it is impossible to read the copy of that portion of the invoices submitted on the same page as the copies of the checks because the copies are too faint to read the dates, invoice numbers, amounts, and other information printed thereon.[3] Furthermore, included in Exhibit A are the fronts and backs of only two cancelled checks:
Date Date
Check No. of Check Check Paid Amount
_________ _________ ____________ _______
290747 March 31, 2000 April 5, 2000 $9,379.10
291012 April 7, 2000 April 17, 2000 $1,197.02
At Exhibit B to his brief the UCA included invoices related to the transfers dated from November 17, 1999, to April 26, 2000. However, the only evidence with respect to dates payments were actually made, determined by the evidence of the dates the checks were paid by the bank, are the checks dated March 31 and April 7 referred to above.[4]See Barn-hill v. Johnson, 503 U.S. 393, 394-95, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)(for preference purposes, the date the drawee bank honors a check is the date the transfer is deemed to have been made).
With respect to its motion for summary judgment, Dover Findings provided as Exhibit A to the Supplemental Affidavit of Bruce Harris, CEO and founder of Dover Findings, Dkt. No. 16, checks and invoices dated from February 11, 2000, to March 17, 2000, including those checks dated March 31 and April 7 that the UCA relies on. With respect to the March 31 check, check number 290747 in the amount of $9,379.10, Dover Findings presents invoices totalling over $5,500 which amount does not approach the $9,379.10 for which the check was issued. With respect to the April 7 check, check number 291012 in the amount of $1,197.02, Dover Findings attaches two invoices, the total of which corresponds to the amount of the check.
Dover Findings also provided a chart captioned "Monet Group Payment Record". See Dkt. No. 16, Exhibit B to Supplemental Affidavit of Bruce Harris. This chart lists the posting date (presumably of the invoices), document type (invoice or payment), document number, amount of invoice, amount paid, and the due date of the payment. There is nothing in the record to establish whether the "amount paid" stated on the Payment Record was actually paid on the date the check was issued, the date Dover Findings received payment, or the date the checks cleared the bank. However, with respect to those invoices listed on the Payment Record as having a payment date of April 5, 2000, the same date that check number 290747 cleared the bank, the total amount of the invoices, as well as the invoice numbers, is consistent with the other evidence that check number 290747 dated March 31, 2000, and paid by the bank on April 5, 2000, totalled $9,379.10. The Payment Record contains no reference to a payment on April 17. It does, however, refer to payments on April 14, 2000, but the invoice number of only one of the two invoices Dover Findings lists as paid on April 14 corresponds to the invoices listed by the UCA as paid by the check that cleared on April 17, check number 291012.
*798 Based on the foregoing, the only conclusive evidence presented to the court of a preferential payment is that represented by check number 290747 dated March 31, 2000, and paid April 5, 2000, in the amount of $9,379.10. This amount will constitute an avoidable preference unless Dover Findings can establish that the payment was in the ordinary course of the parties' business or financial affairs and according to ordinary business terms. 11 U.S.C. § 547(c)(2)(B), (C). We find that Dover Findings has not established this defense.
In its answer to the complaint, Dover Findings denies that the elements of a preferential transfer except that the payments were made within the 90 days prepetition. In its cross motion for summary judgment, Dover Findings states that "the Transfers are not preferential because they were made in the ordinary course of business under 11 U.S.C. § 547(c)(2)." Dkt. No. 14 at ¶ 11.[5]
The elements necessary for the "ordinary course of business" exception to apply are provided in 11 U.S.C. § 547(c)(2):
(c) The trustee may not avoid under this section a transfer
(2) to the extent that such transfer was
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms.
The transferee herein, Dover Findings, has the burden of proving these three elements. 11 U.S.C. § 547(g). See also In re First Jersey Securities, Inc., 180 F.3d 504, 512 (3d Cir.1999); J.P. Fyfe, Inc. of Florida v. Bradco Supply Corp., 891 F.2d 66, 69-70 (3d Cir.1989).
The first prong of the test is not in dispute. The second prong requires that the dealings between the parties during the preference period be consistent with the prior practice between the parties. There is insufficient evidence of the parties' course of dealing before the preference period. The UCA provided invoices dating from November 1999, about three months before the preference period began. Dover Findings provided invoices from December 1999. They both provided the fronts of the same checks, including check numbers 290747 and 291012, but the parties' evidence of the number of invoices with respect to most of the checks differs and there is evidence of the date of payment only with respect to check numbers 290747 and 291012. There is no other evidence of the parties' course of dealing except the affidavit of Bruce Harris, Dover Findings' CEO and founder. See Dkt. No. 14.
In his affidavit Mr. Harris states:
5. Dover Findings and M Group entered into transactions during the period of 3/99 and 4/00 in which Dover Findings manufactured and shipped unique jewelry supplies to M Group for the production of costume jewelry.
*799 6. During the period between 3/99 and 4/00, Dover Findings sent invoices to M Group in which payment was requested within thirty days subsequent to the receipt of shipment.
7. During the pre-preference period from 3/99 to 1/00, M Group submitted a total of 82 payments, with a median of 36 days late and a mean of 38 days late. The payments ranged from 22 days after invoice to 92 days after invoice.[6]
8. During the alleged preference period, from 2/00 to 4/00, M Group submitted a total of | {
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399 So.2d 24 (1981)
The STATE of Florida, Appellant,
v.
Norman PARKER, Jr., Appellee.
No. 80-345.
District Court of Appeal of Florida, Third District.
May 19, 1981.
*26 Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellant.
Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
Before HENDRY, SCHWARTZ and FERGUSON, JJ.
HENDRY, Judge.
Appellee, defendant below, has been indicted for a series of crimes in this jurisdiction. The state sought to introduce into evidence a handgun previously seized by the Washington, D.C. police in conjunction with a shooting involving the same defendant in that jurisdiction in 1978. The court below, at a suppression hearing, ordered that the handgun seized in Washington could not be *27 introduced into evidence. The state has appealed that suppression order.
To determine the propriety of the suppression order, we must therefore review the circumstances on the evening of August 23, 1978 when the Washington, D.C. police seized the subject handgun. On that evening a barroom shooting was reported over the police radio and a lone suspect and his car were described. By automobile registration records and a physical description of the suspect, police traced the defendant to his residence near where the shooting occurred. Ms. Yerkin, an occupant of the house, opened the door to the officers who then entered without permission. Ms. Yerkin and another female occupant were ordered to stay outside on the front porch of the house. Several officers fanned out around the premises while others made a cursory search of the house. Not long after the police arrived, the defendant, unarmed and with hands raised above his head, appeared from a stairwell to the basement at the rear of the house and announced his surrender. He was then frisked, handcuffed, arrested, and transported from the scene.
After the defendant was removed, the police carefully searched the house and the fenced back yard for evidence. The police then entered the yard next door where they noticed a revolver underneath a ladder next to the basement stairwell in the defendant's yard. Photographs admitted into evidence show the gun stuck into a crevice of the stairwell next to the fence. An officer was then posted to guard the weapon until evidence technicians arrived to conduct a thorough search of the area. During this time there were approximately eight or nine policemen combing the premises for evidence. The handgun and other evidence discovered inside the house were seized although no warrant was ever obtained.[1]
On this appeal the state's primary argument is that the trial court erred in suppressing the handgun because the defendant failed to establish a reasonable expectation of privacy in the area where it was found. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
In order to establish a zone of privacy upon which the government may not intrude without first obtaining a search warrant, a person must show: (1) an actual expectation of privacy in the area in question, and (2) that the expectation of privacy is in an area that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Shapiro v. State, 390 So.2d 344 (Fla. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 1519, 67 L.Ed.2d 819 (1981).
Measured against this standard, we conclude that the defendant established a reasonable expectation of privacy in the Washington, D.C. residence and that this expectation extended to the back yard area where the gun was seized. This result is fully supported by the trial court's conclusion of law[2] that the defendant had a reasonable and legitimate expectation of privacy in the residence[3] which extended to the enclosed back yard and to the stairwell area adjoining his residence. Moreover, the defendant, by concealing the gun in the crevice, "exhibited an actual (subjective) expectation of privacy." Smith v. Maryland, supra, 442 U.S. at 740, 99 S.Ct. at 2580; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. *28 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring). The defendant has thus fulfilled the first prong of the two-part test for invoking the protection of the fourth amendment.
The defendant has also satisfied the second requirement that the expectation of privacy be in an area recognized as reasonable by society, since one's dwelling has long been regarded as constituting a zone of privacy. This theory is rooted partly in real and personal property concepts and partly in society's recognition of a person's right to act as he wishes in certain places. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Morsman, 394 So.2d 408 (Fla. 1981); Norman v. State, 379 So.2d 643 (Fla. 1980).
This expectation of privacy one has in his home has traditionally been extended to include the area surrounding and related to the dwelling. See Fixel v. Wainwright, 492 F.2d 480 (5th Cir.1974) (privacy expectation of defendant who occupied one unit of a four-unit apartment building held to extend to enclosed rear yard or curtilage not normally used as a common passageway); Norman v. State, 379 So.2d 643 (Fla. 1980) (holding that tobacco barn within fenced farm was included in expectation of privacy); State v. Morsman, 394 So.2d 408 (Fla. 1981) (defendant's expectation of privacy held to extend to rear unenclosed yard of residence); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977) (reasonable expectation of privacy in hothouse located behind defendant's house, notwithstanding the fact that it was constructed of clear plastic sheets). Accord State v. Johnson, 301 N.W.2d 625 (N.D. 1981) (reasonable expectation of privacy in an unenclosed area to one side of defendant's home).
What a person seeks to preserve as private may be constitutionally protected despite the fact that it is in an area accessible to the public. Katz v. United States, supra. Accordingly, there is even more compelling justification for finding a zone of privacy in the area where the defendant hid the gun since it was in an enclosed back yard not accessible to the public. Generally, the back yard is considered more private than the front because passersby cannot view this area. See Fixel v. Wainwright, supra; State v. Morsman, supra; Norman v. State, supra. Although the defendant's back yard was visible to his neighbors, he still had a reasonable expectation of privacy there as to the public in general, especially as to the location of the revolver, since it was secreted in a crevice not readily visible to the untrained eye. Compare with Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (Fla. 1978) where the defendant had marijuana plants growing out in the open, exposed to view. Consequently, we find that the defendant had an actual expectation of privacy in the back yard of his home, and that this area is recognized as a zone of privacy.
Having determined that the defendant may claim the protection of the fourth amendment, we must next decide whether the state has justified the intrusion by demonstrating an exception to the warrant requirement. Warrantless searches are "per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and the burden is on the state to demonstrate that the procurement of a warrant was not feasible because "the exigencies of the situation made that course imperative." Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Norman v. State, supra; Hornblower v. State, 351 So.2d 716 (Fla. 1977).
The state attempts to justify the search and seizure by reliance on several well established exceptions to the warrant requirement.
First, the state argues that the police action here was reasonable based on the existence of probable cause and exigent circumstances. Specifically, the state claims that a gun is a dangerous instrumentality *29 and, knowing that a weapon was involved in the incident, the police were justified in locating it and removing it from the scene so no one would get hurt. This argument is specious. Officers were posted all over the property, and | {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1072
___________
George W. Carlisle, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Missouri Department of Economic *
Development, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: February 13, 2008
Filed: March 7, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
George Carlisle, an African-American male, appeals the district court’s1 adverse
grant of summary judgment in his Title VII action alleging that the Missouri
Department of Economic Development discriminated against him when it failed to
employ him for four positions. Having carefully reviewed the record, we conclude
summary judgment was proper. Accordingly, we affirm for the reasons set forth in
the district court’s well-reasoned opinion. See 8th Cir. R. 47B.
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
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539 U.S. 945
Lutherv.Superior Court of California, Los Angeles County.
No. 02-10176.
Supreme Court of United States.
June 23, 2003.
1
Appeal from the Ct. App. Cal., 2d App. Dist.
2
Certiorari denied.
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501 F.Supp. 158 (1980)
William L. PALOMBI
v.
GETTY OIL COMPANY t/a Getty.
Civ. A. No. 79-1103.
United States District Court, E. D. Pennsylvania.
October 27, 1980.
*159 Kenneth M. Rodgers, Philadelphia, Pa., for plaintiff.
Richard G. Schneider, Philadelphia, Pa., for defendant.
MEMORANDUM OPINION
BECHTLE, District Judge.
This action arose out of defendant Getty Oil Company's ("Getty") termination of plaintiff William L. Palombi ("Palombi") as the operator of a service station following some events deemed by defendant to be grounds upon which the franchise should be terminated, including Palombi's conviction in the United States District Court for price-gouging. This Memorandum Opinion is filed in support of the Court's Order of September 8, 1980, granting defendant's motion for summary judgment on plaintiff's only remaining claim.[1]
*160 A motion for summary judgment under Fed.R.Civ.P. 56 must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The evidence presented to the Court, and the inferences to be drawn therefrom, "must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
Based on these standards, the Court finds that the record supports the following findings of fact: In 1968, Palombi entered into a "lease" for a service station from Getty for a term of one year. The lease was renewable annually "subject to termination at the end of the initial period or any subsequent year by either party upon ten days' prior written notice to the other." See Amended Complaint, Ex. A, ¶ 2. Monthly rent was based on the number of gallons delivered. The lease provided that the premises were to be used "solely ... as a motor vehicle service station, and for the sale of such commodities and services as are usually sold at such stations." Amended Complaint, Ex. A, ¶ 4. The lease also required that the service station be kept open between specified hours and that Palombi, as lessee, maintain an adequate stock of tires, batteries and accessories. Palombi was further required to maintain the premises "in a good, clean, and tidy condition at all times" and to obtain Getty's approval of any advertising located on the premises.
Under this agreement and subsequent renewals, Palombi operated the service station for several years without incident. Indeed, Palombi ranked first in sales of gasoline by-volume in the Philadelphia metropolitan area in each of the four years 1970-1973. See Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 1; Answer to Interrogatory 21, at 13.
In 1974, the Government instituted criminal proceedings in this district charging Palombi with, inter alia, selling gasoline at prices exceeding limits established by the Federal Emergency Petroleum Allocation Act of 1973, 15 U.S.C. §§ 751 et seq. (1976), and regulations promulgated thereunder-to which Palombi pleaded guilty. See Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 5. Immediately thereafter, Palombi's gasoline sales fell and remained at a low level throughout the remainder of his tenure at the service station. See Motion of Defendant Getty Oil Company, Ex. 1; Answers to Interrogatories 15 and 21, at 10 and 13.
On March 31, 1975, Getty terminated Palombi's lease.[2] A memorandum seeking clearance of the termination from Getty's legal department recited a host of reasons for the decision.[3] The last paragraph devoted to this itemization includes the following statement:
Perhaps the most damaging of all to the reputation of this particular station, Getty Oil Eastern and our Getty Dealer organization, were charges ... when [sic] the United States Attorney's office had filed criminal and civil actions against Mr. Palombi for allegedly overcharging customers ... and with falsifying records to the Internal Revenue Service to justify higher prices.
Motion of Defendant Getty Oil Company for Summary Judgment, Ex. 3, at 3. The price-gouging charge and subsequent conviction *161 are also the initial reasons specified by Getty in answer to the plaintiff's interrogatory seeking Getty's grounds for termination. Id., Ex. 1; Answer to Interrogatory 8, at 4.
Nearly four years later, Palombi filed this action. Palombi's sole surviving claim at this stage of the litigation is that the gasoline station lease involved here constituted a franchise agreement and that Getty's termination of Palombi's franchise did not comply with the principles established by the Supreme Court of Pennsylvania in Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978).[4] Like the instant case, Razumic involved the termination of a service station "lease" by the leasing oil company. The parties had signed what was captioned a "DEALER LEASE," authorizing the lessee to operate a service station for a term of three years, subject to the right of the lessee to terminate the lease on any anniversary date by giving 60 days' advance written notice to the lessor. Id. at 377, 390 A.2d at 741. The agreement in Razumic, much like the agreement here, determined rent by monthly volume of gasoline sold and required the dealer to provide a certified statement containing all the information necessary to calculate the monthly rental. The agreement also did not allow the dealer to "make any additions, alterations or improvement to the leased premises nor place, alter, remove, deface, or obliterate any signs, trademarks or color arrangements appearing thereon" without the lessor's consent. Further, one of several standardized riders accompanying the "DEALER LEASE" required that the service station be operated "in such a manner as to reflect favorably on [the lessor supplier's] goodwill, trademarks and trade names." Finally, the same rider required the dealer to operate the service station 24-hours-a-day/7-days-a-week; stock a sufficient inventory of tires, batteries and accessories; provide adequate lighting; and, "maintain adequate and sufficient attendants." Id. at 374-376, 390 A.2d at 740-741.
The Razumic court held that such an agreement established a franchise relationship between the parties. Id. at 374, 390 A.2d at 740. That court noted that in such a relationship the franchisee benefits from the goodwill associated with the franchisor's trademark and products. However, as the court also noted, the continued value of that goodwill is heavily dependent upon the quality of the franchisee's service delivered in the name of the franchisor. The court reasoned that the investments necessarily undertaken justify the franchisee's expectation that those investments "will not be destroyed as a result of [the franchisor's] arbitrary decision to terminate their franchise relationship." Id. at 378, 390 A.2d at 742. Therefore, the Pennsylvania Supreme Court held that, "[c]onsistent with these reasonable expectations, and [a franchisor's] obligation to deal with its franchisees in good faith and in a commercially reasonable manner, [a franchisor] cannot arbitrarily sever its franchise relationship." Id. (emphasis added).
The agreement involved in this case clearly contemplates a franchise relationship. As our recitation of the facts should indicate, the agreement here contains substantially the same provisions as the agreement involved in Razumic.
Getty argues, however, that Palombi's termination was not arbitrary but was based, at least in part, upon Palombi's price-gouging conviction. In answer, Palombi contends that under Razumic a termination must be found to be reasonable under all the circumstances. Since the Court must be apprised of all the facts, Palombi argues, summary judgment is inappropriate.
The Court rejects Palombi's interpretation of Razumic. The significant language in Razumic, quoted earlier, declares only that there is a duty upon the franchisor *162 not to act arbitrarily.[5] The Court interprets this language to mean that, if the franchisor can show at least one legally sufficient reason to terminate, the termination is valid under Razumic.
The law could not reasonably be otherwise. A rule to the contrary would require courts to reexamine the reasonableness of an exercise of business judgment. Razumic seeks only to ensure that some sufficient reason exists for the termination. It does not guarantee every dealer a right to what would amount to de novo review.
The Court turns then to the legal sufficiency of Getty's proffered ground for termination. Certainly there can be few more compelling justifications for terminating a service station franchise than the indictment and conviction of the franchisee for price-gouging. Through trademarks and advertising, the consumer comes to link supplier and dealer. When the dealer is convicted of price-gouging, the suggestion of fraud necessarily taints the supplier's reputation. That such a charge and conviction would support a dealer's termination seems indisputable.
The Court finds additional support for this holding in the Pennsylvania Gasoline Act, Pa.Stat.Ann. tit. 73, §§ 202-1 et seq. (Purdon Supp.1980). In doing so, the court follows the example of the court in Razumic. Although the provisions of the Act were not expressly applicable to the agreement in Razumic,[ | {
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59 F.Supp.2d 641 (1999)
BARDEN DETROIT CASINO, L.L.C., a Michigan Limited Liability Company, Plaintiff,
v.
The CITY OF DETROIT, The Detroit City Council, Dennis W. Archer, Gilbert Hill, MaryAnn Mahaffey, Clyde Cleveland, Kenneth Cockrel, Jr., Sheila Cockrel, Kay Everett, Nicholas Hood, III, Brenda M. Scott, Alberta Tinsley-Talabi, The Michigan Gaming Control Board, Thomas Denomme, Paula Blanchard, Rich Davis, Geraldine Ford, and Michael Stacey, Defendants.
No. 99-CV-72655.
United States District Court, E.D. Michigan, Southern Division.
July 22, 1999.
*642 *643 Robert M. Carson, Birmingham, MI, for plaintiff.
Morley Witus, Detroit, MI, Eric J. Eggan, E. Lansing, MI, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
ROSEN, District Judge.
I. INTRODUCTION
On May 25, 1999, Plaintiff, Barden Detroit Casino, L.L.C. ("BDC") initiated the instant lawsuit against the above-captioned State and Detroit Defendants challenging, inter alia, the constitutionality of the Casino Development Competitive Selection Process, Detroit City Code § 18-13-1, et seq. (the "Ordinance"), and the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. (the "Act"), which govern the selection and licensing of casino developers in the City of Detroit, respectively. In particular, BDC which lost out in its bid to become one of three casino operators in Detroit to Detroit Entertainment, L.L.C. ("Atwater"),[1] Greektown Casino, L.L.C. ("Greektown"), and MGM Grand Detroit, L.L.C. ("MGM") asserts that both the Ordinance and the Act award unconstitutional preferences to developers, particularly Atwater and Greektown, who lead the drive to bring casino gaming to Detroit.
The case is presently before the Court on BDC's May 25, 1999 Motion for Preliminary Injunction, predicated on First Amendment, equal protection, and substantive due process challenges to the Act and the Ordinance enumerated in counts I - VI of its Verified Complaint for Damages and for Injunctive Relief.[2] In light of the Sixth Circuit's recent holding in Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (6th Cir.1999), finding that the Ordinance implicates core *644 First Amendment rights and is, therefore, subject to strict scrutiny, BDC argues it can establish the requisite likelihood of success on the merits of its constitutional claims against the Detroit Defendants. As explained in greater detail, infra, BDC also asserts that the Act violates the Constitution both on its face and as applied.
In response, the Detroit Defendants concede the unconstitutionality of the Ordinance for the purposes of the instant motion only,[3] opting instead to rely on the following three threshold, and potentially dispositive, defenses: (1) a Consent and Release executed by Don Barden on behalf of BDC; (2) the equitable doctrine of laches; and (3) BDC's alleged inability to establish injury-in-fact. The Detroit Defendants further assert that even if the Court reaches the substance of BDC's constitutional challenges to the Ordinance, the balance of equities and the public interest militate strongly against any injunctive relief. With respect to the Act, the State Defendants assert that no "case or controversy" exists because the 1997 amendments to the statute render the state preference inoperative.
The Court met with the parties in chambers on June 17, 1999 and held a hearing at which it heard oral argument and took evidence with respect to the issues raised by BDC's Motion for Preliminary Injunction on June 28, 1999.[4] Without objection from the parties, and with the sole caveat that the Detroit Defendants expressly reserved the right, if necessary, to defend the constitutionality of the Ordinance at a later stage of the proceedings, the Court ordered the trial of this case, with respect to the final merits of BDC's request for injunctive relief, advanced and consolidated with the hearing on Plaintiff's Motion for Preliminary Injunction pursuant to Fed.R.Civ.P. 65(a)(2). Having heard the oral arguments of counsel and the testimony of witnesses at the June 28, 1999 hearing, and having reviewed the briefs, deposition transcripts, and other supporting documents submitted by the parties, the Court makes the following findings of fact and conclusions of law. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted.
II. FINDINGS OF FACT
Preliminarily, the Court observes that this litigation presents very close and finely-nuanced legal and factual questions of great complexity, novelty, and controversy that are of the highest import to the residents of the greater Detroit Metropolitan Region and the State of Michigan. The Court recognizes that because of the need for an expeditious resolution of this matter, all parties and particularly their counsel have worked with commendable diligence to prepare and present these issues to the Court for timely resolution. For this prodigious effort, the Court expresses its appreciation and endeavors in this decision to set forth its findings of fact and conclusions of law, and the analysis underlying each, as comprehensively as possible.
A. The Parties
1. Barden Detroit Casino, L.L.C.
Plaintiff, BDC, is a Detroit-based Michigan limited liability company, formed to engage in the development and operation of a casino gaming establishment in the City of Detroit. Don H. Barden resides in *645 the City of Detroit and serves as the Chairman and President of BDC.[5] Throughout the casino selection process, the law firm of Dykema Gossett, P.L.L.C., represented BDC.
2. The Detroit Defendants
For the purposes of this decision, the "Detroit Defendants" consist of the City of Detroit, Detroit Mayor Dennis W. Archer (the "Mayor"), the Detroit City Council, and the currently elected members of the Detroit City Council: Gilbert Hill, Maryann Mahaffey, Clyde Cleveland, Kenneth Cockrel, Jr., Sheila Cockrel, Kay Everett, Nicholas Hood III, Brenda Scott, and Alberta Tinsley-Talabi.
3. The State Defendants
Defendant Michigan Gaming Control Board (the "Board") is an agency of Michigan Government, M.C.L.A. § 432.204(1), established and organized pursuant to the Michigan Gaming Control and Revenue Act. The Board possesses the authority and duties enumerated in the Act, and all other powers necessary and proper to fully and effectively administer the Act for the purposes of licensing, regulating, and enforcing the system of casino gaming established under the Act. M.C.L.A. § 432.204(1). Defendants Thomas Denomme, Paula Blanchard, Rich Davis, Geraldine Ford, and Michael Stacey constitute the currently serving members of the Board. For the purposes of this decision, the Court collectively refers to the Board and its individual members as the "State Defendants."
B. The Michigan Gaming Control and Revenue Act ("the Act")
1. The Original Act
On November 5, 1996, the state electorate approved Proposal E, a state ballot initiative legalizing casino gaming in the State of Michigan. In order to codify this successful referendum, the State Legislature passed, and the Governor signed into law, the Michigan Gaming Control and Revenue Act, M.C.L.A. § 432.201, et seq. The Act established the Michigan Gaming Control Board as the body authorized to issue licenses to operate casinos in Michigan, and effectively limited casino development to the City of Detroit by restricting gaming to cities: (1) with a population of at least 800,000 at the time a license is issued; (2) located within 100 miles of any other state or country in which gaming was permitted on December 5, 1996; and (3) where a majority of voters have expressed approval of casino gaming in the city. M.C.L.A. § 432.202(l).[6]
Although Proposal E, as it appeared on the November 5, 1996 ballot, made no mention of preferences for any class of license applicants,[7] the Act's licensing procedures, *646 in their original form, exempted certain preferred developers from the competitive bidding process and granted a tie-breaking preference to applicants that supported a city-wide ballot initiative in favor of casino gaming:
(a) The board shall issue a license to operate a casino to an applicant upon a determination by the board that the applicant is eligible for a casino license. The board shall find that an applicant is eligible for a casino license if all of the following criteria are met:
(1) prior to the date of application: (i) the applicant or its affiliates or affiliated companies was the initiator of any casino gaming proposal submitted for voter approval in the city in which the casino will be located and the voters approved the proposal; or (ii) the applicant was selected by the city pursuant to a competitive bidding process.
* * * * * *
(b) No more than three (3) licenses shall | {
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215 Ga. 195 (1959)
109 S.E.2d 689
COOPER MOTOR LINES, INC.
v.
B. C. TRUCK LINES, INC. et al.
20513.
Supreme Court of Georgia.
Argued June 9, 1959.
Decided July 8, 1959.
Fisher, Phillips & Allen, John Bacheller, Jr., for plaintiff in error.
Wilson, Branch & Barwick, John W. Wilcox, Jr., Poole, Pearce & Hall, John S. Patton, Weekes & Candler, contra.
*197 HEAD, Justice.
1. "A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint." Georgia Music Operators Assn. v. Fulton County, 184 Ga. 348, 350 (191 S. E. 117); Lamar v. Lamar, 118 Ga. 684 (45 S. E. 498).
2. The plaintiff in error does not assign error on that part of the order of the trial judge declaring certain rights of the parties in relation to their various contracts. The only assignments of error are on the failure of the judge to construe a contract between the plaintiff in error and the labor organization represented by two of the defendants, and on the refusal to grant the interlocutory injunction prayed by the petitioner. The plaintiff in error in the trial court did not seek an injunction or the construction of its contract, by any pleadings, prayers, or evidence. Its rights under its contract are in no way prejudiced by the judgment, which refused to construe such contract. It therefore has no right to bring the present writ of error to this court. White v. Haslett, 49 Ga. 262; Hudson v. Hudson, 84 Ga. 611 (10 S. E. 1098); Braswell v. Equitable Mortgage Co., 110 Ga. 30 (35 S. E. 322); Penland v. Jackson, 157 Ga. 569 (122 S. E. 44); Bryan v. Rowland, 166 Ga. 719 (144 S. E. 275); First National Bank of Rome v. Yancey, 207 Ga. 437 (62 S. E. 2d 179).
Writ of error dismissed. All the Justices concur.
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75 F.Supp.2d 1350 (1999)
COASTAL CARTING LTD., INC., Plaintiff,
v.
BROWARD COUNTY, FLORIDA, et al., Defendants.
No. 96-7175-C.V.
United States District Court, S.D. Florida.
May 5, 1999.
*1351 Conrad & Scherer, P.A., Albert L. Frevola, Jr., Dominic L. Brandy, Ft. Lauderdale, FL, for Resource Recovery Board and Broward County.
Broward County Attorney's Office, Edward Dion, County Attorney, Noel M. Pfeffer, Deputy County Attorney, Ft. Lauderdale, FL, Co-Counsel for Broward County.
Valerie Settles, Coral Gables, FL, Co-Counsel for Resource Recovery Board.
Johnson, Anselmo, Murdoch, Burke & George, P.A., E. Bruce Johnson, Christine Duignan, Ft. Lauderdale, FL, for Cities of Coconut Creek, Cooper City, Coral Springs, Hillsboro Beach, Lauderdale-By-The-Sea, Lazy Lake, Lighthouse Point, Margate, North Lauderdale, Pembroke Park, Plantation, Sea Ranch Lakes, Sunrise, Tamarac, Wilton Manors, and the Town of Davie, Deeyield Beach.
Dennis E. Lyles, City Attorney, Michael J. Pawelczyk, Asst. City Attorney, Ft. Lauderdale, FL, for City of Fort Lauderdale.
Daniel L. Abbott, City Attorney, Tamie Alvarez, Richard T. Kilgore, Sr. Asst. City Attorney, Hollywood, FL, for City of Hollywood.
Fertig and Gramling, Merryl S. Haber, Darlene Lidondici, Ft. Lauderdale, FL, for City of Lauderdale Lakes.
Haliczer, Pettis & White, Eugene K. Pettis, Ft. Lauderdale, FL, for City of Lauderhill.
Weiss, Serota, Helfman, Pastoriza & Guides, P.A., Jamie Alan Cole, Doug Gonzalez, *1352 Ft. Lauderdale, FL, for City of Miramar.
Rogers, Morris & Ziegler, Romney C. Rogers, Vincent Andreano, Ft. Lauderdale, FL, for City of Oakland Park.
ORDER
GONZALEZ, District Judge.
THIS CAUSE has come before the Court upon Plaintiff Coastal Carting's Motion for Summary Judgment. The Court has considered the record and the oral argument of able counsel.
Coastal Carting, a solid waste hauler, has brought this action pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202, against Broward County; twenty-three municipalities in Broward County; and the Resource Recovery Board of Broward Solid Waste Disposal District( collectively the Defendants) alleging that Broward County Ordinances 87-3 and 87-4 are unconstitutional and unenforceable.
BACKGROUND:
This case is about garbage and the disposal thereof.
The Defendants, like other local governments, are and have been faced with the major problem of safe solid waste disposal. Broward County's solution to the solid waste disposal problem was the adoption of Ordinances 87-3 and 87-4, creating the Broward Solid Waste Disposal District. The Broward Solid Waste Disposal District was established to provide for the disposal of solid waste collected in the unincorperated areas of Broward County and within the contract communities.
In accordance with Florida Statutes 125.01(5) and the Interlocal Agreement, the Broward Solid Waste Disposal District is a special district including twenty-three municipalities and the unincorporated area of Broward County. The Resource Recovery Board is the governing body of the Disposal District and has the duties of establishing tipping fees and other charges.
The twenty-four governmental entities entered into an Interlocal Agreement. Broward, Fla., Interlocal Agreement Art. 5 (1987). The ordinances define the Interlocal Agreement as the agreement between the County and the contract communities wherein each of the participating entities shall enact local licensing and other ordinances requiring that waste collected within Broward County, be disposed of at favored facilities.
Specifically, the Interlocal Agreement provides for the passage of a "flow control ordinance for the purpose of ensuring that the Resource Recovery Facility receives an adequate quantity of solid waste from the solid waste generated within its jurisdiction." The ordinances also dictate that the contract communities will "pay for such services as provided in the Interlocal Agreement." Broward, Fla., Ordinances 87-3 and 87-4 (March 10, 1987). Additionally, the ordinances provide for enhanced "tipping fees, user charges and service charges," and restrict the flow of Broward waste to two named facilities in Broward County.[1]
The effect of the ordinances are such that if a hauler attempts to take waste out *1353 of the County, the hauler will face severe fines and penalties.
STANDARD:
The Plaintiff has filed a Motion for Summary Judgment asking the Court to declare Broward County Ordinances 87-3 and 87-4 unconstitutional under the Commerce Clause of the Constitution of the United States. U.S. Const. Art. I, § 8, cl. 3.
The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548.
After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. 242, 249-50, 106 S.Ct. 2505.
DISCUSSION:
As noted, the question presented is whether Broward County Ordinances 87-3 and 87-4 are constitutionally permissible in light of the Commerce Clause of the Federal Constitution.
The Commerce Clause provides that "[t]he Congress shall have Power ... [t]o regulate Commerce ... among the several States." U.S. Const. Art. I, § 8, cl. 3. Though phrased as a grant of regulatory power to Congress, the Clause has long been recognized as a self-executing limitation *1354 on the power of the states to enact laws imposing burdens on such commerce. See, e.g., Wyoming v. Oklahoma, 502 U.S. 437, 453, 112 S.Ct. 789, 800, 117 L.Ed.2d 1 (1992).
For years Courts have mulled over defining the appropriate scope of the | {
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804 F.2d 543
UNITED STATES of America, Plaintiff/Appellee,v.Alejandro FERREIRA-ALAMEDA, Defendant/Appellant.
No. 84-5340.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 3, 1986.Decided Nov. 13, 1986.
Crossan R. Andersen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.
Reemberto Diaz, Diaz & Batista, P.A., Hialeah, Fla., for defendant/appellant.
Appeal from the United States District Court for the Central District of California.
Before ALARCON, BRUNETTI, and NOONAN, Circuit Judges.
BRUNETTI, Circuit Judge:
1
Appellant Alejandro Ferreira-Alameda appeals his conviction, following a court trial on stipulated facts, for conspiracy to distribute and to possess with intent to distribute cocaine. On appeal, Ferreira-Alameda contends that (1) he did not knowingly and voluntarily waive his right to a jury trial or stipulate to the admission of his co-defendants' testimony from a previous trial; and (2) he was denied effective assistance of counsel.
2
We disagree and affirm.
I.
Background
3
Before trial, appellant agreed with the United States Attorney to waive his right to a jury trial and to stipulate to the record of an earlier trial of his co-defendants. Ferreira-Alameda specifically retained the rights to object to evidence, move for judgment of acquittal, make closing argument, and appeal. The United States Attorney, in turn, agreed to rely only upon the recorded testimony and physical evidence introduced at the trial of appellant's co-defendants. He also agreed to recommend no more than a five-year sentence.
4
On September 14, 1984, Ferreira-Alameda signed stipulations admitting the transcript testimony of eight witnesses and certain physical evidence from the previous trial of his co-defendants.
5
On October 29, 1984, the court found defendant guilty and sentenced him to five years. Ferreira-Alameda timely appealed.
II.
Analysis
A. Waiver of Jury Trial
6
Ferreira-Alameda claims that his written jury trial waiver was not effective because it did not reflect that his waiver was conditional.
7
We review a trial court's ruling on the voluntariness of a guilty plea for clear error. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985).
8
The record does not indicate that the agreement between the United States Attorney and appellant made Ferreira-Alameda's waiver conditional. Rather, both parties made certain concessions. Ferreira-Alameda's complaint seems to be that the written jury trial waiver made no mention of the other aspects of the parties' agreement.
9
Federal Rule of Criminal Procedure 23(a) requires that a defendant waive his right to trial by jury "in writing with the approval of the court and the consent of the government." (West Supp.1986). "The general rule is that a showing that the defendant's consent to waive his right to a jury trial was knowing, voluntary and intelligent is a necessary precondition to an effective Rule 23(a) jury trial waiver, one distinct from the requirement that the waiver be written." 8A Moore's Federal Practice p 23.03[c] (2d ed. 1984) (citing United States v. Conforte, 624 F.2d 869, 881-82 (9th Cir.), cert. denied, 449 U.S. 1012, 105 S.Ct. 568, 66 L.Ed.2d 470 (1980)). The district judge fully satisfied this precondition to Ferreira-Alameda's written waiver.
10
The district judge thoroughly explained the nature of a jury trial to Ferreira-Alameda and repeatedly asked appellant if he understood the right he was giving up. Furthermore, the district judge carefully informed appellant that he was giving up the rights to confront and cross-examine witnesses, and to offer evidence; he explained the appellant's maximum possible penalty, and made sure Ferreira-Alameda understood that a jury found his co-defendants guilty on the same evidence he stipulated to.
11
The district court went to great lengths to assure that Ferreira-Alameda's jury trial waiver was knowing, voluntary, and intelligent. Therefore, appellant's claim is meritless.
12
B. Stipulation to Testimony of Co-Defendants
13
Ferreira-Alameda also contends he did not knowingly and voluntarily give up his rights to confront and cross-examine witnesses and to introduce evidence. He claims that neither he nor his attorney knew what appellant's co-defendants had testified to at the previous trial. Therefore, appellant contends, his stipulation to that testimony was not knowing and voluntary.
14
"It is the responsibility of the trial judge when accepting a stipulation or waiver to assure that it is voluntarily made." United States v. Miller, 588 F.2d 1256, 1264 (9th Cir.1978) (citing United States v. Terrack, 515 F.2d 558, 558-60 (9th Cir.1975)), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). The district judge thoroughly informed and questioned appellant to make such a determination.
15
Ferreira-Alameda claims he did not know what his co-defendants testified to. Yet he told the district judge he understood that the evidence stipulated to was the same evidence upon which a jury found his co-defendants guilty. Moreover, Ferreira-Alameda retained and his counsel exercised the right to object to any portion of the stipulated evidence. Thus, appellant's contention that the stipulation was not voluntary is also without merit.
C. Ineffective Assistance of Counsel
16
Ferreira-Alameda's final contention is that he was denied effective assistance of counsel because his attorney stipulated to facts he did not know and because he failed to object to any evidence introduced against appellant.
17
Whether a defendant received ineffective assistance of counsel is a question of law reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir.1985) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984)). Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation. United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986) (quoting Strickland, 466 U.S. at 689), 104 S.Ct. at 2065.
18
We recently reiterated the two-part test to evaluate claims of ineffective assistance of counsel. First, the " 'defendant must show that counsel's representation fell below an objective standard of reasonableness.' " Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Second, counsel's error must have prejudiced the defendant. Id. (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067).
19
Counsel's stipulation to evidentiary facts does not necessarily demonstrate incompetency of counsel. United States v. Gray, 626 F.2d 102, 106 (9th Cir.1980). Although appellant's trial counsel did not know the precise facts stipulated to, he had knowledge of their implications from reading a government trial memorandum. In addition, counsel retained the right to object to any of the stipulated evidence. Therefore, Ferreira-Alameda has not demonstrated that his counsel acted incompetently. Furthermore, he has failed to show counsel's actions prejudiced him. Mere criticism of a trial tactic is not sufficient to support a charge of ineffective representation. United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir.1980)), cert. denied, --- U.S. ----, 106 S.Ct. 381, 88 L.Ed.2d 335 (1985).
20
Ferreira-Alameda also claims ineffective representation because his counsel failed to object to any evidence at trial. This claim is baseless since counsel made several objections at trial. Furthermore, Ferreira-Alameda has not demonstrated counsel's failure to object prejudiced him.
III.
Conclusion
21
Ferreira-Alameda has failed to demonstrate that his jury trial waiver and evidentiary stipulation were not knowingly and voluntarily made. He also has not shown that his trial counsel was ineffective or that his counsel's actions prejudiced him. Therefore, we affirm the district court's conviction.
22
AFFIRMED.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00149-CR
Juan Perez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0990063, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING
A jury found appellant Juan Perez guilty of aggravated sexual assault and
aggravated kidnapping. Tex. Penal Code Ann. §§ 22.021(a)(1)(A)(i) & 20.04(a)(4) (West Supp.
2001). The jury assessed punishment at twenty years' confinement in prison and a $10,000 fine
for the aggravated sexual assault offense and fifteen years' confinement in prison and a $10,000
fine for the aggravated kidnapping offense. Appellant contends that the evidence is legally and
factually insufficient to support the judgment and that the district court erred in overruling his
objection to the State's exercise of two peremptory strikes. We will affirm the judgment.
Background
The complainant testified that she had known appellant for about four or five years
and during part of that time they had lived together. About five months before the incident, the
complainant told appellant she no longer wanted to be with him and they ceased living together.
Afterward, from time to time, appellant would borrow a friend's truck, stop by the Diamond
Shamrock station on Riverside where the complainant worked the 4:00 p.m. to 12 midnight shift,
and give her a ride home after work. On several occasions, appellant talked with the complainant
about getting back together.
On September 2, 1998, around 12:30 a.m., the complainant testified that appellant
stopped at the Diamond Shamrock and told her he would take her home after work. After the
complainant closed the store, she got into the truck expecting appellant would drive her home as
he said he would and as he had done several times before. This time, however, rather than taking
her home, appellant headed in the opposite direction driving south on IH 35. He told her that he
wanted to talk with her. When the complainant realized appellant was not taking her home, she
became fearful and asked him to stop the truck and drop her off. When he refused, the
complainant opened the passenger-side door and considered jumping out of the truck. As she was
hanging out of the truck with the door open and her feet dragging the ground, appellant pulled her
back into the truck by grabbing her hair and her Diamond Shamrock work jacket. As he grabbed
her, he told her to shut her mouth. He told her he felt like beating her, threatened to cut off her
hair with a knife and kill her. Finally, he told her that he would wreck the truck and kill both of
them.
Appellant drove to a secluded wooded area where he stopped the truck. He had the
complainant walk into the woods where he put down a blanket and a pillow that the complainant
had given him several days earlier and sexually assaulted the complainant. He cleaned himself and
the complainant with the complainant's Diamond Shamrock work jacket. He had the complainant
get back in the truck and drove her home. He left his underwear, the pillow and blanket in the
woods.
When they reached the complainant's apartment, he asked if he could spend the
night and again asked her to consider getting back together with him. The complainant told
appellant he could not spend the night and to leave her house. After appellant left, the
complainant took a shower and rolled up the semen-stained work jacket and put it on a shelf near
her washing machine. The complainant did not immediately contact police about the incident
because she was afraid of appellant. She was also concerned about her two older sons' reactions
upon hearing about the incident. After the alleged sexual assault, the complainant reported two
other incidents to police involving appellant before she reported the sexual assault.
One week after the incident, the complainant reported the sexual assault to police.
Austin Police Officer Jason Bryant investigated the incident and testified that the complainant led
him directly to the scene of the alleged offense where he recovered the blanket, pillow and
underwear.
Karen Scalise, a DNA specialist and hair expert with the Department of Public
Safety, testified that there were no semen or blood stains on the blanket, pillow or the underwear.
She testified that two hairs found on the underwear did not match appellant's hair. The DNA
found in some body tissue attached to the hair, however, was consistent with appellant's genetic
profile. Although she agreed that the results from the DNA and microscopic hair tests were odd,
she would not speculate or venture an explanation for the results other than to say that appellant's
body tissue could have attached to another person's hair shaft.
The complainant testified that she did not know what happened to the Diamond
Shamrock jacket she wore the night of the incident. The complainant explained that she did not
turn it over to police because she was not thinking about evidence when she reported the incident.
The complainant's daughter, who was fifteen at the time of the incident, testified that when she
and her family moved, she threw away the torn, stained, Diamond Shamrock work jacket her
mother had worn the night of the incident. Additionally, the complainant testified that she did not
know what happened to the shoes she wore the night of the incident.
Discussion
Legal and Factual Sufficiency
In appellant's first two issues, he contends that the evidence is legally and factually
insufficient to support the jury's verdict. Appellant argues that there are many reasonable
explanations for the presence of his blanket and underwear at the scene of the alleged assault.
Appellant argues that the complainant was angry with him before the alleged assault and she had
waited several days after the assault before contacting the police. Finally, appellant contends that
the complainant's testimony about the portion of the truck ride during which she claimed her feet
were dragging the pavement as the truck was traveling on IH 35 was completely incredible.
The standard for reviewing the legal sufficiency of the evidence is whether, viewing
the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have
found beyond a reasonable doubt all the essential elements of the offense charged. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.--Austin
1994, pet. ref'd). The standard of review is the same in both direct and circumstantial evidence
cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d
394, 401 (Tex. Crim. App. 1992). The State may prove its case by circumstantial evidence if it
proves all of the elements of the charged offense beyond a reasonable doubt. Easley v. State, 986
S.W.2d 264, 271 (Tex. App.--San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The
sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact
in isolation need not establish the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758
(Tex. Crim. App. 1987). It is important to remember that all the evidence the jury was permitted,
properly or improperly, to consider must be taken into account in determining the legal sufficiency
of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218
(Tex. App.--Austin 1997, no pet.).
The jury is the exclusive judge of the facts proved, the weight to be given the
testimony, and the credibility of the witnesses. Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1993); Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the
evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.
1991). The jury maintains the power to draw reasonable inferences from basic facts to ultimate
facts. Welch v. State, 993 S.W.2d 690 | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7307
COLLIS MILLER, JR.,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; ATTORNEY GENERAL OF
THE STATE OF SOUTH CAROLINA,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CA-92-2063-3-22)
Submitted: December 14, 1995 Decided: January 17, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Collis Miller, Jr., Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court's order denying
relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewed
the record and the district court's opinion accepting the recom-
mendation of the magistrate judge and find no reversible error.
Accordingly, we deny a certificate of probable cause to appeal and
dismiss the appeal on the reasoning of the district court. Miller
v. South Carolina, No. CA-92-2063-3-22 (D.S.C. July 31, 1995). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
2
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984 So.2d 352 (2007)
Jimmy DAO, Appellant
v.
STATE of Mississippi, Appellee.
No. 2006-KA-01170-COA.
Court of Appeals of Mississippi.
December 11, 2007.
Rehearing Denied March 11, 2008.
*353 Glenn Sturdivant Swartzfager, Jackson, attorney for appellant.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
Before MYERS, P.J., IRVING, BARNES and ROBERTS, JJ.
IRVING, J., for the Court.
¶ 1. Jimmy Dao was convicted by a jury of aggravated assault and was sentenced by the Forrest County Circuit Court to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Dao appeals and asserts (1) that the trial court erred in allowing the State to introduce evidence regarding his alleged gang affiliation, (2) that the trial court erred in allowing the State to question defense witnesses about an unrelated murder, and (3) that there is insufficient evidence to support his conviction.[1]
¶ 2. Finding no reversible error, we affirm.
FACTS
¶ 3. Around 10:00 p.m. on June 18, 2003, nine men in two vehicles, a Toyota 4-Runner and a Mercedes, were involved in an altercation after meeting at a stop light on Hardy Street in Hattiesburg, Mississippi. The altercation ended when Dao, a passenger in the Mercedes, fired a shot that struck the open front passenger door of the 4-Runner. A few months after the incident, Dao was arrested and charged with aggravated assault.
¶ 4. At trial, the State presented the testimony of Don Ladner, B.J. Fokakis, and Zachary Fairley.[2] The defense presented the testimony of three of the six occupants of the Mercedes: Craig Murrell, Taun Bui, and Dao. Donald Nguyen, Bao Dang, and Long Nguyen were also in the Mercedes on the night of the incident. Sometime after the incident, Long was murdered.[3]
¶ 5. Murrell testified that they were on Hardy Street when they noticed the 4-Runner in the next lane of traffic, traveling *354 in the same direction. He stated that Dao "flipped [the occupants of the 4-Runner] off," but did not give any explanation for Dao's doing so. At that point, the 4-Runner began to follow the Mercedes. Murrell testified that they had not signaled the occupants of the 4-Runner to follow them. He stated that when the 4-Runner began to do so, Long, the driver of the Mercedes, turned down 21st Street. Murrell further testified that they exited the Mercedes and that one of the occupants of the 4-Runner was already outside of the 4-Runner, holding a bat. The front passenger door of the 4-Runner was open. Murrell testified that the passenger swung the bat at Dao, but Dao dodged it. Murrell also testified that he heard a gunshot but that he did not see who fired the gun because he diverted his attention to a car that was coming from the opposite direction.[4]
¶ 6. On cross-examination, the trial court allowed the State, over an objection by the defense, to question Murrell regarding Long's murder. In support of its position that it should be allowed to question Murrell regarding Long's death, the State pointed out that Murrell was listed as an alibi witness for Donald in that particular murder case.
¶ 7. Bui corroborated Murrell's testimony but added that Dao fired a gun into the open door of the 4-Runner after the passenger from the 4-Runner swung the bat at Dao. Bui also testified that Long had handed the gun to Dao and that no one had exited the 4-Runner at that time. Bui further testified that no one got out of the Mercedes until after the occupants of the 4-Runner had exited.
¶ 8. Immediately following Bui's direct testimony, outside the presence of the jury, the State requested, and was granted, permission to cross-examine Bui regarding his gang affiliation. According to the State, the rationale was twofold: to show that Bui was biased in favor of Dao and to show that Bui had a motive to lie. The defense objected, arguing that the testimony should be excluded under Rule 403 of the Mississippi Rules of Evidence. Specifically, Dao's attorney argued: "I don't believe that portion of the rule applies in this specific case." The trial court allowed the questioning for the limited purpose of showing bias. Thereafter, during cross-examination, the State brought out that Bui, Dao, and Donald were members of the Junior Viet Boys gang at the time of the shooting.[5] The State asked Bui whether gang members were "supposed to always be there for . . . fellow gang members." Bui responded, "Yes, sir." Further, the State asked: "when a fellow gang member gets in any kind of difficulty, it's your honor and your duty to assist him in any way that you can. That's correct; isn't it?" Again, Bui responded, "Yes, sir."
¶ 9. Early in Dao's testimony the defense asked him whether he had ever been in a gang, and he responded that he had. As for the incident at issue, Dao testified that they had "gotten into a conflict with some guys in [a 4-Runner] at a red and green light in front of [The University of Southern Mississippi]." He testified that Fokakis, the person on the passenger side of the 4-Runner, flipped him off and that he responded by returning the gesture. He stated that the 4-Runner began following *355 them, so he flipped Fokakis off again. Dao testified that he suggested that Long turn off on 21st Street, instead of heading to Dao's house, because he did not want them to follow him to his house.[6] Long handed Dao a gun and Dao exited the vehicle as the occupants of the 4-Runner were exiting their vehicle. Dao testified that one of the passengers had a bat in his hand that he swung at Dao when Dao stepped forward. Dao stated, "[T]hat's when I pulled the gun out and fired the gun."
¶ 10. Despite Dao's admission that he fired the gun, he maintained that he did not aim at anyone. He fled the scene on foot. Despite efforts by law enforcement to locate him, Dao was not arrested until August 14, 2003, at which time he provided the police with a written statement concerning the incident.
¶ 11. On cross-examination, the State pointed out that Dao's written statement differed from his trial testimony. In his statement, Dao stated that his assailant, later identified as Fokakis, had gotten back in the vehicle before Dao fired the gun. However, as previously mentioned, Dao testified at trial that Fokakis was standing outside of the vehicle when Dao fired the gun. When pressed to explain this inconsistency, Dao stated that Fokakis was in the vehicle when he fired the gun but that another occupant of the 4-Runner was outside of the vehicle.
¶ 12. During further cross-examination, the State questioned Dao concerning Long as it had during its examination of Murrell. The State also questioned Dao about his membership in the Junior Viet Boys. Dao admitted that he had been a member of the gang but stated that he was no longer a member and that he was not a member at the time of the shooting.
¶ 13. Ladner, the first witness for the State, testified that as they were sitting at a red light, a Mercedes with numerous occupants pulled up next to their vehicle in the next lane of traffic, traveling in the same direction. According to Ladner, the music in the 4-Runner was loud, and they thought the occupants of the Mercedes were "banging their heads to the music [emanating from the 4-Runner]." Ladner also stated that one of the occupants of the Mercedes waved, and they thought they recognized the person, so Fokakis waved back. Further, Ladner stated that one of the occupants of the Mercedes pointed out of the window and motioned for them to pull over. They complied and turned off on 21st Street. Ladner testified that after they turned on 21st Street, Fairley stopped the 4-Runner about fifteen to twenty yards behind the Mercedes. Ladner testified that everyone remained in the 4-Runner. He also testified that a Vietnamese male with somewhat long, blond hair, whom he later identified as Dao, exited the back seat of the Mercedes.[7] Ladner stated that when Fokakis noticed that Dao was armed, he yelled something like, "He's got a gun." As the 4-Runner attempted to leave, Dao fired a single bullet that struck the passenger side door of the 4-Runner. As the 4-Runner sped away, it hit another vehicle that was approaching. Ladner testified that, after the accident, he went to a nearby residence, telephoned the *356 police, and reported the shooting incident.[8] He also testified that he provided a written statement to police, detailing his account of what transpired. On cross-examination, Ladner testified that he, Fokakis, and Fairley all played baseball; however, he stated that they did not have a baseball bat in the vehicle on the night of the incident.
¶ 14. The next witness for the State was Fokakis. His testimony was similar to Ladner's. He testified that when he noticed the occupants in the | {
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108 F.3d 136
79 A.F.T.R.2d 97-1322, 97-1 USTC P 50,263
UNITED STATES of America, Plaintiff-Appellant,v.Carole F. LIBRIZZI, Defendant-Appellee.
No. 95-2550.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 13, 1996.Decided March 5, 1997.
Thomas P. Schneider, Office of U.S. Atty., Milwaukee, WI, Gary R. Allen, William S. Estabrook (argued), Marion E. Erickson, Department of Justice, Tax Division, Appellate Section, John A. Marrella, Washington, DC, for plaintiff-appellant.
William A. Jennaro, Thomas J. Lonzo, Pamela A. Johnson (argued), Cook & Franke, Milwaukee, WI, for defendant-appellee.
Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
1
This case presents a narrow question about the scope of a valid federal tax lien on property the taxpayer held in joint tenancy, when the lien attaches (and is recorded) prior to the taxpayer's death, but the Internal Revenue Service forecloses on the lien some two years later. Mrs. Carole Librizzi, an innocent spouse, argues that the Government may recover no more than one-half the value of the property at the time of her husband's death, while the United States asserts that once the lien attached to the property, it may recover one-half the amount the property fetches at the foreclosure sale. Although the district court ruled for Mrs. Librizzi, we conclude that the United States has the better of the argument, and we therefore reverse.
2
The underlying facts are undisputed. In 1975, Salvadore Librizzi (the taxpayer) and his wife Carole acquired real property located at 307 East Carlisle Avenue, Whitefish Bay, Wisconsin, which they held under Wisconsin law as joint tenants with a right of survivorship. A decade later, in 1985 and 1986, the Secretary of the Treasury made a number of tax assessments totaling $1,468,312.72 against Mr. Librizzi relating to wagering activities and associated interest and penalties. When Mr. Librizzi did not pay the amounts due, a federal tax lien arose pursuant to 26 U.S.C. § 6321, and attached to all property belonging to him. On September 26, 1986, and on December 15, 1989, the IRS filed Notices of Federal Tax Lien for Mr. Librizzi's assessed liabilities with the Register of Deeds, Milwaukee County, Wisconsin. Mr. Librizzi died on June 19, 1990, without having paid his taxes.
3
Upon her husband's death, Mrs. Librizzi took full title to the Carlisle Avenue property. Two years later, on October 6, 1992, the United States filed a suit for foreclosure of its liens under 26 U.S.C. § 7403 in the U.S. District Court for the Eastern District of Wisconsin. In that suit, Mrs. Librizzi conceded that the federal tax lien attached to Mr. Librizzi's one-half interest in the property and that when he died she acquired the property subject to that lien. She argued, however, that the Government's interest was limited to one-half of the estimated fair market value of the property at the time of Mr. Librizzi's death (that is, one-half of $152,500, or $76,250). This was an attractive position for her to take, because the property had appreciated in value during the time between his death and the suit: as of the time of suit, it was estimated to be worth some $173,100. The Government took the position that it was entitled to one-half the fair market value at the time of foreclosure, which would have yielded about $86,550--still considerably less than the amount due for the delinquent taxes. As noted above, the district court, relying on provisions of Wisconsin law we discuss below, granted summary judgment for Mrs. Librizzi, and the United States has appealed.
4
When dealing with tax liens under 26 U.S.C. § 6321, it has been settled for years that "state law controls in determining the nature of the legal interest which the taxpayer had in the property." United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565 (1985) (citations and internal quotation marks omitted). See also United States v. Rodgers, 461 U.S. 677, 683, 103 S.Ct. 2132, 2137, 76 L.Ed.2d 236 (1983). The federal tax lien attaches to whatever rights or interests the taxpayer has under state law. National Bank of Commerce, 472 U.S. at 722, 105 S.Ct. at 2925; Rodgers, 461 U.S. at 683, 103 S.Ct. at 2137. As the Wisconsin Supreme Court put it:
5
... the I.R.C. does not create any property rights, but merely attaches federally defined consequences to rights which are created under state law. Once state law has been used to determine the nature and existence of a property interest, further state law is inoperative, and the tax consequences thenceforth are dictated by federal law.
6
Elfelt v. Cooper, 168 Wis.2d 1008, 485 N.W.2d 56, 61 (1992) (citations omitted). Furthermore, the U.S. Supreme Court noted in Rodgers that "once a lien has attached to an interest in property, the lien cannot be extinguished (assuming proper filing and the like) simply by a transfer or conveyance of the interest." 461 U.S. at 691 n. 16, 103 S.Ct. at 2141 n. 16.
7
A federal tax lien attaches at the time the tax assessment is made, and it continues until the liability has been satisfied or it becomes unenforceable due to the lapse of time. 26 U.S.C. § 6322. See also Jersey State Bank v. United States, 926 F.2d 621, 622-23 (7th Cir.1991); J.D. Court, Inc. v. United States, 712 F.2d 258, 261 & n. 7 (7th Cir.1983). In this case, it is undisputed that the tax lien attached to Mr. Librizzi's undivided one-half interest in the Carlisle Avenue property in 1985 and 1986, at the time the assessments were made. Mrs. Librizzi argues, however, that the character of the lien changed at the time of Mr. Librizzi's death, when under the Wisconsin law of joint tenancy, Mrs. Librizzi became the sole owner of the property. Wis. Stat. Ann. § 700.17(2)(a). At that point, she claims, the lien changed from an encumbrance on the interest in the property to an I.O.U. for the value of Mr. Librizzi's interest in the property on the date of his death. She relies principally on language in the Third Circuit's decision in United States v. Avila, 88 F.3d 229 (3d Cir.1996), but also on the Wisconsin Supreme Court's early decision in Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 272 N.W. 657 (1937), to support this position.
8
In Musa, the Wisconsin Supreme Court considered the effect of a judgment lien on property held in joint tenancy, after the joint tenant who was the judgment debtor died. The judgment lien there had been docketed, but not executed, on the date of the debtor's death. The supreme court decided that "the lien of the judgment in question could attach only to such interest or estate as Adam Musa [the debtor] actually and effectively had in the premises." Id., 272 N.W. at 658. Because his interest was only that of a joint tenant, it was limited by the right of survivorship. Upon his death, when the property passed to the other joint tenant, the judgment lien itself was extinguished: there was no more property of the debtor on which the lien could operate. Mrs. Librizzi does not take her argument as far as Musa might suggest, as she does not contend that the tax liens vanished when Mr. Librizzi died. She does say, however, that Musa means that the lien attached only to the interest Mr. Librizzi had while alive, and that this interest was finally determined as of the moment of his death.
9
Later legislation and court decisions in Wisconsin indicate that the Musa rule does not have the consequences Mrs. Librizzi claims for it. Section 700.24 of the Wisconsin Statutes addresses the effect of a joint tenant's death on certain liens (including, we note, state tax liens attached pursuant to Wisconsin law):
10
A real estate mortgage, a security interest under ch. 409, or a lien under s. 71.91(5)(b), s. 72.86(2), 1985 stats., ch. 49 or 779 on or against the | {
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753 F.2d 1081
Culverv.C.I.R.
84-7150
United States Court of Appeals,Ninth Circuit.
1/22/85
1
U.S.T.C.
AFFIRMED
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805 F.2d 1041
*1**U.S.v.Rojas-Gonzales
86-3093
United States Court of Appeals,Eleventh Circuit.
11/5/86
1
M.D.Fla.
AFFIRMED
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 25 case
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307 F.Supp.2d 364 (2004)
Maurice L. CARON, Sr. and Dorothy D. Caron, Plaintiffs,
v.
CITY OF PAWTUCKET, Margaret A. Bubis, Rocco P. Gesualdi, Jr. and Susan M. Gesualdi, Defendants.
Fannie Bernard, et al., Plaintiffs,
v.
City of Pawtucket, et al., Defendants.
Nos. 01-464S, 00-579S.
United States District Court, D. Rhode Island.
February 27, 2004.
*365 George M. Prescott, Esq., Lincoln, RI, for Plaintiffs Maurice & Dorothy Caron.
Stephen R. White, Esq., Warwick, RI, for Plaintiffs Fannie Bernard, Ruth Hyder, Dorothy Leo, Anna Maccarone, Jennie Bozek, Amy Ferrali, Gretchen Caldwell, Mary Burns, Giselle Maney, Ana Machado, Rita D'Angeloi, Whitmarsh, Ms., Iva Seaton, and Arlington Assisted Living Center, Inc.
Marc DeSisto, Esq., Providence, RI, for Defendant City of Pawtucket.
Stephen R. White, Esq., Warwick, RI, for Defendants Margaret A. Bubis, Rocco P. Gesualdi, Jr. and Susan M. Gesualdi.
Frank J. Milo, Jr., Esq., City Solicitor's Office, Pawtucket, RI, Marc DeSisto, Esq., Providence, RI, for Defendant City of Pawtucket.
James R. Baum, Esq., Joseph R. Gaeta, Esq., Attorney General's Office, Providence, RI, for Defendant State of Rhode Island.
DECISION AND ORDER
SMITH, District Judge.
These cases[1] are the fruit of a bitter and protracted conflict involving the fate of a de facto retirement home in Pawtucket, Rhode Island. Plaintiffs Maurice L. Caron and Dorothy D. Caron, respectively in their ninetieth and eightieth decade of life, have owned property abutting the retirement home since 1941 and, over the years, have doggedly objected to its allegedly unauthorized operation. Plaintiffs Fannie Bernard and twelve others ("the Bernard Plaintiffs") are residents and owners of the retirement home and have persevered in seeking to obtain the necessary zoning certifications and approvals from the City of Pawtucket ("City") to run the retirement home.
*366 In spite of this Court's best efforts to assist the parties in resolving their many grievances,[2] both sets of Plaintiffs press their claims against the City and others, alleging for the most part various violations of Rhode Island state law. The only federal cause of action in either case (and, thus, the only basis for this Court's subject matter jurisdiction)[3] is the Bernard Plaintiffs' claim that the City violated their rights under the Fair Housing Act, 42 U.S.C. § 3601, et seq. Now before the Court are motions for summary judgment by the Defendants in the respective actions. This Court grants summary judgment as to the Bernard Plaintiffs' Fair Housing Act claim, and dismisses without prejudice the claims in the Caron Action for want of supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3).
I. Facts and Procedure Common to Both Actions
In 1990, Rocco and Susan Gesualdi ("the Gesualdis")[4] purchased property at 362 Daggett Avenue in Pawtucket, Rhode Island, which had been used as a convalescent home for the elderly since at least 1963.[5] After the purchase, the Gesualdis applied for a certificate of zoning compliance for a seventeen-bed nursing facility from the Pawtucket Director of Zoning and Code Enforcement ("the Director"), arguing that the facility was exempt from applicable zoning ordinances based on a Rhode Island statute then in existence. See R.I. Gen. Laws § 45-24-22 (1990) (repealed 1994). The Director issued the requested certificate. The Carons, who reside on a property neighboring 362 Daggett Avenue and who contend that the Gesualdis illegally operated 362 Daggett Avenue as a convalescent home, appealed the decision to the Pawtucket Zoning Board of Appeals ("the Board"). The Board affirmed the Director's decision. The Carons again appealed the decision to the Superior Court, which remanded the case to the Board for additional evidence. At the rehearing in 1991, the Board revoked the certificate of zoning compliance, finding that the retirement home was not exempt from applicable zoning ordinances.
In 1993, the Gesualdis again sought a certificate of zoning compliance from the Director, this time claiming that a denial would constitute a violation of the Fair Housing Act. The Director issued the certificate on this basis. The Carons appealed the Director's decision to the Board, and the Board revoked the certificate. The Gesualdis appealed the Board's decision to the Superior Court, but while that appeal was pending, they sought a "recognition" from the Director that an eight-bed convalescent facility was a "legal non-conforming use" of the property. The Director issued this "recognition," which was confirmed by the Board, and which was *367 then appealed by the Carons to the Superior Court.
The Superior Court consolidated the appeals of the Gesualdis and the Carons, and issued a decision in 1996 denying the certification. The Gesualdis then filed a Petition for Writ of Certiorari with the Rhode Island Supreme Court seeking review of the denial. The writ was granted and the matter was scheduled for oral argument. During the pendency of the petition, the Gesualdis filed an emergency petition with the Supreme Court seeking a stay of the Superior Court's order pending review by the Supreme Court, and in 1996 the Supreme Court granted the stay.
In 1998, while the petition was still pending, the Gesualdis sold their interest in the convalescent home to Margaret Bubis and Darlington Assisted Living Centers. Since Bubis now had an interest in the retirement home, she was added as a party petitioner to the Supreme Court action. However, at some point thereafter, the Gesualdis and Bubis withdrew their petition to the Supreme Court. Once that occurred, the Supreme Court affirmed the Superior Court judgment and lifted the stay.
While the petition was pending, Bubis attempted to obtain a certificate of zoning compliance from the City, arguing that the home was exempt from zoning laws as a "community residence" under a zoning ordinance enacted by Pawtucket after the Gesualdis had last sought the certificate. The Director initially granted Bubis the certificate, but the Board subsequently revoked the certificate and issued a written decision to that effect. No appeal was taken from this decision. The City then issued a "cease and desist" notice to Bubis on September 27, 2000, ordering her to discontinue operating the home as a convalescent facility, and the facility ceased operation on or about November 30, 2000.
In the Caron Action (filed in state court and then removed here), the Carons bring claims against the Gesualdis, Bubis, the City, and assorted City officials, for alleged harms resulting from the operation of an illegal facility (as against the Gesualdis and Bubis), and for infringing upon the Carons' constitutional rights (as against the City and its officials, pursuant to 42 U.S.C. § 1983, which formed the basis for Defendants' removal here). The City's first step was to file a motion for summary judgment on the Carons' section 1983 claims. Before the Court ruled on that motion (or contemporaneously with the Court's decision), the Carons amended their complaint to replace their section 1983 claim with a claim for negligence (on a nuisance theory) under state law, and also dismissed the individual municipal officials from the case. The Court then granted the City's motion for summary judgment on the Carons' section 1983 claims. Defendants City, Gesualdis, and Bubis now move for summary judgment on the remaining negligence claims.
In the Bernard Action, which was filed here, the underlying facts are essentially identical, other than that the owners and residents of the retirement home sue the City and several of its officers for alleged violations of the Fair Housing Act based on the City's denial of the necessary zoning certificates.
II. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The Court must "view all facts and draw all inferences in the light most favorable to the nonmoving party." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997) (citing Continental *368 Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991)).
III. Analysis
A. The Bernard Plaintiffs' Fair Housing Act Claim
Since this Court's subject matter jurisdiction over both actions depends on the viability of the Fair Housing Act claim, it is sensible to analyze that claim first.
The Fair Housing Act (Title VIII of the Civil Rights Act of 1968), 42 U.S.C. § 3601, et seq. ("FHA"), prohibits a broad spectrum of discriminatory housing practices ranging from a discriminatory refusal to rent or sell on the basis of race to discrimination in the terms and conditions of housing. Schmidt v. Boston Housing Authority, 505 F.Supp. 988, 993-94 (D.Mass.1981). In 1988, Congress extended the FHA's coverage by defining | {
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42 N.W.2d 216 (1950)
FERDERER
v.
NORTHERN PAC. RY. CO.
No. 7102.
Supreme Court of North Dakota.
April 6, 1950.
*218 E. T. Conmy and E. T. Conmy, Jr., Fargo, for appellant.
Murray & Murray, Bismarck, for respondent.
NUESSLE, Chief Justice.
This action was brought by the plaintiff to recover damages from the defendant Railway Company on account of negligence on the part of the defendant in the damming and diversion of the Cannonball River and in the construction and maintenance of the diversion channel, dikes, and embankments erected and used in such damming and diversion.
The case was tried to a jury. The jury was directed to answer a special interrogatory and to return a general verdict. The interrogatory was answered in the negative and a verdict not inconsistent with it was returned for the plaintiff. Judgment was entered on the verdict. The defendant having laid a foundation therefor moved for judgment notwithstanding the verdict. The motion was denied, whereupon the defendant perfected the instant appeal from the judgment.
The record discloses the following facts: In March, 1943, plaintiff was a tenant in possession of a farm in the valley of the Cannonball River, a tributary of the Missouri. He lived there with his family. The valley, of varying width, descends from west to east through a rough terrain. The channel of the river is tortuous. To the northwest of the plaintiff's farm it curves to the south, thence easterly through the farm south of his buildings, thence north again east of the buildings, thus forming a loop. In 1909 the defendant built a line of railroad up the valley. The grade for the roadbed was raised above the valley floor about four feet. It crossed the Cannonball northeast of the plaintiff's buildings and passing about 1,000 feet north of the buildings again crossed the river northwest of them. Both of these crossings were over fills in the channel. Therefore, it became necessary to change the course of the river. Accordingly, the defendant cut a new channel north of and parallel with its roadbed across the peninsula formed by the loop. To divert the stream into the channel thus cut an earthen dam was constructed 200 feet north of the west crossing of the river. About 200 feet west of this crossing there was a depression or draw parallel with the channel. The grade was built through and over this draw and two cement culverts each 36 inches in diameter were laid under the grade to take care of such water as might run down the draw from the north. Likewise, under the fill in the channel on the east side of the loop two cement culverts each 30 inches in diameter were laid to convey back into the stream such water as might accumulate in the abandoned portion of the channel. Thus under the same head of water the 36 inch culverts had more than two-fifths greater capacity than the 30 inch. The diversion channel was 75 feet wide at the bottom and ten feet in depth with a uniform grade down *219 from west to east. It was straight and approximately 4200 feet long. What was done with the earth that was excavated does not appear. The length of the original abandoned channel forming the loop was approximately 7800 feet. The dam across the river at the point of diversion was substantially built according to proper engineering standards. It was riprapped on its upstream side and a roadway passed over it.
In February, 1943, the weather turned warm. The snow melted and the Cannonball ran bank full. Then abruptly the temperature fell and the river froze over. With the cold weather the flow decreased and ice ten to fourteen inches thick was left in the river bed and hanging on the banks. On March 14, a storm began. This lasted for nearly four days, with high winds and a heavy fall of wet snow that drifted greatly. On March 22, the temperature rose and the snow melted rapidly. All the streams were in flood. On the 25th the river was running more than bank full. An ice gorge formed a mile and a quarter below the plaintiff's farm. The water backed up in the valley immediately above the gorge so that it was nearly a mile in width. Upstream from the diversion dam and railway embankment the valley was flooded and became an ice filled lake several hundred acres in extent. Water poured through the culverts west of the dam. Water also flowed in through ravines from the south. Thus the land within the loop flooded. It rose so high that it submerged the plaintiff's barnyard.
On the morning of the 25th, Carl Haff, one of the plaintiff's neighbors, came to the bank across the river south of the buildings. The plaintiff was away but his wife and children were at home. Haff shouted to the family that the situation was dangerous and that they should leave. At that time the water had not reached the house but the barnyard was submerged and he could see cattle standing in the water with only their heads visible. That afternoon the family walked from the house to the railroad track, thence along the track to the east side of the loop. There they were met by Haff who took them to his home where they remained that night. The next morning they returned to the farm walking in on the track. In the afternoon Haff and several neighbors again came. They drove in with a team of horses pulling a trailer on the track from the east side of the loop to a point north of the buildings, and then on some high ground to the buildings. They found that some of the plaintiff's cattle and hogs, and the poultry, in the barnyard were drowned. They removed those that were still alive. Some they transported in the trailer, others they drove out. They also took the family out.
At some time during the night of the 26th the railroad grade west of the dam was washed out as was the fill in the channel there and the west one-half or two-thirds of the diversion dam. The fill in the channel on the east side of the loop also was washed out, together with 320 feet of the railroad grade. And the water had risen so high that it reached and flooded the plaintiff's house. The facts set forth above are undisputed.
The defendant called as witnesses the section foreman and several members of his crew whose duty it was to patrol and look after that portion of its roadbed and track with which we are here concerned. These witnesses testified that on the morning of March 25th they patrolled the track as usual. At that time the water west of the loop and north of the track was nearly up to the top of the grade. It was spouting through the 36 inch culverts under such pressure that it kicked the water below back some 20 to 40 feet. Some of these witnesses also testified that the water was spouting through the 30 inch culverts under the fill on the east side of the loop in the same manner. There is no direct denial of this latter testimony. These witnesses testified that the water was higher on the north side of the track than it was on the south side, but it does not appear whether this was the case only on the west side of the loop or at any or all other points along the diversion channel. On the other hand, the defendant's witness, Haff, testified that on the afternoon of the 25th at the east crossing of the river the water was a foot higher south of the track than it was north of the track and that on the 26th it was two feet *220 higher south than it was north of the track. Manifestly, if Haff was right, the water could not have been spouting through the culverts there. On the morning of the 26th the section crew again patrolled the track and at that time found that the water west of the loop was five feet higher on the north than on the south side and was creeping between the ties over the grade west of the dam but that the dam, the fill, and the grade were still intact.
Defendant's division engineer testified that about two months after the flood he, with a number of assistants, surveyors, and others, using instruments made measurements of the diversion channel and of that portion of the abandoned channel south of the railroad track. His testimony is that the narrowest part of the abandoned channel was 70 feet wide and 10 feet deep and that the diversion channel was straight, 10 feet deep and 75 feet wide, with a uniform grade down from west to east. There is no testimony, however, as to the grade of the latter or as to the difference in elevation, though it must have been appreciable, between the bottom of the diversion channel at the point of diversion and the bottom of that channel where it joined the original channel on the east. Neither does it appear whether the bottom of the diversion channel at the points of its beginning and ending was of the same elevation as the bottom of the original channel of the river at those points. The elevation of the top of the fill over the channel on the west side of the loop was not shown, nor was that of the top of the fill over the channel on the east side of the loop.
The plaintiff testified that the diversion channel was 70 feet wide and 10 feet deep and that the abandoned channel was 350 feet in width from top bank to top bank. But it is uncertain as to what he meant by "top bank to top bank". His son-in-law was also called as a witness for the plaintiff. His testimony was in accord with that of the plaintiff as to the width of the abandoned channel but not as to the width or depth of the diversion channel in that he said it was 15 feet wide and 8 feet deep. Neither of these witnesses had ever measured either of the channels and gave only their estimates as to the widths and depths thereof. Both of them testified that the culverts on both sides of the loop were filled with dirt | {
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816 F.2d 614
John Wesley GAY, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 86-8769Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
May 12, 1987.
Joe D. Whitley, U.S. Atty., Louis Sands, Asst. U.S. Atty., Macon, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HILL, KRAVITCH and EDMONDSON, Circuit Judges.
PER CURIAM:
1
John Wesley Gay was convicted by a jury on one count of a three count indictment for robbing a federally insured bank in violation of 18 U.S.C. 2113(d). He subsequently filed a pro se Sec. 2255 motion, alleging, inter alia, that a government witness, Timothy Peglar, was induced through police harassment to give perjured testimony, and that Gay's counsel was ineffective. Gay claimed his counsel was inadequate because, among other things, he did not investigate Peglar's reason for testifying or the extent of Peglar's criminal record. This Sec. 2255 motion was denied on the merits, and the denial was affirmed on appeal. United States v. Gay, 767 F.2d 936 (11th Cir.1985) (unpublished opinion).
2
Gay then filed a second Sec. 2255 motion, alleging that the prosecution failed to disclose to his counsel that Peglar had a state criminal charge pending against him at the time of Gay's arrest, that this charge was dismissed in exchange for Peglar's testimony at trial.
3
The government moved to dismiss Gay's second motion as successive under Rule 9(b), rules foll. Sec. 2255 or, alternatively, because Gay's allegations were conclusory and without factual basis. Gay responded, explaining that he failed to allege these grounds in his prior Sec. 2255 motion because of his "lack of legal knowledge" and "limited legal perceptions." He also argued he was entitled to an evidentiary hearing on his claims.
4
The district court found that Gay's failure to raise these grounds in his prior motion constituted an abuse, and denied the motion. In doing so, the court pointed out that Gay's most recent allegations were "remarkably similar to those supporting his claim of ineffective assistance of counsel in his first petition," and found that Gay failed to account adequately for his reasons for omitting these grounds in his first motion. The court ruled that Gay's stated excuse, his lack of legal knowledge, was not a legitimate reason for the omission. The judge explained:
5
[T]he pleadings, briefs and motions filed with this petition, the first section 2255 motion, as well as his numerous motions for appeal and mandamus from the Eleventh Circuit demonstrate that while Mr. Gay is proceeding pro se, he has the ability to understand the legal significance of the facts and circumstances of his case and some appreciation of the legal concept of abuse of the motion remedy. The court notes that Mr. Gay is no stranger to the courthouse.
6
Petitioner has advanced no legitimate reasons for his failure to assert arguably successive grounds in his first motion. See e.g., Sanders v. United States, 373 U.S. at 15-17, [83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963) ]; Funchess v. Wainwright, 788 F.2d 1443 (11th Cir.1986); Humphrey v. United States, 766 F.2d 1522 (11th Cir.1985). Nor has Mr. Gay shown that his petition is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence. On the contrary, petitioner's statement of facts indicates that he possessed all the relevant facts about Timothy Peglar before his trial and well in advance of his first section 2255 motion.
7
Gay then filed a motion for reconsideration, alleging for the first time that he had not brought the present claims regarding Peglar in his initial Sec. 2255 motion because he did not discover the information until that action was on appeal to this court. He alleged that he raised the issue in that appeal, but this court refused to address it as it was improperly raised for the first time on appeal. The district court denied Gay's motion for reconsideration without further explanation.
DISCUSSION
8
Gay argues on appeal that he did not learn of the new facts until after his first Sec. 2255 motion was on appeal to this court and that his lack of legal knowledge should constitute "cause and excusable omission" because he never intentionally withheld a "perceived issue based upon known facts."
9
The government argues that Gay did not meet his burden of showing that his current motion was not an abuse of the rules governing Sec. 2255. Gay's proffered excuse to the district court was that he was not a trained attorney and, the government asserts, the district court was not told that Gay was factually ignorant of the new ground until after its ruling.
10
When a defendant presents new grounds for relief in a later Sec. 2255 motion, the district court must address those grounds "unless the movant's failure to prosecute these grounds earlier constitutes an abuse of the motion remedy." Humphrey v. United States, 766 F.2d 1522, 1524 (11th Cir.1985) citing Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The government must plead abuse, and then "the burden shifts to the movant to show that his failure to assert the new grounds in an earlier motion does not comprise an abuse." Id. The movant must prove by a preponderance of the evidence that he was ignorant of facts necessary to support the new ground when the prior motion was filed, or that he had not realized that those facts provided the basis for Sec. 2255 relief. See Booker v. Wainwright, 764 F.2d 1371, 1376-77 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985).1 If, however, the movant intentionally withheld a claim from the previous petition, or was inexcusably neglectful, the motion may be dismissed. Haley v. Estelle, 632 F.2d 1273, 1375 (5th Cir.1980) (citations omitted).
11
Here, we hold that the government properly pled abuse of the Sec. 2255 process, and that Gay failed to show that he was not abusing the writ. First, we agree with the district court that Gay's first argument, that his lack of legal knowledge prevented him from asserting these claims earlier, is untenable. By his own admission, Gay knew that these facts stated a claim for Sec. 2255 relief. Additionally, assuming that the claims in Gay's motion for rehearing were properly before the district court, his contention that his successive claims are based on newly discovered facts is also suspect. Gay failed to allege that his claims were premised on "new" facts until his motion for reconsideration, and provided no support for his assertion that he was unaware of these facts when filing the first motion.2 Further, as the district court found, these "new" facts bear a striking resemblance to the facts he asserted in his previous petition. All of the "new" allegations relate to Peglar's credibility, an issue explored at length in Gay's first petition.3 The district court did not err in finding that Gay failed to prove by a preponderance of the evidence that he was ignorant of the facts necessary to support the new grounds when he filed his previous motion. See Sanders v. United States, 83 S.Ct. at 1078-79. The judgment of the district court dismissing his petition is therefore AFFIRMED.
1
Although Booker analyzes abuse of a writ of habeas corpus, the principles developed in habeas cases also apply to Sec. 2255 motions. See Sanders v. United States, 83 S.Ct. at 1078
2
For example, in the statement of facts to the district court supporting his second motion, Gay maintained that, in 1980, his Aunt (who he claims was also Peglar's grandmother) called Gay's sister and told her that Peglar had been arrested by the City of Griffin, Georgia's police department for attempting to sell a car without proof of legal title. In his petition for rehearing, Gay claimed that this is the charge that was dismissed pursuant to an alleged agreement to have Peglar testify against him. Gay never explained why it took four years for his sister to convey this information to him
3
We note in passing that the district court could have made short shrift of Gay's Brady claims on the merits, had they been reached. In Gay's prior unsuccessful Sec. 2255 motion, the district court made a specific finding that "Peglar's testimony simply was not crucial to the prosecution." Although res judicata does not operate in the Sec. 2255 arena, see Sanders v. United States, 83 S.Ct. at 1075-77, Gay has alleged no new facts which affect the district court's finding that Peglar's testimony was not crucial to Gay's conviction. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3381-84, 87 L | {
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751 F.Supp. 2 (1990)
John BALDWIN, Plaintiff,
v.
HARRIS CORPORATION, Defendant.
Civ.A. No. 87-3479 JHP.
United States District Court, District of Columbia.
October 11, 1990.
*3 Patrick M. Regan, Lisa R. Riggs, Koonz, McKenney, Johnson & Regan, Washington, D.C., for plaintiff.
James P. Murphy, Ellen R. Hornstein, Squire, Sanders & Dempsey, Washington, D.C., for defendant.
MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
On October 23, 1985, plaintiff John Baldwin was injured while using a paper cutter manufactured by the defendant, Harris Corporation. Plaintiff, on December 23, 1987, brought this diversity case against Harris alleging negligent product design, strict liability, and failure to adequately warn. Currently before the Court is defendant's renewed motion for summary judgment.[1] We find that plaintiff's injury was not a result of a defective product design, but rather was caused by plaintiff's employer's negligence in allowing the machine to be operated without its protective safety device. And we hold that plaintiff was well aware that the protective device was not functioning and assumed the risk of operating the machine in its dangerous condition. We further find that defendant supplied adequate warnings on the machine. Therefore, we grant defendant's summary judgment motion for all claims.
BACKGROUND
The accident that forms the basis for this suit occurred while the plaintiff was employed as a "press operator" for Todd-Allen Printing Company, a commercial printer. Plaintiff's duties included the operation of a Seybold Saber Model CKB paper cutter, which was manufactured by the defendant. The machine was sold to a predecessor company of Todd-Allen in 1955.
*4 This machine cuts large thick stacks of paper via a consecutive two-step process. First a clamp descends to hold the paper in place. Then, a knife is lowered to cut the paper. It was the plaintiff's practice to operate the machine using the hand controls. These controls are located on either side of the machine and bring down first the clamp and then the knife. However, it is also possible to operate the clamp with a foot treadle; pressing the foot treadle brings the clamp down. Although the plaintiff had never used the treadle, he was aware that by depressing the treadle, the clamp would descend.
The foot treadle was equipped with a safety latch to prevent accidental operation of the foot treadle. The cutter was designed so that the safety latch would have to be removed each time the foot treadle was used. However, the safety latch on the cutter located at Todd-Allen had been disengaged ever since the plaintiff had been working at the company, a period of approximately one year. The plaintiff was aware of the fact that the safety latch was not working at the time of the accident.
The paper cutter in question had a warning label on it. The relevant parts of the warnings stated "DO NOT DEACTIVATE ANY SAFETY DEVICE.... USE CAUTION WHEN USING THE CLAMP FOOT TREADLE."
When the accident occurred, plaintiff was carrying a heavy stack of paper to the cutter. He lurched forward to lift the paper onto the table of the cutter. As he lurched, his right foot accidentally hit the foot treadle, which caused the clamp to come down on his right hand, which was holding the paper and which was underneath the knife and the clamp. Plaintiff now claims that his hand was permanently injured in this accident.
DISCUSSION
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has clarified the standard of the rule, stating:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
I. Defective and Negligent Design Claims
We find that plaintiff's claims of negligent design and strict liability must fail because plaintiff's injury was not caused by any defect or lack of reasonable care in the design of the product. If the product been used as designed, plaintiff would not have been injured.
To make out a claim of strict liability for a defective product, plaintiff would have to prove that the paper cutter in question was sold "in a defective condition unreasonably dangerous to the user" and that the defective product caused physical harm to the user. Restatement (Second) of Torts § 402A (1965) (cited in Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 720 (D.C. 1985)). To make out a charge of negligent design, plaintiff would have to prove that the manufacturer failed to exercise reasonable care in its design. Hull v. Eaton Corp., 825 F.2d 448, 453 (D.C.Cir.1987). The product defendant shipped was not "in a defective condition unreasonably dangerous," nor was it negligently designed, since both parties agree that if the product had been in the condition in which it was designed, i.e. had the safety latch been in *5 place, the accident would not have taken place.
To prevail on both claims, plaintiff would have to prove that defendant's defective or negligent product design caused plaintiff's injury. In this case, the manufacturer supplied a safety device to prevent exactly the type of injury that occurred in this unfortunate accident. If the product had been used as designed, and if the accompanying warnings had been heeded, the injury would not have occurred. Plaintiff's injury was not the result of a defective or negligently designed product, but was caused by the negligent maintenance of the plaintiff's employer, who allowed the machine to be operated without the safety latch in place.
Whether the employer's negligence is a superceding cause, absolving the manufacturer of liability, depends on the determination of whether it was foreseeable to the manufacturer that people would disregard the clear instructions on the machine and disengage the safety latch. See Payne v. Soft Sheen, 486 A.2d at 726 ("negligence by an intervening actor will not relieve the manufacturer of liability if the negligence could reasonably have been anticipated under both negligence and strict liability theories of recovery"). Plaintiff has introduced no evidence that the manufacturer should have foreseen that a purchaser of the product would disregard the clear warning on the machine and disengage the safety latch, nor has he introduced evidence that the manufacturer was aware that the paper cutter was being operated without a functional safety latch. In this case, as in Hanlon v. Cyril Bath Co., 541 F.2d 343 (3d Cir.1975), the injured party's employer "removed a safeguard against accidental activation that had been incorporated in the original structural design and would have been adequate to prevent this accident." Id. at 346. To hold the manufacturer liable for such an act of the employer would be requiring the manufacturer to be an insurer of its products.
Since the injury would not have occurred had the product been used as designed, and the employer's negligence was not reasonably foreseeable by the manufacturer, plaintiff's claims of negligent and defective product design must fail. Defendant's summary judgment motion on these counts will therefore be granted.
II. Assumption of the Risk
Even if we did not grant the summary judgment based on plaintiff's failure to prove causation, we would find that the plaintiff assumed the risk of operating this machine knowing of its dangerous qualities. Assumption of the risk is a complete bar to recovery for negligence and strict liability against a manufacturer. See, e.g., Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985) (negligence); Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 815 (D.C.Cir.1980) (strict liability). Assumption of the risk relieves the defendant of any duty he owed to the plaintiff because in such a case the plaintiff comprehended the danger and voluntarily decided to risk that danger. See Sinai v. Polinger Co., 498 A.2d at 524. The elements of assumption of the risk are: "actual knowledge and comprehension of a danger caused by the defendant's negligence and the plaintiff's voluntary exposure to that known danger." Morrison v. MacNamara, 407 A.2d 555, 567 (D.C.1979).
In plaintiff's deposition he testified that he was aware that the treadle latch was not operating and that it had not been operating since the time he had been working at Todd-Allen, a period of approximately one year. (Plaintiff's Depo. at 22-24). To determine whether the plaintiff assumed the risk, the court must analyze "the plaintiff's age, intelligence, and experience." Morrison v. MacNamara, 407 A.2d at 567. Here, plaintiff was an experienced paper cutter, having approximately five years of experience in the field. | {
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6046-17T1
SHELLEY FREYDONT,
Plaintiff-Respondent,
v.
RICHARD M. LENCHNER,
Defendant-Appellant.
___________________________
Argued September 23, 2019 – Decided October 2, 2019
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1384-04.
William John Heimbuch argued the cause for appellant
(Heimbuch & Solimano, PC, attorneys; William John
Heimbuch, on the brief).
Jacqueline M. Dugan argued the cause for respondent
(November & Nunnink, LLC, attorneys; Jacqueline M.
Dugan, on the brief).
PER CURIAM
In this post-divorce matrimonial case, defendant Richard M. Lenchner
appeals from a July 19, 2018 order denying his motion to suspend or modify his
alimony obligation to plaintiff Shelley Freydont. Judge Avis Bishop-Thompson
conducted oral argument, at which she swore in the parties. After argument, the
judge denied the motion, entered the order, and rendered an oral opinion. We
affirm.
The parties were married for approximately nineteen years and have two
children together. The children are now adults and emancipated. In October
2004, and as part of the final divorce judgment, the parties entered into a
property settlement agreement (PSA), which required defendant to pay plaintiff
$35,000 in alimony annually. The parties negotiated that amount in
consideration of defendant's $140,000 salary. The PSA stated defendant "shall
only be permitted to seek a reduction in his alimony obligation based upon an
involuntary change in his job status."
In 2013, the parties entered into a consent order (CO), which increased
defendant's annual alimony obligation by $4,000. The CO's practical effect
eliminated yearly reviews of defendant's income, which plaintiff certified had
been a struggle. Importantly, the CO did not obviate defendant's obligation
under the PSA to demonstrate, as a precondition to a downward modification of
A-6046-17T1
2
his alimony obligation, an "involuntary change in his job status." Since entering
into the CO, defendant filed three motions seeking to suspend his alimony
obligation.
Defendant filed his first motion in February 2017, certifying that his then
employer terminated his position in August 2016. Plaintiff certified that
defendant obtained a new job earning $150,000 while his motion was pending.
Plaintiff asserted defendant neglected to disclose his new employment. The
judge found that defendant failed to demonstrate changed circumstances and
denied the motion. Defendant did not seek reconsideration or interlocutory
review of the order denying the first motion.
In October 2017, defendant filed his second motion. Defendant certified
that although he accepted a new position – earning $150,000 – his new employer
terminated him in June 2017. The judge who heard the second motion
questioned whether the termination was involuntary. And, before denying the
motion, that judge gave defendant the opportunity to "confirm the nature of the
termination[.]" According to that judge, "[d]efendant opted not to address the
[c]ourt's concern." He then found that defendant failed to show that the
termination was involuntary and denied defendant's motion. Like the first
A-6046-17T1
3
motion, defendant did not seek reconsideration or interlocutory review of the
order.
In May 2018, defendant filed his third motion, which led to the order under
review. Defendant provided no further explanation about whether his previous
employment termination was involuntary. Plaintiff – who at the time was sixty-
eight-years old – opposed the motion by emphasizing the PSA's language. She
maintained that the PSA required defendant to show his job status was
involuntary. Plaintiff also pointed out that defendant's income in 2015 was
$251,165, which was substantially more than the $160,000 threshold income
that the parties used when entering into the CO. Assuming defendant could
show that the termination was involuntary, plaintiff contended that he did not
look for replacement work in good faith.
At oral argument, Judge Bishop-Thompson questioned defendant's
counsel about his employment termination. Counsel responded that defendant
"had a contentious relationship with the owner." Notwithstanding whether the
termination was involuntary, the judge emphasized that defendant had an
obligation to find work. The judge also questioned defendant's good faith efforts
to find work. After examining defendant's log of his efforts, the judge found
that defendant sought employment only when he made a motion to reduce his
A-6046-17T1
4
alimony obligation. She concluded that defendant had not established changed
circumstances and denied the motion.
On appeal, defendant argues that the judge misapplied the law. He also
asserts that the judge abused her discretion by not finding changed
circumstances warranting relief or a full plenary hearing. As to the
misapplication of the law, defendant contends the judge failed to apply N.J.S.A.
2A:34-23(k), specifically (k)(9) – addressing the possibility of a temporary
remedy pending continuing employment investigations.
Alimony "may be revised and altered by the court from time to time as
circumstances may require." N.J.S.A. 2A:34-23. A showing of "changed
circumstances" is required to modify an alimony obligation. Lepis v. Lepis, 83
N.J. 139, 146 (1980). "Whether an alimony obligation should be modified based
upon a claim of changed circumstances rests within a Family Part judge's sound
discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each
individual motion for modification is fact-sensitive, and "the appellate court
must give due recognition to the wide discretion which our law rightly affords
to the trial judges who deal with these matters." Ibid. (quoting Martindell v.
Martindell, 21 N.J. 341, 355 (1956)). We will not disturb the trial court's
decision on alimony unless we
A-6046-17T1
5
conclude that the trial court clearly abused its
discretion, failed to consider all of the controlling legal
principles, or must otherwise be well satisfied that the
findings were mistaken or that the determination could
not reasonably have been reached on sufficient credible
evidence present in the record after considering the
proofs as a whole.
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
1996).]
Although N.J.S.A. 2A:34-23(k) became effective on September 10, 2014,
its application to provisions of pre-existing orders and agreements – like the
PSA – is guided by the bill adopting the alimony amendments. The bill adds a
provision that declares the new law non-retroactive with respect to certain prior
judicial orders and alimony agreements. See Spangenberg v. Kolakowski, 442
N.J. Super. 529, 538 (App. Div. 2015). The bill states:
This act shall take effect immediately and shall not be
construed either to modify the duration of alimony
ordered or agreed upon or other specifically bargained
for contractual provisions that have been incorporated
into:
a. a final judgment of divorce or dissolution;
b. a final order that has concluded post-judgment
litigation; or
c. any enforceable written agreement between the
parties.
[L. 2014, c. 42, § 2.]
A-6046-17T1
6
"This additional statement signals the legislative recognition of the need to
uphold prior agreements executed or final orders filed before adoption of the
statutory amendments." Spangenberg, 442 N.J. Super. at 538. That is exactly
what the judge did here.
The parties incorporated the PSA language – which contains bargained for
contractual provisions | {
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827 F.2d 770
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.James Robert KIMSEY, Plaintiff-Appellant,v.G. E. MARTINEZ; Barbara Moore, Nurse; Ford, Nurse,Defendants-Appellees.
No. 87-3589
United States Court of Appeals, Sixth Circuit.
August 27, 1987.
ORDER
1
Before RALPH B. GUY, JR., and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*
2
This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why appeal number 87-3589 should not be dismissed for lack of jurisdiction.
3
It appears from the record that the judgment in civil action number C86-7179 was entered April 24, 1987, and that a notice of appeal was filed on April 28, 1987 (appeal number 87-3419). A second notice of appeal filed June 17, 1987 (appeal number 87-3589) was 22 days late. Fed. R. App. P. 4(a) and 26(a).
4
Appellant's response to this court's order advises that the notice of appeal filed June 17, 1987, was not intended to be filed in civil action C86-7179. Although civil action C86-7179 was mentioned in the body of the document, civil action C86-7483 was the only number placed at the top of the document by the style of the case.
5
It is ORDERED that appeal number 87-3589 be dismissed. The dismissal of appeal number 87-3589 does not affect the pendency of appeal number 87-3419.
*
The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation
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163 B.R. 734 (1993)
In re TAYLORCRAFT AVIATION CORP., Debtor.
Charles A. SZYBIST, Esq., Trustee, Plaintiff,
v.
AIRCRAFT ACQUISITION CORPORATION, Alex A. Mervis, Darus H. Zehrbach, John Polychron, East Kent Capital, Inc., Taylorcraft Aircraft Co., Capital Resource Group, Inc., Drizos Investment Capital Markets, Inc., Leander Research Manufacturing and Distributing, Inc. and Starman Brothers Auctions, Inc., Defendants.
Bankruptcy No. 5-86-00741. Adv. No. 5-91-0130.
United States Bankruptcy Court, M.D. Pennsylvania.
October 28, 1993.
*735 Charles A. Szybist, Trustee, Williamsport, PA, pro se.
John H. Doran, Wilkes-Barre, PA, for plaintiff Charles A. Szybist.
Robert V. Campedel, Pittsburgh, PA, for Taylorcraft Aircraft Co., East Kent Capital, Inc., and John Polychron.
L. Paul Alvestad, Tacoma, WA, for Leander Research Mfg. and Distributing, Inc.
David L. Buelt, Omaha, NE, for Starman Bros. Auctions, Inc.
Sam A. Eidy, Toledo, OH, for Darus A. Zehrbach.
Carl R. Schiffman, Pittsburgh, PA, for Alex A. Mervis.
Herve Gouraige, Newark, NJ, for Drizos Inv. Capital Markets, Inc.
OPINION AND ORDER
JOHN J. THOMAS, Bankruptcy Judge.
Before the Court are two (2) pre-trial Motions namely, a Motion for Reconsideration of an Order of this Court dated May 19, 1993, filed by Leander Research Manufacturing and Distributing, Inc. (hereinafter "Leander") and Starman Brothers Auctions, Inc. (hereinafter "Starman") and a Motion to Dismiss filed by Capital Resource Group, Inc. (hereinafter "Capital"). For the reasons provided herein, we grant both Motions.
On or about December 11, 1986, Taylorcraft Aviation Corp. (hereinafter "Debtor") filed a Chapter Eleven Bankruptcy Petition. Thereafter on July 24, 1989, the case was converted to one under Chapter Seven. The Plaintiff, Charles A. Szybist, Esquire, (hereinafter "Plaintiff"), was appointed Trustee on July 25, 1989.
On or about September 25, 1989, the Plaintiff noticed creditors and parties in interest of his intention to sell the assets of the Debtor at a private sale to Leander unless objections were made to the sale or higher bids were presented. The notice established that a private auction and the entertainment of higher bids would occur on October 30, 1989. In response to that notice certain bids were received and in some cases withdrawn on or before October 29, 1989. Thereafter, based upon certain events, namely a telephone call from Alex A. Mervis (hereinafter "Mervis"), an employee of Drizos, the Trustee cancelled the sale for October 30, 1989. Thereafter, he rescheduled the sale for November 15, 1989 at which time the assets of the Debtor were sold to Aircraft Acquisition Corporation (hereinafter "AAC") for the sum of One Hundred Sixty-Five Thousand Dollars ($165,000.00). The Trustee filed an Adversary Complaint on October 21, 1991 against AAC, Mervis, Darus H. Zehrbach (hereinafter "Zehrbach"), John Polychron (hereinafter "Polychron"), East Kent Capital, Inc. (hereinafter "East Kent"), and Taylorcraft Aircraft Co., alleging that the above-named Defendants entered into collusive bidding agreements in an effort to control the bids and purchase the assets for far less than the fair market value of those assets thereby depriving the estate of their proper value. This action was commenced under the dictates of 11 U.S.C. § 363(n) which, in its entirety, provides as follows:
The trustee may avoid a sale under this section if the sale price was controlled by an agreement among potential bidders at such sale, or may recover from a party to *736 such agreement any amount by which the value of the property sold exceeds the price at which such sale was consummated, and may recover any costs, attorneys' fees, or expenses incurred in avoiding such sale or recovering such amount. In addition to any recovery under the preceding sentence, the court may grant judgment for punitive damages in favor of the estate and against any such party that entered into such an agreement in willful disregard of this subsection.
On November 18, 1992, the Defendants, Polychron, East Kent and Taylorcraft Aircraft Co., filed a Motion for Leave to Amend the Caption and Add as Third Party Defendants, Leander and Starman. That Motion was approved by Order of this Court dated November 23, 1992. The Third Party Complaint was filed on November 30, 1992. Leander and Starman answered the Third Party Complaint by denying most of the allegations of the Complaint and each answer indicated that the Third Party Complaint failed to state a claim upon which relief could be granted.
On May 14, 1993, the Plaintiff filed a Motion for Leave to Amend Complaint to Add Leander and Starman as original Defendants and for Permission to Amend Complaint Pursuant to Rules 15 and 20 of the Federal Rules of Civil Procedure. That Motion was granted by an Order of this Court dated May 19, 1993. On May 25, 1993, the Plaintiff filed his Amended Complaint.
On June 1, 1993, Leander and Starman filed a Joint Motion for Reconsideration of the Court's May 19, 1993 Order adding Leander and Starman as original Defendants. Additionally, on September 20, 1993, Capital filed a Motion to Dismiss. Both of these Motions raise the same legal arguments as to why the original Complaint should be dismissed and therefore will be handled jointly in this memorandum.
Leander and Starman allege that they were added as original Defendants because of a transaction which occurred almost four (4) years prior to the amendment and therefore the applicable statute of limitations expired with respect to those two Defendants. Additionally, their Motion cites the Doctrine of Waiver and Laches therefore estopping the Trustee from bringing the action against them. Likewise, Capital indicates that the applicable statute of limitations for this type of action in Pennsylvania is two (2) years and that the Trustee's claim was brought against Capital nearly three (3) years and seven (7) months after the sale and therefore it is time barred. All parties agree that if the Bankruptcy Code or a federal statute of limitations does not speak to the specific cause of action, then the Court is to look to the applicable state statute of limitations.
Additionally, Capital argues that Rule 9024 of the Bankruptcy Rules of Procedure and Rule 60(b) of the Federal Rules of Civil Procedure apply and that under these Rules this matter is also time barred. As to all of these arguments, the Trustee responds that under Federal Rule of Civil Procedure 15(c) the filing of the Amended Complaint is permitted because of the "Doctrine of Relation Back" which permits the addition of new parties outside the limitations period because the amendment relates back to the date of the original pleading.
Before proceeding to the substance of these arguments, the Court notes that while the Motion filed by Leander and Starman is for a Motion for Reconsideration the Court will also treat it as a Motion to Dismiss. We take this approach because it is the function of the Motion, not the caption which dictates which Rules apply. Turner v. Evers, 726 F.2d 112, 114 (3rd Cir.1984). The arguments raised in the Motion for Reconsideration in most respects parrot those raised by Capital in its Motion to Dismiss. This Court is not anxious to rule on any Motion purely on procedural grounds and will usually look to make determinations on the merits. For that reason and because of other reasons quoted above, this Court will also treat Leander and Starman's Motion as a Motion to Dismiss.
Both the Motion for Reconsideration and the Motion to Dismiss argue that under Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to Bankruptcy procedures by Rule 9024, the time period in which the Trustee should have filed his Complaint *737 ran. The applicable section of Rule 60(b) that the Defendants rely on reads, in pertinent part, as follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
Capital's Motion is also based upon Federal Rule of Civil Procedure 12(b)(6). The Motion argues that the Complaint failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) as made applicable to Bankruptcy proceedings by Bankruptcy Rule 7012.
We find much guidance when confronted with a 12(b)(6) Motion in 2A Moore's Federal Practice ¶ 12.07[2.-5] at page 12-63 et seq. wherein we find the following:
Failure To State a Claim Upon Which Relief Can Be Granted.
A motion to dismiss for failure to state a claim upon which relief can be granted performs substantially the same function as the old common-law demurrer. A dismissal under this provision is on the merits and is accorded res judicata effect. For this reason, dismissal under subdivision ( | {
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535 U.S. 1034
GILMOREv.GENERAL ELECTRIC CO. ET AL.
No. 01-1074.
Supreme Court of the United States.
April 29, 2002.
1
C. A. 6th Cir. Certiorari denied. Reported below: 20 Fed. Appx. 492.
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68 F.3d 1222
95 Cal. Daily Op. Serv. 8451, 95 Daily JournalD.A.R. 14,576UNITED STATES of America, Plaintiff-Appellee,v.Raniel Bonifacio AMPARO, Defendant-Appellant.
No. 94-10542.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 14, 1995.Decided Oct. 31, 1995.
Kristine K. Smith, Assistant Federal Public Defender, Reno, Nevada, for defendant-appellant.
Robert A. Bork, Assistant United States Attorney, Reno, Nevada, for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges.
FLETCHER, Circuit Judge:
1
Defendant Raniel Bonifacio Amparo appeals from his jury convictions on federal firearms charges. On appeal he argues that the district court erred by instructing the jury that as a matter of law possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(B). We affirm.
I. FACTS AND PRIOR PROCEEDINGS
2
An undercover ATF agent arrested Amparo after feigning purchase of a sawed-off shotgun from him. At the time of his arrest, Amparo was carrying a loaded pistol. The shotgun was disassembled but operable when assembled.
3
Amparo was indicted on two counts. Count I charged Amparo with possession of an unregistered firearm (the disassembled sawed-off shotgun) in violation of 26 U.S.C. Sec. 5861(d). Count II charged Amparo with carrying a firearm (the loaded pistol) in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1).
4
At trial, the district court gave the jury the following instructions with respect to Count II:
5
In order to prove the offense charged in Count Two of the Indictment, the government must prove the following essential elements beyond a reasonable doubt:
6
One: the defendant committed the crime of possession of a sawed-off shotgun as charged in Count One of the Indictment, and
7
Two: during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.
8
Over the defendant's objection, the district court determined as a matter of law that possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(B). The trial judge instructed the jury:
9
The term "crime of violence" means an offense that is a felony and has as one of its essential elements the use, attempted use, or threatened use of physical force against the person or property of another, or an offense that by its very nature involves a substantial risk that such physical force may be used in committing the offense.
10
The offense alleged in Count One of the Indictment, Possession of a Sawed-Off Shotgun, is a crime of violence.
11
The jury found Amparo guilty on both counts. Amparo was sentenced to thirty-seven months on Count I and a consecutive sentence of sixty months on Count II. This timely appeal followed.
II. JURISDICTION
12
The district court had jurisdiction under 18 U.S.C. Sec. 3231. This court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. Sec. 1291.
III. STANDARD OF REVIEW
13
"[W]hether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, 498 U.S. 864, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); see also United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). Whether a jury instruction violated due process is also reviewed de novo. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994).
IV. DISCUSSION
14
The defendant argues on appeal that the district court erred by instructing the jury as a matter of law that possession of an unregistered sawed-off shotgun is a "crime of violence" under 18 U.S.C. Sec. 924(c)(3)(B). The defendant asserts that whether this offense is a "crime of violence" is a question of fact for the jury to decide, and not a question of law for the judge. To the contrary this circuit has adopted a categorical approach to determining which offenses are included under section 924(c) as "crimes of violence" obviating the need for fact finding by the jury. The jury must find the facts underlying the charged offense--possession of an unregistered sawed-off shotgun in this case--but the court determines whether that category of offense is a crime of violence.
15
The U.S. Constitution regulates the division of labor between judge and jury. The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." The U.S. Supreme Court recently declared, "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, --- U.S. ----, ----, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995); see also Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). While the jury is the arbiter of the facts, the judge is the arbiter of the law: "the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." Gaudin, --- U.S. at ----, 115 S.Ct. at 2315 (citing Sparf & Hansen v. United States, 156 U.S. 51, 105-06, 15 S.Ct. 273, 294-95, 39 L.Ed. 343 (1895)). However, the jury has a constitutional responsibility "not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence." Id. --- U.S. ----, 115 S.Ct. at 2316.
16
Count II of the indictment charged Amparo under 18 U.S.C. Sec. 924(c)(1), which states:
17
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years....
18
For the purposes of this section, 18 U.S.C. Sec. 924(c)(3) defines "crime of violence" as follows:
19
"crime of violence" means an offense that is a felony and(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
20
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
21
The defendant concedes that whether an offense is a crime of violence under subsection (A) is a matter of law: the court may settle it by simply examining the elements of the predicate offense. However, the defendant argues that subsection (B), which focuses on the "nature" of the offense, requires the jury to examine the circumstances of the defendant's crime to determine whether violence played a part. The defendant claims that because the sawed-off shotgun was disassembled and unloaded at the time of sale, the jury could have concluded there was no potential for violence and found him not guilty under Count II. Unfortunately for the defendant, his argument defies this circuit's categorical approach.
22
For the purposes of sentencing enhancements, this circuit has held that possession of an unregistered sawed-off shotgun is categorically a "crime of violence." United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir.1991) (interpreting 18 U.S.C. Sec. 16(b)); United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993) (interpreting U.S.S.G. Sec. 4B1.2(1)), cert. denied, --- U.S. ----, 114 S.Ct. 1403, 128 L.Ed.2d 76 (1994). The defendant seeks to distinguish these cases on policy grounds: this court used | {
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658 F.3d 813 (2011)
Shirley L. PHELPS-ROPER; Megan Phelps-Roper, Plaintiffs-Appellees,
v.
CITY OF MANCHESTER, MISSOURI, Defendant-Appellant. *814
United States of America, Amicus on Behalf of Appellant,
Christina Wells; Thomas Jefferson Center for the Protection of Free Expression, Amici on Behalf of Appellees.
No. 10-3197.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2011.
Filed: October 5, 2011.
*815 Evan Reid, argued, Lewis & Rice, Patrick R. Gunn, Gunn & Gunn, Neal Frederick Perryman, on the brief, St. Louis, MO, for appellant.
Sarang Vijay Damle, argued, US DOJ Civil Division, Washington D.C., for the amicus brief of the United States in support of appellant.
Anthony E. Rothert, Grant R. Doty, American Civil Liberties Union, St. Louis, MO, for appellees.
Michael Gross, St. Louis, MO, on the amicus brief of Professor Christina Wells in support of appellee.
Bruce David Brown, Washington, D.C., John Joshua Wheeler, Charlottesville, VA, on the amicus brief of Thomas Jefferson Center for the Protection of Free Expression in support of appellee.
Before MURPHY and SMITH, Circuit Judges, and READE,[1] District Judge.
PER CURIAM.
Shirley and Megan Phelps-Roper brought this First Amendment challenge to a Manchester, Missouri ordinance that regulates protests near funerals. On cross motions for summary judgment, the district court[2] considered the ordinance as originally adopted and as twice amended. It ruled in favor of the Phelps-Ropers, awarding them nominal damages and enjoining enforcement of the ordinance. The City of Manchester appeals, arguing that the Phelps-Ropers lack standing to challenge the ordinance, that the Phelps-Ropers' challenges to earlier versions of the ordinance are moot, and that the ordinance is a constitutionally valid content neutral time, place, or manner regulation. The Phelps-Ropers respond that Manchester's ordinance is unconstitutional under our court's prior decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.2008).
The Phelps-Ropers are members of the Westboro Baptist Church (WBC), which believes that God is punishing America for tolerating homosexuality. WBC expresses its views by protesting at funerals, including those of American soldiers. Its members hold signs with messages such as "Thank God for Dead Soldiers" and "God Hates You" at protests staged near funerals. Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1213, 179 L.Ed.2d 172 (2011).
In 2007 Manchester adopted an ordinance in § 210.264 of its municipal code regulating protests at funerals in response to the WBC's activities. The ordinance was amended twice, and its final form prohibits "picketing or other protest activities... within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place." Manchester's ordinance now closely resembles a similar statute that the Sixth Circuit upheld over First Amendment challenges in Phelps-Roper v. Strickland, 539 F.3d 356, 373 (6th Cir.2008).
After the Phelps-Ropers challenged the constitutionality of the Manchester ordinance, the district court concluded that they had standing to bring their claims and that their challenges to earlier versions *816 of the ordinance were not moot. The court decided that the second and third versions of the ordinance were content based, but that even if they were content neutral, they would have still violated the First Amendment. The district court concluded that each version violated the First Amendment, permanently enjoined enforcement of the ordinance, and awarded nominal damages to the Phelps-Ropers. Manchester challenges all of these decisions in its appeal.
We agree that the Phelps-Ropers had standing to challenge the ordinance. Manchester's ordinance specifically targets the Phelps-Ropers' conduct, Minn. Citizens Concerned for Life v. Fed. Election Comm'n, 113 F.3d 129, 131 (8th Cir.1997), and Manchester did not disavow intentions to enforce it. See St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 486 (8th Cir.2006). The Phelps-Ropers thus have "some reason in fearing prosecution" under the ordinance. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Their challenges to the two earlier versions of the ordinance are moot, however, because Manchester amended the ordinance in response to related judicial decisions. See, e.g., Strickland, 539 F.3d at 373. It cannot therefore reasonably be concluded that Manchester might now reinstate provisions in conflict with those precedents. See Epp v. Kerrey, 964 F.2d 754, 755 (8th Cir.1992). Moreover, the Phelps-Ropers could challenge any unlikely reinstatement. Id.
The only justiciable question before the court at this time is whether Manchester's current ordinance violates the First Amendment. The district court concluded that the ordinance was a content based regulation. Whether an ordinance is content based is determined by examining the plain meaning of its text. Nixon, 545 F.3d at 691. Manchester's ordinance prohibits "picketing" and "other protest activities," which it defines as conduct "disruptive or undertaken to disrupt or disturb a funeral or burial service." The ordinance does not favor some topics or viewpoints over others and it "appl[ies] equally to all demonstrators, regardless of viewpoint." Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citation omitted). It is not a "regulation of speech" but rather "a regulation of the places where some speech may occur." Id. That a court may need to conduct a "cursory examination" of a speaker's words to determine if she engaged in picketing or other protests regulated by Manchester's ordinance does not transform this otherwise neutral ordinance into a content based regulation. Id. at 721-22, 120 S.Ct. 2480. The district court thus erred in concluding that the ordinance was a content based regulation. See id. at 719-22, 120 S.Ct. 2480.
The district court alternatively held that the ordinance could not survive because it was not "narrowly tailored to serve a significant governmental interest." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Relying on Nixon, 545 F.3d at 692, and Olmer v. City of Lincoln, 192 F.3d 1176, 1182 (8th Cir. 1999), the district court concluded that Manchester had no significant interest "in protecting funeral attendees from unwanted communication." It reasoned that Olmer had "unequivocally refused to recognize the government's significant interest in protecting unwilling listeners outside the residential context." Nixon had in fact concluded that "`the home is different,' and, in our view, unique" and therefore "other locations, even churches, [could not] claim the same level of constitutionally protected privacy." 545 F.3d at 692 (quoting Olmer, 192 F.3d at 1182.) We recognize that the Sixth *817 Circuit came to a different conclusion in Strickland, 539 F.3d at 362-66, in upholding an ordinance closely resembling the one at issue here, but we agree that the district court was required to follow our precedent in Nixon.
Accordingly, we affirm the judgment of the district court.
MURPHY, Circuit Judge, concurring in the judgment.
While I concur in the judgment, I write separately because this case might be analyzed differently but for our decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.2008). There, a panel of our court analyzed a quite different funeral protest statute and concluded that Phelps-Roper was "likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech." Id. at 692. Relying on Olmer v. City of Lincoln, 192 F.3d 1176, 1182 (8th Cir. 1999), the panel reasoned that "the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context." 545 F.3d at 692.
The Manchester funeral protest statute in this case is significantly different from that in Nixon and in fact quite like that in Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir.2008). In Strickland, the Sixth Circuit determined that the government had "an important interest in the protection of funeral attendees, because a deceased's survivors have a privacy right `in the character and memory of the deceased.'" Id. at 366. It reasoned that individuals "mourning the loss of a loved one share | {
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99 F.3d 296
96 Cal. Daily Op. Serv. 7831, 96 Daily JournalD.A.R. 12,975DIAMOND HOTEL CO., LTD., Plaintiff-Appellee,v.Elizabeth Blanco MATSUNAGA, Defendant-Appellant.
No. 95-15312.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 6, 1996.Decided Oct. 25, 1996.
Frank Lee Nelson, Law Office of John T. Lizama, Saipan, CM, for plaintiff-appellee.
Douglas F. Cushnie, Robert W. Jones, Law Offices of Douglas F. Cushnie, Saipan, CM, for defendant-appellant.
Appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands, Dela Cruz, Atalig, and King, Judges, Presiding. CNMI S.Ct. No. SC-93-00023.
Before: FLETCHER, D.W. NELSON and CANBY, Circuit Judges.
CANBY, Circuit Judge:
1
Elizabeth Blanco Matsunaga appeals the decision of the Supreme Court of the Commonwealth of the Northern Mariana Islands ("CNMI" or "Commonwealth"). She argues that a provision of a lease agreement that violates Article XII, § 1, of the Commonwealth Constitution renders the entire lease void ab initio. We dismiss for lack of jurisdiction.
I.
2
Matsunaga's brother, Manases B. Matsunaga, owned real property in Saipan. He leased the property to Diamond Hotel for a term of 55 years. Paragraph 21 of the lease provided that Diamond Hotel would have the option to extend the lease for an additional 35 years if the law of the Commonwealth should be changed so as to permit a person not of Northern Mariana Islands descent to hold a leasehold term for longer than 55 years. Paragraph 34 of the lease provides that if any provision of the agreement is held invalid, that provision should be severed from the agreement. After Manases Matsunaga died, Elizabeth Matsunaga succeeded him to all rights in and title to the leased premises.
3
Diamond Hotel filed a complaint against Elizabeth Matsunaga for declaratory judgment that the option to extend the lease term does not violate Article XII of the Commonwealth Constitution. Under Article XII, § 1, "The acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Mariana descent." Under Article XII, § 3, "The term permanent and long-term interests in real property used in Section 1 includes freehold interests and leasehold interests of more than fifty-five years including renewal rights.... Any land transaction in violation of this provision shall be void." Article XII, § 6, provides that "[a]ny transaction made in violation of Section 1 shall be void ab initio."
4
The Superior Court ruled that paragraph 21 of the lease agreement constitutes a renewal right to extend the lease term beyond the allowed 55 years. It held that because Diamond Hotel is not a person of Northern Mariana Islands descent, the lease agreement violates Article XII. The Commonwealth Supreme Court reversed and remanded, holding that although paragraph 21 is a renewal right which violates Article XII, paragraph 21 is severable from the rest of the lease agreement. Matsunaga appeals.
II.
5
Matsunaga claims that this court has jurisdiction over this appeal under 48 U.S.C. § 1824(a) (1994) (formerly 48 U.S.C. § 1694(c)) and section 403 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America ("Covenant"), P.L. 94-241, 90 Stat. 263, reprinted as amended, 48 U.S.C. 1801 note (1994) (formerly 48 U.S.C. § 1681). Under these provisions, this court has jurisdiction over appeals from the Supreme Court of the Northern Mariana Islands in "all cases involving the Constitution, treaties, or laws of the United States." 48 U.S.C. § 1824(a) (1996); Covenant, section 403.
6
Matsunaga argues that we have jurisdiction because the Commonwealth Supreme Court's decision violates section 805(a) of the Covenant, a treaty of the United States. This section authorizes restrictions on alienation of land to persons not of Northern Mariana Islands descent.1 Although the Covenant provides for restrictions on alienation, the Commonwealth Supreme Court based its decision on its interpretation of the portion of the Commonwealth Constitution that implements section 805(a) of the Covenant. Thus, the primary issue in this case involves an interpretation of Article XII of the Commonwealth Constitution. Camacho v. Civil Service Comm'n, 666 F.2d 1257, 1262 (9th Cir.1982). The Covenant is only peripherally involved. Id.; see also Sablan v. Manglona, 938 F.2d 970 (9th Cir.1991) (holding that we lack jurisdiction over an appeal involving Article XII of the CNMI Constitution, even though Article XII was authorized by section 805 of the Covenant).
III.
7
Matsunaga also argues that this court has jurisdiction because the CNMI Supreme Court's opinion is untenable. Ferreira v. Borja, 1 F.3d 960, 962 (9th Cir.1993). This court has jurisdiction only over those untenable decisions of local law that violate or frustrate an appellant's federal rights. Castro v. Hotel Nikko, 96 F.3d 1259 (1996). Federal rights are not implicated here. As we previously pointed out, the Covenant is only peripherally involved. Nor are federal constitutional rights involved. Matsunaga's argument that Article 12 of the Commonwealth Constitution violates the Fourteenth Amendment of the United States Constitution has been resolved and is not an issue here. See Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir.1990), cert. denied, 506 U.S. 1027, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992), (holding that Article XII of the Commonwealth Constitution does not violate the equal protection clause of the United States Constitution).
IV.
8
We DISMISS the appeal for lack of a genuine federal issue.
9
APPEAL DISMISSED.
1
The text of Section 805(a) of the Covenant reads:
Except as otherwise provided in this Article, and notwithstanding the other provisions of this Covenant, or those provisions of the Constitution, treaties or laws of the United States applicable to the Northern Mariana Islands, the Government of the Northern Mariana Islands, in view of the importance of the ownership of land for the culture and traditions of the people of the Northern Mariana Islands, and in order to protect them against exploitation and to promote their economic advancement and self-sufficiency:
(a) will until twenty-five years after the termination of the Trusteeship Agreement, and may thereafter, regulate the alienation of permanent and long-term interests in real property so as to restrict the acquisition of such interests to persons of Northern Mariana Islands descent....
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53 B.R. 789 (1985)
In re BON TON RESTAURANT AND PASTRY SHOP, INC., Debtor.
No. 85B1755.
United States Bankruptcy Court, N.D. Illinois, E.D.
October 10, 1985.
*790 Robert R. Benjamin & Associates, Ltd., Chicago, for debtor.
Cory Lipoff, Nachman, Munitz & Sweig, Ltd., Joel Greenblatt, Foss, Schuman, Drake & Barnard, Chicago, for movant/landlord.
MEMORANDUM AND ORDER
ROBERT L. EISEN, Chief Judge.
This matter was heard upon the motion of the debtor in possession, Bon Ton Restaurant and Pastry Shop, Inc. ("Bon Ton" or "debtor"), for authority to assume its unexpired lease of nonresidential real property under section 365(a) of the Bankruptcy Code. In opposition, the successor-lessor, Bernard A. Heerey ("Heerey" or "lessor") contends that a number of defaults exist under the lease which must be cured as a condition to assumption pursuant to section 365(b)(1) of the Code. For the reasons set forth below, the court, having carefully considered the pleadings, memoranda, exhibits, and oral argument, determines that Bon Ton has satisfied the requirements of section 365(b)(1) and may therefore assume the unexpired lease.
BACKGROUND
On February 8, 1985, Bon Ton filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code, and has continued to operate its business and manage its property as a debtor in possession. The lease in question was executed on April 6, 1981 for rental of the premises at 1151-53 North State Street, Chicago, Illinois, including storage space in the basement. The entire building in which Bon Ton operates its restaurant and pastry shop consists of four commercial units and twenty-four rental units. Heerey acquired title to the building in May, 1983, and is the successor-lessor of the premises, the lease term for which expires April 30, 1988.
On March 11, 1985, Heerey presented his motion to compel the debtor to correct certain unsafe and hazardous conditions as outlined in a report submitted by the lessor's former insurance carrier pursuant to inspections conducted in June and December of 1983 and April of 1984. The seven conditions enumerated in Heerey's motion consist of: (1) accumulation of grease in *791 the breaker box panel; (2) the absence of filters in the hood over the cooking area; (3) the inadequacy of the existing fire extinguishing system in the hood area;[1] (4) the absence of fire extinguishers in the kitchen area; (5) the fact that electric lights in the kitchen area were not encased; (6) the fact that the kitchen floor was in disrepair; and (7) the fact that the air conditioner was not in safe operating condition. Heerey claims that numerous demands were made upon the debtor to remedy these conditions, culminating in Heerey's declaration on January 21, 1985 that the lease was in default by reason thereof and his demand for possession of the premises. According to Heerey, Bon Ton represented on January 24, 1985, that it would correct these conditions and cure other defaults under the lease. Shortly thereafter, Bon Ton filed its Chapter 11 petition.
In response, Bon Ton affirmatively stated that its agent had inspected the premises from time to time and found the breaker-box panel free of grease accumulations, that an Ansul-type extinguishing system as well as fire extinguishers were in place on the premises, that the electric lights in the kitchen area were encased, that the kitchen floor was in repair, and that the air conditioner was in safe operating condition. The debtor denied that it was in default of any of the lease's terms, affirmatively stating that it was also in full compliance with all municipal code requirements.
On March 29, 1985, and within 60 days of the commencement of this case, Bon Ton filed its motion to assume the unexpired lease, stating that monthly rental payments were current and that all additional obligations, where required, were satisfied or otherwise set-off. A hearing thereon was held April 4, 1985. On that date, Heerey requested time to respond to Bon Ton's motion and was given until May 15, 1985. At the April 4th hearing, Bon Ton requested that its motion to assume be heard within the next sixty days, or before June 8, 1985, whereupon the court directed the parties to comply with a pretrial order by June 5th, set a status hearing for June 6th, and set the hearing on assumption for June 7, 1985.[2]
In his response, Heerey incorporated his prior motion to compel correction of safety hazards and claimed six existing defaults as of the time of Bon Ton's application to assume the lease: (1) failure to pay increased insurance costs resulting from the cancellation on January 1, 1985 of lessor's fire, extended coverage and public liability insurance policy due to the aforementioned alleged hazardous conditions; (2) failure to reimburse the lessor for the costs of rodding the common sewer line necessitated by overflowing of grease from debtor's grease trap; (3) failure to pay water rents in the sum of $100.00 per month since April, 1983; (4) failure to pay the remaining $1,000 installment of debtor's security deposit; (5) failure to obtain and maintain the necessary plate glass insurance and property damage and public liability insurance; and (6) failure to keep the demised premises in a safe condition and in good repair. In conjunction with the latter default, Heerey recited the existence of numerous additional unsafe and hazardous conditions described in detail in a report dated March 22, 1985 and prepared by a senior fire scientist engaged by the lessor.[3]
*792 Pursuant to section 365(b)(1)(A) of the Code, Heerey contends that Bon Ton must cure all defaults,[4] both monetary and non-monetary, under the lease prior to court approval of assumption. In addition, Heerey states that Bon Ton must provide adequate assurance of future performance under the lease pursuant to section 365(b)(1)(C). Heerey particularly wants adequate assurance that Bon Ton will keep the premises in a clean, healthy and safe condition in the future but, paradoxically, objects to Bon Ton's assumption on the grounds that the debtor has not and cannot comply with section 365(b)(1).
At the hearing and in its memoranda, Bon Ton maintained that the only default was the failure to pay one month's rent and believed it could cure or provide adequate assurance of cure of monies in default. The other defaults are vigorously contested by Bon Ton, its position being that the current condition of the premises falls within the permissible guidelines set forth in the lease. However, if a default is found to exist, Bon Ton stands ready, willing, and able to provide adequate assurance of cure or compensation under section 365(b)(1) upon assumption.
At the conclusion of the June 7th hearing, the court determined that certain threshold legal questions surrounding the assumption of the lease should be decided on briefs, thereby avoiding the necessity for an evidentiary hearing since the only remaining issues appeared to involve the net amount due the lessor at the time of assumption and the debtor's ability to perform. The court pointed out at the hearing on June 7th that the existence of breaches which are not cause for termination of the lease are not pertinent to whether or not the debtor has a right to assume or reject the lease. Thereupon, the court took the following issues under advisement with respect to assumption of the lease: (a) whether the costs of rodding the common sewer line are the responsibility of the lessor or Bon Ton under the terms of the lease; (b) whether the lessor's increased insurance premiums pass through to the debtor under the terms of the lease; (c) whether the lessor's attorneys' fees and costs constitute a pecuniary loss to be borne by the debtor in assuming the lease; and (d) whether the debtor must cure non-monetary defaults as a condition precedent to assumption of the lease.
DISCUSSION
Section 365(a) of the Bankruptcy Code[5] in conjunction with section 365(b)(1) provides a debtor in possession with the absolute right to assume an unexpired lease and to cure any defaults, subject to the court's approval. In re Lionel Corp., 29 B.R. 694, 696 (Bankr.S.D.N.Y.1983). The aim of the statutory authority to assume a lease is to assist in the debtor's reorganization effort. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 348 (1977); reprinted *793 in U.S.Code Cong. & Admin.News 5787, 5963, 6304 (1978); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 59 (1978) reprinted in U.S.Code Cong. & Admin.News 5787, 5845 (1978). If the lease is not in default, the debtor is entitled as a matter of course to the necessary court approval, In re Sapolin Paints, Inc., 20 B.R. 497, 508 (Bankr. E.D.N.Y.1982), to assume an unexpired lease which appears to be in the best interests of the estate, In re Lionel Corp., 29 B.R. at 696, and under which the debtor is able to perform. In re Coast Trading Co., Inc., 26 B.R. 737, 741 (Bankr.D.O | {
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328 F.2d 132
UNITED STATES of Americav.Anne Russelle HORTON, also known as Toni Manning; RonaldCharles Edgar.Ronald Charles Edgar, Appellant.
No. 14447.
United States Court of Appeals Third Circuit.
Argued Dec. 10, 1963.Decided Feb. 20, 1964.
Jacob J. Kilimnik, Philadelphia, Pa., for appellant.
Thomas F. Gilson, Asst. U.S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U.S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
1
The appellant Edgar has been convicted and has received separate sentences upon two counts of an indictment. The first count charged him and Anne Horton with conspiring to violate the requirement of section 2424 of Title 18, U.S. Code, that a person who harbors an alien woman for the purpose of prostitution shall file with the Commissioner of Immigration a statement showing the circumstances of the alien's entry into the country and the place where she is kept. The other count charged the substantive offense of unlawfully transporting a girl less than 18 years old from New Jersey to Pennsylvania for the purpose of prostitution in violation of section 2423 of Title 18.
2
The case was tried to a jury. Edgar moved for acquittal on the conspiracy count at the conclusion of the evidence for the prosecution and again when he rested his own case without submitting any additional evidence. The denial of these motions is challenged on this appeal.
3
In determining the sufficiency of the evidence to go to the jury it must be kept in mind that the only conspiracy charged was a scheme to avoid or withhold the registration of an alien prostitute as required by section 2424. That section does not prohibit indulgence or commercial involvement in prostitution. It merely imposes a requirement of registration upon one who harbors an alien prostitute. Thus, the government had to associate the appellant with a scheme to avoid or withhold such registration.
4
There is no evidence that Edgar harbored the prostitute, Carmen Duckett. Indeed, the government conceded at the argument of this appeal that the evidence did not establish a situation in which Edgar was obligated to register the prostitute. Anne Horton alone was shown to be the harborer, required as such to file a statement with the Commissioner of Immigration. Therefore, it was necessary in some way to associate Edgar with an undertaking to accomplish or facilitate Horton's avoidance of the obligation which section 2424 imposed upon her. But the only thing proved was Edgar's involvement in the commercial debauchment of the alien girl. It was not shown that Edgar did anything to encourage Horton to withhold registration or to conceal that omission. It does not appear that he was even aware that Horton had not filed a statement or that she was obligated to do so. The significance of this failure of proof may be made clearer by an illustration given by Judge Learned Hand many years ago:
5
'While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past.' United States v. Crimmins, 2d Cir. 1941, 123 F.2d 271, 273.
6
Since there was no evidence of Edgar's association with a purpose to further or accomplish the definitive objective of the alleged conspiracy, his motion for acquittal on that count should have been granted, and such acquittal must now be ordered. Cf. United States v. Rappaport, 3d Cir. 1961, 292 F.2d 261.
7
In support of the substantive count, charging interstate transportation of a juvenile prostitute, there was ample evidence that Edgar induced Carmen Duckett to travel from New Jersey to Philadelphia for purposes of prostitution. However, on this appeal it is urged that the trial court committed reversible error in various trial rulings. The only contention which requires discussion is that all of Carmen Duckett's testimony and the testimony of certain police officers should have been excluded because this testimony was the product of an unreasonable search of Anne Horton's apartment.
8
The 'search' which appellant attacks was made by two local police officers in plain clothes. The evidence shows that police officers, acting upon a tip from an undisclosed source concerning the use of the Horton apartment for prostitution, had maintained a watch outside of the building for several hours daily over a period of five days. The apartment in question was on the second floor of a building containing at least three other apartments. About noon on the day in question the two officers observed Jerome Weiss emerging from the building. Why they believed that he was coming from the Horton apartment does not appear. In any event, they questioned him and he told them that he had gone to the apartment merely to pick up a suit. They then proposed that he go back to the apartment with them to verify his story. There is no evidence that he expressed any objection to this. When the three men arrived at the apartment door, Weiss knocked, identified himself to Anne Horton through the door and requested admission. When she opened the door the three men stepped inside and the officers immediately identified themselves as policemen.
9
Apparently the door opened directly into a room where the other occupants of the apartment were assembled. Carmen Duckett was there, dressed only in transparent panties and a transparent brassiere. A second woman was dressed only in a transparent negligee. Edgar also was present. The officers' testimony to which objection was made was a description of the scene thus observed as they entered the apartment. In addition, this discovery of Carmen Duckett led to her subsequent admissions that she was a prostitute and that Edgar had induced her to engage in prostitution and to travel from New Jersey to Philadelphia for that purpose. Therefore, objection was made to all of her testimony.
10
The appellant contends that the police officers' observation of two undressed women, one of them the alien involved in this case, in the Horton apartment occurred during and as a result of an unreasonable search. Search necessarily involves a seeking out. An unreasonable search of a residence occurs when an unwarranted intrusion upon privacy is employed in seeking out something therein. Unwarranted intrusion may occur in the obtaining of entry, or in conduct after entry, or in both.
11
In this case, the not very detailed testimony concerning the events in question indicated that Weiss and the accompanying policy officers were admitted from a public hallway through a door opening into the room where the occupants, including two all but naked women, were present. One the door was opened and the officers stepped inside, the scene which they later described, over objection that they were making an illegal search, was immediately before them. In these circumstances, the illegality in the conduct of the officers must be found solely in the manner of gaining admittance. For if their presence was lawful, the observation of what was then and there immediately apparent could not in itself be a wrong. Ellison v. United States, 1953, 93 U.S.App.D.C. 1, 206 F.2d 476; Paper v. United States, 4th Cir. 1931, 53 F.2d 184; Gizzo v. State, 1954, 160 Tex.Cr.R. 593, 272 S.W.2d 898; State v. Magnano, 1922, 97 Conn. 543, 117 A. 550.
12
The evidence shows without contradiction that the police officers came to the Horton apartment to make inquiry. There is no evidence that their purpose was to search the premises and they did not do so. Although they suspected that this was a brothel, their visit at the time in question was occasioned by Weiss' dubious account of what he had been doing there, and their immediate purpose was to verify or discredit his story. For this reason the many cases which turn upon some question as to the propriety of searching a house without a warrant are not helpful here. The visit of the officers was attended by no purpose which required a warrant.
13
But even though a search was not intended, the method of obtaining entry is challenged as improper. True, only Weiss identified himself in asking Horton to open the door. He did not volunteer the additional information that police officers accompanied him. But the police were with him on a mission directly concerning Weiss and his recent visit to the apartment, and they identified themselves as soon as the door was opened. In these circumstances, we think the policemen standing inside the door and observing the persons within plain view inside were not trespassers. Cf. Ellison v. United States,supra. The legitimacy of the police mission to verify Weiss' account of the visit he had just made to the apartment justified the use of Weiss, the individual primarily interested and involved, to induce Horton to open the door. In all the circumstances, the conduct of the police did not fall within that area of official overreaching or 'dirty business' which is the concern of courts when they exclude evidence obtained by unwarranted intrusion upon the privacy of a residence. Cf. On Lee v. United States, 1952, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (sanctioning a much more objectionable strat | {
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388 So.2d 296 (1980)
Charles D. DEARING, Appellant,
v.
The STATE of Florida, Appellee.
No. 78-2222.
District Court of Appeal of Florida, Third District.
September 16, 1980.
Rehearing Denied October 13, 1980.
*297 Bennett H. Brummer, Public Defender, Stanley M. Newmark, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and SCHWARTZ, JJ.
SCHWARTZ, Judge.
The defendant below appeals from a conviction and sentence entered upon the revocation of a previously imposed term of probation. We affirm.
On July 13, 1976, after a jury had found him guilty of possession of an explosive without a permit, the trial judge placed Dearing on five years probation with a special condition that he serve six months in the county jail. He posted a supersedeas bond and was released pending his appeal, which resulted in an affirmance of his conviction on August 9, 1977. Dearing v. State, 348 So.2d 1233 (Fla. 3d DCA 1977). Subsequently, however, Dearing pled guilty to a marijuana conspiracy charge in the federal District Court for the Western District of Texas and began serving a sentence for that offense. The federal charge formed the only basis for the revocation of his probation in the lower court.
On this appeal, Dearing first contends that the evidence was insufficient to demonstrate that he had in fact violated a term of his probation. It is, of course, conceded that probation may be revoked *298 solely on the basis of a conviction for criminal conduct which occurred during the probationary term. E.g., Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977). Dearing contends, however, that there was no such showing below. We disagree. The Texas federal indictment alleged a conspiracy continuing between 1975 and November 14, 1977. One of the overt acts in furtherance of the conspiracy of which Dearing was specifically accused was "[t]hat on or about June 2, 1977 [subsequent to his being placed on probation], ... Dearing attempted to fly a quantity of marijuana from the Republic of Mexico into the United States."[1] By pleading guilty to this charge, the defendant admitted and it was therefore conclusively established that he had committed a criminal act after his term of probation had begun. Robinson v. State, 373 So.2d 898 (Fla. 1979); Williams v. United States, 443 F.2d 1151 (5th Cir.1971). This case is therefore entirely distinguishable from Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977), upon which Dearing heavily relies. Compare also, O'Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). In Demchak, the defendant had been found guilty only of a conspiracy which, like the one involved here, allegedly spanned a period both before and after he had been placed on probation. In decisive contrast to our situation, however, there was no further specific evidence that the defendant had engaged in any unlawful conduct after the term had commenced.
Dearing also claims that the trial judge improperly required him, over his self-incrimination objection, to testify at the revocation hearing that he was indeed the person who had pled guilty to the federal charges. On this point, he relies upon the statement in State v. Heath, 343 So.2d 13, 16 (Fla. 1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977), that, while a probationer must respond to questions dealing with his proper supervision, "the Fifth Amendment privilege against self-incrimination must be applicable to specific conduct and circumstances concerning a separate criminal offense." Again, we reject this contention. The situation to which the supreme court obviously referred in Heath was the one in which, as in Heath and Douglas v. State, 376 So.2d 11 (Fla. 2d DCA 1979), the defendant is charged with violating his probation because of a criminal offense for which he is being or could be independently prosecuted. In such an instance, as the court properly held in Douglas, the probationer is entitled to the privilege which precludes his providing evidence as to that charge against himself. It is well-settled, however, that the privilege no longer exists as to alleged crimes for which the witness could not be subsequently prosecuted, as when he had, as in this case, previously pled guilty and been sentenced for the offense in question. Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960); In re Liddy, 506 F.2d 1293, 1300 (D.C. Cir.1974); United States v. Skolek, 474 F.2d 582 (10th Cir.1973). Moreover, the mere fact that one's truthful answers to a particular question would result in a revocation of his probation does not alone implicate the fifth amendment privilege. Heath v. State, supra; Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Putting the two principles together, it follows that Dearing was correctly required to admit that he had pled guilty to, and thus that he had committed an offense which occurred during his probation. Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969) squarely so holds. In that case, the defendant had pled nolo to a charge of taking indecent liberties with a child, which took place while he was on probation. In the appeal from an order of revocation,
Holdren contends finally that he was denied the privilege against self-incrimination when, over the objection of counsel, *299 the court asked him if he had been drinking and if he had two boys with him. To both questions, Holdren replied `yes.' The privilege against self-incrimination would have been applicable had Holdren been charged with a new crime. Here the issue of guilt upon which the sentence issued had already been determined by his earlier plea. Holdren's testimony, moreover merely corroborates what the probation officer had already told the court. No authority has been cited for the rule which Holdren would have us adopt. We find no error. 452 P.2d at 30.
See also, Douglas v. State, supra, at 376 So.2d 13 ("The questions appellant refused to answer involved a separate criminal offense with which appellant, not having been convicted thereof and not having been granted immunity, could have been charged. He retained his right to refuse to answer such questions, and his probation could not be revoked for exercising this right." [e.s.]); Tempo Trucking and Transfer Corp. v. Dickson, 405 F. Supp. 506, 520 (E.D.N.Y. 1975) (no privilege in license revocation proceeding to decline to answer questions concerning prior offense to which defendant had pled guilty, although testimony could result in loss of license); cf. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir.1977) (no such privilege as to compelled testimony in response to IRS summons).
This court has recently rejected Dearing's final contention that the trial court may not revoke a term of probation for a violation which occurred while the order was validly superseded. Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).
Affirmed.
NOTES
[1] There is no doubt that this conduct constituted a violation of the federal narcotics laws, 21 U.S.C. §§ 952(a), 963, even if it occurred entirely outside the boundaries of the United States. United States v. Brown, 549 F.2d 954 (4th Cir.1977), cert. denied, 430 U.S. 949, 97 S.Ct. 1590, 51 L.Ed.2d 798 (1977); United States v. Vicars, 467 F.2d 452 (5th Cir.1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702 (1973).
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Filed 8/27/13 P. v. Atkins CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C070154
Plaintiff and Respondent, (Super. Ct. No. 10F03637)
v.
GREGORY JAMAR ATKINS,
Defendant and Appellant.
Defendant Gregory Jamar Atkins molested the daughter and son of friends with
whom he lived on and off. An information charged defendant with four counts of oral
copulation on a child 10 years of age or younger, attempted sexual intercourse with a
child 10 years of age or younger, and three counts of forcible lewd and lascivious acts on
a child under the age of 14. (Pen. Code, §§ 288.7, subd. (b), 664/288.7, subd. (a), 288,
subd. (b)(1).)1 A jury found defendant guilty on all counts. Sentenced to 45 years to life
plus a consecutive term of 19 years in state prison, defendant appeals, requesting this
1 All further statutory references are to the Penal Code unless otherwise indicated.
1
court review the school records of one of his victims to determine the scope of discovery,
contending the prosecution committed misconduct, and alleging sentencing error. We
shall remand for a reconsideration of consecutive sentences on counts six and seven. In
all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Victims
A.D., who was 13 years old at trial, and M.D., age 10 at trial, are the daughter and
son, respectively, of L.P. and J.K. The couple also have two other children, ages six and
one at trial. Defendant has two children with A.D.’s aunt (the children’s aunt).
Defendant lived with A.D. and her family in the past. He had been in A.D.’s life
as long as she could remember, and she thought of defendant as her uncle.
Molestations of A.D.
A.D. testified that defendant touched her in her “private part” with his hand and
mouth. Defendant touched her under her clothing. Defendant touched A.D.’s private
with his “private.” He tried to put his private into A.D.’s private but was unsuccessful.
When he tried to put his private in her private it hurt. On more than one occasion, A.D.
saw “something come out of [defendant’s] private.”
The molestations began when A.D. was five and living in the New Helvetia
apartment complex with her family and defendant. The touching happened “[a] lot” and
also took place at the home of the children’s aunt.
As a prelude to the molestations, defendant would send A.D.’s brothers outside
and call A.D. into a room. On one occasion, the touching took place at the children’s
aunt’s home; defendant sent A.D.’s brothers and cousins outside and then called A.D.
into her aunt’s room. After A.D. went into the room, defendant started touching her.
Defendant removed A.D.’s clothes and touched her private parts with his mouth, holding
her down on her aunt’s bed.
2
Defendant also touched A.D. this way when she lived in a house on Twin Road.
Although A.D. initially could not recall being touched at a 6th Parkway apartment where
she had lived, she recalled an incident after being shown a photograph of the apartment.
Defendant touched her with his private while in her room. On another occasion
defendant put his penis in A.D.’s mouth.
A.D. recalled an incident at the 6th Parkway apartment in which defendant woke
her up. After A.D. went to the bathroom, she returned to her room to find defendant
standing there. She got into bed, pulling up the covers. Defendant pulled off the covers
and began touching her. He removed A.D.’s clothes and put his mouth on her private
part before trying to put his private in her private.
While living at the New Helvetia apartment, defendant touched A.D. while they
were in his room. Defendant also showed A.D. videos of naked people doing “[n]asty
stuff.”
When defendant touched A.D. he held down her arms to prevent her from moving.
After he touched her, defendant gave her money so she would not tell anyone what
happened. Defendant told A.D. that if she told anyone about the incidents he would kill
her.
Molestations of M.D.
A.D. saw defendant commit sexual acts with her brother M.D. Once, when A.D.
walked into her great-aunt’s house, she saw M.D. kneeling down with his mouth on
defendant’s private.
M.D. testified that defendant put his privates in M.D.’s mouth. This happened
more than once, and M.D. did not say anything because he was scared. Defendant would
push M.D.’s head down so M.D. could not get away. M.D. also testified about
witnessing defendant with a cover over his privates; A.D. was under the covers with her
head “moving up and down.”
3
Discovery
A.D. developed a rash on her privates and told her mother. A.D.’s mother asked
her if someone was touching her. A.D. told her mother about defendant, and her mother
grabbed a knife and went to confront defendant at A.D.’s great-aunt’s house. A day later
A.D. spoke with the police.
Interviews with Child Abuse Unit
The case was later assigned to Detective Carol Mims. After Detective Mims
reviewed the police report, she scheduled a special assault forensic evaluation (SAFE)
interview for A.D. and M.D. The two children were interviewed on May 24, 2010. A
video of the interview was played for the jury.
During the SAFE interview, A.D. stated she told her mother about the touching
after she developed a rash. Defendant had been touching A.D. since she was five years
old. He put his tongue on A.D.’s private parts and told her if she told anyone he would
kill her. He also gave A.D. money.
A.D. also described incidents at the 6th Parkway apartment, including the incident
in which defendant woke her up and molested her after she returned from the bathroom.
Defendant put his tongue on her private and held her down to prevent her moving.
Something white came out of defendant’s private.
In addition, A.D. described an incident at the home of the children’s aunt, when
defendant put his tongue in A.D.’s private and then put his private into her private.
Defendant had sent her brothers and cousins outside to play before molesting her. He
then pulled down A.D.’s pants and put his tongue in her private. He held her down and
tried to put his private on A.D.’s private. Defendant then put his tongue back on A.D.’s
private. He gave A.D. money and told her he would kill her if she told anyone what
happened.
During the interview, A.D. also discussed an incident when she was five and
living in the New Helvetia apartment. Defendant, who lived with her family, called A.D.
4
into his room and put his tongue on her private. He told her he would kill her if she told
anyone.
A.D. estimated defendant molested her 19 times while she lived at New Helvetia.
Defendant molested her two more times at the children’s aunt’s home, two more times at
her old home, and one time at her new home.
A.D. described defendant’s molesting M.D. by putting his privates in her brother’s
mouth. She also stated defendant showed her videos of naked people.
During M.D.’s SAFE interview, a video of which was also shown to the jury, he
stated defendant molested him more than once. M.D. described defendant’s waking him
up and making him “suck his privates.” Defendant would pull his pants down and stand
by M.D.’s bed. He would tell M.D. he would give him money when he was done and
then he would push M.D.’s head down onto his private part. M.D. also saw defendant do
the same thing to his | {
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Cite as 2014 Ark. App. 637
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-279
MICHAEL WEBB, JR. Opinion Delivered November 12, 2014
APPELLANT
APPEAL FROM THE DREW
V. COUNTY CIRCUIT COURT
[NO. CR-2010-162-3A]
STATE OF ARKANSAS HONORABLE ROBERT BYNUM
APPELLEE GIBSON, JR., JUDGE
SUPPLEMENTAL ADDENDUM
ORDERED
RITA W. GRUBER, Judge
Michael Webb, Jr., appeals the circuit court’s revocation of his probation. He raises
two points, contending (1) that the court’s finding that he violated terms of his probation by
constructively possessing a firearm and drugs was clearly against the preponderance of the
evidence, and (2) that his due-process rights were violated because the court considered
matters that were not contained in the State’s petition to revoke. The State responds that the
court did not err by finding that Webb violated terms of his probation;1 it does not respond
to the second point.
We remand for supplementation of the addendum to Webb’s brief because it lacks
important pages of the 2013 sentencing order. Without these pages, we are unable to confirm
that this is indeed a revocation case or to ascertain the underlying offenses. See Ark. Sup. Ct.
1
The State’s argument simply asserts that we should affirm the circuit court’s finding
that appellant constructively possessed the drugs and the firearm.
Cite as 2014 Ark. App. 637
R. 4-2(a)(8)(A)(i) (2014) (requiring that the addendum to appellant’s brief include the order
from which the appeal is taken). We order Webb to file, within seven calendar days of this
opinion, a supplemental addendum providing the relevant pages from the record. Ark. Sup.
Ct. R. 4-2(b)(4) (2014). We also encourage review of our rules to ensure that no other
deficiencies are present.
WALMSLEY and HARRISON, JJ., agree.
Timothy R. Leonard, for appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
2
| {
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142 P.3d 125 (2006)
207 Or. App. 435
GORDON v. BOARD OF PAROLE AND POST-PRISON SUPERVISION.
OREGON COURT OF APPEALS.
August 23, 2006.
Case affirmed without opinion.
| {
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7 So.3d 1112 (2009)
SALMON
v.
STATE.
No. 3D08-1095.
District Court of Appeal of Florida, Third District.
April 22, 2009.
Decision without published opinion. Affirmed.
| {
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0474
In re the Guardianship and/or
Conservatorship of Heidi Anne Vizuete
and
In re the Marriage of Miriam Rose Vizuete,
Respondent,
vs.
Edison Marcello Vizuete,
Appellant.
Filed February 2, 2015
Affirmed
Reyes, Judge
Washington County District Court
File Nos. 82PR113715; 82F798003928
Edison Vizuete, St. Paul, Minnesota (pro se appellant)
Timothy T. Ryan, Chisago City, Minnesota (for respondent Heidi Vizuete)
Eric Bjerva, Guzman Law Firm, Apple Valley, Minnesota (for respondent Miriam
Vizuete)
Considered and decided by Worke, Presiding Judge; Reyes, Judge; and
Crippen, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REYES, Judge
In this appeal following remand, pro se appellant challenges the district court’s
order appointing respondent as the unlimited guardian of the parties’ 20-year-old child
and appellant as the limited co-guardian. Appellant argues that the district court erred by
(1) misapplying the guardianship statute and appointing a guardian that “reduced”
appellant’s parental rights; (2) appointing a guardian without holding an additional
evidentiary hearing on remand; (3) granting a motion to transfer venue of related family
court proceedings; (4) declining to address appellant’s motion for parenting-time
assistance; (5) failing to remove itself for bias; (6) ignoring appellant’s request for the
appointment of a guardian ad litem; (7) granting respondent publicly financed legal
counsel; and (8) failing to address appellant’s request for attorney fees. We affirm.
FACTS
I. Background
This appeal arises from competing guardianship petitions filed by divorced
parents. In 2011, respondent Miriam Vizuete, the mother of the proposed ward, Heidi
Vizuete (Heidi), filed a petition for her appointment as Heidi’s guardian. The petition
claimed that “[Heidi] has been diagnosed with mild to moderate cognitive disability” and
requires a guardian to manage her day-to-day affairs. Heidi is autistic with an IQ in the
range of 61-64. At that time, appellant Edison Vizuete, Heidi’s father, also filed a
petition seeking his appointment as Heidi’s guardian under the guardianship statute.
Appellant later filed an amended petition seeking his appointment as a limited guardian
2
and conservator, asserting that respondent is not qualified to manage Heidi’s estate.
Although the parties initially agreed that a guardian was needed, their petitions differ as
to the extent of powers and duties that should be granted to the guardian.1
II. The evidentiary hearing
Following the filing of the parties’ petitions, the district court held a two-day
evidentiary hearing. Heidi’s social worker, who has worked with her since 2001, testified
at the hearing that he observed respondent “to be very caring and nurturing” toward
Heidi. He stated that appellant “wasn’t really involved until 2008, but since that time he
has been very actively involved and wanting to be involved as much as possible.” The
social worker testified that, after Heidi turned 18 years old in November of 2011, he was
required to work with her directly, or her legal guardian. Even though appellant wanted
access to Heidi’s records relating to her participation in county services, appellant needed
to get Heidi’s approval. Respondent testified that the same restriction applied to her if
she wanted access to Heidi’s records.
At the time of the hearing, Heidi was an 18-year-old senior in high school and had
been living with respondent her whole life. Pursuant to the divorce decree, the parties
were awarded joint legal custody, and respondent was awarded sole physical custody of
the minor children with a parenting-time schedule. Heidi testified that respondent helps
1
Specifically, respondent’s petition sought all powers and duties enumerated under the
guardianship statute, Minn. Stat. § 524.5-313(c)(1)–(7) (2014), while appellant sought
limited powers, only as to Minn. Stat. § 524.5-313(c)(1)–(4) and Minn. Stat. § 524.5-
313(c)(6). Because the law is unchanged from the time the petitions were filed in 2011,
we cite to the current version of the statute. See McClelland v. McClelland, 393 N.W.2d
224, 226–27 (Minn. App. 1986).
3
her accomplish domestic tasks that she is unable to do on her own. Heidi does not have a
driver’s license and does not go shopping without an adult. Heidi testified that she is able
to manage her checking account online with help from respondent. Heidi is in favor of
the appointment of respondent as her guardian because she believes respondent looks out
for her best interests. Heidi testified that she did not want to see appellant because she
could not handle his “anger issues” and because he did not tell her that he also filed a
petition to become her guardian.
Appellant testified that he continues to pay child support. He testified that an
independent person must manage the aspects of Heidi’s finances that she is unable to
manage on her own. However, appellant also stated that Heidi’s savings and checking
accounts are not substantial and that she is capable of protecting her existing personal
property.
Heidi’s older sister, M.Z., lived with Heidi and respondent between 2008 and 2010
and for a period of time in 2011. M.Z. testified that she became estranged from appellant
in October 2010 after a series of confrontations but has had a consistent relationship with
respondent, who has always provided her with care. She has had no indication that
respondent has ever financially exploited Heidi and has also indicated that respondent has
always acted in favor of Heidi’s best interests. M.Z. testified that respondent has
minimal property aside from personal effects and income from a part-time job. Heidi’s
other older sister, A.D., provided testimony similar to M.Z.’s at the hearing. She was
also supportive of respondent’s appointment as guardian.
4
III. The district court’s initial order
On May 21, 2012, the district court appointed respondent as Heidi’s sole,
unlimited guardian, and denied appellant’s request to be appointed as guardian and
conservator. In its order, the district court found that respondent had custody of Heidi
and has been her primary caregiver since 1998. The district court found that Heidi would
likely continue to reside at respondent’s home regardless of the outcome of the
proceedings. The district court’s findings noted Heidi’s lack of “sufficient understanding
or capacity to make or communicate responsible decisions concerning her person,” as
well as her deficient understanding of money; her ability to read and write at a middle-
school level, her “short-term memory issues;” her disposition to frequently forget and
lose items; and the fact that she “is overly trusting, vulnerable to exploitation by others,
and requires supervision in order to live safely.” The findings also stated that “Heidi’s
demonstrated needs cannot be met with less restrictive means,” and that she “has ongoing
educational, medical, vocational, recreational, and other needs that require continuing
supervision and assistance from someone with authority to make decisions on her
behalf.” Appellant appealed this decision.
IV. The appeal
On appeal, appellant argued, inter alia, that the district court lacked jurisdiction to
interfere with the custody of Heidi while she was a minor, and that the guardianship order
reduced his parental rights. In re Guardianship of Vizuete, No. A12-1279, 2013 WL
3368334, at *2 (Minn. App. July 8, 2013), review denied (Sept. 17, 2013) (Vizuete I).
5
This court agreed with appellant. Vizuete I, 2013 WL 3368334 at *3. We
determined that the record supported the district court’s conclusion that Heidi is an
incapacitated person within the meaning of the guardianship statute, and that the district
court “did | {
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794 F.2d 679
Ehlersv.Wyrick
85-2448
United States Court of Appeals,Eighth Circuit.
5/8/86
1
W.D.Mo.
AFFIRMED
| {
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} |
728 N.W.2d 243 (2007)
STATE of Minnesota, Respondent,
v.
Earl WEMBLEY, Appellant.
No. A05-245.
Supreme Court of Minnesota.
March 8, 2007.
*244 Marie Wolf, Asst. Public Defender, Office of State Public Defender, for appellant.
Mike Hatch, Atty. Gen., St. Paul, Amy Klobuchar, Hennepin County Atty., David C. Brown, Asst. County Atty., for respondent.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, G. BARRY, Justice.
A jury found Earl Wembley guilty of first-degree criminal sexual conduct. The district court admitted into evidence a videotaped interview of the victim and replayed the videotape for the jury during deliberations without Wembley present. Wembley argues that the replay without his presence constituted reversible error. The court of appeals held that there was no error. State v. Wembley, 712 N.W.2d 783, 789 (Minn.App.2006). We granted Wembley's petition for review and affirm.
Appellant Earl Wembley and M.C. lived together for periods between 1989 and 1996, and had two daughters together, one of whom is the victim in this case, K.C. After Wembley and M.C. broke off their relationship, K.C. would periodically visit Wembley at his home. In May 2004, K.C. (then 12 years old) visited Wembley on a day when no one else was present, and K.C. later testified at trial that Wembly sexually assaulted her during that visit.
Approximately a month later, M.C. learned what had happened to K.C. and authorities were notified. Detective Kent Nielsen arranged for K.C. to be interviewed by staff at CornerHouse, a child advocacy center that often interviews children who are alleged victims of sexual abuse. CornerHouse interviews children referred from law enforcement or child protection when there is an active investigation occurring. Pursuant to standard practice, law enforcement and a county attorney observed CornerHouse's interview with K.C. on closed-circuit television as it was occurring, and the interview was also videotaped.
The state charged Wembley with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2006). At trial, the state played the videotape of K.C.'s CornerHouse interview after the interview tape had been admitted into evidence.
Prior to jury deliberations, counsel for both the state and the defense asked the district court to consider the appropriateness of allowing the jury to take the CornerHouse interview videotape to the jury room with the other exhibits. The state asserted that because the tape was "in the nature of testimony," other courts have required the jury to seek permission of the court and have a court official present during replay. In response, defense counsel asserted that "the tape was received into evidence, and if the Court's not inclined to send it back to the jury room, I would just request that the Court make it clear to [the jury] that it is an exhibit in the case and should they want to see it, it would be available for their review." The court agreed with the state that the tape should not go to the jury room and decided to hear argument from both parties if the jury requested to review the videotape during the course of its deliberations.
During deliberations, the jury sent a note to the court requesting permission to review the tape. The record reflects that an "off-the-record" discussion was held, presumably regarding the jury's request. The jury was then brought into the courtroom, and in the presence of counsel and Wembley, the district court granted the *245 jury's request to review the tape with the following instructions:
I want you to review the video in open court here. But don't discuss anything until you get back in the jury room. And I'm going to play the entire videotape. And remember, please don't have any discussions about it until you get back and you deliberate in the jury room. * * * [W]e're all going to leave, and then the court deputies will be with you and [the law clerk] while the tape plays.
Wembley neither objected to the replay of the tape nor objected to his absence from the courtroom during the replay. After viewing the videotape and returning to deliberations, the jury found Wembley guilty, and the district court sentenced him to 144 months in prison.
Wembley's sole issue on appeal is whether the district court committed reversible error by replaying the videotape of the victim's CornerHouse interview for the jury off the record and without the presence of the defendant and the district court. Wembley argues the court's procedure for the replay of the tape violated his right to be present at every stage of the trial. He also argues that videotape interviews of alleged victims are inherently prejudicial, and the district court's procedure for the replay in this case did not adequately protect Wembley from the risk of prejudice.
We ordinarily do not decide issues that were not first addressed by the district court and are raised for the first time on appeal. State v. Roby, 463 N.W.2d 506, 508 (Minn.1990). We consider those issues waived. Id. But we may choose to hear an issue for the first time on appeal if the interests of justice require. State v. Basting, 572 N.W.2d 281, 286 (Minn.1997).
Here we have more than a simple case of failure to act or attorney inattention; the record reflects that Wembley not only failed to object, but before deliberations began, defense counsel affirmatively requested that the jury have access to the tape in case the jurors wished to review it. Indeed, defense counsel's preference was for the tape to go with the jury into the jury room during deliberations. The record indicates that Wembley had a tactical reason for the jury to review the tape. During closing argument, defense counsel asserted that there was an inconsistency between K.C.'s interview at CornerHouse and her testimony at trial. Referencing that perceived inconsistency, counsel stated to the jury: "That's a pretty big detail, and I think that's something you all should consider when you're assessing the credibility of the children in this case, because she has not been completely consistent when she talks about what happened."
Based on this record, we conclude that Wembley waived any right he may have had to challenge the district court's procedure for replaying the tape for the jury or to argue that his presence was required.[1] The interests of justice do not *246 require us to address this issue, where Wembley consented to and actively encouraged the court to allow the jury to see the tape again.
Affirmed.
NOTES
[1] Furthermore, it is not clear that a replay of a videotaped interview of a witness, admitted into evidence, during jury deliberations is a stage of trial that requires the defendant's presence for purposes of Minn. R.Crim. P. 26.03, subd. 1(1). Jury deliberations are conducted without the parties or the district court present, and ordinarily a jury is permitted to take exhibits admitted into evidence to the jury room. Minn. R.Crim. P. 26.03, subd. 19(1). During deliberations, if the jury requests a review of evidence to which it does not already have access, Minn. R.Crim. P. 26.03, subd. 19(2)(1), grants the district court authority to comply with the jury's request. If the court chooses to comply, the court has broad discretion in controlling the jury's review of the evidence in order to minimize prejudice. State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn.1991). We have stated that it is preferable for district courts to replay potentially prejudicial videotaped interviews admitted into evidence in the courtroom rather than allowing the jury to replay such tapes in the jury room, but we did not address in Kraushaar whether the parties should be present during the replay. Id. at 516.
Wembley makes a public policy argument with his claim that video replays are highly prejudicial because such replays are tantamount to allowing a witness to enter the jury room and repeat her testimony. Wembley argues that the prejudicial effect may be minimized by conducting the replay in open court with the parties present and under the supervision of the district court. But these suggestions must be balanced against the broader policy that juries are typically allowed to further consider exhibits in the jury room during deliberations without supervision by the district court. While we do not endorse the procedures used by the district court to replay the video tape, because we conclude that Wembley waived this issue on appeal, we do not decide whether additional safeguards should be mandatory. And as to additional safeguards, we invite suggestions from the Supreme Court Advisory Committee on the Rules of Criminal Procedure.
| {
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00098-CV
______________________________
PINNACLE DATA SERVICES, INC., Appellant
V.
JOSEPH GILLEN, CHARLES BALDRIDGE, AND
MJCM, L.L.C., Appellees
On Appeal from the 61st Judicial District Court
Harris County, Texas
Trial Court No. 2000-59336
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
In the present case, Pinnacle Data Services, Inc. (PDS) brought suit against Joseph Gillen,
Charles Baldridge, and MJCM, L.L.C. (collectively referred to herein as GBM). PDS claimed GBM
was guilty of unjust enrichment, member oppression, breach of contract, breach of fiduciary duty,
breach of duty of loyalty, and civil conspiracy. PDS also claimed it was entitled to declaratory relief,
as well as reformation. GBM filed a combination traditional and no-evidence motion for summary
judgment, and the trial court granted the motion, dismissing all claims. On appeal, PDS brings the
following points of error: (1) the trial court erred by granting summary judgment with respect to
declaratory relief, member oppression, and unjust enrichment; and (2) the trial court erred by
granting more relief than GBM requested in its motion for summary judgment
In 1997 Max Horton, Morris Horton, Joseph Gillen, and Charles Baldridge formed MJCM,
L.L.C. (herein MJCM). The parties agreed that Gillen and Baldridge would each own twenty-five
percent of MJCM, and PDS would own the remaining fifty percent. (1) The Regulations were signed
by Gillen and Baldridge, individually, and by Max Horton, as president of PDS. The Articles of
Organization (Articles) listed the original members as Gillen, Baldridge, and PDS. According to the
Regulations and the Articles, MJCM was to be managed by its members. Further, the members
agreed to receive payment in the form of profit distributions instead of salaries and bonuses. The
distributions were made pursuant to the terms set forth in the Articles and Regulations.
However, as MJCM became more profitable, the members began to disagree over how the
company should be managed. On August 29, 2000, the members convened for a meeting. At this
meeting, Gillen proposed amendments to the Articles that would convert MJCM from member
managed to manager managed, and Gillen would be named as manager. The Regulations provide
that the Articles can only be amended by an affirmative vote of at least sixty-six and two-thirds
percent of the ownership interest, while the Articles allow for their amendment by an affirmative
vote of two-thirds of the members. The Regulations also provide that, to the extent the Regulations
conflict with the Articles, the Articles control. Gillen and Baldridge voted to institute the proposed
changes. After being named manager, Gillen relieved Max and Morris Horton of their duties with
MJCM. Gillen also increased the number of employees and began paying himself and Baldridge
salaries and bonuses. (2) PDS brought suit, and the trial court granted summary judgment in favor of
GBM, and PDS brings this appeal.
Before reaching the merits of PDS's appeal, we must determine whether PDS's response to
GBM's motion for summary judgment was properly before the trial court and is therefore properly
before this Court. GBM filed its motion for summary judgment on December 21, 2001. The trial
court set the summary judgment hearing for February 15, 2002. PDS filed its response on
February 11, 2002, within seven days of the hearing. Further, PDS sought and obtained permission
to file a late supplemental brief to its response.
The Texas Rules of Civil Procedure provide: "Except on leave of court, the adverse party,
not later than seven days prior to the day of hearing may file and serve opposing affidavits or other
written response." Tex. R. Civ. P. 166a(c). The Texas Supreme Court has consistently held that,
without evidence in the record indicating that a late-filed summary judgment response was filed with
leave of court, it is presumed the trial court did not consider the response, and it cannot be
considered on appeal. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Goswami
v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 n.1 (Tex. 1988); INA of Tex. v. Bryant, 686
S.W.2d 614, 615 (Tex. 1985). A recent San Antonio Court of Appeals opinion applied this test and
found the response was not before the trial court and could not be considered on appeal. Neimes v.
Ta, 985 S.W.2d 132, 138 (Tex. App.-San Antonio 1998, pet. dism'd by agr.). In Neimes, Ta and
Fisher, contended that, because the trial court ruled on objections to the substance of the late-filed
response, there was an affirmative indication in the record that the trial court granted leave to file
the response. The court, however, reasoned that the appellants were required to make those
objections to preserve any potential error for appellate review and that ruling on objections was not
enough to show the trial court considered the response. Because Ta and Fisher failed to produce
evidence from the record that the trial court granted leave to file a late response, the court did not
consider the response on appeal. Id. at 140.
Similarly, in the present case, PDS's response was not filed seven days prior to the hearing.
See Tex. R. Civ. P. 166a(c). (3) PDS argues the record contains an affirmative indication that the trial
court granted leave to file a late response. In support of its argument, PDS relies on the following
language contained in the trial court's order granting leave to file a supplemental brief to its response:
"It appearing to the Court that no prejudice from said filing will result to Defendants and the
Supplemental Brief is pertinent to the issues raised in Defendants' Motion for Summary Judgment
and Plaintiff's Response, that said Motion should be GRANTED." That is insufficient.
In Neimes, the trial court, ruling on objections to the late response, mentioned the response
in the record. Neimes, 985 S.W.2d at 139. However, the appellate court held that Ta and Fisher
failed to produce evidence from the record that the trial court affirmatively granted leave to file a late
response and took the response into consideration. Id. at 140. Further, the Texas Supreme Court
has consistently held that, without evidence in the record indicating that a late-filed response was
with leave of the trial court, it is presumed the trial court did not consider the response and it cannot
be considered on appeal. Crowder, 919 S.W.2d at 663.
We are bound by the controlling statutory and case law. The mere mention of the response
in the record, without more, does not overcome the presumption that the trial court did not consider
the late response. Accordingly, without a showing in the record that the late-filed response was with
leave of the court, this Court will not consider it on appeal. See id.
Summary Judgment
A summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699
(Tex. 1994). The question on appeal is not whether the summary judgment proof raises a fact issue,
but whether the summary judgment proof establishes as a matter of law that there is no genuine issue
of material fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs
v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). When reviewing a traditional motion for
summary judgment, this Court must adhere to the following standards: (1) the movant has the
burden of showing there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law; (2) in deciding whether there is a disputed issue of material fact precluding
summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every
reasonable inference must be indulged in favor of the nonmovant. Limestone Prods. Distribution,
Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). | {
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112 Ariz. 7 (1975)
536 P.2d 695
FIREMAN'S FUND INSURANCE COMPANY, a corporation, et al., Appellants,
v.
ARIZONA INSURANCE GUARANTY ASSOCIATION, a non-profit corporation, et al., Appellees.
No. 11935-PR.
Supreme Court of Arizona, En Banc.
June 13, 1975.
Rehearing Denied July 14, 1975.
Snell & Wilmer by Mark Wilmer, Bruce Norton and Thomas J. Reilly, Phoenix, for appellants.
Stockton & Hing by Robert Ong Hing, Phoenix, for appellee Arizona Ins. Guaranty Assn.
N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Fred W. Stork, III, and Nicholas C. Guttilla, Phoenix, for appellee Arizona Dept. of Ins.
HAYS, Justice.
We are presented by this petition for review with the singular question of the constitutionality of legislation establishing the Arizona Insurance Guaranty Association. A.R.S. § 20-661 et seq. The opinion of the Court of Appeals, Fireman's Fund Insurance Co. v. Arizona Insurance Guaranty Ass'n, 22 Ariz. App. 453, 528 P.2d 839 (1974) is vacated.
The provision of the Arizona Constitution with which we are principally concerned reads as follows:
"Section 2. Corporations may be formed under general laws, but shall not be created by special Acts...." Ariz.Const.art. 14, § 2, A.R.S.
We note that this provision does not specify the nature of the corporation which shall not be created by special acts; no distinction is made between public corporations and private corporations. The appellees contend that the Arizona Insurance Guaranty Association is a public corporation created to carry out a mandate of the legislature, and hence it does not fall under the constitutional provision. Despite the public good intended by the legislation, the plain, simple language of the constitution compels us to disagree. "Corporation" *8 is defined in article 14, section 1, of the Arizona Constitution and we find nothing there which supports the idea that the constitutional provision does not apply to public corporations.
Let us briefly examine the legislative enactment with which we are concerned. The purpose of the Arizona Insurance Guaranty Association was stated as follows in its enabling legislation:
"The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers." (Laws, 1970, ch. 78, § 1)
As a condition of authority to transact business in the state of Arizona, all insurers who write fire and casualty insurance must be members of this association. A.R.S. § 20-662. It has a "plan of operation" drawn up by its members. A.R.S. § 20-665. There is a board of directors consisting of from five to nine representatives of the member companies for terms established by the plan of operation subject to the approval of the state insurance director. A.R.S. § 20-663. The board has the power to assess the members separately for the expenses of administration and for the claims resulting from the insolvency of an insurance company. A.R.S. § 20-664. Members of the board are reimbursed also from the assets. A.R.S. § 20-663.
The association is empowered to appear in, defend and appeal any action on a claim brought against the association, employ the necessary personnel, borrow necessary funds, sue and be sued, negotiate and become a party to necessary contracts and perform other necessary acts. A.R.S. § 20-664. The plan of operation establishes the procedures whereby all the powers and duties of the association will be performed including handling assets, reimbursing members of the board, filing claims and proof, and a provision for the appeal of any aggrieved member insurer to the state insurance director of any final action by the association. The association is "exempt from payment of all fees and all taxes levied by this state or any of its subdivisions." A.R.S. § 20-671. Immunity from suit is granted to everyone concerned with the business of the association. A.R.S. § 20-673.
The state insurance director has a small role to play in the affairs of the association. He approves the directors to insure fair representation and approves the plan of operation. A.R.S. § 20-663, § 20-665. He also notifies the association of the existence of an insolvent insurance company and upon the request of the board, provides the association "with a statement of the net direct written premiums of each member insurer." A.R.S. § 20-666. He may also require that the association notify the insureds of the insolvent insurer and any other interested parties of the insolvency and of their rights to proceed under this statutory provision, and may suspend or revoke the certificate of authority to transact business of a member who refuses to comply. A.R.S. § 20-666. There is no other executive control over the association.
Appellees contend that Board of Regents of the University of Arizona v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935), supports their position that a public corporation such as the one created here does not fall within the terms of the Arizona Constitution provision dealing with corporations. Art. 14, § 2, supra. In the Board of Regents case, supra, the court said:
"The special mandate to the legislature to enact laws for those educational institutions is rather convincing that it was not intended that the legislature should be restricted to the passing of general laws for the incorporation of such institutions, but that it might, as it did, incorporate the same by special act." 45 Ariz. at 256-57, 42 P.2d at 624.
*9 There is no provision in the constitution regarding insurance comparable to article 11, section 2, of the Arizona Constitution, which authorizes the legislature to provide for educational institutions by law. Board of Regents, supra, does not support appellees' position. We have held that the insurance industry is affected by the public interest and that the state, by legislation, may regulate and control it. Employers' Liability Assurance Corp. v. Frost, 48 Ariz. 402, 62 P.2d 320 (1936). However, this does not serve as a basis for the creation of a corporation by a special act.
It has been carefully pointed out to us that A.R.S. § 20-661 et seq. is a model act which has been enacted into law in some forty states. The Supreme Court of Florida in O'Malley v. Florida Insurance Guaranty Ass'n, 257 So.2d 9 (Fla. 1971) upheld the constitutionality of this law under their constitution. Florida Constitution, art. III, § 11(a)(12), provides:
"There shall be no special law or general law of local application pertaining to:
* * * * * *
"(12) private incorporation or grant of privilege to a private corporation."
Obviously the foregoing bears little resemblance to our constitutional provision; hence, we do not feel constrained to give it weight under our law.
We of course do not question the authority of the legislature to create boards, commissions, departments, and agencies to carry out public purposes. Our statutes are replete with a variety of governmental agencies with wide differences in their organizational structures and functions. In each instance the agency is "governed and controlled by public officials." Board of Regents, supra.
The worthy objectives sought by the legislature can be attained through normal governmental structure and without doing violence to the constitution. Courts are unwilling to declare legislative acts unconstitutional unless it is clearly shown that the fundamental law has been violated. Board of Regents, supra. We hold that the act creating the Arizona Insurance Guaranty Association is unconstitutional.
The judgment of the trial court is reversed.
CAMERON, C.J., STRUCKMEYER, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.
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236 F.2d 270
POLARUS STEAMSHIP CO., Inc., as owner of THE T/S POLARUSOIL, Libelant-Appellee,v.THE T/S SANDEFJORD, her engines, boilers, etc., and Viriks Rederi A/S (Haldor Virik, Manager), Respondents-Appellants.VIRIKS REDERI A/S (Haldor Virik, Manager) as owner of THE T/S SANDEFJORD, Cross-Libelant-Appellant,v.THE T/S POLARUSOIL, her engines, boilers, etc., and Polarus Steamship Co., Inc., Cross-Respondent-Appellee.
No. 365.
No. 366.
Docket 24002.
Docket 24003.
United States Court of Appeals Second Circuit.
Argued May 18, 1956.
Decided August 20, 1956.
Haight, Gardner, Poor & Havens, New York City (MacDonald Deming and Gordon W. Paulsen, New York City, Richard G. Ashworth, New York City, of counsel), for cross-libelant-appellant.
Dow & Symmers, New York City (Wilbur E. Dow, Jr. and William A. Wilson, New York City, of counsel), for libelant-appellee.
Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
MEDINA, Circuit Judge.
1
At about two o'clock in the morning of July 11, 1951, two tankers, each over four hundred feet long, approaching one another in a fog from opposite directions, collided some forty odd miles at sea in the travelled highway off Barnegat Inlet on the New Jersey coast. The district judge found that one of the vessels, the Sandefjord, was solely to blame, and she appeals.
2
The Polarusoil, which had no radar, was bound for Texas on a southerly course and the Sandefjord was heading north from Philadelphia to New York. Except for the fog, which "was a changing, fluid thing," nothing interfered with navigation, as there was no sea or wind and the current was negligible.
3
The Sandefjord was equipped with navigational radar in good order and had a full speed under the prevailing conditions of about fourteen knots through the water. As the fog closed in, she reduced her speed only two knots. Despite hearing five or six fog signals from the Polarusoil, and observing in the radar a vessel some miles ahead off her port bow, she maintained this excessive speed of twelve knots until she sighted the Polarusoil close aboard, when the Sandefjord ordered her engines in reverse. Her fault is clear and was conceded at the trial. She contends, however, that the Polarusoil was also to blame.
4
The Polarusoil's full speed was about twelve knots, but because of the fog she was proceeding at half speed, or about six knots through the water. The first warning to those aboard the Polarusoil that another vessel was close by was the fog whistle of the Sandefjord two minutes or thereabouts before she was hit. She stopped her engines immediately and, on hearing the second blast, she put her engines full astern. Then for the first time, the oncoming Sandefjord was visible to the Polarusoil. At the time of impact the Polarusoil "was dead in the water or going astern slowly."
5
There were a number of other factors, such as the standby order to the engine room of the Polarusoil and her trim, as well as the failure of those in command of the Sandefjord to make proper use of her radar. Indeed, what happened here demonstrates how radar may, when not properly used, increase the chances of collision. Had successive observations been plotted to determine the course and speed of the Polarusoil, which was plainly visible on the radar screen when about seven miles away, the ships would probably have passed one another in safety. But the master of the Sandefjord made no such calculations; he merely guessed that the Polarusoil was steering a course parallel to the coastline and moving to the left of the Sandefjord. While a matter of conjecture, it seems not unlikely that the Sandefjord would have proceeded more cautiously had she not been equipped with radar, which, under the circumstances, gave a false sense of security.
6
We cannot disturb the finding that the Sandefjord was solely to blame. There was no violation by the Polarusoil of Article 16 of the International Rules, 33 U.S.C.A. § 92, requiring vessels to proceed in foggy weather "at a moderate speed, having careful regard to the existing circumstances and conditions."
7
"Moderate" speed is undoubtedly less than full speed. The Pennland, D.C.S.D.N.Y., 23 F. 551; The State of Alabama, D.C.S.D.N.Y., 17 F. 847. But the term is a relative one, and precisely how much less the statute requires depends on the peculiar circumstances of each case. The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148; The Bayonne, 2 Cir., 213 F. 216; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S., 303, certiorari denied 199 U.S. 606, 26 S.Ct. 746, 50 L.Ed. 330; The State of Alabama, supra; see also, Shope, Collision at Sea 341 n. 34 (1903).
8
True it is that there are statements that in congested harbor waters, and at times elsewhere, anything more than bare steerageway in the presence of fog may be too much. The Martello, 153 U.S. 64, 14 S.Ct. 723, 38 L.Ed. 637; The Umbria, 166 U.S. 404, 412, 17 S.Ct. 610, 41 L.Ed. 1053. Even more frequently, the applicable rule has been said to be that no vessel should be operated in a fog at a speed which is so fast that she cannot stop within the distance her helmsman can see ahead. The Chattahoochee, 173 U.S. 540, 548, 19 S.Ct. 491, 43 L.Ed. 801; The Colorado, 91 U.S. 692, 23 L.Ed. 379, quoting with approval, The Batavia, 40 Eng.L. & Eq. 25; The Haven, 2 Cir., 277 F. 957; The City of Norfolk, 4 Cir., 266 F. 641, certiorari denied sub nom. Chesapeake S. S. Co. of Baltimore City v. Hand, 253 U.S. 491, 40 S.Ct. 584, 64 L.Ed. 1028; The Northern Queen, D.C.S.D.N.Y., 117 F. 906; The Albatross, D.C.D.Mass., 273 F. 285; The Fjell, D.C.E.D.Va., 257 F. 478; see also, Marsden, Collisions at Sea 340 (9th ed., Gibb, 1934).
9
But these are not rules of thumb to be applied willy-nilly. They are but glosses upon the basic rule requiring operation at a moderate speed, and, like it, they must be applied according to the particular circumstances of each case. While there was some evidence that the range of visibility here was about a ship's length, some 400-odd feet, or, according to another witness, two ships' lengths, the trial judge very properly held that the distance could not be fixed with any accuracy. The purpose of the statute, spelled out in the "sight rule," is to require generally and not absolutely that a vessel proceed only at such speed that it can stop before striking another vessel which comes into the range of its vision. And here the Polarusoil was "stopped in the water and probably going astern very slowly at the time of the collision." Cf. The Pemaquid, D.C. 255 F. 709, reversed on the facts, 1 Cir., 288 F. 666.
10
There is another feature of this case which is worthy of comment, in view of the congestion of the admiralty docket in the Southern District of New York. At the close of the evidence Judge Walsh dictated his decision and his findings, with some discussion of the evidence. This is good practice, especially in collision cases, where much depends upon a mental picture of the vessels as they approached one another and the conditions of time, fog, wind, current, and so on, in which the signals are given and the various maneuvers take place. Where the authorities cited in the trial briefs are studied during the trial and the evidence followed with some concentration, the trial judge is more likely than not to reach a just and sound result when the case is fresh in his mind and his impressions of the various witnesses are still vivid. Of course, complicated and difficult cases require further study; but in the average run-of-the-mill case, such as the one now before us, delay and the service of further briefs serve little purpose other than to multiply the amount of time and effort expended upon the case.
11
Affirmed.
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2005 WY 150
DAVID VEILE, Appellant,
v.
MICHAEL BRYANT, and BRYANT FUNERAL HOME, INC. Appellees.
No. 05-48
Supreme Court of Wyoming. OCTOBER TERM, A.D. 2005.
November 28, 2005
Representing Appellant: David Veile, Pro Se.
Representing Appellee: Michael Bryant, Pro Se, and Francisco L. Romero, Ft. Collins, Colorado.
HILL, C.J., and GOLDEN, KITE, VOIGT, BURKE, JJ.
GOLDEN, Justice.
[¶1] David Veile appeals from a district court order denying his motion for payment of costs for his appeal in Veile v. Bryant, 2004 WY 107, 97 P.3d 787 (Wyo. 2004). Finding Veile's argument on appeal to be without merit, we affirm the order of the district court and, finding no reasonable cause for this appeal, award sanctions against Veile.
ISSUE
[¶2] Veile presents this statement of the issue:
Should the district court's order denying payment of costs to Appellant Veile be reversed because it violates:
A) the Wyoming Supreme Court's Mandate Reversing Judgment?; and/or
B) Rule 10.04, Wyoming Rules of Appellate Procedure?
Appellee Michael Bryant rephrases the issue as follows:
Is Veile entitled to costs on appeal when he is not the prevailing party and did not move for costs in this Court?
FACTS
[¶3] Veile and Bryant operate competing funeral homes in Worland, Wyoming. In 1996, Veile filed a complaint with the Wyoming State Board of Embalming (Board) against Bryant and Bryant Funeral Home alleging numerous violations of Wyo. Stat. Ann. § 33-16-310 (LexisNexis 2005). After investigation by the Board's investigative committee, the Board closed the case for lack of evidence of any violation by Bryant. In 1998, Veile filed a petition with the Board alleging Bryant had capped, steered and/or solicited funeral business in violation of § 33-16-310, requesting revocation or suspension of Bryant's license, and requesting reimbursement of Veile for the costs incurred in filing the petition. Veile filed the petition pursuant to Wyo. Stat. Ann. § 33-16-311 (LexisNexis 2005), which allows such a petition to be filed by the Attorney General, the county attorney of the county in which the licensee resides, or "by any citizen residing in this state."
[¶4] After protracted legal maneuvering, a hearing on Veile's petition was held before the Board in 2002. At the close of Veile's evidence, the Board granted Bryant's motion for a directed verdict finding Veile failed to present sufficient evidence to support his allegations. Veile filed a petition for review with the district court. The district court dismissed the petition for review holding that the hearing before the Board was not a contested case hearing under the Wyoming Administrative Procedure Act. The district court characterized the hearing as an investigation after which the Board found no basis to prosecute Veile's claims. The district court reasoned that because the hearing was not a contested case hearing under the Wyoming Administrative Procedure Act, the court did not have jurisdiction to consider Veile's petition for judicial review.
[¶5] Veile appealed the district court's decision to this Court. We reversed the district court's ruling that the hearing before the Board was not a contested case hearing and held that the Court did have jurisdiction to hear Veile's appeal. Veile, ¶ 14, 97 P.3d at 793. In this Court's ruling on the merits of Veile's appeal, though, we upheld in all respects the Board's finding that Veile had presented insufficient evidence to prove his case against Bryant, and we affirmed the Board's decision denying all relief requested by Veile. Id., ¶¶ 16, 26, 97 P.3d at 796, 799.
[¶6] On September 30, 2004, this Court issued its "Mandate Reversing Judgment," which provided that "[c]osts are awarded to the prevailing party." On November 3, 2004, Veile filed in district court a "Motion for Order of Payment of Costs Pursuant to Wyoming Supreme Court's Mandate Reversing Judgment," seeking to recover $1,698.80 in costs. On January 3, 2005, the district court issued an order denying Veile's motion for payment of costs. In so ordering, the district court ruled that "Mr. Veile is not the prevailing party in the Supreme Court matter and because of the uniqueness of the Supreme Court's opinion in the matter, Rule 10.04, W.R.A.P., is not applicable . . . ." This appeal followed.
STANDARD OF REVIEW
[¶7] This Court ordered in its mandate that costs were awarded to the prevailing party. The determination of which party is the prevailing party is a question of law, and our standard of review for questions of law is de novo. See Gray v. Stratton Real Estate, 2001 WY 125, ¶ 5, 36 P.3d 1127, 1128 (Wyo. 2001).
DISCUSSION
[¶8] Veile contends the district court erred in finding that he was not the prevailing party in Veile, 2004 WY 107, 97 P.3d 787. In support of this contention, Veile argues that he "clearly improved his position by appealing the District Court's Dismissal to this Court." We disagree.
[¶9] In considering whether a party should be awarded costs as a prevailing party in litigation, we have defined "prevailing party" according to the following:
A party should not be deemed the prevailing party for purposes of taxing costs unless the party improves his or her position by the litigation. * * * To hold otherwise would encourage unnecessary litigation.
Schaub v. Wilson, 969 P.2d 552, 561 (Wyo. 1998). Our decision in Veile cannot reasonably be read to have improved Veile's position in any way in his petition against Bryant.
[¶10] Veile's position in his litigation against Bryant was that which he presented to the Board: that Bryant had engaged in unlawful funeral practices; that Bryant's license should be revoked or suspended; and that the Board should reimburse Veile for expenses he incurred in pursuing his action before the Board. The Board found against Veile on all of his claims. The district court, on the other hand, took no position on the merits of Veile's claims and instead dismissed Veile's petition for review after finding it did not have jurisdiction to consider the petition. We disagreed with the district court and took jurisdiction of Veile's appeal. We then, however, ruled against Veile on all of his claims and upheld the Board's decision in its entirety. The effect of the district court's decision, had it stood, would have been to leave in place the Board's decision denying Veile all relief he requested. Although we disagreed with the district court's reasoning, the effect of our decision on Veile was the same. We affirmed the Board's finding that Veile had not proven his case against Bryant, and we upheld the Board's decision denying Veile all requested relief. Veile clearly did not improve his position in his litigation against Bryant through his appeal to this Court.
[¶11] As a final issue, Bryant claims that there is no reasonable cause for this appeal and this Court should award sanctions pursuant to W.R.A.P. 10.05. "Generally, this Court is reluctant to impose sanctions, but we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record." Gray, ¶ 11, 36 P.3d at 1129-30. In this case the lack of any cogent argument to support the appeal provides the circumstance making sanctions appropriate.
[¶12] As explained above, this Court in its Veile decision ruled against Veile on all of his claims of Board error. Veile's interests in his litigation against Bryant were in no way vindicated through his appeal to this Court, and no reasonable argument could be proffered to support his request for payment of costs. We can discern no good faith legal basis for this action, and we do not excuse pro se litigants from the requirement that an appeal be supported by cogent argument. See Welch v. Welch, 2003 WY 168, ¶ 13, 81 P.3d 937, 940 (Wyo. 2003). We therefore certify that there is no reasonable basis for this appeal and that sanctions are appropriate.
CONCLUSION
[¶13] We agree with the district court that Veile was not a prevailing party entitled to an award of costs following our decision in Veile. We therefore affirm the district court's order denying Veile's motion for payment of costs. Bryant shall submit a statement of costs and attorney's fees associated with responding to this appeal. Upon review, we will award an appropriate amount in the form of sanctions.
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845 F.2d 1023
46 Fair Empl.Prac.Cas. 1223
Glass (Sammy L.)v.General Casting Corporation
NO. 87-1780
United States Court of Appeals,Seventh Circuit.
APR 20, 1988
Appeal From: W.D.Wis., 660 F.Supp. 554
1
REVERSED AND REMANDED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6795
JOWARSKI RUSSELL NEDD,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections,
Respondent - Appellee.
No. 18-7285
JOWARSKI RUSSELL NEDD,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00948-JAG-RCY)
Submitted: May 29, 2019 Decided: June 20, 2019
Before KING, FLOYD, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jowarski Russell Nedd, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In Appeal No. 18-6795, Jowarski Russell Nedd seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2254 (2012) petition. * In Appeal No. 18-
7285, Nedd seeks to appeal the district court’s subsequent order denying reconsideration.
The orders are not appealable unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner
satisfies this standard by demonstrating that reasonable jurists would find that the district
court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When
the district court denies relief on procedural grounds, the prisoner must demonstrate both
that the dispositive procedural ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
*
We remanded for the limited purpose of permitting the district court to determine
whether Nedd is entitled to a reopening of the appeal period pursuant to Fed. R. App. P.
4(a)(6). On remand, the district court granted Nedd’s motion to reopen.
3
We have independently reviewed the record and conclude that Nedd has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss
the appeals. 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.
DISMISSED
4
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776 F.2d 1055
*/**U.S.v.Rawls
85-8082
United States Court of Appeals,Eleventh Circuit.
10/21/85
1
M.D.Ga.
AFFIRMED
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 25 case
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641 So.2d 184 (1994)
SECURITY MANAGEMENT CORP., Appellant,
v.
HARTFORD FIRE INSURANCE Company, etc., Appellee.
No. 93-2107.
District Court of Appeal of Florida, Third District.
August 17, 1994.
*185 Weil, Lucio, Mandler, Croland & Steele and Lawrence D. Goodman and John C. Hanson, II, Miami, for appellant.
Haley, Sinagra & Perez and James T. Haley, Miami, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.
JORGENSON, Judge.
Security Management Corp. (Security) appeals from an order of final judgment in favor of Hartford Fire Insurance Company (Hartford). We affirm in part, reverse in part, and remand with directions.
Security entered into a builders' risk insurance contract with Hartford for the period of July 1, 1985, to July 1, 1986. As to the premium for the policy, Security and Hartford agreed to a retrospective premium formula. This formula provided that Security would be charged a minimum of a $50,000 premium and a maximum of a $150,000 premium for the year of insurance coverage. Essentially, if the value of the covered properties increased or losses were paid, the premium could be adjusted up to the $150,000 maximum. Security paid the $50,000 minimum premium at the inception of the insurance policy.
In December of 1985, a fire occurred on the insured property. Security made a claim on Hartford for the policy limits. By draft dated June 6, 1986, Hartford paid the claim notwithstanding the fact that it had cancelled the insurance coverage on February 4, 1986.
Hartford subsequently adjusted the premium upwards to $150,000 based upon the retrospective premium formula. After crediting Security with the $50,000 it had already paid, Hartford rendered a statement to Security in the amount of $100,000. Security refused payment alleging it had never agreed to the retrospective premium formula. Hartford then sued Security based on open account, account stated, and services rendered. The trial court entered final judgment in favor of Hartford and found that Security was liable in the amount of $100,000 plus interest.
The trial court properly found that Hartford was entitled to increase the insurance policy premium pursuant to the retrospective rating formula. Despite Security's argument to the contrary, its conduct demonstrates that it accepted the terms and conditions of the retrospective rating formula. See James Register Constr. Co. v. Bobby Hancock Acoustics, Inc., 535 So.2d 339 (Fla. 1st DCA 1988) (mutuality of assent may be *186 shown through acts or conduct of the parties); Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So.2d 461 (Fla. 1st DCA 1971) (same).
Security never transmitted any objection to Hartford with respect to the retrospective rating formula. It provided monthly valuation reports to Hartford as required by the insurance policy, made a claim under the policy, and accepted payment of the claim. These facts all demonstrate that Security assented to the entire insurance policy, including the retrospective rating formula endorsement.[1] As Security is legally bound by the retrospective premium endorsement, Hartford is entitled to any increase in premium contemplated by the parties' agreement.
Nevertheless, the trial court erred in not taking into account the fact that Hartford cancelled the yearlong policy after only seven months. "As a general rule, an insurer ... upon cancelling a policy must return advance premiums which have been paid and are unearned." George J. Couch et al., Couch on Insurance 2d 34:29 at 884-86 (1985).[2]See also Graves v. Iowa Mut. Ins. Co., 132 So.2d 393 (Fla. 1961); Bradley v. Associates Discount Corp., 58 So.2d 857 (Fla. 1952); Aetna Casualty & Sur. Co. v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961).[3]
No provision in the Hartford insurance policy addresses the issue of the return of unearned premiums. However, this was a one-year insurance contract and the additional $100,000 Hartford demanded was supposed to have represented a full year's premium. Accordingly, we reverse the amount of damages awarded. On remand, Security may litigate the issue of its entitlement to a proration for the last five months of the insurance contract.
Affirmed in part; reversed in part; remanded with directions.
NOTES
[1] Even assuming that Security's conduct did not demonstrate assent to the entire insurance policy, it would still be bound by the terms of the retrospective rating formula. "[A]n insurance broker is the agent of the insured in matters connected with the procurement of insurance." AMI Ins. Agency v. Elie, 394 So.2d 1061, 1062 (Fla. 3d DCA 1981); Liberty Mut. Ins. Co. v. Scalise, 627 So.2d 87, 91 (Fla. 1st DCA 1993). The retrospective rating formula was included in the insurance binder which was prepared and executed by B.R.I. Coverage Corporation, Security's insurance broker and agent. "[B]ecause the broker was the agent of the insured, the insured was bound by the agent's actions." Empire Fire & Marine Ins. Co. v. Koven, 402 So.2d 1352, 1353 (Fla. 4th DCA 1981).
[2] See also 30 Fla.Jur.2d Insurance 457 (1981) ("Contracts of insurance on property ... generally provide for ... the return of the unearned portion of the premium paid by the insured."); 45 C.J.S. Insurance 500 (1993) ("Ordinarily, ... the return or tender of the unearned premium to the insured is a condition precedent to cancellation of the policy... .").
[3] Though no similar provision exists for builders' risk insurance, as to health insurance policies section 627.626, Florida Statutes (1985) provides: "In the event of cancellation, the insurer will return promptly the unearned portion of any premium paid." See also 627.848, Florida Statutes (1985) (insurer who cancels an insurance contract which contains a premium finance agreement shall promptly refund any remaining unearned premium for the benefit of the insured).
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989 P.2d 230 (1999)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Steven Owen PENNINGTON, Defendant-Appellant.
No. 98CA0506.
Colorado Court of Appeals, Div. A.
July 8, 1999.
Certiorari Denied December 6, 1999.
*231 Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Clemmie P. Engle, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robert S. Berger, P.C., Robert S. Berger, Denver, Colorado, for Defendant-Appellant.
Opinion by Justice ERICKSON.[*]
Defendant, Steve Owen Pennington, appeals from the trial court order denying his Crim. P. 35(c) motion as untimely and lacking justifiable excuse or excusable neglect. We affirm.
Defendant pled guilty to possession of burglary tools and was sentenced to 16 years of probation on September 30, 1994. The trial court signed the conditions of probation on October 14, 1994.
Shortly thereafter, defendant fled the state. The probation officer filed a probation revocation complaint and defendant was apprehended on the Colorado warrant in Arizona in September 1997.
On October 8, 1997, defendant made his first court appearance in Colorado for advisement on the revocation complaint. At that time defendant requested appointment of counsel. The public defender was appointed, and on October 22, 1997, the public defender filed a motion to withdraw claiming that defendant wanted to file a Crim. P. 35(c) motion alleging that he had received ineffective assistance of plea counsel.
The court granted the motion, and on October 29, 1997, private counsel was appointed. On December 3, 1997, defendant filed his Crim. P. 35(c) motion alleging ineffective assistance of his 1994 plea counsel. A motion hearing was held at which the prosecutor argued that the Crim. P. 35(c) motion was untimely under § 16-5-402, C.R.S.1998.
After argument, the trial court denied the motion, finding that the motion was untimely and that the defendant had failed to establish justifiable excuse or excusable neglect. This appeal followed.
I.
Defendant first argues that his Crim. P. 35(c) motion was timely. He argues that the period specified in § 16-5-402 began on October 14, 1994, when the trial court signed the conditions of probation, and that he commenced his collateral attack on October 8, 1997, when he requested the assistance of counsel. We disagree.
As pertinent here, § 16-5-402 provides that: "[N]o person who has been convicted under a criminal statute ... shall collaterally attack the validity of that conviction unless such attack is commenced within [three years] following the date of said conviction." (emphasis added)
For purposes of § 16-5-402 and post-conviction review, "a conviction occurs when the trial court enters judgment and sentence is imposed, if there is no appeal." People v. Hampton, 857 P.2d 441, 444 (Colo.App.1992), aff'd, 876 P.2d 1236 (Colo.1994).
Crim. P. 32(c) defines a judgment of conviction as follows:
A judgment of conviction shall consist of a recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant.
Here, the sentence was imposed on September 30, 1994. That is the date of conviction for purposes of § 16-5-402. Furthermore, at the sentencing hearing, the court stated the conditions of probation. Crim. P. 32(c) does not require that the judgment of conviction be signed or that the conditions of probation be executed by the judge before judgment of conviction enters. See Crim. P. 32(c). Hence, defendant would have had to commence his collateral attack before September 30, 1997.
Because the date of conviction is September 30, 1994, not October 14, 1994, as defendant argues and because defendant does not *232 contend that he commenced his collateral attack before October 8, 1997, we need not decide when a collateral attack "commences" for purposes of § 16-5-402.
II.
Defendant contends, however, that even if the motion was untimely, he established justifiable excuse or excusable neglect for the late filing. He argues that the delay was caused by the process of communicating with first appointed counsel, withdrawal of counsel, appointment of private counsel, and preparation of new counsel. Again, we disagree.
An untimely collateral attack may be considered if a defendant demonstrates that the failure to seek timely relief was the result of circumstances amounting to justifiable excuse or excusable neglect. Section 16-5-402(2)(d), C.R.S.1998; People v. Merchant, 983 P.2d 108 (Colo.App.1999).
Whether the facts and circumstances qualify as justifiable excuse or excusable neglect is a question of fact ordinarily to be resolved by the trial court. See People v. Wiedemer, 852 P.2d 424 (Colo.1993).
The relevant factors a trial court should consider in making that determination include: (1) the existence of any impediments preventing a challenge to a prior conviction; (2) whether the defendant had a previous need to make a challenge; (3) whether the defendant knew that a prior conviction was constitutionally infirm or had reason to question its validity; (4) whether there existed other means to prevent use of the convictions; and (5) the effect that the passage of time has had on the government's ability to defend against the challenge. See People v. Wiedemer, supra.
Here, the trial court concluded that none of the grounds asserted by defendant established justifiable excuse or excusable neglect to excuse his untimely collateral attack pursuant to § 16-5-402. The trial court noted that defendant did not file his Crim. P. 35(c) motion until a probation revocation complaint was filed. In addition, the grounds asserted in the motion were matters that the defendant was aware of in 1994 when he executed the conditions of probation. Moreover, these were matters of which defendant would have been aware, even if he lacked legal sophistication. Because defendant had knowledge of these grounds in 1994, he could have called them to the attention of previous counsel, or new counsel, or directly to the court.
The court's findings show that there were no circumstances preventing defendant from challenging his conviction and that he had reason to question the constitutionality of his conviction.
Because the trial court's findings are supported by the record, we uphold the trial court's conclusion that defendant failed to establish justifiable excuse or excusable neglect for the untimely filing of his Crim. P. 35(c) motion. People v. Thomas, 853 P.2d 1147 (Colo.1993)(deference is to be given to the trial court's findings of fact, and when there is record support for them, a reviewing court will not overturn those findings).
The order is affirmed.
Judge RULAND and Justice KIRSHBAUM concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1998.
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892 F.2d 1043
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.Jesse C. HOGAN; and wife, Plaintiffs-Appellants,v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
No. 89-5301.
United States Court of Appeals, Sixth Circuit.
Jan. 3, 1990.
Before MILBURN and BOGGS, Circuit Judges, and ENGEL,* Senior Circuit Judge.
PER CURIAM.
1
Plaintiffs Jesse and Paula Hogan appeal a judgment by the United States District Court for the Eastern District of Tennessee for the defendant Allstate Insurance Co. in this breach of contract action under Tennessee law. On appeal, the Hogans contend that the trial court erred in holding that the auto insurance policy between them and Allstate was void ab initio, and that Allstate had not waived its right to void the policy because of Jesse's misrepresentation in his application for insurance.
2
On February 24, 1988 the Hogans applied for insurance and theft coverage on their car and truck from Allstate through an Allstate agent in Chattanooga. On the driving violations history section of the application form, Jesse reported his DUI conviction in March 1985 but failed to report his reckless driving conviction in April 1986. Upon submitting the application to the agent, the Hogans gave him $263 in cash toward the $1,041.90 yearly premium on both vehicles. The agent immediately submitted the application to Allstate's underwriting department in North Carolina. Approximately three to four hours after the Hogans left the agent's office, their car was stolen. They promptly reported the theft to the police and to Allstate, but the car was never recovered.
3
Unaware of the theft, Allstate's underwriting department in North Carolina processed the Hogans' application. In so doing, the department learned of the unreported reckless driving conviction, which in conjunction with the DUI conviction rendered the Hogans ineligible for coverage by Allstate. On March 15, 1988, still unaware of the theft, the underwriting department sent a letter to the Hogans rejecting their application. The letter also stated that temporary coverage provided while their application was being considered would expire on March 28, 1988, and enclosed a check refunding the difference between the Hogans' initial $263 payment and a premium of $240 for the temporary coverage.
4
Meanwhile, Allstate's claims department in Chattanooga had begun to investigate the Hogans' theft claim. In the course of the investigation, the claims department learned of the unreported reckless driving conviction and sent a letter to the Hogans reserving Allstate's rights. At that time, the claims department was still unaware of the underwriting department's March 15 letter rejecting the Hogans' application but extending limited temporary coverage. Subsequently, in an April 29, 1988 letter to the Hogans, the claims department declared the policy void ab initio because of the misrepresentation and returned the full balance of the Hogans' initial payment.
5
The Hogans subsequently initiated a breach of contract action against Allstate in a Tennessee state court, alleging that Allstate had failed to honor their auto theft claim under their temporary policy. The case was removed to the district court. Following a bench trial, the magistrate concluded that under Tennessee law Allstate was entitled to void the policy ab initio because of Hogan's material misrepresentation in the application. The magistrate also held that the March 15 letter from the underwriting department had not waived Allstate's right to rely on that misrepresentation and that even assuming a waiver, the misrepresentation still voided the insurance policy ab initio.
6
On appeal the Hogans challenge these holdings as contrary to Tennessee law, and argue that the magistrate should have instead awarded them a judgment on their theft claim against Allstate.
7
An insurance company may void an insurance policy on grounds of a misrepresentation in the application if the misrepresentation was made with intent to deceive or increases the risk of loss to the company. Tenn.Code Ann. § 56-7-103. In this case, the magistrate found that Hogan's failure to disclose his reckless driving conviction in his application satisfied the latter criteria. Op. at 8-10. Hogan does not challenge this finding on appeal. Rather, his claim is that in the March 15 letter from its underwriting department, Allstate waived its right to void the policy because of his misrepresentation by instead choosing to cancel the policy and to keep a premium for the period covered.
8
There are two kinds of waiver under Tennessee insurance law. Express waiver is a "voluntary relinquishment by a party of a known right," and "may be proved by express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by a course of acts and conduct...." Chattem, Inc. v. Provident Life & Acc. Ins. Co., 676 S.W.2d 953, 955 (Tenn.1984) (quoting Baird v. Fidelity-Phoenix Fire Ins. Co., 178 Tenn. 653, 665, 162 S.W.2d 384 (1942)). An express waiver must be knowing and voluntary. Chattem at 955-56. An implied waiver, which is a form of equitable estoppel, requires that the insured not know and have had no way of knowing the truth as to the facts in question, and have acted in reliance upon the conduct of the insurance company. Chattem at 955. By contrast, reliance is unnecessary to an express waiver. Id. at 956.
9
In the present case, the magistrate found that Allstate's March 15 letter "did not constitute a waiver of its right to rely upon ... [Hogan's] material misrepresentation" in the policy application, presumably in order to void the policy ab initio. Op. at 10-11. This conclusion was based on two findings. First, Allstate's underwriting department did not know of the theft claim when it sent the letter, due to a lack of communication with the claim department. Second, the underwriting department "was endeavoring to comply with the Tennessee law concerning the cancellation of insurance" when it sent the March 15 letter. Op. at 11. The magistrate further held that even assuming arguendo that the letter was a waiver, the policy was still void because of Hogan's misrepresentation. Id. The opinion here cites Lane v. Travelers Indemnity Co., 499 S.W.2d 643 (Tenn.Ct.App.1973).
10
It is evident that the ultimate determination of whether there was an express waiver by the insurer in this case is a mixed question of fact and law. Under the circumstances of this case, we are fully satisfied that the intent of the insurer in the conflicting actions of two of its own departments must be construed against it. Here, with full knowledge of the misrepresentation which entitled it to void the policy entirely, the insurer instead unquestionably elected in the first instance to acknowledge coverage and retain a proportionate part of the premium. The record shows no evidence to explain the claims department's subsequent decision to void the policy because of the misrepresentation other than the department's knowledge that Hogan had already filed a claim. Defendant insurer has shown us no Tennessee law which would permit it to withdraw an express waiver of the right to void under such circumstances and we conclude that it finds no comfort in the decision in Lane, supra. See id. at 648 (insurer who has offered to extend coverage may void policy on the ground of material misrepresentation, but only where the misrepresentation was not discovered until after the offer of extended coverage was made).
11
Accordingly, we find that the magistrate erred in failing to conclude that there was an express waiver of the right to void the policy under the facts before him. The judgment is REVERSED and the case REMANDED to the district court for further proceedings consistent with this opinion.
*
Honorable Albert J. Engel assumed senior status effective October 1, 1989
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874 So.2d 272 (2004)
STATE of Louisiana
v.
Juaquin R. MARTINEZ.
No. 04-KA-38.
Court of Appeal of Louisiana, Fifth Circuit.
April 27, 2004.
*274 Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
Holli A. Herrle-Castillo, Harvey, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
CLARENCE E. McMANUS, Judge.
STATEMENT OF THE CASE
On May 7, 2003, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Juaquin R. Martinez, with possession of cocaine in violation of LSA-R.S. 40:967(C). The defendant was arraigned on May 16, 2003 and pled not guilty. On October 20, 2003, the defendant's motion to suppress evidence was denied. On that same date, the defendant withdrew his plea of not guilty and tendered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976). The trial court subsequently sentenced the defendant to imprisonment at hard labor for two years, suspended the sentence, and placed the defendant on active probation for two years. On October 24, 2003, the defendant filed a motion for appeal that was granted.
FACTS
The following facts and testimonies were presented at the hearing on the motion to suppress. Detective Daniel Jewell was the arresting officer. He testified that he had been employed by the Jefferson Parish Sheriff's Office narcotics division for approximately two years and that, during his four years with the New Orleans Police Department, he had made hundreds of drug arrests.
In regards to this case, Detective Jewell testified that his office had received an anonymous complaint regarding numerous people coming and going from 4120 Trenton Street Apartment No. 3 in Metairie, Louisiana. Based on this information, Detective Jewell and his partner conducted surveillance on the apartment on April 1, 2003. During the 45 minute surveillance, *275 Detective Jewell observed five subjects going to the apartment and staying approximately two to five minutes. He explained that this behavior was consistent with the purchase of narcotics.
Detective Jewell then testified that the defendant, Juaquin R. Martinez, was the sixth person to approach the apartment. After the defendant left the apartment, Detective Jewell's partner stayed and continued the surveillance and Detective Jewell followed the defendant who walked about three blocks away to Independence Street. Detective Jewell stated that he never lost sight of the defendant, nor did the defendant approach any other residences.
Detective Jewell then stopped the defendant and identified himself as a police officer. Detective Jewell thought the defendant had possibly purchased narcotics from someone in the apartment. The detective questioned the defendant about his ID, what he was doing in the apartment, and whether he knew the people there. The defendant could not give him a good answer and kept looking around. Detective Jewell thought the defendant was about to flee.
Detective Jewell testified that the defendant kept sticking his hands in his pockets and his waistband after being told numerous times not to. He also testified that the defendant "could not hold an object in his hand without dropping it." When the detective asked the defendant to produce his identification, Detective Jewell noticed that the defendant was very nervous and sweating profusely, even though it was rather cool.
Based on the defendant's attitude and the way he carried himself and knowing from experience that narcotics and weapons went "hand-in-hand", Detective Jewell conducted a pat down for weapons because he was concerned for his safety. Detective Jewell heard a "distinctive crunch of plastic", which he associated with being a cigarette wrapper, when he got to the lower, right part of the defendant's leg around the sock and ankle area. When Detective Jewell touched the wrapper, the defendant bent down and moved the detective's hand away from his ankle. Detective Jewell testified that every time he went near the defendant's ankle, the defendant would move his hands near the ankle. Because of these actions, Detective Jewell was concerned for his safety.
Once he was able to actually pat the area around the ankle, Detective Jewell felt a small, rock-like object. He testified that he did not have to manipulate the object to feel it and it was "very distinctive" and he "immediately recognized it." Detective Jewell then lifted the defendant's pant leg and saw the top of the plastic sticking out of his sock. Detective Jewell then seized a small piece of crack cocaine and the defendant was placed under arrest.
On cross-examination, Detective Jewell admitted that he did not see any hand-to-hand transactions or drugs change hands during his 45 minutes of surveillance and he did not stop the other five people who left the apartment.
The trial court denied the defendant's motion to suppress the evidence finding that the detective had a reasonable suspicion to stop and talk to the defendant and that under the totality of the circumstances, the detective was entitled to conduct the pat-down because he reasonably suspected he was in danger. The defendant now appeals the trial court's denial of the motion to suppress.
ASSIGNMENT OF ERROR NUMBER ONE
The defendant argues that the trial court erred in denying the motion to suppress *276 the evidence. He contends the officer had no reasonable suspicion to stop him after he left the apartment. He also argues that, even if the officer had reasonable suspicion to stop him, the officer was not justified in patting him down. Further, he asserts that even if the stop and pat-down for weapons were legal, the retrieval of the cellophane wrapper containing the crack rock was not.
The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, application dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087.
The requirements for a valid Terry stop and for any search incident to the stop was codified in LSA-C.Cr.P. art. 215.1, which provides in pertinent part:
A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
Investigatory stops require reasonable suspicion of criminal activity. "Reasonable suspicion" is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.
The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048.
An officer's experience, his knowledge of recent criminal patterns and his knowledge of an area's frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. State v. Belton, 441 So.2d *277 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).
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No. 01-840
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 259N
EDWARD STAMPER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDC-98-163
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edward Stamper, Shelby, Montana (pro se)
For Respondent:
Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant
Montana Attorney General, Helena, Montana; Brant Light, Cascade County
Attorney, Great Falls, Montana
Submitted on Briefs: May 23, 2002
Decided: September 24, 2003
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Edward Stamper appeals the denial of his Petition for Postconviction Relief by the
District Court for the Eighth Judicial District, Cascade County. We affirm.
¶3 We address the following issue on appeal: Whether the District Court erred in
dismissing Stamper's Petition for Postconviction Relief without holding an evidentiary
hearing.
Factual and Procedural Background
¶4 On March 30, 1998, Stamper assaulted a detention officer and another inmate at the
Cascade County Regional Detention Center. As a result, the Cascade County Attorney's
Office charged Stamper with felony assault and assault on a peace officer, also a felony, on
April 6, 1998. Stamper was convicted by a jury on both counts. Thereafter, the District
Court sentenced Stamper to concurrent ten-year terms, with five years suspended, in the
Montana State Prison. The court also sentenced him to an additional three years for the use
of a weapon. However, in response to this Court's decision in State v. Guillaume, 1999 MT
29, 293 Mont. 224, 975 P.2d 312, the District Court amended Stamper's sentence to eliminate
2
the consecutive term for the use of a weapon.
¶5 On October 17, 2000, while his direct appeal was pending, Stamper filed a petition
for postconviction relief raising the following grounds for relief: (1) defense counsel's
ineffective representation denied Stamper the right to a fair trial; (2) defense counsel
ineffectively represented Stamper by failing to investigate possible mitigating circumstances
and witnesses, failing to have Stamper's mental health evaluated, and being unprepared for
trial; (3) defense counsel prohibited Stamper from calling his own witnesses; (4) defense
counsel failed to object during jury selection; and (5) defense counsel failed to object to the
jury pool. The District Court stayed Stamper's petition pending resolution of his appeal
before this Court. On October 10, 2000, Stamper filed a Motion for Voluntary Dismissal of
Appeal and this Court granted the motion the following day.
¶6 On September 10, 2001, the District Court issued its "Order Re Defendant's Petition
for Post-conviction Relief" wherein the court concluded that a hearing was not warranted.
Thereafter, the court dismissed all of Stamper's claims because they were conclusory. The
court also specifically found that two of Stamper's claims were procedurally barred. Stamper
appeals the District Court's order.
Standard of Review
¶7 We review a district court's denial of a petition for postconviction relief to determine
whether that court's findings of fact are clearly erroneous and whether its conclusions of law
are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9
(citation omitted). Discretionary rulings in postconviction relief proceedings, including
3
rulings relating to whether to hold an evidentiary hearing, are reviewed for abuse of
discretion. Hanson, ¶ 9.
Discussion
¶8 Whether the District Court erred in dismissing Stamper's Petition for Postconviction
Relief without holding an evidentiary hearing.
¶9 The District Court determined that a hearing on Stamper's Petition for Postconviction
Relief was not warranted because all of Stamper's claims were conclusory and without merit.
The court also determined that two of Stamper's claims were barred from consideration
pursuant to § 46-21-105(2), MCA, because they could be documented from the record and,
thus, should have been raised directly on appeal.
¶10 Stamper argues that the District Court erred by prematurely dismissing his petition for
postconviction relief without holding a hearing or making proper findings of fact and
conclusions of law. He maintains that he has never been provided with an adequate remedy
for review of his ineffective assistance claims, thus he requests that we order the District
Court to appoint new counsel to represent him and to hold a hearing on his claims.
¶11 Stamper's ineffective assistance of counsel claims include allegations that his trial
counsel was ineffective because counsel failed to investigate the various defenses available
to Stamper especially the defense of mental disease or defect. Stamper also contends that
trial counsel's failure to object during jury selection was intentional and should be considered
as "plain error." In addition, Stamper argues that his appellate counsel was ineffective for
4
failing to raise on appeal Stamper's ineffective assistance claims regarding trial counsel and
for advising Stamper to withdraw his appeal and file instead a petition for postconviction
relief in the District Court.
¶12 The State argues on the other hand that Stamper's contentions that he is entitled to a
hearing are meritless and that Stamper is attempting to cast the Montana postconviction
procedure as a broad discovery vehicle that allows probing for facts to establish a claim. The
State further argues that Stamper mentions the term "plain error" for the first time on appeal
and that Stamper fails to substantiate the application of "plain error" analysis to his claims.
¶13 Under § 46-21-201(1)(a), MCA, a district court may dismiss a postconviction petition
as a matter of law for failure to state a claim for relief. Postconviction relief is not available
on claims for relief that a petitioner could have raised on direct appeal. Section 46-21-
105(2), MCA. We have consistently applied the procedural bar in § 46-21-105(2), MCA,
to foreclose review in postconviction proceedings of issues which a petitioner could have
raised on direct appeal. See Gollehon v. State, 1999 MT 210, ¶¶ 50-51, 296 Mont. 6, ¶¶ 50-
51, 986 P.2d 395, ¶¶ 50-51, cert. denied, 529 U.S. 1041, 120 S.Ct. 1539, 146 L.Ed.2d 353
(2000); Mothka v. State (1997), 281 Mont. 175, 177, 931 P.2d 1331, 1333; State v. Baker
(1995), 272 Mont. 273, 280-81, 901 P.2d 54, 58-59, cert. denied, 516 U.S. 1125, 116 S.Ct.
940, 133 L.Ed.2d 865 (1996).
¶14 Generally, an alleged failure to object to the introduction of evidence, to the testimony
of a witness, or to prosecutorial misconduct at trial, has been deemed record-based and,
therefore, appropriate for direct appeal. State v. White, 2001 MT 149, ¶ 15, 306 Mont. 58,
5
¶ 15, 30 P.3d 340, ¶ 15 (citations omitted). But, when the record does not provide the basis
for the challenged acts or omissions of counsel, a defendant claiming ineffective assistance
of counsel more appropriately makes his claims in a petition for postconviction relief. State
v. Herrman, 2003 MT 149, ¶ 33, 316 Mont. 198, ¶ 33, 70 P.3d 738, ¶ 33 (citation omitted).
¶15 In Herrman, the defendant alleged that his counsel rendered ineffective assistance
during voir dire when counsel failed to develop information in the record demonstrating an
individual juror's bias and by failing to exercise challenges for cause against those jurors
expressing bias. Herrman, ¶ 20 | {
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON DARNELL GRANT, DOCKET NUMBER
Appellant, DC-0752-14-0237-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Aaron Darnell Grant, Washington, D.C., pro se.
Byron D. Smalley, Esquire, and Robert M. Mirkov, Esquire, Washington,
D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. We AFFIRM the initial decision, as MODIFIED by this Final
Order. We MODIFY the initial decision to clarify the administrative judge’s
analysis that the appellant failed to prove his due process claims, including his
argument that, in imposing the removal penalty, the deciding official considered
an aggravating Douglas factor—that the appellant’s lack of candor was
intentional—which was not specifically alleged in the proposal notice. The initial
decision, as modified by the Final Order, is the Board’s final decision in this
matter. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was a Criminal Investigator with the Internal Revenue
Service. By notice dated December 7, 2012, the agency proposed the appellant’s
removal on three charges: (1) being less than candid in a matter of official
business (two specifications); (2) failing to follow established procedures (four
specifications); and (3) failing to cooperate in an official investigation (one
specification). Initial Appeal File (IAF), Tab 12 at 52-55. After conducting a
hearing, the administrative judge found that the agency proved all of its charges
and specifications by preponderant evidence. IAF, Tab 80, Initial Decision (ID)
at 14-28. The administrative judge then considered the appellant’s affirmative
defenses, finding that the appellant failed to establish harmful procedural error,
3
denial of due process, retaliation for protected equal employment opportunity
(EEO) and/or MSPB activity, or discrimination on the bases of race and/or
gender. ID at 28-45. Finally, the administrative judge found nexus between the
appellant’s misconduct and the efficiency of the service and that the removal
penalty was within the bounds of reasonableness. ID at 45-51.
¶3 In a timely filed petition for review, the appellant contests virtually all of
the administrative judge’s findings. Petition for Review (PFR) File, Tab 1. 2 The
agency has filed a timely response, to which the appellant has replied. PFR File,
Tabs 13, 19. 3
ANALYSIS
¶4 The Board will grant a petition for review when it is shown that the initial
decision contains erroneous findings of material fact. 5 C.F.R. § 1201.115(a). To
be material, an alleged factual error must be of sufficient weight to warrant an
outcome different from that of the initial decision, and the petitioner must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. Id. The Board will not disturb
an administrative judge’s findings when he considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions of credibility. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). The
Board must give deference to an administrative judge’s credibility determinations
2
Among other matters, the appellant challenges the administrative judge’s
determinations as to retaliation for protected EEO activity and/or for filing an MSPB
appeal, discrimination on the bases of race and/or gender, and the reasonableness of the
penalty. PFR File, Tab 1 at 41-50. We affirm the findings on these issues in the initial
decision for the reasons stated therein.
3
Following the close of the record, the appellant filed a number of motions for leave to
file new evidence or to brief additional issues. See PFR File, Tabs 7, 14, 21, 25, 27, 29,
34, and 36. Because the appellant has not established that any of this evidence or
argument is new and material, or that good cause exists for any his motions, they are all
denied.
4
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing and can overturn such determinations only
when it has “sufficiently sound” reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶5 As discussed below, our review shows that the administrative judge
complied with the requirements of Crosby and Broughton in making detailed
findings of fact and credibility determinations. In addition, the administrative
judge explicitly relied on the demeanor of witnesses in assessing credibility. See
ID at 15, 18 & n.11. We find no sound basis for overturning any of the
administrative judge’s credibility determinations and findings of fact.
The administrative judge correctly found that the agency proved all of its charges
and specifications.
The administrative judge correctly found that the agency proved both
specifications of its charge that the appellant was less than candid in a matter
of official business.
¶6 Lack of candor and falsification are different, although related, forms of
misconduct, and the latter is not a necessary element of the former; thus, lack of
candor is a more flexible charge that need not require proof of intent to deceive.
Ludlum v. Department of Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002). But,
intent aside, lack of candor still “necessarily involves a degree of deception.” Id.
at 1284. It may involve lying under oath or failing to reply fully and truthfully,
such as failing to disclose something that, in the circumstances, should have been
disclosed in order to make the given statement accurate and complete. Id.
¶7 Both of the specifications under this charge relate to the appellant’s
responses under oath during questioning by agency investigators on April 30,
2010. The first specification related to the appellant’s negative response on that
date to the question of whether he had been involved in a car accident in his
government-owned vehicle (GOV). IAF, Tab 12 at 52, 218. The agency alleged
that this response was less than candid in that, on May 3, 2010, he told
investigators under oath that he had been involved in an accident in his GOV. Id.
5
at 52, 223. The second specification related to the appellant’s denial while under
oath on April 30 that he had lost his credentials in connection with the car
accident involved in the | {
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Cite as 2017 Ark. App. 108
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-1058
Opinion Delivered February 22, 2017
JASON BOYD
APPELLANT APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. DR-2014-165]
CANDACE CROCKER AND OFFICE HONORABLE PAMELA
OF CHILD SUPPORT HONEYCUTT, JUDGE
ENFORCEMENT
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Jason Boyd appeals the order of the Craighead County Circuit Court
imputing income to him and ordering him to pay child support based on that imputed figure.
Boyd contends that the circuit court erred as a matter of law in its application of the “net-
worth method” of calculating income for a self-employed payor.1 We affirm.
Boyd and appellee Candace Crocker were engaged in a relationship that led to the
birth of a child, G.B. Crocker filed a petition to establish paternity. Boyd admitted that he was
G.B.’s father, but the parties litigated the issues of visitation, custody, and child support. The
1
The Office of Child Support Enforcement filed a motion to intervene in the circuit
court pursuant to Arkansas Code Annotated section 9-14-210(d) because Crocker was
receiving services under Title IV-D of the Social Security Act. The circuit court granted the
motion to intervene. While OCSE is thus a named party in this appeal, it has not filed a brief.
Cite as 2017 Ark. App. 108
circuit court granted custody of G.B. to Crocker, set a visitation schedule for Boyd, and set
the amount of child support. Boyd does not appeal the court’s rulings on custody or visitation;
rather, his only issue on appeal pertains to the issue of child support.
In determining an appropriate amount of child support, courts are to refer to the family
support chart contained in Supreme Court Administrative Order Number 10, which provides
a means of calculating child support based on the payor’s net income. Browning v. Browning,
2015 Ark. App. 104, 455 S.W.3d 863; Cowell v. Long, 2013 Ark. App. 311. The definition
of income is intentionally broad and is designed to encompass the widest range of potential
income sources for the support of minor children. Montgomery v. Bolton, 349 Ark. 460, 79
S.W.3d 354 (2002); Stuart v. Stuart, 99 Ark. App. 358, 260 S.W.3d 740 (2007). Case law has
specifically held, however, that the definition of income for purposes of support may differ
from income for tax purposes. See Stuart, supra; Huey v. Huey, 90 Ark. App. 98, 204 S.W.3d
92 (2005); Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004); Brown v. Brown, 76
Ark. App. 494, 68 S.W.3d 316 (2002).
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the circuit court unless it is clearly
erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219; Brown v. Brown, 2014 Ark. App.
455, 440 S.W.3d 361. In reviewing a circuit court’s findings, we give due deference to that
court’s superior position to determine the credibility of the witnesses and the weight to be
accorded to their testimony. Brown, supra. Moreover, it is the province of the trier of fact to
resolve conflicting testimony. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000).
2
Cite as 2017 Ark. App. 108
As a rule, when the amount of child support is at issue, we will not reverse the circuit court
absent an abuse of discretion. Id. However, a circuit court’s conclusion of law is given no
deference on appeal. Id. With these standards in mind, we examine the evidence received by
the circuit court and its rulings on the issue of child support.
The circuit court had undisputed evidence that Boyd was a self-employed farmer for
purposes of calculating child support. With respect to Boyd’s income, Crocker took the
position at trial that Boyd lived an extravagant lifestyle and could pay a higher amount of child
support. Boyd, in contrast, contended that his monthly income for calculating child support
was only $3,500, based on his affidavit of financial means. To support their respective
positions, Crocker and Boyd presented evidence of Boyd’s bank records, tax returns, and
lifestyle.
Concerning Boyd’s bank records, bank statements from his family’s farming business,
dated March 2013 through December 2014, were introduced into evidence. Total monthly
deposits by Boyd into that bank account ranged from $3,500 to more than $10,000. Bank
records from his personal checking account, dating from February 2013 to December 2014,
reflected deposits ranging from $5,000 to nearly $25,000 per month and total withdrawals or
expenditures ranging from $4,900 to over $20,000 per month. In response to this evidence
of deposits and withdrawals from his accounts, Boyd did not disagree that he had deposited
$131,594 into his checking account in 2013 and had not paid taxes on the money. He also
did not disagree that an average figure of “about $14,731 per month” had been deposited into
his checking accounts during 2014. Although Boyd testified that the deposits into his account
3
Cite as 2017 Ark. App. 108
were “not all income,” he also stated that he did not “have a source of income other than this
Boyd Farms checking account.” Despite the wide range of deposits and the large number of
months in which deposits in excess of $10,000 were made, Boyd asked the court to find his
monthly income to be $3,500, based on his affidavit of financial means.
With respect to his tax returns, Boyd contended that his records for the last three years
showed that he had a negative income on his tax returns and that he had “not paid any taxes
lately.” The last time he recalled paying taxes was “probably four years ago.” Boyd claimed
losses of $285,000 in 2012 and “about $200,000” in each of the last two years, but he was not
certain whether the losses were “a personal loss or a Boyd Farm loss or what.” Citing his 2012
Arkansas income tax form, Boyd claimed as his total income negative $252,000. He was
“honestly not sure” whether he had told the IRS that his income was a negative $200,000 to
$300,000 per year. He further asserted that he “[did]n’t deal with the accounting” and hadn’t
“had to pay in any income taxes in the last two years.” He did not “recall reporting [his]
income to Social Security.”
The court also heard evidence about Boyd’s lifestyle. Boyd testified that he was living
in a house that he had just built for approximately $55,000 on land that he owned. He bought
a new truck in 2014 for $50,000 and had an $800 per month car payment. He recently sold
a boat for $51,500 and recently bought a camper and an ATV for $20,000 and $18,000
respectively. He sold a four-wheeler in 2014 for $7,000, and he sold his house in Paragould
for $275,000 “because [he] couldn’t afford the mortgage.” Boyd also admitted that he used
his personal checking account to pay expenses on things like a housekeeper, truck accessories,
4
Cite as 2017 Ark. App. 108
boat insurance, lake visits and hotel rooms, payments on his several vehicles, construction of
his house, and, eventually, child-support payments of $400 per month.2
Based on the evidence presented at the hearing, the circuit court imputed monthly
income of $11,105 to Boyd and set his child-support payments at $1,606 per month. Boyd
timely appealed the circuit court’s ruling, and he now argues that the circuit court erred in
the methodology used to calculate his income.
On appeal, Boyd argues that the circuit court committed reversible error in calculating
his child-support obligation as a self-employed person. Pursuant to Administrative Order No.
10(III)(c), | {
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919 F.2d 736
Fischerv.Stalder*
NO. 90-4338
United States Court of Appeals,Fifth Circuit.
NOV 05, 1990
1
Appeal From: W.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
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398 So.2d 10 (1981)
Stephen C. JONES
v.
MFA MUTUAL INSURANCE COMPANY et al.
No. 8154.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1981.
Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-relator.
Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-respondent.
*11 John G. Williams, Natchitoches, Harry A. Johnson, Shreveport, for defendants-respondents.
Before GUIDRY, DOUCET and LABORDE, JJ.
LABORDE, Judge.
On November 14, 1980, we granted a writ of certiorari in this case on the application of Standard Fire Insurance Company of Alabama (Standard Fire) to review the correctness of a ruling of the district court overruling Standard Fire's exceptions of jurisdiction over the person, improper service of process, improper venue, and improper cumulation of actions.
STATEMENT OF THE CASE
On February 20, 1980, Luther Thomas Jones, a resident of Alabama, was fatally injured in a one-vehicle accident on Louisiana Highway 35, in Vermilion Parish. Jones was a guest passenger in the vehicle when the driver lost control of the vehicle causing it to overturn. At the time of the accident, the vehicle was owned by Bobby G. Goss, a resident of Mississippi, and driven by Bonnie T. Williams, a resident of Alabama.
Stephen C. Jones, a resident of Sabine Parish, Louisiana, the plaintiff in the original action, filed suit in Sabine Parish for the wrongful death of Luther Thomas Jones. Subsequently, Edna Lee Jones Oswalt, the mother of the deceased and a resident of Alabama, intervened in the suit filed by Stephen C. Jones, naming Standard Fire Insurance Company of Alabama, Luther Thomas Jones's uninsured motorist carrier, as an additional defendant. Service of process was made on the Louisiana Secretary of State and on Standard Fire by certified mail.
It is stipulated that Standard Fire Insurance Company of Alabama is a foreign insurance company domiciled in Alabama and is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana, nor does it have any agents or employees living or working in Louisiana.
Standard Fire, as defendant in intervention, filed exceptions of lack of jurisdiction over the person, improper service of process, improper venue and improper cumulation of actions. It seeks supervisory relief from the judgment of the trial court overruling these exceptions.
SUPERVISORY RELIEF
The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La.Const. 1974, Art. 5, § 10. Appellate courts will not exercise such jurisdiction unless an error in the trial court's ruling will cause the petitioner irreparable injury or an ordinary appeal will not afford an adequate remedy. Supervisory Powers of the Louisiana Courts of Appeal, Albert Tate, Jr., 38 Tul.L.Rev. 429.
Generally, the courts of appeal deny writ applications complaining of the overruling of exceptions on the basis that the relator may win on the merits or may obtain adequate relief on appeal after trial on the merits. However, this policy is not absolute, for the appellate court may, in its discretion, grant applications for supervisory writs in the interest of efficient judicial administration and fundamental fairness to the litigants. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978).
ON THE MERITS
Standard Fire has been joined as a defendant to this suit pursuant to the Louisiana Direct Action Statute, LSA-R.S. 22:655. However, this statute merely provides a right of action against insurance companies. Therefore, an independent basis of jurisdiction must exist before a non-resident insurer can be sued under the Direct Action Statute. See Morse v. Hartford Casualty Ins. Co., 301 So.2d 741 (La.App. 3rd Cir. 1974); McKeithen v. M/T Frosta, 435 F.Supp. 572 at 576 (U.S.D.Ct., La.1977). In Morse, supra, at page 743 we stated:
"The quoted statute is not jurisdictional. Instead the cited provisions deal with venue. In Davis v. Hanover Insurance Company, 289 So.2d 292 (La.App. 3 Cir. *12 1974), we discuss the venue granted by LSA-R.S. 22:655 holding that C.C.P. art. 42 did not incorporate the exceptions provided in C.C.P. arts. 71-83.
... The Direct Action Statute is not a legislative grant of jurisdiction. It merely gives claimant a direct right of action and a method for enforcing their right against liability insurers when they have a cause of action against the insured, or where the insured would be liable but for an immunity personal to him. Weingartner v. Fidelity Mutual Insurance Company, 205 F.2d 833 (5th Cir. 1953); Taylor v. Fishing Tools, Inc., 274 F.Supp. 666 (U.S. D.C.La., E.D.1967). There must be an independent legislative grant of jurisdiction which satisfies due process requirements of "minimum contacts", together with service of process, before a claimant may utilize this right of direct action against the liability insurer."
It is stipulated that Standard Fire is a foreign insurance company domiciled in Alabama. It is further stipulated that Standard Fire is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana and that it has no agents or employees in Louisiana. It is also stipulated that Standard Fire's insured, Luther Thomas Jones, was a resident of Alabama and that the policy of insurance was issued and delivered in the state of Alabama.
Jurisdiction over the person is based on service of process. LSA-C.C.P. art. 6. Louisiana's "longarm" statute, LSA-R.S. 13:3201[1], confers personal jurisdiction over non-residents for causes of action arising under the circumstances set forth in the cited statute. In light of the stipulated facts, we conclude that the cause of action asserted by intervenor does not arise under any of the circumstances set forth in the cited statute and therefore such statute cannot be relied upon as conferring in the courts of Louisiana personal jurisdiction over Standard Fire.
Neither can personal jurisdiction over Standard Fire be based on the "Louisiana Motorist Longarm Statute", LSA-R.S. 13:3474. This statute provides that a non-resident and his insurer, by operating a motor vehicle on the public highways of Louisiana, are deemed to have submitted to the jurisdiction of this state and to have appointed the Secretary of State as their agent for service of process. This statute is inapplicable to the instant case because it has been stipulated that Standard Fire's insured, Luther Thomas Jones, was not the operator of the vehicle involved, but a guest passenger.
Furthermore, the record reflects that there has been no "minimum contacts" between Standard Fire and the state of Louisiana to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977). Standard Fire has had no contact whatever with the state of Louisiana. Its only contact is that it insures persons whom it is foreseeable will travel to Louisiana and will be involved in litigation in Louisiana. The United States Supreme Court in World-Wide *13 Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), held that "foreseeability" alone does not provide sufficient minimum contacts to support jurisdiction under the Due Process Clause.
For the above reasons the writ of certiorari issued herein is made peremptory and the judgment of the Eleventh Judicial District Court dated October 23, 1980, overruling Standard Fire's exception to jurisdiction is reversed and set aside and such exception is hereby ordered sustained and accordingly, it is further ordered, adjudged and decreed that plaintiff in intervention's suit against Standard Fire Insurance Company of Alabama is dismissed.[2] Costs in this court are taxed to plaintiff in intervention, Edna Lee Jones Oswalt.
WRIT MADE PEREMPTORY, JUDGMENT OVERRULING EXCEPTION TO JURISDICTION REVERSED.
NOTES
[1] § 3201. Personal jurisdiction over nonresidents
"A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
Amended by Acts 1977, No. 734, § 1, eff. July 21, 1977.
(e) having an interest in, using or possessing a real right or immovable property in this state; or
(f) non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this | {
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34 Cal.Rptr.3d 927 (2005)
133 Cal.App.4th 605
LISA I., Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Phillip V., Real Party in Interest.
No. B182219.
Court of Appeal, Second District, Division Eight.
October 18, 2005.
*928 Guy C. Iversen for Petitioner.
*929 No appearance for Respondent.
Glen H. Schwartz, a Law Corporation, Glen H. Schwartz, Encino, and Larry M. Hoffman for Real Party in Interest.
RUBIN, J.
INTRODUCTION
We are called upon to consider whether a claimed biological father of a child born within 300 days of the mother's divorce from another man has standing under Family Code section 7630 to declare his paternity of that child.[1] The child was conceived while the mother was married but separated from her husband, was born after the mother's divorce, and is being raised by the mother and ex-husband, along with their two other children. The claimed biological father contends that applying the statutory paternity presumptions and standing requirements to deprive him of the opportunity to establish his paternity would violate a liberty interest protected by the United States Constitution.
We conclude that California's statutory presumptions and standing rules do not violate the biological father's constitutional rights where the biological father has no existing relationship with the child. Accordingly, we grant the mother's writ petition and direct the trial court to grant her motion to quash the paternity action.
PROCEDURAL AND FACTUAL BACKGROUND
Lisa, the petitioner here, and Guy were married in October 1993; by 1997, they had two sons. In 2003, while she was separated from Guy, Lisa became pregnant with Dane. Dane was born in May 2004, almost six months after Lisa's divorce from Guy. Dane was given Guy's surname. In November 2004, real party in interest Phillip, who has never been married to Lisa, filed a petition against her to declare his paternity of Dane. Phillip asked for rulings on child support, visitation, joint custody, attorneys' fees, and that Dane's last name be changed to Phillip's surname.
In his supporting declaration, Phillip stated the following: (1) He met Lisa in September 2001, they developed a romantic relationship, and she became pregnant in August 2003; (2) He and Lisa talked about becoming a blended family, but their relationship disintegrated; (3) Lisa did not advise him when she gave birth in May 2004; (4) He learned of the birth by calling the hospital, and did not have an opportunity to sign a declaration of paternity; (5) A month after Dane's birth, he gave Lisa a letter stating he wanted a relationship with the child and would pay for Dane's insurance and support.
Lisa moved to quash the paternity petition, contending only a statutorily presumed father has standing to bring an action to declare his paternity and that Phillip did not qualify as a presumed father. Lisa argued her ex-husband Guy was the only presumed father because Dane was conceived during her marriage to Guy and born within 300 days of her divorce from Guy the period specified by the Family Code.
In support of the motion, Lisa provided her declaration and that of two other persons. Lisa's declaration stated the following: (1) Dane was conceived while she and her husband Guy were still married; (2) She and Guy have two other young sons; *930 (3) She and Guy were divorced on October 30, 2003; (4) Her relationship with Phillip started during her separation from Guy, it ended in June 2003, and she and Phillip were apart during the summer of 2003; (5) Phillip never volunteered to provide any type of emotional or financial support during her pregnancy or after Dane was born; (6) Except for a couple of short visits at her mother's home in May and June 2004, Phillip made no efforts to visit Dane or inquire about him; (7) Phillip actively ignored her when they encountered each other on several occasions during the pregnancy, and he ignored Lisa and Dane during encounters after Dane's birth; (8) Phillip never executed or asked her to execute a declaration establishing paternity; (9) She and her children, including Dane, are supported by Guy and her father; (10) She and her children, including Dane, regularly visit and stay with Guy at his home, and together they function as a family regularly attending parties, sporting events, social gatherings, and other events, as well as planning holidays and vacations; (11) Guy has brought Dane into his home and regularly takes care of him; and (12) Dane's last name is Guy's family name, which is listed in a variety of school, medical, and financial records.
The declarations filed by Lisa's friends stated they have consistently seen Guy care for and support Lisa and Dane, and have seen Dane's baby things in every room of Guy's house, which one of the friends referred to as "Guy and Lisa's house."
The trial court denied Lisa's motion to quash. The court found denying Phillip standing to establish paternity would violate his constitutional right to due process. The court also granted Phillip's request that Lisa and Dane undergo genetic testing.
Lisa filed a petition for writ of mandate challenging the denial of her motion to quash and asked for a stay of all proceedings, including the order requiring genetic testing. We stayed the proceedings and the testing, and issued an order to show cause.
DISCUSSION
The threshold issue in this case is whether the Family Code grants Phillip, the claimed biological father, standing to pursue his paternity action against Lisa. If not, then we must decide whether applying the statutory paternity presumptions and standing requirements would violate a liberty interest protected by the federal Constitution's due process clause.
1. Phillip Has No Standing Under Section 7630.
Section 7630, part of the Uniform Parentage Act, lists those persons who have standing to file an action to determine paternity. Subdivision (a) provides, in relevant part, "A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, may bring an action ... [a]t any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611." Subdivision (b) provides, "Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611." Thus, the essential inquiry in determining a man's standing under section 7630 is whether he is a "presumed father" under the applicable subdivision of section 7611.
Section 7611 lists the conditions under which a man will be considered the presumed father of a child. Only subdivisions *931 (a) and (d) are potentially relevant here. Under subdivision (a), a man is presumed to be the natural father of a child if "[h]e and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court." Under subdivision (d), a man is presumed to be the natural father if "[h]e receives the child into his home and openly holds out the child as his natural child."[2]
"The presumptions arising under section 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence. [Citation.] The [Uniform Parentage] Act, however, restricts standing to challenge the presumption of a husband's paternity to the child, the child's natural mother, or a presumed father. [Citations.]5" Footnote 5 reads in part as follows: "[S]ection 7630, subdivision (a), grants standing only to the child, the child's mother, or a man presumed to be the child's father as a result of his marriage to the child's mother to bring an action to declare the existence or nonexistence of the father and child relationship presumed as a result of the mother's marriage to the presumed father. . . . [¶] Section 7630, subdivision (b), by contrast, allows `[a]ny interested party' to bring an action to determine the existence or nonexistence of the father and child relationship presumed under subdivision (d) of section 7611. . . ." (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 938, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (Dawn D.), italics omitted.)
The paternity presumptions are generated by society's interest in preserving the *932 integrity of the family and legitimate concerns for the welfare of the child. The state has an "`"interest in preserving and protecting the developed parent-child . . . relationships which give young children social and emotional strength and stability."'" (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932, quoting Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116-1117, 39 Cal.Rptr.2d 535; see also Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1442, 37 Cal | {
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Cite as 2016 Ark. App. 617
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-16-742
LATISHA BANE AND JOSEPH BANE Opinion Delivered: DECEMBER 14, 2016
APPELLANTS
APPEAL FROM THE CONWAY
V. COUNTY CIRCUIT COURT
[NO. 15JV-15-21]
ARKANSAS DEPARTMENT OF HONORABLE TERRY SULLIVAN,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
Appellant Latisha Bane and appellant Joseph Bane appeal separately from the
termination of their parental rights to their fourteen-year-old daughter N.B., twelve-year-
old son A.B.1, and nine-year-old daughter A.B.2. On appeal, Latisha argues that she
received improper service of process, and further argues that the case should not have gone
forward without a determination of whether an attorney ad litem should have been
appointed for her. Latisha also challenges the sufficiency of the evidence to support the
termination of her parental rights. Joseph’s counsel has filed a no-merit appeal and a motion
to withdraw, stating that there is no issue of arguable merit to advance on appeal and that
she should be relieved of counsel. We affirm both appeals, and we grant Joseph’s counsel’s
motion to be relieved.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must
Cite as 2016 Ark. App. 617
exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;
these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)
(Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
Clear and convincing evidence is that degree of proof that will produce in the fact-finder a
firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark.
633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that
the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v.
Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake has been made. Yarborough
v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
Latisha and Joseph lived with their three children in a trailer in Hattiesville, Arkansas.
In 2011, Latisha suffered a stroke, which rendered her unable to care for herself. Shortly
thereafter, Joseph was appointed as Latisha’s permanent guardian. The order appointing
Joseph as guardian stated that the guardianship was necessary due to Latisha’s lack of capacity
to make decisions for her health or safety, and that Latisha’s impairments were not expected
to improve. After his appointment as guardian, Joseph became the caretaker of both Latisha
and the children.
These proceedings began on March 3, 2015, when appellee Arkansas Department of
Human Services (DHS) exercised an emergency hold on all three children. According to a
caseworker’s affidavit, Joseph had been arrested on misdemeanor warrants and, as a result of
Latisha’s medical condition, she was unable to care for the children. Police investigators
2
Cite as 2016 Ark. App. 617
informed the caseworker that Joseph had admitted that he supplied alcohol to his oldest
daughter, N.B., who was then twelve years old, as well as to a twenty-year-old woman.
Joseph had further acknowledged to police that he witnessed a sexual assault by the woman
on his daughter N.B., but that he had failed to report the incident or cooperate in the
investigation. The police investigator stated that Joseph would be charged with contributing
to the delinquency of a minor and endangering the welfare of a minor, and that it was
uncertain how long Joseph would remain in jail. Based on these allegations DHS filed a
motion for emergency custody of all three children, and on March 6, 2015, the trial court
entered an ex parte order for emergency custody finding that immediate removal of the
children was necessary to protect their health and safety.
On June 22, 2015, the trial court entered an order adjudicating the children
dependent-neglected. The adjudication was based on the parents’ stipulation of neglect
based on Joseph’s failure to take reasonable action to protect his twelve-year-old daughter
from sexual abuse or to report the abuse after he observed it. At the time of the adjudication
the parents had not participated in the case despite numerous attempts by a caseworker to
contact the parents and develop a case plan. The goal of the case was reunification. The
trial court ordered DHS to offer services toward reunification and ordered the parents to
cooperate with DHS and comply with the case plan.
A review order was entered on September 30, 2015, and the goal of the case
continued to be reunification. Trina Yerby appeared at the review hearing as counsel for
Latisha and Joseph. In the review order, the trial court found that DHS had made reasonable
efforts to provide family services including parenting classes, drug-and-alcohol assessments,
3
Cite as 2016 Ark. App. 617
psychological evaluations, home visits, counseling, transportation, and visitation with the
children. The trial court found that Latisha had minimally complied with the case plan, in
part due to her disability. The trial court also found that Joseph had minimally complied
with the case plan, stating that he lived in a structurally unsound and filthy home, was
unemployed, was abusing pain medication, had tested positive for opiates, and had stopped
attending parenting classes. The trial court noted that the parents had visited the children
only five times since the children were taken into DHS custody.
Another review order was entered on January 7, 2016, at which time the case goal
was changed to termination of parental rights and adoption. Trina Yerby appeared at the
hearing as counsel for the parents. In that order, the trial court again found that both parents
had minimally complied with the case plan. The trial court found that Joseph had not
completed parenting classes, was discharged from counseling for failure to participate, and
had tested positive for benzodiazepines without a prescription. The trial court stated that
Joseph had made no progress at all on cleaning or repairing the home, that there were huge
holes in the floor, and that there were multiple animals living there causing feces and urine
to accumulate and strong odors to permeate the trailer. The trial court noted that the parents
had attended only eight visits with the children since the case had begun.
DHS filed a petition to terminate both parents’ parental rights on March 1, 2016.
The termination hearing was held on May 5, 2016. Trina Yerby appeared at the termination
hearing as counsel for the parents.
On May 23, 2016, the trial court entered an order terminating both Latisha’s and
Joseph’s parental rights to their three children. The trial court found by clear and convincing
4
Cite as 2016 Ark. App. 617
evidence that termination of parental rights was in the children’s best interest, and the court
specifically considered the likelihood that the children would be adopted, as well as the
potential harm of returning them to the custody of their parents as required by Arkansas
Code Annotated section 9-27-341(b)(3)(A)(i)&(ii) (Repl. 2015). The trial court also found
clear and convincing evidence of the following four statutory grounds under subsection
(b)(3)(B):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected
and has continued to be out of the custody of the parent for twelve (12) months and,
despite a meaningful effort by the department to rehabilitate the parent and correct
the conditions that caused removal, those conditions have not been remedied by the
parent.
....
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve
(12) months, and the parent has willfully failed to provide significant material support
in | {
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256 Wis. 318 (1950)
TOLLEFSON, Appellant,
vs.
GREEN BAY PACKERS, INC., Respondent.
Supreme Court of Wisconsin.
January 10, 1950.
February 7, 1950.
*319 For the appellant there was a brief by Hanaway & Byrnes, attorneys, and Alex Wilmer of counsel, all of Green Bay, and oral argument by Charles T. Hanaway.
For the respondent there was a brief by Martin, Clifford, Dilweg, Warne & Duffy, and oral argument by G. F. Clifford and George P. Polnaszek, all of Green Bay.
GEHL, J.
Plaintiff, Charles Tollefson, a professional football player, had played football with defendant, Green Bay Packers, Inc., in the years 1944 and 1945. On May 4, 1946, *320 the parties entered into a contract, which is a printed form with insertions in the handwriting of E. L. Lambeau, manager of defendant corporation. The pertinent provisions of the contract are these:
"The Green Bay Packers herein is called the club, and Chas. Tollefson, of Green Bay, Wis. herein is called the player.
"The club is a member of the National Football League. As such, and jointly with the other members of the league, it is obligated to insure to the public wholesome and high-class professional football by defining the relations between club and player, and between club and club.
"In view of the facts above recited the parties agree as follows:
"1. The club will pay the player a salary for his skilled services during the playing season of 1946, at the rate of $300 dollars for each regularly scheduled league game played, provided he has not been released by the club prior to the playing of the first league game. For all other games the player shall be paid such salary as shall be agreed upon between the player and the club. As to games scheduled but not played, the player shall receive no compensation from the club other than actual expenses.
"Minimum $3,600 for season.
"2. The salary above provided for shall be paid by the club as follows:
"Seventy-five per cent (75%), after each game and the remaining twenty-five per cent (25%), at the close of the season or upon release of the player by the club.
"3. The player agrees that during said season he will faithfully serve the club, and pledges himself to the American public to conform to high standards of fair play and good sportsmanship. . . .
"7. This contract may be terminated at any time by the club giving notice in writing to the player within forty-eight (48), hours after the day of the last game in which he has participated with his club. . . .
"13. In case of dispute between the player and the club the same shall be referred to the commissioner of the National *321 Football League, and his decision shall be accepted by all parties as final.
"14. Verbal contracts between club and player will not be considered by this league, in the event of a dispute."
The provision "Minimum $3,600 for season" was inserted in the printed form in the handwriting of the manager, E. L. Lambeau. Plaintiff, Tollefson, practiced with the team, appeared in an intersquad game, and played in three practice games and a regular league game. He also appeared in uniform and on the bench for the Los Angeles Rams game, the second scheduled.
Plaintiff was not given formal notice of his discharge; it came to him by an article published in a newspaper after the second league game played, reporting that waivers had been asked by the defendant upon him. He understood that a request for waivers and action taken by defendant, as reported in the newspaper, meant that he had been discharged. Following his release he reported for practice on a number of occasions, obviously as an offer to continue to perform. On those occasions the manager was present but he had no conversation with him. On the second or third day of practice after his release, while on the practice field, he talked with one of the coaches, but the subject of his conversation does not appear.
He was paid $900 for the three practice games played and the two league games played before his discharge. He seeks to recover $2,700, the difference between the amount paid him and the $3,600 provided in the inserted provision.
Defendant now makes no claim that plaintiff should have proceeded under the provisions of paragraph 13 of the complaint.
Plaintiff submitted his case solely upon the theory that the provision, "Minimum $3,600 for season," entitles him to payment of that amount regardless of full performance by him. The trial court disagreed and therefore granted defendant's motion for nonsuit.
*322 Plaintiff contends that the inserted provision "Minimum $3,600 for season," which will be referred to hereinafter as the "minimum clause," entitles him to that amount. Defendant does not agree and in its answer sets up the additional defense that plaintiff was discharged for failure to properly perform.
Unquestionably, absent the minimum clause, under the provisions of paragraph 7 of the contract, the defendant might have released plaintiff at any time, with or without cause. Although it was not definitely known when the contract was made how many practice games would be played, the amount stated in the minimum clause appears to have been determined from the fact that it would at least approximately compensate plaintiff for the games scheduled and planned to be played. If plaintiff had been permitted to perform fully he would have been entitled to the precise amount stated in the minimum clause. This, and the mere fact that it was inserted, would indicate that it was intended that it should serve some purpose. It is our view that its terms are inconsistent with the provisions of paragraph 7 of the contract. There is applicable the rule:
"Where written provisions are inconsistent with printed provisions [of a contract], an interpretation is preferred which gives effect to the written provisions." Restatement, 1 Contracts, p. 328, sec. 236 (e). See also 4 Williston, Contracts (rev. ed.), p. 3281, sec. 1143; Atlanta Terra Cotta Co. v. Goetzler, 150 Wis. 19, 136 N. W. 188.
If, as defendant contends, plaintiff would have been entitled to the $3,600 only in case he completed the season's play, there would have been no reason for the insertion of the minimum clause.
Before the contract was executed plaintiff and defendant's coach discussed the fact that the former had had an offer to play with another professional football team. No doubt that fact prompted plaintiff to insist upon some form of relative *323 security and induced defendant to agree that he should have it.
We conclude that the minimum clause must be construed to mean that, unless discharged for cause, plaintiff was entitled to the full sum of $3,600 whether he participated in the games played or not.
Defendant argues that, upon plaintiff's construction, even though plaintiff had not performed or offered to perform to the best of his ability, he might still have been entitled to the full amount of the minimum clause. That is not correct. An employer may discharge an employee for cause at any time without incurring liability even though the employee is engaged for a definite term as plaintiff was here. 35 Am. Jur., Master and Servant, p. 470, sec. 36.
We conclude that plaintiff was entitled to the amount stated in the minimum clause unless it were shown that there was cause for his discharge. Defendant was entitled to that defense. Plaintiff's motion for summary judgment was properly denied. The court was in error in granting defendant's motion for nonsuit.
By the Court. The order denying plaintiff's motion for summary judgment is affirmed. The judgment granting defendant's motion for nonsuit is reversed, and the cause is remanded for a new trial.
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271 P.3d 154 (2011)
247 Or. App. 353
TAYLOR
v.
NOOTH.
No. A147088.
Court of Appeals of Oregon.
December 14, 2011.
Affirmed without opinion.
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2 F.Supp.2d 388 (1997)
Marilyn J. BARTLETT, Plaintiff,
v.
NEW YORK STATE BOARD OF LAW EXAMINERS; James T. Fuller, Individually and as Executive Secretary, New York State Board of Law Examiners; John E. Holt-harris, Jr., Individually and as Chairman, New York State Board of Law Examiners; Richard J. Bartlett, Individually and as Member, New York State Board of Law Examiners, Laura Taylor Swain, Individually and as Member, New York State Board of Law Examiners, Charles T. Beeching, Jr., Individually and as Member, New York State Board of Law Examiners and Ira P. Sloane, Individually and as Member, New York State Board of Law Examiners, Defendants.
No. 93 Civ. 4986(SS).
United States District Court, S.D. New York.
August 15, 1997.
*389 Jo Anne Simon, Patricia Ballner, Brooklyn, New York, for Plaintiff.
Dennis Vacco, Attorney General of the State of New York, New York, NY, Judith T. Kramer, Rebecca Ann Durden, Assistant Attorneys General, for Defendants.
MEMORANDUM OPINION AND ORDER
SOTOMAYOR, District Judge.
Defendants move, pursuant to Fed. R.Civ.P. 59(e) and 60(b), for amendment of the judgment or relief from the decision and order of this Court rendered on July 3, 1997 (the "Opinion"), familiarity with which is assumed. For the reasons to be discussed, defendants' motion is DENIED.
I. The Court's Use of The EEOC Regulations Under Title I of the ADA
A. The Appropriateness of Employing Title I Regulations Generally
In its Opinion, the Court used the regulations promulgated by the EEOC under Title I of the Americans with Disabilities Act (the "ADA" or the "Act") to elucidate and expand upon the Court's understanding of the concept of "substantial limitation" as it relates to defining who is disabled under the Act. The Court employed the Title I regulations for this purpose even though plaintiff's claim was brought under Titles II and III of the Act, and the Department of Justice, not the EEOC, is charged with promulgating regulations pursuant to those titles. While neither party directly challenges the Court's use of the EEOC regulations and interpretive guidance, the tenor of the defendants' instant motion for reconsideration implies that the use of the Title I regulations was somehow inappropriate.[1] The Court disagrees for the following reasons.
Initially, one must understand, how, if at all, regulations under Title I and Title II differ, keeping in mind that the statutory definition of "disabled" is the same for all titles of the Act and that no agency is imbued with dispositive authority to state what the term means. The only difference between the Title I regulations promulgated by the EEOC and the Title II regulations *390 promulgated by the Justice Department is that the EEOC goes to much greater lengths to explore the concept of substantial limitation, particularly as that concept relates to the major life activity of working. Both sets of regulations define a disability according to the statutory definitionas an impairment that substantially limits any major life activity. Both regulations list the following examples of major life activities: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (Title I regulation) (emphasis added); 28 C.F.R. § 36.104(2) (Title II regulation) (emphasis added).
Clearly, then, the Department of Justice in promulgating rules under Title II contemplated an assessment of a plaintiff's impairment under the major life activity of working. The only question is whether the Department of Justice regulations under Title II forecloses application of the EEOC's interpretation that substantial limitation in the context of the major life activity of working should be measured by a different reference populationby a comparison to "the average person with comparable training, skills and abilities" 29 C.F.R. § 1630.2(j)(1)(ii) rather than "the average person in the general population." 29 C.F.R. § 1630.2(j)(3)(i).[2] I hereby reaffirm my prior conclusion that the EEOC's interpretation of substantial limitation in the context of the major life activity of working is both a part of, and consistent with, the Department of Justice's regulations and the purpose of the ADA.
I reach this conclusion in part because of the cooperative spirit in which the regulations were promulgated. See, e.g., I Henry H. Perritt, Jr., Americans With Disabilities Act Handbook § 1.9 (3d ed.1997) (discussing the fact that the Justice Department and EEOC regulations were issued jointly, as required by § 107(b) of the ADA). In addition, the Department of Justice's own "[r]ule of interpretation," under Title II provides: "Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 ... or the regulations issued by Federal agencies pursuant to that title." 28 C.F.R. § 36.103. Notably, the Rehabilitation Act now looks to the standards established by Title I of the ADA and the regulations promulgated thereunder. See 29 U.S.C. § 793(d) (providing that "[t]he standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act").
In its analysis of this "rule of interpretation," the Justice Department has even more pointedly written: "Title II, however, also incorporates those provisions of titles I and III of the ADA that are not inconsistent with the regulations implementing section 504. Therefore, this part also includes appropriate provisions derived from the regulations implementing those titles." 28 C.F.R. § 35.103, App. A, reprinted in, Arlene B. Mayerson, ed., Americans With Disabilities Act Annotated: Legislative History, Regulations & Commentary Title II - 25 (1997); see also H.R.Rep. No. 101-485 at 49-51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-74 ("Title II should be read to incorporate provisions of titles I and III which are not inconsistent with the regulations implementing Section 504 of the Rehabilitation Act of *391 1973.... However, nothing in the other titles should be construed to lessen the standards in the Rehabilitation Act regulations which are incorporated by reference in Section 204."); U.S. Equal Employment Opportunity Commission & The Department of Justice, Americans with Disabilities Act Handbook I-3 (1992) ("It is the intent of Congress that the regulations implementing the ADA be comprehensive and easily understood. Part 1630 [promulgated by the EEOC], therefore, defines terms not previously defined in the regulation implementing section 504 of the Rehabilitation Act, such as "substantially limits ..." Where possible, part 1630 establishes parameters to serve as guidelines in such inquiries.").
From these two statements, it is self-evident that the Department of Justice's own "rule of interpretation" sanctions the use of regulations from a different title to help lend meaning to a concept that is not addressed in its own regulations, see note 2, supra, provided that the other regulations do not impose or permit a "lesser standard." Here, the Title I regulation merely determines the appropriate characteristicscomparable training, skills, and abilitiesof the persons within the general population against which a substantial limitation is measured in the context of the major life activity of working. The EEOC's conclusion, therefore, does not provide a lesser standard. Moreover, it is perfectly consistent with the Rehabilitation Act, as well as Title II and the remedial nature of the ADA as a whole, and has a sound basis in logic. Thus, the Court's invocation of the Title I regulations as a meaningful interpretive tool was consistent with general rules of statutory interpretation. See, e.g., Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28, 31 (3d Cir.1995) (explaining that there is "a basic tenet of statutory construction, equally applicable to regulatory construction, that a statute `should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'") (citation omitted); Bower v. Federal Express Corp., 96 F.3d 200, 209-10 (6th Cir.1996) (arguing that the better choice is to use another regulation for interpretative guidance rather than interpret a term "without regulatory assistance"); Yeskoo v. United States, 34 Fed.Cl. 720, 734 (1996) (providing that "[i]n construing a statute, courts should attempt not to interpret a provision such that it renders other provisions of the same statute inconsistent, meaningless or superfluous. ... The meaning of statutory language depends on context, and a statute should be read as a whole.... Therefore, when reviewing the statute and regulations at issue in this case, this court must construe each part of a statute in connection with all the other sections, so as to produce a harmonious whole. Moreover, common sense requires that the same words used twice in the same act should have the same meaning."); United States v. Hayashi, 22 F.3d 859 | {
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440 P.2d 772 (1968)
Dorothy A. TAYLOR, C. Robert Taylor, and Theodore N. Taylor, Plaintiffs In Error,
v.
COLORADO STATE BANK OF DENVER, Colorado, Defendant In Error.
No. 22068.
Supreme Court of Colorado, En Banc.
May 13, 1968.
Robert E. Holland and H. A. Nikkel, Denver, for plaintiffs in error.
Winner, Berge, Martin & Camfield, Denver, for defendant in error.
MOORE, Chief Justice.
The parties appear here in the same order as they appeared in the trial court, and we shall refer to them respectively as plaintiffs and defendant, or by name. Plaintiffs are here on writ of error to review a judgment of the district court, entered on the defendant's motion at the close of plaintiffs' evidence, dismissing their action against the defendant the Colorado State Bank of Denver.
In the plaintiffs' complaint three groups of defendants were named, and it was alleged that defendants Alfred Gray and Virginia Gray, individually and doing business, in the sale of used cars, as Spot Motors, fraudulently obtained the sum of $12,315 from plaintiffs' special account in the Colorado State Bank of Denver. Plaintiffs further alleged that defendant Western Surety Company issued surety bonds totalling $8,500 to indemnify any persons against losses suffered by reason of the Grays' and the Spot Motors' fraudulent acts. Alfred Gray confessed judgment on the plaintiffs' claim. Plaintiffs' motion for summary judgment against Virginia Gray, individually and doing business as Spot Motors, and the Western Surety Company was granted by the district court. The *773 Grays, Spot Motors, and Western Surety Company are not parties to the present writ of error.
At the trial to the court, plaintiff Dorothy Taylor testified that she established a special account in the Colorado State Bank in which she deposited the sum of $12,500. She also testified that, pursuant to her agreement with Alfred Gray, the latter could draw upon this account to finance the purchase by him of used cars for Spot Motors. Gray agreed with plaintiffs that his drafts on the account would identify the make, year, and serial number of each vehicle purchased, and that an envelope containing the vehicle's title certificate would accompany each draft. The agreement did not involve the creation of an encumbrance upon the vehicle purchased by Gray to secure the repayment of moneys advanced by plaintiffs. Rather, the defendant bank was to take possession of the title certificate on each vehicle purchased by Gray, which certificate Gray was to deliver with each draft. Plaintiffs and Gray understood that when Gray found a purchaser for one of the used cars he could recover the vehicle's title certificate from the bank by depositing the amount previously withdrawn from the account under the draft for that particular car.
Gray violated the terms of his agreement on three occasions by deliberately misrepresenting on the face of his drafts the type of vehicle actually purchased. Thus his June 13, 1960 draft for $1400 described a 1956 Oldsmobile, but the accompanying envelope contained a Colorado certificate of title to a 1946 Chevrolet. On July 9, 1960, drafts drawn by Gray for $800 and $600 described respectively a 1957 Ford and a 1954 Chevrolet, but the accompanying Colorado title certificates were issued for a 1947 Ford and a 1942 Chevrolet. These and other fraudulent acts not pertinent to the case as related to the bank resulted in depletion of plaintiffs' special account by $12,315.
Plaintiffs sought to establish the defendant bank's liability for breach of an agreement to create and supervise plaintiffs special account. This agreement, couched in ambiguous terms, appears as Exhibit A:
"May 8, 1959
"Colorado State Bank of Denver
Denver, Colorado
"Gentlemen:
"You are authorized and directed to charge the account of Dorothy A. Taylor, et al. Special with drafts accompanied by supporting papers when such drafts are presented to you with the O.K. of A.M. Gray.
"The papers are to be held by you subject to order of Dorothy A. Taylor.
"This order to continue until cancelled in writing.
"/s/ Dorothy A. Taylor
"/s/ C. Robert Taylor
"/s/ Theodore N. Taylor"
During the presentation of testimony offered by plaintiffs the trial court permitted the introduction of parol evidence to clarify the intention of the parties regarding this instrument. According to the testimony of Dorothy Taylor the phrase "supporting papers" in the parties' contemplation referred to automobile certificates of title. A title would "support the draft if it corresponded to the make, year, and number of the vehicle described on the face of the draft. The president of the defendant bank was called for cross-examination by counsel for plaintiffs. He admitted signing the instrument and charging plaintiffs' account $1.50 for each of Gray's drafts. He stated that the phrase "supporting papers" referred to therein was meaningless surplusage to the parties' agreement.
The only witnesses called by the plaintiffs were Dorothy Taylor and the bank officer who was cross-examined. When the plaintiffs rested the bank moved for dismissal on two grounds, namely: that there was a failure to establish liability on the part of the bank; and, assuming arguendo that liability had been proven under the evidence, there was no competent evidence establishing *774 the amount of damage to which plaintiffs were entitled.
The trial court dismissed the action against the bank for the sole reason that, "* * * there has been no showing as to the amount of damages which was suffered by the plaintiff[s]." It stated, with reference to the showing made upon the question of liability, that, "So that as far as a prima facie case being proven by the plaintiff[s], I think that has been done." It was the trial court's view that the defendant bank wrongfully neglected to obtain supporting certificates of title on Gray's June 13 and July 9 drafts, and that the measure of plaintiffs' damage was the difference in value between the three vehicles described in Gray's fraudulent drafts and the three vehicles actually purchased by Gray. In the absence of evidence as to the relative value of the vehicles, the trial court granted defendant's motion to dismiss the action. The trial court misconceived the measure of damages applicable to the pertinent facts which were undisputed at the time the motion to dismiss was made.
The fundamental rule to be observed in breach of contract actions is that the wronged party shall recover compensatory damages sufficient to place him in the position he would have occupied had the breach not occurred. See Law v. Simon, 110 Colo. 545, 136 P.2d 520; Fort v. Brighton Ditch Co., 79 Colo. 462, 246 P. 786; Restatement of Contracts, § 329. In 25 C.J.S. Damages § 74, it is stated:
"* * * The measure is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed, * * *."
The court ruled that a prima facie case was established that the bank honored three drafts submitted by Gray in violation of its contractual obligation to honor such drafts only when they were accompanied by supporting papers. As the case stood at the time the plaintiffs rested, the bank was obligated to refuse to honor the three drafts, and had it refused to do so the aggregate sum of $2,800 would not have been withdrawn from plaintiffs' special account.
Defendant misconceives the measure of plaintiffs' damages as the difference in value between the three used vehicles represented by the title certificates and the three vehicles described on Gray's drafts. The record shows that plaintiffs and defendant never obtained any security interest in Gray's vehicles such that in the event of his default the parties could have foreclosed encumbrances against the vehicles by independent in rem proceedings. Defendant's mere possession of Gray's title certificates did not suffice to create an encumbrance against the vehicles. C.R.S. 1963, 13-6-19 and 13-6-20; Codding v. Jackson, 132 Colo. 320, 287 P.2d 976. Since plaintiffs had no recourse against the used vehicles when Gray's fraud was discovered, their actual damages were not mitigated or reduced by the value of the three vehicles.
The bank's contentions would have merit in the distinguishable situation where a defendant contracts to procure a mortgage or deed of trust against a debtor's property to secure a plaintiff's loan. The defendant's failure to perform, coupled with the debtor's insolvency, would in such a case entitle the plaintiffs to recover damages limited to the value of the security which the defendant neglected to obtain. Wages v. Garmon, 75 Colo. 507, 226 P. 667; Leven v. Lolcama, 72 Colo. 427, 211 P. 870; Restatement (Second) of Agency § 401, comment e. In the instant case, however, the bank's breach consists of allowing unauthorized withdrawals from the special account, and not of any failure to perfect a security interest in plaintiffs' favor.
In the authorities cited by defendant, Commercial Savings Bank of Sterling v. Baum, 137 Colo. 538, 327 P.2d 743, and First National Bank of Denver v. Jones, 124 Colo. 451, 237 P.2d 1082, the banks had not entered into contractual agreements defining their duties and responsibilities. The present action, based upon the defendant's claimed express contract, is therefore *775 distinguishable and not controlled by the cited cases.
The judgment is reversed and the cause remanded for further proceedings at which the defendant shall be permitted to introduce any and all evidence pertinent to any issue of liability or damages with reference to the three drafts specifically referred to herein.
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108 P.3d 1201 (2004)
198 Or. App. 546
STATE of Oregon, Respondent,
v.
Scott Dean HARBERTS, Appellant.
CR0002110; A114825.
Court of Appeals of Oregon.
Argued and Submitted September 28, 2004.
Decided March 30, 2005.
*1203 Eric M. Cumfer, Salem, argued the cause and filed the brief for appellant.
Jonathan Fussner, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert B. Rocklin, Assistant Attorney General.
Before LANDAU, Presiding Judge, HASELTON, Judge, and DEITS, Judge pro tempore.
LANDAU, P.J.
Defendant appeals a judgment of conviction on one count of sexual abuse in the first degree. Former ORS 163.425 (1983), renumbered as ORS 163.427 (1991). He assigns error to the trial court's (1) denial of his motion to dismiss the indictment as untimely; (2) exclusion of evidence that defendant claims would have shown the bias of the complaining witness; and (3) denial of his motions in arrest of judgment proffered on the ground that the indictment did not state an offense. We affirm.
I. FACTUAL BACKGROUND
In July 1989, defendant was arrested for the aggravated murder of Kristina Hornych. At the time, defendant was living with Kristina's father, Kevin Hornych, and Kevin's girlfriend, Sylvia, whom Kevin married a short time later. The victim in this case, CS, is Sylvia's daughter, who lived with Kevin and Sylvia part of the time.
After defendant's arrest on the murder charge, police referred the children who had lived in the house to CARES for evaluation. CS, then age 10, was among those children. During that evaluation, CS was questioned about whether defendant had sexually abused her. She said that defendant had not abused her, and the CARES evaluation reported that denial.
Meanwhile, defendant was convicted of the aggravated murder of Kristina. In September 2000, however, the Oregon Supreme Court reversed the conviction, vacated the sentence, and remanded with instructions to dismiss the indictment. State v. Harberts, 331 Or. 72, 11 P.3d 641 (2000). Shortly after that decision, CS reported to police that, in fact, defendant had sexually abused her between February 1987 and July 1989.
On October 24, 2000, a grand jury returned an indictment that alleged, in part:
"The said defendant on or between the 1st day of February, 1987 to the 14th day of July 1989, in the County of Clackamas, State of Oregon, did unlawfully and knowingly subject [CS], a person under the age of twelve years, to sexual contact by touching her vagina, a sexual and intimate part of [CS], said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.
"The state further alleges that [CS] was under the age of 18 at the time of the crime and the crime was reported before [CS] attained 24 years of age.
"The state further alleges the offense was reported to a law enforcement agency or other governmental agency within the last six years."
During the dates alleged in the indictment, the applicable statute of limitations required prosecution within three years of the date on which the crime was committed. ORS 131.125(2)(a) (1987). In 1989, however, the legislature amended that statute to provide that, if the victim was under 18 years of age at the time the crime was committed, a prosecution for first-degree sexual abuse must be commenced within six years of the date on which the sexual abuse was committed. Or. Laws 1989, ch. 831, § 1. In 1991, the legislature again amended the statute to provide that a prosecution for first-degree sexual abuse must be commenced "anytime before the victim attains 24 years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first." ORS 131.125(2)(k).
Before trial, defendant moved to dismiss the indictment on statute of limitations grounds. Defendant advanced two arguments. First, he argued that the indictment was untimely under the three-year 1987 statute of limitations that applied when the crime *1204 was committed. Subsequent amendments that extended that limitations period, he argued, cannot constitutionally be applied to him without violating the state and federal prohibitions against ex post facto laws. Second, and in the alternative, he argued that, even if the current version of ORS 131.125(2)(k) applies to him, the prosecution remains untimely because it occurred more than six years after the first report of sexual abuse occurred in 1989, when CARES staff first questioned the victim about possible abuse.
The state argued that the 1987 statute of limitations did not apply, having been superseded by amendments in 1989 and 1991 that extended the limitations period. The state further argued that applying the extended statute of limitations period to defendant did not offend either the state or the federal ex post facto prohibition. As for defendant's argument that the prosecution was untimely even under the current law, the state responded that the victim's denial in 1989 that defendant had abused her did not constitute a "report" that triggered the statute of limitations. According to the state, the first report of sexual abuse occurred in September 2000, only one month before the grand jury returned the indictment. The trial court denied defendant's motion.
During the trial to the court, the victim's mother, Sylvia, testified. Defense counsel questioned her about the location of a bottle of rubbing alcohol and a bloody elastic bandage that had been found at the scene of Kristina's murder. The state objected to the question on the ground of relevance, arguing that facts concerning the murder of Kristina were unrelated to the charge before the court. The state further objected that the evidence was inadmissible under OEC 403 and OEC 404.
Defense counsel replied that, indeed, he wanted to inquire about the circumstances of Kristina's murder. According to counsel, if it could be established that defendant had not killed Kristina and that, in fact, Kevin and Sylvia did, that evidence would demonstrate a motive for "the Hornych family to collude and fabricate" the sexual abuse charge against him as a way to draw attention away from themselves as suspects in Kristina's murder.
The trial court sustained the state's objection to the question concerning the alcohol and the bandage:
"[A]t this point, I don't find that the location of these wraps is relevant to the issues that we have to decide here. Any marginal relevance it's got is, you know, just as under Rule 403, is, if there is any, and I don't I'm not even conceding that there is, that it's just going to necessitate, you know, visiting collateral issues that are not going to be helpful to the Court."
Defense counsel responded with a request to make an offer of proof. The court allowed the request. Defense counsel did not, however, make an offer of proof at that time.
The court ultimately found defendant guilty. After the court's decision and a week after the court's ruling on the admissibility of the evidence of the rubbing alcohol and the bandage defendant submitted an offer of proof detailing evidence that he believed demonstrated that defendant "did not murder Kristina Hornych and that Kevin and Sylvia Hornych know that [defendant] did not kill Kristina Hornych." Also after the court's decision, defendant filed two motions in arrest of judgment. In each of the two motions, defendant argued that the facts stated in the indictment did not constitute an offense. The trial court denied both motions and found defendant guilty. After a sentencing hearing, the court imposed a suspended sentence of five years' imprisonment.
II. DISPOSITION OF THE MERITS
A. Denial of motion to dismiss on statute of limitations grounds
Defendant first assigns error to the denial of his motion to dismiss on statute of limitations grounds. As we have noted, at trial, he advanced two arguments in support of his motion; first, that the application of the current version of ORS 131.125(2)(k) violates state and federal ex post facto prohibitions and, second, that, in any event, the current statute of limitations has run. On appeal, he renews both arguments.
*1205 1. Ex post facto arguments
We begin with defendant's ex post facto arguments. Article I, section 21, of the Oregon Constitution provides that "[n]o ex post facto law * * * shall ever be passed[.]" Article I, section 10, of the United States Constitution likewise provides that "no State shall * * * pass any * * * ex post facto * * * Law[.]" As usual, we start with the meaning and application of the state constitution, State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996), although, as it turns out, there is substantial overlap in the analysis pertaining to the state and federal constitutional provisions.
a. State ex post facto analysis
In State v. Fugate, 332 Or. 195, 214, 26 P.3d 802 (2001), the Oregon Supreme Court explained that Article I, section 21, of the Oregon Constitution "prohibits the application of the types of laws that the framers of the Oregon Constitution understood to be prohibited by the Ex Post Facto Clause of the United States Constitution." That is to say, the framers of the Oregon Constitution intended the state ex post facto clause to apply to whatever laws were subject to the federal counterpart as of | {
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910 F.2d 1309
UNITED STATES of America, Plaintiff-Appellee,v.Paul R. EDGECOMB (88-3853) and Gordon R. Edgecomb (88-3943),Defendants-Appellants.
Nos. 88-3853, 88-3943.
United States Court of Appeals,Sixth Circuit.
Argued June 4, 1990.Decided Aug. 8, 1990.Rehearing Denied Sept. 18, 1990.
Linda M. Betzer, argued, Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.
Rick Drake, argued, Chagrin Falls, Ohio, for Paul R. Edgecomb.
Randy D. Briggs, argued, Akron, Ohio, for Gordon R. Edgecomb.
Before JONES and RYAN, Circuit Judges, and PECK, Senior Circuit Judge.
NATHANIEL R. JONES, Circuit Judge.
1
Defendants Paul R. Edgecomb ("Paul") and Gordon R. Edgecomb ("Gordon") appeal their sentences resulting from their guilty pleas to conspiracy to possess cocaine with intent to distribute. For the following reasons, we affirm in part and remand in part.
I.
2
On January 11, 1988, Gordon was indicted on three counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and one count of conpiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. On April 6, 1988, a superseding indictment was filed with additional counts and a conspiracy date of "on or about January, 1987, to on or about December 11, 1987 ..." J.App. (88-3943) at 13. On May 31, 1988, Gordon pled guilty to count one of the superseding indictment, which charged him with conspiracy. On August 19, 1988, the United States District Court for the Northern District of Ohio, Judge Alvin Krenzler presiding, sentenced Gordon to 151 months imprisonment.
3
On February 9, 1988, Paul, who is Gordon's brother, was indicted for possession of cocaine with intent to distribute. On April 6, 1988, Paul was indicted as a part of the superseding indictment. On May 31, 1988, Paul pled guilty to the conspiracy count of the indictment. Under the plea agreement, plaintiff-appellee United States of America ("the government") agreed to make a binding recommendation that any sentence imposed not exceed 151 months. J. App. (88-3853) at 31. On August 16, 1988, the court sentenced Paul to 136 months imprisonment.
II.
4
Both Paul and Gordon pled guilty to the conspiracy count in the indictment, which specified overt acts of possession of cocaine with intent to distribute from January 1987 to December 11, 1987. The Sentencing Reform Act of 1984 provided that the Sentencing Guidelines shall not go into effect until November 1, 1987. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, ch. II, Sec. 235(a)(1), 98 Stat. 2031 (1984), amended by Sentencing Reform Act Amendments Acts of 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728 (1985), and Criminal Law and Procedure Technical Amendments Act of 1986, Pub.L. No. 99-646, Sec. 35, 100 Stat. 3599 (1986). In 1987, Congress further amended the Act, adding that the Act, "shall apply only to offenses committed after" the November 1, 1987 effective date. Sentencing Act of 1987, Pub.L. No. 100-182, Sec. 2(a), 101 Stat. 1266 (1987), codified at 18 U.S.C. Sec. 3351 note. The language of the Act is unclear as to whether the Guidelines apply to crimes such as conspiracy, the commission of which began before November 1, 1987 and ended after that date (hereinafter referred to as "straddle" crimes). The district court ruled that the Sentencing Guidelines were applicable to Gordon because the conspiracy ended after the November 1, 1987 effective date. This court reviews de novo the applicability of the Sentencing Guidelines. United States v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990).
5
On appeal Gordon contends that (1) the conspiracy to which he pled guilty ended prior to November 1, 1987, and (2) even if it did continue beyond the effective date, the Sentencing Guidelines are not applicable.1 Gordon's first argument is that his conspiracy ended prior to November 1, 1987. Specifically, Gordon notes that the agreement to commit the conspiracy was formulated on or about January 1987. Thus, he contends that the conspiracy took place before November 1, 1987. Moreover, Gordon maintains that he told the court at the sentencing hearing that he was involved in a conspiracy up until October 1987, but not afterward. Most important, Gordon contends that he authorized his attorney to contact the government in order to discuss the possibility of a plea bargain and related cooperation with the government, therefore effectively withdrawing from the conspiracy. According to Gordon, his attorney first made contact with the U.S. Attorney in October 1987.
6
While the Sixth Circuit has not yet addressed the issue of the applicability of the Guidelines to straddle crimes,2 several other circuits have. Each of these circuits has ruled that the Guidelines apply to conspiracies which began prior to the effective date and terminated after that date. See United States v. Story, 891 F.2d 988, 994-95 (2d Cir.1989) (legislative history reveals an intent to apply the Guidelines to straddle cases; such an application does not violate the Ex Post Facto Clause unless the post-Guidelines sentence was greater than any possible pre-Guidelines sentence); United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir.1989) (Guidelines applicable where conspiracy straddled effective date; court rejected argument that defendant withdrew from the conspiracy); United States v. Lee, 886 F.2d 998, 1003 (8th Cir.1989) (Guidelines applicable to straddle cases), cert. denied, --- U.S. ----, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990); Gray, 876 F.2d 1411 (9th Cir.1989) (same). Thus, in the instant case, so long as there is a showing that Gordon's participation in the conspiracy continued beyond November 1, 1987, the district court was correct in applying the Guidelines to Gordon's case; for the Guidelines sentence is not greater than the pre-Guidelines penalty (ten years to life imprisonment).
7
The indictment recounted specific overt acts committed in the furtherance of the conspiracy in November and December 1987, and the Assistant U.S. Attorney read some of these acts into the record at the plea hearing, including evidence that Gordon brought one kilogram of cocaine from Florida to Ohio in November and was arrested when he attempted to sell the cocaine on December 11, 1987. J.App. (88-3943) at 123. Gordon's contention that the agreement ended before November 1, 1987 is not persuasive. Conspiracy is a continuing crime which is not completed at the conclusion of the agreement. See United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986). In addition, Gordon's contention that he pled guilty to a conspiracy only before November 1, 1987 is belied by the record. The plea agreement specifically provided that Gordon plead guilty to count one of the indictment, which stated that the conspiracy continued until December 11, 1987, the date of arrest. If Gordon disagreed with the dates of the conspiracy, he should have attempted to negotiate a change in the plea agreement. Finally, any direction by Gordon to his counsel to negotiate with the government did not constitute a withdrawal from the conspiracy. To prove a withdrawal from a conspiracy, "a conspirator must show he acted affirmatively to defeat or disavow the purpose of the conspiracy." United States v. Nicoll, 664 F.2d 1308, 1315 n. 6 (5th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982). If Gordon had withdrawn from the conspiracy, he would not have continued to deal cocaine. Thus, we believe that it is clear that Gordon's participation in the conspiracy continued beyond November 1, 1987, subjecting the crime to application of the Sentencing Guidelines.
8
Gordon's second argument is that even if he did not withdraw from the conspiracy, the government should be estopped from applying the Sentencing Guidelines because the government misled him into committing further criminal acts. Gordon contends that the government informed his attorney that it was interested in his cooperation and the U.S. Attorney knew or should have known that Gordon had to continue his criminal conduct to stay in a position to cooperate with the authorities. According to Gordon, his attorney met with Assistant U.S. Attorney Linda Betzer on several occasions in October and November of 1987. Betzer first indicated that she was interested in Gordon's cooperation, but would have to check with other law enforcement agencies. During | {
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(2008)
Crystal HIBBARD, Plaintiff
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant.
No. Civil Action No. 6:07-285-KKC.
United States District Court, E.D. Kentucky, Southern Division, at London.
February 4, 2008.
OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court on the Motions for Summary Judgment of Plaintiff Crystal Hibbard [R. 10] and Defendant Commissioner Astrue [R. 11]. For the reasons given below, Plaintiff Hibbard's Motion is DENIED and Defendant Astrue's Motion is GRANTED.
I. Factual and Procedural Background
Plaintiff Crystal Hibbard filed her application for Social Security Disability Benefits on February 14, 2005. Plaintiff originally alleged a disability onset date of June 15, 1999; she later amended this onset date to May 14, 2004. Plaintiff's claim for disability benefits was denied initially and on reconsideration, and on November 17, 2006, Plaintiff testified at an administrative hearing before Administrative Law Judge [hereinafter "ALJ"] Donald A. Rising.
Plaintiff Hibbard alleges disability due to a combination of impairments, including anxiety, panic attacks, degenerative disc disease, and carpal tunnel syndrome, with primary symptoms of back, neck, and upper extremity pain. Plaintiff complains of upper and lower back pain, and also alleges problems with her right wrist, neck, and shoulders. She claims that her left shoulder freezes up, and that throughout the day her fingers become stiff, tender, and numb. Plaintiff claims that she is unable to sit down for lengthy periods of time because of her back pain, which she says moves around to different joints of her body. Plaintiff performed secretarial work from. 1984 to 1991, worked as a dataentry clerk from 1994 to 1999. She says that she ceased working in 1999 because work was too stressful, as well as mentally and physically demanding, due to her alleged disabilities. Plaintiff also alleges that from 1999 to 2004 she experienced depression, because of which she remained bedridden for much of her time instead of leaving her home to do other activities. Plaintiff claims that during the above time frame, she could sit down perhaps two hours, stand three hours, and use her hand one to 1.5 hours per day. Plaintiff's Motion for Summary Judgment, at 2 [hereinafter "Plaintiffs Motion"]; ALJ's Opinion, at 3.
Plaintiff has been seen and treated by a variety of doctors and medical providers. The first appears to be Dr. Harold L. Bushey, who treated Plaintiff from February 1990 to May 1998. Defendant's Motion for Summary Judgment, at 5 [hereinafter "Defendant's Motion"]. An exam conducted by Dr. Bushey in 1990 revealed scoliosis with convexity to the right in the thoracic area and to the left in the lumbar area. Plaintiffs Motion, at 3. Dr. Bushey remarked that Plaintiffs scoliosis was more notable when she was standing up. Plaintiff received further treatment from Dr. Bushey for lumbar strain and anxiety in 1995, 1996, and 1998, and was prescribed Xanax, Voltaren, Vicodin, and Lortab for these conditions. Dr. Bushey also prescribed a wrist splint in 1995 for right wrist and hand pain attributed to carpal tunnel syndrome. Though Dr. Bushey's records indicate that Plaintiff complained of back pain and that she displayed a tenderness or restriction in her back, these records do not opine about any work-related limitations that Plaintiffs noted conditions may cause.
Plaintiff also received treatment from Dr. Mirella Ducu from February 1999 to February 2000. D's Motion, at 6; Plaintiffs Motion, at 3. Dr. Ducu noted that Plaintiff had back pain, anxiety, and other impairments. Dr. Ducu's records, however, did not indicate whether Plaintiff had any functional limitations that would affect her ability to perform work. Defendant's Motion, at 6. Also, from January 1999 to February 2003, Plaintiff received treatment at Butler Health Associates. Records there reflected complaints of back pain and paraspinal spasm, sinus problems, and periodic shoulder or elbow pain. Plaintiffs Motion, at 3; Defendant's Motion, at 5. These records also do not indicate whether Plaintiff would have had functional limitations because of these issues. Plaintiff sought refills of her medications during these visits, and in March 2000, her pain medicagons were switched to Oxycontin. Plaintiffs Motion, at 3.
From 1995 on, Plaintiff was also treated at the Clay County Medical Center. Throughout this timer Plaintiff brought varied complaints of neck pain, anxiety, and sinus problems. Defendant's Motion, at 6. In July 1997, Plaintiff was treated for cervical-thoracic strain with swelling, and was also noted to have lateral scoliosis. Plaintiff has been diagnosed with scoliosis since she was nine years old. Plaintiff's Motion, at 5. In September 2003, she reported having back pain, scoliosis, and insomnia. Id. At this time, Plaintiff was noted to have been off of Oxycontin for two to three months. In October 2003, she again complained of neck and back pain, and in November 2003 and August 2004, she complained of chronic right shoulder pain. In August 2004, Plaintiff was also treated for ear pain and a sore throat, but nothing was noted on this occasion about lasting back or other problems. Defendant's Motion, at 7. In 2006, Plaintiff was treated on three separate occasions for chronic neck pain, left shoulder pain, elbow pain, low back pain, and anxiety. Id. Records from the Clay County Medical Center, however, did not explicitly indicate that Plaintiff had any functional limitations due to these diagnoses. Defendant's Motion, at 6.
Plaintiff was also seen by Dr. Josephy Stubbers from May 2003 to September 2005 because of Plaintiff's complaints of chronic back pain. ALJ's Opinion, at 4. Dr. Stubbers' initial physical examination, as well as several subsequent examinations, revealed flattening of the lumbar lordosis, and noted pain and discomfort in the lumbar paraspinal muscles. Plaintiffs Motion, at 4. Another physical examination of Plaintiff in September 2004 revealed mild scoliosis. Id.; ALJ's Opinion, at 4. In July 2004, Plaintiff complained of back and ear pain to Dr. Stubbers, who reported that Plaintiff's symptoms remained the same and recommended that Plaintiff obtain radiographs. Defendant's Motion, at 7. X-rays performed in September 2004 returned positive for spurring change throughout the spine, as well as for a mild decrease in joint space. Plaintiff's Motion, at 4. Dr. Stubbers noted that these x-rays showed a possible aneurism, but a later aortic duplex scan did not show aneurism signs. Defendant's Motion, at 7.
In November 2004, Plaintiff reported to Dr. Stubbers that if she takes her medications, her pain is controlled, and her level of functioning is improved in that she can do activities such as performing her ADLs, washing clothes, and cleaning her house. ALJ's Opinion, at 4.; Defendant's Motion, at 7-8. Plaintiff also denied any significant side effects from these medications. At this time, Dr. Stubbers did not note any abnormalities on the Plaintiff's examination; he only recommended that Plaintiff adjust her diet and exercise to help control her blood pressure and cholesterol level. Defendant's Motion, at 7. On January 13, 2005, Plaintiff returned to Dr. Stubbers with complaints of back pain, though she admitted that her pain was controlled well with Oxycontin. Defendant's Motion, at 8. Dr. Stubbers noted that Plaintiff had flattening of her T-spine with bilateral paraspinal muscle spasm. Id. Dr. Stubbers initially prescribed Piroxicam, Amitriptyline, and Ultram, and he decreased the dosage level of Oxycontin prescribed earlier by thirty percent. Plaintiff's Motion, at 4. In March 2005, Plaintiff again admitted the effectiveness of her pain medication. Defendant's Motion, at 8. At this time, Dr. Stubbers also prescribed wrist splints for Plaintiffs carpal tunnel syndrome. Plaintiff's Motion, at 4. Plaintiffs physical examination at this time included a full range of motion in all extremities. Defendant's Motion, at 8. In September 2005, Plaintiff again returned to Dr. Stubbers for anxiety, hypertension, hypercholesterolemia, and other complaints. Id. At this time, Dr. Stubbers noted that Plaintiff had flattening of the lumbar lordosis with pain. Id. However, Dr. Stubbers' treatment records do not opine about any functional limitations that Plaintiff may have regarding her ability to work. Id.
Plaintiff was given ho recommendations for surgery, nor she undertake physical therapy for her conditions. ALJ's Opinion, at 5. No EMG or NCV studies were performed on Plaintiff. Id. Plaintiff never sought treatment from a specialist physician for her conditions, instead being treated solely by general practitioners. Id. Plaintiff was not referred for mentalhealth treatment and is not presently undergoing such treatment. Id. Plaintiff currently takes nerve pills, but uses no other kind of psychotropic medication. Id. Plaintiff stated that despite her alleged physical and mental impairments, she is still able to engage in a variety of activities, including caring for her personal needs, cooking, doing laundry, washing dishes, paying bills, going shopping, watching television, feeding her dogs, visiting family and friends, and driving. Id. at 6.
Plaintiffs medical record was reviewed by Social Security Agency examiners Drs. Humildad Anzures and David Swan, in June and December 2005, respectively. Both examiners concluded that Plaintiff did not have a severe physical impairment as of December 31, 2004, Plaintiffs date last insured. Defendant's Motion, at 11. Moreover, Social Security Agency examiner Dr. Larry Freudenberger reviewed Plaintiffs medical record in November | {
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} |
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